issue-1996-06-20•Federal Register final rules — 1996-06-20
Federal Register final rules — 1996-06-20
issue-1996-06-20Federal Register final rules — 1996-06-20Regulation
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. 96-15766 Groundfish of the Bering Sea and Aleutian Islands Area; Yellowfin Sole by Vessels Using Trawl Gear
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15766]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 675
[Docket No. 960129019-6019-01; I.D. 061496C]
Groundfish of the Bering Sea and Aleutian Islands Area; Yellowfin
Sole by Vessels Using Trawl Gear
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS is closing the directed fishery for yellowfin sole by
vessels using trawl gear in the Bering Sea and Aleutian Islands
management area (BSAI). This action is necessary to prevent exceeding
the third seasonal bycatch allowance of Pacific halibut apportioned to
the trawl yellowfin sole fishery in the BSAI.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), June 17, 1996,
until 12 noon, A.l.t., August 15, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR parts 620 and 675.
The third seasonal bycatch allowance of Pacific halibut for the
BSAI trawl yellowfin sole fishery, which is defined at
Sec. 675.21(b)(1)(iii)(B)(1), was established by the Final 1996 Harvest
Specifications of Groundfish (61 FR 4311, February 5, 1996) as 100
metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(c)(1)(iii), that the third seasonal bycatch allowance
of Pacific halibut apportioned to the trawl yellowfin sole fishery in
the BSAI has been caught. Therefore, NMFS is prohibiting directed
fishing for yellowfin sole by vessels using trawl gear in the BSAI.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 675.20(h).
Classification
This action is taken under 50 CFR 675.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 17, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-15766 Filed 6-17-96; 2:58 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-15760 Promoting Wholesale Competition Through Open Access Non- discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)] [Rules and Regulations] [Page 31394] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-15760] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 385 [Docket Nos. RM95-8-002 and RM94-7-003] Promoting Wholesale Competition Through Open Access Non- discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities Issued: June 14, 1996. AGENCY: Federal; Energy Regulatory Commission. ACTION: Final rule; notice of filing of motion for extension of time. ----------------------------------------------------------------------- SUMMARY: On June 12, 1996, the American Public Power Association, the Electricity Consumers Resource Council, the National Rural Electric Cooperative Association and the Ohio Consumers' Counsel (Joint Movants) filed a joint request to extend the comment period for compliance filings made under this final rule (Order No. 888, 61 FR 21540, May 10, 1996) from the 15-day comment period established in the final rule to a 45-day comment period. Joint Movants also asked that the Commission require that the compliance tariff filings, as well as redline versions of those filings, be made in electronic format and posted on the FERC Bulletin Board. Copies of the motion are on file with the Commission and are available for public inspection. DATES: Any person desiring to respond to the motion should file an answer on or before June 21, 1996. ADDRESSES: Send answers to: Office of the Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. FOR FURTHER INFORMATION CONTACT: David D. Withnell, Federal Energy Regulatory Commission, Office of the General Counsel, 888 First St., NE., Washington, DC 20426, Telephone: (202) 208-2063. Lois D. Cashell, Secretary. [FR Doc. 96-15760 Filed 6-19-96; 8:45 am] BILLING CODE 6717-01-M
Complete official Federal Register PDF
FR Doc. 96-15759 Screening at Privately Owned Bird Quarantine Facilities
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31391-31392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15759]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 92
[Docket No. 94-132-2]
Screening at Privately Owned Bird Quarantine Facilities
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations that apply to privately owned
quarantine facilities for imported birds to provide for the use of
nylon screening and to clarify the meaning of ``double screened.''
These amendments will give facility operators a choice of screening
materials and clarify the regulations.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Tracye R. Butler, Staff
Veterinarian, Import/Export Animals, National Center for Import and
Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 20737-1231,
(301) 734-5097.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 92.100 through 92.107, ``Subpart
ABirds'' (referred to below as ``the regulations''), govern the
importation of certain birds to prevent the introduction of
communicable diseases of livestock and poultry. As a condition of
importation, all imported birds must be quarantined for a minimum of 30
days upon their arrival in the United States. Under
Sec. 92.101(c)(2)(ii), certain personal pet birds may remain in the
owner's possession during the 30-day quarantine if kept separate from
other birds. In all other cases, imported birds must be quarantined in
either a U.S. Department of Agriculture quarantine facility or in a
privately owned quarantine facility that meets standards set forth in
Sec. 92.106(c).
The standards for privately owned quarantine facilities for
imported birds include installation of screening over all openings to
the outside to prevent the entry of rodents and insects, which could
transmit disease. The regulations require that all screening be metal
and that all openings to the outside be double-screened (see
Sec. 92.106(c)(2)(ii)(A)).
On March 12, 1996, we published in the Federal Register (61 FR
9957-9958, Docket No. 94-132-1) a proposal to amend the regulations by
providing for the use of nylon screening and by clarifying the meaning
of the term ``double screened.''
[[Page 31392]]
We solicited comments concerning our proposal for 60 days ending
May 13, 1996. We did not receive any comments. The facts presented in
the proposed rule still provide the basis for this final rule.
Therefore, based on the rationale set forth in the proposed rule,
we are adopting the provisions of the proposal as a final rule without
change.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
Our economic analysis indicates that the amendments will have
little economic impact on privately owned bird quarantine facilities.
Metal and nylon mesh are comparably priced. In addition, the rule adds
nylon mesh as a screening option; it does not require quarantine
facilities to be re-screened. We anticipate that the clarification
concerning double screening will have no effect on facilities.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 9 CFR Part 92
Animal diseases, Imports, Livestock, Poultry and poultry products,
Quarantine, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 92 is amended as follows:
PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY AND CERTAIN
ANIMAL AND POULTRY PRODUCTS; INSPECTION AND OTHER REQUIREMENTS FOR
CERTAIN MEANS OF CONVEYANCE AND SHIPPING CONTAINERS THEREON
1. The authority citation for part 92 continues to read as follows:
Authority: 7 U.S.C. 1662; 19 U.S.C. 1306; 21 U.S.C. 102-105,
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31
U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.2(d).
2. In Sec. 92.106, paragraphs (c)(2)(ii)(A) and (c)(2)(ii)(P)(1)
are revised to read as follows:
Sec. 92.106 Quarantine requirements.
* * * * *
(c) * * *
(2) * * *
(ii) * * *
(A) Be constructed only with material that can withstand continued
cleaning and disinfection. All solid walls, floors, and ceilings must
be constructed of impervious material. All openings to the outside must
be double-screened, with an interior screen of metal or nylon mesh that
is impervious to biting insects such as gnats or mosquitos, and an
exterior metal screen that is rodent-proof and is made of wire, such as
rabbit wire, hardware cloth, or smooth welded wire, with mesh size no
larger than 1 inch x 1.5 inches (2.54 cm x 3.81 cm). The interior and
exterior screens must be separated by at least 3 inches (7.62 cm);
* * * * *
(P) * * *
(1) Any of the exterior walls may be replaced by a double-screened
wall set in a concrete or concrete-block curb. The double screening
shall be of wire mesh or wire mesh and nylon mesh, as provided in
paragraph (c)(2)(ii)(A) of this section, with the interior and exterior
screens of the sun room wall separated by at least 3 inches (7.62 cm);
the concrete or concrete block curb must be at least 12 inches high,
impermeable to water, and able to prevent the escape of water, manure,
and debris.
* * * * *
Done in Washington, DC, this 14th day of June 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-15759 Filed 6-19-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-15750 Replacement of CF 7506 by CF 7501
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31394-31395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15750]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR PART 10
[T.D. 96-51]
Replacement of CF 7506 by CF 7501
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations to replace a
reference to Customs Form (CF) 7506 in Sec. 10.62(c)(2), Customs
Regulations, with a reference to CF 7501. This change was inadvertently
omitted from a final rule document published in the Federal Register on
October 6, 1995 (60 FR 52294) which replaced all other references to CF
7506 in the Customs Regulations with references to CF 7501.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Raymond Janiszewski, Office of Trade
Compliance, (202)927-0380.
SUPPLEMENTARY INFORMATION:
Background
Previously, CF 7506, Warehouse Withdrawal Conditionally Free of
Duty and Permit, was the form used to make warehouse withdrawals for
merchandise conditionally free of duty. The CF 7506 has now been
eliminated, and the CF 7501 is to be used instead.
In a final rule document published in the Federal Register (60 FR
52294) on October 6, 1995, references to CF 7506 were deleted and
replaced by reference to CF 7501. Inadvertently, the reference to CF
7506 in Sec. 10.62(c)(2), Customs Regulations (19 CFR 10.62 (c)(2)),
was not deleted in that document and replaced with a reference to CF
7501. This document corrects that omission.
Regulatory Flexibility Act, Executive Order 12866, Inapplicability of
Public Notice and Comment Requirements, and Delayed Effective Date
Requirements
Inasmuch as this amendment merely substitutes one Customs Form for
another, pursuant to 5 U.S.C. 553 (a)(2) and (b)(B), good cause exists
for
[[Page 31395]]
dispensing with notice and public procedure thereon as unnecessary. For
the same reason, good cause exists for dispensing with the requirement
for a delayed effective date, under 5 U.S.C. 553 (a)(2) and (d)(3).
Also, for the same reason, it is certified that the amendments will not
have a significant economic impact on a substantial number of small
entities. Accordingly, the amendments are not subject to the regulatory
analysis or other requirements of 5 U.S.C. 603 or 604.
This document does not meet the criteria for a ``significant
regulatory action'' as specified in Executive Order 12866.
Drafting Information
The principal author of this document was Janet L. Johnson,
Regulations Branch. However, personnel from other offices participated
in its development.
List of Subjects in 19 CFR Part 10
Caribbean Basin initiative, Customs duties and inspection, Exports,
Reporting and recordkeeping requirements.
Amendment to the Regulations
For the reasons set forth in the preamble, Part 10 of the Customs
Regulations (19 CFR Part 10) is amended as set forth below.
PART 10--ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE,
ETC.
1. The general authority citation for Part 10 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1321, 1481, 1498, 1508, 1623,
3314;
* * * * *
Sec. 10.62 [Amended]
2. Section 10.62(c)(2) is amended by removing the reference
``Customs Form 7506'' and by adding ``Customs Form 7501'' in its place.
George J. Weise,
Commissioner of Customs.
Approved: May 30, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-15750 Filed 6-19-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-15738 Addition of Ohio River Islands National Wildlife Refuge to the List of Open Areas for Sport Fishing in West Virginia, Pennsylvania, and Kentucky
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31459-31461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15738]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 32
RIN 1018-AD43
Addition of Ohio River Islands National Wildlife Refuge to the
List of Open Areas for Sport Fishing in West Virginia, Pennsylvania,
and Kentucky
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) adds Ohio River
Islands National Wildlife Refuge to the list of areas open for sport
fishing in West Virginia, Pennsylvania, and Kentucky, along with
pertinent refuge-specific regulations for such activities. The Service
has determined that such use will be compatible with the purposes for
which the refuge was established. The Service has further determined
that this action is in accordance with the provisions of all applicable
laws, is consistent with principles of sound fish and wildlife
management, helps implement Executive Order 12962, (Recreational
Fisheries), and is otherwise in the public interest by providing
additional recreational opportunities at a national wildlife refuge.
EFFECTIVE DATE: This rule is effective July 22, 1996.
ADDRESSES: Assistant Director--Refuges and Wildlife, U.S. Fish and
Wildlife Service, 1849 C Street, NW., MS 670 ARLSQ, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Stephen R. Vehrs, Division of Refuges,
U.S. Fish and Wildlife Service, Washington, DC 20240; Telephone (703)
358-2397.
SUPPLEMENTARY INFORMATION: National wildlife refuges generally are
closed to hunting and sport fishing until opened by rulemaking. The
Secretary of the Interior (Secretary) may open refuge areas to hunting
and/or fishing upon a determination that such uses are compatible with
the purpose(s) for which the refuge was established. The action also
must be in accordance with provisions of all laws applicable to the
areas, must be consistent with the principles of sound fish and
wildlife management, and must otherwise be in the public interest. This
rulemaking opens Ohio River Islands National Wildlife Refuge to sport
fishing.
In the November 29, 1995, issue of the Federal Register (60 FR
61239-61240) the Service published a proposed rulemaking and invited
public comment. A description of the refuge and the proposed fishing
program was provided. No comments were received during the 60-day
public comment period.
Statutory Authority
The National Wildlife Refuge System Administration Act (NWRSAA) of
1966, as amended (16 U.S.C. 668dd), and the Refuge Recreation Act of
1962 (16 U.S.C. 460k) govern the administration and public use of
national wildlife refuges. Specifically, Section 4(d)(1)(A) of the
NWRSAA authorizes the Secretary of the Interior to permit the use of
any area within the Refuge System for any purpose, including but not
limited to, hunting, fishing and public recreation, accommodations and
access, when he determines that such uses are compatible with the major
purpose(s) for which the area was established.
The Refuge Recreation Act (RRA) authorizes the Secretary to
administer areas within the Refuge System for public recreation as an
appropriate incidental or secondary use only to the extent that it is
practicable and not inconsistent with the primary purpose(s) for which
the areas were established. The NWRSAA and the RRA also authorize the
Secretary to issue regulations to carry out the purposes of the Acts
and regulate uses.
In many cases, refuge-specific regulations are developed to ensure
the compatibility of the programs with the purposes for which the
refuge was established. Initial compliance with the NWRSAA and the RRA
has been ensured for hunting and sport fishing on newly acquired
refuges through an interim determination of compatibility made at the
time of acquisition. This has ensured that the determinations required
by these acts have been made prior to the addition of refuges to the
lists of areas open to hunting and fishing in 50 CFR part 32. Continued
compliance is ensured by the development of long-term hunting and sport
fishing plans and by annual review of hunting and sport fishing
programs and regulations.
The Service has determined that this action is in accordance with
the provisions of all applicable laws, is
[[Page 31460]]
consistent with principles of sound fish and wildlife management, helps
implement Executive Order 12962 (Recreational Fisheries), and is
otherwise in the public interest by providing additional recreational
opportunities at national wildlife refuges. Sufficient funds will be
available within the refuge budget to operate the hunting and sport
fishing programs as proposed.
Ohio River Islands National Wildlife Refuge
Established in 1990, the Ohio River Islands National Wildlife
Refuge is located on the Ohio River from Shippingport, Pennsylvania to
Manchester, Ohio. There are currently eighteen islands in the refuge
totaling 1,020 acres. Through ongoing acquisition efforts, the refuge
has the potential to include all, or a portion of, 38 islands located
along 362 river miles encompassing up to 3,500 acres of wildlife
habitat.
The Ohio River islands and their back channels are recognized for
high quality fish and wildlife, recreation, scientific, and natural
heritage values. These areas provide some of the regions' highest
quality riverine, wetland, and bottomland habitats, and are used by
waterfowl, shorebirds, songbirds, warmwater fish, and freshwater
mussels.
The Ohio River Islands National Wildlife Refuge was established
under the authority of the Fish and Wildlife Act of 1956 (16 U.S.C.
742a-742j). The refuge's primary purposes are: ``* * * for the
development, advancement, management, conservation and protection of
fish and wildlife resources'', and ``for the benefit of the United
States Fish and Wildlife Service, in performing its activities and
services.'' The objectives of the sport fishing program are to:
(1) Provide for the wise use of renewable natural resources;
(2) provide an opportunity for sport fishing and minimal;
interference from other anglers and freedom to participate in a natural
setting; and
(3) provide sport fishing opportunity when such use was not
detrimental to the refuge's primary objective and is compatible with
other wildlife-dependent recreation.
A total of 55 species of fish were collected by the West Virginia
Department of Natural Resources and the Service in the vicinity of the
islands. The shallow water areas against the islands, particularly the
back channels, are important nursery areas for a variety of game fish.
Opening the refuge to sport fishing will have a negligible impact on
the fishery resource.
The 18 refuge islands comprise 1,020 acres, and State surveys of
recreational fishing indicate little impact has been realized on the
island habitats. The overwhelming majority of fish harvest occurs at
dam tailwaters and main channel borders.
Opening the refuge to fishing is compatible with refuge purposes.
The fishing program will be reviewed, as appropriate, to ensure that
sensitive habitats are protected from disturbance. Sufficient funds
will be available within the refuge budget to operate this fishing
program.
Paperwork Reduction Act
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements.
Economic Effect
Service review has revealed that this rulemaking will increase
fishermen visitation to the surrounding area of the refuge before,
during or after recreational uses, compared to the refuge being closed
to these recreational uses. When the Service acquired this land, all
public use ceased under law until opened to the public in accordance
with this rulemaking.
This refuge is located away from large metropolitan areas.
Businesses in the area consist primarily of small family owned stores,
restaurants, gas stations and other small commercial enterprises. In
addition, there are several small commercial and recreational fishing
and hunting camps and marinas in the general area. This rule would have
a positive effect on such entities; however, the amount of revenue
generated is not large.
Many area residents enjoy a rural lifestyle that includes frequent
recreational use of the abundant natural resources of the area. A high
percentage of the households enjoy hunting, fishing, and boating in
area wetlands, rivers and lakes. Refuge lands were not generally
available for general public use prior to government acquisition;
however, they were fished and hunted upon by friends and relatives of
the landowners, and some were under commercial hunting and fishing
leases. Many nearby residents also participate in other forms of
nonconsumptive outdoor recreation, such as biking, hiking, camping,
birdwatching, canoeing, and other outdoor sports.
Economic impacts of refuge hunting and fishing programs on local
communities are calculated from average expenditures in the ``1995
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation''. In 1995, 42 million U.S. residents 16 years old and older
hunted and/or fished. More specifically, 37 million fished and 14.5
million hunted. Those who both fished and hunted account for the 9.5
million overage. Nationwide expenditures by sportsmen totaled $42
billion. Trip-related expenditures for food, lodging, and
transportation were $16 billion or 37 percent of all fishing and
hunting expenditures; equipment expenditures amounted to $19 billion,
or 46 percent of the total; other expenditures such as those for
magazines, membership dues, contributions, land leasing, ownership,
licenses, stamps, tags, and permits accounted for $6.9 billion, or 16
percent of all expenditures. Overall, anglers spent an average of $41
per day. For each day of hunting, big game hunters averaged spending
$40, small game hunters $20, and migratory bird hunters $33. Applying
these national averages to projected visitation at Ohio River Islands
NWR results in the following: 1200 fisherman are expected to spend
$12,200 annually in pursuit of their sport.
This rulemaking was not subject to review by the Office of
Management and Budget under Executive Order 12866. A review under the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed
that this rulemaking would not have a significant effect on a
substantial number of small entities, which include businesses,
organizations, or governmental jurisdictions. Hunters and/or fishermen
increase visitation and expenditures in the surrounding area of the
refuge and contribute in a positive manner, but the total amounts are
not significant to the local area, therefore, this rule would have
minimal effect on such entities.
Federalism
This rule will not have substantial direct effects on the States,
in their relationship between the Federal 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, the Service has determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment.
Unfunded Mandates
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost
[[Page 31461]]
of $100 million or more in any given year on local or State governments
or private entities.
Civil Justice Reform
The Service has determined that these final regulations meet the
applicable standards provided in Sections (a) and (b) of Executive
Order 12988.
Environmental Effects
Pursuant to the requirements of section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), an
environmental assessment was prepared for this opening. Based upon the
Environmental Assessment, the Service issued a Finding of No
Significant Impact with respect to the opening. A Section 7 evaluation
pursuant to the Endangered Species Act was conducted. The Service
determined that this action will not affect any Federally listed or
proposed for listing threatened or endangered species or their critical
habitats. These documents are on file at the offices of the Service and
may be reviewed by making preliminary arrangements with the primary
author noted below.
Primary Author: Stephen R. Vehrs, Division of Wildlife Refuges,
U.S. Fish and Wildlife Service, Washington, DC, is the primary
author of this rulemaking document.
List of Subjects in 50 CFR Part 32
Fishing, Hunting, Reporting and recordkeeping requirements,
Wildlife, Wildlife refuges.
Accordingly, part 32 of chapter I of Title 50 of the Code of
Federal Regulations is amended as follows:
PART 32--[AMENDED]
1. The authority citation for Part 32 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i.
Sec. 32.7 [Amended]
2. Section 32.7, List of refuge units open to hunting and/or
fishing, is amended by alphabetical adding ``Ohio River Islands
National Wildlife Refuge'' to the States of Kentucky and Pennsylvania.
3. Section 32.36 Kentucky is amended by adding ``Ohio River Islands
National Wildlife Refuge'' in alphabetical order to read as follows:
Sec. 32.36 Kentucky.
* * * * *
Ohio River Islands National Wildlife Refuge
A. Hunting of Migratory Game Birds. [Reserved]
B. Upland Game Hunting. [Reserved]
C. Big Game Hunting. [Reserved]
D. Sport Fishing. Sport fishing is permitted on designated areas of
the refuge under Kentucky's State fishing regulations and guidelines,
unless otherwise posted on the refuge.
* * * * *
4. Section 32.57, Pennsylvania is amended by adding ``Ohio River
Islands National Wildlife'' alphabetically to read as follows:
Sec. 32.57 Pennsylvania.
* * * * *
Ohio River Islands National Wildlife Refuge
A. Hunting of Migratory Game Birds. [Reserved]
B. Upland Game Hunting. [Reserved]
C. Big Game Hunting. [Reserved]
D. Sport Fishing. Sport fishing is permitted on designated areas of
the refuge under Pennsylvania's State fishing regulations and
guidelines, unless otherwise posted on the refuge.
* * * * *
5. Section 32.68, West Virginia is amended by revising paragraph D,
under ``Ohio River Islands National Wildlife Refuge'' to read as
follows:
Sec. 32.68 West Virginia.
* * * * *
Ohio River Islands National Wildlife Refuge
* * * * *
D. Sport fishing. Sport fishing is permitted on designated areas of
the refuge under West Virginia's State regulations and guidelines,
unless otherwise posted on the refuge.
* * * * *
Dated: April 16, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-15738 Filed 6-19-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-15737 Addition of Great Bay National Wildlife Refuge to the List of Open Areas for Hunting in New Hampshire
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31461-31463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15737]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 32
RIN 1018-AD44
Addition of Great Bay National Wildlife Refuge to the List of
Open Areas for Hunting in New Hampshire
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) adds Great Bay
National Wildlife Refuge to the list of areas open for hunting in New
Hampshire along with pertinent refuge-specific regulations for such
activities. The Service has determined that such use will be compatible
with the purposes for which the refuge was established. The Service has
further determined that this action is in accordance with the
provisions of all applicable laws, is consistent with principles of
sound wildlife management, and is otherwise in the public interest by
providing additional recreational opportunities at a national wildlife
refuge.
EFFECTIVE DATE: This rule is effective July 22, 1996.
ADDRESSES: Assistant Director--Refuges and Wildlife, U.S. Fish and
Wildlife Service, 1849 C Street, NW, MS 670 ARLSQ, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Stephen R. Vehrs, at the address
above; Telephone (703) 358-2397.
SUPPLEMENTARY INFORMATION: National wildlife refuges generally are
closed to hunting until opened by rulemaking. The Secretary of the
Interior (Secretary) may open refuge areas to hunting upon a
determination that such uses are compatible with the purpose(s) for
which the refuge was established. The action also must be in accordance
with provisions of all laws applicable to the areas, must be consistent
with the principles of sound wildlife management, and otherwise must be
in the public interest. The Service opens Great Bay National Wildlife
Refuge to hunting migratory birds, and big game.
In the November 29, 1995, issue of the Federal Register (60 FR
61237-61239) the Service published a proposed rulemaking and invited
public comment. A description of the refuge and the proposed hunting
program was provided. No comments were received during the 60-day
public comment period.
Statutory Authority
The National Wildlife Refuge System Administration Act (NWRSAA) of
1966, as amended (16 U.S.C. 668dd), and the Refuge Recreation Act of
1962 (16 U.S.C. 460k) govern the administration and public use of
national wildlife refuges. Specifically, Section 4(d)(1)(A) of the
NWRSAA authorizes the Secretary of the Interior to permit the use of
any area within the Refuge System for any purpose, including but not
limited to, hunting, fishing and public recreation, accommodations and
access, when he determines that such uses are compatible with the major
purpose(s) for which the area was established.
The Refuge Recreation Act (RRA) authorizes the Secretary to
administer areas within the Refuge System for
[[Page 31462]]
public recreation as an appropriate incidental or secondary use only to
the extent that it is practicable and not inconsistent with the primary
purpose(s) for which the areas were established. The NWRSAA and the RRA
also authorize the Secretary to issue regulations to carry out the
purposes of the Acts and regulate uses.
In many cases, refuge-specific regulations are developed to ensure
the compatibility of the programs with the purposes for which the
refuge was established. Initial compliance with the NWRSAA and the RRA
has been ensured for hunting and sport fishing on newly acquired
refuges through an interim determination of compatibility made at the
time of acquisition. This has ensured that the determinations required
by these acts have been made prior to the addition of refuges to the
lists of areas open to hunting and fishing in 50 CFR part 32. Continued
compliance is ensured by the development of long-term hunting and sport
fishing plans and by annual review of hunting and sport fishing
programs and regulations.
The Service has determined that this action is in accordance with
the provisions of all applicable laws, is consistent with principles of
sound wildlife management and is otherwise in the public interest by
providing additional recreational opportunities at national wildlife
refuges. Sufficient funds will be available within the refuge budget to
operate the hunting programs as proposed.
Paperwork Reduction Act
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and has found it to contain no information
collection requirements.
Economic Effect
Service review has revealed that this rulemaking will increase
hunter visitation to the surrounding area of the refuge before, during
or after recreational uses, compared to the refuge being closed to
these recreational uses. When the Service acquired this land, all
public use ceased under law until opened to the public in accordance
with this rulemaking.
This refuge is located away from large metropolitan areas.
Businesses in the area consist primarily of small family owned stores,
restaurants, gas stations and other small commercial enterprises. In
addition, there are several small commercial and recreational hunting
camps and marinas in the general area. This final rule would have a
positive effect on such entities; however, the amount of revenue
generated is not large.
Many area residents enjoy a rural lifestyle that includes frequent
recreational use of the abundant natural resources of the area. A high
percentage of the households enjoy hunting, fishing, and boating in
area wetlands, rivers and lakes. Refuge lands were not generally
available for general public use prior to government acquisition;
however, they were fished and hunted upon by friends and relatives of
the landowners , and some were under commercial hunting and fishing
leases. Many nearby residents also participate in other forms of
nonconsumptive outdoor recreation, such as biking, hiking, camping,
birdwatching, canoeing, and other outdoor sports.
Economic impacts of refuge fishing and hunting programs on local
communities are calculated from average expenditures in the ``1995
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation''. In 1995, 42 million U.S. residents 16 years old and older
hunted and/or fished. More specifically, 37 million fished and 14.5
million hunted. Those who both fished and hunted account for the 9.5
million overage. Nationwide expenditures by sportsmen totaled $42
billion. Trip-related expenditures for food, lodging, and
transportation were $16 billion or 37 percent of all fishing and
hunting expenditures; equipment expenditures amounted to $19 billion,
or 46 percent of the total; other expenditures such as those for
magazines, membership dues, contributions, land leasing, ownership,
licenses, stamps, tags, and permits accounted for $6.9 billion, or 16
percent of all expenditures. Overall, anglers spent an average of $41
per day. For each day of hunting, big game hunters averaged spending
$40, small game hunters $20, and migratory bird hunters $33. Applying
these national averages to projected visitation at Great Bay National
Wildlife Refuge, 500 hunters are expected to spend $20,000 annually in
pursuit of their sport.
This rulemaking was not subject to review by the Office of
Management and Budget under Executive Order 12866. A review under the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed
that this rulemaking would not have a significant effect on a
substantial number of small entities, which include businesses,
organizations, or governmental jurisdictions. Hunters and or fishermen
increase visitation and expenditures in the surrounding area of the
refuge and contribute in a positive manner, but the total amounts are
not significant to the local area, therefore, this rule would have
minimal effect on such entities.
Federalism
This rule will not have substantial direct effects on the States,
in their relationship between the Federal 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, the Service has determined that this rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment.
Unfunded Mandates
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities.
Civil Justice Reform
The Service has determined that these final regulations meet the
applicable standards provided in Sections (a) and (b) of Executive
Order 12988.
Environmental Considerations
Pursuant to the requirements of section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), an
environmental assessment was prepared for this opening. Based upon the
Environmental Assessment, the Service issued a Finding of No
Significant Impact with respect to the opening. A Section 7 evaluation
pursuant to the Endangered Species Act was conducted. The Service
determined that the final action will not affect any Federally listed
or proposed for listing threatened or endangered species or their
critical habitats. These documents are on file at the offices of the
Service and may be reviewed by contacting the primary author.
Primary Author
Stephen R. Vehrs, Division of Refuges, U.S. Fish and Wildlife
Service, Washington, DC 20240, is the primary author of this rulemaking
document.
List of Subjects in 50 CFR Part 32
Fishing, Hunting, Reporting and recordkeeping requirements,
Wildlife, Wildlife refuges.
Accordingly, Part 32 of Chapter I of Title 50 of the Code of
Federal Regulations is amended as follows:
PART 32--[AMENDED]
1. The authority citation for Part 32 continues to read as follows:
[[Page 31463]]
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i.
Sec. 32.7 [Amended]
2. Section 32.7, List of refuge units open to hunting and/or
fishing, is amended to add the alphabetical listing of ``Great Bay
National Wildlife Refuge'' under the State of New Hampshire.
3. Section 32.48 New Hampshire is amended by adding the
alphabetical listing of Great Bay National Wildlife Refuge to read as
follows:
Sec. 32.48 New Hampshire.
Great Bay National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of migratory game birds
is permitted on designated areas of the refuge subject to the following
conditions:
1. Waterfowl hunting will not require a permit. Hunting will be
allowed only from the immediate shoreline of the Bay.
2. Only portable blinds are permitted. All decoys, blinds, and
boats must be removed after each day's hunt.
3. Waterfowl hunters will access shorelines by boat only.
B. Upland Game Hunting. [Reserved]
C. Big Game Hunting. Hunting of deer is permitted on designated
areas of the refuge subject to the following conditions:
1. Refuge Permits are required for the deer hunt.
2. Big game hunters are required to wear, in a conspicuous manner
on the head, chest and back, a minimum of 400 square inches of solid-
colored blaze orange clothing or material.
D. Sport Fishing. [Reserved]
* * * * *
Dated: March 15, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-15737 Filed 6-19-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-15733 Book-entry Procedures for Federal Agricultural Mortgage Corporation Securities
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31392-31394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15733]
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FARM CREDIT ADMINISTRATION
12 CFR Part 615
RIN 3052-AB70
Book-entry Procedures for Federal Agricultural Mortgage
Corporation Securities
AGENCY: Farm Credit Administration.
ACTION: Final rule.
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SUMMARY: The Farm Credit System Reform Act of 1996 (1996 act) provides
that the Federal Agricultural Mortgage Corporation (Farmer Mac) shall
have access to the Federal Reserve Banks' book-entry system (Fed book-
entry system). The Farm Credit Administration (FCA) is issuing a final
rule authorizing the issuance of Farmer Mac securities in book-entry
format. Farmer Mac will use the Fed book-entry system in connection
with the issuance and settlement of its unsecured debt securities and
its guaranteed securities using substantially the same procedures used
by all other Government-sponsored enterprises (GSEs).
EFFECTIVE DATE: June 13, 1996.
FOR FURTHER INFORMATION CONTACT: Larry W. Edwards, Director, Office of
Secondary Market Oversight, Farm Credit Administration, McLean, VA
22102-5090, (703) 883-4051.
SUPPLEMENTARY INFORMATION:
I. Background
Section 105 of the 1996 act amends sections 8.3(d) and (e) of the
Farm Credit Act of 1971, as amended (act), to require that Farmer Mac
have access to the Fed book-entry system and that the Federal Reserve
Banks Act as depositories for, and as fiscal agents of, Farmer
Mac.1 Congress mandated Farmer Mac's access to the Fed book-entry
system as part of a broad-based reform of Farmer Mac's charter and
statutory authority. Among other reform measures, the 1996 Act
liberalized Farmer Mac's charter to allow it to pool loans in a fashion
similar to such other GSEs as the Federal National Mortgage Association
(Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie
Mac), which operate in the secondary market for mortgage-backed
securities. To facilitate Farmer Mac's use of its new authority and to
help it meet its new responsibilities, Congress amended the act to
``streamline Farmer Mac's business operations,'' including ``providing
for Farmer Mac's access to
[[Page 31393]]
the book-entry system of the Federal Reserve System.'' 2
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\1\ Pub. L. 104-105 (Feb. 10, 1996), 110 Stat. 163-64. 12 U.S.C.
2279aa-3(d)-(e).
\2\ H.R. Rep. No. 446, 104th Cong., 2d Sess., pt. 1, at 8
(1996).
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Currently, all Farmer Mac securities (both debt and guaranteed) are
issued, settled, and traded through the facilities of the Depository
Trust Company (DTC), one of the private depositories available to
issuers whose securities are not tradable on the Fed book-entry system.
DTC's costs (and the costs of other private depositories) are higher
than those of the Federal Reserve Banks, which results in higher costs
for Farmer Mac and its investors. Furthermore, it appears that
investors may differentiate adversely between Farmer Mac's securities
and all other GSEs' securities because Farmer Mac securities are not
issued through the Fed book-entry system. Access to the Fed book-entry
system, therefore, is viewed as an important element in the
Congressionally mandated effort to reform and revitalize Farmer Mac.
II. Implementing Regulations
To implement Farmer Mac's new statutory authority to access the Fed
book-entry system, regulations are necessary to establish a framework
for issuance and subsequent disposition of Farmer Mac securities issued
through the Fed book-entry system. Without such regulations, investors
would not know what law governs the holding, transferring, and pledging
of the Farmer Mac securities in which they have invested. This
uncertainty could create a perception of market risk that could
detrimentally affect investment in Farmer Mac securities and possibly
could place Farmer Mac securities at a marketing disadvantage compared
to the securities of other GSEs.3
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\3\ All other GSEs that utilize the Fed book-entry system,
including the Farm Credit System, have regulations in place that
govern their book-entry securities. See, e.g., 24 CFR part 81
(Fannie Mae); 1 CFR part 462 (Freddie Mac); 31 CFR part 354 (Student
Loan Marketing Association (Sallie Mae)).
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FCA regulations governing book-entry procedures with respect to
Farm Credit System (FCS) securities were adopted in 1977 and are
located at 12 CFR part 615, subpart O. The FCA's book-entry regulations
are based on the Department of the Treasury's book-entry regulations at
31 CFR part 357, subpart O. The regulations establish procedures that
permit FCS banks to utilize the Fed book-entry system in the same way
as do other GSEs. The FCA extended its book-entry regulations in 1988
by adding a new subpart R to 12 CFR part 615 to cover securities issued
by the FCS Financial Assistance Corporation. Rather than duplicating
the basic book-entry regulations found in subpart O, subpart R
incorporates by reference the pertinent book-entry provisions from
subpart O and applies them to the Financial Assistance Corporation.
The FCA is adopting the same abbreviated approach to applying book-
entry regulations to Farmer Mac in this rulemaking. The final rule
creates a new subpart S in part 615 that authorizes the issuance of
Farmer Mac securities in book-entry format pursuant to pertinent
provisions of subpart O of part 615, which are incorporated by
reference. The incorporated provisions of subpart O include:
Secs. 615.5460 (definitions), 615.5465 (authority of Reserve Banks),
615.5470 (scope and effect of book-entry procedure), 615.5475 (transfer
or pledge), 615.5480 (withdrawal of securities), 615.5485 (delivery of
securities), 615.5490 (classes of accounts), 615.5492 (identification
of accounts), and 615.5494 (servicing book-entry securities, including
payment of interest and payment at maturity or upon call).
III. Necessity for Immediate Regulatory Action
In passing the 1996 act, Congress recognized the difficulties
Farmer Mac has had in meeting its statutory mandate and the resulting
deterioration in its core capital.4 In what the House Committee on
Agriculture termed ``the most extensive attempt yet to make Farmer Mac
a viable secondary market for agricultural real estate and moderate
rural housing loans,'' 5 the 1996 act eases prior statutory
operating requirements and expands the activities in which Farmer Mac
can engage. It is clear that Congress also expects Farmer Mac to act
quickly to stabilize its financial position and rebuild its core
capital. Section 117 of the 1996 act requires that, if Farmer Mac does
not complete mandatory recapitalization of its core capital within 2
years, its activities will be critically restricted. If the 2-year goal
is not met, Farmer Mac will not be allowed to purchase a new qualified
loan or issue or guarantee a new loan-backed security.6
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\4\ H.R. Rep. No. 446, supra note 2, at 9.
\5\ Id. at 8.
\6\ Pub. L. 104-105, supra note 1, Sec. 117.
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In the very near future, Farmer Mac plans to issue debt securities
backed by mortgages purchased by Farmer Mac pursuant to its new
authority under the 1996 act. Farmer Mac intends to utilize the Fed
book-entry system to issue the securities, as sanctioned by the 1996
act. To avoid creating any ambiguities regarding Farmer Mac's authority
to obtain access to the Fed book-entry system and to ensure that the
book-entry treatment of Farmer Mac's securities will be the same as
that of other GSEs, the FCA is taking expedited action to adopt book-
entry regulations covering Farmer Mac.
In view of the clear Congressional mandate expressed in the 1996
act that Farmer Mac have access to the Fed book-entry system and the
equally clear Congressional intent that Farmer Mac utilize its new
authorities to rebuild its core capital and meet its other statutory
mandates as soon as possible, the FCA believes that expedited
rulemaking action is warranted for book-entry regulations covering
Farmer Mac. Moreover, the regulations adopted are minor, technical, and
noncontroversial. For these reasons, the FCA finds good cause to omit
notice and comment as impracticable, unnecessary, and contrary to the
public interest pursuant to section 553(b)(B) of the Administrative
Procedure Act, 5 U.S.C. 553-59 (APA). The same reasons and, in
particular, the time limit Congress has imposed on Farmer Mac to
recapitalize its core capital base, provide good cause to adopt an
effective date for the regulations that is less than 30 days after
publication in the Federal Register. 5 U.S.C. 553(d). The FCA's finding
of good cause for expedited rulemaking action also supports specifying
an effective date for the regulations that is prior to the date of
filing of the report to Congress required by the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 801-808. See 5 U.S.C.
808. Finally, consistent with the reasons for its expedited actions
under the APA, the FCA finds that, pursuant to section 5.17(c)(2) of
the act, an emergency exists that requires that these regulations take
effect prior to the expiration of the 30-day Congressional notice and
waiting period for final agency regulatory action.
The FCA notes that the U. S. Treasury Department recently proposed
TRADES (Treasury/Reserve Automated Debt Entry System) regulations (61
FR 8420, March 4, 1996), which will govern book-entry treatment of
Treasury securities. Since FCA's book-entry regulations are based on
the Treasury's book-entry regulations, the FCA expects to revise all of
its book-entry regulations, including those covering Farmer Mac, to
conform with the Treasury's TRADE regulations when they are finalized.
Accordingly, there will be opportunity for public comment on FCA book-
entry regulations at that time.
[[Page 31394]]
List of Subjects in 12 CFR Part 615
Accounting, Agriculture, Banks, banking, Government securities,
Investments, Rural areas.
For the reasons stated in the preamble, part 615 of chapter VI,
title 12 of the Code of Federal Regulations is amended to read as
follows:
PART 615--FUNDING AND FISCAL AFFAIRS, LOAN POLICIES AND OPERATIONS,
AND FUNDING OPERATIONS
1. The authority citation for part 615 is revised to read as
follows:
Authority: Secs. 1.5, 1.7, 1.10, 1.11, 1.12, 2.2, 2.3, 2.4, 2.5,
2.12, 3.1, 3.7, 3.11, 3.25, 4.3, 4.3A, 4.9, 4.14B, 4.25, 5.9, 5.17,
6.20, 6.26, 8.0, 8.4, 8.6, 8.7, 8.8, 8.10, 8.12 of the Farm Credit
Act (12 U.S.C. 2013, 2015, 2018, 2019, 2020, 2073, 2074, 2075, 2076,
2093, 2122, 2128, 2132, 2146, 2154, 2154a, 2160, 2202b, 2211, 2243,
2252, 2278b, 2278b-6, 2279aa, 2279aa-3, 2279aa-4, 2279aa-6, 2279aa-
7, 2279aa-8, 2279aa-10, 2279aa-12); sec. 301(a) of Pub. L. 100-233,
101 Stat. 1568, 1608; sec. 105 of Pub. L. 104-105, 110 Stat. 162,
163-64.
2. Subpart S is added to read as follows:
Subpart S--Federal Agricultural Mortgage Corporation Securities
Sec.
615.5570 Book-entry procedures for Federal Agricultural Mortgage
Corporation securities.
Subpart S--Federal Agricultural Mortgage Corporation Securities
Sec. 615.5570 Book-entry procedures for Federal Agricultural Mortgage
Corporation Securities.
(a) The Federal Agricultural Mortgage Corporation (Farmer Mac) is a
Federally chartered instrumentality of the United States and an
institution of the Farm Credit System, subject to the examination and
regulation of the Farm Credit Administration.
(b) Farmer Mac, either in its own name or through an affiliate
controlled or owned by Farmer Mac, is authorized by section 8.6 of the
Act:
(1) To issue and/or guarantee the timely payment of principal and
interest on securities representing interests in or obligations backed
by pools of agricultural real estate loans (guaranteed securities); and
(2) to issue debt obligations (which, together with the guaranteed
securities described in paragraph (b)(1) of this section, are referred
to as Farmer Mac securities). Farmer Mac may prescribe the forms, the
denominations, the rates of interest, the conditions, the manner of
issuance, and the prices of Farmer Mac securities.
(c) Farmer Mac securities shall be governed by Secs. 615.5460,
615.5465, 615.5470, 615.5475, 615.5480, 615.5485, 615.5490, 615.5492,
and 615.5494. In interpreting those sections for purposes of this
section, the term ``Farmer Mac securities'' shall be read for ``Farm
Credit securities,'' and ``Farmer Mac'' shall be read for ``banks of
the Farm Credit System'' and ``Farm Credit bank.''
Dated: June 14, 1996.
Floyd Fithian,
Secretary, Farm Credit Administration.
[FR Doc. 96-15733 Filed 6-19-96; 8:45 am]
BILLING CODE 6705-01-P
Complete official Federal Register PDF
FR Doc. 96-15726 Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31395-31397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15726]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 178
[Docket No. 92F-0339]
Indirect Food Additives: Adjuvants, Production Aids, and
Sanitizers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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[[Page 31396]]
SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of an aqueous solution
of chlorine dioxide and related oxychloro species, generated by
acidification of an aqueous solution of sodium chlorite with a solution
of sodium gluconate, citric acid, phosphoric acid, and sodium mono- and
didodecylphenoxybenzenedisulfonate, as a sanitizing solution to be used
on food-processing equipment and utensils, including dairy-processing
equipment. This action responds to a petition filed by Rio Linda
Chemical Co.
DATES: Effective June 20, 1996 written objections and requests for a
hearing by July 22, 1996. The Director of the Office of the Federal
Register approves the incorporation by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51 of a publication listed in
Sec. 178.1010 (21 CFR 178.1010), effective June 20, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Mitchell Cheeseman, Center for Food
Safety and Applied Nutrition (HFS-217), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-418-3083.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of September 22, 1992 (57 FR 43741), FDA announced that a food
additive petition (FAP 2B4334) had been filed by Rio Linda Chemical
Co., c/o 1414 Fenwick Lane, Silver Spring, MD 20910. The petition
proposed that the food additive regulations be amended in Sec. 178.1010
Sanitizing solutions (21 CFR 178.1010) to provide for the safe use of
an aqueous solution of chlorine dioxide and related oxychloro species,
generated by acidification of an aqueous solution of sodium chlorite
with sodium gluconate, citric acid, phosphoric acid, and sodium
alkylphenoxybenzenedisulfonate, as a sanitizing solution to be used on
food-contact surfaces, food-processing equipment, and utensils. Based
on information in the food additive petition, FDA has determined that a
more specific and therefore more appropriate name for the form of
sodium alkylphenoxybenzenedisulfonate used to generate the subject
sanitizing solution is sodium mono- and
didodecylphenoxybenzenedisulfonate. This more specific name will be
used throughout the remainder of this document.
I. Safety and Functional Effect of Petitioned Use of the Additive
-Sanitizing solutions are mixtures of chemicals that function
together to sanitize food-contact surfaces and are regulated as such.
Each listed component in a sanitizing solution has a functional effect,
and the agency evaluates the data submitted in support of the efficacy
of the entire sanitizing solution. The subject sanitizing solution is
an aqueous solution of chlorine dioxide and related oxychloro species,
generated by acidification of an aqueous solution of sodium chlorite
with a solution of sodium gluconate, citric acid, phosphoric acid, and
sodium mono- and didodecylphenoxybenzenedisulfonate. The functions of
these components, and the basis for FDA's determination of the safety
of these components in the subject sanitizer, are described below.
A. Chlorine Dioxide
Chlorine dioxide functions as an antimicrobial agent in the
subject sanitizing solution. Chlorine dioxide is regulated for use in
sanitizing solutions under Sec. 178.1010(b)(34) and is regulated for
use as an antimicrobial agent in water used in poultry processing under
21 CFR 173.69. On the basis of the data submitted in support of the
already-regulated uses of chlorine dioxide, the data contained in the
food additive petition submitted in support of this sanitizing
solution, and studies in the scientific literature, FDA finds that the
use of chlorine dioxide in the subject sanitizing solution is safe
(Ref. 1).
B. Sodium Gluconate
-Sodium gluconate functions as a sequestering agent in the subject
sanitizing solution. Sodium gluconate is listed as GRAS for use in food
as a sequestering agent under 21 CFR 182.6757. In addition, FDA
regulations permit the addition to a sanitizing solution of any
substance that is GRAS for use in food (Sec. 178.1010(b)). On the basis
of the data supporting the GRAS status of sodium gluconate, FDA finds
that the use of sodium gluconate in the subject sanitizing solution is
safe (Ref. 1).
C. Citric Acid
Citric acid functions as a sequestering agent in the subject
sanitizing solution. Citric acid is affirmed as GRAS for use in food
under 21 CFR 184.1033. In addition, as stated in the previous
paragraph, FDA regulations permit the addition to a sanitizing solution
of any substance that is GRAS for use in food. On the basis of the data
supporting the GRAS status of citric acid, FDA finds that the use of
citric acid in the subject sanitizing solution is safe (Ref. 1).
D. Phosphoric Acid
-Phosphoric acid functions as an activator in the subject
sanitizing solution. Phosphoric acid is listed as GRAS for use in food
under 21 CFR 182.1073. In addition, FDA regulations permit the addition
to a sanitizing solution of any substance that is GRAS for use in food.
On the basis of the data supporting the GRAS status of phosphoric acid,
FDA finds that the use of phosphoric acid in the subject sanitizing
solution is safe (Ref. 1).
E. Sodium Mono- and Didodecylphenoxybenzenedisulfonate
-Sodium mono- and didodecylphenoxybenzenedisulfonate functions as a
surfactant in the subject sanitizing solution. Sodium mono- and
didodecylphenoxybenzenedisulfonate is regulated for use as an
emulsifier and surface active agent in the manufacture of food-contact
materials under the listing for sodium mono- and
dialkylphenoxybenzenedisulfonate in 21 CFR 178.3400(c). On the basis of
the data submitted in support of the already-regulated use of sodium
mono- and didodecylphenoxybenzenedisulfonate and the data contained in
the food additive petition submitted in support of this sanitizing
solution, FDA finds that the use of sodium mono- and
didodecylphenoxybenzenedisulfonate in the subject sanitizing solution
is safe (Ref. 1).
F. Conclusion on Safety
-As discussed above, FDA has evaluated data on the antimicrobial
efficacy of the entire sanitizing solution and data in the petition and
other relevant materials on the safety of each of the components of the
sanitizing solution. On the basis of this evaluation, the agency
concludes that these data and materials establish the safety and
efficacy of the additive for use as a sanitizing solution on food-
processing equipment and utensils including dairy-processing equipment,
and that the regulations should be amended in Sec. 178.1010 as set
forth below.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in 21 CFR
171.1(h), the agency will delete from the documents any materials that
are not
[[Page 31397]]
available for public disclosure before making the documents available
for inspection.
II. Environmental Impact
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
III. Reference
The following reference has been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Memorandum entitled ``FOAM ADD 10--A terminal no-rinse
sanitizer--Manufactured by Rio Linda Chemical Corp.,'' dated June
10, 1994.
IV. Filing of Objections
Any person who will be adversely affected by this regulation may at
any time on or before July 22, 1996 file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
-List of Subjects in 21 CFR Part 178
-Food additives, Food packaging, Incorporation by reference.
-Therefore, under the Federal Food, Drug, and Cosmetic Act and
under authority delegated to the Commissioner of Food and Drugs and
redelegated to the Director, Center for Food Safety and Applied
Nutrition, 21 CFR part 178 is amended as follows:
-PART 178--INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND
SANITIZERS
1. The authority citation for 21 CFR part 178 continues to read as
follows:
-Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. Section 178.1010 is amended by adding new paragraphs (b)(46)
and (c)(40) to read as follows:
Sec. 178.1010 Sanitizing solutions.
* * * * *
(b) * * *
(46) An aqueous solution of chlorine dioxide and related oxychloro
species generated by acidification of an aqueous solution of sodium
chlorite with a solution of sodium gluconate, citric acid, phosphoric
acid, and sodium mono- and didodecylphenoxybenzenedisulfonate. In
addition to use on food-processing equipment and utensils, this
solution may be used on dairy-processing equipment.
* * * * *
(c) * * *
(40) The solution identified in paragraph (b)(46) of this section
shall provide, when ready for use, at least 100 parts per million and
not more than 200 parts per million of chlorine dioxide as determined
by the method developed by Bio-cide International, Inc., entitled,
``Iodometric Method for the Determination of Available Chlorine Dioxide
(50-250 ppm Available ClO2),'' dated June 11, 1987, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies of this method are available from the Division of
Petition Control, Center for Food Safety and Applied Nutrition (HFS-
215), Food and Drug Administration, 200 C St. SW., Washington, DC
20204, and may be examined at the Center for Food Safety and Applied
Nutrition's Library, Food and Drug Administration, 200 C St. SW., rm.
3321, Washington, DC, or at the Office of the Federal Register, 800
North Capitol St. NW., suite 700, Washington, DC; at least 380 parts
per million and not more than 760 parts per million of sodium
gluconate; and at least 960 parts per million and not more than 1,920
parts per million of sodium mono- and
didodecylphenoxybenzenedisulfonate. Other components listed under
paragraph (b)(46) of this section shall be used in the minimum amount
necessary to produce the intended effect.
* * * * *
Dated: June 7, 1996.
Fred R. Shank,
Director, Center for Food Safety and Applied Nutrition.
[FR Doc. 96-15726 Filed 6-19-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-15724 Animal Drugs, Feeds, and Related Products; Neomycin Sulfate Soluble Powder
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31398-31399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15724]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Parts 520 and 556
Animal Drugs, Feeds, and Related Products; Neomycin Sulfate
Soluble Powder
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of a supplemental new animal drug
application (NADA) filed by The Upjohn Co. and two supplemental
abbreviated new animal drug applications (ANADA's), one filed by
Pfizer, Inc., and the other filed by Rhone Merieux, Inc. The
applications provide for use of neomycin sulfate soluble powder in
drinking water or in milk for cattle (excluding veal calves), swine,
sheep, and goats for the treatment and control of colibacillosis. The
supplements provide for revised preslaughter withdrawal times following
use of the drug and revised tolerances for neomycin residues in edible
tissues of treated animals.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for
Veterinary Medicine (HFV-135), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1643.
SUPPLEMENTARY INFORMATION: The Upjohn Co., Agricultural Division,
Kalamazoo, MI 49001-0199, filed supplemental NADA 11-315; Pfizer, Inc.,
235 East 42d St., New York, NY 10017, filed supplemental ANADA 200-046;
Rhone Merieux, Inc., 7101 College Blvd., Overland Park, KS 66210, filed
supplemental ANADA 200-050. The supplements provide for revised
withdrawal times for use of neomycin sulfate soluble powder in drinking
water or in milk for cattle (excluding veal calves), swine, sheep, and
goats for the treatment and control of colibacillosis (bacterial
scours) caused by Escherichia coli susceptible to neomycin sulfate. The
supplements are approved as of April 3, 1996, and Sec. 520.1484(c)(3)
(21 CFR 520.1484(c)(3)) is amended to reflect the approvals. The basis
for approval is discussed in the freedom of information summary as
indicated below. Also, the firms sponsored studies which provided data
to support revised tolerances for residues of neomycin in the edible
tissues of cattle, swine, sheep, and goats. Based on evaluation of the
data as provided in the General Principles for Evaluating the Safety of
Compounds Used in Food-Producing Animals Guidelines, tolerances of 1.2
parts per million (ppm) in muscle, 3.6 ppm in liver, and 7.2 ppm in
kidney and fat, and withdrawal times of 1 day for cattle, 2 days for
sheep, and 3 days for swine and goats, are established. The revised
withdrawal times are provided in Sec. 520.1484(c)(3). The revised
tolerances for neomycin residues are established in amended 21 CFR
556.430.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), these approvals do not
qualify for marketing exclusivity because the applications do not
contain reports of new clinical or field investigations (other than
bioequivalence or residue studies) or new human food safety studies
(other than bioequivalence or residue studies) essential to the
approvals and conducted or sponsored by the applicants.
The agency has determined under 21 CFR 25.24(d)(1)(i) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
List of Subjects
21 CFR Part 520
Animal drugs.
21 CFR Part 556
Animal drugs, Foods.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR parts 520 and
556 are amended as follows:
PART 520--ORAL DOSAGE FORM NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 520 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
2. Section 520.1484 is amended in paragraph (c)(3) by revising the
last sentence to read as follows:
[[Page 31399]]
Sec. 520.1484 Neomycin sulfate soluble powder.
* * * * *
(c) * * *
(3) * * * Discontinue treatment prior to slaughter as follows:
For sponsor 059130--cattle and goats, 30 days; swine and sheep, 20
days; for sponsors 000009, 000069, 050604--cattle (not for use in veal
calves), 1 day; sheep, 2 days; swine and goats, 3 days.
PART 556--TOLERANCES FOR RESIDUES OF NEW ANIMAL DRUGS IN FOOD
3. The authority citation for 21 CFR part 556 continues to read as
follows:
Authority: Secs. 402, 512, 701 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 342, 360b, 371).
4. Section 556.430 is revised to read as follows:
Sec. 556.430 Neomycin.
A tolerance of 7.2 parts per million (ppm) is established for
residues of parent neomycin (marker residue) in uncooked edible kidney
(target tissue), 7.2 ppm in fat, 3.6 ppm in liver, 1.2 ppm in muscle of
cattle, swine, sheep, and goats. A tolerance of 0.15 ppm is established
for neomycin in milk.
Dated: May 31, 1996.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-15724 Filed 6-19-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-15705 Railroad Employers' Reports and Responsibilities
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15705]
=======================================================================
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RAILROAD RETIREMENT BOARD
20 CFR Part 209
RIN 3220-AB16
Railroad Employers' Reports and Responsibilities
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Railroad Retirement Board (Board) hereby amends its
regulations to add sections to permit employers to dispose of payroll
records after five years, and for the utilization of payroll records to
credit service under the Railroad Retirement Act in the case of
employers that have ceased operations. These amendments will alleviate
needless record retention and ease reporting requirements for employers
that have permanently ceased operations.
EFFECTIVE DATE: June 20, 1996.
ADDRESSES: Secretary to the Board, Railroad Retirement Board, 844 Rush
Street, Chicago, Illinois 60611.
FOR FURTHER INFORMATION CONTACT: Thomas W. Sadler, Assistant General
Counsel, Railroad Retirement Board, 844 Rush Street, Chicago, Illinois
60611, (312) 751-4513, TDD (312) 751-4701.
SUPPLEMENTARY INFORMATION: Employer reports are used to establish
employee compensation and service records. These reports are based on
payroll records. The Board's rules and procedures regarding the
authorization of disposal of these records and the utilization of
payroll records of employers who have abandoned service in lieu of
employer reports are presently contained in Board Orders, which are not
readily available to the public. Accordingly, the Board adopts
regulations specifying that railroad employers may dispose of payroll
records more than five years old where there is no dispute pending as
to the compensation reported for the periods covered by those records.
The Board also to amends its regulations to provide that the Board will
accept payroll records in lieu of prescribed reports if there is no
official of the employer available to prepare and certify to the
accuracy of such reports and if the tax liability involved has been
discharged.
On February 15, 1996, the Board published this rule as a proposed
rule (61 FR 5970) inviting comments on or before April 15, 1996. No
comments were received. No changes have been made to the proposed rule.
The Board, with the concurrence of the Office of Management and Budget,
has determined that this is not a significant regulatory action under
Executive Order 12866; therefore, no regulatory impact analysis is
required. There are no information collections associated with this
rule.
List of Subjects in 20 CFR Part 209
Railroad employees, Railroad retirement, Railroads.
For the reasons set out in the preamble, title 20, chapter II, part
209 of the Code of Federal Regulations is amended as follows:
PART 209--RAILROAD EMPLOYERS' REPORTS AND RESPONSIBILITIES
1. The authority citation for part 209 continues to read as
follows:
Authority: 45 U.S.C. 231f.
2. Part 209 is amended by adding Secs. 209.16 and 209.17 to read as
follows:
Sec. 209.16 Disposal of payroll records.
Employers may dispose of payroll records for periods subsequent to
1936, provided that the payroll records are more than five years old
and that there is no dispute pending pertaining to the compensation
reported for the period of those records.
Sec. 209.17 Use of payroll records as returns of compensation.
Payroll records of employers which have permanently ceased
operations may be accepted in lieu of prescribed reports provided that
there is no official of the employer available to prepare and certify
to the accuracy of such reports and, provided further that any employer
and employee tax liability incurred under the Railroad Retirement Tax
Act has been discharged.
Dated: June 11, 1996.
By Authority of the Board.
For the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 96-15705 Filed 6-19-96; 8:45 am]
BILLING CODE 7905-01-P
Complete official Federal Register PDF
FR Doc. 96-15680 Drawbridge Operation Regulations; Atlantic Intracoastal Waterway, Sunset Beach, NC
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31434-31435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15680]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD5-95-084]
RIN 2115-AE47
Drawbridge Operation Regulations; Atlantic Intracoastal Waterway,
Sunset Beach, NC
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: At the request of the North Carolina Department of
Transportation, the Coast Guard is changing the regulations that govern
the operation of the drawbridge across the Atlantic Intracoastal
Waterway, mile 337.9, at Sunset Beach, North Carolina, by extending the
hours on weekends and holidays during the summer months during which
the bridge may open only on the hour. This rule is intended to provide
regularly scheduled drawbridge openings to help reduce motor vehicle
traffic delays and congestion on the roads and highways linked by this
drawbridge while providing for the reasonable needs of navigation.
EFFECTIVE DATE: This rule is effective on July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Ann B. Deaton, Bridge Administrator,
Fifth Coast Guard District, at (804) 398-6222.
SUPPLEMENTARY INFORMATION:
Regulatory History
On January 23, 1996, the Coast Guard published a Notice of Proposed
Rulemaking (NPRM) entitled ``Drawbridge Operation Regulations; Atlantic
Intracoastal Waterway, Sunset Beach, North Carolina'' in the Federal
Register (61 FR 1725). In addition to publishing the NPRM, the Coast
Guard also announced the proposed changes in Public Notice 5-881. The
comment period ended March 8, 1996. One comment was received. A public
hearing was not requested and one was not held.
Background and Purpose
The Sunset Beach drawbridge crosses the Atlantic Intracoastal
Waterway at mile 337.9. The proposed changes were requested by the
North Carolina Department of Transportation on behalf of the Town of
Sunset Beach in order to alleviate delays to vehicle traffic caused by
opening of the draw for passage of recreational vessels after 7 p.m. on
the weekends and holidays.
Discussion of Comments and Changes
The NPRM proposed changes to 33 CFR 117.821(b)(6), regulations
governing operation of a drawbridge across the Atlantic Intrascoastal
Waterway at Sunset Beach, North Carolina. The proposed changes include
extending the hours on weekends and holidays to include 7 p.m. to 9
p.m. during the summer months when the bridge may open only on the
hour.
One comment was received on the proposed change to 33 CFR
117.821(b)(6) from a recreational boater opposing the extension of the
hourly openings during the weekends and holidays. The recreational
boater stated that extending the hourly openings was an unreasonable
burden to pleasure boaters and was particularly bad for those who are
out on the water returning late in the day. He also stated that the
present hourly openings of the bridge during weekends was an
unreasonable burden to pleasure boats, and that North Carolina should
consider increasing the number of openings for all its regulated
bridges. The Coast Guard does not agree. All presently regulated
bridges in North Carolina crossing the Atlantic Intracoastal Waterway
have schedules which take into consideration the highway traffic
volumes at those particular locations, keeping in mind the steady flow
of vessel traffic on this waterway during the summer months. With
respect to Sunset Beach, the North Carolina Department of
Transportation has advised the Coast Guard that maintaining the
existing hourly opening restrictions and extending them by hours in the
evenings on the weekends and Federal holidays is critical in order to
avoid severe traffic congestion to and from the island. Vehicular
traffic is at its highest peak on the island during the summer season,
and, in particular, on weekends and holidays. This increase in
vehicular traffic is due to vacationers and residents of surrounding
communities coming to Sunset Beach to enjoy the ocean and beaches.
Those from the surrounding communities usually do not leave the island
until sunset which extends the evening hours that SR 1172 is congested
with cars. The increase in traffic also places a strain on the local
streets in the Town of Sunset Beach. The need to free up traffic
congestion coming from the island supports the request to extend hourly
openings on weekends and holidays. Recreational boaters can plan their
transits around the hourly schedule, as they do now. After 9 p.m., the
drawbridge will revert back to opening on demand, so boasters may plan
to
[[Page 31435]]
come and go as early or late as they desire, with minimal delays. The
purpose of the proposed change is to establish a schedule that balances
the reasonable needs of waterway and vehicular traffic. The Coast Guard
believes this schedule will help alleviate seasonal highway traffic
congestion on weekends and holidays at this bridge without placing any
undue hardship on waterway users since the change is minimal.
This final rule adopts the changes proposed in the NPRM. It extends
the hourly opening of the drawbridge from 7 p.m. to 9 p.m. on
Saturdays, Sundays, and Federal holidays from June 1 to September 30.
The draw will continue to open on signal for commercial vessels. It
will also continue to open on signal for passage of vessels in
emergencies involving danger to life or property. The Coast Guard
believes this final rule will not unduly restrict navigation by
pleasure vessels, which may plan their transits to coincide with
scheduled hourly openings.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(1)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this final rule will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under section 3 of the Small
Business Act (15 U.S.C. 632). Because it expects the impact of this
rule to be minimal, the Coast Guard certifies under 5 U.S.C. 605(b)
that this rule will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism Assessment
The Coast Guard has analyzed this rule under 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 preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that under section 2.B.2.e.(32)(e) of Commandant
Instruction M16475.1B (as amended, 59 FR 38654, July 29, 1994), this
rule is categorically excluded from further environmental
documentation.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
In consideration of the foregoing, the Coast Guard is amending part
117 of title 33, Code of Federal Regulations, as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. In Sec. 117.821, paragraph (b)(6) is revised to read as follows:
Sec. 117.821 Atlantic Intracoastal Waterway, Albemarle Sound to Sunset
Beach.
* * * * *
(b) * * *
(6) S.R. 1172 bridge, mile 337.9, at Sunset Beach, NC, shall open
on the hour on signal between 7 a.m. and 7 p.m., April 1 through
November 30, except that on Saturdays, Sundays and Federal holidays,
from June 1 through September 30, the bridge shall open on signal on
the hour between 7 a.m. and 9 p.m.
* * * * *
Dated: May 15, 1996.
W.J. Ecker,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 96-15680 Filed 6-19-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-15671 Radio Broadcasting Services; Cadiz and Oak Grove, KY
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15671]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-314; RM-8396]
Radio Broadcasting Services; Cadiz and Oak Grove, KY
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
-----------------------------------------------------------------------
SUMMARY: The Chief, Policy and Rules Division, denied the petition for
reconsideration filed by Southern Broadcasting Corporation of the
Chief, Allocations Branch's Report and Order, 60 FR 52105, October 5,
1995, substituting Channel 293C3 for Channel 292A at Cadiz, reallotting
Channel 293C3 from Cadiz to Oak Grove, Kentucky, and modifying Station
WKDZ-FM's license accordingly. The Commission denied the petition
because it failed to present new facts or arguments that were not
considered in the Report and Order that would warrant a contrary
decision. With this action, this proceeding is terminated.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Bruce Romano, Mass Media Bureau, (202)
418-2120.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Memorandum Opinion and Order, MM Docket No. 93-314, adopted May 24,
1996 and released June 7, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Service, Inc. (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
Douglas W. Webbink,
Chief, Policy and Rules Division, Mass Media Bureau.
[FR Doc. 96-15671 Filed 6-19-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-15628 Nectarines and Peaches Grown in California; Revision of Handling Requirements for Fresh Nectarines and Peaches
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31387-31391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15628]
========================================================================
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. 120 / Thursday, June 20, 1996 / Rules
and Regulations
[[Page 31387]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV95-916-4-FIR]
Nectarines and Peaches Grown in California; Revision of Handling
Requirements for Fresh Nectarines and Peaches
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture is adopting as a final rule,
with appropriate modifications, the provisions of an interim final rule
which revised the handling requirements for California nectarines and
peaches by modifying the grade, size, maturity, container, and pack
requirements for fresh shipments of these fruits, beginning with 1996
season shipments. This rule enables handlers to continue shipping fresh
nectarines and peaches meeting consumer needs in the interest of
producers, handlers, and consumers of these fruits.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Terry Vawter, Marketing Specialist,
California Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, 2202 Monterey Street,
Suite 102B, Fresno, California, 93721; telephone: (209) 487-5901; or
Kenneth Johnson, Marketing Specialist, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room
2523-S, Washington, DC 20090-6456; telephone: (202) 720-2861.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Marketing Order Nos. 916 and 917 [7 CFR Parts 916 and
917] regulating the handling of nectarines and peaches grown in
California, hereinafter referred to as the orders. The orders are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended [7 U.S.C. 601-674], hereinafter referred to as the Act.
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. The purpose of the
RFA is to fit regulatory actions to the scale of business subject to
such actions in order that small businesses will not be unduly or
disproportionately burdened. Marketing orders issued pursuant to the
Act, and rules issued thereunder, are unique in that they are brought
about through group action of essentially small entities acting on
their own behalf. Thus, both statutes have small entity orientation and
compatibility.
There are about 300 California nectarine and peach handlers subject
to regulation under the orders covering nectarines and peaches grown in
California, and about 1,800 producers of these fruits in California.
Small agricultural producers have been defined by the Small Business
Administration [13 CFR 121.601] as those having annual receipts of less
than $500,000, and small agricultural service firms are defined as
those whose annual receipts from all sources are less than $5,000,000.
A majority of these handlers and producers may be classified as small
entities. In recent years, average combined sales of peaches and
nectarines per handler have been about $600,000. Typically, about
three-fourths of peach and nectarine handlers have sales of less than
the average for the industry.
The Nectarine Administrative Committee (NAC) and the Peach
Commodity Committee (PCC) met December 7, 1995, and unanimously
recommended that the handling requirements for California nectarines
and peaches, respectively, be revised. These committees meet prior to
and during each season to review the rules and regulations effective on
a continuous basis for California nectarines and peaches under the
orders. These committee meetings are open to the public, and interested
persons may express their views at these meetings. The Department
reviews committee recommendations and information, as well as
information from other sources, and determines whether modification,
suspension, or termination of the rules and regulations would tend to
effectuate the declared policy of the Act.
This rule finalizes an interim final rule that revised the handling
requirements for nectarines in Sec. 916.350 California Nectarine
Container and Pack Regulation (7 CFR 916.350), and in Sec. 916.356
California Nectarine Grade and Size Regulation (7 CFR 916.356); as well
as for peaches in Sec. 917.442 California Peach Container and Pack
Regulation (7 CFR 917.442) and in Sec. 917.459 California Peach Grade
and Size Regulation (7 CFR 917.459). The interim final rule was issued
on March 21, 1996, and published in the Federal Register (61 FR 13386,
March 27, 1996).
The interim final rule provided a 30-day comment period which ended
on April 26, 1996. One comment was received from Gary W. Van Sickle,
Field Director for the NAC and the PCC requesting changes in the
dimensions and display panel of the new reusable
[[Page 31388]]
and recyclable container. He noted that the size of the box was more
accurately 12 x 19\3/4\, rather than 12 x 20. He also stated that with
regard to some styles of the new reusable and recyclable container, the
lid was not the only display panel upon which a label could be affixed.
Therefore, he suggested that either the lid or the outside end would be
appropriate for the new containers.
Mr. Van Sickle also requested a correction in the size requirement
for Nectarine 23, a nectarine variety recommended to be removed from
the variety-specific size requirements and placed in the blanket size
requirements. Mr. Van Sickle noted that since the December 7, 1995,
meeting of the NAC, additional information had been received which
indicated that the Nectarine 23 variety should remain in the variety-
specific requirements. The NAC, as well as the PCC, has a policy of
recommending the deletion of varieties from the variety-specific
requirements when shipments of the variety fall below 5,000 packages.
After receipt of all information, it was determined that the shipments
of the Nectarine 23 variety for the 1995 season totaled 24,104
packages, well above the 5,000 package threshold. For that reason, the
Nectarine 23 variety should remain in the variety-specific size
requirements for the 1996 season.
The Department finds that Mr. Van Sickle's suggestions are well
founded and are incorporated within this rule.
Container and Pack Requirements (Nectarines)
Section 916.350 specifies container and pack requirements for fresh
nectarine shipments. Paragraph (a)(4)(iv) of Sec. 916.350 specifies the
tray-pack size designations which must be marked on loose-filled or
tight-filled containers, depending on the size of the fruit. The size
designations specify the maximum number of nectarines in a 16-pound
sample for each tray-pack size designation. This rule revises paragraph
(a)(4)(iv) of Sec. 916.350 by modifying one size designation for the
weight-count standards in Column B of Table 1 for early-season and mid-
season nectarine varieties and one size designation for the weight-
count standards in Column B of Table 2. Continuing research conducted
by the NAC indicate that early-season and mid-season fruit weighs less
than late-season fruit and the weight-count standards were, therefore,
modified for the past two seasons based on that consideration. Results
from the 1995 season suggest that a minor modification of Table 1 and
Table 2 is necessary to provide more accurate weight-count standards
for early-season and mid-season nectarines, and late-season nectarines.
The NAC recommended these revised weight-count standards for
nectarines after a comprehensive review of the appropriate
relationships between the tray-pack containers and loose-filled or
tight-filled containers for early-season and mid-season nectarine
varieties, as well as late-season varieties. Specifically, the NAC's
recommendation provides that the maximum number of nectarines of size
50 in a 16-pound sample of early-season and mid-season fruit is more
appropriately 39 rather than 38. Also the maximum number of nectarines
of size 50 in a 16-pound sample of late-season fruit is more
appropriately 37 rather than 36.
Pack regulations provide for uniform packing practices. In
particular, weight-count standards provide for equality between fruit
packed in loose-filled or tight-filled containers and fruit packed in
tray-pack styles.
According to the NAC, packers occasionally moved fruit from tray-
pack styles of pack to loose-filled or tight-filled pack styles. This
activity has led to an awareness that fruit which was of proper size
when tray-packed exceeded the maximum number of nectarines for the 16-
pound sample for corresponding loose-filled or tight-filled pack size.
In some instances, these samples required an additional piece of fruit
to meet the 16-pound weight requirement, thus causing the pack to be
``marked'' smaller than its equivalent tray-pack size. When packs are
``marked'' smaller this causes the container to be sold for a lower
price.
Revised and refined weight-count standards should provide for more
accurate marking of sizes when packed in loose-filled or tight-filled
pack styles compared to equivalent sizes that are tray packed. These
regulations provide for uniformly packed containers of nectarines.
These regulations also attempt to assure equivalent returns for growers
based on style of pack used.
This rule also further clarifies the definition of ``tree ripe''
added to Sec. 916.350 paragraph (b) for the 1995 season. According to
the NAC, ``tree ripe'' is an optional marking with regard to maturity
that is stamped on containers of nectarines. Currently, the definition
of tree ripe is based on the California Well Matured maturity
requirement and is intended to be used for fruit which has been allowed
to ripen naturally by remaining longer on the tree. California Well
Matured means that fruit has been picked at a maturity level distinctly
more advanced than ``mature.'' The definition of ``tree ripe'' was
added in 1995 so that its meaning was consistent with other descriptive
markings and provided a consistent minimum maturity level throughout
the industry to the benefit of consumers. However, during the 1995
season, some handlers marked their boxes of fruit as ``tree ripened.''
It has been recommended by the NAC that the terms ``tree ripe'', and
``tree ripened'', and other terms which denote an advanced level of
maturity due to the fruit remaining on the tree for a longer period,
are interchangeable terms indicative of the enhanced maturity of the
fruit inside the box. Requiring containers of nectarines to be at a
minimum California Well Matured in order to be marked ``tree ripe'' or
``tree ripened'', or other interchangeable terms such as ``ripened on
the tree'', or ``ripened on tree'' will clarify the current regulation
by specifying when the ``tree ripe'' or some similar marking using the
words ``tree'' and ``ripe'', can be used and help to ensure that buyer
expectations are met.
The NAC also recommended that a new container, that also allows for
markings on the lid of the container, be approved for nectarine
shipments for the 1996 season only. The NAC will review the impact of
the use of this container with shippers prior to the 1997 season.
The marketing order, under Sec. 916.350, requires that all
containers be marked with specific information (e.g. handler, grade,
size, and variety) and that all such markings on nectarine containers
have to be applied to the outside end of the container. This has been
defined as any of the four sides of the container, but not on the lid.
Currently, there is interest by handlers in containers that are
reusable thus creating financial savings for handlers. There is now a
reusable and recyclable container, a single layer, plastic, 12 x 19 \3/
4\ inch box, that is available for use with nectarines. However, the
design of some styles of the container, which has cooling slots in all
of its sides, is such that the markings cannot easily be placed on the
outside end of the container.
The NAC believes that allowing for markings to be placed on the
container lid or on the outside end of the container will facilitate
the use of all styles of this plastic, reusable and recyclable
container in compliance with marketing order requirements. Authorizing
the use of this new container will allow handlers to reduce their
container costs through the continued reuse of the container.
[[Page 31389]]
Maturity Requirements (Nectarines)
Section 916.356 specifies maturity requirements for fresh
nectarines in paragraphs (a)(1) and (a)(1)(i), including Table 1. For
fruit being inspected and certified as meeting the maturity
requirements for ``well matured'', determinations are generally in
terms of maturity guides (e.g., color chips) specified in Table 1.
This rule revises paragraph (a)(1) by exempting certain nectarine
varieties from the requirement that a blush or red color be present on
the skin of the nectarines. By their nature, some newer yellow
nectarine varieties fail to attain any color other than yellow on the
skin of the fruit. The U. S. Standards for Grades of Nectarines
requires that a blush or red color be present on the skin of the fruit
in order for the fruit to be considered as U. S. No. 1 grade.
This rule also revises Table 1 of paragraph (a)(1)(I) of
Sec. 916.356 for nectarines to add the maturity guides for four
nectarine varieties. Specifically, an addition to the maturity guides
was recommended for Grand Diamond, King Jim, and Spring Brite at a
maturity guide of L, and Rose Diamond at a maturity guide of J.
The NAC recommended these maturity requirement changes for these
nectarine varieties based on a continuing review by the Shipping Point
Inspection Service of their individual maturity characteristics, and
the identification of the appropriate color chip corresponding to the
``well matured'' level of maturity for such variety.
Size Requirements (Nectarines)
Section 916.356 specifies size requirements for fresh nectarines in
paragraphs (a)(2) through (a)(9). This rule revises Sec. 916.356 to
establish variety-specific size requirements for six nectarine
varieties that were produced in commercially significant quantities of
more than 10,000 packages for the first time during the 1995 season.
This rule also modifies the variety-specific size requirements for two
varieties of nectarines by reassigning those varieties.
Size regulations are put in place to improve fruit quality by
allowing fruit to stay on the tree for a greater length of time. This
increased growing time not only improves maturity and, therefore, the
quality of the product, but also the size of the fruit. Increased size
results in increases in the number of packed boxes of nectarines per
acre. This provides greater consumer satisfaction, more repeat
purchases, and, therefore, increases returns to growers. Varieties
recommended for specific size regulation have been reviewed and
recommendations are based on the characteristics of the variety to
attain minimum size.
Paragraph (a)(3) is revised to include the Johnny's Delight and May
Jim varieties; paragraph (a)(4) is revised to include the Arctic Rose
variety; and paragraph (a)(6) in Sec. 916.356 is revised to include the
Flame Glo, Prima Diamond III, Prima Diamond IV, Prima Diamond VIII, and
the White Jewels nectarine varieties.
This rule also revises Sec. 916.356 to remove eleven nectarine
varieties from the variety-specific size requirements specified in the
section because less than 5,000 packages of each of these varieties
were produced during the 1995 season. Paragraph (a)(2) of that section
is revised to remove the Royal Delight nectarine variety. Paragraph
(a)(4) is revised to remove the Sunfre variety, and paragraph (a)(4) is
also revised to delete the May Jim variety. This variety was placed in
this paragraph prior to the 1995 season. The variety matures to a
smaller-than-average size when compared to other varieties in this
paragraph. Based upon its sizing characteristics from the 1995 season,
removal of the May Jim variety from this paragraph was recommended.
Paragraph (a)(6) is revised to remove the Del Rio Rey, Independence, La
Pinta, Late Le Grand, Royal Red, Son Red, Sun Grand, and 181-119
(Sierra Star) nectarine varieties. Paragraph (a)(6) is also revised to
remove the Arctic Rose variety. This variety was placed in this
paragraph prior to the 1995 season. The variety matures to a smaller-
than-average size when compared to other varieties in this paragraph.
Based upon its sizing characteristics from the 1995 season, removal of
the Arctic Rose variety from this paragraph was recommended.
Nectarine varieties removed from the nectarine variety-specific
list become subject to the non-listed variety size requirements
specified in paragraphs (a)(7), (a)(8), and (a)(9) of Sec. 916.356.
The NAC recommended these changes in the minimum size requirements
based on a continuing review of the sizing and maturity relationships
for these nectarine varieties, and consumer acceptance levels for
various sizes of fruit. This rule is designed to establish minimum size
requirements for fresh nectarines consistent with expected crop and
market conditions.
Container and Pack Requirements (Peaches)
Section 917.442 currently specifies container and pack requirements
for fresh peach shipments. Paragraph (a)(4)(iv) of Sec. 917.442
specifies the tray-pack size designations which must be marked on
loose-filled or tight-filled containers, depending on the size of the
fruit. The size designations specify the maximum number of peaches in a
16-pound sample for each tray pack size designation. This rule revises
paragraph (a)(4)(iv) of Sec. 917.442 by modifying one size designation
for the weight-count standards in Column B of Table 1 for early-season
and mid-season peach varieties. Research conducted by the PCC indicated
that early-season and mid-season fruit weighs less than late-season
fruit and the weight-count standards were, therefore, modified for the
past two seasons based on that consideration. Results from the 1995
season suggest that a minor modification of Table 1 is necessary to
provide more accurate weight-count standards for early-season and mid-
season peaches.
The PCC recommended the revised container marking requirement
changes for peaches after a comprehensive review of the appropriate
relationships between the tray-pack containers and loose-filled or
tight-filled containers for early-season and mid-season peach varieties
prior to the 1996 season. Specifically, the PCC's recommendation
provides that the maximum number of peaches of size 54 in a 16-pound
sample of early-season and mid-season fruit is more appropriately 44
rather than 43.
Pack regulations provide for uniform packing practices. In
particular, weight-count standards provide for equality between fruit
packed in loose-filled or tight-filled containers and fruit packed in
tray-pack styles.
According to the PCC, packers occasionally moved fruit from tray-
pack styles of pack to loose-filled or tight-filled pack styles. This
activity has led to an awareness, especially in regard to early-season
varieties, that fruit which was of proper size when tray-packed
exceeded the maximum number of peaches for the 16-pound sample for
corresponding loose-filled or tight-filled pack size. In some
instances, these samples needed an additional piece of fruit to meet
the 16-pound weight requirement, thus causing the pack to be ``marked''
smaller than its equivalent tray-pack size. When packs are ``marked''
smaller this causes the container to be sold for a lower price. During
the 1994 season, new weight-count assignments for early varieties
[[Page 31390]]
were in place. Research continued with the purpose of possible
refinement of those weight-count assignments.
Revised and refined weight-count standards for early varieties
should provide for more accurate marking of size when packed in loose-
filled or tight-filled pack styles compared to equivalent sizes that
are tray packed. These regulations provide for uniformly packed
containers of peaches. These regulations also attempt to assure
equivalent returns for growers based on style of pack used.
This rule also further clarifies the definition of ``tree ripe''
added to Sec. 917.442 paragraph (b) for the 1995 season. According to
the PCC, ``tree ripe'' is an optional marking with regard to maturity
that is stamped on containers of peaches. Currently the definition of
tree ripe is based on the California Well Matured maturity requirement
and is intended to be used for fruit which has been allowed to ripen
naturally by remaining longer on the tree. California Well Matured
means that fruit has been picked at a maturity level distinctly more
advanced than ``mature.'' The definition of ``tree ripe'' was added in
1995 so that its meaning was consistent with other descriptive markings
and provided a consistent minimum maturity level throughout the
industry to the benefit of consumers. However, during the 1995 season,
some handlers marked their boxes of fruit as ``tree ripened.'' It has
been recommended by the PCC that the terms ``tree ripe'' and ``tree
ripened'' and other terms which denote an advanced level of maturity
due to the fruit remaining on the tree for a longer period, are
interchangeable terms indicative of the enhanced maturity of the fruit
inside the box. Requiring containers of peaches to be at a minimum
California Well Matured in order to be marked ``tree ripe'' or ``tree
ripened'', or other interchangeable terms such as ``ripened on the
tree'', or ``ripened on tree'' will clarify the current regulation by
specifying when the ``tree ripe'' or some similar marking using the
words ``tree'' and ``ripe'' can be used and help to ensure that buyer
expectations are met.
The PCC also recommended that a new container, that also allows for
markings on the container lid, be approved for peach shipments for the
1996 season only. The PCC will review the impact of this container with
shippers prior to the 1997 season.
The marketing order, under Sec. 917.442, requires that all
containers be marked with specific information (e.g. handler, grade,
size, and variety) and that all such markings on peach containers have
to be applied to the outside end of the container. This has been
defined as any of the four sides of the container, but not on the lid.
Currently, there is interest by handlers in containers that are
reusable thus creating financial savings for handlers. There is now a
reusable and recyclable container, a single layer, plastic, 12 x
19\3/4\ inch box, that is available for use with peaches. However, the
design of some styles of the container, which has cooling slots in all
of its sides, is such that the markings cannot easily be placed on the
outside end of the container.
The PCC believes that allowing for markings to be placed on the
container lid or on the outside end of the container will facilitate
the use of all styles of this plastic, reusable and recyclable
container in compliance with marketing order requirements. Authorizing
the use of this new container will allow handlers to reduce their
container costs through the continued reuse of the container.
Maturity Requirements (Peaches)
Section 917.459 specifies maturity requirements for fresh peaches
in paragraph (a)(1), including TABLE 1. For fruit being inspected and
certified as meeting the maturity requirements for ``well matured'',
maturity determinations are generally in terms of maturity guides
(e.g., color chips) specified in Table 1. This rule revises Table 1 of
paragraph (a)(1)(ii) of Sec. 917.459 for peaches to change the maturity
guide for the Elegant Lady peach variety from a maturity guide M to a
maturity guide L. It also adds two peach varieties for which color
chips had not been established previously. The Early Delight peach
variety has been recommended to be added with a maturity guide H and
the May Sun variety has been recommended to be added with a maturity
guide I.
The PCC recommended these maturity requirement changes for these
peach varieties based on a continuing review by the Shipping Point
Inspection Service of their individual maturity characteristics, and
the identification of the appropriate color chip corresponding to the
``well matured'' level of maturity for such varieties.
Size Requirements (Peaches)
Section 917.459 specifies size requirements for fresh peaches in
paragraphs (a)(2) through (a)(6), and paragraphs (b) and (c). This rule
also revises Sec. 917.459 to establish variety-specific size
requirements for six peach varieties that were produced in commercially
significant quantities of more than 10,000 packages for the first time
during the 1995 season.
Size regulations are put in place to improve fruit quality by
allowing fruit to stay on the tree for a greater length of time. This
increased growing time not only improves maturity, and, therefore, the
quality of the product, but also size of the fruit. Increased size
results in increases in the number of packed boxes of peaches per acre.
This provides greater consumer satisfaction, more repeat purchases,
and, therefore, increases returns to growers. Varieties recommended for
specific size regulation have been reviewed and recommendations are
based on the characteristics of the variety to attain minimum size.
In Sec. 917.459 paragraph (a)(5) is revised to include the May Sun
peach variety; and paragraph (a)(6) is revised to include the July Sun,
Kaweah, Snow Giant, Snow King, and Sugar Giant peach varieties.
This rule also revises Sec. 917.459 to remove eleven peach
varieties from the variety-specific size requirements specified in that
section, because less than 5,000 packages of each of these varieties
were produced during the 1995 season. In Sec. 917.459 paragraph (a)(2)
of Sec. 917.459 is revised to remove the Flordaprince peach variety;
paragraph (a)(5) is revised to remove the First Lady, Merrill Gem,
Royal May, Sierra Crest, Summer Crest, and 50-178 peach varieties; and
paragraph (a)(6) is revised to remove the Angelus, August Delight,
Parade, and Scarlet Lady peach varieties. Peach varieties removed from
the variety-specific list become subject to the non-listed variety size
requirements specified in paragraphs (b) and (c) of Sec. 917.459.
The removal of the Flordaprince variety from paragraph (a)(2)
results in there being no varieties regulated within size 96 for the
1996 season. Since the variety-specific list is subject to change from
one season to another, the Department wishes to reserve paragraph
number (a)(2) for future regulation of peaches at size 96.
The PCC recommended these changes in the minimum size requirements
based on a continuing review of the sizing and maturity relationships
for these peach varieties, and the consumer acceptance levels for
various sizes fruit. This rule is designed to establish minimum size
requirements for fresh peaches consistent with expected crop and market
conditions.
In addition, this rule revises paragraph (a)(6) of Sec. 917.459 by
adding three peach varieties which were inadvertently removed from this
paragraph, and deleting three varieties which were left in this
paragraph. Those peach varieties which are being added
[[Page 31391]]
to paragraph (a)(6) of Sec. 917.459 include the Fancy Lady, Snow Ball,
and Sugar Lady peach varieties. Those peach varieties which were
inadvertently left in the variety-specific size requirement at
paragraph (a)(6) of Sec. 917.459 and are being removed include the July
Lady, Red Cal, and Redglobe peach varieties. The Sugar Giant peach
variety should also be added to the variety-specific size requirement
in paragraph (a)(6) of Sec. 917.459. This variety was recommended to be
added by the PCC in 1996 and was inadvertently left out of the interim
final rule.
Further, this rule revises paragraph (a)(6) of Sec. 917.459 by
changing the name of the peach variety, Red Boy. The exclusive handler
of this peach variety changed the name in the 1995 season. For that
reason, the name of the Red Boy peach variety is changed to Red Dancer.
This rule reflects the committees' and the Department's appraisal
of the need to revise the handling requirements for California
nectarines and peaches, as specified. The Department's determination is
that this rule will have a beneficial impact on producers, handlers,
and consumers of California nectarines and peaches.
This rule establishes handling requirements for fresh California
nectarines and peaches consistent with expected crop and market
conditions, and will help ensure that all shipments of these fruits
made each season will meet acceptable handling requirements established
under each of these orders. This rule will also help the California
nectarine and peach industries provide fruit desired by consumers. This
rule is designed to establish and maintain orderly marketing conditions
for these fruits in the interest of producers, handlers, and consumers.
Therefore, the Administrator of the AMS has determined that this rule
will not have a significant economic impact on a substantial number of
small entities.
After consideration of all relevant matters presented, the
information and recommendations submitted by the committees, and other
information, it is found that the rule, as hereinafter set forth, will
tend to effectuate the declared policy of the Act.
List of Subjects
7 CFR Part 916
Marketing agreements, Nectarines, Reporting and recordkeeping
requirements.
7 CFR Part 917
Marketing agreements, Peaches, Pears, Reporting and recordkeeping
requirements.
Accordingly, the interim final rule amending 7 CFR parts 916 and
917 which was published at 61 FR 13386 on March 27, 1996, is adopted as
a final rule with the following changes:
PART 916--NECTARINES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR Part 916 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 916.350 [Amended]
2. In Sec. 916.350, paragraph (c) is revised to read as follows:
Sec. 916.350 California Nectarine Container and Pack Regulation.
* * * * *
(c) Each container of nectarines in plastic, 12 x 19\3/4\ inch
reusable and recyclable containers shall meet and bear, on the
container lid or on the outside end, all applicable marking
requirements under the order.
Sec. 916.356 [Amended]
3. In Sec. 916.356, paragraph (a)(6) is amended by adding the name
``Nectarine 23''.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR Part 917 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 917.442 [Amended]
2. In Sec. 917.442, paragraph (c) is revised to read as follows:
Sec. 917.442 California Peach Container and Pack Regulation.
* * * * *
(c) Each container of peaches in plastic, 12 x 19\3/4\ inch
reusable and recyclable containers shall meet and bear, on the
container lid or on the outside end, all applicable marking
requirements under the order.
Sec. 917.459 [Amended]
3. In Sec. 917.459, paragraph (a)(6) is amended by adding the names
``Fancy Lady,'' ``Red Dancer'', ``Snow Ball'', ``Sugar Giant'', and
``Sugar Lady'', and removing the names ``July Lady'', ``Red Boy'',
``Red Cal'', and ``Redglobe''.
Dated: June 13, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-15628 Filed 6-19-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-15621 Clean Air Act Final Interim Approval of Operating Permits Program; Delegation of Section 112 Standards; State of Massachusetts; Correction
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31442-31443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15621]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5522-9]
Clean Air Act Final Interim Approval of Operating Permits
Program; Delegation of Section 112 Standards; State of Massachusetts;
Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval; Correction.
-----------------------------------------------------------------------
SUMMARY: On May 15, 1996 (61 FR 24460), EPA promulgated interim
approval of the 40 CFR Part 70 Operating Permits Program for the
Commonwealth of Massachusetts. The document correctly identified the
effective date as May 15, 1996. However, the language to amend 40 CFR
Part 70 listed an incorrect effective date and an incorrect expiration
date for the interim approval of this program.
EFFECTIVE DATE: May 15, 1996.
FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits Program,
CAP, U.S. Environmental Protection Agency, Region 1, JFK Federal
Building, Boston, MA 02203-2211, (617) 565-3500.
SUPPLEMENTARY INFORMATION: In the document published on May 15,
1996 at 61 FR 24461, column 3, the effective date and expiration
date were incorrect. This final rule corrects the language to amend
40 CFR Part 70 in a manner which is consistent with the May 15,
1996 rule. The correct effective date of this interim approval is
May 15, 1996, and the correct expiration date of this interim
approval is May 15, 1998.
The EPA regrets any inconvenience the earlier information has
caused.
List of Subjects in 40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental Protection, Intergovernmental relations, Operating
permits, Reporting and recordkeeping requirements.
Dated: May 30, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
[[Page 31443]]
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by revising the entry for
Massachusetts to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Massachusetts
(a) Department of Environmental Protection: submitted on April
28, 1995; interim approval effective on May 15, 1996; interim
approval expires May 15, 1998.
(b) (Reserved).
* * * * *
[FR Doc. 96-15621 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15617 Operating Permits Program Interim Approval Criteria
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31443-31449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15617]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-5521-4]
RIN 2060-AF70
Operating Permits Program Interim Approval Criteria
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is promulgating revisions to the interim approval
criteria within the regulations in part 70, chapter I, title 40, of the
Code of Federal Regulations (CFR). Part 70 contains regulations
requiring States to develop, and submit to EPA for approval, programs
for issuing operating permits to major, and certain other, stationary
sources of air pollution as required by title V of the Clean Air Act
(Act). Two changes to the interim approval criteria were proposed on
August 29, 1994 to address difficulties in program development that
have occurred since promulgation of part 70. Today's action finalizes
one of those changes; the other will be finalized in a subsequent
action.
As a result of today's revision to part 70, certain State operating
permit programs will become eligible for interim program approval.
Without today's changes, these programs would not have been eligible
for interim program approval under the part 70 regulations.
Specifically, interim approval may now be granted for programs which do
not provide for the incorporation of terms contained in permits issued
under EPA-approved minor source preconstruction permit programs into
corresponding part 70 permits.
To be eligible for this interim approval, such programs would have
to show compelling reasons for the interim approval and meet certain
other requirements regarding the content of part 70 permits that
exclude these applicable preconstruction permit terms during the 2-year
interim period. After 2 years, interim approval expires and the State
must have revised its program to address the exclusion of these terms,
and any other deficiencies, in order to receive full approval.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Michael Ling (telephone number 919-
541-4729), U. S. Environmental Protection Agency, Office of Air Quality
Planning and Standards, Information Transfer and Program Integration
Division, Mail Drop 12, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those State,
local, or tribal governments who seek approval of their part 70
operating permit programs, but whose programs do not include minor
preconstruction permit terms in their part 70 permits. Regulated
categories include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
State/Local/Tribal Government............. Governments who have
developed operating permit
programs that exclude minor
NSR terms from title V
permits and who seek EPA
approval of such programs
under the part 70
regulations.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
Docket
Supporting information used in developing the part 70 rules,
including today's promulgated change, is contained in docket number A-
93-50. This docket is available for public inspection and copying
between 8:30 a.m. and 3:30 p.m. Monday through Friday, at EPA's Air
Docket, Room M-1500, Waterside Mall, 401 M Street SW, Washington, D.C.
20460. A reasonable fee may be charged for copying.
I. Background and Purpose
A. Introduction
Title V of the Clean Air Act Amendments of 1990 (1990 Amendments),
Public Law 101-549, requires EPA to promulgate regulations establishing
the requirements for development and submittal of State operating
permit programs and the minimum elements these programs must contain to
be approvable. On July 21, 1992, EPA published regulations meeting
these requirements in the Federal Register (57 FR 32250).
Title V and the part 70 regulations require States and local
agencies to submit operating permit programs to EPA within 3 years of
enactment of the 1990 Amendments, and require EPA to take action within
1 year of program submittal to approve or disapprove these programs.
Section 502(g) of the Act allows EPA to grant interim approval to a
program if it ``substantially meets'' the requirements of title V but
is not fully approvable. Interim approval may be granted for a period
of up to 2 years and may not be renewed. The interim approval provision
allows permitting authorities time to correct the program deficiencies
preventing full approval. The minimum elements that a program must
contain to be eligible for interim approval are contained in
Sec. 70.4(d).
The EPA proposed two changes to the interim approval criteria on
August 29, 1994 (59 FR 44571). The first change would allow interim
approval for part 70 programs which allow permits to be revised through
the minor permit modification procedure to reflect those changes at a
facility which is subject to EPA-approved minor source preconstruction
permit requirements, commonly referred to as ``minor new source
review'' (minor NSR) changes. Because this proposal is linked to
proposed changes to the permit revision system, which EPA is not yet
ready to finalize, and because current EPA policy already allows for
approval of programs which allow changes established through minor NSR
to be addressed using minor permit modification procedures, EPA is not
taking final action on this proposed change in today's rulemaking.
The second proposed change to the interim approval criteria
addresses programs that do not incorporate terms and conditions into a
source's part 70 permit which are established through an EPA-approved
minor NSR program.
[[Page 31444]]
Title V and part 70 require a permit to contain provisions which assure
compliance with all applicable requirements (section 502(b)(5)(A) of
the Act, 40 CFR 70.6(a)). The definition of the term ``applicable
requirement'' in part 70 includes requirements established through
minor NSR permitting procedures (Sec. 70.2). The proposed change to
part 70 would, for the period of interim approval, allow part 70
permits to be issued and revised without incorporating those terms and
conditions that are applicable requirements solely because they are
established through minor NSR. These minor NSR terms and conditions
would still remain federally enforceable through the provisions of the
minor NSR program. In today's notice, EPA is taking final action on
this proposed rule change.
B. Summary of Proposed Changes Addressing Applicable Requirements
The August 29, 1994 proposal noted that, in order to be eligible
for interim approval, a program must contain adequate authority to
issue permits that assure compliance with all applicable requirements
including all applicable requirements under title I of the Act [see
Sec. 70.4(d)(3)(ii) and Sec. 70.4(c)(1)]. The proposal explained that
EPA believes the term ``applicable requirements'' clearly includes all
terms and conditions of minor NSR permits. Therefore, a part 70 program
that would not provide for incorporating into permits those
requirements established through the EPA-approved minor NSR program
would be prohibited by Sec. 70.4(d)(3)(ii) from receiving interim
approval.
One State, Texas, argued that there are compelling reasons
supporting its exclusion of minor NSR requirements as title V
applicable requirements, and that its submitted part 70 program should
thus be eligible for approval. Although EPA reads Sec. 70.2 and
Sec. 70.6(a)(1) to unequivocally require minor NSR terms to be
applicable requirements (meaning that the submitted Texas program could
not obtain full approval), the Agency proposed that Texas'
demonstration of compelling reasons warranted further consideration of
the submitted program for interim approval on the basis that it
substantially meets the requirements of title V. Texas' demonstration
of compelling reasons included the following arguments: (1) Texas'
existing minor NSR program is so stringent that the integration of all
its minor NSR terms would be infeasible and unnecessary for
environmental protection; (2) Texas has an exceptionally large number
of part 70 sources which are candidates for minor NSR, making part 70
permitting difficult and time-consuming; and (3) Texas believes that
its system of cross-referencing minor NSR permits in part 70 permits
will serve essentially the same program purposes as inclusion of the
minor NSR requirements themselves, rendering direct inclusion of these
requirements unnecessary from Texas' viewpoint.
On the basis of this type of showing, EPA proposed to consider
interim approval for programs facing significant minor NSR/part 70
integration difficulties. The proposal further provided that, for a
program operating under this type of interim approval: (1) Each part 70
permit issued during the interim approval must (if applicable) state
that applicable minor NSR requirements are not included; (2) each minor
NSR permit containing requirements applicable to the source must be
cross-referenced in the source's part 70 permit so that citizens may
access and review those requirements; (3) excluded minor NSR
requirements would not be eligible for the permit shield under
Sec. 70.6(f); and (4) upon conversion to full approval, all permits
issued during the interim approval period that excluded minor NSR terms
would have to be reopened to include these terms.
Although the exclusion of minor NSR means that important title V
compliance measures (e.g., compliance certification, public review,
etc.) will be deferred for 2 years for minor NSR terms, the proposed
provisions would limit the scope and duration of the effects of this
deferral, and would assure that the public could examine, in federally-
enforceable NSR permits, any terms which are not subject to title V's
compliance measures during the interim period. This helps strengthen
the proposal's position that programs which exclude minor NSR terms
could ``substantially meet'' the requirements of part 70 and receive
interim approval. However, EPA reiterates that all compliance measures
contained in title V must be applied to all applicable requirements,
including minor NSR terms, before a part 70 program can receive full
approval.
II. Discussion of Today's Action
A. Summary of Changes Since Proposal
In response to comments, EPA is making three minor rule changes to
clarify the requirements discussed in the proposal preamble. These
include: (1) Adding rule language clarifying that any excluded NSR
permits must be cross-referenced in the applicable part 70 permit; (2)
adding rule language clarifying that excluded NSR requirements would
not be eligible for the permit shield under Sec. 70.6(f); and (3)
adding rule language clarifying that, upon conversion to full approval,
permits issued during the interim period would have to be revised or
reopened to include any excluded minor NSR terms. Regarding reopening,
today's rule also provides for a streamlined reopening process for
excluded minor NSR terms that does not require the full permit issuance
process. The rule provisions are also being rearranged into separate
paragraphs in the final rule for clarity. In addition to these rule
clarifications, the EPA also reiterates in today's preamble its
position that minor NSR is an applicable requirement for part 70
purposes. Additional discussion is also provided on the proposed
``compelling reasons'' demonstration requirement being promulgated
today.
B. Significant Comments and Responses
The August 29, 1994 proposal concerning interim approval criteria
was grouped with a larger proposal revising the part 70 permit revision
system (published separately at 59 FR 44459). The EPA received a total
of 246 comment letters on these two proposals, some of which addressed
each action separately and some of which addressed both actions
together. This section addresses only the major comments received on
the proposed revision to the interim approval criteria regarding minor
NSR as an applicable requirement. Discussion of additional issues
raised by the commenters related to today's action is contained in the
technical support document for this rule, which is included in the
docket for today's rulemaking. Comments on other proposed changes to
the interim approval criteria not addressed by today's rule change,
including comments on other aspects of the August 1994 proposals (as
well as the August 31, 1995 proposal which supplemented the August 1994
notice on permit revisions), will be addressed in a future rulemaking.
1. Minor NSR as an Applicable Requirement
Several commenters asserted that revisions to the interim approval
criteria are unnecessary because minor NSR is not an ``applicable
requirement'' under part 70. The EPA notes that it has the authority to
promulgate this revision to the interim approval criteria regardless of
the correctness of the assertion that minor NSR is not an applicable
requirement. However, EPA also
[[Page 31445]]
disagrees with the commenters' assertion, and stands by the position
and the rationale articulated in the proposal, that minor NSR is an
applicable requirement. Key points of this rationale are reiterated
below in response to comments received, and are discussed further in
the technical support document found in the docket.
One commenter disagreed with EPA's reading of the part 70
definition of ``applicable requirement,'' noting that something is not
necessarily an ``applicable requirement'' simply because it is a
requirement of the Act. The EPA agrees with this broad statement,
noting--for example--that requirements of title II are not ``applicable
requirements.'' However, EPA sees no basis for concluding that minor
NSR permits issued under a State implementation plan (SIP) approved
program are not applicable requirements. Furthermore, as explained in
the proposal preamble, EPA believes the part 70 rule is clear in
defining ``applicable requirements'' to include minor NSR. A challenge
to this point should have been raised in the context of the July 21,
1992 promulgation of part 70.
Another commenter argued more broadly that the intent of the Act is
to regulate major sources while allowing States to regulate minor
sources through minor NSR programs. The EPA disagrees. Section
110(a)(2)(c) of the Act and EPA's regulations at 51.161 clearly
establish Federal requirements for preconstruction review of activities
below the NSR major source applicability thresholds. The EPA further
disagrees with this commenter's assertion that its argument is
supported by EPA's proposed resolution of the ``title I modifications''
issue. A determination by EPA that ``title I modifications'' do not
include minor NSR actions does not mean that minor NSR programs are
optional under the Act.
A commenter also noted that many State minor NSR programs go beyond
the Federal minimum, and that a detailed analysis would be necessary to
determine the precise extent to which a minor NSR program is necessary
to attain and maintain the national ambient air quality standards
(NAAQS). The EPA disagrees that any such analysis is necessary or
appropriate. A State that submitted a minor NSR program for approval
into the SIP presumably did so because it believed that the submitted
program was necessary to attain and maintain the NAAQS. The EPA
believes this is the only reasonable presumption that can be made in
retrospect.
Although EPA reiterates that minor NSR terms are applicable
requirements, EPA also recognizes that certain terms found in existing
NSR permits (including minor NSR permits) may be obsolete, extraneous,
environmentally insignificant, or otherwise not required as part of the
SIP or a federally-enforceable NSR program. Inclusion of these terms in
a part 70 permit could present program implementation difficulties and
is not needed to fulfill the purposes of the Act. Noting this, EPA
issued a policy addressing incorporation of these permit terms into
part 70 permits. This policy is described in ``White Paper for
Streamlined Development of Part 70 Permit Applications, July 10, 1995''
(White Paper). The White Paper states that, although minor NSR permit
terms are applicable requirements, the permitting authority may use a
joint title V/NSR ``parallel process'' to make appropriate revisions to
an NSR permit to exclude NSR terms which are obsolete, unrelated to
attainment and maintenance of a NAAQS, extraneous, or otherwise
environmentally insignificant. By revising the underlying NSR permit to
delete, revise, or designate as State-only these unnecessary minor NSR
permit terms, the permit authority has discretion to exclude these
terms from the set of federally-enforceable minor NSR conditions, and
thus from the definition of ``applicable requirement'' for part 70
purposes.
The EPA notes that programs which exclude minor NSR as an
applicable requirement under today's approach to interim approval, and
which seek to streamline minor NSR permits using a White Paper
approach, would not need to have revised existing minor NSR permits in
this way until conversion to full approval, because these programs will
not include minor NSR terms in part 70 permits until that time.
However, programs considering this type of parallel processing are
encouraged to consult the White Paper and begin this permit revision
process, so that the task of streamlining minor NSR permits does not
conflict with other permit authority responsibilities at the time full
approval is received.
2. Demonstration of ``Compelling Reasons''
The proposal allows EPA to grant interim approval to part 70
programs that do not include minor NSR as an applicable requirement
upon a showing by the permitting authority of ``compelling reasons''
which support the interim approval. One commenter stated that the
requirement for compelling reasons is unworkable and should be deleted,
and that EPA does not provide guidance on what constitutes compelling
reasons. The EPA disagrees that the compelling reasons requirement
should be deleted, and does not believe that additional guidance on
compelling reasons is necessary for reasons explained below.
The EPA believes it is important to include a requirement that a
State demonstrate compelling reasons to grant interim approval if a
part 70 program excludes minor NSR from the definition of ``applicable
requirement.'' The EPA believes, in general, that an interim approval
on this basis is undesirable because it delays the implementation of
title V for a large number of Act requirements at a large number of
sources, and is a significant departure from the part 70 regulations.
The Agency believes that this type of departure should be made only for
those programs that demonstrate a strong need for the interim exclusion
of minor NSR. Therefore, the Agency is requiring that such programs
demonstrate compelling reasons for granting the interim approval.
Two commenters also asserted that EPA has no basis under the Act to
require States to show compelling reasons for granting interim
approval; EPA disagrees. Section 502(g) of the Act gives EPA broad
discretion as to when and how it grants interim approval. This
discretion includes requiring that a State show compelling reasons
before making significant departures from part 70. The commenters
presented no basis, nor does EPA see any reason, to remove the
``compelling reasons'' requirement.
The ``compelling reasons'' demonstration should be based primarily
on a showing that extraordinary difficulties would be encountered in
incorporating minor NSR terms into initial title V permits. It is also
appropriate to include in the demonstration any measures the State is
taking in its interim part 70 program to support the implementation of
the excluded minor NSR program. The EPA reserves its discretion to
evaluate demonstrations of compelling reasons on a case-by-case basis,
with consideration given to the degree of the minor NSR/title V
integration difficulties and the extent to which the State part 70
program addresses minor NSR implementation in the interim. Because of
the case-by-case nature of such decisions, EPA cannot provide
prescriptive criteria for the compelling reasons demonstration.
The Texas demonstration of compelling reasons, described in the
August 1994 proposal, is an example of
[[Page 31446]]
the type of demonstration that could be considered for interim approval
under today's rule. Texas argued that: (1) Its minor NSR program is so
stringent that integration of all minor NSR terms would be infeasible;
(2) it has an exceptionally large number of part 70 sources which
receive minor NSR; and (3) its part 70 program would cross-reference
minor NSR permits in part 70 permits (i.e., identifies in each part 70
permit the applicable minor NSR permits, but does not incorporate by
reference the requirements of minor NSR into the part 70 permit).
Although EPA does not believe that the existence of a stringent
minor NSR program justifies exclusion of minor NSR from a title V
program, the Agency acknowledges that a program such as Texas' does
produce an extremely large number of minor NSR permits, because of both
its inclusive applicability provisions and because of the large number
of facilities statewide. Thus, integration of minor NSR permits into
initial title V permits presents significant difficulty in Texas.
Similarly, although EPA does not believe that simply cross-referencing
minor NSR permits satisfies title V, EPA acknowledges that the cross-
referencing requirement in Texas' part 70 program serves to provide
additional notice in part 70 permits when minor NSR applies to a
facility. Although this measure falls short of the permit content
requirements of a fully-approvable title V program, EPA believes it is
appropriate for a State to reference such measures in its compelling
reasons demonstration. Therefore, because of the combination of
integration difficulties and program measures, EPA would consider such
a program for interim approval. The EPA notes that today's notice is
not intended to present the Agency's position as to whether Texas'
compelling reasons demonstration (together with the rest of its
program) warrants interim approval under the revised criteria. Rather,
today's rule simply provides for the possibility that such a program
could be considered for interim approval in light of the fact that it
excludes minor NSR terms from part 70 permits.
In addition to requiring a showing of compelling reasons, the
proposal preamble noted that EPA will consider the following as factors
against this type of interim approval: (1) Whether a program's
exclusion of minor NSR terms will diminish the effectiveness of the
State's minor NSR program during the interim period; and (2) whether
the State has already submitted a part 70 program that included minor
NSR as an applicable requirement. It is recommended that States
considering excluding minor NSR as an applicable requirement carefully
consider whether, in light of these factors, its reasons for the
exclusion truly constitute a compelling need. Such States should also
consider whether the time delays in program approval associated with
necessary program changes and the development of a case-by-case
analysis of compelling reasons are worth the interim relief that may be
achieved through the temporary exclusion of minor NSR from title V
permitting.
3. Incorporation of Minor NSR on Transition to Full Approval
The proposal preamble noted that a part 70 program which does not
incorporate minor NSR as an applicable requirement must, upon
conversion from interim to full approval, provide for the reopening of
permits issued during the interim period in order to include the
excluded minor NSR requirements in each part 70 permit. Three
commenters stated that such a reopening would be unnecessary and
impractical. The commenters were concerned about the timing and impact
of the resource burden imposed on sources and on permitting authorities
by the reopening process, which, in accordance with Sec. 70.7(f)(2),
must follow the same procedural requirements as permit issuance. They
felt that reopening was an unnecessary procedural burden with little
environmental benefit and believed that minor NSR terms could be
included at renewal, rather than reopening, with little adverse impact.
While EPA is sensitive to resource concerns, the Agency does not
agree that these concerns should result in exclusion of minor NSR terms
from title V permits until renewal. The EPA, in proposing to allow this
type of interim approval, did not contemplate that minor NSR applicable
requirements could be excluded until renewal, which could be up to 5
years after full program approval. Furthermore, part of the rationale
for granting interim approval is that the excluded minor NSR terms are
subject to other safeguards in the part 70 regulations. One such
safeguard is the reopening of permits when interim approval expires to
incorporate excluded applicable requirements. Without such a safeguard,
minor NSR terms would not be subject to key provisions of title V, such
as annual compliance certification, recordkeeping and reporting, and
other similar requirements, for up to 5 years.
The EPA does agree that, if reopenings to incorporate excluded
minor NSR permits must follow the same procedural requirements as full
permit issuance, the process of reopening each permit issued during the
interim approval period could impose considerable administrative burden
at a time when the permitting authority is still also processing
initial permit applications. This burden is greatly mitigated in Texas
where the earliest permits, and hence the ones requiring reopening, are
for the simplest sources and source categories. The EPA believes that
remaining concerns over the resource burden associated with reopenings
will be reasonably addressed by the provisions discussed below.
The EPA reiterates that any permit issued during the interim period
must, upon transition to full approval, assure compliance with the
permit content requirements of title V (i.e., Secs. 70.6 (a) and (c))
for all applicable requirements, including the previously excluded
minor NSR terms. However, the Act does not specifically require a full
reopening when interim approval expires as the only means to achieve
this end. The EPA believes that excluded minor NSR applicable
requirements may be brought on to the title V permit prior to or upon
full program approval using procedures more streamlined than full
reopening. This is because some of the excluded minor NSR requirements
have already been subjected to some title V procedural requirements
(e.g., public review) during issuance of the NSR permit. The EPA
recognizes that under this approach, other excluded minor NSR terms
will be incorporated into part 70 permits without an opportunity for
public comment, EPA objection, or citizen petition until renewal.
However, EPA believes that deferral of these title V requirements until
renewal is appropriate for excluded minor NSR applicable requirements.
A minor NSR permit that is newly issued during the permit term would be
incorporated into the permit through procedures that are less than
those required for permit issuance. The EPA believes it is reasonable
to allow for equitable treatment of pre-existing minor NSR permits that
were initially excluded from the permit in the same manner,
particularly since the permit shield will not apply until the minor NSR
permit undergoes full title V procedures at renewal.
The EPA is adding language at Sec. 70.3(d)(3)(ii)(D) allowing this
streamlined reopening approach for excluded minor NSR terms. The EPA
notes that any such process should at least meet the part 70 permit
revision requirements for changes subject to minor NSR. This would
include any
[[Page 31447]]
minimum requirements for public notice and access to records contained
in the part 70 regulations in effect at the time of program transition
to full approval. The EPA is further allowing permitting authorities to
dispense with the need to give each source a 30-day notice of its
intent to revise the permit to incorporate previously-excluded minor
NSR permits. The EPA believes this individual notice is unnecessary
because sources, by virtue of this action and actions taken by the
State to implement this approach, will have ample notice of the fact
that permits excluding minor NSR permits will need to be reopened.
As an alternative to the streamlined reopening described above, EPA
believes that an interim program that does not include minor NSR terms
in title V permits can be designed in such a way that it provides in
advance for the inclusion of minor NSR terms upon transition to full
approval. This can be accomplished by providing that each part 70
permit issued during the interim period contains a condition that
automatically incorporates, at the date of transition to full approval,
the terms and conditions of any minor NSR permits referenced in the
facility's title V permit. This would not simply be cross-referencing,
but would be advance incorporation of the NSR requirements by
reference, which would subject them to title V requirements such as the
requirement for an annual compliance certification. This approach would
provide in advance for a streamlined transition to full approval
without any need for reopening.
The EPA believes that the allowance for more streamlined procedures
for incorporating excluded applicable requirements, together with the
advance incorporation approach described above, provide less burdensome
alternatives to full reopening. Interim programs that exclude minor NSR
are encouraged to adopt one, or a combination, of these streamlined
approaches to assure that title V is met for excluded minor NSR terms
prior to or upon conversion to full approval, thus avoiding the need
for full reopening. However, EPA notes that, in the absence of any
other assurance that Secs. 70.6 (a) and (c) are met for any applicable
requirements, including minor NSR terms, the reopening provisions under
Secs. 70.7 (f) and (g), including full issuance process, would apply if
and when EPA grants full approval, as noted in the preamble to the
proposal.
4. Cross-Referencing of Minor NSR Permits Under Interim Program
The preamble to the proposed revision provided that each part 70
permit issued by an interim program that does not include minor NSR as
an applicable requirement must state that applicable minor NSR
requirements are not included in the permit, and must cross-reference
any excluded minor NSR permits so that citizens may access and review
those permits. One commenter noted that, while the preamble asserts
that such cross-referencing is required, the corresponding rule
language is ambiguous with respect to this requirement. Another
commenter felt that if EPA does require such cross-referencing,
specific criteria regarding what constitutes adequate cross-referencing
should also be provided.
The EPA agrees that there is a need to clarify the rule language
regarding cross-referencing. Therefore, EPA is adding a sentence to the
proposed rule language in Sec. 70.4(d)(3)(ii) to clarify that a
facility's part 70 permit must contain a list of all minor NSR permits
that contain excluded applicable requirements for that facility. Most
States have a numbering system for minor NSR permits, so a listing in
the part 70 permit of the permit numbers for each minor NSR permit
applicable to that facility would fulfill the cross-referencing
requirement.
For similar reasons, EPA is adding language clarifying the proposal
preamble discussion of the permit shield. The preamble stated that the
permit shield would not apply to the excluded minor NSR terms. Rule
language is being added to codify this requirement in parallel with the
other requirements for the interim program.
III. Administrative Requirements
A. Docket
The docket for this regulatory action is number A-93-50. All the
documents referenced in this preamble fall into one of two categories.
They are either reference materials that are considered to be generally
available to the public, or they are memoranda and reports prepared
specifically for this rulemaking. Both types of documents can be found
in docket number A-93-50.
B. Executive Order (E.O.) 12866
Under E.O. 12866 (58 FR 51735, October 4, 1993), the Agency must
determine whether each regulatory action is ``significant,'' and
therefore subject to the Office of Management and Budget (OMB) review
and the requirements of the Order. The Order defines ``significant''
regulatory action as one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
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.
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency.
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan program or the rights and obligation of recipients
thereof.
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
E.O. 12866.
Pursuant to the terms of E.O. 12866, it has been determined that
this rule is not a ``significant'' regulatory action because it does
not substantially change the existing part 70 requirements for States
or sources--requirements which have already undergone OMB review.
Rather than impose any new requirements, this rule removes an
obstruction to part 70 program approval for a small number of State
programs, allowing them to implement their own part 70 programs. In the
absence of today's rule, EPA would implement its part 71 program in
such States, which, as noted in the Information Collection Request
(ICR) for the part 71 rule, would be more burdensome in a given State
than a part 70 program for both the sources and the applicable
permitting authority. Thus, not only does the rule avoid new direct
costs, it leads indirectly to a savings. As such, this action was
exempted from OMB review.
C. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an Agency publishes
any proposed or final rule in the Federal Register, it must prepare a
Regulatory Flexibility Analysis (RFA) that describes the impact of the
rule on small entities (i.e., small businesses, organizations, and
governmental jurisdictions). The EPA has established guidelines which
require an RFA if the proposed rule will have any economic impact,
however small, on any small entities that are subject to the rule, even
though the Agency may not be legally required to develop such an
analysis.
The original part 70 rule was determined to not have a significant
and disproportionate adverse impact on small entities. Similarly, a
regulatory flexibility screening analysis of the
[[Page 31448]]
impacts of the proposed part 70 revisions determined that the proposed
revisions (a subset of which constitutes today's action) would likewise
not have a significant and disproportionate adverse impact on small
entities. Consequently, the Administrator certified that the part 70
regulations would not have a significant and disproportionate impact on
small entities. Because today's rule does not substantially alter the
part 70 regulations as they pertain to small entities, and does not
necessitate changes to the part 70 RFA, these changes to part 70 will
not have a significant and disproportionate impact on small entities,
and a new RFA is not needed for this action.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
E. Paperwork Reduction Act
The OMB has approved the information collection requirements
contained in this rule under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-
0243. The ICR prepared for the part 70 rule is not affected by today's
action because the part 70 ICR determined burden on a nationwide basis,
assuming all part 70 sources were included without regard to the
approval status of individual programs. Today's rule, which simply
provides for the interim approval of certain programs which would have
otherwise not been eligible for such approval, does not alter the
assumptions of the approved part 70 ICR used in determining the burden
estimate. Furthermore, today's action does not impose any additional
requirements which would add to the information collection requirements
for sources or permitting authorities.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques, to:
Director, Regulatory Information Division, Office of Policy, Planning,
and Evaluation (2136), U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460
and
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for EPA, 725 17th Street, NW.,
Washington, DC 20503.
Include the ICR number in any correspondence.
F. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with Federal mandates that may
result in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any 1
year.
The EPA has determined that today's rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector, in any 1 year. Although the part 70 regulations governing State
operating permit programs impose significant Federal mandates, today's
action does not amend the part 70 regulations in a way that
significantly alters the expenditures resulting from these mandates.
Therefore, the Agency concludes that it is not required by section 202
of the UMRA of 1995 to provide a written statement to accompany this
regulatory action.
List of Subjects in 40 CFR Part 70
Environmental protection, Air pollution control, Carbon monoxide,
Fugitive emissions, Hydrocarbons, Lead, New source review, Nitrogen
dioxide, Operating permits, Particulate matter, Prevention of
significant deterioration, Volatile organic.
Dated: June 11, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR part 70 is amended
as follows.
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 70.4 is amended by revising paragraphs (d)(3)
introductory text and (d)(3)(ii) to read as follows:
Sec. 70.4 State program submittals and transition.
* * * * *
(d) * * *
(3) The EPA may grant interim approval to any program if it meets
each of the following minimum requirements and otherwise substantially
meets the requirements of this part:
* * * * *
(ii) Applicable requirements.
(A) The program must provide for adequate authority to issue
permits that assure compliance with the requirements of paragraph
(c)(1) of this section for those major sources covered by the program.
(B) Notwithstanding paragraph (d)(3)(ii)(A) of this section, where
a State or local permitting authority lacks adequate authority to issue
or revise permits that assure compliance with applicable requirements
established exclusively through an EPA-approved minor NSR program, EPA
may grant interim approval to the program upon a showing by the
permitting authority of compelling reasons which support the interim
approval.
(C) Any part 70 permit issued during an interim approval granted
under paragraph (d)(3)(ii)(B) of this section that does not incorporate
minor NSR requirements shall:
(1) Note this fact in the permit;
(2) Indicate how citizens may obtain access to excluded minor NSR
permits;
(3) Provide a cross reference, such as a listing of the permit
number, for each minor NSR permit containing an excluded minor NSR
term; and
(4) State that the minor NSR requirements which are excluded are
not eligible for the permit shield under Sec. 70.6(f).
(D) A program receiving interim approval for the reason specified
in (d)(3)(ii)(B) of this section must, upon or before granting of full
approval, institute proceedings to reopen part 70 permits to
incorporate excluded minor NSR permits as terms of the part 70 permits,
as required by Sec. 70.7(f)(1)(iv). Such reopening need not follow full
permit issuance procedures nor the notice requirement of
Sec. 70.7(f)(3), but may instead follow the permit revision procedure
in effect under the State's
[[Page 31449]]
approved part 70 program for incorporation of minor NSR permits.
* * * * *
[FR Doc. 96-15617 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15616 National Emission Standards for Hazardous Air Pollutants for Source Categories: Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry and Other Processes Subject to the Negotiated Regulation for Equipment Leaks; Clarifications
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31435-31442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15616]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5521-7]
RIN 2060-AC19
National Emission Standards for Hazardous Air Pollutants for
Source Categories: Organic Hazardous Air Pollutants From the Synthetic
Organic Chemical Manufacturing Industry and Other Processes Subject to
the Negotiated Regulation for Equipment Leaks; Clarifications
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule: Amendments.
-----------------------------------------------------------------------
SUMMARY: On April 10, 1995, the EPA proposed amendments to certain
portions of the ``National Emission Standards for Hazardous Air
Pollutants from the Synthetic Organic Chemical Manufacturing Industry
and Other Processes Subject to the Negotiated Regulation for Equipment
Leaks'' (collectively known as the ``hazardous organic NESHAP'' or the
``HON''). This action announces the EPA's final decisions on those
proposed amendments.
The rule is being revised to remove three compounds (glycerol tri-
(polyoxypropylene)ether, polyethylene glycol, and polypropylene glycol)
from the list of chemical production processes regulated by the HON.
The production of these compounds is also included in the source
category ``Polyether Polyols Production'' and will be regulated by that
national emission standards for hazardous air pollutants (NESHAP). The
equipment leak requirements in the rule are also being revised to
clarify the intent of certain provisions, to correct oversights, and to
simplify demonstration of compliance with the regulation. These changes
are being made to ensure that the rule is implemented as intended.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Janet S. Meyer, Coatings and
Consumer Products Group, Emission Standards Division (MD-13), U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711, telephone number (919) 541-5254.
SUPPLEMENTARY INFORMATION:
I. Regulated Entities and Background Information
The regulated category and entities affected by this action
include:
[[Page 31436]]
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry................ Synthetic organic chemical manufacturing
industry (SOCMI) units--e.g., producers of
benzene, toluene, or any other chemical
listed in Table 1 of 40 CFR Part 63, subpart
F.
Styrene-butadiene rubber producers.
Polybutadiene rubber production.
Producers of Captafol;
Captan; Chlorothalonil; Dacthal;
and TordonTM acid.
Producers of Hypalon;
Oxybisphenoxarsine/1,3-diisocyanate
(OBPA); Polycarbonates; Polysulfide
rubber; Chlorinated paraffins; and
Symmetrical tetrachloropyridine.
Pharmaceutical producers.
Producers of Methylmethacrylate-butadiene-
styrene resins (MBS); Butadiene-furfural
cotrimer; Methylmethacrylate-acrylonitrile-
butadiene-styrene (MABS) resins; and
Ethylidene norbornene.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be interested in the
revisions to the regulation affected by this action. Entities
potentially regulated by the HON are those which produce as primary
intended products any of the chemicals listed in Table 1 of 40 CFR Part
63, subpart F and are located at facilities that are major sources as
defined in Section 112 of the Clean Air Act (CAA). Processes subject to
the negotiated regulation for equipment leaks are also potentially
affected by this action. Processes subject to 40 CFR Part 63, subpart I
are producers of any of the products listed in 40 CFR Part 63, subpart
I that are located at facilities that are major sources as defined by
Section 112 of the CAA. To determine whether your facility is regulated
by this action, you should carefully examine all of the applicability
criteria in 40 CFR Sec. 63.100 and 40 CFR Sec. 63.190. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
On April 22, 1994 (59 FR 19402), and June 6, 1994 (59 FR 29196),
the EPA promulgated in the Federal Register the NESHAP for the SOCMI,
and for several other processes subject to the equipment leaks portion
of the rule. These regulations were promulgated as subparts F, G, H,
and I in 40 CFR Part 63, and are commonly referred to as the hazardous
organic NESHAP, or the HON. Since the April 22, 1994 notice, there have
been several amendments to clarify various aspects of the rule. Readers
should see the following Federal Register notices for more information:
September 20, 1994 (59 FR 48175); October 24, 1994 (59 FR 53359);
October 28, 1994 (59 FR 54131); January 27, 1995 (60 FR 5321); April
10, 1995 (60 FR 18020); April 10, 1995 (60 FR 18026); December 12, 1995
(60 FR 63624); and February 29, 1996 (61 FR 7716).
On April 10, 1995 (60 FR 18071-18078), the EPA also proposed to
remove three compounds from the list of chemical production processes
regulated by the rule as well as proposed clarifying changes and
corrections to certain provisions in subparts H and I. This action
announces the EPA's final decisions on those proposed amendments.
II. Public Comment on the April 10, 1995 Proposal
Nine comment letters were received on the April 10, 1995 notice of
proposed changes to the rule. All comment letters received were from
industry representatives, and were supportive of the proposed changes
to subparts H and I. A few comment letters also included
recommendations for further clarification of some of the proposed
amendments or expansion of compliance options. The EPA considered these
suggestions and, where appropriate, made changes to the proposed
amendments. The significant issues raised and the changes to the
proposed amendments are summarized in this preamble. A memorandum
containing the EPA's responses to all comments can be found in Docket
A-90-20, subcategory VI-B. The response to comments may also be
obtained from the EPA's Technology Transfer Network (TTN), a network of
electronic bulletin boards developed and operated by the Office of Air
Quality Planning and Standards. The service is free, except for the
cost of a phone call. Dial (919) 541-5742 for up to a 14,400 bits per
second modem. Select TTN Bulletin Board: Clean Air Act Amendments and
select menu item Recently Signed Rules. If more information on TTN is
needed, contact the systems operator at (919) 541-5384.
III. Summary of Amendments to Rule
A. Removal of Polyols From Table 1 of Subpart F
The EPA is removing three chemicals--glycerol tri-
(polyoxypropylene)ether, polyethylene glycol, and polypropylene
glycol--from the list of SOCMI chemicals, located in Table 1 of 40 CFR
Part 63, subpart F. These production processes will be addressed under
the NESHAP for the polyether polyols production source category.
B. Changes to Subpart H
1. Consolidation of Equipment Leak Programs
The EPA is amending subpart H by adding a new paragraph
Sec. 63.160(c), which will allow an owner or operator to elect to
comply with subpart H for all volatile organic compounds (VOC)
containing process equipment in the process unit in lieu of compliance
with other Federal equipment leak regulations. This option is available
for equipment subject to 40 CFR Part 60 subparts VV, GGG, or KKK, to 40
CFR Part 61 subparts F or J, or to 40 CFR Part 264 subpart BB or Part
265 subpart BB.
2. Sampling Connection Systems
Section 63.166 is amended to allow treatment of collected purge
material: (1) At permitted treatment, storage, or disposal facilities
(TSDF); (2) at solid waste treatment facilities; or (3) using waste
management units complying with Secs. 63.133 through 63.138 of subpart
G of Part 63 when the purge material contains any of the chemicals
listed in Table 9 of 40 CFR Part 63, subpart G. The final Sec. 63.166
also clarifies that if the purge material does not contain any of the
compounds listed in Table 9 of subpart G, then the owner or operator
may use any waste management unit regardless of whether the unit is in
compliance with the requirements of Secs. 63.133 through 63.138 as long
as the facility has a national pollution discharge elimination system
(NPDES) permit or sends the wastewater to a NPDES permitted facility.
The EPA is also adding to Sec. 63.161 a definition for the term
``sampling connection system.''
3. Less Frequent Monitoring of Valves in Phase III
The proposed provisions to allow use of data collected before April
22, 1994 are being added to Sec. 63.168 and Sec. 63.174. The final
amendments also
[[Page 31437]]
add a new paragraph Sec. 63.180(b)(6) that allows use of data collected
before April 22, 1994 and clarifies that this data may have minor
deviations from the requirements in Sec. 63.180 (b)(1) through (b)(5).
The conditions for allowance of data that do not meet the criteria of
Sec. 63.180 (b)(1) through (b)(5) are specified in Sec. 63.180
(b)(6)(i) and (b)(6)(ii).
4. Flow Indicators
The EPA is amending subpart H by adding a definition for ``flow
indicator'' and by revising paragraph (j)(1) of Sec. 63.172. These
revisions expand the definition of flow indicator to include reference
to devices that do not measure flow and remove the reference to the
presence of flow from the by-pass monitoring requirement.
5. Safety Issues With Sec. 63.163 and Sec. 63.167
The proposed exemptions are being added to the final rule without
change. Pumps in unsafe locations will be exempt from routine
monitoring requirements, but are required to be monitored during safe-
to-monitor periods. Pumps that are unsafe-to-monitor are pumps that are
located in an area that presents an imminent danger to personnel due to
the presence of toxic materials, explosive process conditions, or high
pressure. Open-ended lines or valves containing materials that
represented a safety or explosion hazard are exempt from the
requirement to equip the line with a cap or plug.
6. Inaccessible and Difficult-to-Monitor Agitators
Provisions are being added to subpart H to exempt inaccessible and
unsafe-to-monitor agitators from monitoring requirements and to provide
consideration for difficult-to-monitor agitators. Recordkeeping
requirements for difficult-to-monitor and unsafe-to-monitor equipment
are added to Sec. 63.181(b)(7).
7. Porcelain Connectors
Section 63.174(h)(1) is revised to refer to the more generic
terminology ``ceramic or ceramic-lined'' connectors instead of glass or
glass-lined connectors.
8. Pressure Test for Batch Process Equipment
The EPA is revising Sec. 63.180(f)(1) to allow pressurization of
equipment to less than the set pressure of any pressure relief device
or to within the safety limits of the operating equipment. The EPA is
also adding provisions to Sec. 63.180(f)(4) to allow alternative
procedures for cases where a pressure gauge with a precision of
2.5 milimeters mercury in the range of the test pressure
is not reasonably available. For those cases, the new provision in
Sec. 63.180 (f)(4) allows the use of a pressure gauge with a precision
of 10 percent of the test pressure and extends the
duration of the test for the time necessary to detect a pressure loss
(or rise) that equals a rate of one pressure per square inch gauge per
hour (psig/hr).
9. Clarification of Calibration Requirements for Instrument Monitoring
Several editorial revisions were proposed to clarify the instrument
calibration requirements specified in Secs. 63.180 (b)(2) and
(b)(4)(iii). In addition to the proposed changes, these revisions also
clarify that an owner or operator need only calibrate those instrument
scales that will be used in the monitoring.
C. Changes to Subpart I
1. Notification and Compliance Dates for Process Changes
The EPA is amending subpart I to specify procedures to establish
compliance dates for additions of equipment to units subject to subpart
I as well as to specify compliance dates for process units or equipment
affected by operational changes. These provisions are being added as
Secs. 63.190 (g)(3), (g)(4), and (j).
2. Definitions
The EPA is adding definitions for the terms ``process unit'',
``source'', and ``bench-scale batch process.'' The definition for
``pharmaceutical production process'' is revised to clarify that
solvent recovery operations and waste treatment operations are not
subject to the provisions of subpart I.
The EPA is also adding a new provision to Sec. 63.192, as paragraph
(a)(2), to allow owners or operators of pharmaceutical production
processes the option to designate all equipment in a building or
structure as a process unit or to designate all equipment at the source
as the process unit. The owner or operator may still define a process
unit as the equipment used to produce a specific set of pharmaceutical
intermediate or final products.
3. Bench-Scale Batch Process Equipment
The EPA is revising Sec. 63.190(f) of subpart I to clarify that
bench-scale batch processes are not subject to the provisions of
subparts I or H. This exemption is also being added to subpart H in
Sec. 63.160 (f).
III. Summary of Major Comments and Changes to the Proposed
Amendments
A. Consolidation of Equipment Leak Programs
One commenter suggested that the EPA allow consolidation of
equipment leak programs promulgated under the Resource Conservation and
Recovery Act (RCRA) air standards (40 CFR Part 264 subparts AA, BB, and
CC and 40 CFR Part 265 subparts AA, BB, and CC) with the equipment leak
programs required under the CAA in addition to Part 60, subparts VV,
GGG, and KKK, and Part 61 subparts F and J as proposed. The commenter
stated that at their facilities the same personnel conduct the leak
detection and repair programs, regardless of whether the program is
required by RCRA or the CAA. Consolidating those regulatory programs
would reduce the compliance burden without reducing protection of the
environment.
The EPA revised proposed Sec. 63.160 (c) to allow an owner or
operator to elect to comply with subpart H for all VOC containing
equipment in lieu of compliance with 40 CFR Part 264 subpart BB or 40
CFR Part 265 subpart BB in addition to the proposed subparts in Parts
60 and 61. The RCRA equipment leak standards were based on the
equipment leak standards developed under Sections 111 and 112 of the
CAA. The two RCRA equipment leak standards were drafted to incorporate
the provisions in 40 CFR Part 60 subpart VV. This was done to eliminate
cross-referencing and to consolidate the RCRA requirements in Parts 264
and 265. Thus, there is no substantive difference between the RCRA and
CAA equipment leak standards, and allowing compliance with subpart H
reduces burden and complexity without reducing environmental
protection.
B. Sampling Connection Systems
Two commenters suggested clarification of the proposed provisions
to expand the compliance options for sampling connection systems. One
commenter requested clarification of whether purged material had to be
sent directly to a treatment facility or if temporary storage at an
accumulation site subject to 40 CFR Part 262 would be permissible.
Another commenter was concerned that purges of certain materials would
have to be treated as if they were process wastewater, yet if these
purges were evaluated as process wastewater there would be no
requirement to control them. This
[[Page 31438]]
commenter noted that requiring control of materials not regulated in
the wastewater provisions appears to go beyond the intent of the rule.
The EPA revised the wording in Sec. 63.166 (b)(4) to clarify that
material may be stored before it is transferred to a permitted TSDF.
The EPA agrees that, as drafted, the proposed language could have been
misconstrued to forbid temporary storage of the purged material. The
EPA also agrees with the second commenter's concern that, for some
chemicals, it is not appropriate to require that the purged material be
managed in waste management units subject to the requirements in
Secs. 63.133 through 63.138. The provisions in Sec. 63.166(b)(4)(i)
were revised to clarify that purge materials that do not contain any of
the chemicals listed in Table 9 of subpart G are not required to be
managed and treated in units in compliance with Secs. 63.133 through
63.138 as long as the facility has an NPDES permit or sends the
wastewater to an NPDES permitted facility. The requirement that the
wastewater go to an NPDES permitted facility is being imposed to ensure
that this provision does not result in increased pollution in another
media and is therefore consistent with the requirement of Section
112(d)(2) that standards be set taking nonair quality effects into
account.
C. Process Unit Definition for Subpart I
One commenter expressed concerns with the proposed definition of
the term ``process unit'' as applied to pharmaceutical processes
subject to subpart I. The commenter stated that the concept of process
unit is not particularly appropriate for the pharmaceutical industry
because most pharmaceutical operations do not fit the conceptual
design. This commenter identified three areas where the concept was
unclear and presented implementation problems. The first source of
ambiguity cited by the commenter was that the term ``process unit'' is
defined as a fixed set of equipment used to manufacture a product. The
commenter noted that a flexible pharmaceutical operation may produce
numerous products in a year and that the boundaries of the process unit
could vary from week to week depending on what product is being made.
The commenter suggested that the EPA address this problem by revising
the definition of pharmaceutical process unit to be a set of equipment
that manufactures one or more pharmaceutical intermediates or final
products. The second ambiguity noted by the commenter was that
equipment in pharmaceutical production may not be connected by pipes or
ducts; materials may be transferred in closed containers. The commenter
suggested that the EPA revise the definition of process unit to include
all equipment collocated in the same building or structure, regardless
of whether the equipment is connected by pipes or ducts. The third
ambiguity cited by the commenter occurs in application of the proposed
definition of ``process unit'' to a plant site with several buildings
all served by a single solvent storage facility. The commenter
questioned whether multiple process units served by a common solvent
distribution system would be considered to be a single process unit.
The commenter requested that the EPA clarify the relationship between
the solvent distribution system and the process unit.
Since publication of the April 10, 1995 proposal, the EPA has
received additional information, through the public comment process, on
the diversity of operations and equipment used in pharmaceutical
production. Considering this information, the EPA believes that
additional options for definition of a process unit are necessary to
permit efficient management of equipment leak programs at
pharamceutical processes and to reflect actual design of facilities.
Therefore, several changes were made to the proposed provisions. First,
the definition of ``process unit'' was revised to eliminate the
reference to pipes and ducts as the means for connecting equipment.
Second, a new provision was added to Sec. 63.192 (as paragraph (a)(2))
that will allow an owner or operator of a pharmaceutical production
process several alternatives for defining a process unit for purposes
of compliance with subpart I. The new provisions allow a pharmaceutical
production process owner or operator to define the process unit as the
equipment dedicated to the production of one or more products, as all
operations located within a building or structure, or as all operations
within a source. This change does not revise any control requirements
for pharmaceutical processes. This change will provide the flexibility
necessary for development of workable equipment leak programs for
pharmaceutical processes. Third, the definition for pharmaceutical
production process was revised to clarify that the process may make one
or more pharmaceutical intermediate or final products. This additional
flexibility was limited to pharmaceutical processes because that was
the only category where the EPA has information that indicates this
flexibility is necessary.
V. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements of the previously
promulgated NESHAP were submitted to and approved by the Office of
Management and Budget (OMB). A copy of this Information Collection
Request (ICR) document (OMB control number 1414.02) may be obtained
from Sandy Farmer, Information Policy Branch (2136); U.S. Environmental
Protection Agency; 401 M Street, SW; Washington, DC 20460 or by calling
(202) 260-2740.
Today's changes to the NESHAP should have no impact on the
information collection burden estimates made previously. The changes
consist of new definitions, alternative test procedures, and
clarifications of requirements; not additional requirements.
Consequently, the ICR has not been revised.
B. Executive Order 12866 Review
Under Executive Order 12866, the EPA must determine whether the
proposed regulatory action is ``not significant'' and therefore,
subject to the OMB review and the requirements of the Executive Order.
The Order defines ``significant'' regulatory action as one that is
likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The HON rule promulgated on April 22, 1994 was considered
``significant'' under Executive Order 12866 and a regulatory impact
analysis (RIA) was prepared. The amendments issued today clarify the
rule and do not add any additional control requirements. Therefore,
this regulatory action is considered not significant.
C. Regulatory Flexibility Act
Consistent with the Regulatory Flexibility Act of 1980, EPA
considers
[[Page 31439]]
the potentially adverse impacts of its regulations upon small business
entities. Because this rulemaking imposes no adverse economic impacts,
a regulatory flexibility analysis has not been prepared.
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
E. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), the EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate; or to the private sector, of $100
million or more. Under Section 205, the EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that the action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: June 11, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, Title 40, Chapter I, part
63, subparts F, H and I, of the Code of Federal Regulations are amended
as follows:
PART 63--[AMENDED]
1. The authority citation for Part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart F--National Emission Standards for Organic Hazardous Air
Pollutants From the Synthetic Organic Chemical Manufacturing
Industry
Table 1 of Subpart F--[Amended]
2. Table 1 of subpart F is amended by removing the entries for
``Glycerol tri-(polyoxypro-pylene)ether,'' ``Polyethylene glycol,'' and
``Polypropylene glycol'' and their associated chemical abstract service
number and group number.
Subpart H--National Emission Standards for Organic Hazardous Air
Pollutants for Equipment Leaks
3. Section 63.160 is amended by adding paragraphs (c) and (f) to
read as follows:
Sec. 63.160 Applicability and designation of source.
* * * * *
(c) If a process unit subject to the provisions of this subpart has
equipment to which this subpart does not apply, but which is subject to
a standard identified in paragraph (c)(1), (c)(2), or (c)(3) of this
section, the owner or operator may elect to apply this subpart to all
such equipment in the process unit. If the owner or operator elects
this method of compliance, all VOC in such equipment shall be
considered, for purposes of applicability and compliance with this
subpart, as if it were organic hazardous air pollutant (HAP).
Compliance with the provisions of this subpart, in the manner described
in this paragraph, shall be deemed to constitute compliance with the
standard identified in paragraph (c)(1), (c)(2), or (c)(3) of this
section.
(1) 40 CFR part 60, subpart VV, GGG, or KKK; (2) 40 CFR part 61,
subpart F or J; or (3) 40 CFR part 264, subpart BB or 40 CFR part 265,
subpart BB.
* * * * *
(f) The provisions of this subpart do not apply to research and
development facilities or to bench-scale batch processes, regardless of
whether the facilities or processes are located at the same plant site
as a process subject to the provisions of this subpart.
4. Section 63.161 is amended by adding in alphabetical order the
definitions ``bench-scale batch process,'' ``flow indicator,'' and
``sampling connection system'' to read as follows:
Sec. 63.161 Definitions.
* * * * *
Bench-scale batch process means a batch process (other than a
research and development facility) that is operated on a small scale,
such as one capable of being located on a laboratory bench top. This
bench-scale equipment will typically include reagent feed vessels, a
small reactor and associated product separator, recovery and holding
equipment. These processes are only capable of producing small
quantities of product.
* * * * *
Flow indicator means a device which indicates whether gas flow is,
or whether the valve position would allow gas flow to be, present in a
line.
* * * * *
Sampling connection system means an assembly of equipment within a
process unit used during periods of representative operation to take
samples of the process fluid. Equipment used to take non-routine grab
samples is not considered a sampling connection system.
* * * * *
5. Section 63.163 is amended by adding paragraph (j) to read as
follows:
Sec. 63.163 Standards: Pumps in light liquid service.
* * * * *
(j) Any pump that is designated, as described in
Sec. 63.181(b)(7)(i) of this subpart, as an unsafe-to-monitor pump is
exempt from the requirements of paragraphs (b) through (e) of this
section if:
(1) The owner or operator of the pump determines that the pump is
unsafe to monitor because monitoring personnel would be exposed to an
immediate danger as a consequence of complying with paragraphs (b)
through (d) of this section; and
(2) The owner or operator of the pump has a written plan that
requires monitoring of the pump as frequently as practical during safe-
to-monitor times, but not more frequently than the periodic monitoring
schedule otherwise applicable.
6. Section 63.166 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 63.166 Standards: Sampling connection systems.
(a) Each sampling connection system shall be equipped with a
closed-purge, closed-loop, or closed-vent system, except as provided in
Sec. 63.162(b) of this subpart. Gases displaced during filling of the
sample container are not required to be collected or captured.
[[Page 31440]]
(b) Each closed-purge, closed-loop, or closed-vent system as
required in paragraph (a) of this section shall:
(1) Return the purged process fluid directly to the process line;
or
(2) Collect and recycle the purged process fluid to a process; or
(3) Be designed and operated to capture and transport the purged
process fluid to a control device that complies with the requirements
of Sec. 63.172 of this subpart; or
(4) Collect, store, and transport the purged process fluid to a
system or facility identified in paragraph (b)(4)(i), (ii), or (iii) of
this section.
(i) A waste management unit as defined in Sec. 63.111 of subpart G
of this part, if the waste management unit is subject to, and operated
in compliance with the provisions of subpart G of this part applicable
to group 1 wastewater streams. If the purged process fluid does not
contain any organic HAP listed in Table 9 of subpart G of part 63, the
waste management unit need not be subject to, and operated in
compliance with the requirements of 40 CFR part 63, subpart G
applicable to group 1 wastewater streams provided the facility has an
NPDES permit or sends the wastewater to an NPDES permitted facility.
(ii) A treatment, storage, or disposal facility subject to
regulation under 40 CFR part 262, 264, 265, or 266; or
(iii) A facility permitted, licensed, or registered by a State to
manage municipal or industrial solid waste, if the process fluids are
not hazardous waste as defined in 40 CFR part 261.
* * * * *
7. Section 63.167 is amended by revising paragraph (a)(1) and by
adding paragraph (e) to read as follows:
Sec. 63.167 Standards: Open-ended valves or lines.
(a)(1) Each open-ended valve or line shall be equipped with a cap,
blind flange, plug, or a second valve, except as provided in
Sec. 63.162(b) of this subpart and paragraphs (d) and (e) of this
section.
* * * * *
(e) Open-ended valves or lines containing materials which would
autocatalytically polymerize or, would present an explosion, serious
overpressure, or other safety hazard if capped or equipped with a
double block and bleed system as specified in paragraphs (a) through
(c) of this section are exempt from the requirements of paragraph (a)
through (c) of this section.
8. Section 63.168 is amended by adding a new paragraph (a)(3) to
read as follows:
Sec. 63.168 Standards: Valves in gas/vapor service and in light liquid
service.
(a) * * *
(3) The use of monitoring data generated before April 22, 1994 to
qualify for less frequent monitoring is governed by the provisions of
Sec. 63.180(b)(6) of this subpart.
* * * * *
9. Section 63.172 is amended by revising the first sentence of
paragraph (j)(1) to read as follows:
Sec. 63.172 Standards: Closed-vent systems and control devices.
* * * * *
(j) * * *
(1) Install, set or adjust, maintain, and operate a flow indicator
that takes a reading at least once every 15 minutes. * * *
* * * * *
10. Section 63.173 is amended by adding paragraphs (h), (i) and (j)
to read as follows:
Sec. 63.173 Standards: Agitators in gas/vapor service and in light
liquid service.
* * * * *
(h) Any agitator that is difficult-to-monitor is exempt from the
requirements of paragraphs (a) through (d) of this section if:
(1) The owner or operator determines that the agitator cannot be
monitored without elevating the monitoring personnel more than two
meters above a support surface or it is not accessible at anytime in a
safe manner;
(2) The process unit within which the agitator is located is an
existing source or the owner or operator designates less than three
percent of the total number of agitators in a new source as difficult-
to-monitor; and
(3) The owner or operator follows a written plan that requires
monitoring of the agitator at least once per calendar year.
(i) Any agitator that is obstructed by equipment or piping that
prevents access to the agitator by a monitor probe is exempt from the
monitoring requirements of paragraphs (a) through (d) of this section.
(j) Any agitator that is designated, as described in
Sec. 63.181(b)(7)(i) of this subpart, as an unsafe-to-monitor agitator
is exempt from the requirements of paragraphs (b) through (d) of this
section if:
(1) The owner or operator of the agitator determines that the
agitator is unsafe to monitor because monitoring personnel would be
exposed to an immediate danger as a consequence of complying with
paragraphs (a) through (d) of this section; and
(2) The owner or operator of the agitator has a written plan that
requires monitoring of the agitator as frequently as practical during
safe-to-monitor times, but not more frequently than the periodic
monitoring schedule otherwise applicable.
11. Section 63.174 is revised by adding a new paragraph (b)(4) and
by revising the first sentence of paragraph (h)(1) introductory text to
read as follows:
Sec. 63.174 Standards: Connectors in gas/vapor service and in light
liquid service.
* * * * *
(b) * * *
(4) The use of monitoring data generated before April 22, 1994 to
qualify for less frequent monitoring is governed by the provisions of
Sec. 63.180(b)(6).
* * * * *
(h)(1) Any connector that is inaccessible or is ceramic or ceramic-
lined (e.g., porcelain, glass, or glass-lined), is exempt from the
monitoring requirements of paragraphs (a) and (c) of this section and
from the recordkeeping and reporting requirements of Sec. 63.181 and
Sec. 63.182 of this subpart. * * *
* * * * *
12. Section 63.180 is amended by redesignating paragraph (b)(2) as
(b)(2)(i) and revising the first sentence of newly designated paragraph
(b)(2)(i), by adding a paragraph (b)(2)(ii), by revising paragraph
(b)(4)(iii), by revising paragraph (b)(6), by revising paragraph
(f)(1), and by adding a sentence to the end of paragraph (f)(4) to read
as follows:
Sec. 63.180 Test methods and procedures.
* * * * *
(b) * * *
(2)(i) Except as provided for in paragraph (b)(2)(ii) of this
section, the detection instrument shall meet the performance criteria
of Method 21 of 40 CFR part 60, appendix A, except the instrument
response factor criteria in Section 3.1.2(a) of Method 21 shall be for
the average composition of the process fluid not each individual VOC in
the stream. * * *
(ii) If no instrument is available at the plant site that will meet
the performance criteria specified in paragraph (b)(2)(i) of this
section, the instrument readings may be adjusted by multiplying by the
average response factor of the process fluid, calculated on an inert-
free basis as described in paragraph (b)(2)(i) of this section.
* * * * *
(4) * * *
(iii) The instrument may be calibrated at a higher methane
concentration than the concentration specified for that piece of
equipment. The concentration
[[Page 31441]]
of the calibration gas may exceed the concentration specified as a leak
by no more than 2,000 parts per million. If the monitoring instrument's
design allows for multiple calibration scales, then the lower scale
shall be calibrated with a calibration gas that is no higher than 2,000
parts per million above the concentration specified as a leak and the
highest scale shall be calibrated with a calibration gas that is
approximately equal to 10,000 parts per million. If only one scale on
an instrument will be used during monitoring, the owner or operator
need not calibrate the scales that will not be used during that day's
monitoring.
* * * * *
(6) Monitoring data that do not meet the criteria specified in
paragraphs (b)(1) through (b)(5) of this section may be used to qualify
for less frequent monitoring under the provisions in Sec. 63.168(d)(2)
and (d)(3) or Sec. 63.174(b)(3)(ii) or (b)(3)(iii) of this subpart
provided the data meet the conditions specified in paragraphs (b)(6)(i)
and (b)(6)(ii) of this section.
(i) The data were obtained before April 22, 1994.
(ii) The departures from the criteria specified in paragraphs
(b)(1) through (b)(5) of this section or from the specified monitoring
frequency of Sec. 63.168(c) are minor and do not significantly affect
the quality of the data. Examples of minor departures are monitoring at
a slightly different frequency (such as every six weeks instead of
monthly or quarterly), following the performance criteria of section
3.1.2(a) of Method 21 of appendix A of 40 CFR part 60 instead of
paragraph (b)(2) of this section, or monitoring at a different leak
definition if the data would indicate the presence or absence of a leak
at the concentration specified in this subpart. Failure to use a
calibrated instrument is not considered a minor departure.
* * * * *
(f) * * *
(1) The batch product-process equipment train shall be pressurized
with a gas to a pressure less than the set pressure of any safety
relief devices or valves or to a pressure slightly above the operating
pressure of the equipment, or alternatively, the equipment shall be
placed under a vacuum.
* * * * *
(4) * * * If such a pressure measurement device is not reasonably
available, the owner or operator shall use a pressure measurement
device with a precision of at least +10 percent of the test pressure of
the equipment and shall extend the duration of the test for the time
necessary to detect a pressure loss or rise that equals a rate of one
psig per hour.
* * * * *
13. Section 63.181 is amended by revising the introductory text in
paragraph (b)(7) and by revising paragraph (b)(7)(ii) to read as
follows:
Sec. 63.181 Recordkeeping requirements.
* * * * *
(b) * * *
(7) The following information pertaining to all pumps subject to
the provisions of Sec. 63.163(j), valves subject to the provisions of
Sec. 63.168(h) and (i) of this subpart, agitators subject to the
provisions of Sec. 63.173(h) through (j), and connectors subject to the
provisions of Sec. 63.174(f) through (h) of this subpart shall be
recorded:
* * * * *
(ii) A list of identification numbers for the equipment that is
designated as difficult to monitor, an explanation of why the equipment
is difficult to monitor, and the planned schedule for monitoring this
equipment.
* * * * *
Subpart I--National Emission Standards for Organic Hazardous Air
Pollutants for Certain Processes Subject to the Negotiated
Regulation for Equipment Leaks
14. Section 63.190 is amended by revising paragraph (f), paragraphs
(g)(1) introductory text and (g)(2) introductory text, by adding
paragraphs (g)(3) and (g)(4), and by adding a new paragraph (j) to read
as follows:
Sec. 63.190 Applicability and designation of source.
* * * * *
(f) The provisions of subparts I and H of this part do not apply to
research and development facilities or to bench-scale batch processes,
regardless of whether the facilities or processes are located at the
same plant site as a process subject to the provisions of subpart I and
H of this part.
(g)(1) If an additional process unit specified in paragraph (b) of
this section is added to a plant site that is a major source as defined
in Section 112(a) of the CAA, the addition shall be subject to the
requirements for a new source in subparts H and I of this part if:
* * * * *
(2) If any change is made to a process subject to this subpart, the
change shall be subject to the requirements for a new source in
subparts H and I of this part if:
* * * * *
(3) If an additional process unit is added to a plant site or a
change is made to a process unit and the addition or change is
determined to be subject to the new source requirements according to
paragraphs (g)(1) or (g)(2) of this section:
(i) The new or reconstructed source shall be in compliance with the
new source requirements of subparts H and I of this part upon initial
start-up of the new or reconstructed source or by April 22, 1994,
whichever is later; and
(ii) The owner or operator of the new or reconstructed source shall
comply with the reporting and recordkeeping requirements in subparts H
and I of this part that are applicable to new sources. The applicable
reports include, but are not limited to:
(A) Reports required by Sec. 63.182(b), if not previously
submitted, Sec. 63.182 (c) and (d) of subpart H of this part; and
(B) Reports and notifications required by sections of subpart A of
this part that are applicable to subparts H and I of this part, as
identified in Sec. 63.192(a) of this subpart.
(4) If an additional process unit is added to a plant site, if a
surge control vessel or bottoms receiver becomes subject to Sec. 63.170
of subpart H, or if a compressor becomes subject to Sec. 63.164 of
subpart H, and if the addition or change is not subject to the new
source requirements as determined according to paragraphs (g)(1) or
(g)(2) of this section, the requirements in paragraphs (g)(4)(i)
through (g)(4)(iii) of this section shall apply. Examples of process
changes include, but are not limited to, changes in production
capacity, feedstock type, or catalyst type, or whenever there is
replacement, removal, or addition of recovery equipment. For purposes
of this paragraph, process changes do not include: process upsets,
unintentional temporary process changes, and changes that are within
the equipment configuration and operating conditions documented in the
Notification of Compliance Status required by Sec. 63.182(c) of subpart
H of this part.
(i) The added emission point(s) and any emission point(s) within
the added or changed process unit are subject to the requirements of
subparts H and I of this part for an existing source;
(ii) The added emission point(s) and any emission point(s) within
the added or changed process unit shall be in compliance with subparts
H and I of this part by the dates specified in paragraphs (g)(4)(ii)(A)
or (g)(4)(ii)(B) of this section, as applicable.
(A) If a process unit is added to a plant site or an emission
point(s) is added to an existing process unit, the
[[Page 31442]]
added process unit or emission point(s) shall be in compliance upon
initial start-up of the added process unit or emission point(s) or by
April 22, 1997, whichever is later.
(B) If a surge control vessel or bottoms receiver becomes subject
to Sec. 63.170 of subpart H, if a compressor becomes subject to
Sec. 63.164 of subpart H, or if a deliberate operational process change
causes equipment to become subject to subpart H of this part, the owner
or operator shall be in compliance upon initial start-up or by April
22, 1997, whichever is later, unless the owner or operator demonstrates
to the Administrator that achieving compliance will take longer than
making the change. The owner or operator shall submit to the
Administrator for approval a compliance schedule, along with a
justification for the schedule. The Administrator shall approve the
compliance schedule or request changes within 120 calendar days of
receipt of the compliance schedule and justification.
(iii) The owner or operator of a process unit or emission point
that is added to a plant site and is subject to the requirements for
existing sources shall comply with the reporting and recordkeeping
requirements of subparts H and I of this part that are applicable to
existing sources, including, but not limited to, the reports listed in
paragraphs (g)(4)(iii)(A) and (g)(4)(iii)(B) of this section.
(A) Reports required by Sec. 63.182 of subpart H of this part; and
(B) Reports and notifications required by sections of subpart A of
this part that are applicable to subparts H and I of this part, as
identified in Sec. 63.192(a) of this subpart.
* * * * *
(j) If a change that does not meet the criteria in paragraph (g)(4)
of this section is made to a process unit subject to subparts H and I
of this part, and the change causes equipment to become subject to the
provisions of subpart H of this part, then the owner or operator shall
comply with the requirements of subpart H of this part for the
equipment as expeditiously as practical, but in no event later than
three years after the equipment becomes subject.
(1) The owner or operator shall submit to the Administrator for
approval a compliance schedule, along with a justification for the
schedule.
(2) The Administrator shall approve the compliance schedule or
request changes within 120 calendar days of receipt of the compliance
schedule and justification.
15. Section 63.191(b) is amended by adding in alphabetical order
definitions for ``bench-scale batch process,'' ``process unit,'' and
``source'' to paragraph (b) and revising the definition of
``pharmaceutical production process'' to read as follows:
Sec. 63.191 Definitions.
(b) * * *
Bench-scale batch process means a batch process (other than a
research and development facility) that is operated on a small scale,
such as one capable of being located on a laboratory bench top. This
bench-scale equipment will typically include reagent feed vessels, a
small reactor and associated product separator, recovery and holding
equipment. These processes are only capable of producing small
quantities of product.
* * * * *
Pharmaceutical production process means a process that synthesizes
one or more pharmaceutical intermediate or final products using carbon
tetrachloride or methylene chloride as a reactant or process solvent.
Pharmaceutical production process does not mean process operations
involving formulation activities, such as tablet coating or spray
coating of drug particles, or solvent recovery or waste management
operations.
* * * * *
Process Unit means the group of equipment items used to process raw
materials and to manufacture a product. For the purposes of this
subpart, process unit includes all unit operations and associated
equipment (e.g., reactors and associated product separators and
recovery devices), associated unit operations (e.g., extraction
columns), any feed and product storage vessels, and any transfer racks
for distribution of final product.
* * * * *
Source means the collection of equipment listed in Sec. 63.190(d)
to which this subpart applies as determined by the criteria in
Sec. 63.190. For purposes of subparts H and I of this part, the term
affected source as used in subpart A of this part has the same meaning
as the term source defined here.
* * * * *
16. Section 63.192 is amended by redesignating paragraph (a) as
(a)(1) and by adding paragraph (a)(2) to read as follows:
Sec. 63.192 Standard.
(a)(1) * * *
(2) The owner or operator of a pharmaceutical production process
subject to this subpart may define a process unit as a set of
operations, within a source, producing a product, as all operations
collocated within a building or structure or as all affected operations
at the source.
* * * * *
[FR Doc. 96-15616 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15566 Oral Dosage Form New Animal Drugs; Neomycin Sulfate Oral Solution
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31397-31398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15566]
-----------------------------------------------------------------------
21 CFR Part 520
Oral Dosage Form New Animal Drugs; Neomycin Sulfate Oral Solution
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of an abbreviated new animal drug
application (ANADA) filed by Rhone Merieux, Inc. The ANADA provides for
the use of a generic neomycin sulfate oral solution in drinking water
or in milk for cattle (excluding veal calves), swine, sheep, and goats
for the treatment and control of colibacillosis.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for
Veterinary Medicine (HFV-135), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1643.
SUPPLEMENTARY INFORMATION: Rhone Merieux, Inc., 7101 College Blvd.,
Overland Park, KS 66210, filed ANADA 200-153, which provides for the
use of neomycin sulfate oral solution in drinking water or in milk of
cattle (excluding veal calves), swine, sheep, and goats for the
treatment and control of colibacillosis (bacterial scours) caused by
Escherichia coli susceptible to neomycin. ANADA 200-153 is approved as
a generic copy of The Upjohn Co.'s NADA 11-035. The ANADA is approved
as of May 8, 1996, and the regulations are amended in 21 CFR
520.1485(b) and (d)(3) to reflect the approval. The basis for approval
is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of part 20
(21
[[Page 31398]]
CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
List of Subjects in 21 CFR Part 520
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is
amended as follows:
PART 520--ORAL DOSAGE FORM NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 520 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
2. Section 520.1485 is amended by revising paragraph (b) and the
last sentence of paragraph (d)(3) to read as follows:
Sec. 520.1485 Neomycin sulfate oral solution.
*- * * * *
(b) Sponsors. See Nos. 000009, 050604, and 059130 in
Sec. 510.600(c) of this chapter.
* * * * * -
(d) * * *
(3) * * * Discontinue treatment prior to slaughter as follows: For
sponsors 000009 and 059130: 30 days for cattle and goats, and 20 days
for swine and sheep; for sponsor 050604: 1 day for cattle (not for use
in veal calves), 2 days for sheep, and 3 days for swine and goats.
Dated: June 10, 1996.
Shephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-15566 Filed 6-19-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-15564 Excess Flow ValvePerformance Standards
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31449-31459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15564]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 192
[Docket No. PS-118; Amendment 192-79]
RIN 2137-AB97
Excess Flow Valve--Performance Standards
AGENCY: Research and Special Programs Administration, (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In the process of routine excavation activities, excavators
often sever gas service lines causing loss of life, injury, or property
damage by fire or explosion. Excess flow valves (EFVs) restrict the
flow of gas by closing automatically when a line is severed, thus
mitigating the consequences of service line failures. In this final
rule, RSPA has developed standards for the performance of EFVs used to
protect single-residence service lines. If an EFV is installed on such
a line, it must meet these performance standards.
DATES: This final rule takes effect July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Mike Israni (202) 366-4571, regarding
the subject matter of this final rule, or the Dockets Unit, (202) 366-
4453, regarding copies of this final rule or other material in the
docket that is referenced in this rule.
SUPPLEMENTARY INFORMATION:
Statutory Mandate
In 49 U.S.C. 60110 Congress directs the Department of
Transportation to issue regulations prescribing the circumstances under
which operators of natural gas distribution systems must install EFVs.
If the Department determines that there are no circumstances under
which EFVs should be installed, the Department is to report this
determination, and the reasons for the decision, to Congress. RSPA, on
behalf of the Department, has determined that there are no
circumstances under which the Department should require the
installation of EFVs, primarily because the costs far exceed the
benefits of such installation. RSPA has sent the report of its reasons
for this determination to Congress. The report to Congress (April 4,
1995) and the cost/benefit analysis of mandatory EFV installation are
available in the docket. Costs and benefits are also discussed later in
this document under ``Cost/Benefit Analysis.''
49 U.S.C. 60110 further requires the Department to develop
standards for the performance of EFVs used to protect service lines in
a natural gas distribution system. The development of these standards
is the subject of this rulemaking.
The statute also requires the Department to issue a rule requiring
operators to notify customers about EFV availability and to offer to
install EFVs that meet the performance standards, if the customer pays
for the installation. RSPA will initiate a separate notice of proposed
rulemaking for customer notification.
The Problem
Despite efforts, such as damage prevention programs, to reduce the
frequency of excavation-related service line incidents on natural gas
distribution service lines, such incidents persist and continue to
result in death, injury, fire, or explosion. During the period from
March 1991 through February 1994, 30 incidents with consequences that
might have been mitigated by an EFV were reported to RSPA. These
incidents, mostly excavation-related, resulted in 2 fatalities, 16
injuries, and an estimated $3,249,595 in property damage. Incident
history is explained in the November 1991 and January 1995 cost/benefit
studies evaluating mandatory EFV installation. Because damage
prevention measures are not foolproof, RSPA has sought to identify ways
to mitigate the consequences of these incidents. The National
Transportation Safety Board (NTSB) and others have proposed EFVs as a
means of mitigation.
NTSB Recommendations
NTSB has recommended EFVs as a means of reducing or preventing
injury or death from incidents resulting from service line breaks or
ruptures. Since 1971, NTSB has issued seven recommendations regarding
the use of EFVs in service lines. NTSB's recommendations are summarized
and discussed in the Notice of Proposed Rulemaking on this rulemaking
(58 FR 21524; April 21, 1993).
The Advance Notice of Proposed Rulemaking (ANPRM)
RSPA issued an ANPRM (55 FR 52188; December 20, 1990) seeking
information on the desirability of requiring the installation of EFVs
on gas distribution service lines to reduce the damage from service
line ruptures. The ANPRM also contained a questionnaire to collect
current operational data on the use of EFVs by natural gas distribution
operators. The results of the
[[Page 31450]]
ANPRM were summarized in the NPRM and are available in the docket.
The Notice of Proposed Rulemaking (NPRM)
In 1993, RSPA published an NPRM (Notice 2: 58 FR 21524; April 21,
1993), titled ``Excess Flow Valve Installation on Service Lines,'' that
proposed to amend 49 CFR Part 192 to require installation of EFVs on
new and replaced single residence service lines operating at a pressure
of 10 psig or more. This NPRM also proposed performance standards for
EFVs and conditions under which EFVs must be installed. The initial
comment period for this NPRM closed June 21, 1993. The NPRM is
available in the docket.
RSPA received 140 written comments in response to the NPRM: 14 from
industry associations, 1 from an EFV manufacturer, 102 from local
distribution companies, 2 from consultants, 17 from Congress, state
agencies, and regulatory associations, 3 from transmission companies,
and 1 from a group of commenters, designated hereafter as the Joint
Commenters (see below).
The Public Meeting
RSPA held a public meeting on June 18, 1993 (58 FR 33064; June 15,
1993) to enable interested parties to present additional comments on
several of the issues presented in the NPRM. In the notice announcing
the public meeting, RSPA also extended the comment period to July 6,
1993, to allow those not able to attend the meeting to have access to
the transcript. Representatives of the American Gas Association (AGA),
UMAC (an EFV manufacturer), the Gas Safety Action Council (GASAC), the
National Association of Pipeline Safety Representatives (NAPSR), and
NTSB spoke at the meeting. The AGA representative objected to the
proposed rule, especially to the expected benefits estimated in the
cost/benefit study. GASAC, NTSB, and UMAC supported an EFV rule, but
not as proposed. The NAPSR representative noted that in NAPSR's
experience EFVs have not been cost beneficial.
The Joint Commenters
On December 20, 1993, a group, designating itself as the Joint
Commenters, filed comments that recommended language to include in an
EFV rule. The Joint Commenters included GASAC, EFV manufacturers, and
two gas pipeline distribution associations. Although not a signatory to
the comments, NTSB sent two letters to a pipeline association
supporting the Joint Commenters' recommendations. The NTSB letters are
available in the docket.
The Joint Commenters did not include representatives from the two
major state pipeline safety associations, NAPSR, and the National
Association of Regulatory Utility Commissioners (NARUC). NAPSR
originally participated in discussions with the Joint Commenters but
later dropped out because NAPSR members oppose a federal requirement to
install EFVs. The comments from NAPSR are available in the docket.
The Joint Commenters recommended regulatory language that their
signatories would support if RSPA were to adopt this recommendation as
a final rule. In a Notice of Reopening Comment Period, RSPA reopened
the comment period to solicit comment on the safety merits of the Joint
Commenters' recommended language (59 FR 39319; August 2, 1994). The
reopened comment period closed October 3, 1994. In addition to seeking
comments on the safety merits of the recommendation, RSPA also sought
comment on: whether to allow EFVs with a bypass feature; whether, and
to what extent, the presence of contaminants in the gas stream should
preclude installation of an EFV; and whether RSPA should delay issuing
a rule until industry performance standards for EFVs are developed.
An additional 70 comments were received in response to the Notice
of Reopening Comment Period: 7 from industry associations, 1 from an
EFV manufacturer, 56 from local distribution companies, 5 from
Congress, state agencies, and regulatory associations, and 1 from a
transmission company. A discussion of the 140 comments to the NPRM and
70 comments to the Notice of Reopening Comment Period and RSPA
disposition of these comments is found below.
Advisory Committee Review
The Technical Pipeline Safety Standards Committee (TPSSC) was
established by statute to evaluate the technical feasibility,
reasonableness, and practicability of proposed regulations. The TPSSC
met on August 3, 1993, in Washington, DC, to consider the EFV standards
proposed in the April 1993 NPRM. The TPSSC voted 11 to 0 against
adopting the proposed rule as written. In addition, the TPSSC voted 10
to 1 against RSPA issuing any rule on EFVs. However, the TPSSC voted 10
to 1 to respect the wishes of Congress and to provide support for the
Congressional mandate as implemented by RSPA. RSPA addresses each of
the TPSSC's recommendations in the discussion of comments below.
Petition for Rulemaking
On July 14, 1995, AGA submitted a petition for rulemaking on EFV
performance standards and customer notification requirements. In this
petition, AGA urged OPS to adopt industry performance and manufacturing
standards as soon as they are available and, in the interim, to adopt
the performance standards recommended by the Joint Commenters. RSPA is
not required to consider those comments in the petition pertaining to
performance standards since the comments were received well after the
close of the re-opened comment period. However, RSPA notes that those
comments do not raise any issues not already raised in prior comments
and addressed in this rule.
RSPA will consider the bulk of AGA's petition dealing with customer
notification requirements in the customer notification rulemaking.
Cost/Benefit Analysis (Mandating EFV installation)
RSPA recognizes the beneficial safety effects of EFVs. However,
after extensive study and rulemaking, RSPA has decided not to require
the installation of EFVs, primarily because the costs far exceed the
benefits of such installation.
Many comments to the NPRM and Notice of Reopening Comment Period
cited the need for RSPA to redo the cost/benefit study that had been
prepared to accompany the NPRM. Commenters said incident frequency,
fire and police response costs, and property damage costs were
overstated. The most frequent objection was that RSPA overestimated
property loss and fire fighting costs for incidents with less than
$5,000 in property damage. Commenters pointed out that leaks occur with
greater frequency than incidents and that, by equating leak repair
reports with incident reports, RSPA overstated the benefits to be
gained. Many commenters also said that the $20 estimated cost to
install an EFV was too low.
In light of the commenters' criticisms, RSPA thoroughly reexamined
the cost/benefit study. The revised study included updated data
regarding service line incidents and revised information on related
costs and anticipated benefits. In the most significant benefit change,
RSPA reduced its estimate of the number of nonreportable incidents that
could have benefitted from an EFV installation. Criticisms of its
estimates on nonreportable incidents led RSPA to conclude that the
original estimate, over
[[Page 31451]]
143 thousand per year, significantly overstated the number of
nonreportable incidents whose consequences might be mitigated by EFVs.
RSPA used a different approach to develop a more reasonable estimate,
approximately 13 thousand per year, for the final study. This revised
number of nonreportable incidents is largely responsible for the
decrease in the present value of the benefits from $21.02-$35.00 per
service in the draft study to $7.42 per service in the final study.
In other changes, RSPA revised its cost estimate by using the mid-
point of the cost-range in EFVs. The original estimate looked only at
the EFV cost to the largest current installers of EFVs, whereas the
revised estimate considered the EFV cost to all current installers of
EFVs. RSPA also used newer incident data to develop better estimates of
the consequences of incidents before and after an EFV installation.
As a result of RSPA's reexamination of the cost/benefit study, the
present value of costs changed from the draft study figure of $20.20
per installed EFV with a bypass to a final study figure of $30.29. In
addition, in the final study, the present value of costs for an EFV
with positive shutoff was estimated to be $37.09 per installed EFV.
The final cost/benefit study found the cost of installing an EFV to
exceed the benefits by a 4.5:1 ratio. This result, along with
consideration of other criticisms of a rule requiring installation,
discussed in more detail below, led RSPA to determine that it would not
require installation but would require that any EFV installed meet
certain performance criteria. The final cost/benefit study explains in
detail how each cost and benefit was calculated. Both the draft and
final cost/benefit studies examining EFV installation are available in
the docket.
The Final Rule
The final rule establishes a new section in the pipeline safety
regulations, Sec. 192.381, ``Service lines: Excess flow valve
performance standards.'' For the reasons previously explained, the
final rule does not require installation of EFVs. In accordance with 49
U.S.C. 60110, the rule sets performance standards for any EFV that will
be used in a single-residence gas service line operating continuously
at not less than 10 psig. The final rule incorporates almost all the
performance standards that the Joint Commenters recommended, rather
than those RSPA proposed in the NPRM.
An EFV will have to be manufactured and tested by the manufacturer
according to an industry specification or a manufacturer's written
specification to ensure that the EFV will function properly up to its
rated maximum operating pressure and at all temperatures expected in
the service line's operating environment. An EFV, like any other valve,
will have to comply with subparts B and D of Part 192. The required
tolerance has been raised so that an EFV will be required to close at,
or not more than 50 percent above the rated flow, instead of at the
proposed 10 percent. As commenters requested, an operator will have the
choice of using an EFV with either a positive shutoff or bypass
feature. Upon closure an EFV must reduce the gas flow to no more than 5
percent of the manufacturer's specified minimum flow rate, up to a
maximum of 20 cubic feet per hour for a bypass-type EFV or 0.4 cubic
feet per hour for a positive shut off-type EFV. An operator will have
to mark or otherwise identify the presence of an EFV in the service
line.
Several proposed performance requirements have not been adopted. An
EFV will not have to comply with the requirements of Secs. 192.363 and
192.365 that apply to other service line valves. Service line capacity
will not have to exceed the manufacturer's EFV flow rating by 50
percent. An EFV will not be required to be tested upon installation and
each time a customer's meter is removed or replaced, or to close
automatically if the customer's meter, regulator or service valve is
sheared off. Furthermore, an operator will not be required to verify
the rated flow or replace an EFV that does not close automatically.
The final rule recommends that an operator locate an EFV beyond the
hard surface and as near as practical to the fitting connecting the
service line to its source of gas supply to ensure that the EFV
protects the maximum length of service line and to assist in locating
the EFV. The final rule also recommends that to augment performance
reliability, an operator not install an EFV where the contaminants in
the gas stream will cause the valve to malfunction or interfere with
necessary operation and maintenance activities on the service line,
such as blowing liquids from the line.
Discussion of Comments
Although comments were submitted in response to the proposal to
require installation of EFVs, these comments were also relevant to
developing a performance standards rule. Many of the comments focussed
on the performance criteria RSPA included in the proposal.
General Comments--Except for NTSB, valve manufacturers, and GASAC,
virtually all of the 140 commenters to the NPRM objected to the
proposed rule on installation. The major objections were that EFV
installation should not be federally mandated, that each state pipeline
authority should be allowed to establish the rules for its state; that
a positive shutoff EFV should not be required; that testing an EFV
while in service is unnecessary and overly expensive; that EFV
installation should be delayed until industry standards are developed;
and, that the cost/benefit study supporting the proposed rule is
flawed. The majority of commenters also maintained that EFV
installation should not be required where contaminants could cause the
EFV to malfunction and inadvertently shutoff service to the customer.
Nearly all of the 70 commenters responding to the Notice of
Reopening Comment Period proposed that RSPA adopt the Joint Commenters'
recommendations on performance language because the recommended
language was less objectionable than the NPRM's proposed language. The
commenters also favored giving an operator the option to install either
a bypass or positive shutoff EFV. Overall, because of concerns about
EFV reliability, gas distribution operators favored waiting until
industry standards are developed and accepted before requiring
installation of EFVs. Many commenters restated their objection to the
findings of the cost/benefit study.
Six large operators operating at least 9 million service lines (18
percent of all U.S. service lines) opposed both the NPRM's proposal and
the Joint Commenters' recommendations. The operators' major objections
were that the cost/benefit study grossly overstated benefits, that
industry standards are needed because EFVs do not operate reliably, and
that costs to remove EFVs after a malfunction are high.
Comments about the cost/benefit study have previously been
discussed. Other general comments are discussed below, as well as
specific comments about each RSPA-proposed performance standard and the
associated Joint Commenters' recommendation. To avoid repetition,
similar comments are discussed in only one section.
Discussion on State vs. Federal Mandate
Comments--NAPSR expressed opposition to any federal mandate to
install EFVs, arguing that any such regulatory requirements should be
at the state level. On two occasions NARUC passed resolutions proposing
that any requirement for EFVs be determined by
[[Page 31452]]
the individual state pipeline safety agencies. The NARUC Subcommittee
for Pipeline Safety polled the state regulatory agencies, gathered
data, and prepared a report of its findings. NARUC found that only two
states, Massachusetts and New York, favored a federal mandate to
install EFVs.
Six major operators (three operating in California) opposed any
federal requirement to install EFVs, arguing that states should be
allowed to determine the need for EFVs based on state- developed
criteria.
Response--Because of RSPA's decision not to issue a rule requiring
the installation of EFVs, each state will be able to determine if it
should require such installation based on circumstances unique to that
state.
Industry Standards
In the absence of standards by an industry-sponsored safety
standards committee, RSPA proposed several requirements for the
manufacture and operation of any EFV that would be installed in a
single-residence gas service line. The Joint Commenters' recommendation
also included performance standards for single- residence gas service
lines.
Comments on NPRM--Many commenters said RSPA should not issue a
final rule until industry manufacturing and performance safety
standards are prepared and adopted. The TPSSC recommended that RSPA
initiate the development of standards by The American National
Standards Institute (ANSI), American Society of Testing Materials
(ASTM), or other nationally recognized and accredited organization for
the manufacture, testing, and operation of EFVs. The TPSSC further
recommended that when such standards are enacted, RSPA should issue an
NPRM for EFVs incorporating such standards for TPSSC review. The Gas
Piping Technology Committee (GPTC) commented that its ANSI/GPTC Z380
committee was developing performance, operating, and installation
guidelines for EFVs. GPTC said guidance will be offered on choosing
operating pressure ranges, flow rates, bleed-by, and reset
characteristics, length and diameter of service piping, inline
contaminants, purging procedures, joining methods, and service line
locations.
Comments to Notice of Reopening Comment Period--Many commenters
said RSPA should take no final action until industry standards are
available because standards would assure EFV reliability. Many others
said RSPA should issue a final rule but grant a one year delay in
implementation to give the industry committees time to complete
manufacturing and operational standards. Several commenters said the
ASTM F17 committee is preparing testing standards and the ANSI/GPTC
Z380 committee is preparing guidelines that should be completed in
1995.
Response--RSPA agrees that to achieve performance reliability and
the desired safety benefits, specifications are necessary to ensure
uniformity among EFVs installed in service lines. Because the NPRM
proposing required installation only sought comment on performance
standards applicable to EFVs installed in single-residence service
lines, this final rule limits EFV performance standards to that
application. Once industry standards are developed for EFVs used in
other applications, such as multiple residences and commercial
enterprises, RSPA will consider seeking comment on proposed performance
standards for those applications.
The final rule requires that when an EFV is installed in a single
residence service line, the EFV must be manufactured and tested by the
manufacturer according to an industry specification, or to a
manufacturer's written specification to ensure the EFV performs
specified minimum functions. These specifications will ensure that an
EFV functions properly up to the maximum operating pressure at which it
is rated and at all temperatures reasonably expected in the service
line's operating environment. These specifications will further ensure
that an EFV is sized to close within 50 percent of the rated closure
rate, to reduce gas flow upon closure to specified rates, and to not
close when the pressure and flow rates are less than the manufacturer's
specified minimums.
In addition, an EFV must comply with the general requirements of
Subparts B and D of part 192. While subparts B and D do not include
operational requirements specific to an EFV, they do include general
material and design standards applicable to any valve in a pipeline
system.
Many commenters, including several industry committees, indicated
that EFV standards are forthcoming. However, until industry finalizes
EFV standards, the requirement that an EFV perform specified functions
according to a manufacturer's written specifications will ensure that
an EFV performs reliably and safely. Moreover, final industry
performance specifications are likely to be similar to manufacturers'
specifications, because valve manufacturers are often members of the
industry organizations that develop such specifications.
Proposed Section 192.381(a)--(regarding Secs. 192.363 and 192.365
gas pipeline valve requirements)--RSPA proposed in the NPRM that EFVs
must comply with the requirements of Secs. 192.363 and 192.365. These
existing sections establish requirements for all valves in gas service
lines.
Comments--Several commenters stated that Secs. 192.363 and 192.365
should not apply to EFVs. Commenters pointed out that these
requirements apply to the design of service line manual shut-off valves
and would conflict with the proposed EFV requirements. For example,
commenters noted that the Sec. 192.365(c) requirement to locate valves
in a covered durable box or standpipe is intended to allow for ready
operation of a service line manual shut-off valve. Therefore, it would
be unnecessary and costly to apply this requirement to an EFV, which is
an automatic valve not requiring access for manual operation.
Response--After further study, RSPA agrees that valve requirements
concerning the use of a durable box or standpipe do not apply to EFVs,
and the other requirements of Secs. 192.363 and 192.365 apply only to
manual shut-off type valves, not EFVs. Accordingly, the proposed
requirement that EFVs comply with Secs. 192.363 and 192.365 has not
been adopted.
Proposed Section 192.381(a)--(10 psig requirement)-RSPA proposed
that an EFV be installed on each newly installed or replaced single
residence service line that operates at a pressure not less than 10
psig.
Comments--Many commenters to both the NPRM and the Notice of
Reopening Comment Period requested clarification of the 10 psig
threshold. Many commenters asked if the requirement would apply if
pressure in the pipeline system drops below 10 psig at any time during
the year.
Response--RSPA is not requiring operators to install EFVs on any
single-residence service line, whatever its operating pressure.
However, RSPA does not want an EFV, if installed, to cause a loss in
service, especially at a time when the service is most needed by the
consumer, such as during the winter heating season. Thus, the
performance standards have been established for EFVs that are installed
on a service line that operates at or above 10 psig continuously during
the year. Setting the performance standards at this threshold is
influenced by two of the largest users of EFVs who, as standard
practice, limit EFV installation to service lines in systems where
service line inlet pressure does not drop below 10 psig during the
year.
[[Page 31453]]
Because service line pressure will most likely be at its lowest
level during the coldest weather, especially in colder climates, an
operator should consider the pressure drop in the service line due to
the restriction of gas flow caused by an EFV. If pressure drop is
considered, an EFV should not cause a reduction in safety or loss of
service in any service line.
Proposed Section 192.381(a)--(replaced service lines)--RSPA
proposed that EFVs be installed on certain new and replaced service
lines.
Response--This proposal is no longer relevant since EFV
installation is not being required.
Proposed Section 192.381(b)(1)--(installation)--RSPA proposed in
the NPRM that an EFV be installed as close to the main or transmission
line as practicable. The Joint Commenters recommended installation in
or as near as practicable to the service line fitting connecting the
service line to its gas supply.
Comments--Many commenters suggested RSPA remove any reference to
transmission lines in the rule. Several commenters said EFVs are not
available that will withstand transmission line pressures. Others
stated that the statutory mandate was intended to apply only to
distribution systems. The TPSSC voted 7 to 4 that all references to
transmission lines be dropped from the proposed rule.
A few commenters objected to what they thought was the proposed
requirement to install EFVs immediately downstream of the service-to-
main connection when the line serves more than one residence (branch
service). Other commenters were concerned that the proposed rule would
require EFV installation below hard surfaces such as asphalt or
concrete, making installation very costly.
Response--In the NPRM, RSPA intended that all new and replaced
service lines, whether from a main or transmission line, where the
source of gas supply consistently operates above 10 psig, be required
to have an EFV installed. The reference to ``main'' and
``transmission'' lines was intended to cover farm taps, as farm taps
are also subject to the type of incident that could benefit from an
EFV. The final rule deletes the reference to ``main'' and
``transmission'' and sets performance standards for EFVs installed on
single-residence gas service lines. By referring to ``service'' line,
RSPA intends for the standards to apply if an EFV is installed on a
farm tap. A farm tap operates as a service line when a local
distribution company operates a metered farm tap on a transmission line
delivering gas to a farmer or other landowner. Accordingly, although
the rule does not require installation on any single-residence service
line, an EFV that meets the required performance standards can be
installed on a service line from a main or a branch off a transmission
line.
RSPA never intended that an EFV serve more than one family
residence. RSPA recognizes that an EFV would be difficult to size when
the gas supply is serving multiple residences because of widely varying
gas volume through the EFV. Because of this difficulty, the performance
standards in this final rule are limited to EFVs that are installed on
single-residence service lines.
RSPA agrees that removing an EFV under a hard surface would be
overly expensive if an EFV failed to function. Therefore, RSPA
recommends that an EFV be located beyond the hard surface and as near
as practical to the fitting connecting the service line to its source
of gas supply.
Proposed Section 192.381(b)(2)--(Section 192 Subparts B & D)--As
noted above, the NPRM proposed and the Joint Commenters recommended
that EFVs meet the applicable requirements of subparts B and D of part
192.
Comments--No substantive comments were received on this proposal.
Response--Subpart B establishes minimum requirements for selection
and qualification of materials to be used in pipelines. Subpart D
prescribes minimum requirements for the design and installation of
pipeline components and facilities. Since these requirements are
general performance requirements that apply to all valves, they are
included in the performance requirements applicable to EFVs.
Proposed Section 192.381(b)(3)--(bypass)--RSPA proposed that an EFV
be designed to prevent pressure equalization across the EFV after the
EFV closes, thereby prohibiting an operator from installing an EFV with
a bypass feature. The bypass feature allows pressure to equalize and
the EFV to automatically reopen after closure because it allows a small
amount of gas to pass through the EFV. In contrast, a positive shutoff
feature allows only minute amounts of gas to pass through the EFV after
it closes, and requires backpressuring downstream to reset the EFV. The
Joint Commenters' recommendation would allow either type of EFV.
In the Notice of Reopening Comment Period, RSPA sought comment on
the safety of using EFVs with or without the bypass feature and gave
two examples, provided by two large local distribution operators, of
potential dangers that might be caused by the bypass feature. RSPA also
asked for comments on the conditions under which automatically
resetting EFVs should or should not be required in residential service
lines and on the linkage between the bypass feature and unauthorized
repairs to damaged service lines.
Comments to NPRM--Many commented on the proposal prohibiting the
use of EFVs with a bypass feature. Commenters, including several at the
public meeting, were virtually unanimous in favor of an operator having
the option to select an EFV with either the bypass or positive shutoff
feature. Similarly, the TPSSC voted 9 to 2 in favor of an operator
having this option.
Various reasons were given for not prohibiting the installation of
bypass EFVs. Several commenters, including an industry association,
complained that RSPA proposed the positive shutoff requirement without
sufficient justification in the cost/benefit study. One commenter said
that additional costs of at least $250 per utility crew would be
incurred to provide backpressure downstream of the EFV to equalize the
pressure and reset the valve. This commenter said these services would
necessitate extra equipment, including a compressed natural gas tank or
portable natural gas compressor, and additional piping, fittings, and
hoses. Other commenters mentioned additional hazards to personnel in
hauling and connecting compressed natural gas. Another commenter was
concerned with customer inconvenience because a service call would be
necessary to backpressure the EFV, delaying restoration of service.
Many commenters argued that bypass-type EFVs do not pose a
significant safety risk. Commenters maintained that operators that
regularly install EFVs have had no incidents resulting from use of
bypass-type EFVs. Three of the largest voluntary users of EFVs (with
over 300,000 EFVs in service) commented that their data did not show an
incident having occurred due to a bypass- type EFV. An EFV manufacturer
commented that it has no knowledge of bypass gas ever contributing to a
natural gas incident. NTSB and many operators echoed these assurances.
Several commenters, including EFV users, said RSPA's concern that
the bypass feature would allow irresponsible excavators to make repairs
is unfounded. A few commenters said that positive shutoff EFVs would
cause more safety problems than bypass-type EFVs because an excavator
could sever a service line unknowingly if the
[[Page 31454]]
positive shutoff were to completely stop the gas flow and any released
odor from reaching the atmosphere. Conversely, these commenters argued
that a failed service line with a bypass would continuously release gas
and leave a readily detectable odor. Commenters noted other potential
problems with positive shutoff EFVs. For example, a commenter in Alaska
pointed out that an earthquake in the winter could cause EFVs to engage
and, if positive shutoff EFVs were used, each would have to be
backpressured and each customer's appliance re-lighted. During an
Alaskan winter this could take days.
The Gas Research Institute (GRI) stated that its tests of EFV
models showed all the tested models were affected by pressure surges of
5 psi or more and that opening, closing, or throttling a main line
valve could activate an EFV, causing a false closure. The research
organization said RSPA could infer from these results that the use of
EFVs without the bypass could cause extended distribution service
outages. GRI further stated that it knows of no reports of bypass flow
in an EFV having led to or increased the severity of an accident.
GASAC commented that RSPA should allow each operator to determine
the type of valves for its system. Other commenters echoed this
statement. Even among those operators opposed to a mandatary rule, most
said that if a rule were issued, the choice of which type of EFV to use
should be left to the operator.
Comments on the Joint Commenters' Recommendation - Many commenters
supported the Joint Commenters' recommendation to allow the use of a
bypass-type EFV. Many commenters said it is not appropriate to depend
on an EFV's design to prevent unauthorized repairs. Rather,
unauthorized repairs should be controlled by stiffer penalties and
better enforcement of damage prevention laws. These commenters
maintained that EFVs are used to provide safety when a service line is
severed, and should not be expected to perform functions beyond their
intended purpose.
Many commenters said excavators who damage service lines may make
unauthorized repairs regardless of whether a bypass-type EFV, a
positive shutoff EFV, or no EFV is installed. RSPA recognizes the
validity of this statement and that EFVs with either feature are not
likely to have a substantial effect in either reducing or increasing
the frequency of unauthorized repairs on a broken service line.
To dispel RSPA's concern about the potential danger of bypass- type
EFVs and gas discharge into a residence, an operator explained that
since natural gas is only about 0.6 times the density of air, any raw
gas passing through a vented appliance would exhaust to the atmosphere
through the chimney. The operator concluded that household gas ranges
(or space heaters) without burner safety pilots are the only paths for
raw gas to disperse through a building. The operator cited a recent
study by NOVA, a Canadian chemical and pipeline company, that
demonstrated that a rate of raw gas buildup in a small residence (300
square feet) would have to be about 60 cubic feet per hour to reach an
ignitable level in five hours. This allows a five hour period for
someone to discover the gas release before the ignitable level is
reached. A bypass-type EFV allows 20 cubic feet of gas per hour.
Therefore, natural gas that is passing through an EFV with a bypass
would take several hours to accumulate to the ignitable range in a
building.
Response--RSPA has been concerned that excavators could repair a
service line break equipped with an EFV with a bypass feature, the EFV
would automatically reset, and service would be restored without the
operator knowing that the line had been damaged. Consequently, gas
could then pass into and accumulate in a residence where the pilot
light on a gas appliance had been extinguished during the service line
break.
RSPA was also concerned that restoration of gas service with
unvented appliances would cause a rapid buildup of the gas/air mixture
to an ignitable level. Commenters have posed circumstances under which
such a buildup could occur. However, in response to its questions about
this problem, RSPA did not receive any information that such an
incident has actually occurred. Furthermore, an EFV manufacturer and
AGA have assured RSPA that bypass-type EFVs operate properly to avoid
unintended gas buildup within a building. An operator with 20,000
installed bypass-type EFVs stated that bypass gas from a tripped EFV
had never caused or contributed to an unsafe situation on its system.
Other operators made comparable statements. The NOVA study, described
above, further allays RSPA's concern. Therefore, based on the record in
this rulemaking, RSPA accepts the premise that EFVs with a bypass
feature are safe.
RSPA also finds acceptable the Joint Commenters' recommendation to
limit gas flow to 20 cubic feet per hour for bypass-type EFVs and to
0.4 cubic feet per hour for positive shutoff-type EFVs. Because EFVs
with positive shutoff features were proposed in the NPRM, RSPA did not
propose EFV flow limits. However, RSPA agrees that the limits
recommended by the Joint Commenters are reasonable and feasible design
requirements.
Accordingly, the final rule allows either bypass or positive
shutoff EFVs. Closure flow rates will be limited to 20 cubic feet per
hour for the bypass-type EFV and 0.4 cubic feet per hour for the
positive shutoff EFV.
Proposed Section 192.381(b)(4)--(installation testing)--RSPA
proposed that upon original installation of an EFV and each time the
meter is removed or replaced, the EFV be tested to determine if it
closes automatically. The Joint Commenters' recommendation deleted the
requirement.
Comments--All 37 commenters on this proposed requirement asked that
it be deleted. Most commenters stated that the test would require that
the service line be disconnected from the meter set, the service valve
at the meter opened, and gas vented to the atmosphere to trip the EFV.
Many commenters said that venting of the gas near the residence, or
inside the residence when the meter is indoors, would be hazardous and
would needlessly release methane into the atmosphere contrary to the
goals of the Clean Air Act.
An EFV user stated that it does not test the EFV when replacing
meters. This commenter stated that it replaces one-tenth of its meters
annually and provided RSPA a summary of the steps involved in testing
an EFV when a meter is replaced on an existing service. This commenter
further stated it would take a two person crew a full day to test an
EFV, resulting in substantial cost with no corresponding benefit. The
American Public Gas Association (APGA) commented that the proposed
testing would add significantly to the costs of using EFVs with no
corresponding safety benefits and noted that these costs were not
included in the cost/benefit analysis.
Several other commenters also noted that this proposed requirement
had not been covered in the cost/benefit analysis and provided data on
the costs that would be incurred for such tests. AGA estimated that 3
million services have meters removed each year, so that the tests could
cost $100 million per year, doubling RSPA's estimated installation cost
of $20 per EFV (with bypass feature). These same commenters contended
that testing positive shutoff EFVs would cost even more.
AGA and other commenters concluded that such tests would require
removing the service regulator or
[[Page 31455]]
installing a fitting to allow gas to be vented upstream of the service
regulator because the flow of gas passing through a service regulator
may be too small to cause the EFV to trip. These commenters said that
such a fitting would invite a resident to bypass the meter and steal
gas.
The TPSSC voted 8 to 2 that no in-service testing of an EFV be
required.
Response--Based on the comments about problems and costs of
installation testing, the final rule will not require an operator to
test the EFV when the EFV is installed or when the meter is removed or
replaced. However, the requirement that the EFV must be manufactured
and tested to an industry specification or manufacturer's written
specification to ensure that the EFV functions properly up to the rated
maximum operating pressure will certainly require random sample testing
at the manufacturer's plant. Such sample testing is routinely conducted
for all other valves in accordance with manufacturing standards.
Proposed Section 192.381(b)(5)--(automatic closure)--RSPA proposed
that an EFV must close automatically if the service line is severed or
if the customer's meter, regulator, or service valve is sheared off.
The Joint Commenters' recommendation did not include such a
requirement.
Comments--All seventeen commenters on this proposed requirement
argued that it should be deleted. Most commenters stated that operators
cannot guarantee that an EFV will perform as designed and warranted by
the manufacturer. One commenter said that it would be difficult to
comply with such a requirement because EFVs often fail to activate (due
to fluid friction) in longer service line lengths of \1/2\-inch pipe.
Also, even if the meter set is sheared off, the flow rate may not
exceed the EFV activation flow rate because the pipe may be squeezed
off at the point where it is sheared, or because there are other
restrictions in the line.
One EFV user stated that costs for assuring that an EFV closes
automatically would approach $1,000 per installation. This commenter
reasoned that an EFV is intended to help reduce the effects of dig-ins
on a service line in the area of the street, where most excavation
takes place, and requiring the EFV to do more than intended will
increase costs.
The TPSSC voted 7 to 3 that the proposed requirement be changed so
that an EFV ``be designed to close automatically if the service line is
ruptured downstream of the valve.''
Response--RSPA agrees with the commenters that flow rate may not
always exceed an EFV's activation flow rate because a long service line
could cause excessive pressure drop, or a line could be squeezed off at
the point where it is sheared, or there could be other restrictions in
the line. Therefore, RSPA is not including proposed Sec. 192.381(b)(5)
in the performance standards. However, the final rule (Sec. 192.381(c))
requires that an EFV be manufactured according to an industry
specification or manufacturer's written specification that will
establish shutoff requirements for conditions comparable to a service
line being severed or a meter set being sheared off.
Proposed Section 192.381(b)(6)--(sizing)--RSPA proposed that an EFV
be sized to close within 10 percent of the rated flow specified by the
manufacturer. The Joint Commenters recommended a closure rate not less,
and not more than 50 percent higher, than the manufacturer's specified
closure flow rate.
Comments to NPRM--The 32 commenters objected to this requirement.
Most commenters suggested that the proposed 10 percent tolerance be
raised to 50 percent because EFVs are not precision instruments. Some
commenters suggested a 25 percent tolerance. Most commenters said that
EFVs with 10 percent tolerance are not commercially available and would
be significantly more expensive. GASAC also opposed the requirement as
excessive.
AGA provided exhaustive information showing that EFVs with a 10
percent tolerance are not commercially available and may not be
possible to mass produce. AGA suggested a 50 percent tolerance and
cited a Gas Research Institute (GRI) study regarding EFV performance
repeatability. In 1985, GRI tested seven EFV models and found that
closure flows of a single copy were repeatable within a range of 6.4
percent to 20.8 percent, whereas closure flows between two arbitrary
copies of the EFVs were repeatable within the range of 15.4 percent and
87.9 percent. None of these models would have met the RSPA proposed
requirements. AGA provided an EFV manufacturer's graphs showing that
none of the currently available EFVs tested by that manufacturer closed
within 10 percent of the rated closure.
Comments on Joint Commenters' recommendation--A member of the Joint
Commenters said its analysis of service ruptures found that EFVs could
close as much as 50 percent over specified closure flow and still
reliably close in the type of accident EFVs are meant to address. Three
other commenters agreed with the Joint Commenters' recommendation.
The TPSSC voted 7 to 4 that the rule specify that an EFV must close
no lower than its rated flow and not more than 50 percent above rated
closure flow.
Response--Although no EFV is currently available at an acceptable
cost that will conform to a 10 percent tolerance, RSPA believes that
distribution operators must have a specified closure range for an EFV
that is reliable. The requirement that an EFV activate at, or 50
percent above, a specified flow level provides an acceptable closure
range in accordance with currently available EFVs. Accordingly, RSPA
will require an EFV be sized to close at or 50 percent above the rated
closure flow rate specified by the manufacturer.
Proposed Section 192.381(c)--(flow rate verification)--RSPA
proposed that the operator verify the manufacturer's rated flow for the
EFV by testing at a pressure of 10 psig for the gas to be transported
in the service line. The Joint Commenters recommended that the
manufacturer certify the EFV meets the manufacturer's written
performance specifications, rather than place this responsibility on
the operator.
Comments to NPRM--Thirty six commenters responded to RSPA's
proposed requirement. Virtually all commenters objected to any operator
responsibility for testing and suggested the requirement be deleted.
Most commenters contended that operators cannot guarantee the
performance of an EFV, but should be able to rely on the manufacturer
to certify that EFVs meet the applicable standards--the approach
allowed for other valves used in gas distribution systems. An EFV
manufacturer also agreed that it should be the manufacturer's
responsibility to test and certify EFVs. Most commenters stated that
the proposed requirement would significantly increase an operator's
costs.
Comments on Joint Commenters' recommendation--An industry
association agreed with the recommendation to allow an operator to rely
on the manufacturer's certification that EFVs meet performance
standards rather than have the operator test each EFV. The association
pointed out that RSPA allows such a procedure under Sec. 192.145.
Response--RSPA agrees with the commenters that the flow rate
verification test should be an EFV manufacturer's responsibility, not
the operator's. Thus, the final rule requires that an EFV be
manufactured and tested by the manufacturer according to an industry
specification, or
[[Page 31456]]
manufacturer's written specification to ensure that each valve will
perform specified minimum functions. This requirement should lead to a
random EFV testing program by the manufacturer, similar to testing for
other system valves. Currently, certain valves (cast iron and plastic)
are installed that meet the specified manufacturing tests in
Sec. 192.145. All other valves must be manufactured according to
specifications in American Petroleum Institute (API) Standard 6D, which
also requires random testing by the manufacturer.
Proposed Section 192.381(d)--(replacement)--RSPA proposed that if
an EFV does not close automatically during installation testing or when
the service line is severed, it must be replaced with an EFV that
closes as required. The Joint Commenters' approach would remove any
requirement to assure that an EFV closes after installation.
Comments--None of those commenting on RSPA's proposal was entirely
satisfied with it. Seven commenters suggested changes that included
permitting the operator the option to repair or replace an EFV that
doesn't close. These commenters further proposed exempting a location
from the installation requirement after two EFVs do not perform
properly at that location.
One operator questioned what constitutes satisfactory closure by
explaining that minor accumulations of dust and dirt can interfere with
an absolute 100 percent shutoff. This commenter said that RSPA should
conduct additional studies to ascertain what long-term performance
characteristics can be expected and include acceptable criteria in the
rulemaking.
Eight commenters said the requirement was not needed or questioned
the apparent intent to require the operator to keep replacing an EFV
until one performs as required. Several said that the requirement
assumed that an EFV's failure to close is always the valve's fault.
Commenters explained that many factors influence the operation or
performance of an EFV, including changes in operating pressures and the
type of gaseous mixtures flowing through the service line. They
suggested the practical approach would be to allow the utility to
repair and replace an EFV at its own discretion as it does with other
valves in its system.
Response--RSPA's proposed requirement that an operator replace an
installed EFV if it fails during installation testing or during a
service line break, is no longer applicable since on-site testing and
mandatory EFV installation are not being required in this final rule.
Instead, an EFV must be manufactured and tested by the manufacturer
according to an industry specification or manufacturer's written
specification to ensure that the valve will function properly.
Furthermore, replacement or removal of a defective EFV will be left to
agreement between the customer and operator.
Section 192.381(e)--(manufacturing specifications)--RSPA proposed
that each EFV must be manufactured in accordance with written
specifications that assure the EFV meets the manufacturer's published
pressure and flow rate criteria. The Joint Commenters recommended that,
instead, an EFV be manufactured and tested by the manufacturer
according to a written specification to ensure that the EFV will
function properly up to the maximum rated operating pressure and at all
temperatures reasonably expected. The Joint Commenters further
recommended that an EFV not close when pressures are below the
manufacturer's minimum pressure.
Comments--Fourteen of the fifteen commenters responding to RSPA's
proposed requirement were dissatisfied with the wording and recommended
changes. These commenters stated that this provision appeared to shift
responsibility for quality assurance from the manufacturer to the gas
distribution operator who cannot assure that the manufacturer will
produce valves meeting the manufacturer's published pressure and flow
rate criteria. Commenters further stated that because of liability
concerns there should be an industry EFV standard by which the valves
should be manufactured. APGA also argued that manufacturers, not gas
distribution operators, should be responsible for assuring that EFVs
meet the necessary performance criteria.
Response--RSPA agrees that the proposed requirement was unclear as
to who would be responsible for assuring that an EFV meets the
specified performance requirements. Accordingly, the final rule
clarifies that an EFV will have to be manufactured and tested by the
manufacturer according to an industry specification or manufacturer's
written specification to ensure that each valve meets the specified
minimum performance standards.
Proposed Section Sec. 192.381(f)--(service line capacity)--RSPA
proposed that service line capacity must exceed the EFV manufacturer's
flow rating by 50 percent. The Joint Commenters' approach did not
include a similar requirement.
Comments on NPRM--Thirty three commenters responded to this
proposed requirement. Five commenters said that maintaining a flow rate
at least 50 percent over the rating of the EFV would severely restrict
an operator and increase costs. These commenters explained that such a
high flow rate would, in many cases, require the installation of
service lines larger in diameter than required for a customer's load
and also preclude the insertion of plastic tubing. These persons
recommended reducing the flow rate margin to 25 percent.
Most commenters opposed establishing arbitrary excess flow
capacity. These commenters stated that the sizing of service lines is
the operator's responsibility and that many factors must be considered,
such as costs, current and future loads, the possibility of future
insertions, and future maintenance requirements.
Response--RSPA agrees that a requirement to design a service line
with excess capacity is not necessary for an EFV to function properly
and would add unnecessary expense. Thus, the final rule does not
require that service line capacity exceed the EFV manufacturer's flow
rating by 50 percent. This approach is consistent with Part 192, which
does not require installation of service lines larger than required to
meet the customer's load.
Proposed Section 192.381(g)--(Marking)--RSPA proposed that each
service line with an EFV be physically marked or labeled in the field,
so that the label would be readily visible to gas company employees.
Comments on NPRM--Twelve commenters said that requiring service
lines with EFVs to be identified is unnecessary and is of little
benefit. One commenter, currently using EFVs and marking those service
lines, said it does not believe that marking should be required.
Several commenters stated that marking service lines is futile due to
customers painting the meter set, weather deterioration, and vandalism.
A few commenters suggested that the operator have the option to mark or
record the location of these valves. However, eight commenters
supported the requirement, saying it is a good safety practice for gas
company operator personnel, when arriving at a residence, to know if an
EFV is installed in that service line.
Comments on Joint Commenters' Recommendation--The Joint Commenters'
recommendation did not include a requirement to mark services in the
field. An industry association supported the Joint Commenters' approach
and further recommended that
[[Page 31457]]
the operator be allowed the option to mark services in the field or
record EFV installation on its maps and records.
Response--RSPA believes it is helpful for operating personnel to
know if an EFV is installed in a service line. In a service outage or
emergency, service personnel arriving at a residence might respond
differently depending on whether or not an EFV is installed. For
example, if service personnel find that a service line has been severed
and the line is marked or otherwise identified as having an EFV,
service personnel should recognize that the small amount of gas
escaping from the severed line is from an EFV with a bypass feature and
not from a pinched service line that could suddenly release a hazardous
flow of gas. With this knowledge, service personnel can initiate
correct repair procedures.
Accordingly, the rule will require that an operator must mark or
otherwise identify the presence of an EFV in the service line.
Proposed Section 192.381(h)--(Contaminants)--RSPA proposed that EFV
installation not be required on a service line where the operator can
demonstrate that contamination in the gas stream will cause an EFV to
malfunction. The Joint Commenters' approach eased the operator's burden
of proof by allowing the operator to document, rather than demonstrate,
an unsatisfactory level of contamination.
The Joint Commenters also recommended that EFV installation not be
required where the EFV would interfere with operation and maintenance
activities, such as blowing liquids from the line.
Comments on NPRM--Twenty-four commenters supported the proposal to
except EFV installation where prior experience indicates contaminants
will cause a malfunction. Several commenters stated, however, that it
is unclear how an operator could make such a demonstration. NTSB said
RSPA should state the requirements necessary to claim the exemption.
Several commenters said they hoped that an operator would not have to
install an EFV and wait for it to fail before being able to demonstrate
that contaminants should preclude installation. Two commenters argued
that if an operator has experience with clogging of valves, regulators,
or meters from liquids or solids in certain areas of its system, such
experience should be sufficient to demonstrate that an EFV should not
be installed on that part of the system.
An EFV manufacturer agreed that an EFV should not be installed
where contaminants would interfere with the proper operation of an EFV,
but based on its experience felt it unlikely that many systems have
sufficient contaminants to cause an EFV to malfunction. GASAC commented
that requests for an exemption should be subject to public disclosure
and a formal review process to prevent unwarranted exemptions.
Comments on Joint Commenters' recommendation--AGA argued that the
operator should determine whether to use EFVs in contaminated areas.
AGA said a company might cite previous experience with service lines
plugging with liquids or solids, plugging of other valves or service
regulators, or knowledge of liquids or solid debris in certain parts of
the system to justify not installing EFVs.
Another commenter said that iron oxide rouge from steel pipe mixed
with tiny amounts of compressor fluids forms a sticky residue and
prevented early model EFVs from successfully resetting following
closure. The commenter said it is likely that no EFV on the market
today is robust enough to withstand such contaminants and operate
properly for the minimum expected life of 50 years estimated in the
NPRM.
Response--RSPA agrees that an EFV is not recommended on a service
line where the operator has prior experience with contaminants in the
gas stream that could interfere with the EFV, cause loss of service to
a residence, or cause an operator to incur undue expense in removing an
inoperative EFV. An operator should, based on its previous history of
service line or equipment problems from contaminants, decide whether it
is appropriate to install an EFV. An operator should also consider if
an EFV installed on a service line could interfere with the operator's
operation and maintenance procedures.
Regulatory Notices and Analyses
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is a significant regulatory action under Executive
Order 12866. Therefore, it was reviewed by the Office of Management and
Budget. In addition, the final rule is significant under DOT's
regulatory policies and procedures (44 FR 11034; February 26, 1979)
because it concerns a matter of substantial interest to the public and
Congress.
Cost/Benefit Analysis (EFV--Performance Standards)
Since the final rule does not require mandatory installation of
EFVs, the performance requirements of this rule will not impact gas
distribution systems not currently installing EFVs unless they begin
installing EFVs. This rule will impact manufacturers of EFVs. As
previously mentioned, OPS will be initiating a separate rulemaking to
propose that customers be notified that EFVs are available for
installation and will be installed at customer expense. This means that
all gas distribution systems may soon be installing EFVs, and, thus,
may be impacted by the new EFV performance standards.
The new EFV performance standards will help ensure that gas
distribution companies that currently install EFVs, as well as those
that begin to install EFVs on their own or because of a new
notification rule, properly install these EFVs. Furthermore, these
standards, by helping to ensure that newly installed EFVs are
manufactured to function properly (e.g., close when they are supposed
to and not close when they are not supposed to), will reduce the cost
of improper closure to both gas distribution system operators and the
general public. The standards will also help keep substandard valves
from entering the marketplace, thereby providing some assurance of
reliability to both operators and customers. As a further result of
these standards, reliable EFVs installed on compatible service lines
will help mitigate the consequences of incidents on service lines.
The cost/benefit study accompanying this rule estimates and
compares the benefits and costs of the EFV performance standards to
determine whether the standards, taken as a whole, would be cost
beneficial. This study estimates the expected benefits and costs of
installing one EFV and uses these estimates to calculate a benefit/cost
ratio. This approach yields the same benefit/cost ratio as an approach
considers the number of EFVs installed in each year, but is less
complicated and cumbersome, since it does not require the estimation of
(1) the number of services expected to be renewed each year, (2) the
number of new services expected to be installed each year, and (3) the
number of existing services that will be discontinued each year.
The primary sources of EFV data used in the analysis were (1) the
written submissions to the Docket for this rulemaking made by gas
distribution companies, EFV manufacturers, and other interested parties
and (2) direct contacts with gas distribution companies, EFV
manufacturers, and other interested parties.
The pipeline incident data used in this analysis was taken
primarily from the incident and annual report submissions made to OPS
by gas distribution companies. These
[[Page 31458]]
submissions are required under the Federal pipeline safety regulations.
All dollar figures in the study are given in nominal dollars,
unless otherwise indicated. Where deflation of nominal dollar figures
has been performed, the Producer Price Index, All Commodities, with
1993 as the base, has been used.
As summarized below, benefits, costs, and net benefits were
developed for (1) the standards for EFV installation, (2) marking
requirements, and (3) the performance requirements. The complete
Benefit/Cost Analysis for EFV Performance Standards, dated August 1995,
is available in the Docket.
Standards for EFV Installation
The final rule requires that an EFV installed on a single-family
residential gas service that always operates at 10 psig or greater (1)
must be rated by the manufacturer for use at the pressure and flow rate
anticipated on the service line and (2) must meet the applicable
requirements of Subparts B and D of Part 192. The final rule also
recommends that an installed EFV be placed as near as practical to the
main. Although this rule specifies standards for EFV installation, the
installation of EFVs is not mandatory. However, if an EFV is installed,
the regulatory standards will help ensure the EFV performs as expected
and protects the maximum length of the most vulnerable portion of a
service line.
The standards for EFV installation appear to be consistent with
current industry practice. Consequently, the benefits, costs, and net
benefits of the requirements are all expected to be $0 per EFV per
year.
Marking Requirements
The new marking requirement will enable gas distribution system
operating and service personnel to know if a service line has an EFV
installed when responding to a service outage or other service line
call. This will make it possible for the personnel to safely initiate
correct repair procedures. The new marking requirement is expected to
reduce deaths and injuries to gas distribution system personnel, and to
reduce damage to the system and nearby property.
The requirement to mark or otherwise identify services with EFVs is
consistent with current industry practice. As a consequence, the
benefits, costs, and net benefits are all expected to be $0 per EFV per
year.
Performance Requirements
The final rule sets performance requirements for all newly
installed EFVs on single-family residential services operating at 10
psig or greater. These performance requirements are to be ensured
through design, manufacturing, and testing by EFV manufacturers in
accordance with an industry specification or with the manufacturer's
written specifications.
The performance requirements will help ensure the reliability of
EFVs. Greater reliability will result in (1) the replacement of fewer
EFVs by gas distribution systems and (2) an increase in the number of
EFV actuations when there are catastrophic service line breaks. The
primary benefit of the new performance requirements will be an
increased average reliability of the EFVs on the market. This assumes
that all EFVs currently on the market are not fully consistent with the
new requirements, which appears to be the case. A secondary benefit
will be the assurance that the quality of EFVs will not degrade (with
respect to the performance characteristics covered by the new
performance requirements) in the future.
The new performance requirements for EFVs cover (1) rated maximum
operating pressure, (2) the impact of external temperature, (3) sizing,
(4) reduction in gas flow upon closure, and (5) inappropriate closure.
The requirements for rated maximum operating pressure, the impact of
external temperature, and sizing appear to be consistent with current
industry practice. The benefits of the new performance requirements are
expected to be between $15,675 and $1,254 per year. The costs are
expected to be $0 per year. Consequently, the net benefits are expected
to be between $15,675 and $1,254 per year.
The net benefits calculated for the performance requirements do not
include (1) the costs related to the redesign of EFVs, (2) the full
monetary value of the benefits accruing to gas distribution companies
that currently install EFVs, and (3) the monetary value of the benefits
that will accrue to gas distribution companies that install EFVs in the
future.
Present Value of the Net Benefits
The net benefits for the new performance requirements are the sum
of the net benefits of (1) EFV installation standards, (2) the marking
requirements, and (3) the EFV performance requirements. Since the net
benefits for the EFV installation standards and for the marking
requirements are expected to be greater than $0 per year, while the net
benefits for the new performance requirements are expected to be
between $15,674 and $1,254 per year, the total net benefits for the EFV
requirements specified in the final rule will be, at most, greater than
$15,674, and, at least, greater than $1,254 per year. Discounted over
50 years (the life of an EFV assumed by OPS) using a 7 percent discount
rate, the present value of the total net benefits is expected to be, at
most, greater than $223,768, and, at least, greater than $17,901. Since
costs are $0, their present value is also $0 and the cost-to-benefit
ratio is 0 at both the upper and lower bounds of the benefits.
Conclusion
The positive present value of the expected net benefits, as well as
the cost-to-benefit ratio of 0 at both the upper and lower bounds on
the benefits, indicate that the performance standards presented in the
final rule will be cost beneficial.
Regulatory Flexibility Act
Based on costing assumptions discussed in the Cost/Benefit
Analysis, this rule will not have an undue impact on small operators.
Therefore, I certify under section 605 of the Regulatory Flexibility
Act that the action will not have a significant economic impact on a
substantial number of small entities.
E.O. 12612
This rulemaking action will not have substantial direct effects on
states, on the relationship between the federal government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 12612
(52 FR 41685; October 30, 1987), RSPA has determined that this final
rule does not have sufficient federalism implications to warrant
preparation of a Federalism Assessment.
National Environmental Policy Act
RSPA has analyzed this action for purposes of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) and has determined
that this action would not significantly affect the quality of the
human environment. An Environmental Assessment and a Finding of No
Significant Impact are in the docket.
List of Subjects in 49 CFR Part 192
Pipeline safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, Part 192 is amended as follows:
PART 192--[AMENDED]
1. The authority citation for Part 192 continues to read as
follows:
[[Page 31459]]
Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110,
60113 and 60118; 49 CFR 1.53.
* * * * *
2. Part 192 is amended by adding Sec. 192.381 to subpart H to read
as follows:
Sec. 192.381 Service lines: Excess flow valve performance standards.
(a) Excess flow valves to be used on single residence service lines
that operate continuously throughout the year at a pressure not less
than 10 psig must be manufactured and tested by the manufacturer
according to an industry specification, or the manufacturer's written
specification, to ensure that each valve will:
(1) Function properly up to the maximum operating pressure at which
the valve is rated;
(2) Function properly at all temperatures reasonably expected in
the operating environment of the service line;
(3) At 10 psig:
(i) Be sized to close at, or not more than 50 percent above the
rated closure flow rate specified by the manufacturer; and
(ii) Upon closure, reduce gas flow--
(A) For an excess flow valve designed to allow pressure to equalize
across the valve, to no more than 5 percent of the manufacturer's
specified closure flow rate, up to a maximum of 20 cubic feet per hour;
or
(B) For an excess flow valve designed to prevent equalization of
pressure across the valve, to no more than 0.4 cubic feet per hour; and
(4) Not close when the pressure is less than the manufacturer's
minimum specified operating pressure and the flow rate is below the
manufacturer's minimum specified closure flow rate.
(b) An excess flow valve must meet the applicable requirements of
Subparts B and D of this part.
(c) An operator must mark or otherwise identify the presence of an
excess flow valve in the service line.
(d) An operator should locate an excess flow valve beyond the hard
surface and as near as practical to the fitting connecting the service
line to its source of gas supply.
(e) An operator should not install an excess flow valve on a
service line where the operator has prior experience with contaminants
in the gas stream, where these contaminants could be expected to cause
the excess flow valve to malfunction or where the excess flow valve
would interfere with necessary operation and maintenance activities on
the service, such as blowing liquids from the line.
Issued in Washington, DC, on June 14, 1996.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
[FR Doc. 96-15564 Filed 6-19-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-15299 Grade Crossing Signal System Safety
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31802-31812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15299]
[[Page 31801]]
_______________________________________________________________________
Part XI
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
_______________________________________________________________________
49 CFR Part 234
Grade Crossing Signal System Safety; Interim Final Rule
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules
and Regulations
[[Page 31802]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 234
[FRA Docket No. RSGC-5; Notice No. 8l
RIN 2130-AA97
Grade Crossing Signal System Safety
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Interim final rule amendments.
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DATES: This interim final rule is effective August 19, 1996.
Written comments concerning this rule must be filed no later than
July 22, 1996.
SUMMARY: FRA is amending the final rule requiring that railroads comply
with specific maintenance, inspection, and testing requirements for
active highway-rail grade crossing warning systems. The final rule
being amended also requires that railroads take specific and timely
actions to protect the traveling public and railroad employees from the
hazards posed by malfunctioning highway-rail grade crossing warning
systems. The amendments issued today are technical corrections which
clarify the rule which was published on September 30, 1994.
FOR FURTHER INFORMATION CONTACT: William Goodman, Staff Director,
Signal and Train Control, Office of Safety, FRA, 400 Seventh Street,
S.W. Washington, D.C. 20590 (telephone 202-366-2231), or Mark Tessler,
Office of Chief Counsel, FRA, 400 Seventh Street, S.W., Washington,
D.C. 20590 (telephone 202-366-0628) (e-mail address:
[email protected]) .
SUPPLEMENTARY INFORMATION:
Background
On September 30, 1994, FRA published a final rule (59 FR 50086)
requiring that railroads comply with specific maintenance, inspection,
and testing requirements for active highway-rail grade crossing warning
systems. The final rule also requires that railroads take specific and
timely actions to protect the traveling public and railroad employees
from the hazards posed by malfunctioning highway-rail grade crossing
warning systems.
Because maintenance, inspection, and testing and timely response to
warning device malfunctions is a new regulatory field, actual
experience under the new final regulations is invaluable in determining
where the regulations are working and where they need to be clarified
or revised. Shortly after the regulations were issued, an FRA Technical
Resolution Committee (TRC) met to discuss the regulations, their
interpretation and implementation. Included in the TRC were FRA signal
and train control specialists from across the country along with
headquarters staff. Representatives from labor and management (which
had earlier in the regulatory process submitted a proposal which became
the basis for the maintenance and inspection portion of the final rule)
were invited to attend certain sessions as non-voting members to offer
their perspective and expertise to the group, together with
representatives of two States active in the State Participation
Program. Although the purpose of this TRC was to develop the
appropriate application and interpretation of the final rule, the
discussion, together with other lessons learned during implementation,
also indicated the need to clarify certain portions of the regulatory
text. Additionally, the American Short Line Railroad Association, the
Brotherhood of Railroad Signalmen, and the Association of American
Railroads jointly filed a Petition for Reconsideration with FRA
requesting that FRA stay enforcement of certain sections of the final
rule (Secs. 234.215 and 234.223) pending further consideration of those
provisions. Subsequent to the joint filing, FRA issued and Interim
Policy Manual addressing, among others, the issues and questions raised
by the petitioners. FRA granted the petition for reconsideration
although it did not agree to stay enforcement since enforcement issues
had been addressed in the Interim Policy Manual. This notice is in part
a response to the joint petition for reconsideration.
FRA has not provided prior notice and request for public comment
prior to making the amendments contained in this rule. FRA has
concluded that such notice and comment are impracticable, unnecessary
and contrary to the public interest under 5 U.S.C. 553 since FRA is
either making minor technical changes in response to the past year's
operational experience of railroads and employees working under the
provisions of the final rule or the amendments are purely
``housekeeping''. Additionally, all issues addressed by these
amendments were previously the subject of detailed notice and extensive
comment in the development of the initial final rule in this
proceeding. However, interested parties may comment on this rule and
FRA will consider those comments. For this reason, FRA has issued this
as an interim final rule so that it can take effect while any comments
are being considered. If comments persuade FRA that further amendments
are necessary, it will address them in a subsequent notice. As noted
above, comments must be submitted no later than July 22, 1996.
Section-by-Section Amendments
Sec. 234.1 (``Scope'')
In order to correct a typographical error, the first sentence of
this section is being amending by adding ``for'' between ``testing
standards'' and ``highway-rail grade crossing.''
Sec. 234.3 (``Application'')
This section is not being changed, however, despite the attempt in
the preamble to the final rule to fully explain the type of rail
operations which are covered by these regulations, based on the number
of questions that have been posed, it has become clear that we were not
entirely successful. As stated in the rule, this part applies to all
railroads except (1) a railroad that exclusively operates freight
trains only on track which is not part of the general railroad system
of transportation, (2) rail rapid transit operations conducted over
track that is used exclusively for that purpose and that is not part of
the general railroad system of transportation, or (3) a passenger
railroad that operates trains only on track inside an installation that
is insular. Part 209 of title 49 of the Code of Federal Regulations
defines a railroad as any form of non-highway ground transportation
that runs on rails or electromagnetic guideways, excluding rapid
transit operations not connected to the general railroad system of
transportation. The following discussion addresses specific types of
rail operations and whether this rule applies to that operation.
Rail rapid transit--this part does not apply to rail rapid transit
operations conducted over track that is used exclusively for that
purpose and that is not part of the general railroad system of
transportation.
Rail passenger operations--this part does apply to passenger
railroad operations if any of the following exists on the line of
railroad: (a) a public highway-rail crossing that is in use; (b) an at
grade rail crossing that is in use; (c) a bridge over a public road or
waters used for commercial navigation; (d) or its operations are within
30 feet of those of any other railroad. If any of these conditions
exist, all grade crossings over which the railroad operates, both
public and private crossings, are subject to this rule. It is important
to note that the fact that a passenger railroad is not
[[Page 31803]]
connected to the general railroad system does not in itself affect a
railroad's duty to comply with this part. An analysis must be made as
to the presence of the above mentioned factors.
Rail freight operations--this part applies to all freight railroads
which are part of the general railroad system of transportation. FRA's
regulations generally exclude railroads whose entire operations are
confined to an industrial installation, i.e., ``plant railroads'' such
as those in steel mills that do not go beyond the plant's boundaries.
However, even where a railroad operates outside of the general system,
other railroads that are part of that system may have occasion to enter
the first railroad's property. In that case the plant railroad would
have to meet FRA's highway-rail grade crossing warning system standards
if a general system railroad operated over the grade crossing. These
regulations do not apply to a freight carrying railroad (and the grade
crossings over which it operates ) which is not part of the general
railroad system of transportation. Both public and private crossings
that general system railroads operate over are covered by this part.
Sec. 234.5 (``Definitions'')
A benefit of reviewing FRA's and railroads' experience with this
new rule is that ``fine tuning'' can be accomplished based on real
world experience. Shortly after the rule was implemented, it became
clear that the rule did not adequately address those cases in which a
portion of a warning system operated correctly while other portions or
components did not perform as intended. FRA is revising the definition
of ``activation failure'' and is newly defining ``partial activation''
to address those situations.
The definition of ``activation failure'' is being revised to
provide that activation failure includes the situation in which a grade
crossing signal system does not indicate the approach of a train within
the meaning of this paragraph if--(1) more than 50% of the flashing
lights (not gate arm lights) on any approach lane to the crossing are
not functioning as intended, or (2) in the case of an approach lane for
which two or more pairs of flashing lights are provided, there is not
at least one flashing light pair operating as intended. Back lights on
the far side of the crossing are not considered in making these
determinations. FRA believes that if more than half of the flashing
lights directed to a motorist's approach are not operating properly, a
motorist does not receive sufficient warning that a train is
approaching. Similarly, if a motorist's approach is normally provided
with one or more pairs of alternately flashing lights, if at least one
pair is not operating properly, sufficient warning is not being
provided.
The definition of ``appropriately equipped flagger'' is being
revised to leave greater discretion with railroads in determining the
type of clothing to be worn by flaggers. The definition contained in
the final rule was based on the Federal Highway Administration's
standards pertaining to flaggers and flagging equipment for highway
traffic control contained in the Manual on Uniform Traffic Control
Devices (MUTCD). FRA has received information from manufacturers that
the requirement for nighttime visibility of 1000 feet is not possible
to meet under all conditions and therefore manufacturers can not
certify to a purchaser that the clothing would comply with the
regulatory requirement. FRA is thus deleting the 1000 feet requirement.
While it is revising its requirements from those standards for highway
construction flagging contained in the MUTCD, FRA recommends that
railroads be aware of the standards and follow them to the greatest
extent possible. Copies of the latest MUTCD provisions regarding
flagging will be available from FRA, as well as FHWA, as changes are
made in this area.
FRA is clarifying this provision by redefining ``appropriately
equipped flagger'' as ``a person other than a train crewmember who is
equipped with a vest, shirt, or jacket of a color appropriate for
daytime flagging such as orange, yellow, strong yellow green or
fluorescent versions of these colors or other generally accepted high
visibility colors. For nighttime flagging, similar outside garments
shall be retro reflective. Acceptable hand signal devices for daytime
flagging include `` STOP/SLOW'' paddles or red flags. For nighttime
flagging, a flashlight, lantern, or other lighted signal shall be
used.''
Please note that this definition is also being clarified by
replacing the ``and'' in ``STOP/SLOW paddles and red paddles'' with
``or''. Additionally, this provision will now permit yellow-green
clothing and other generally acceptable colors.
As noted above, FRA is adding a definition of''partial
activation''to address those situations in which the warning provided a
motorist by a malfunctioning system is of a level that supplemental
actions are necessary to provide an adequate level of safety. ``Partial
activation'' means activation of a highway-rail grade crossing warning
system indicating the approach of a train, however, the full intended
warning is not provided due to one of the following conditions:
(1) At non-gated crossings equipped with one pair of lights
designed to flash alternately, one of the two lights does not operate
properly (and approaching motorists can not clearly see flashing back
lights from the warning lights on the other side of the crossing);
(2) At gated crossings, the gate arm is not in a horizontal
position; or
(3) At gated crossings, any portion of a gate arm is missing if
that portion had held a gate arm flashing light.
Sec. 234.6 (``Penalties'')
This section is being clarified in two ways. First, a typographical
error is corrected in the phrase ``imminent hazard of death of
injury.'' That phrase should read ``imminent hazard of death or
injury.'' Additionally, this section is being amended to ensure that
the original intent of FRA is understood by the regulated community as
well as by FRA and State inspectors enforcing this rule. Railroads can
not be held responsible for conditions of non-compliance with the rule
which are beyond their control. Actions of third parties can cause
grade crossing warning systems to be in noncompliance. For instance,
large motor vehicles may brush flashing lights, resulting in
misalignment. Motorists often break off gates. Vandals sometimes break
flashing light units. Railroads should not be liable under this rule
for those conditions over which they have no control and which the
railroad could not have prevented through the exercise of due
diligence. The concept of due diligence includes the obligation to take
appropriate action when a railroad discovers an instance of non-
compliance or when it receives sufficiently reliable information
suggesting non-compliance that warrants investigation. Accordingly,
this section is being clarified to include the following: ``The
railroad is not responsible for compliance with respect to any
condition inconsistent with the technical standards set forth in this
part where such variance arises as a result of actions beyond the
control of the railroad and the railroad could not have prevented the
variance through the exercise of due diligence. The foregoing sentence
does not excuse any instance of noncompliance resulting from the
actions of the railroad's employees, agents, or contractors.'' This
clarification as to the compliance obligations of railroads under Part
234 is in no way intended to affect whatever common law liability the
railroad may otherwise be subject to.
[[Page 31804]]
Sec. 234.9 (``Grade crossing system failure reports'')
Paragraph ``a''. There appears to be some confusion as to where
activation reports required by this paragraph are to be sent. This
paragraph states that reports should be completed in accordance with
instructions printed on the form. At the present time, the form
requires that the report should be sent to the FRA's headquarters. FRA
is in the process of amending the instructions to instruct railroads to
send the forms to the FRA regional office in which the railroad
headquarters is located. While we prefer that reports be sent to the
regional offices, until the form is changed, a railroad may continue to
send reports to Washington.
Paragraph ``b''. This section relating to false activation reports,
expired on April 1, 1994. This paragraph is therefore being deleted.
Sec. 234.11 (``Railroad rules'')
This section, originally part of the 1991 reporting rule, was
necessary to provide FRA with background information to assist FRA in
formulating maintenance, inspection, and testing requirements. Inasmuch
as the rules have been instituted, there is no further need for the
information required by this section. This section was inadvertently
retained in the final rule and is therefore now being deleted.
Sec. 234.13 (``Grade crossing signal systems information'')
This section required that certain grade crossing information be
filed with FRA by April 1, 1992. This section was inadvertently
retained in the final rule and is therefore now being deleted.
Sec. 234.103 (``Timely response to reported malfunctions'').
Paragraph ``b'' of this section requires that until repair or
correction of the warning system is completed, the railroad shall
provide alternative means of warning highway traffic and railroad
employees in accordance with Secs. 234.105 (``activation failure'') and
234.107 (``false activation''). This paragraph is being revised to
include reference to new Sec. 234.106 (``partial activation'').
Sec. 234.106 (``Partial activation'')
This new section clarifies the responsibilities of a railroad in
the situation in which a grade crossing warning device provides some
warning of an approaching train, but at a level less than that designed
for the system. This section requires that upon receipt of a credible
report of a partial activation, a railroad having maintenance
responsibility for the warning system shall promptly initiate efforts
to warn highway users and railroad employees at the subject crossing in
the same manner as required for false activation in Sec. 234.107.
Sec. 234.207 (``Adjustment, repair, or replacement of component'')
Paragraph ``b'' of this section is being amended to include
Sec. 234.106 (partial activation) among those sections based upon which
a railroad must take certain action until repair of an essential
component is completed. Thus, until repair of an essential component is
completed, a railroad shall take appropriate action under Sec. 234.105
(``activation failure''), Sec. 234.106 (``partial activation''), or
Sec. 234.107 (``false activation'').
Sec. 234.215 (``Standby power'')
Under the provisions of the final rule, this section requires the
railroad to provide a backup power source so that the warning system
will continue to function normally until the primary source of power is
restored. This section was the subject of the Petition for
Reconsideration submitted by the Brotherhood of Railroad Signalmen, the
American Short Line Railroad Association, and the Association of
American Railroads in which they jointly requested reconsideration of
certain aspects of the final rule. The petition for reconsideration
requested that FRA stay enforcement of this section's requirement that
a standby source of power ``be provided with sufficient capacity to
operate the warning system during any period of primary power
interruption.'' As noted above, FRA granted the petition for
reconsideration.
In its Interim Policy Manual issued on April 14, 1995, FRA
indicated that ``this section requires the railroad to provide a backup
power source so that the warning system will continue to function
normally until the primary source of power is restored.'' This section
is being revised to more clearly reflect the proper interpretation of
the rule language. FRA is therefore amending this provision to provide
that a railroad is required to install and properly maintain a standby
power source in order to operate the system for a reasonable length of
time during a primary power interruption. Determining the capacity of
the standby power source will be at the discretion of each individual
railroad. The designated capacity must be specified on the system plans
required to be kept at each grade crossing warning system location.
Factors which should be considered by the railroad are the power
demands of particular location, the likelihood of discovery of the
primary power outage (i.e., the presence of electronic notification
devices, power off indicators, likelihood of employee discovery), the
availability and proximity of maintenance employees, and the number of
trains that are operated over the crossing.
Sec. 234.223 (``Gate arm'')
This section is amended to clarify that the provision requiring
that each gate arm shall assume the horizontal position at least five
seconds before the arrival of any train at the crossing applies to
normal train movements through the crossing. By adding ``normal train
movement through the crossing'' we are making clear that the five
second requirement does not apply when trains are performing switching
operations or making station stops within the grade crossing approach
circuit. This section was intended to ensure that when a train enters
the approach circuit to the grade crossing without stopping, the gates
will be down at least five seconds prior to the arrival of such train.
While it is possible to design and install the approach circuits to
activate the system in a predetermined amount of time for a train's
entrance onto such approach circuit, it is not possible to ensure the
timing of the warning system gates for train movements such as
switching movements and passenger train stops made within the approach
circuit. Train crews must adhere to railroad operating rules before
entering a grade crossing while performing switching movements or
departing from stations.
Sec. 234.225 (``Activation of warning system.'')
This section requires that each highway-rail grade crossing warning
system be maintained to activate in accordance with the design of the
warning system, but in no event shall it provide less than 20 seconds
warning time before the crossing is occupied by rail traffic. This
section is being amended to clarify that the 20 second warning time
requirement applies to normal through train operations rather than
switching movements or train operations that require stopping short of
the grade crossing. A crossing warning system is not designed for those
situations in which a switching movement occupies a grade crossing
approach circuit or trains stop short of a grade crossing. In those
situations the warning system activates but if a train does not cross
the grade crossing itself within a set period of time (or in newer
[[Page 31805]]
designs if the motion detector does not detect motion) the system will
cease providing a warning (``time out''). When the train then occupies
the crossing after the system has timed out, a full 20 seconds warning
time may not be provided. In those cases, railroad operating rules
require that alternative warning be provided the motorist.
Sec. 234.231 (``Fouling wires'')
This section addressed the situation in which a turnout located
within a grade crossing train detection circuit is equipped with
fouling wires. This section is being revised to clarify that
installation of a single duplex wire with a single plug acting as
fouling wires is prohibited. The revised section provides that existing
installations having single duplex wires with a single plug acting as
fouling wires may be continued in use until they require repair or
replacement.
Sec. 234.237 (``Switch equipped with circuit controller'')
The heading for this section was ``Switch equipped with circuit
controller.'' This heading is being changed to the more accurate and
descriptive ``Reverse switch cut-out circuit.''
Sec. 234.239 (``Tagging of wires and interference of wires or tags with
signal apparatus'')
This section is being revised to clarify that its requirements
apply to each wire at each terminal in all housings, including switch
circuit controllers and terminal or junction boxes. This section does
not apply to flashing light units, gate arm light units and other
auxiliary light units. Further clarification is provided by stating
that the local wiring on a solid state crossing controller rack will
not require tags if the wiring is an integral part of the solid state
equipment.
Sec. 234.247 (``Purposes of inspections and tests; removal from service
of relay or device failing to meet test requirements'')
This section addresses the purposes of inspections and tests and
the removal from service of devices failing to meet test requirements.
Subpart D of Part 234 (Maintenance, Inspection, and Testing) is not
intended to apply to grade crossing warning systems on out of service
track. To do otherwise would create a pointless regulatory requirement
in which tests and inspections are performed to ensure the operability
of a device that will not be operating. Accordingly, this section is
being clarified to provide that the provisions of Subpart D apply only
to active railroad tracks. If a railroad elects not to comply with the
requirements of this subpart because a track is out of service, or the
railroad suspends operations during a portion of the year, a full
inspection and tests of all required components must be successfully
completed before operations resume. FRA is therefore revising the first
sentence and adding an additional sentence of this section to read:
``The inspections and tests set forth in Secs. 234.249 through 234.271
are required at highway-rail grade crossings located on in-service
railroad tracks and shall be made to determine if the warning system
and its component parts are maintained in a condition to perform their
intended function. A railroad may elect not to comply with the
requirements of these sections if tracks over the grade crossing are
out of service or the railroad suspends operations during a portion of
the year, and the grade crossing warning system is also temporarily
taken out of service. A full inspection and all required tests must be
successfully completed before railroad operations over the grade
crossing resume.''
Sec. 234.259 (``Warning time'')
This section is being amended to provide that, in addition to
testing the warning system for the prescribed warning time every 12
months, the system be tested whenever it is modified because of a
change in train speeds. The preamble to the final rule noted that the
labor/management group ``state that it would be more appropriate to
test warning time once each year, or when the warning system is
modified in connection with changes in authorized train speeds.'' FRA
accepted this suggestion and extended the period between tests from
three months to one year but inadvertently omitted the requirement that
the system be tested whenever modified due to changes in authorized
train speeds. Although the preamble to the final rule indicated FRA's
intention to include this in the final rule, such language was not in
fact included. This section is being revised to correct that oversight.
Sec. 234.263 (``Relays'')
This section is being revised to add a new subsection ``c'' to
provide a phase-in period for the industry to test relays, which, as of
the effective date of the rule, had not been tested within the period
required by this section. As it has in done in appropriate
circumstances in the past, FRA is providing a ``phase-in'' period to
allow railroads to come into compliance with certain provisions of the
new rule. In situations such as this, when tests are required every
one, two, or four years, or in the case of insulation resistance tests
(Sec. 234.267), every ten years, FRA establishes a schedule by which a
railroad must be in full compliance with a new testing requirement. To
do otherwise would result in numerous violations immediately upon the
effective date of a new rule. Such a result would be unfair and would
not necessarily lead to improved safety. FRA is thus adding new
subsection ``c'' to provide that not less than 50% of relays requiring
testing on four year intervals shall be completed by the end of
calendar year 1996, not less than a total of 75% by the end of calendar
year 1997; and 100% by the end of calendar year 1998. New subsection
``d'' provides that testing of relays requiring testing on two year
intervals shall be completed by the end of calendar year 1996.
Sec. 234.265 (``Timing relays and timing devices'')
This section requires that each timing relay and timing device be
tested at least once every twelve months. It also requires that the
timing be maintained at not less than 90% nor more than 110% of the
predetermined time interval. The predetermined time interval must be
shown on the plans or marked on the timing relay or timing device.
This section is being revised to clarify that internal timing
devices associated with motion detectors, motion sensors, and grade
crossing predictors are not subject to the requirements of this
section.
Sec. 234.267 (``Insulation resistance tests, wires in trunking and
cables'')
The heading for this section was accurate in the preamble of the
final rule, but was incomplete in the actual body of the rule.
Accordingly, the heading is being amended to add ``wires in trunking
and cables'' to ``Insulation resistance tests.''
As it has done with relay testing (Sec. 234.263), FRA is providing
a ``phase-in'' period to allow railroads to come into compliance with
the testing provisions of this new requirement. FRA is thus adding new
section ``e'' to provide that not less than 50% of the required
insulation resistance testing shall be completed by the end of calendar
year 1996, not less than a total of 75% by the end of calendar year
1997; and 100% by the end of calendar year 1998.
[[Page 31806]]
Sec. 234.273 (``Results of tests'')
The language of this section is incomplete in that it excludes
``inspections'' from both the title and the body of the rule, despite
the clear understanding that Secs. 234.247 through 234.271 includes
both inspections and tests. The TRC recommended that the language in
this section be amended to more closely reflect the purpose of the
rule. Therefore, this section is being amended to include
``inspections'' together with ``tests.''
E.O. 12866 and DOT Regulatory Policies and Procedures
These amendments have been evaluated in accordance with existing
policies and procedures. Because these amendments are primarily
technically oriented and generally reduce the regulatory burden on
railroads, FRA has concluded that this revisions do not constitute a
significant rule under either Executive Order 12866 or DOT's regulatory
policies and procedures.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of rules to assess their impact on small entities.
FRA certifies that this rule will not have a significant impact on a
substantial number of small entities. There are no substantial economic
impacts for small units of government, businesses, or other
organizations.
Paperwork Reduction Act
These amendments to Part 234 do not change any information
collection requirements.
Environmental Impact
FRA has evaluated these regulations in accordance with its
procedure for ensuring full consideration of the potential
environmental impacts of FRA actions, as required by the National
Environmental Policy Act and related directives.
Federalism Implications
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, ``Federalism,'' and it has
been determined that these amendments to Part 234 do not have
federalism implications to warrant the preparation of a Federalism
Assessment.
Since a number of technical and clarifying changes are being made
to this part, the entire part is being republished as amended. In that
way interested parties do not need to wait for the next publication of
the yearly codification of the Code of Federal Regulations for a
complete current version of the rule.
List of Subjects in 49 CFR Part 234
Railroad safety, Highway-rail grade crossings.
The Rule
In consideration of the foregoing, 49 CFR part 234 is revised as
follows:
PART 234--GRADE CROSSING SIGNAL SYSTEM SAFETY [AMENDED]
Subpart A--General
Sec.
234.1 Scope.
234.3 Application.
234.4 Preemptive effect.
234.5 Definitions.
234.6 Penalties.
Subpart B--Reports
234.7 Accidents involving grade crossing signal failure.
234.9 Grade crossing signal failure reports.
Subpart C-- Response to Reports of Warning System Malfunction
234.101 Employee notification rules.
234.103 Timely response to report of malfunction.
234.105 Activation failure.
234.107 False activation.
234.109 Recordkeeping
Subpart D--Maintenance, Inspection, and Testing
Maintenance Standards
234.201 Location of plans.
234.203 Control circuits.
234.205 Operating characteristics of warning system apparatus.
234.207 Adjustment, repair, or replacement of component.
234.209 Interference with normal functioning of system.
234.211 Locking of warning system apparatus.
234.213 Grounds.
234.215 Standby power system.
234.217 Flashing light units.
234.219 Gate arm lights and light cable.
234.221 Lamp voltage.
234.223 Gate arm.
234.225 Activation of warning system.
234.227 Train detection apparatus.
234.229 Shunting sensitivity.
234.231 Fouling wires.
234.233 Rail joints.
234.235 Insulated rail joints.
234.237 Reverse switch cut-out circuit.
234.239 Tagging of wires and interference of wires or tags with
signal apparatus.
234.241 Protection of insulated wire; splice in underground wire.
234.243 Wire on pole line and aerial cable.
234.245 Signs.
Inspections and Tests
234.247 Purpose of inspections and tests; removal from service of
relay or device failing to meet test requirements.
234.249 Ground tests.
234.251 Standby power.
234.253 Flashing light units and lamp voltage.
234.255 Gate arm and gate mechanism.
234.257 Warning system operation.
234.259 Warning time.
234.261 Highway traffic signal pre-emption.
234.263 Relays.
234.265 Timing relays and timing devices.
234.267 Insulation resistance tests, wires in trunking and cables.
234.269 Cut-out circuits.
234.271 Insulated rail joints, bond wires, and track connections.
234.273 Results of tests.
Appendix A--Schedule of Civil Penalties.
Appendix B--Alternate Methods of Protection under 49 CFR 234.105(c),
234.106, and 234.107(c).
Authority: 49 U.S.C.20103, 20107, 20108, 20111, 20112, 20114,
21301, 21302, 21304, and 21311 (formerly Secs. 202, 208, and 209 of
the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 431,
437, and 438, as amended)); 49 U.S.C.20901 and 20102 (formerly the
Accident Reports Act); 45 U.S.C. 38 and 42; and 49 CFR 1.49(f), (g),
and (m).
Subpart A--General
Sec. 234.1 Scope.
This part imposes minimum maintenance, inspection, and testing
standards for highway-rail grade crossing warning systems. This part
also prescribes standards for the reporting of failures of such systems
and prescribes minimum actions railroads must take when such warning
systems malfunction. This part does not restrict a railroad from
adopting and enforcing additional or more stringent requirements not
inconsistent with this part.
Sec. 234.3 Application.
This part applies to all railroads except:
(a) A railroad that exclusively operates freight trains only on
track which is not part of the general railroad system of
transportation;
(b) Rapid transit operations within an urban area that are not
connected to the general railroad system of transportation; and
(c) A railroad that operates passenger trains only on track inside
an installation that is insular; i.e., its operations are limited to a
separate enclave in such a way that there is no reasonable expectation
that the safety of the public--except a business guest, a licensee of
the railroad or an affiliated entity, or a trespasser--would be
affected by the operation. An operation will not be considered insular
if one or more of the following exists on its line:
(1) A public highway-rail crossing that is in use;
(2) An at-grade rail crossing that is in use;
[[Page 31807]]
(3) A bridge over a public road or waters used for commercial
navigation; or
(4) A common corridor with a railroad, i.e., its operations are
within 30 feet of those of any railroad.
Sec. 234.4 Preemptive effect.
Under 49 U.S.C. 20106 (formerly Sec. 205 of the Federal Railroad
Safety Act of 1970 (45 U.S.C. 434)), issuance of these regulations
preempts any State law, rule, regulation, order, or standard covering
the same subject matter, except a provision directed at an essentially
local safety hazard that is consistent with this part and that does not
impose an undue burden on interstate commerce.
Sec. 234.5 Definitions.
As used in this part:
``Activation failure'' means the failure of an active highway-rail
grade crossing warning system to indicate the approach of a train at
least 20 seconds prior to the train's arrival at the crossing, or to
indicate the presence of a train occupying the crossing, unless the
crossing is provided with an alternative means of active warning to
highway users of approaching trains. (This failure indicates to the
motorist that it is safe to proceed across the railroad tracks when, in
fact, it is not safe to do so.) A grade crossing signal system does not
indicate the approach of a train within the meaning of this paragraph
if--more than 50% of the flashing lights (not gate arm lights) on any
approach lane to the crossing are not functioning as intended, or in
the case of an approach lane for which two or more pairs of flashing
lights are provided, there is not at least one flashing light pair
operating as intended. Back lights on the far side of the crossing are
not considered in making these determinations.
``Appropriately equipped flagger'' means a person other than a
train crewmember who is equipped with a vest, shirt, or jacket of a
color appropriate for daytime flagging such as orange, yellow, strong
yellow green or fluorescent versions of these colors or other generally
accepted high visibility colors. For nighttime flagging, similar
outside garments shall be retro reflective. Acceptable hand signal
devices for daytime flagging include `` STOP/SLOW'' paddles or red
flags. For nighttime flagging, a flashlight, lantern, or other lighted
signal shall be used. Inasmuch as Part VI of the Federal Highway
Administration's Manual on Uniform Traffic Control Devices addresses
standards and guides for flaggers and flagging equipment for highway
traffic control, FRA recommends that railroads be aware of the
standards and follow them to the greatest extent possible. Copies of
the latest MUTCD provisions regarding flagging will be available from
FRA, as well as FHWA, as changes are made in this area.
``Credible report of system malfunction'' means specific
information regarding a malfunction at an identified highway-rail
crossing, supplied by a railroad employee, law enforcement officer,
highway traffic official, or other employee of a public agency acting
in an official capacity.
``False activation'' means the activation of a highway-rail grade
crossing warning system caused by a condition that requires correction
or repair of the grade crossing warning system. (This failure indicates
to the motorist that it is not safe to cross the railroad tracks when,
in fact, it is safe to do so.)
``Highway-rail grade crossing'' means a location where a public
highway, road, street, or private roadway, including associated
sidewalks and pathways, crosses one or more railroad tracks at grade.
``Partial activation'' means activation of a highway-rail grade
crossing warning system indicating the approach of a train, however,
the full intended warning is not provided due to one of the following
conditions:
(1) at non-gated crossings equipped with one pair of lights
designed to flash alternately, one of the two lights does not operate
properly (and approaching motorists can not clearly see flashing back
lights from the warning lights on the other side of the crossing);
(2) at gated crossings, the gate arm is not in a horizontal
position; or
(3) at gated crossings, any portion of a gate arm is missing if
that portion normally had a gate arm flashing light attached.
``Train'' means one or more locomotives, with or without cars.
``Warning system malfunction'' means an activation failure, a
partial activation, or a false activation of a highway-rail grade
crossing warning system.
Sec. 234.6 Penalties.
(a) Civil penalty. Any person (including but not limited to a
railroad; any manager, supervisor, official, or other employee or agent
of a railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any employee of such owner,
manufacturer, lessor, lessee, or independent contractor) who violates
any requirement of this part or causes the violation of any such
requirement is subject to a civil penalty of at least $500, but not
more than $10,000 per violation, except that: penalties may be assessed
against individuals only for willful violations, and where a grossly
negligent violation or a pattern of repeated violations has created an
imminent hazard of death or injury to persons, or has caused death or
injury, a penalty not to exceed $20,000 per violation may be assessed.
Each day a violation continues shall constitute a separate offense.
Appendix A to this part contains a schedule of civil penalty amounts
used in connection with this rule. The railroad is not responsible for
compliance with respect to any condition inconsistent with the
technical standards set forth in this part where such variance arises
as a result of actions beyond the control of the railroad and the
railroad could not have prevented the variance through the exercise of
due diligence. The foregoing sentence does not excuse any instance of
noncompliance resulting from the actions of the railroad's employees,
agents, or contractors.
(b) Criminal penalty. Whoever knowingly and willfully makes, causes
to be made, or participates in the making of a false entry in reports
required to be filed by this part, or files a false report or other
document required to be filed by this part is subject to a $5,000 fine
and 2 years imprisonment as prescribed by 49 U.S.C. 522(a) and section
209(e) of the Federal Railroad Safety Act of 1970, as amended (45
U.S.C. 438(e)).
Subpart B--Reports
Sec. 234.7 Accidents involving grade crossing signal failure.
(a) Each railroad shall report to FRA every impact between on-track
railroad equipment and an automobile, bus, truck, motorcycle, bicycle,
farm vehicle, or pedestrian at a highway-rail grade crossing involving
an activation failure. Notification shall be provided to the National
Response Center within 24 hours of occurrence at (800) 424-0201.
Complete reports shall thereafter be filed with FRA pursuant to
Sec. 234.9 of this part (activation failure report) and 49 CFR 225.11
(accident/ incident report).
(b) Each telephone report must state the:
(1) Name of the railroad;
(2) Name, title, and telephone number of the individual making the
report;
(3) Time, date, and location of accident;
(4) U. S. DOT-AAR Grade Crossing Identification Number;
[[Page 31808]]
(5) Circumstances of the accident, including operating details of
the grade crossing warning device;
(6) Number of persons killed or injured, if any;
(7) Maximum authorized train speed; and
(8) Posted highway speed limit, if known.
Sec. 234.9 Grade crossing signal system failure reports.
Each railroad shall report to FRA within 15 days each activation
failure of a highway-rail grade crossing warning system. FRA Form No.
6180-83, ``Highway-Rail Grade Crossing Warning System Failure Report,''
shall be used for this purpose and completed in accordance with
instructions printed on the form.
Subpart C--Response to Reports of Warning System Malfunction
Sec. 234.101 Employee notification rules.
Each railroad shall issue rules requiring its employees to report
to persons designated by that railroad, by the quickest means
available, any warning system malfunction.
Sec. 234.103 Timely response to report of malfunction.
(a) Upon receipt of a credible report of a warning system
malfunction, a railroad having maintenance responsibility for the
warning system shall promptly investigate the report and determine the
nature of the malfunction. The railroad shall take appropriate action
as required by Sec. 234.207.
(b) Until repair or correction of the warning system is completed,
the railroad shall provide alternative means of warning highway traffic
and railroad employees in accordance with Secs. 234.105, 234.106 or
234.107 of this part.
(c) Nothing in this subpart requires repair of a warning system,
if, acting in accordance with applicable State law, the railroad
proceeds to discontinue or dismantle the warning system. However, until
repair, correction, discontinuance, or dismantling of the warning
system is completed, the railroad shall comply with this subpart to
ensure the safety of the traveling public and railroad employees.
Sec. 234.105 Activation failure.
Upon receipt of a credible report of warning system malfunction
involving an activation failure, a railroad having maintenance
responsibility for the warning system shall promptly initiate efforts
to warn highway users and railroad employees at the subject crossing by
taking the following actions:
(a) Prior to any train's arrival at the crossing, notify the train
crew of the report of activation failure and notify any other railroads
operating over the crossing;
(b) Notify the law enforcement agency having jurisdiction over the
crossing, or railroad police capable of responding and controlling
vehicular traffic; and
(c) Provide for alternative means of actively warning highway users
of approaching trains, consistent with the following requirements (see
Appendix B for a summary chart of alternative means of warning):
(1)(i) If an appropriately equipped flagger provides warning for
each direction of highway traffic, trains may proceed through the
crossing at normal speed.
(ii) If at least one uniformed law enforcement officer (including a
railroad police officer) provides warning to highway traffic at the
crossing, trains may proceed through the crossing at normal speed.
(2) If an appropriately equipped flagger provides warning for
highway traffic, but there is not at least one flagger providing
warning for each direction of highway traffic, trains may proceed with
caution through the crossing at a speed not exceeding 15 miles per
hour. Normal speed may be resumed after the locomotive has passed
through the crossing.
(3) If there is not an appropriately equipped flagger or uniformed
law enforcement officer providing warning to highway traffic at the
crossing, each train must stop before entering the crossing and permit
a crewmember to dismount to flag highway traffic to a stop. The
locomotive may then proceed through the crossing, and the flagging
crewmember may reboard the locomotive before the remainder of the train
proceeds through the crossing.
(d) A locomotive's audible warning device shall be activated in
accordance with railroad rules regarding the approach to a grade
crossing.
Sec. 234.106 Partial activation.
Upon receipt of a credible report of a partial activation, a
railroad having maintenance responsibility for the warning system shall
promptly initiate efforts to warn highway users and railroad employees
at the subject crossing in the same manner as required for false
activations (Sec. 234.107).
Sec. 234.107 False activation.
Upon receipt of a credible report of a false activation, a railroad
having maintenance responsibility for the highway-rail grade crossing
warning system shall promptly initiate efforts to warn highway users
and railroad employees at the crossing by taking the following actions:
(a) Prior to a train's arrival at the crossing, notify the train
crew of the report of false activation and notify any other railroads
operating over the crossing;
(b) Notify the law enforcement agency having jurisdiction over the
crossing, or railroad police capable of responding and controlling
vehicular traffic; and
(c) Provide for alternative means of actively warning highway users
of approaching trains, consistent with the following requirements (see
Appendix B for a summary chart of alternative means of warning).
(1)(i) If an appropriately equipped flagger is providing warning
for each direction of highway traffic, trains may proceed through the
crossing at normal speed.
(ii) If at least one uniformed law enforcement officer (including a
railroad police officer) provides warning to highway traffic at the
crossing, trains may proceed through the crossing at normal speed.
(2) If there is not an appropriately equipped flagger providing
warning for each direction of highway traffic, or if there is not at
least one uniformed law enforcement officer providing warning, trains
with the locomotive or cab car leading, may proceed with caution
through the crossing at a speed not exceeding 15 miles per hour. Normal
speed may be resumed after the locomotive has passed through the
crossing. In the case of a shoving move, a crewmember shall be on the
ground to flag the train through the crossing.
(3) In lieu of complying with paragraphs (c) (1) or (2) of this
section, a railroad may temporarily take the warning system out of
service if the railroad complies with all requirements of Sec. 234.105,
``Activation failure.''
(d) A locomotive's audible warning device shall be activated in
accordance with railroad rules regarding the approach to a grade
crossing.
Sec. 234.109 Recordkeeping.
(a) Each railroad shall keep records pertaining to compliance with
this subpart. Records may be kept on forms provided by the railroad or
by electronic means. Each railroad shall keep the following information
for each credible report of warning system malfunction:
(1) Location of crossing (by highway name and DOT/AAR Crossing
Inventory Number);
(2) Time and date of receipt by railroad of report of malfunction;
[[Page 31809]]
(3) Actions taken by railroad prior to repair and reactivation of
repaired system; and
(4) Time and date of repair.
(b) Each railroad shall retain for at least one year (from the
latest date of railroad activity in response to a credible report of
malfunction) all records referred to in paragraph (a) of this section.
Records required to be kept shall be made available to FRA as provided
by 49 U.S.C. 20107 (formerly 208 of the Federal Railroad Safety Act of
1970 (45 U.S.C. 437)).
Subpart D--Maintenance, Inspection, and Testing
Maintenance Standards
Sec. 234.201 Location of plans.
Plans required for proper maintenance and testing shall be kept at
each highway-rail grade crossing warning system location. Plans shall
be legible and correct.
Sec. 234.203 Control circuits.
All control circuits that affect the safe operation of a highway-
rail grade crossing warning system shall operate on the fail-safe
principle.
Sec. 234.205 Operating characteristics of warning system apparatus.
Operating characteristics of electromagnetic, electronic, or
electrical apparatus of each highway-rail crossing warning system shall
be maintained in accordance with the limits within which the system is
designed to operate.
Sec. 234.207 Adjustment, repair, or replacement of component.
(a) When any essential component of a highway-rail grade crossing
warning system fails to perform its intended function, the cause shall
be determined and the faulty component adjusted, repaired, or replaced
without undue delay.
(b) Until repair of an essential component is completed, a railroad
shall take appropriate action under Sec. 234.105, Activation failure,
Sec. 234.106, Partial activation, or Sec. 234.107, False activation, of
this part.
Sec. 234.209 Interference with normal functioning of system.
(a) The normal functioning of any system shall not be interfered
with in testing or otherwise without first taking measures to provide
for safety of highway traffic that depends on normal functioning of
such system.
(b) Interference includes, but is not limited to:
(1) Trains, locomotives or other railroad equipment standing within
the system's approach circuit, other than normal train movements or
switching operations, where the warning system is not designed to
accommodate those activities.
(2) Not providing alternative methods of maintaining safety for the
highway user while testing or performing work on the warning systems or
on track and other railroad systems or structures which may affect the
integrity of the warning system.
Sec. 234.211 Security of warning system apparatus.
Highway-rail grade crossing warning system apparatus shall be
secured against unauthorized entry.
Sec. 234.213 Grounds.
Each circuit that affects the proper functioning of a highway-rail
grade crossing warning system shall be kept free of any ground or
combination of grounds that will permit a current flow of 75 percent or
more of the release value of any relay or electromagnetic device in the
circuit. This requirement does not apply to: circuits that include
track rail; alternating current power distribution circuits that are
grounded in the interest of safety; and common return wires of grounded
common return single break circuits.
Sec. 234.215 Standby power system.
A standby source of power shall be provided with sufficient
capacity to operate the warning system for a reasonable length of time
during a period of primary power interruption. The designated capacity
shall be specified on the aplans required by Sec. 234.201 of this part.
Sec. 234.217 Flashing light units.
(a) Each flashing light unit shall be properly positioned and
aligned and shall be visible to a highway user approaching the
crossing.
(b) Each flashing light unit shall be maintained to prevent dust
and moisture from entering the interior of the unit. Roundels and
reflectors shall be clean and in good condition.
(c) All light units shall flash alternately. The number of flashes
per minute for each light unit shall be 35 minimum and 65 maximum.
Sec. 234.219 Gate arm lights and light cable.
Each gate arm light shall be maintained in such condition to be
properly visible to approaching highway users. Lights and light wire
shall be secured to the gate arm.
Sec. 234.221 Lamp voltage.
The voltage at each lamp shall be maintained at not less than 85
percent of the prescribed rating for the lamp.
Sec. 234.223 Gate arm.
Each gate arm, when in the downward position, shall extend across
each lane of approaching highway traffic and shall be maintained in a
condition sufficient to be clearly viewed by approaching highway users.
Each gate arm shall start its downward motion not less than three
seconds after flashing lights begin to operate and shall assume the
horizontal position at least five seconds before the arrival of any
normal train movement through the crossing. At those crossings equipped
with four quadrant gates, the timing requirements of this section apply
to entrance gates only.
Sec. 234.225 Activation of warning system.
A highway-rail grade crossing warning system shall be maintained to
activate in accordance with the design of the warning system, but in no
event shall it provide less than 20 seconds warning time for the normal
operation of through trains before the grade crossing is occupied by
rail traffic.
Sec. 234.227 Train detection apparatus.
(a) Train detection apparatus shall be maintained to detect a train
or railcar in any part of a train detection circuit, in accordance with
the design of the warning system.
(b) If the presence of sand, rust, dirt, grease, or other foreign
matter is known to prevent effective shunting, a railroad shall take
appropriate action under Sec. 234.105, ``Activation failure,'' to
safeguard highway users.
Sec. 234.229 Shunting sensitivity.
Each highway-rail grade crossing train detection circuit shall
detect the application of a shunt of 0.06 ohm resistance when the shunt
is connected across the track rails of any part of the circuit.
Sec. 234.231 Fouling wires.
Each set of fouling wires in a highway-rail grade crossing train
detection circuit shall consist of at least two discrete conductors.
Each conductor shall be of sufficient conductivity and shall be
maintained in such condition to ensure proper operation of the train
detection apparatus when the train detection circuit is shunted.
Installation of a single duplex wire with single plug acting as fouling
wires is prohibited. Existing installations having single duplex wires
with a single plug for fouling wires may be continued in use until they
require repair or replacement.
Sec. 234.233 Rail joints.
Each non-insulated rail joint located within the limits of a
highway-rail grade crossing train detection circuit shall be
[[Page 31810]]
bonded by means other than joint bars and the bonds shall be maintained
in such condition to ensure electrical conductivity.
Sec. 234.235 Insulated rail joints.
Each insulated rail joint used to separate train detection circuits
of a highway-rail grade crossing shall be maintained to prevent current
from flowing between rails separated by the insulation in an amount
sufficient to cause a failure of the train detection circuit.
Sec. 234.237 Reverse switch cut-out circuit.
A switch, when equipped with a switch circuit controller connected
to the point and interconnected with warning system circuitry, shall be
maintained so that the warning system can only be cut out when the
switch point is within one-half inch of full reverse position.
Sec. 234.239 Tagging of wires and interference of wires or tags with
signal apparatus.
Each wire shall be tagged or otherwise so marked that it can be
identified at each terminal. Tags and other marks of identification
shall be made of insulating material and so arranged that tags and
wires do not interfere with moving parts of the apparatus. This
requirement applies to each wire at each terminal in all housings
including switch circuit controllers and terminal or junction boxes.
This requirement does not apply to flashing light units, gate arm light
units and other auxiliary light units. The local wiring on a solid
state crossing controller rack does not require tags if the wiring is
an integral part of the solid state equipment.
Sec. 234.241 Protection of insulated wire; splice in underground wire.
Insulated wire shall be protected from mechanical injury. The
insulation shall not be punctured for test purposes. A splice in
underground wire shall have insulation resistance at least equal to
that of the wire spliced.
Sec. 234.243 Wire on pole line and aerial cable.
Wire on a pole line shall be securely attached to an insulator that
is properly fastened to a cross arm or bracket supported by a pole or
other support. Wire shall not interfere with, or be interfered with by,
other wires on the pole line. Aerial cable shall be supported by
messenger wire. An open-wire transmission line operating at voltage of
750 volts or more shall be placed not less than 4 feet above the
nearest cross arm carrying active warning system circuits.
Sec. 234.245 Signs.
Each sign mounted on a highway-rail grade crossing signal post
shall be maintained in good condition and be visible to the highway
user.
Inspections and Tests
Sec. 234.247 Purpose of inspections and tests; removal from service of
relay or device failing to meet test requirements.
(a) The inspections and tests set forth in Secs. 234.249 through
234.271 are required at highway-rail grade crossings located on in
service railroad tracks and shall be made to determine if the warning
system and its component parts are maintained in a condition to perform
their intended function.
(b) If a railroad elects not to comply with the requirements of
these sections because all tracks over the grade crossing are out of
service or the railroad suspends operations during a portion of the
year, or the railroad suspends operations during a portion of the year,
and the grade crossing warning system is also temporarily taken out of
service a full inspection and all required tests must be successfully
completed before railroad operations over the grade crossing resume.
(c) Any electronic device, relay, or other electromagnetic device
that fails to meet the requirements of tests required by this part
shall be removed from service and shall not be restored to service
until its operating characteristics are in accordance with the limits
within which such device or relay is designed to operate.
Sec. 234.249 Ground tests.
A test for grounds on each energy bus furnishing power to circuits
that affect the safety of warning system operation shall be made when
such energy bus is placed in service and at least once each month
thereafter.
Sec. 234.251 Standby power.
Standby power shall be tested at least once each month.
Sec. 234.253 Flashing light units and lamp voltage.
(a) Each flashing light unit shall be inspected when installed and
at least once every twelve months for proper alignment and frequency of
flashes in accordance with installation specifications.
(b) Lamp voltage shall be tested when installed and at least once
every 12 months thereafter.
(c) Each flashing light unit shall be inspected for proper
visibility, dirt and damage to roundels and reflectors at least once
each month.
Sec. 234.255 Gate arm and gate mechanism.
(a) Each gate arm and gate mechanism shall be inspected at least
once each month.
(b) Gate arm movement shall be observed for proper operation at
least once each month.
(c) Hold-clear devices shall be tested for proper operation at
least once every 12 months.
Sec. 234.257 Warning system operation.
(a) Each highway-rail crossing warning system shall be tested to
determine that it functions as intended when it is placed in service.
Thereafter, it shall be tested at least once each month and whenever
modified or disarranged.
(b) Warning bells or other stationary audible warning devices shall
be tested when installed to determine that they function as intended.
Thereafter, they shall be tested at least once each month and whenever
modified or disarranged.
Sec. 234.259 Warning time.
Each crossing warning system shall be tested for the prescribed
warning time at least once every 12 months and when the warning system
is modified because of a change in train speeds. Electronic devices
that accurately determine actual warning time may be used in performing
such tests.
Sec. 234.261 Highway traffic signal pre-emption.
Highway traffic signal pre-emption interconnections, for which a
railroad has maintenance responsibility, shall be tested at least once
each month.
Sec. 234.263 Relays.
(a) Except as stated in paragraph (b) of this section, each relay
that affects the proper functioning of a crossing warning system shall
be tested at least once every four years.
(b)(1) Alternating current vane type relays, direct current polar
type relays, and relays with soft iron magnetic structure shall be
tested at least once every two years.
(2) Alternating current centrifugal type relays shall be tested at
least once every 12 months.
(c) Testing of relays requiring testing on four year intervals
shall be completed in accordance with the following schedule:
(1) Not less than 50% by the end of calendar year 1996;
(2) Not less than a total of 75% by the end of calendar year 1997;
and
(3) One hundred percent by the end of calendar year 1998.
(d) Testing of relays requiring testing on two year intervals shall
be completed by the end of calendar year 1996.
[[Page 31811]]
Sec. 234.265 Timing relays and timing devices.
Each timing relay and timing device shall be tested at least once
every twelve months. The timing shall be maintained at not less than 90
percent nor more than 110 percent of the 41 predetermined time
interval. The predetermined time interval shall be shown on the plans
or marked on the timing relay or timing device. Timing devices which
perform internal functions associated with motion detectors, motion
sensors, and grade crossing predictors are not subject to the
requirements of this section.
Sec. 234.267 Insulation resistance tests, wires in trunking and
cables.
(a) Insulation resistance tests shall be made when wires or cables
are installed and at least once every ten years thereafter.
(b) Insulation resistance tests shall be made between all
conductors and ground, between conductors in each multiple conductor
cable, and between conductors in trunking. Insulation resistance tests
shall be performed when wires, cables, and insulation are dry.
(c) Subject to paragraph (d) of this section, when insulation
resistance of wire or cable is found to be less than 500,000 ohms,
prompt action shall be taken to repair or replace the defective wire or
cable. Until such defective wire or cable is replaced, insulation
resistance tests shall be made annually.
(d) A circuit with a conductor having an insulation resistance of
less than 200,000 ohms shall not be used.
(e) Required insulation resistance testing that does not conform to
the required testing schedule of this section shall be completed in
accordance with the following schedule:
(1) Not less than 50% by the end of calendar year 1996;
(2) Not less than a total of 75% by the end of calendar year 1997;
and
(3) One hundred percent by the end of calendar year 1998.
Sec. 234.269 Cut-out circuits.
Each cut-out circuit shall be tested at least once every three
months to determine that the circuit functions as intended. For
purposes of this section, a cut-out circuit is any circuit which
overrides the operation of automatic warning systems. This includes
both switch cut-out circuits and devices which enable personnel to
manually override the operation of automatic warning systems.
Sec. 234.271 Insulated rail joints, bond wires, and track connections.
Insulated rail joints, bond wires, and track connections shall be
inspected at least once every three months.
Sec. 234.273 Results of inspections and tests.
(a) Results of inspections and tests made in compliance with this
part shall be recorded on forms provided by the railroad, or by
electronic means, subject to approval by the Associate Administrator
for Safety. Each record shall show the name of the railroad, AAR/DOT
inventory number, place and date, equipment tested, results of tests,
repairs, replacements, adjustments made, and condition in which the
apparatus was left.
(b) Each record shall be signed or electronically coded by the
employee making the test and shall be filed in the office of a
supervisory official having jurisdiction. Records required to be kept
shall be made available to FRA as provided by 49 U.S.C. 20107 (formerly
Sec. 208 of the Federal Railroad Safety Act of 1970 (45 U.S.C. 437)).
(c) Each record shall be retained until the next record for that
test is filed but in no case for less than one year from the date of
the test.
Appendix A to Part 234.--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
Subpart B--Reports
234.7 Accidents involving grade crossing
signal failure............................... $5,000 $7,500
234.9 Grade crossing signal system failure
reports...................................... 2,500 5,000
Subpart C--Response to Reports of Warning
System Malfunction
Sec.
234.101 Employee notification rules.......... 2,500 5,000
234.103 Timely response to report of
malfunction.................................. 2,500 5,000
234.105 Activation failure
(a) Failure to notify--train crews.... 5,000 7,500
Other railroads................... 5,000 7,500
(b) Failure to notify law enforcement
agency............................... 2,500 5,000
(c) Failure to comply with--flagging
requirements......................... 5,000 5,000
Speed restrictions................ 5,000 7,500
(d) Failure to activate horn or
whistle.............................. 5,000 7,500
234.106 Partial activation
(a) Failure to notify--train crews.... 5,000 7,500
Other railroads................... 5,000 7,500
(b) Failure to notify law enforcement
agency............................... 2,500 5,000
(c) Failure to comply with--flagging
requirements speed restrictions...... 5,000 7,500
(d) Failure to activate horn or
whistle.............................. 5,000 7,500
234.107 False activation
(a) Failure to notify--train crews.... 5,000 7,500
Other railroads................... 5,000 7,500
(b) Failure to notify law enforcement
agency............................... 2,500 5,000
(c) Failure to comply with--flagging
requirements......................... 5,000 7,500
Speed restrictions................ 5,000 7,500
(d) Failure to activate horn or
whistle.............................. 5,000 7,500
234.109 Recordkeeping.................... 1,000 2,000
Subpart D--Maintenance, Inspection, and
Testing
Maintenance Standards:
234.201 Location of plans................ 1,000 2,000
234.203 Control circuits................. 1,000 2,000
234.205 Operating characteristics of
warning system apparatus................. 2,500 5,000
[[Page 31812]]
234.207 Adjustment, repair, or
replacement of component................. 2,500 5,000
234.209 Interference with normal
functioning of system.................... 5,000 7,500
234.211 Locking of warning system
apparatus................................ 1,000 2,000
234.213 Grounds.......................... 1,000 2,000
234.215 Standby power system............. 5,000 7,500
234.217 Flashing light units............. 1,000 2,000
234.219 Gate arm lights and light cable.. 1,000 2,000
234.221 Lamp voltage..................... 1,000 2,000
234.223 Gate arm......................... 1,000 2,000
234.225 Activation of warning system..... 5,000 7,500
234.227 Train detection apparatus........ 2,500 5,000
234.229 Shunting sensitivity............. 2,500 5,000
234.231 Fouling wires.................... 1,000 2,000
234.233 Rail joints...................... 1,000 2,000
234.235 Insulated rail joints............ 1,000 2,000
234.237 Switch equipped with circuit
controller............................... 1,000 2,000
234.239 Tagging of wires and interference
of wires or tags with signal apparatus... 1,000 2,000
234.241 Protection of insulated wire;
splice in underground wire............... 1,000 2,000
234.243 Wire on pole line and aerial
cable.................................... 1,000 2,000
234.245 Signs............................ 1,000 2,000
Inspections and Tests:
234.247 Purpose of inspections and tests;
removal from service of relay or device
failing to meet test requirements........ 2,500 5,000
234.249 Ground tests..................... 2,500 5,000
234.251 Standby power.................... 5,000 7,500
234.253 Flashing light units and lamp
voltage.................................. 1,000 2,000
234.255 Gate arm and gate mechanism...... 1,000 2,000
234.257 Warning system operation......... 2,500 5,000
234.259 Warning time..................... 1,000 2,000
234.261 Highway traffic signal pre-
emption.................................. 1,000 2,000
234.263 Relays........................... 1,000 2,000
234.265 Timing relays and timing devices. 1,000 2,000
234.267 Insulation resistance tests,
wires in trunking and cables............. 2,500 5,000
234.269 Cut-out circuits................. 1,000 2,000
234.271 Insulated rail joints, bond
wires, and track connections............. 2,500 5,000
234.273 Results of tests................. 1,000 2,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $20,000 for any violation where circumstances warrant. See 49
CFR Part 209, Appendix A.
Appendix B to Part 234.--Alternate Methods of Protection Under 49 CFR 234.105(c), 234.106, and 234.107(c)
[This is a summary--see body of text for complete requirements]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flagger present, but not
Flagger for each direction of Police officer present one for each direction of No flagger/no police
traffic traffic
--------------------------------------------------------------------------------------------------------------------------------------------------------
False Activation.................. Normal Speed.................. Normal Speed.................. Proceed with caution-- Proceed with caution--
maximum speed of 15 mph. maximum speed of 15 mph.
Partial Activation*............... Normal Speed.................. Normal Speed.................. Proceed with caution-- Proceed with caution--
maximum speed of 15 mph. maximum speed of 15 mph.
Activation Failure**.............. Normal Speed.................. Normal Speed.................. Proceed with caution-- Stop: Crewmember flag
maximum speed of 15 mph. traffic and reboard.
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Partial activiation--full warning not given.
Non-gated crossing with one pair of lights designed to flash alternatively, one light does not work (and back-lights from other side not visible).
Gated crossing--gate arm not horizontal; or any portion of a gate arm is missing if that portion had held a gate arm flashing light.
**Activitation failure includes--if more than 50% of the flashing lights on any approach lane not functioning; or if an approach lane has two or more
pairs of flashing lights, there is not at least one pair operating as intended.
Issued in Washington, D.C. on May 30, 1996.
Donald M. Itzkoff,
Deputy Administrator.
[FR Doc. 96-15299 Filed 6-19-96; 8:45 am]
BILLING CODE 4910-06-M
Complete official Federal Register PDF
FR Doc. 96-15051 Consolidation of Repetitive Provisions; Technical Amendments
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31427-31434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15051]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910, 1915 and 1926
RIN 1218-AB53
Consolidation of Repetitive Provisions; Technical Amendments
AGENCY: Occupational Safety and Health Administration, Department of
Labor.
ACTION: Final rule; technical amendments and recodifications.
-----------------------------------------------------------------------
SUMMARY: As part of a line-by-line review of its standards, the
Occupational Safety and Health Administration (OSHA) is consolidating
[[Page 31428]]
repetitious provisions, removing duplicative pages, making corrections,
and clarifying and reorganizing various sections of its standards in
the Code of Federal Regulations (CFR). This action is being taken in
response to a Presidential initiative begun in March 1995 to streamline
Federal regulatory efforts. In addition, OSHA is removing certain fire
protection standards from the Safety and Health Regulations for
Construction that had inadvertently been identified as applicable to
construction work. The document being published today does not make any
changes to the substantive requirements of the standards.
EFFECTIVE DATE: June 30, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Anne Cyr, Office of Information
and Consumer Affairs, OSHA, U.S. Department of Labor, Room N3647, 200
Constitution Avenue, N.W., Washington, DC 20210; telephone: (202) 219-
8151.
SUPPLEMENTARY INFORMATION:
I. Background
In March 1995, the President directed Federal agencies to undertake
a line-by-line review of their rules and regulations to determine where
they could be simplified or clarified. OSHA initiated such a review
and, as a result, completed a document on May 31, 1995, entitled
``OSHA's Regulatory Reform Initiatives.'' That document delineated
those rules and regulations that could be deleted or revised to improve
compliance by employers and, consequently, provide enhanced
occupational safety and health protection to employees. This regulatory
improvement process involves revocation of outdated and obsolete
provisions, consolidation of repetitious provisions, and clarification
of ambiguous requirements.
The Agency began the process by issuing a final rule in the Federal
Register on March 7, 1996 (61 FR 9228), which addressed minor
clarifications, corrections, and technical amendments to OSHA
standards. This notice is the second in a series of actions and is
directed at consolidating repetitious provisions. More specifically,
instead of repeating identical regulatory text in all three parts of
the OSHA standards--general industry, shipyard employment, and
construction standards (parts 1910, 1915, and 1926, respectively), OSHA
will print the regulatory text that is common to all industries in its
part 1910 volumes. OSHA has already accomplished this for its
agricultural standards, which are codified in 29 CFR Part 1928, by
publishing a Federal Register notice [61 FR 9228; March 7, 1996].
Appropriate references will be made in the construction and shipyard
employment parts of the CFR to direct employers to the appropriate
section of the part 1910 volumes.
To assist employers and employees in the construction industry who
prefer to have a single source that includes all of the standards that
apply to their work, OSHA will publish a booklet in the near future
that will contain all of the standards applicable to the construction
industry.
The Agency plans to undertake a number of additional regulatory
reform initiatives. For example, OSHA is developing a proposed rule,
which will be subject to public notice and comment, to make substantive
changes in various standards to diminish regulatory burdens without
reducing worker protections. OSHA also intends to take actions to
reduce paperwork burdens, rewrite standards in ``plain English,'' and
simplify its standards.
II. Summary and Explanation of the Changes
In 1993, OSHA revised its part 1915 (shipyard) and part 1926
(construction) standards in the Code of Federal Regulations (CFR) by
adding to part 1915 and part 1926, respectively, those standards
applicable to shipyards or construction that had formerly only been
printed in part 1910 of the CFR. The added standards included their own
part 1915 and part 1926 designations and duplicated all of the
regulatory text. This nearly doubled the number of CFR pages in part
1926 and added many CFR pages to part 1915 (see 58 FR 35076; June 30,
1993, and 58 FR 35512; July 1, 1993). The majority of the standards
that were duplicated were standards relating to occupational health
hazards. Most of the general industry standards incorporated through
this action had long been applied to construction and shipyard
employments, with only a few exceptions.
OSHA has found that printing the identical rules in three separate
parts of its rules and regulations unnecessarily lengthens the CFR. As
it eliminates these duplications, OSHA will provide taxpayers with a
cost savings by reducing the number of pages in its CFR parts.
Most of the changes being made occur in subpart Z of parts 1910,
1915 and 1926. For example, many of the occupational health standards
in subpart Z of the general industry standards (part 1910) apply to
both shipyard employment (part 1915) and the construction industry
(part 1926). Rather than printing subpart Z standards that applied to
more than one industry in one place, OSHA printed the same standards in
each of the three parts of its CFR. This has caused confusion when, for
example, a construction employer who has projects in construction and
general industry has employees who are exposed to a given air
contaminant that is regulated both in subpart Z of the construction
standards (part 1926) and in subpart Z of the general industry
standards (part 1910). In such a case, an employer could mistakenly
believe that two different permissible exposure limits apply to the
same contaminant, since subpart Z of the construction standards and
subpart Z of the general industry standards (part 1910) both have a
limit for the contaminant. In this document, OSHA is eliminating such
duplicative standards and replacing them with cross references to
eliminate any possible confusion and to reduce the volume of the rules.
OSHA is eliminating duplicate health standards from the shipyard
(part 1915) and construction (part 1926) parts of the CFR and is
replacing them with cross references to the identical text in subpart Z
of part 1910. This action does not in any way change the burden on
employers or lessen employee protection because the same standards will
continue to apply to shipyard employment and the construction industry.
For example, the requirements to protect workers from arsenic
exposure in shipyards and construction are identical to those applying
to general industry. Consequently, the regulatory text in
Sec. 1915.1018, the arsenic standard applying to shipyards, and the
requirements in Sec. 1926.1118, the arsenic standard applying to
construction, are identical to the regulatory text in Sec. 1910.1018,
the arsenic standard in general industry.
The technical amendments issued today will retain the section
number and heading for the arsenic standard in the shipyard standards
(Sec. 1915.1018, Inorganic arsenic) and in the construction standards
(Sec. 1926.1118, Inorganic arsenic) to remind employers searching for
them of their new location, but will replace the duplicated regulatory
text with a simple cross reference stating, ``Note: The requirements
applicable to construction work under this section are identical to
those set forth at 29 CFR 1910.1018.''
Where a health standard in subpart Z of the general industry
standards (1910) differs from the standard addressing the same hazard
in shipyard employment or in the construction industry, the entire text
of that health standard will remain
[[Page 31429]]
in the shipyard and construction standards. In other words, where OSHA
has developed a health standard for shipyards or construction that
differs substantially from the general industry standard for the same
hazard, the industry-specific standard will remain in the part of the
CFR devoted to that industry. For example, in the case of cadmium, the
regulatory text differs for general industry and construction;
therefore, the complete regulatory text is printed both at
Sec. 1910.1017 and at 1926.1127, i.e., in the general industry and
construction parts, respectively. However, the shipyard standard for
cadmium, Sec. 1915.1017, is identical to the general industry cadmium
standard, Sec. 1910.1017. The duplicative regulatory text is being
deleted from part 1915 and replaced with an appropriate cross reference
to Sec. 1910.1017. Similarly, appendices A to F of the standard are
identical for all three parts. Therefore, the duplicative appendices
are being deleted from part 1915 (shipyards) and part 1926
(construction). These actions avoid the need to reprint 185 duplicative
CFR pages.
Another change being made involves moving two standards currently
in subpart C of the general industry standards (part 1910) to subpart Z
of those standards in an effort to locate virtually all of OSHA's
health standards in one subpart and in one volume of the CFR. OSHA is
redesignating Sec. 1910.20 (Access to employee exposure and medical
records) as Sec. 1910.1020 and Sec. 1910.96 (Ionizing radiation) as
Sec. 1910.1096. This will place virtually all of OSHA's general
industry health standards in subpart Z of part 1910.
Another change applies to OSHA's Commercial Diving Standard, which
is currently codified both in the general industry and the construction
standards. OSHA has received requests from industry representatives to
locate the diving standard in one location, preferably in part 1910
(general industry). Most diving contractors operate in all three
industry areas (i.e., general industry, construction, and maritime),
moving from one industry to another to perform their work. The
Association of Diving Contractors (ADC) members and others, such as
Seaward Marine Services, Inc., one of the largest diving companies in
the Nation, have asked OSHA to maintain the requirements for commercial
diving in part 1910 only. The diving industry reports that multiple
diving standards are causing confusion in the issuance of diving
contract specifications. The Diving Standards in Subpart Y of the
construction standards are identical to the Diving Standards in Subpart
T of the general industry standards. Rather than repeating the
standards in both parts, OSHA is removing the regulatory text in its
entirety from the construction standards and replacing that text with a
cross reference to the Diving Standard in Subpart T of the general
industry standards.
Also, in the shipyard employment standards, OSHA is redesignating
Sec. 1915.1120--Access to employee exposure and medical records, as
Sec. 1915.1020. The purpose of this change is, as much as possible, to
keep the section number designations--in this case .1020--the same for
each part if a standard addressing the same topic and having the same
name is codified both in the general industry and shipyard standards.
OSHA is unable to follow this numbering scheme in the case of the
construction standards, however, because vacant section numbers are not
available in the construction industry CFR volume.
In addition, in the 1993 recodification process described earlier,
OSHA identified some provisions from its standards in Subpart L of Part
1910 Fire Protection and Prevention (Sec. 1910.156 to 1910.165) as
applicable to the construction industry. However, on further
examination, this was an incorrect identification because OSHA's
general industry standards for Subpart L state at Sec. 1910.155 Scope,
application and definitions applicable to this subpart:
(b) Application. This subpart applies to all employments except for
maritime, construction, and agriculture.
This final rule corrects this misidentification by removing the
text of Secs. 1926.97, 1926.98; 1926.150(c)(1)(xi) to (c)(1)(xiv); and
1926.156 through 1926.159, all of which were based on requirements in
Secs. 1910.156 to 1910.165.
Finally, as stated in the 1993 recodification, OSHA has made every
effort to identify those standards published in part 1910, General
Industry, which are most likely to be applicable to shipyard employment
and construction work. OSHA notes, however, that other standards
published in part 1910 may, under some circumstances, also be
applicable.
III. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as
amended, requires that the Agency examine regulatory actions to
determine if they would have a significant economic impact on a
substantial number of small entities. The modifications being made in
this final rule do not increase or reduce the regulatory burden on any
employer, large or small. For that reason, the Agency hereby certifies
that these changes will not have a significant economic impact on a
substantial number of small entities.
IV. Exemption From Notice and Comment Procedures
OSHA finds that there is good cause not to follow procedures for
public notice and comment set forth in section 6(b) of the Occupational
Safety and Health Act (29 U.S.C. 655 (b)) or under section 4 of the
Administrative Procedure Act (5 U.S.C. 553). Notice is unnecessary
pursuant to 5 U.S.C. 553 (b)(3)(B) because these actions are technical
amendments that do not affect the substantive requirements or coverage
of the standards themselves. This removal of duplicative provisions and
reorganization of standards within the CFR does not modify or revoke
existing rights or obligations, nor does it establish new ones.
For the same reasons, OSHA also finds that, in accordance with 29
CFR 1911.5, good cause exists for dispensing with the public notice and
comment procedures prescribed in section 6(b) of the Occupational
Safety and Health Act.
OSHA also finds for the same reasons that there is good cause for
an effective date of less than 30 days after publication pursuant to 5
U.S.C. 553(d) and because the June 30, 1996, effective date will permit
these changes to be reflected in the 1996 volumes of 29 CFR.
List of Subjects
29 CFR Part 1910
Occupational safety and health.
29 CFR Part 1915
Longshore and harbor workers, Occupational safety and health,
Vessels.
29 CFR Part 1926
Construction industry, Occupational safety and health.
Signed at Washington, DC, this 10th day of June 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
Accordingly, pursuant to sections 4, 6 and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655 and 657); section 107
of the Contract Work Hours and Safety Standards Act (Construction
Safety Act) (40 U.S.C. 333); Sec. 41 of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 941), section 4 of the
Administrative Procedure Act (5 U.S.C. 553); Secretary of Labor's Order
1-90 (55 FR 9033); and 29 CFR part 1911, 29 CFR parts 1910, 1915 and
1926 are amended as set forth below.
[[Page 31430]]
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Sec. 1910.20 [Redesignated as Sec. 1910.1020]
1. Section 1910.20 is redesignated as new Sec. 1910.1020.
Subpart C--[Removed and Reserved]
2. Subpart C is removed and reserved.
Subpart G--Occupational Health and Environmental Control
3. The authority citation for subpart G of part 1910 continues to
read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Sec. 1910.96 [Redesignated as Sec. 1910.1096]
4. Section 1910.96 is redesignated as new Sec. 1910.1096.
Subpart Z--Toxic and Hazardous Substances
5. The authority citation for subpart Z of part 1910 is revised to
read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), of 1-90 (55 FR 9033), as applicable; and 29 CFR part
1911.
All of subpart Z issued under sec. 6(b) of the Occupational
Safety and Health Act, except those substances that have exposure
limits listed in Tables Z-1, Z-2, or Z-3 of 29 CFR 1910.1000. The
latter were issued under sec. 6(a) (29 U.S.C. 655(a)).
Section 1910.1000, Tables Z-1, Z-2, and Z-3 also issued under 5
U.S.C. 553. Section 1910.1000, Tables Z-1, Z-2, and Z-3 not issued
under 29 CFR part 1911 except for the arsenic (organic compounds),
benzene, and cotton dust listings.
Section 1910.1001 also issued under section 107 of the Contract
Work Hours and Safety Standards Act (40 U.S.C. 333) and 5 U.S.C.
553.
Section 1910.1002 not issued under 29 U.S.C. 655 or 29 CFR part
1911; also issued under 5 U.S.C. 553.
Section 1910.1200 also issued under 5 U.S.C. 553.
6. In Sec. 1910.1003, the heading is revised to read ``13
Carcinogens (4-Nitrobiphenyl, etc.).''
PART 1915--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD
EMPLOYMENT
1. The authority citation of part 1915 is revised to read as
follows:
Authority: Sec. 41, Longshore and Harbor Workers' Compensation
Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-
90 (55 FR 9033), as applicable; 29 CFR part 1911.
Section 1915.100 also issued under Section 29, Hazardous
Materials Transportation Uniform Safety Act of 1990 (49 U.S.C. 1801-
1819 and 5 U.S.C. 553).
Subpart Z--Toxic and Hazardous Substances
2. Section 1915.1002 is revised to read as follows:
Sec. 1915.1002 Coal tar pitch volatiles; interpretation of term.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1002 of
this chapter.
3. Section 1915.1003 is revised to read as follows:
Sec. 1915.1003 13 carcinogens (4-Nitrobiphenyl, etc.).
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
4. Section 1915.1004 is revised to read as follows:
Sec. 1915.1004 alpha-Naphthylamine.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
5. Section 1915.1006 is revised to read as follows:
Sec. 1915.1006 Methyl chloromethyl ether.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
6. Section 1915.1007 is revised to read as follows:
Sec. 1915.1007 3,3'-Dichlorobenzidiene (and its salts).
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
7. Section 1915.1008 is revised to read as follows:
Sec. 1915.1008 bis-Chloromethyl ether.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
8. Section 1915.1009 is revised to read as follows:
Sec. 1915.1009 beta-Naphthylamine.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
9. Section 1915.1010 is revised to read as follows:
Sec. 1915.1010 Benzidine.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
10. Section 1915.1011 is revised to read as follows:
Sec. 1915.1011 4-Aminodiphenyl.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
11. Section 1915.1012 is revised to read as follows:
Sec. 1915.1012 Ethyleneimine.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
12. Section 1915.1013 is revised to read as follows:
Sec. 1915.1013 beta-Propiolactone.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
13. Section 1915.1014 is revised to read as follows:
Sec. 1915.1014 2-Acetylaminofluorene.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
14. Section 1915.1015 is revised to read as follows:
Sec. 1915.1015 4-Dimethylaminoazobenzene.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
15. Section 1915.1016 is revised to read as follows:
Sec. 1915.1016 N-Nitrosodimethylamine.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
16. Section 1915.1017 is revised to read as follows:
Sec. 1915.1017 Vinyl chloride.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1017 of
this chapter.
17. Section 1915.1018 is revised to read as follows:
[[Page 31431]]
Sec. 1915.1018 Inorganic arsenic.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1018 of
this chapter.
18. Section 1915.1025 is revised to read as follows:
Sec. 1915.1025 Lead.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1025 of
this chapter.
19. Section 1915.1027 is revised to read as follows:
Sec. 1915.1027 Cadmium.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1027 of
this chapter.
20. Section 1915.1028 is revised to read as follows:
Sec. 1915.1028 Benzene.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1028 of
this chapter.
21. Section 1915.1030 is revised to read as follows:
Sec. 1915.1030 Bloodborne pathogens.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1030 of
this chapter.
22. Section 1915.1044 is revised to read as follows:
Sec. 1915.1044 1,2-dibromo-3-chloropropane.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1044 of
this chapter.
23. Section 1915.1045 is revised to read as follows:
Sec. 1915.1045 Acrylonitrile.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1045 of
this chapter.
24. Section 1915.1047 is revised to read as follows:
Sec. 1915.1047 Ethylene oxide.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1047 of
this chapter.
25. Section 1915.1048 is revised to read as follows:
Sec. 1915.1048 Formaldehyde.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1048 of
this chapter.
26. Section 1915.1050 is revised to read as follows:
Sec. 1915.1050 Methylenedianiline.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1050 of
this chapter.
Sec. 1915.1120 [Redesignated as Sec. 1915.1020]
27. Section 1915.1120 is redesignated as Sec. 1915.1020 and revised
to read as follows:
Sec. 1915.1020 Access to employee exposure and medical records.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1020 of
this chapter.
28. Section 1915.1200 is revised to read as follows:
Sec. 1915.1200 Hazard communication.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1200 of
this chapter.
29. Section 1915.1450 is revised to read as follows:
Sec. 1915.1450 Occupational exposure to hazardous chemicals in
laboratories.
Note: The requirements applicable to shipyard employment under
this section are identical to those set forth at Sec. 1910.1450 of
this chapter.
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart C--General Safety and Health Provisions
1. The authority citation for Subpart C of part 1926 is revised to
read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); secs. 4, 6, 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), or 9-83 (48 FR 35736), as applicable.
2. Section 1926.33 is revised to read as follows:
Sec. 1926.33 Access to employee exposure and medical records.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1020 of
this chapter.
Subpart D--Occupational Health and Environmental Controls
3. The general authority citation for subpart D of part 1926 is
revised to read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); secs. 4, 6, and 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable.
* * * * *
4. In Sec. 1926.53, paragraphs (c) through (r) are removed and
reserved and a note is added at the end of the section to read as
follows:
Sec. 1926.53 Ionizing radiation.
* * * * *
(c) through (r) [Reserved]
Note: The requirements applicable to construction work under
paragraphs (c) through (r) of this section are identical to those
set forth at paragraphs (a) through (p) of Sec. 1910.1096 of this
chapter.
5. Section 1926.59 is revised to read as follows:
Sec. 1926.59 Hazard communication.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1200 of
this chapter.
6. In Sec. 1926.60, Appendix A is revised to read as follows:
Sec. 1926.60 Methylenedianiline.
* * * * *
Appendix A to Sec. 1926.60--Substance Data Sheet, for 4-4'
Methylenedianiline
Note: The requirements applicable to construction work under
this Appendix A are identical to those set forth in Appendix A to
Sec. 1910.1050 of this chapter.
* * * * *
7. In Sec. 1926.60, Appendix B is revised to read as follows:
* * * * *
Appendix B to Sec. 1926.60--Substance Technical Guidelines, MDA
Note: The requirements applicable to construction work under
this Appendix B are identical to those set forth in Appendix B to
Sec. 1910.1050 of this chapter.
* * * * *
8. In Sec. 1926.60, Appendix C is revised to read as follows:
* * * * *
Appendix C to Sec. 1926.60--Medical Surveillance Guidelines for MDA
Note: The requirements applicable to construction work under
this Appendix C are identical to those set forth in Appendix C to
Sec. 1910.1050 of this chapter.
* * * * *
9. In Sec. 1926.60, Appendix D is revised to read as follows:
* * * * *
[[Page 31432]]
Appendix D to Sec. 1926.60--Sampling and Analytical Methods for MDA
Monitoring and Measurement Procedures
Note: The requirements applicable to construction work under
this Appendix D are identical to those set forth in Appendix D to
Sec. 1910.1050 of this chapter.
* * * * *
10. In Sec. 1926.60, Appendix E is revised to read as follows:
* * * * *
Appendix E to Sec. 1926.60--Qualitative and Quantitative Fit Testing
Procedures
Note: The requirements applicable to construction work under
this Appendix E are identical to those set forth in Appendix E to
Sec. 1910.1050 of this chapter.
11. Section 1926.61 is revised to read as follows:
Sec. 1926.61 Retention of DOT markings, placards and labels.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1201 of
this chapter.
Subpart E--Personal Protective and Lifesaving Equipment
12. The authority citation for subpart E of part 1926 continues to
read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); secs. 4, 6, and 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable; and
29 CFR part 1911.
Sec. 1926.97 and 1926.98 [Removed and Reserved]
14. Sections 1926.97 and 1926.98 are removed and reserved.
Subpart F--Fire Protection and Prevention
15. The authority citation for subpart F of part 1926 continues to
read as follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (Construction Safety Act) (40 U.S.C. 333); secs. 4, 6, 8,
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR
25059), or 9-83 (48 FR 35736), as applicable.
Sec. 1926.150 [Amended]
16. In Sec. 1926.150, paragraphs (c)(1)(xi) through (c)(1)(xiv) are
removed.
Secs. 1926.156 through 1926.159 [Removed]
17. The undesignated centerheadings preceding Secs. 1926.156 and
1926.158 and Secs. 1926.156 through 1926.159 are removed.
Subpart Y--Diving
18. The authority citation of subpart Y of part 1926 continues to
read as follows:
Authority: Sections 4, 6, and 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655, 657); sec. 107, Contract Work Hours
and Safety Standards Act (the Construction Safety Act) (40 U.S.C.
333); sec. 41, Longshore and Harbor Workers' Compensation Act (33
U.S.C. 941); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76
(41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as
applicable; 29 CFR part 1911.
19. Section 1926.1071 is revised to read as follows:
Sec. 1926.1071 Scope and application.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.401 of
this chapter.
20. Section 1926.1072 is revised to read as follows:
Sec. 1926.1072 Definitions.
Note: The provisions applicable to construction work under this
section are identical to those set forth at Sec. 1910.402 of this
chapter.
21. Section 1926.1076 is revised to read as follows:
Sec. 1926.1076 Qualifications of dive team.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.410 of
this chapter.
22. Section 1926.1080 is revised to read as follows:
Sec. 1926.1080 Safe practices manual.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.420 of
this chapter.
23. Section 1926.1081 is revised to read as follows:
Sec. 1926.1081 Pre-dive procedures.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.421 of
this chapter.
24. Section 1926.1082 is revised to read as follows:
Sec. 1926.1082 Procedures during dive.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.422 of
this chapter.
25. Section 1926.1083 is revised to read as follows:
Sec. 1926.1083 Post-dive procedures.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.423 of
this chapter.
26. Section 1926.1084 is revised to read as follows:
Sec. 1926.1084 SCUBA diving.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.424 of
this chapter.
27. Section 1926.1085 is revised to read as follows:
Sec. 1926.1085 Surface-supplied air diving.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.425 of
this chapter.
28. Section 1926.1086 is revised to read as follows:
Sec. 1926.1086 Mixed-gas diving.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.426 of
this chapter.
29. Section 1926.1087 is revised to read as follows:
Sec. 1926.1087 Liveboating.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.427 of
this chapter.
30. Section 1926.1090 is revised to read as follows:
Sec. 1926.1090 Equipment.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.430 of
this chapter.
31. Section 1926.1091 is revised to read as follows:
Sec. 1926.1091 Recordkeeping requirements.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.440 of
this chapter.
32. Section 1926.1092 is revised to read as follows:
Sec. 1926.1092 Effective date.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.441 of
this chapter.
33. Appendix A to Subpart Y is revised to read as follows:
Appendix A to Subpart Y--Examples of Conditions Which May Restrict or
Limit Exposure to Hyperbaric Conditions
Note: The requirements applicable to construction work under
this appendix A are identical to those set forth at Appendix A to
Subpart T of part 1910 of this chapter.
[[Page 31433]]
34. Appendix B to Subpart Y is revised to read as follows:
Appendix B to Subpart Y--Guidelines for Scientific Diving
Note: The requirements applicable to construction work under
this appendix B are identical to those set forth at Appendix B to
Subpart T of part 1910 of this chapter.
Subpart Z--Toxic and Hazardous Substances
35. The authority citation for subpart Z of part 1926 is revised to
read as follows:
Authority: Sections 4, 6 and 8, Occupational Safety and Health
Act of 1970 (29 U.S.C. 653, 655 and 657); Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), or 1-90 (55 FR 9033), as
applicable, 29 CFR Part 1911.
Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part
1911; also issued under 5 U.S.C. 553.
36. Section 1926.1102 is revised to read as follows:
Sec. 1926.1102 Coal tar pitch volatiles; interpretation of term.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1002 of
this chapter.
37. Section 1926.1103 is revised to read as follows:
Sec. 1926.1103 13 carcinogens (4-Nitrobiphenyl, etc.).
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
38. Section 1926.1104 is revised to read as follows:
Sec. 1926.1104 alpha-Naphthylamine.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
39. Section 1926.1106 is revised to read as follows:
Sec. 1926.1106 Methyl chloromethyl ether.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
40. Section 1926.1107 is revised to read as follows:
Sec. 1926.1107 3,3'-Dichlorobenzidiene (and its salts).
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
41. Section 1926.1108 is revised to read as follows:
Sec. 1926.1108 bis-Chloromethyl ether.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
42. Section 1926.1109 is revised to read as follows:
Sec. 1926.1109 beta-Naphthylamine.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
43. Section 1926.1110 is revised to read as follows:
Sec. 1926.1110 Benzidine.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
44. Section 1926.1111 is revised to read as follows:
Sec. 1926.1111 4-Aminodiphenyl.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
45. Section 1926.1112 is revised to read as follows:
Sec. 1926.1112 Ethyleneimine.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
46. Section 1926.1113 is revised to read as follows:
Sec. 1926.1113 beta-Propiolactone.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
47. Section 1926.1114 is revised to read as follows:
Sec. 1926.1114 2-Acetylaminofluorene.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
48. Section 1926.1115 is revised to read as follows:
Sec. 1926.1115 4-Dimethylaminoazobenzene.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
49. Section 1926.1116 is revised to read as follows:
Sec. 1926.1116 N-Nitrosodimethylamine.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1003 of
this chapter.
50. Section 1926.1117 is revised to read as follows:
Sec. 1926.1117 Vinyl chloride.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1017 of
this chapter.
51. Section 1926.1118 is revised to read as follows:
Sec. 1926.1118 Inorganic arsenic.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1018 of
this chapter.
52. In Sec. 1926.1127, Appendix A is revised to read as follows:
Sec. 1926.1127 Cadmium.
* * * * *
Appendix A to Sec. 1926.1127--Substance Safety Data Sheet
Note: The requirements applicable to construction work under
this Appendix A are identical to those set forth in Appendix A to
Sec. 1910.1027 of this chapter.
* * * * *
53. In Sec. 1926.1127, Appendix B is revised to read as follows:
* * * * *
Appendix B to Sec. 1926.1127--Substance Technical Guidelines for
Cadmium
Note: The requirements applicable to construction work under
this Appendix B are identical to those set forth in Appendix B to
Sec. 1910.1027 of this chapter.
* * * * *
54. In Sec. 1926.1127, Appendix C is revised to read as follows:
* * * * *
Appendix C to Sec. 1926.1127--Qualitative and Quantitative Fit Testing
Procedures
Note: The requirements applicable to construction work under
this Appendix C are identical to those set forth in Appendix C to
Sec. 1910.1027 of this chapter.
* * * * *
55. In Sec. 1926.1127, Appendix D is revised to read as follows:
* * * * *
Appendix D to Sec. 1926.1127--Occupational Health History Interview
With Reference to Cadmium Exposure
Note: The requirements applicable to construction work under
this Appendix D are identical to those set forth in Appendix D to
Sec. 1910.1027 of this chapter.
* * * * *
56. In Sec. 1926.1127, Appendix E is revised to read as follows:
* * * * *
[[Page 31434]]
Appendix E to Sec. 1926.1127--Cadmium in Workplace Atmospheres
Note: The requirements applicable to construction work under
this Appendix E are identical to those set forth in Appendix E to
Sec. 1910.1027 of this chapter.
* * * * *
57. In Sec. 1926.1127, Appendix F is revised to read as follows:
* * * * *
Appendix F to Sec. 1926.1127--Nonmandatory Protocol for Biological
Monitoring
Note: The requirements applicable to construction work under
this Appendix F are identical to those set forth in Appendix F to
Sec. 1910.1027 of this chapter.
58. Section 1926.1128 is revised to read as follows:
Sec. 1926.1128 Benzene.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1028 of
this chapter.
59. Section 1926.1129 is revised to read as follows:
Sec. 1926.1129 Coke oven emissions.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1029 of
this chapter.
60. Section 1926.1144 is revised to read as follows:
Sec. 1926.1144 1,2-dibromo-3-chloropropane.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1044 of
this chapter.
61. Section 1926.1145 is revised to read as follows:
Sec. 1926.1145 Acrylonitrile.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1045 of
this chapter.
62. Section 1926.1147 is revised to read as follows:
Sec. 1926.1147 Ethylene oxide.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1047 of
this chapter.
63. Section 1926.1148 is revised to read as follows:
Sec. 1926.1148 Formaldehyde.
Note: The requirements applicable to construction work under
this section are identical to those set forth at Sec. 1910.1048 of
this chapter.
[FR Doc. 96-15051 Filed 6-19-96; 8:45 am]
BILLING CODE 4510-26-P
Complete official Federal Register PDF
FR Doc. 96-14881 Taxpaid Distilled Spirits Used in Manufacturing Products Unfit for Beverage Use (73R-24P)
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31399-31427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14881]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 17, 19, 70, 170, 194, 197, and 250
[T.D. ATF-379; Re Notice Nos. 634, 649, 748, and 758]
RIN 1512-AA20
Taxpaid Distilled Spirits Used in Manufacturing Products Unfit
for Beverage Use (73R-24P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Final rule, Treasury decision.
-----------------------------------------------------------------------
SUMMARY: This final rule amends and recodifies the regulations on
taxpaid distilled spirits used to manufacture nonbeverage products. The
regulations formerly in 27 CFR part 197 (Drawback on Distilled Spirits
Used in Manufacturing Nonbeverage Products) are recodified as a new
part, designated 27 CFR part 17. In conjunction with the
recodification, a number of changes to the drawback regulations have
been made. Further, the regulations formerly in 27 CFR part 170,
subpart U (Manufacture and Sale of Certain Compounds, Preparations, and
Products Containing Alcohol) have been distributed between 27 CFR part
19 and the new part 17; and conforming amendments have been made in 27
CFR parts 70, 194, and 250. Significant changes from prior regulations
are discussed below under SUPPLEMENTARY INFORMATION.
EFFECTIVE DATE: This Treasury decision is effective on August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Steve Simon, Wine, Beer, and Spirits
Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, 650
Massachusetts Avenue NW, Washington, DC 20226; (202) 927-8210.
SUPPLEMENTARY INFORMATION:
Notices of Proposed Rulemaking
On July 29, 1987, ATF published Notice No. 634 in the Federal
Register (52 FR 28286). That notice proposed the recodification of
regulations concerning nonbeverage drawback, including changes from the
former regulations (27 CFR part 197). Public comment was requested
concerning the proposed changes. A 90-day comment period was provided,
which ended on October 27, 1987. In response to Notice No. 634, ATF
received four written public comments. In addition, some review
comments were received from ATF personnel after the publication of
Notice No. 634.
On December 8, 1987, ATF solicited additional public comments
regarding the nonbeverage drawback regulations. On that date, ATF
published Notice No. 649 (52 FR 46628), which requested comments
specifically relating to drawback on nonbeverage products brought into
the U.S. from Puerto Rico or the Virgin Islands. In conjunction, the
comment period for Notice No. 634 was extended until January 8, 1988.
No additional comments concerning Notice No. 634 were received pursuant
to that extension.
On August 31, 1992, ATF decided to republish the proposed
recodification and amendment of 27 CFR part 197. Notice No. 748 was
published in the Federal Register (57 FR 39536). Because more than 4
years had elapsed since the end of the previous comment periods, the
proposed regulations were republished in their entirety, with some
additional changes, so that anyone else who wished to comment on them
would have an opportunity to do so.
Notice No. 748 prescribed a 30-day comment period, which was
scheduled to end on September 30, 1992. On September 14, 1992, ATF was
asked to extend this comment period for an additional 90 days. ATF
partially granted this request. On October 1, 1992, Notice No. 758 (57
FR 45357) extended the comment period for Notice No. 748 by an
additional 30 days, until October 30, 1992. The full 90-day extension
(as requested) was not granted, because most of the same regulatory
issues had been previously aired for public comment during a sufficient
length of time. Subsequent to the official ending of the comment
period, comments that were received while it was still practicable to
consider them were given consideration.
In response to Notices No. 748 and 758, comments were received by
letter, telephone, and personal visit from a total of twelve persons
representing eleven entities (nine industry members and two industry
groups). These comments are discussed carefully below, following the
discussion of comments submitted previously under Notice No. 634.
Public Comments on Notice No. 634
Comments relating to Notice No. 634 were received from four
correspondents:
1. One commenter proposed that Sec. 17.183 be liberalized to allow
manufacturers to sell or transport byproducts from which alcohol may be
recovered, without removing the alcohol or adding an appropriate
substance to prevent the recovery of residual alcohol. The commenter
was concerned particularly about economic loss from an inability to
process ``spent'' vanilla beans for food use applications.
ATF did not adopt this comment, because potable alcohol recovered
from a nonbeverage manufacturer's byproduct would have been previously
subject to drawback; thus less than 10% of the tax would remain paid.
The possible recovery of such potable alcohol by unknown persons would
present an unacceptable jeopardy to the revenue. Subject to formula
approval and/or approval of an alternative procedure under Sec. 17.3,
ATF could allow byproducts containing recoverable alcohol to be
subjected to additional processing, on the manufacturer's premises, for
food use applications.
The basis for Sec. 17.183 in this final rule is ATF Ruling 81-8,
1981-4 QB 24. That ruling provided a liberalized procedure for the
disposition of spent vanilla beans, whereby they could be treated with
any substance that the manufacturer deemed adequate to make
[[Page 31400]]
recovery of potable alcohol impractical. This procedure has been
broadened in Sec. 17.183 to apply to the disposition of any byproduct
from which alcohol can be recovered. However, under the broadened rule,
prior approval from ATF must be obtained for treatment with substances
not previously authorized.
In Sec. 17.183(c), certain substances are authorized for treatment
of spent vanilla beans. No further authorization is needed for the use
of these substances, when disposing of spent vanilla beans. Approval is
required if other substances will be added to such beans, or if other
byproducts from which alcohol can be recovered will be disposed of.
Manufacturers who have already received approval for other methods of
disposal, not mentioned in Sec. 17.183, may continue to operate under
such approval.
2. Another commenter expressed support for some of the proposals of
Notice No. 634, but he had reservations about several others. He
requested that ATF review the nonbeverage industry's ``historical
compliance track record'' before imposing new recordkeeping
requirements concerning usage of finished products (Sec. 17.166); he
questioned the revised definition of ``distilled spirits'' in
Sec. 17.11 as being different from the definition of the same term in
27 CFR part 5; and he sought a ``transition period'' for the
implementation of new language in Sec. 17.161 (dealing with general
requirements for records).
ATF reviewed the compliance record of the nonbeverage manufacturing
industry and determined that the new records in Sec. 17.166(b),
concerning usage of nonbeverage products, are needed to verify that
such products were manufactured in the amount claimed. The new records
close a gap in the recordkeeping system of the former part 197.
(However, see the further discussion of this issue below, in
conjunction with a comment submitted pursuant to Notice No. 748.)
The revised definition of ``distilled spirits'' was also kept
unchanged, because the revised definition is consistent with the
definition of ``distilled spirits'' in the Internal Revenue Code (26
U.S.C. 5002(a)(8)). The nonbeverage drawback regulations are issued
under the Internal Revenue Code, while 27 CFR part 5 is a regulation
under the Federal Alcohol Administration Act. The revised definition in
part 17 differs from the former definition in part 197 only by the
deletion of the words ``fully taxpaid or tax determined at the
distilled spirits rate.'' This change brings the definition closer both
to 26 U.S.C. 5002(a)(8) and to the ordinary meaning of ``distilled
spirits.'' Whenever taxpaid distilled spirits are specifically intended
in part 17, the word ``taxpaid'' is stated. A new definition of
``taxpaid'' is provided in Sec. 17.11.
Finally, ATF determined that there is no need for a transition
period for implementation of new language in Sec. 17.161, because the
only substantive change brought about by that new language is
liberalizing. That change makes it clear that normal business records,
including invoices and cost accounting records, are adequate for
regulatory purposes if they contain the required information. (ATF
anticipates that ordinarily no records besides these normal business
records need be maintained for purposes of compliance with the
regulations.) Other new language in Sec. 17.161 does not impose a
substantive requirement, but simply spells out the purposes of records.
3. A third commenter pointed out what appeared to him to be
contradictions in the proposed regulations. However, the apparent
contradictions were actually the result of misunderstanding. In one
instance, the commenter confused the terms ``eligible for drawback''
and ``subject to drawback.'' In order to prevent further confusion of
this sort, definitions of both of these terms were included in Notice
No. 748 and remain in this final rule (see Sec. 17.11).
Another point of confusion concerned the difference between spirits
contained in an intermediate product and spirits consumed in the
manufacture of such a product. Spirits contained in an intermediate
product are eligible for drawback, and become subject to drawback when
the intermediate product is used in the manufacture of a nonbeverage
product. However, spirits consumed in the manufacture of an
intermediate product (which are not contained in that product when
completed) never become subject to drawback. Drawback cannot be claimed
on such spirits (see Secs. 17.154 and 17.155). Nevertheless, under
Secs. 17.127 and 17.185, a manufacturer may treat the intermediate
product as an unfinished nonbeverage product; then the consumed spirits
may be included in a drawback claim.
4. A fourth commenter took issue with the standard used by ATF to
determine whether to grant drawback of tax on spirits used in
nonbeverage products. He questioned the requirement that products
produced with spirits must be ``unfit for beverage use.'' The commenter
asked that this be changed to ``sale and use for (non) beverage
purposes.''
This commenter's requested change was not adopted, because the
standard that must be met in order to receive drawback is expressly
stated in the law (26 U.S.C. 5131(a)). Drawback may be granted only for
``distilled spirits on which the tax has been determined, (used) in the
manufacture or production of medicines, medicinal preparations, food
products, flavors, flavoring extracts, or perfume, which are unfit for
beverage purposes'' (emphasis added).
Public Comments on Notice No. 748
The following paragraphs discuss the suggested changes that were
submitted in response to Notice No. 748 (as amended by Notice No. 758).
The comments are grouped topically, since in some cases several
commenters proposed the same or similar recommendations.
1. Section 17.136 states that ``A product is not a medicine,
medicinal preparation, food product, flavor, flavoring extract, or
perfume for nonbeverage drawback if its formula would violate a ban or
restriction of the U.S. Food and Drug Administration (FDA) pertaining
to such products.'' This reflects a longstanding ATF policy. See Rev.
Rul. 58-350, 1958-2 CB 974; see also various regional industry
memoranda in 1991 regarding FD&C Red No. 3, and the following Industry
Circulars: 61-2, 62-33, 65-4, 70-12, 72-8, 72-28, 72-29, 73-6, and 76-
17.
However, a group of commenters pointed out that the wording of
Sec. 17.136 could be interpreted to prevent manufacturers from
receiving drawback on products intended for export to countries with
different food and drug requirements. Further, certain products for
domestic use, such as tobacco flavors and animal feed flavors, are not
subject to the same requirements as products intended for internal
human consumption. Products may legally be made for such uses even
though banned for human consumption.
ATF appreciates this comment. Since the limitation of Sec. 17.136
only applies to products that violate FDA bans or restrictions, it is
not intended to prevent drawback in the situations mentioned by the
commenters. In general, there would be no FDA violations in those
situations. Therefore, language has been added to Sec. 17.136 in this
final rule to clarify this point.
2. Another suggestion pertained to Sec. 17.166(b). This new
regulation requires records of ``other disposition'' of nonbeverage
products--that is, disposition other than by sale. Former regulations
in 27 CFR 197.130 only
[[Page 31401]]
required disposition records for products disposed of by sale;
Sec. 17.166(b) closes this gap in the recordkeeping system.
However, a change in Sec. 17.166(b)(1) introduced by Notice No.
748, adding some language which had not been present in Notice No. 634,
was a cause of concern for several commenters. This change added a
proposed requirement that would have applied whenever a nonbeverage
product is disposed of by being used as an ingredient in other
products. The new language would have required disposition records, in
such instances, to show the formula number of every other product in
which the first product was used as an ingredient. The commenters
stated that a requirement to show such formula numbers would be onerous
for many flavor companies who frequently use their flavors as
ingredients in many other flavors.
The purpose of the proposed requirement added by Notice No. 748 was
to enable an ATF inspector to follow the ``audit trail'' to the next
product and compare its batch records, showing usage of the first
product, with the first product's records of disposition. This
inspection technique had been facilitated under the former regulations
in part 197 by a requirement that supporting data (submitted with each
claim) show, for each product manufactured, the formula number of each
nonbeverage or intermediate product used as an ingredient. That
requirement was eliminated from the simplified supporting data proposed
by Notice No. 748 (and adopted by this final rule), but its absence
would have been more than made up for by the proposed additional
language in Sec. 17.166(b)(1).
After carefully considering this public comment, ATF has decided
that the benefits of the proposed additional requirement in
Sec. 17.166(b)(1) may not be commensurate with the added burden to
industry. Therefore, in this final rule, Sec. 17.166(b)(1) reads as it
did in Notice No. 634, without the formula-number requirement added by
Notice No. 748. However, ATF reserves the right to examine this issue
further and possibly to propose another rulemaking, if experience shows
that the formula-number requirement, or something similar, is needed
for adequate administration of the law.
3. Two commenters requested permission to continue using the old
supporting data, as prescribed under Rev. Proc. 64-32, 1964-2 CB 951,
and former regulations (27 CFR 197.110-197.119). Even though the new
supporting data prescribed by this final rule is much simpler, some
companies have computerized their system, and it would actually be a
hardship for them to have to change.
Section 17.147 allows modifications of the supporting data to be
used without prior permission, if the modified form contains all of the
required information. For the most part, the old supporting data
contains all of the information required under this final rule. There
are only a few new elements, which include: A certification that
required physical inventories have been taken, separate data for
different effective tax rates and for Puerto Rican and U.S. Virgin
Islands spirits and imported rum, and certain explanatory information
sometimes required in Part IV of the new form. Therefore, drawback
claimants may continue to use the old supporting data as long as the
new elements are included.
4. Another comment stated an objection to the requirement for
physical inventories (Sec. 17.167). The commenter claimed that physical
inventories were not required under part 197. However, that is not so.
Physical inventories were mentioned in Secs. 197.116-197.119, with the
intent that they should be taken every claim period. Such inventories
are necessary from time to time to ensure the accuracy of the book
account. In line with the principles of the Administration's
``Reinventing Government'' regulatory initiative, ATF has determined
that claimants with bond coverage need not be required to take a
physical inventory every month (as proposed in Notices No. 634 and
748). Therefore, this final rule provides for quarterly physical
inventories.
5. Some other suggested improvements were related to the proposed
revision of the formula form (previously numbered ATF F 1678, now ATF F
5154.1). A draft version of this form was published in the same issue
of the Federal Register as Notice No. 748 (see 57 FR 39564). First, the
commenter requested additional space for addresses when a single form
is filed for multiple plants; but this is not necessary, since adequate
space is provided on the reverse of the form. (The reverse was not
printed in the Federal Register, since it is virtually a blank page.)
If the reverse is still not sufficient, a continuation on plain paper
is acceptable.
Also, the commenter suggested that ATF F 5154.1 be redesigned for
computer-generated insertion of data. However, he did not propose any
specific changes. If a claimant has a specific proposal for a computer-
generated form, it could be approved as an alternate procedure under
Sec. 17.3. In a separate project, ATF has developed a computer program
to facilitate the preparation of nonbeverage product formulas, which is
available for use by industry members. For more information on this
project, please contact the ATF Laboratory or the person listed above
under FOR FURTHER INFORMATION CONTACT.
6. Another suggestion proposed a simplified procedure for
alternation of premises between a distilled spirits plant and a
nonbeverage product manufacturing plant. This suggestion cannot be
considered at this time, since it relates to other regulations that are
not the subject of this rulemaking. This comment will be treated as a
suggestion for future amendment of 27 CFR part 19.
7. Another comment pointed out that the last sentence of
Sec. 17.137 (requiring qualification as a distilled spirits plant)
should be limited to products that are disapproved as ``fit for
beverage use.'' This comment is well taken. Under Sec. 19.58, as
amended by this final rule, exemption from qualification requirements
is provided to manufacturers of various products that are unfit for
beverage use, which nevertheless would not be approved for drawback
because they are not medicines, medicinal preparations, flavors,
flavoring extracts, food products, or perfume. Therefore, the suggested
change has been made.
8. Several comments addressed the procedure for determining whether
products are fit or unfit for beverage use (Sec. 17.134). It was stated
that the use of an organoleptic examination (taste test) performed by
ATF is not sufficiently objective and ``can result in a very arbitrary
tasting method with unpredictable results.''
As an alternative to the method currently used, one commenter
suggested the use of an independent testing panel funded by industry.
The commenter opined that such a panel might be more ``objective'' and
might alleviate the problem of delays in formula approvals caused by a
backlog of submissions at the ATF Laboratory.
Interestingly, this particular idea (absent the funding proposal)
had been previously considered by ATF pursuant to a suggestion
submitted by two ATF employees. At that time, ATF determined that the
panel would have to be restricted to analysis of samples, since most
industry members would be opposed to allowing an independent laboratory
to see their formulas. Additionally, it was determined that training
and certification by ATF would be necessary, thus minimizing any time
and cost savings to the Government. These findings are still considered
to be valid.
[[Page 31402]]
Furthermore, ATF disagrees that a panel funded by industry would be
any more objective than the taxpayer-funded ATF Laboratory. On the
contrary, industry funding would seem to introduce a possibility for
bias not currently present. ATF has no interest to be served by
approving or disapproving any particular formula. Our only interest is
to administer the law on an impartial basis. An element of subjectivity
(but not bias) is unavoidably present due to the legal requirement that
products be ``unfit for beverage use.'' This cannot be eliminated
merely by shifting the responsibility for decision-making to another
entity. Therefore, ATF has decided not to adopt this suggestion.
Another commenter proposed a different alternative. This one
suggested that ATF incorporate a ``standard reference method'' for
organoleptic examination based on a method prescribed by the American
Society for Testing and Materials (ASTM). The method recommended by the
commenter is as follows:
Samples: (1) Non-Beverage Test (NBT) sample(s)--Formulate six or
fewer samples over a range of dilution levels of the NBT component
in 15% ethanol. (2) Non-Beverage Reference (NBR) and Beverage
Reference (BR) samples--From the list of ingredients and amounts in
Table 1 (i.e. a table listing ingredients and their quantities
recognized by ATF as usually sufficient to make products unfit for
beverage use), select and formulate one sample for a NBR at 15%
ethanol. Reduce the amount of the respective ingredient in the NBR
sample to formulate a BR sample that would be deemed potable.
Procedure: (1) Recruit a panel of at least 15 members previously
screened as outlined below.
(2) Each panelist is presented the NBR and BR samples as
examples of a nonpotable and potable beverage, respectively.
(3) Each panelist is then presented in random order each NBT
sample for comparison in acceptablility to the NBR and BR sample.
(4) Each panelist responds to the question, ``Is this sample
more like the NBR or BR sample in acceptability?''
(5) Count the number of panelists scoring each NBT sample as
more like the BR sample in acceptability.
(6) Use the statistical tables for the duo-trio difference test
(from ASTM ``Manual on Sensory Testing Methods, STP 434'') to
conclude which NBT samples are potable. Determine significance at
the 95% confidence level.
(7) Report the highest concentration of the nonbeverage
component that is significant as an upper bound in concentration of
the NBT component for potability.
Panelist Screening: (1) Present both the NBR and BR samples to a
prospective panelist.
(2) Ask the question, ``Which sample is more acceptable to
you?''
(3) Screen out any panelists which select the NBR sample.
ATF has reviewed this proposed method and finds it unacceptable for
several reasons. First, the method does not test for the specific
information needed for drawback determinations under 26 U.S.C. 5131.
The proposal is, in effect, a test for determining what concentration
of a single ``component'' is needed to render an ethanol solution
nonpotable. However, in making drawback determinations, ATF is not just
interested in the contribution to potability by a specific component;
rather, ATF is interested in the resulting potability of a product,
which may contain many components. Further, ATF is not interested in
quantitating the level of concentration at which a solution becomes
nonpotable; rather, ATF is just interested in determining, yes or no,
whether a particular final product is fit for beverage use. In other
words, the proposed method provides extraneous, unnecessary information
while simultaneously failing to provide the particular information that
ATF needs.
Secondly, the proposed method does not even provide a definitive
determination whether a particular sample is beverage or nonbeverage.
It only provides a determination whether the sample is ``more like''
the ``beverage reference'' or the ``nonbeverage reference.'' If one of
the two reference samples is closer than the other to the border
separating beverage from nonbeverage, the test sample may in fact be
``more like'' one of them even though it is on the opposite side of
that border. For example, imagine that on a scale of 1-100, the
separation between beverage and nonbeverage occurs at 50. If the
beverage reference is at 40 and the nonbeverage reference is at 75, a
test sample at 55 will taste ``more like'' the beverage reference even
though the sample is in fact nonbeverage.
Thirdly, the composition of the proposed panel would not be
appropriate. As the example just given shows, it is important for the
panel to understand the real difference between beverage and
nonbeverage, not merely whether a sample is ``more like'' one or the
other. This implies a panel with expertise, not just a panel of random
individuals. Though not explicitly stated, it is implied that the
proposed method would utilize randomly selected individuals. By
contrast, the panelists used by ATF are all university-trained
chemists, who receive a minimum of 1 year of special training at the
ATF Laboratory before their vote is given full weight in drawback
approval determinations. This ensures maximum consistency and
continuity over time in application of the ``unfit for beverage use''
standard.
Because ATF uses expert panelists, it is not necessary to empanel a
minimum of 15. In most cases, a panel of two is sufficient for a
definitive determination. If a sample is at all borderline, additional
panelists are recruited up to a maximum of 12. At least \2/3\ of them
must agree that the sample is unfit for beverage use. By this method,
the eight chemists of the ATF Laboratory's Nonbeverage Section (aided
when necessary by the eight chemists of the Beverage Alcohol Section)
are able to examine about 2,400 samples per year. This is in addition
to their other work, which includes chemical analyses and examination
of thousands of formulas submitted without samples.
Therefore, although ATF appreciates the effort put into devising
the proposed new method, we have concluded that it is in no way
superior to the method currently being used.
Accordingly, Sec. 17.134 is adopted by this final rule without
change from Notice No. 748. ATF hopes that the information in this
section will be used by manufacturers to identify and ``weed out''
products that are clearly fit for beverage use.
9. Finally, a commenter requested that ATF publish, in Sec. 17.137,
a list of ingredients and their quantities that are recognized by the
ATF Laboratory as usually sufficient to make products unfit for
beverage use. The commenter was referring to the following Guidelines,
which were distributed to attendees at an ATF-sponsored industry
seminar:
----------------------------------------------------------------------------------------------------------------
Ingredient Amount
----------------------------------------------------------------------------------------------------------------
Citric Acid................................. If ethanol less than 30%, acid = 0.1 x ethanol content (% v/v) +
0.5.
If ethanol greater than 30%, acid = 0.1 x ethanol content (% v/
v).
Salt........................................ 3.2 grams salt per 100 ml at 45% ethanol (more for greater
ethanol).
Vanillin.................................... 1 oz. per gallon at 30% ethanol.
Ethyl Vanillin.............................. 0.4 oz. per gallon at 30% ethanol.
[[Page 31403]]
Propylene Glycol............................ Equal amounts by volume of propylene glycol and ethanol.
Ethyl Acetate............................... 2.0% by volume at 90% ethanol.
Maltol...................................... 5% at 90% ethanol.
Essential Oils.............................. Most are unfit at a level of 3% in 90% ethanol. An exception is
anise oil which needs 4.2%. Many 1% solutions of essential oils
are unfit.
Benzaldehyde................................ 1.2 oz. benzaldehyde or bitter almond oil per gallon at 90%
ethanol.
----------------------------------------------------------------------------------------------------------------
ATF agrees that this information should be widely distributed among
nonbeverage industry members; however, the problem with publishing it
in the regulations is that it can only be a guide, not applicable to
all products. If it were contained in regulations, industry members
would tend to assume that if their products met the guidelines, they
would automatically be approved for drawback. No such guarantee can be
provided. (For example, products meeting the citric acid guidelines may
nonetheless be fit for beverage use if they contain sufficient sugar.)
Therefore, ATF has decided to publish this information as a future
Industry Circular, rather than as an amendment to the regulations.
Other Changes From Former Regulations
Other changes, proposed in Notice No. 748, were not the subject of
public comment. Except as noted, they have been adopted substantially
as proposed.
1. Adoption of Rulings. The holdings of certain Revenue Rulings and
ATF Rulings are reflected in the final regulations, as follows: Rev.
Rul. 55-689, 1955-2 CB 729 (Sec. 17.187); Rev. Rul. 56-239, 1956-1 CB
715 (Sec. 17.135); Rev. Rul. 56-314, 1956-2 CB 1023 (Sec. 17.137); Rev.
Rul. 56-335, 1956-2 CB 1024 (Sec. 17.181); Rev Rul. 56-336, 1956-2 CB
1023 (Sec. 17.182); Rev. Rul. 56-367, 1956-2 CB 1026
(Sec. 17.135(b)(2)); Rev. Rul. 56-394, 1956-2 CB 1021 (Sec. 17.152(c));
Rev. Rul. 56-395, 1956-2 CB 1025 (Sec. 17.186); Rev. Rul. 58-350, 1958-
2 CB 974 (Sec. 17.136); Rev. Rul. 63-87, 1963-1 CB 384 (Secs. 17.11:
new definition of ``food products,'' and 17.133(d)); Rev. Rul. 69-138,
1969-1 CB 327 (Secs. 17.126(b) and 17.152(a), (c), and (d)); ATF Rul.
73-1, 1973 ATF CB 85 (Sec. 17.133(b)); ATF Rul. 74-2, 1974 ATF CB 27
(Sec. 17.76); ATF Rul. 76-17, 1976 ATF CB 85 (Secs. 17.151 and
17.152(b)); ATF Rul. 76-19, 1976 ATF CB 86 (Secs. 17.169 and
17.185(b)); ATF Rul. 77-27, 1977 ATF CB 165 (Sec. 17.122); and ATF Rul.
82-7, 1982-2 QB 46 (Sec. 17.11: new definition of ``medicines'').
Rev. Rul. 57-369, 1957-2 CB 948, has been adopted in the
instructions to the revised ATF Form 5154.1 (formerly Form 1678). Rev.
Rul. 58-317, 1958-1 CB 586, is not reflected in the regulations; it is
obsolete since iso-alcoholic elixir has been removed from the National
Formulary. Rev. Rul. 58-428, 1958-2 CB 975, is also not reflected in
the regulations, because the repeal of 26 U.S.C. 5082 has removed its
authority. The holding of ATF Rul. 81-8, 1981-4 QB 24, has been
modified in Sec. 17.183 (see discussion above, under ``Public Comments
on Notice No. 634''). Revenue Procedure 64-32, 1964-2 CB 951, has been
replaced by the new supporting data form (ATF Form 5154.2), per
Sec. 17.147.
2. Form number changes. The prescribed form entitled ``Formula and
Process for Nonbeverage Products'' has been revised and renumbered from
1678 to 5154.1. This will not require resubmission of any formulas
previously approved on Form 1678. Similarly, the form number of the
``Bond for Drawback Under 26 U.S.C. 5131'' is being changed from 1730
to 5154.3, but this will not require resubmission of any bonds
previously approved.
3. Alternate methods or procedures. A new section (Sec. 17.3) has
been added to provide for the employment of alternate methods or
procedures, if approved by the Director pursuant to a showing of the
conditions stated in the regulation.
4. Incorporation by reference. Former Sec. 197.3 is not included in
this final rule, because consultation with the Office of the Federal
Register indicated that the use of the National Formulary, United
States Pharmacopeia, and Homeopathic Pharmacopoeia of the United States
does not amount to an incorporation by reference. Although Sec. 17.132
makes a ``reference'' to these books, there is no ``incorporation'' of
them into the regulations. There is merely an authorization, for
manufacturers who so choose, to utilize formulas from them as approved
formulas without the necessity of submitting ATF Form 5154.1.
Incorporation by reference with the approval of the Director of the
Federal Register under 5 U.S.C. 552(a)(1) is intended to be a
substitute for the reprinting of material required to be published in
the Federal Register under Sec. 552(a)(1)(A)-(E). However, the
authorization for manufacturers to make use of the N.F., U.S.P., and
H.P.U.S. on a voluntary basis does not entail a requirement for ATF to
publish the contents of those books in the Federal Register. It is true
that a manufacturer who has chosen to adopt a formula from the N.F.,
U.S.P., or H.P.U.S. may be subject to a $1,000 fine if he subsequently
fails to follow it (Sec. 17.148). However, the enforcement of this
requirement does not require publication of that formula, any more than
similar enforcement of the manufacturer's own proprietary formulas
requires their publication. The enforcement in each instance pertains
to the manufacturer's choice of a formula, rather than to the contents
of the N.F., U.S.P., and H.P.U.S. per se.
5. Signature authority. Section 17.6, generalized from certain
provisions in former Secs. 197.30 and 197.67(a), states the rule as to
when evidence of signature authority is required.
6. Delegations of authority. Authorities vested in the Director by
part 17 may be delegated, through delegation orders, to subordinate
officials. This possibility is reflected in the definition of
``Director'' in Sec. 17.11 by addition of the words ``or his or her
delegate.'' ATF's Alcohol and Tobacco Laboratory is specified in
Secs. 17.121, 17.122, 17.126, 17.131, 17.132, and 17.136 as the
recipient of certain documents, such as formulas. Accordingly, a new
definition of ``Alcohol and Tobacco Laboratory,'' giving its address,
is provided in Sec. 17.11.
7. New and modified definitions. For clarity, some new definitions
are added in Sec. 17.11. Besides those mentioned elsewhere in this
preamble, there are new definitions of ``approved,'' ``CFR,''
``month,'' ``person,'' ``proof gallon,'' ``quarter,'' ``recovered
spirits,'' and ``this chapter.'' With respect to the definitions of
``month'' and ``quarter,'' claimants desiring to use slightly different
time periods may apply under Sec. 17.3. (Existing approvals remain in
effect.) The definitions of ``director of the service center,''
``district director'' (an I.R.S. official), ``total annual
withdrawals,'' and ``year'' in former Sec. 197.5 have been deleted as
unnecessary. The definitions of ``used'' and ``time distilled spirits
are used'' are in regulations Secs. 17.151 and 17.152. The
[[Page 31404]]
definition of ``nonbeverage products'' in Sec. 17.11 has been modified
to reflect the addition of perfume to the list of products that may be
approved for drawback. (Pub. L. 103-465, Sec. 136(a).) Elsewhere in
this final rule, wherever the types of nonbeverage products are listed,
this addition of perfume is reflected as well. ATF is in the process of
delegating authority under its new organizational structure; however,
this process is not yet complete; therefore, the definition of
``regional director (compliance)'' and the use of that term throughout
this final rule are retained.
8. Time for payment of special tax. A sentence has been added in
Sec. 17.24 to clarify when a payment of special tax is considered late.
Under 26 U.S.C. 5131, special tax is a prerequisite for drawback
eligibility. Therefore, no penalty under 26 U.S.C. 5134(c) will be
imposed as long as special tax is paid before completion of final
action on the claim.
9. Retention of special tax stamps. Former regulations did not
specify a retention period for special tax stamps. These final
regulations (Sec. 17.55) make the retention period the same as for
other required records and documents (generally 3 years). The retention
period for the list of multiple business locations, which was 2 years
under former Sec. 197.28, has also been made the same as for other
documents (Sec. 17.31).
10. Reincorporation. A new Sec. 17.77 has been added, stating that
when an existing corporation or corporations are reorganized into a new
corporation, a new special tax must be paid. This new section is
similar to regulations for liquor dealers in Sec. 194.163. Although
Sec. 17.77 states the general rule, there may be exceptions. For
instance, ATF has ruled that a reorganization under 26 U.S.C.
368(a)(1)(F), consisting of a mere change in identity, form, or place
of organization of one corporation, however effected, does not require
a new special tax. If there is a question as to whether a new special
tax is required, the ATF Tax Processing Center, (513) 684-6580, should
be consulted.
11. Amount of bond for monthly claims. The wording of former
Sec. 197.107 allowed for the possibility that the amount (or ``penal
sum'') of a bond might be reduced due to frequent on-site inspections.
This concept has become obsolete, since today no claimant is regularly
inspected as frequently as quarterly. Therefore, under these final
regulations (Sec. 17.102), bonds for monthly claims must cover the
total drawback claimed during any quarter. It is not anticipated that
this change will affect the required bond coverage of any current
monthly claimant.
12. Time for filing formulas. Language in former Sec. 197.95,
respecting time for filing formulas, has been revised in Sec. 17.121(b)
to express more clearly the statutory requirement of 26 U.S.C. 5131-
5134. Both formula and claim must be filed within ``6 months next
succeeding the quarter in which the distilled spirits covered by the
claim were used'' (26 U.S.C. 5134(b)). However, if there is any doubt
about a product's eligibility for drawback, it is preferable that the
formula be filed and approved before commencement of manufacture.
13. Formulas for use at multiple plants. The revised formula form
(ATF F 5154.1) permits a manufacturer to file a single formula for use
at more than one plant, if the plants at which the formula will be used
are listed on the form. This change is reflected in Sec. 17.121(c).
14. Adoption of predecessor's formulas. Former Sec. 197.99 allowed
the adoption of a predecessor's formulas (for continued use at the same
plant, when its ownership changes) by filing a notice listing the
formulas' serial numbers, names, and dates of approval. This final rule
(Sec. 17.125(a)) only requires the notice of adoption to list the names
and serial numbers. The notice must be filed with the regional director
(compliance). Further, since copies of the articles of incorporation or
other documents are necessary to prove the change of ownership, a
sentence has been added to include this general requirement.
15. Adoption of manufacturer's own formulas from another plant.
Adoption of a company's own formulas for use at another of its plants,
including adoption by a parent company of formulas of its wholly owned
subsidiary, and vice versa, is a new option provided by this final
rule. (See Sec. 17.125(b).) Previous regulations did not provide for
this. The procedure for this type of adoption is to submit a letterhead
notice to the ATF Laboratory, accompanied by two photocopies of the
formula to be adopted and some evidence of the relationship between the
plants. After verifying the formulas, the ATF Laboratory will forward
the notice to the regional director (compliance). The adopting plant is
also required to reference the notice in its first claim relating to
the adopted formula(s).
16. Formulas for intermediate products. ATF needs to know all
ingredients that will enter into the finished nonbeverage product.
Therefore, these final regulations (Sec. 17.126) require the submission
of formulas on ATF Form 5154.1 (formerly 1678) for intermediate
products, unless the formula for an intermediate product is written as
part of the approved formula for the nonbeverage product(s) in which
the intermediate product will be used. (If the formula for the
intermediate product is written as part of the nonbeverage product's
formula, the intermediate product is treated as an unfinished
nonbeverage product; see discussion below.)
17. Self-manufactured ingredients optionally treated either as
intermediate products or as unfinished nonbeverage products. Spirits
consumed in the manufacture of intermediate products are not subject to
drawback, both under former regulations (Sec. 197.119) and this final
rule (Sec. 17.155). If spirits are recovered in the manufacture of
intermediate products, drawback may be claimed, but only if and when
the spirits are subsequently reused in the manufacture of a nonbeverage
product (Sec. 197.118 in former regulations and Sec. 17.153(a) in this
final rule). These restrictions are necessary for protection of the
revenue, because when spirits are consumed or recovered in the
manufacture of an intermediate product, it could be difficult or
impossible to correlate the quantity of such spirits with the
production of a batch of finished nonbeverage product in which the
intermediate was used.
However, in some instances, the manufacture of an intermediate
product requires consumption of significant quantities of spirits that
are not ultimately contained in that intermediate product. The
inability to claim drawback on such spirits would be a hardship.
Therefore, manufacturers have been permitted to resubmit their formulas
to show production of the intermediate product as an integral part of
the formula for the related nonbeverage product. If this is done, the
former intermediate product is regarded instead as an unfinished
nonbeverage product; consequently, spirits necessarily consumed (or
recovered) in its manufacture are regarded as consumed (or recovered)
in the manufacture of a nonbeverage product and are subject to
drawback. This procedure protects the Federal revenue, because each
batch of unfinished nonbeverage product is restricted to use in a
specific batch of a predetermined finished product and must be so used
within the time period specified in the approved nonbeverage product's
formula.
Although this procedure was available under former regulations,
many manufacturers were not aware of it, because it was not described
in the
[[Page 31405]]
regulations. In order to inform manufacturers of this procedure, it is
described in Secs. 17.127 and 17.185 of these final regulations.
Manufacturers are given the option to designate their self-manufactured
alcoholic ingredients as either intermediate products or unfinished
nonbeverage products. There are advantages and disadvantages that go
with each choice.
The advantage of designating an ingredient as an unfinished
nonbeverage product is that spirits recovered or consumed in the
manufacture of the ingredient are subject to drawback in the same way
as other spirits recovered or consumed in the manufacture of
nonbeverage products. The disadvantages of this designation are: (1)
Each batch of the ingredient must be used within a limited time in a
single batch of a predetermined nonbeverage product. (2) The ingredient
cannot be transferred to another plant under Sec. 17.185(b). (This
restriction is due to the necessity of a single, unified batch record,
which must be maintained at the place of production.)
Conversely, the advantages of designating an ingredient as an
intermediate product are: (1) Several batches may be accumulated,
stored indefinitely, and used in the manufacture of any nonbeverage
product whose formula calls for their use. Less (or more) than a full
batch of such a product may be used to produce a batch of a finished
nonbeverage product. (2) Ingredients designated as intermediate
products may be transferred to another branch or plant of the same
manufacturer under Secs. 17.169 and 17.185. (3) For manufacturers who
already have intermediate product formulas on file, another advantage
of the ``intermediate product'' designation is that no new formula or
procedural changes would be required. But the disadvantage of that
designation is that spirits consumed or recovered in production of the
intermediate product may not be claimed for drawback.
18. Subpart U of 27 CFR part 170. Subpart U of 27 CFR part 170,
which provided exemptions from special tax and qualification
requirements for manufacturers and sellers of certain products that are
unfit for beverage use, is being revoked, but the material from that
subpart has not been entirely eliminated. Material related exclusively
to drawback manufacturers has been incorporated in the new part 17.
Some material has been eliminated, either as unnecessary or as covered
by other regulations. The remaining material has been relocated into
subpart D of part 19 (see new Sec. 19.58; this section is grouped under
a new centerheading, ``Activities Not Subject to this Part,'' along
with former Sec. 19.69, which is redesignated as Sec. 19.57).
Conforming amendments have also been made in 27 CFR parts 70 and 194.
Former Sec. 170.613(a)(6) (``Salted wines'') was previously
incorporated into 27 CFR 24.215 by T.D. ATF-299 (55 FR 24974). Sections
in part 17 containing language from former subpart U of part 170 are:
Secs. 17.132, 17.133, and 17.168.
19. Submission of quantitative formulas. This change strengthens
requirements respecting submission of formulas for nonbeverage drawback
products. Regulations allow formulas prescribed by the United States
Pharmacopeia (U.S.P.), the National Formulary (N.F.), and the
Homeopathic Pharmacopoeia of the United States (H.P.U.S.) to be used
without the prior filing and approval of quantitative formulas. This
procedure has been allowed because of the descriptive nature of these
formulas and their consistency over the years. At present, however, the
N.F. and U.S.P. are deleting their requirements for specific quantities
of ingredients in some of their formulas, except for the active
ingredients. Such non-descriptive formulas are not adequate for
regulatory purposes, since alcohol is usually a vehicle rather than an
active ingredient and is therefore not stated as a specific quantity
within such formulas. Drawback of tax under 26 U.S.C. 5134 is claimed
and allowed on exact amounts of alcohol used in the manufacture of
nonbeverage products according to the quantity specified in the
approved formula.
Therefore, Sec. 17.132 in this final rule is worded so that ATF may
require submission of quantitative formulas on ATF Form 5154.1
(formerly 1678), Formula and Process for Nonbeverage Products, for
preparations which appear in the N.F., U.S.P., or H.P.U.S. whenever it
is determined that such submission is necessary to maintain control
over alcohol used and to insure that the products meet the statutory
requirements for drawback eligibility. It is expected that the list of
preparations for which approval of quantitative formulas will be
required under this regulation will be published as an ATF ruling in
the ATF Bulletin.
20. Drawback status of U.S.P., N.F., and H.P.U.S. preparations.
Preparations listed in the U.S.P., N.F., and H.P.U.S. are generally
exempt from the requirement to file quantitative formulas (former
Sec. 197.96; Sec. 17.132 in this final rule), but this exemption does
not necessarily entail approval for drawback. The statutory standard of
``unfit for beverage purposes'' remains and must be enforced (26 U.S.C.
5131(a)).
Former regulations in part 197 were silent concerning the drawback
status of U.S.P., N.F., and H.P.U.S. products. However, this issue
should be addressed, so that manufacturers may properly plan.
Therefore, Sec. 17.132 in this final rule states that formulas listed
in the U.S.P., N.F. and H.P.U.S. are approved for drawback except as
otherwise provided by regulation or ATF ruling. Alcohol, U.S.P.
(including dehydrated alcohol and dehydrated alcohol injection),
alcohol and dextrose injection, U.S.P., and tincture of ginger,
H.P.U.S., are specifically declared in this regulation to be fit for
beverage use.
Similarly, H.P.U.S. preparations made at dilutions higher than
``4X'' (i.e. one part in 10,000) are presumed to be fit for beverage
use. Manufacturers of such products may contest this presumption by
submitting appropriate evidence that a specific product is unfit for
beverage use. The reason for the initial presumption is that the ATF
Laboratory has determined that even for H.P.U.S. products containing
certain poisonous materials, dilutions of greater than ``4X'' are fit
for beverage use. ATF neither confirms nor disputes the medicinal value
of such products, but the dilution one part of active ingredients in
10,000 parts or more of alcohol and water has been found to result in a
product that would be suitable for consumption as a beverage.
Therefore, it has been ATF's position to deny drawback for H.P.U.S.
products diluted to greater than ``4X.'' These final regulations
reflect this position in Sec. 17.132(b).
21. Liquor-filled candies. Paragraph (c) of Sec. 17.133 states
ATF's longstanding policy that candies with alcoholic fillings may be
regarded as nonbeverage products only if the fillings meet the
requirements for alcoholic sauces, as stated in Sec. 17.133(a). Since
some States may prohibit or restrict the manufacture or sale of liquor-
filled candies, a sentence in the introductory text of Sec. 17.133
cautions applicants that formula approval does not authorize violation
of State law.
22. Use or sale of products for beverage purposes. The last
sentence of Sec. 17.134 (adapted from former Secs. 170.615 and 170.618)
makes it clear that drawback approval may be revoked if a product is
found being used or sold for beverage purposes.
23. Manufacturers who are also users of denatured alcohol. Since no
tax is paid on denatured spirits, it would be conducive to fraud on the
revenue for a single manufacturer to produce the same product out of
both specially denatured alcohol and taxpaid alcohol
[[Page 31406]]
on which drawback may be claimed. Section 17.135(a) prohibits this
practice.
24. Claims for credit by manufacturers of nonbeverage products.
Drawback manufacturers who also operate a distilled spirits plant may
find it more convenient to claim nonbeverage drawback in the form of a
credit to offset distilled spirits taxes owed by the distilled spirits
plant. Therefore, Sec. 17.142(b) permits such a procedure.
25. Changes in supporting data requirements. Under the regulations
published in this document, the supporting data required to accompany
claims has been simplified. The new supporting data is described by ATF
Form 5154.2, which is authorized by these regulations. Use of this
Government form is not mandatory; Sec. 17.147 permits the use of any
alternative format that clearly shows all the required information.
The new supporting data has eliminated material that is not
necessary to the processing of drawback claims. Former Part II
(``Distilled Spirits Received'') is gone. So is former Part V
(``Intermediate Products Account'') except for the totals in column
(i), which are incorporated into the Distilled Spirits Account. Part
III has been shortened from 16 columns to 8, and is redesignated as
``Production of Nonbeverage Products.'' Most of the simplification in
Part III results from elimination of detailed information on use of
specific finished products. Use of eligible spirits will be reported in
three columns (``Kind,'' ``Drawback Rate,'' and ``Amount''), and use of
ineligible spirits will not be reported, except for recovered spirits.
Information no longer reported in the supporting data must still be
recorded in the manufacturer's records, as prescribed in subpart H of
part 17. The regional director (compliance) is authorized, under
Secs. 17.147(a) and 17.123, to require additional supporting data if
necessary in a particular case.
Some new information has been added to the supporting data.
Information about the place of origin of Puerto Rican and Virgin
Islands spirits and other imported rum is required, because ATF needs
this information in order to implement the Caribbean Basin Economic
Recovery Act (Pub. L. 98-67, Title II). Separate reporting is required
for spirits taxpaid at different effective tax rates through
application of the wine and flavor tax credit of 26 U.S.C. 5010,
because such spirits are subject to drawback at different rates. (The
drawback rate is $1.00 less than the rate at which distilled spirits
tax was paid, as provided in 26 U.S.C. 5134.)
26. Public Law 98-369. This document reflects certain changes made
by Public Law 98-369 (Deficit Reduction Act of 1984). Those changes
are: (1) Addition of 26 U.S.C. 5206(d), relating to obliteration of
marks, and (2) imposition of a $1,000 penalty for nonfraudulent
violations of drawback law and regulations, unless the manufacturer
establishes reasonable cause for a violation. Sections affected are:
Secs. 17.148 and 17.184.
With respect to the $1,000 penalty, the statute requires that the
penalty be imposed ``for each failure to comply'' with law or
regulations. This means that a separate penalty can be imposed for each
product listed on a claim. For example, if several products were not
manufactured according to formula, but were still unfit for beverage
use, a $1,000 penalty could be imposed for each nonconforming product.
If the amount claimed on any such product is less than $1,000, the
penalty is limited to the amount claimed.
Recordkeeping violations can also result in imposition of a penalty
for each separate product. However, if the violations are so serious
that they prevent the manufacturer from establishing either the
unfitness of a product for beverage use or the quantity of the product
that was made, then the penalty provision would not apply. Each claim
must be considered on its own merits, and the burden of proving
entitlement to drawback is always on the manufacturer. If this burden
is not met with respect to any product, the claim for drawback relating
to that product would be denied.
The preceding comments also apply to products manufactured without
submission of a formula. If the manufacturer can sustain the burden of
proof, the claim would be approved subject to the penalty. However,
without a formula, it is unlikely that this burden could be sustained
other than by examination of batch records. ATF is not obliged to send
an inspector to examine batch records when a manufacturer refuses to
comply with the requirement to submit a formula.
With respect to timely filing, a late-filed claim or formula counts
as just one ``failure to comply.'' So if the only noncompliance is
lateness in filing a claim, the maximum penalty would be $1,000. Late-
filed formulas result in a separate penalty for each late formula.
Special tax paid subsequent to final action on a claim also results in
a $1,000 penalty. It should be noted that in no case will a claim be
paid more than 6 years after the quarter in which the products were
manufactured, due to the statute of limitations of 28 U.S.C. 2401.
Finally, the penalty provision does not apply in a case of fraud.
Fraud is considered to be a deliberate violation with intent to
deceive. If there is fraud, the entire claim will be denied, and the
manufacturer may be subject to other civil and criminal penalties as
well.
27. Changes in recordkeeping requirements. Items deleted from the
supporting data have been incorporated into the records required by
subpart H of part 17 to be maintained at each nonbeverage premises.
Certain formerly required records that are duplicative of the
information provided by the supporting data have been deleted from
subpart H. The holding of Industry Circular 79-5 with respect to
records of raw materials and finished products has been clarified and
incorporated in the regulations (see Secs. 17.164 and 17.165). An
amendment to Sec. 19.780, specifying that the record required by that
section must show the contents of each container, will facilitate the
use of that record by nonbeverage manufacturers in complying with
Sec. 17.162 in instances where a shipment consists of non-uniform
containers.
28. Gains in spirits received or on hand. This final rule requires
gains in spirits received, as disclosed by the receiving gauge, and
gains in spirits on hand, as disclosed by physical inventory, to be
deducted from the claim covering the period in which the gain occurs.
Deduction is appropriate in these circumstances, since a gain indicates
either receipt of ineligible (untaxpaid) spirits or an excessive claim
in a previous period. Regulations stating this requirement are in
Secs. 17.147(d), 17.162(d), and 17.167(a).
With respect to spirits received, Sec. 17.162(d) sometimes allows a
gain to be avoided by recording the shipping plant's taxpayment gauge
as the quantity received. For spirits received in a tank car or tank
truck, this is only allowed when the drawback manufacturer's receiving
gauge is within 0.2% of the taxpayment gauge. (This duplicates
Sec. 197.130a(a) in former regulations.) If the taxpayment gauge was
inaccurate within the 0.2% limitation, the discrepancy will tend to
resolve itself as a gain or loss on the drawback manufacturer's next
physical inventory.
If the gauge of spirits received in a tank car or tank truck
differs from the taxpayment gauge by more than 0.2%, the receiving
gauge must be recorded in the manufacturer's records as the quantity
received. This rule is based on the assumption that if the discrepancy
is that great, the receiving gauge is more likely to be accurate. Under
Sec. 17.162(d), any gain disclosed in such
[[Page 31407]]
circumstances must be immediately recorded as such and deducted from
the manufacturer's next claim.
29. Evidence of taxpayment. A new provision in Sec. 17.163 requires
manufacturers to obtain commercial invoices or other documentation when
spirits are purchased from wholesale and retail liquor dealers. This
new requirement will help provide evidence of taxpayment of the
spirits.
In addition, Sec. 17.163 requires all manufacturers to obtain
evidence of the effective tax rate paid on spirits other than alcohol,
grain spirits, neutral spirits, distilled gin, and straight whisky.
Spirits other than those kinds may contain wine and/or flavoring
material that brings the effective tax rate below the normal distilled
spirits rate ($13.50 per proof gallon). The effective tax rate is
significant for nonbeverage drawback, because the drawback rate is $1
less than the rate at which tax was paid or determined (26 U.S.C.
5134(a)).
For shipments received from a distilled spirits plant, an effective
tax rate below $13.50 per proof gallon must be noted on the record of
shipment required by Sec. 19.780 to be forwarded to the nonbeverage
manufacturer. For spirits purchased from wholesale or retail liquor
dealers, the drawback claimant must obtain the evidence of effective
tax rate from the bottler, producer, or importer. If the required
evidence is not obtained, drawback will only be allowed based on the
lowest effective tax rate possible for the kind of distilled spirits
product used.
30. Production (batch) records. Under Sec. 17.164, the production
records for nonbeverage and intermediate products generally must be
kept by batch. To enable an ATF officer to compare the ingredients used
in each batch with the ingredients listed in the product's formula, the
records must refer to ingredients by the same names as are used for
them in the product's formula. Synonymous names may additionally be
shown. Alcohol usage may be shown by weight or by volume, and the proof
of the spirits must also be shown.
The alcohol content of nonbeverage products must be tested ``at
representative intervals.'' This requirement is a variable, because the
appropriate interval will vary to a great degree depending on the type
of product and the frequency with which it is manufactured. The purpose
of testing alcohol content is to verify the accuracy of the formula and
to monitor compliance with it. If a manufacturer feels unsure of how
frequently alcohol content should be tested to accomplish this purpose
for a particular product, advice may be requested from ATF. Whenever
the manufacturer does make a test, the results must be recorded in the
production records.
31. Specifications for physical inventories. These final
regulations (Sec. 17.167) specify that the ``on hand'' figures in the
supporting data must be verified by physical inventories ``as of the
end of each quarter in which nonbeverage products were manufactured for
purposes of drawback.'' The words ``as of'' indicate that the inventory
need not be taken exactly at the end of the quarter; but if it is taken
at a slightly different time, the data must be worked backward or
forward to the end of the quarterly period. The regulations also
authorize the regional director (compliance) to require physical
inventories of nonbeverage products and raw ingredients whenever such
inventories are deemed necessary to ensure compliance with regulations.
32. Recovered alcohol. Recordkeeping requirements for recovered
alcohol, formerly in Sec. 170.617(c), are incorporated in new
Sec. 17.168. The regulations as proposed in Notice No. 748 did not
provide for destruction of recovered alcohol, although permission for
such destruction could be granted under Sec. 17.3, subject to such
recordkeeping and other conditions as the approving official might have
deemed appropriate. Since the need for destruction of recovered alcohol
is an eventuality that can be expected to occur from time to time, this
final rule provides a standard procedure to replace the need for an
application under Sec. 17.3. Section 17.168 provides standard
recordkeeping requirements and Sec. 17.183 requires a notification,
which will give ATF the option of witnessing the destruction.
33. Records retention. Section 17.170 (corresponding to former
Sec. 197.133) extends the records retention period from 2 years to 3
years, for consistency with other ATF regulations. This change will
ensure the availability of records to support any action that may be
taken within the period of the statute of limitations prescribed by 26
U.S.C. 6531. This section of law prescribes a 3-year statute of
limitations for most offenses; but for certain offenses involving fraud
or willful violation, the statute of limitations is 6 years. Therefore,
as in other ATF regulations, Sec. 17.170 contains a provision that
permits the regional director (compliance) to require a longer records
retention period, not to exceed an additional 3 years.
34. Inspection of records. In addition to the records specifically
required by regulations, ATF officers are authorized under 26 U.S.C.
5133 (as delegates of the Secretary of the Treasury) to inspect any
records ``bearing upon the matters required to be alleged'' in drawback
claims. This authority is reiterated in Sec. 17.171.
In carrying out this authority, ATF will continue to protect
proprietary information. For example, the production records in
Sec. 17.164 do not require greater detail as to ingredients than is
shown on a product's formula. If some secret ingredients of a product
are referred to in general terms, such as ``essential oils,'' on the
formula, then the required production record for that product would
only need to show the quantity of ``essential oils'' used in the
production of each batch. The production record would not have to
specify the secret ingredients. If unusual circumstances should require
an ATF officer to examine other records, such as master formulas that
do specify the secret ingredients, Sec. 17.171 does not provide
authority for copies of such formulas to be made without the consent of
the proprietor. (However, such copies could be required by the Director
or a regional director (compliance) under Sec. 17.123.)
The law, in 18 U.S.C. 1905 and 26 U.S.C. 7213, imposes criminal
penalties on any ATF officer who makes unauthorized disclosure of
confidential business information obtained in the course of his or her
employment. Further restrictions on disclosure are found in 26 U.S.C.
6103, which generally prohibits unauthorized disclosure of returns and
return information. ``Returns'' and ``return information'' in that
section include drawback claims and the records and reports which
support them.
35. Discontinuance of business. A requirement has been added, in
Sec. 17.187, for notification to ATF when a manufacturer permanently
discontinues business. This will enable ATF to manage its files, and it
is reasonable in view of the conditional exemption from basic permit
and special (occupational) tax requirements for the sale of alcohol
remaining on hand.
36. Nonbeverage products from Puerto Rico and the Virgin Islands.
Amendments to 27 CFR 250.173 and 250.309 allow use of the new
supporting data form (ATF F 5154.2) and specify that claims and bonds
shall be filed with the Chief, Puerto Rico Operations, for nonbeverage
products brought into the U.S. from Puerto Rico and the Virgin Islands.
Although Notice No. 748 only proposed to amend the place for filing
drawback claims, the place for filing bonds should be amended as well,
since bonds and claims are filed at the same
[[Page 31408]]
place. Other changes in part 250 are miscellaneous technical and
conforming changes.
Distribution Table for Part 197
------------------------------------------------------------------------
Former section New section
------------------------------------------------------------------------
Subpart A
Sec. 197.1............................... Sec. 17.1.
Sec. 197.2............................... Sec. 17.2.
Sec. 197.3............................... Deleted.
Subpart B
Sec. 197.5: (generally).................. Sec. 17.11.
``Director of the Service Center''........ Deleted.
``District Director''..................... Deleted.
``Time distilled spirits used''........... Sec. 17.152(a).
``Total annual withdrawals''.............. Deleted.
``Used''.................................. Sec. 17.151.
``Year''.................................. Deleted.
Subpart C
Sec. 197.25.............................. Sec. 17.21 & Sec. 17.22.
Sec. 197.25a............................. Sec. 17.22.
Sec. 197.26.............................. Sec. 17.23.
Sec. 197.27.............................. Sec. 17.24.
Sec. 197.28.............................. Sec. 17.31.
Sec. 197.29.............................. Sec. 17.32.
Sec. 197.29a(a).......................... Sec. 17.41.
Sec. 197.29a(b).......................... Sec. 17.42.
Sec. 197.29a(c).......................... Sec. 17.43.
Sec. 197.30 (except last sentence)....... Sec. 17.33.
Sec. 197.30 (last sentence).............. Covered by Sec. 17.6.
Sec. 197.31.............................. Sec. 17.34.
Subpart D
Sec. 197.40.............................. Sec. 17.51.
Sec. 197.40a............................. Sec. 17.52.
Sec. 197.41.............................. Sec. 17.54.
Sec. 197.42.............................. Sec. 17.53.
Sec. 197.43.............................. Sec. 17.61.
Sec. 197.46.............................. Sec. 17.62.
Sec. 197.47.............................. Sec. 17.63.
Sec. 197.47a............................. Sec. 17.55.
Sec. 197.48.............................. Sec. 17.71.
Sec. 197.49.............................. Sec. 17.72.
Sec. 197.50.............................. Sec. 17.73.
Sec. 197.51.............................. Sec. 17.74.
Sec. 197.52.............................. Sec. 17.81.
Sec. 197.53.............................. Sec. 17.82.
Sec. 197.54.............................. Sec. 17.83.
Sec. 197.57.............................. Sec. 17.91.
Sec. 197.58.............................. Sec. 17.92.
Sec. 197.59.............................. Sec. 17.93.
Subpart E
Sec. 197.65.............................. Sec. 17.101 (up to last
sentence).
Sec. 197.66.............................. Sec. 17.103.
Sec. 197.67.............................. Secs. 17.105, 17.6.
Sec. 197.68.............................. Sec. 17.104.
Sec. 197.69.............................. Sec. 17.106.
Sec. 197.70.............................. Sec. 17.144 (2nd sentence).
Sec. 197.71.............................. Sec. 17.101 (last
sentence).
Sec. 197.72.............................. Sec. 17.107.
Sec. 197.73.............................. Sec. 17.108.
Sec. 197.75.............................. Sec. 17.111.
Sec. 197.76.............................. Sec. 17.112.
Sec. 197.77 (except last sentence)....... Sec. 17.113.
Sec. 197.77 (last sentence).............. Covered by Sec. 17.108
(last sentence).
Sec. 197.79.............................. Covered by Sec. 17.111.
Sec. 197.80.............................. Sec. 17.114.
Subpart F
Sec. 197.95 (sentences 1-2, 6, 8-9)...... Sec. 17.121.
Sec. 197.95 (sentences 3 & 4)............ Sec. 17.131.
Sec. 197.95 (5th sentence)............... Sec. 17.137.
Sec. 197.95 (7th sentence)............... Sec. 17.122.
Sec. 197.95 (last sentence).............. Deleted.
Sec. 197.96.............................. Sec. 17.132(a).
Sec. 197.97.............................. Sec. 17.123.
Sec. 197.98.............................. Sec. 17.124.
Sec. 197.99.............................. Sec. 17.125(a).
Subpart G
Sec. 197.105.............................
FR Doc. 96-14881 Taxpaid Distilled Spirits Used in Manufacturing Products Unfit for Beverage Use (73R-24P)
Sec. 17.141.
Sec. 197.106 (up to proviso)............. Sec. 17.142(a).
Sec. 197.106 (proviso, except next-to- Sec. 17.143.
last sentence).
Sec. 197.106 (next-to-last sentence)..... Sec. 17.146(b).
Sec. 197.107 (except first & last Sec. 17.102.
sentences).
Sec. 197.107 (first & last sentences).... Sec. 17.144 (first & last
sentences).
Sec. 197.108............................. Sec. 17.145.
Sec. 197.109............................. Sec. 17.146(a).
Sec. 197.110............................. Sec. 17.147.
Sec. 197.111............................. New supporting data form.
Sec. 197.112-113......................... Sec. 17.162(a).
Sec. 197.114............................. Sec. 17.162(b).
Sec. 197.115............................. Sec. 17.147 & new
supporting data form.
Sec. 197.116 (except last sentence)...... New supporting data form.
Sec. 197.116 (last sentence); also Sec. Sec. 17.167(a).
197.117 (2nd sentence), Sec. 197.118
(2nd sentence), & Sec. 197.119 (2nd
sentence).
Sec. 197.117 (first sentence)............ New supporting data form.
Sec. 197.117 (3rd & 4th sentences)....... Sec. 17.153(b).
Sec. 197.117 (last sentence)............. Sec. 17.153(c).
Sec. 197.118 (first sentence)............ New supporting data form.
Sec. 197.118 (last sentence)............. Sec. 17.153(a).
Sec. 197.119 (first sentence)............ Deleted; covered by new
supporting data form and
Sec. 17.164(b).
Sec. 197.119 (last sentence)............. Sec. 17.155.
Subpart H
Sec. 197.130 (introduction).............. Sec. 17.161 (first
sentence).
Sec. 197.130(a)-(d)...................... Covered by Sec. 17.162(a)-
(c).
Sec. 197.130(e)-(g)...................... Sec. 17.164(b).
Sec. 197.130(h)-(j)...................... Sec. 17.166(a).
Sec. 197.130a(a)......................... Sec. 17.162(d).
Sec. 197.130a(b)......................... Sec. 17.164(d).
Sec. 197.130b............................ Sec. 17.163 (a) & (c).
Sec. 197.131............................. Sec. 17.166(c).
Sec. 197.132 (except last clause)........ Sec. 17.161 (from 2nd
sentence to end).
Sec. 197.132 (last clause)............... Covered by Sec. 17.171.
Sec. 197.133 (except last sentence)...... Sec. 17.170.
Sec. 197.133 (last sentence)............. Sec. 17.171.
------------------------------------------------------------------------
Derivation Table for Part 17
------------------------------------------------------------------------
New section Source
------------------------------------------------------------------------
Subpart A
Sec. 17.1................................ Sec. 197.1.
Sec. 17.2................................ Sec. 197.2.
Sec. 17.3................................ NEW.
Sec. 17.4................................ NEW.
Sec. 17.5................................ NEW.
Sec. 17.6................................ NEW (cf. Secs. 197.30 and
197.67(a)).
Subpart B
Sec. 17.11: (generally).................. Sec. 197.5.
``Alcohol & Tobacco Laboratory''...... NEW.
``Approved''.......................... NEW.
``CFR''............................... NEW.
``Eligible''.......................... NEW.
``Food products''..................... Rev. Rul. 63-87.
``Medicines''......................... ATF Rul. 82-7.
``Month''............................. NEW.
``Person''............................ NEW.
``Proof gallon''...................... NEW.
``Quarter''........................... NEW.
``Recovered spirits''................. NEW.
``Subject to drawback''............... NEW.
``Taxpaid''........................... NEW.
``This chapter''...................... NEW.
Subpart C
Sec. 17.21............................... Sec. 197.25.
Sec. 17.22............................... Sec. 197.25a.
Sec. 17.23............................... Sec. 197.26.
Sec. 17.24............................... Sec. 197.27.
Sec. 17.31............................... Sec. 197.28.
Sec. 17.32............................... Sec. 197.29.
Sec. 17.33............................... Sec. 197.30.
Sec. 17.34............................... Sec. 197.31.
Sec. 17.41............................... Sec. 197.29a(a).
Sec. 17.42............................... Sec. 197.29a(b).
Sec. 17.43............................... Sec. 197.29a(c).
Subpart D
Sec. 17.51............................... Sec. 197.40.
Sec. 17.52............................... Sec. 197.40a.
[[Page 31409]]
Sec. 17.53............................... Sec. 197.42.
Sec. 17.54............................... Sec. 197.41.
Sec. 17.55............................... Sec. 197.47a.
Sec. 17.61............................... Sec. 197.43.
Sec. 17.62............................... Sec. 197.46.
Sec. 17.63............................... Sec. 197.47.
Sec. 17.71............................... Sec. 197.48.
Sec. 17.72............................... Sec. 197.49.
Sec. 17.73............................... Sec. 197.50.
Sec. 17.74............................... Sec. 197.51.
Sec. 17.75............................... NEW.
Sec. 17.76............................... ATF Rul. 74-2.
Sec. 17.77............................... NEW.
Sec. 17.81............................... Sec. 197.52.
Sec. 17.82............................... Sec. 197.53.
Sec. 17.83............................... Sec. 197.54.
Sec. 17.91............................... Sec. 197.57.
Sec. 17.92............................... Sec. 197.58.
Sec. 17.93............................... Sec. 197.59.
Subpart E
Sec. 17.101.............................. Secs. 197.65 & 197.71.
Sec. 17.102.............................. Sec. 197.107 (except first
& last sentences).
Sec. 17.103.............................. Sec. 197.66.
Sec. 17.104.............................. Sec. 197.68.
Sec. 17.105.............................. Sec. 197.67.
Sec. 17.106.............................. Sec. 197.69.
Sec. 17.107.............................. Sec. 197.72.
Sec. 17.108.............................. Sec. 197.73.
Sec. 17.111.............................. Secs. 197.75 & 197.79.
Sec. 17.112.............................. Sec. 197.76.
Sec. 17.113.............................. Sec. 197.77.
Sec. 17.114.............................. Sec. 197.80.
Subpart F
Sec. 17.121.............................. Sec. 197.95 (sentences 1-2,
6, 8-9).
Sec. 17.122.............................. Sec. 197.95 (7th sentence)
& ATF Rul. 77-27.
Sec. 17.123.............................. Sec. 197.97.
Sec. 17.124.............................. Sec. 197.98.
Sec. 17.125(a)........................... Sec. 197.99.
Sec. 17.125(b)........................... NEW.
Sec. 17.126(a)........................... NEW.
Sec. 17.126(b)........................... Rev. Rul. 69-138.
Sec. 17.127.............................. NEW.
Sec. 17.131.............................. Sec. 197.95 (3rd & 4th
sentences).
Sec. 17.132(a)........................... Sec. 197.96.
Sec. 17.132(b)........................... Sec. 170.616.
Sec. 17.133.............................. Sec. 170.613(a) (7)-(9),
Rev. Rul. 63-87 & ATF Rul.
73-1.
Sec. 17.134.............................. NEW.
Sec. 17.135.............................. Rev. Ruls. 56-239 & 56-367.
Sec. 17.136.............................. Rev. Rul. 58-350.
Sec. 17.137.............................. Sec. 197.95 (5th sentence)
& Rev. Rul. 56-314.
Subpart G
Sec. 17.141.............................. Sec. 197.105.
Sec. 17.142(a)........................... Sec. 197.106 (up to
proviso) & ATF Order
1100.95A.
Sec. 17.142(b)........................... NEW.
Sec. 17.143.............................. Sec. 197.106 (proviso,
except next-to-last
sentence).
Sec. 17.144.............................. Secs. 197.70 & 197.107
(first & last sentence).
Sec. 17.145.............................. Sec. 197.108.
Sec. 17.146.............................. Secs. 197.106 (next-to-last
sentence) & 197.109.
Sec. 17.147(a)........................... Sec. 197.110.
Sec. 17.147(b)........................... Sec. 197.115 (last
sentence).
Sec. 17.147 (c) & (d).................... NEW.
Sec. 17.148.............................. NEW.
Sec. 17.151.............................. Sec. 197.11 (``Used'').
Sec. 17.152(a)........................... Sec. 197.11 (``Time
distilled spirits are
used'').
Sec. 17.152(b)........................... ATF Rul. 76-17.
Sec. 17.152(c)........................... Rev. Ruls. 56-394 & 69-138.
Sec. 17.152(d)........................... Rev. Rul. 69-138.
Sec. 17.153.............................. Secs. 197.117 (last three
sentences) & 197.118 (last
sentence).
Sec. 17.154.............................. Sec. 197.11 (``Intermediate
products'').
Sec. 17.155.............................. Sec. 197.119 (last
sentence).
Subpart H
Sec. 17.161.............................. Secs. 197.130
(introduction) & 197.132
(except last clause).
Sec. 17.162(a)........................... Secs. 197.112-113 & 197.130
(a)-(d).
Sec. 17.162(b)........................... Secs. 197.114 & 197.130 (a)-
(d).
Sec. 17.162(c)........................... NEW.
Sec. 17.162(d)........................... Sec. 197.130a(a).
Sec. 17.163 (a) & (c).................... Sec. 197.130b.
Sec. 17.163(b)........................... NEW.
Sec. 17.164.............................. Secs. 197.130 (e)-(g) &
197.130a(b).
Sec. 17.165.............................. Industry Circular 79-5.
Sec. 17.166(a)........................... Sec. 197.130 (h)-(j).
Sec. 17.166(b)........................... NEW.
Sec. 17.166(c)........................... Sec. 197.131.
Sec. 17.167(a)........................... Secs. 197.116-119.
Sec. 17.167(b)........................... Industry Circular 79-5.
Sec. 17.168.............................. Sec. 170.617(c).
Sec. 17.169.............................. NEW.
Sec. 17.170.............................. Sec. 197.133 (except last
sentence).
Sec. 17.171.............................. Sec. 197.132 (last two
clauses), Sec. 197.133
(last sentence) & Industry
Circular 79-5.
Subpart I
Sec. 17.181.............................. Rev. Rul. 56-335.
Sec. 17.182.............................. Rev. Rul. 56-336.
Sec. 17.183.............................. ATF Rul. 81-8 (modified).
Sec. 17.184.............................. NEW.
Sec. 17.185 (a) & (c).................... NEW.
Sec. 17.185(b)........................... ATF Rul. 76-19.
Sec. 17.186.............................. Rev. Rul. 56-395.
Sec. 17.187.............................. Rev. Rul. 55-689.
------------------------------------------------------------------------
Executive Order 12866
It has been determined that this rule is not a significant
regulatory action, because it will not: (1) Have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities; (2) Create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) Raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in Executive Order 12866.
Paperwork Reduction Act
The collections of information contained in this final regulation
have been submitted to the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 3504(h))
and approved under control numbers 1512-0078, 1512-0079, 1512-0095,
1512-0141, 1512-0188, 1512-0378, 1512-0379, 1512-0472, 1512-0492, 1512-
0500, and 1512-0514. The likely respondents and recordkeepers are
businesses or other for-profit institutions, including small businesses
or organizations.
The collection of information under control number 1512-0078 is in
Sec. 17.106. This information is required by ATF to obtain the surety's
agreement to any changes in the terms of bonds. The collections of
information under control number 1512-0079 are in Secs. 17.6 and
17.105. This information is required when agents obtain authority to
sign official documents on behalf of the principal.
The collections of information under control number 1512-0095 are
in Secs. 17.121, 17.126, 17.127, 17.132, and 17.136. This information
is required by ATF to describe the formulas for nonbeverage and
intermediate products. The information is used to ensure that drawback
products meet the statutory requirements for approval as being
medicines, medicinal preparations, food
[[Page 31410]]
products, flavors, flavoring extracts, or perfume that are unfit for
beverage use.
The collections of information under control number 1512-0141 are
in Secs. 17.92, 17.93, 17.142, 17.145, and 17.146. The information on
this claim form must be submitted to ATF by manufacturers claiming
nonbeverage drawback or refund of special (occupational) tax. The
information is used to determine whether the claim is valid.
The collection of information under control number 1512-0188 is in
Sec. 17.6. The information on this form provides ATF with notification
of corporate officials authorized to sign documents on behalf of the
corporation.
The collections of information under control number 1512-0378 are
in Secs. 17.3, 17.54, 17.111, 17.112, 17.122-17.125, 17.143, 17.168(a),
17.183, and 17.187. This control number covers miscellaneous
information required by ATF on an irregular basis to ensure compliance
with law and regulations or to grant permission for the use of optional
procedures.
The collections of information under control number 1512-0379 are
in Secs. 17.161-17.167, 17.168(b), 17.169, 17.170, 17.182, and 17.186.
This information is required to support claims for drawback. The
records kept by manufacturers at their plants are used by ATF
inspectors conducting on-site inspections.
The collections of information under control number 1512-0472 are
in Secs. 17.31-17.34, 17.41, 17.53, 17.61, 17.63, 17.71, and 17.74. The
information on this special tax return is required when paying special
(occupational) tax. The collections of information under control number
1512-0492 are in Secs. 17.42, 17.43, 17.52, and 17.55. This control
number pertains to records associated with the preparation and filing
of the special tax return. The collections of information under control
number 1512-0500 are in Secs. 17.31-17.34, 17.41, and 17.53. This
requirement is the same special tax return covered by control number
1512-0472, except that the form is modified (simplified) for use by
renewal taxpayers.
The collection of information under control number 1512-0514 is in
Secs. 17.147 and 17.182. This collection of information consists of
supporting data required to accompany claims for drawback. The
supporting data submitted to ATF is used to make a preliminary
verification of claims before they are paid.
The estimated total number of respondents and recordkeepers
affected by these collections of information is 611. The estimated
average annual burden is approximately 36 hours per respondent or
recordkeeper. (This figure represents the additional time that would be
required, beyond what a manufacturer would customarily spend on
recordkeeping in the ordinary course of his business.) Comments on
these collections of information, including comments relating to the
accuracy of the burden estimate and suggestions for reducing this
burden, were requested by Notices No. 634 and 748. Public comments
pertaining to the collections of information prescribed by this final
rule are discussed above, under the headings ``Public Comments on
Notice No. 634'' and ``Public Comments on Notice No. 748.'' An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a valid control number
assigned by OMB.
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to a
final regulatory flexibility analysis (5 U.S.C. 603, 604) are
applicable to this final rule. A final regulatory flexibility analysis
has been prepared and reads as follows:
I. Rationale for Agency Action
The law (26 U.S.C. 5131-5134) authorizes a drawback of internal
revenue tax on alcohol used in the manufacture of certain nonbeverage
products. This drawback shall be granted by the Department of the
Treasury on receipt of a proper claim. To determine whether a claim is
proper, regulations may require certain records to be kept and reports
to be submitted by those claiming drawback, in order to establish their
eligibility. That is, it must be shown that the alcohol on which
drawback is claimed: (A) Was actually used, (B) was used in the
manufacture of the particular products for which drawback is
authorized, and (C) was originally taxpaid.
The regulations dealing with nonbeverage drawback are therefore
issued under this primary rationale: to protect the revenue. However,
this rationale is modified by a secondary rationale, which is: to
require only those items of information to be submitted or to be
recorded which are actually necessary to establish eligibility for
drawback. With respect to those items required to be submitted to the
Bureau of Alcohol, Tobacco and Firearms (ATF), only those should be
submitted which are actually used to maintain control over the approval
of claims. With respect to those records required to be maintained at
the claimant's premises, the claimant's own record system should be
utilized at all possible times to avoid duplication.
II. Objective and Legal Basis for the Rule
A. Objective basis. The objective basis of these regulations is
that a dual control system is used to verify the propriety of claims:
Initially, a sampling procedure in the regional office is used to
screen the claims before they are paid; subsequently, periodic field
inspections at the manufacturing premises provide the opportunity to
audit more detailed records.
At the regional offices, not every item on every report is checked
every time; however, a sufficient number are checked in order to insure
that there is no likelihood of fraud. Those reports which are checked
must contain sufficient information to reveal undisguised fraud and/or
honest mistakes. The information submitted should also permit detection
of any problems which would result in scheduling an on-site inspection
sooner than would otherwise be planned.
During on-site inspections, ATF officers examine original batch
records to verify compliance with approved formulas. A physical
inventory is taken and records are examined to see whether they agree
with the inventory. If necessary, a claim adjustment may be required.
B. Legal basis. The legal basis of these regulations is found in 26
U.S.C. 5131-5134 and 7805. These laws give the Secretary of the
Treasury broad discretion to promulgate regulations, but the
regulations must be limited to the function of revenue protection.
Treasury Department Order No. 120-01 (dated June 6, 1972, effective
July 1, 1972) delegated to the Bureau of Alcohol, Tobacco and Firearms
the function of prescribing and administering such regulations.
C. Estimate of number of small entities affected and types. It is
estimated that this document will affect about 611 small entities which
use taxpaid alcohol to manufacture nonbeverage products.
III. Detailed Estimate and Description of the Reporting,
Recordkeeping and Compliance Requirements
A. Reporting requirements. The most significant reporting
requirements of this document pertain to the supporting data that is
required to accompany each claim. The supporting data must include
information regarding: the amount of taxpaid alcohol received, the
amount of each product produced, the amount of taxpaid alcohol used and
the
[[Page 31411]]
product in which used, the amount of alcohol recovered (if any), the
amount of tax claimed as drawback, the amount of alcohol on hand at the
beginning and end of each claim period, and an explanation of any
discrepancies disclosed by physical inventory. Other reports which are
required less frequently include: Statements of formula and process
(which are necessary to establish that the products being manufactured
are of the types for which drawback is authorized under law), bonds and
consents of surety in the case of claimants filing monthly claims,
samples of the product if needed to determine its nonbeverage
character, a special tax return and registration (as required by law in
26 U.S.C. 5131-5132), an application for an employer identification
number in order to identify the special taxpayer, and information
relating to any changes in the location or control of the business. If
no drawback is claimed, then none of the requirements need be complied
with. The reporting requirements affect all classes of nonbeverage
drawback manufacturers. Some knowledge of chemistry is helpful in
preparing the required formulas for submission, and an elementary
knowledge of bookkeeping is needed to maintain the required accounts
for submission.
B. Recordkeeping requirements. The recordkeeping requirements of
this regulation are designed to be supplementary to the reporting
requirements. The records support and amplify the statements given in
the required reports. Ultimately, the purpose is to facilitate
verification of the amount of drawback claimed. No particular form of
record is required; rather, the records may be kept in any format, so
long as the information is clearly expressed. For the most part, these
required records are merely ordinary business records which the
manufacturer would normally maintain in the course of his business.
However, it is still necessary for regulations to specify that these
records must be kept; otherwise, a claimant under investigation might
falsely deny keeping the records, and if there were no requirement that
the records be kept, then it would be difficult to prove any violation
against such a person. The records which this regulation requires
claimants to keep are: Copies of the reports submitted, records of
disposition of nonbeverage products, records of raw materials received,
accounting for recovered alcohol, invoices of purchases, evidence of
taxpayment, and batch records of ingredients used in each production
batch. The regional director (compliance) may also require a
manufacturer to keep inventory records of raw materials and nonbeverage
products. All classes of nonbeverage drawback manufacturers are
affected by these recordkeeping requirements. An elementary knowledge
of bookkeeping is needed to prepare and record the prescribed accounts.
C. Compliance requirements. The compliance requirements of this
regulation are: To retain the special tax stamp at the place of
business as evidence of payment of special tax; to observe the
statutory time restrictions for filing of claims (six months following
the close of the quarter within which the alcohol was used); to retain
the required records for a period of at least 3 years; to obliterate
taxpayment marks on emptied containers of distilled spirits (as
required by 26 U.S.C. 5206); to use intermediate products, and alcohol
recovered from nonbeverage products, for no purpose other than to
manufacture nonbeverage products; to transfer intermediate products to
no one except another branch or plant of the same manufacturer; to
refrain from transferring unfinished nonbeverage products to any other
premises; and to refrain from selling or transferring any recovered
alcohol or material from which alcohol can be recovered, except as
provided by regulation. All classes of nonbeverage drawback
manufacturers are affected by these requirements. No special skills are
needed for compliance.
IV. Conflicting, Duplicative or Overlapping Federal Rules
Some of the requirements of these regulations may overlap
requirements of the Internal Revenue Service (IRS). The reason for this
is that the IRS requires certain financial and cost accounting records
in order to establish income tax liability, and in some cases the same
information may be required by this part in order to establish
eligibility for drawback of excise tax. In case of such overlap, the
proprietor would not be required to keep two separate sets of records;
the same set of records could suffice to meet the requirements of both
ATF and IRS regulations. There is no additional burden, because these
records are merely those which anyone would keep in the ordinary course
of business. The Food and Drug Administration (FDA) may also require
certain records which duplicate or overlap the records required by
these regulations. Such FDA records will also satisfy the ATF
requirement, due to the fact that these regulations do not specify any
particular format for the records, so long as the information is
clearly presented and available to ATF inspectors.
V. Alternatives
A. Multitiering. This concept is not used, because the large
majority of manufacturers of nonbeverage products are small entities.
Consequently, the regulatory requirements have been specifically
designed in consideration of the needs of small establishments. Larger
establishments should also be able to comply with these requirements
without particular difficulties.
B. Simplification of requirements. The requirements as they are
established are felt to be at the minimum. These requirements are
necessary in order to protect the revenue and detect fraud against the
Treasury. In most cases, of course, no fraud exists. But the
requirements must be imposed equally on all claimants, so that if and
when fraud exists, it will be detected. This is the statutory mandate
of 26 U.S.C. 5132.
C. Performance standards. This concept was utilized as much as
possible. For example, an ATF form for ``supporting data'' reports is
provided--but the format presented on that form is not required. (Any
desired format may be used if it provides the necessary information.)
Similarly, the required records also may be kept in any convenient
format. However, the needs of the Government, with respect to
expeditious processing of claims and tax payments, mandate prescription
of specific forms for submission of drawback claims and payment of
special tax. A specific form is also prescribed for formula submission,
in order to facilitate communication concerning the formula among the
applicable ATF offices as well as between ATF and the claimant. A
special regulations section authorizes variation from most requirements
if good cause can be shown for a variation.
D. Exemption of small entities. The law does not authorize
exemption of any entity from the requirements.
VI. Issues Raised by Comments
No comments directed to the issues addressed in the Initial
Regulatory Flexibility Analyses of Notices No. 634 and 748 have been
received from the public or the Chief Counsel for Advocacy of the Small
Business Administration.
Drafting Information
The principal drafter of this document was Steven C. Simon of the
Wine, Beer, and Spirits Regulations Branch, Bureau of Alcohol, Tobacco
and Firearms.
[[Page 31412]]
List of Subjects
27 CFR Parts 17 and 197
Alcohol and alcoholic beverages, Authority delegations (Government
agencies), Claims, Drugs, Excise taxes, Foods, Reporting and
recordkeeping requirements, Spices and flavorings, Surety bonds.
27 CFR Part 19
Administrative practice and procedure, Alcohol and alcoholic
beverages, Authority delegations (Government agencies), Chemicals,
Claims, Customs duties and inspection, Electronic fund transfers,
Excise taxes, Exports, Gasohol, Imports, Labeling, Liquors, Packaging
and containers, Puerto Rico, Reporting and recordkeeping requirements,
Research, Security measures, Spices and flavorings, Stills, Surety
bonds, Transportation, Vinegar, Virgin Islands, Warehouses, Wine.
27 CFR Part 70
Administrative practice and procedure, Alcohol and alcoholic
beverages, Authority delegations (Government agencies), Claims, Excise
taxes, Firearms and ammunition, Government employees, Law enforcement,
Law enforcement officers, Penalties, Seizures and forfeitures, Surety
bonds, Tobacco.
27 CFR Part 170
Alcohol and alcoholic beverages, Authority delegations (Government
agencies), Claims, Customs duties and inspection, Disaster assistance,
Excise taxes, Labeling, Liquors, Penalties, Reporting and recordkeeping
requirements, Surety bonds, Wine.
27 CFR Part 194
Alcohol and alcoholic beverages, Authority delegations (Government
agencies), Beer, Claims, Excise taxes, Exports, Labeling, Liquors,
Packaging and containers, Penalties, Reporting and recordkeeping
requirements, Wine.
27 CFR Part 250
Administrative practice and procedure, Alcohol and alcoholic
beverages, Authority delegations (Government agencies), Beer, Claims,
Customs duties and inspection, Drugs, Electronic funds transfers,
Excise taxes, Foods, Liquors, Packaging and containers, Puerto Rico,
Reporting and recordkeeping requirements, Spices and flavorings, Surety
bonds, Transportation, Virgin Islands, Warehouses, Wine.
Issuance
Accordingly, title 27 of the Code of Federal Regulations is amended
as follows:
Paragraph A. Title 27 CFR part 17 is added to read as follows:
PART 17--DRAWBACK ON TAXPAID DISTILLED SPIRITS USED IN
MANUFACTURING NONBEVERAGE PRODUCTS
Subpart A--General Provisions
Sec.
17.1 Scope of regulations.
17.2 Forms prescribed.
17.3 Alternate methods or procedures.
17.4 OMB control numbers assigned under the Paperwork Reduction
Act.
17.5 Products manufactured in Puerto Rico or the Virgin Islands.
17.6 Signature authority.
Subpart B--Definitions
17.11 Meaning of terms.
Subpart C--Special Tax
17.21 Payment of special tax.
17.22 Rate of special tax
17.23 Special tax for each place of business.
17.24 Time for payment of special tax.
Special Tax Returns
17.31 Filing of return and payment of special tax.
17.32 Completion of ATF Form 5630.5.
17.33 Signature on returns, ATF Form 5630.5.
17.34 Verification of returns.
Employer Identification Number
17.41 Requirement for employer identification number.
17.42 Application for employer identification number.
17.43 Preparation and filing of Form SS-4.
Subpart D--Special Tax Stamps
17.51 Issuance of stamps.
17.52 Distribution of stamps for multiple locations.
17.53 Correction of errors on stamps.
17.54 Lost or destroyed stamps.
17.55 Retention of special tax stamps.
Change in Location
17.61 General.
17.62 Failure to register.
17.63 Certificates in lieu of lost stamps.
Change in Control
17.71 General.
17.72 Right of succession.
17.73 Failure to register.
17.74 Certificates in lieu of lost stamps.
17.75 Formation of partnership or corporation.
17.76 Addition or withdrawal of partners.
17.77 Reincorporation.
Change in Name or Style
17.81 General.
17.82 Change in capital stock.
17.83 Sale of stock.
Refund of Special Tax
17.91 Absence of liability, refund of special tax.
17.92 Filing of refund claim.
17.93 Time limit for filing refund claim.
Subpart E--Bonds and Consents of Sureties
17.101 General.
17.102 Amount of bond.
17.103 Bonds obtained from surety companies.
17.104 Deposit of collateral.
17.105 Filing of powers of attorney.
17.106 Consents of surety.
17.107 Strengthening bonds.
17.108 Superseding bonds.
Termination of Bonds
17.111 General.
17.112 Notice by surety of termination of bond.
17.113 Extent of release of surety from liability under bond.
17.114 Release of collateral.
Subpart F--Formulas and Samples
17.121 Product formulas.
17.122 Amended or revised formulas.
17.123 Statement of process.
17.124 Samples.
17.125 Adoption of formulas and processes.
17.126 Formulas for intermediate products.
17.127 Self-manufactured ingredients treated optionally as
unfinished nonbeverage products.
Approval of Formulas
17.131 Formulas on ATF Form 5154.1.
17.132 U.S.P., N.F., and H.P.U.S. preparations.
17.133 Food product formulas.
17.134 Determination of unfitness for beverage purposes.
17.135 Use of specially denatured alcohol (S.D.A.).
17.136 Compliance with Food and Drug Administration requirements.
17.137 Formulas disapproved for drawback.
Subpart G--Claims for Drawback
17.141 Drawback.
17.142 Claims.
17.143 Notice for monthly claims.
17.144 Bond for monthly claims.
17.145 Date of filing claim.
17.146 Information to be shown by the claim.
17.147 Supporting data.
17.148 Allowance of claims.
Spirits Subject to Drawback
17.151 Use of distilled spirits.
17.152 Time of use of spirits.
17.153 Recovered spirits.
17.154 Spirits contained in intermediate products.
17.155 Spirits consumed in manufacturing intermediate products.
Subpart H--Records
17.161 General.
17.162 Receipt of distilled spirits.
17.163 Evidence of taxpayment of distilled spirits.
17.164 Production record.
17.165 Receipt of raw ingredients.
[[Page 31413]]
17.166 Disposition of nonbeverage products.
17.167 Inventories.
17.168 Recovered spirits.
17.169 Transfer of intermediate products.
17.170 Retention of records.
17.171 Inspection of records.
Subpart I--Miscellaneous Provisions
17.181 Exportation of medicinal preparations and flavoring
extracts.
17.182 Drawback claims by druggists.
17.183 Disposition of recovered alcohol and material from which
alcohol can be recovered.
17.184 Distilled spirits container marks.
17.185 Requirements for intermediate products and unfinished
nonbeverage products.
17.186 Transfer of distilled spirits to other containers.
17.187 Discontinuance of business.
Authority: 26 U.S.C. 5010, 5131-5134, 5143, 5146, 5206, 5273,
6011, 6065, 6091, 6109, 6151, 6402, 6511, 7011, 7213, 7652, 7805; 31
U.S.C. 9301, 9303, 9304, 9306.
Subpart A--General Provisions
Sec. 17.1 Scope of regulations.
The regulations in this part apply to the manufacture of medicines,
medicinal preparations, food products, flavors, flavoring extracts, and
perfume that are unfit for beverage use and are made with taxpaid
distilled spirits. The regulations cover the following topics:
obtaining drawback of internal revenue tax on distilled spirits used in
the manufacture of nonbeverage products; the payment of special
(occupational) taxes in order to be eligible to receive drawback; and
bonds, claims, formulas and samples, losses, and records to be kept
pertaining to the manufacture of nonbeverage products.
Sec. 17.2 Forms prescribed.
(a) The Director is authorized to prescribe all forms, including
bonds and records, required by this part. All of the information called
for in each form shall be furnished as indicated by the headings on the
form and the instructions on or pertaining to the form. In addition,
information called for in each form shall be furnished as required by
this part.
(b) Requests for forms should be mailed to the ATF Distribution
Center, PO Box 5950, Springfield, Virginia 22150-5950.
Sec. 17.3 Alternate methods or procedures.
(a) General. The Director may approve the use of an alternate
method or procedure in lieu of a method or procedure prescribed in this
part if he or she finds that--
(1) Good cause has been shown for the use of the alternate method
or procedure;
(2) The alternate method or procedure is within the purpose of, and
consistent with the effect intended by, the method or procedure
prescribed by this part, and affords equivalent security to the
revenue; and
(3) The alternate method or procedure will not be contrary to any
provision of law, and will not result in any increase in cost to the
Government or hinder the effective administration of this part.
(b) Application. A letter of application to employ an alternate
method or procedure shall be submitted to the regional director
(compliance) for transmittal to the Director. The application shall
specifically describe the proposed alternate method or procedure, and
shall set forth the reasons therefor.
(c) Approval. No alternate method or procedure shall be employed
until the application has been approved by the Director. The Director
shall not approve any alternate method relating to the giving of any
bond or to the assessment, payment, or collection of any tax. The
manufacturer shall, during the period of authorization, comply with the
terms of the approved application and with any conditions thereto
stated by the Director in the approval. Authorization for any alternate
method or procedure may be withdrawn by written notice from the
Director whenever in his or her judgment the revenue is jeopardized,
the effective administration of this part is hindered, or good cause
for the authorization no longer exists. The manufacturer shall retain,
in the records required by Sec. 17.170, any authorization given by the
Director under this section.
Sec. 17.4 OMB control numbers assigned under the Paperwork Reduction
Act.
(a) Purpose. This section collects and displays the control numbers
assigned to the information collection requirements of this part by the
Office of Management and Budget under the Paperwork Reduction Act of
1980, Public Law 96-511.
(b) OMB control number 1512-0078. OMB control number 1512-0078 is
assigned to the following section in this part: Sec. 17.106.
(c) OMB control number 1512-0079. OMB control number 1512-0079 is
assigned to the following sections in this part: Secs. 17.6 and 17.105.
(d) OMB control number 1512-0095. OMB control number 1512-0095 is
assigned to the following sections in this part: Secs. 17.121, 17.126,
17.127, 17.132, and 17.136.
(e) OMB control number 1512-0141. OMB control number 1512-0141 is
assigned to the following sections in this part: Secs. 17.92, 17.93,
17.142, 17.145, and 17.146.
(f) OMB control number 1512-0188. OMB control number 1512-0188 is
assigned to the following section in this part: Sec. 17.6.
(g) OMB control number 1512-0378. OMB control number 1512-0378 is
assigned to the following sections in this part: Secs. 17.3, 17.54,
17.111, 17.112, 17.122, 17.123, 17.124, 17.125, 17.143, 17.168(a),
17.183, and 17.187.
(h) OMB control number 1512-0379. OMB control number 1512-0379 is
assigned to the following sections in this part: Secs. 17.161, 17.162,
17.163, 17.164, 17.165, 17.166, 17.167, 17.168(b), 17.169, 17.170,
17.182, and 17.186.
(i) OMB control number 1512-0472. OMB control number 1512-0472 is
assigned to the following sections in this part: Secs. 17.31, 17.32,
17.33, 17.34, 17.41, 17.53, 17.61, 17.63, 17.71, and 17.74.
(j) OMB control number 1512-0492. OMB control number 1512-0492 is
assigned to the following sections in this part: Secs. 17.42, 17.43,
17.52, and 17.55.
(k) OMB control number 1512-0500. OMB control number 1512-0500 is
assigned to the following sections in this part: Secs. 17.31, 17.32,
17.33, 17.34, 17.41, and 17.53.
(l) OMB control number 1512-0514. OMB control number 1512-0514 is
assigned to the following sections in this part: Secs. 17.147 and
17.182.
Sec. 17.5 Products manufactured in Puerto Rico or the Virgin Islands.
For additional provisions regarding drawback on distilled spirits
contained in medicines, medicinal preparations, food products, flavors,
flavoring extracts, or perfume which are unfit for beverage purposes
and which are brought into the United States from Puerto Rico or the
U.S. Virgin Islands, see part 250, subparts I and Ob, of this chapter.
Sec. 17.6 Signature authority.
No claim, bond, tax return, or other required document executed by
a person as an agent or representative is acceptable unless a power of
attorney or other proper notification of signature authority has been
filed with the ATF office where the required document must be filed.
The ATF officer with whom the claim or other required document is filed
may, when he or she considers it necessary, require additional evidence
of the authority of the agent or representative to execute the
document. Except as otherwise provided by this part, powers of
[[Page 31414]]
attorney shall be filed on ATF Form 1534 (5000.8), Power of Attorney.
Notification of signature authority of partners, officers, or employees
may be given by filing a copy of corporate or partnership documents,
minutes of a meeting of the board of directors, etc. For corporate
officers or employees, ATF Form 5100.1, Signing Authority for Corporate
Officials, may be used. For additional provisions regarding powers of
attorney, see Sec. 17.105 and 26 CFR part 601, subpart E.
Subpart B--Definitions
Sec. 17.11 Meaning of terms.
As used in this part, unless the context otherwise requires, terms
have the meanings given in this section. Words in the plural form
include the singular, and vice versa, and words indicating the
masculine gender include the feminine. The terms ``includes'' and
``including'' do not exclude things not listed which are in the same
general class.
Alcohol and Tobacco Laboratory. The Alcohol and Tobacco Laboratory,
Bureau of Alcohol, Tobacco and Firearms, 1401 Research Boulevard,
Rockville, Maryland 20850.
Approved, or approved for drawback. When used with reference to
products and their formulas, this term means that drawback may be
claimed on eligible spirits used in such products in accordance with
this part.
ATF officer. An officer or employee of the Bureau of Alcohol,
Tobacco and Firearms (ATF) authorized to perform any function relating
to the administration or enforcement of this part.
CFR. The Code of Federal Regulations.
Director. The Director, Bureau of Alcohol, Tobacco and Firearms,
the Department of the Treasury, Washington, DC 20226; or his or her
delegate.
Distilled spirits, or spirits. That substance known as ethyl
alcohol, ethanol, spirits, or spirits of wine in any form (including
all dilutions and mixtures thereof, from whatever source or by whatever
process produced).
Effective tax rate. The net tax rate, after reduction for any
credit allowable under 26 U.S.C. 5010 for wine and flavor content, at
which the tax imposed on distilled spirits by 26 U.S.C. 5001 or 7652 is
paid or determined. For distilled spirits with no wine or flavors
content, the effective tax rate equals the rate of tax imposed by 26
U.S.C. 5001 or 7652.
Eligible, or eligible for drawback. When used with reference to
spirits, this term designates taxpaid spirits which have not yet been
used in nonbeverage products.
Filed. Subject to the provisions of Secs. 70.305 and 70.306 of this
chapter, a claim for drawback or other document or payment submitted
under this part is generally considered to have been ``filed'' when it
is received by the office of the proper Government official; but if an
item is mailed timely with postage prepaid, then the United States
postmark date is treated as the date of filing.
Food products. Includes food adjuncts, such as preservatives,
emulsifying agents, and food colorings, which are manufactured and
used, or sold for use, in food.
Intermediate products. Products to which all three of the following
conditions apply: they are made with taxpaid distilled spirits, they
have been disapproved for drawback, and they are made by the
manufacturer exclusively for its own use in the manufacture of
nonbeverage products approved for drawback. However, ingredients
treated as unfinished nonbeverage products under Sec. 17.127 are not
considered to be intermediate products.
Medicines. Includes laboratory stains and reagents for use in
medical diagnostic procedures.
Month. A calendar month.
Nonbeverage products. Medicines, medicinal preparations, food
products, flavors, flavoring extracts, or perfume, which are
manufactured using taxpaid distilled spirits, and which are unfit for
use for beverage purposes.
Person. An individual, trust, estate, partnership, association,
company, or corporation.
Proof gallon. A gallon of liquid at 60 degrees Fahrenheit, which
contains 50 percent by volume of ethyl alcohol having a specific
gravity of 0.7939 at 60 degrees Fahrenheit (referred to water at 60
degrees Fahrenheit as unity), or the alcoholic equivalent thereof.
Quarter. A 3-month period beginning January 1, April 1, July 1, or
October 1.
Recovered spirits. Taxpaid spirits that have been salvaged, after
use in the manufacture of a product or ingredient, so that the spirits
are reusable.
Regional director (compliance). The principal ATF regional official
responsible for administering regulations in this part, or his or her
delegate.
Special tax. The special (occupational) tax on manufacturers of
nonbeverage products, imposed by 26 U.S.C. 5131.
Subject to drawback. This term is used with reference to spirits.
Eligible spirits become ``subject to drawback'' when they are used in
the manufacture of a nonbeverage product. When spirits have become
``subject to drawback,'' they may be included in the manufacturer's
claim for drawback of tax covering the period in which they were first
used.
Tax year. The period from July l of one calendar year through June
30 of the following year.
Taxpaid. When used with respect to distilled spirits, this term
shall mean that all taxes imposed on such spirits by 26 U.S.C. 5001 or
7652 have been determined or paid as provided by law.
This chapter. Chapter I of title 27 of the Code of Federal
Regulations.
U.S.C. The United States Code.
Subpart C--Special Tax
Sec. 17.2l Payment of special tax.
Each person who uses taxpaid distilled spirits in the manufacture
or production of nonbeverage products shall pay special tax as
specified in Sec. 17.22 in order to be eligible to receive drawback on
the spirits so used. Special tax shall be paid for each tax year during
which spirits were used in the manufacture of a product covered by a
drawback claim. If a claim is filed covering taxpaid distilled spirits
used during the preceding tax year, and special tax has not been paid
for the preceding tax year, then special tax for the preceding tax year
shall be paid. Regardless of the portion of a tax year covered by a
claim, the full annual special tax shall be paid. The manufacturer is
not required to pay the special tax if drawback is not claimed.
Sec. 17.22 Rate of special tax.
Effective January 1, 1988, the rate of special tax is $500 per tax
year for all persons claiming drawback on distilled spirits used in the
manufacture or production of nonbeverage products.
Sec. 17.23 Special tax for each place of business.
A separate special tax shall be paid for each place where distilled
spirits are used in the manufacture or production of nonbeverage
products, except for any such place in a tax year for which no claim is
filed, or no drawback is paid, on spirits used at that place.
Sec. 17.24 Time for payment of special tax.
Special tax may be paid in advance of actual use of distilled
spirits. Special tax shall be paid before a claimant may receive
drawback. Special tax may be paid without penalty under 26 U.S.C.
5134(c) at any time prior to completion of final action on the claim.
[[Page 31415]]
Special Tax Returns
Sec. 17.31 Filing of return and payment of special tax.
Special tax shall be paid by return. The prescribed return is ATF
Form 5630.5, Special Tax Registration and Return. Special tax returns,
with payment of tax, shall be filed with ATF in accordance with
instructions on the form.
(26 U.S.C. 609l, 6151)
Sec. 17.32 Completion of ATF Form 5630.5.
(a) General. All of the information called for on Form 5630.5 shall
be provided, including:
(1) The true name of the taxpayer.
(2) The trade name(s) (if any) of the business(es) subject to
special tax.
(3) The employer identification number (see Secs. 17.41-43).
(4) The exact location of the place of business, by name and number
of building or street, or if these do not exist, by some description in
addition to the post office address. In the case of one return for two
or more locations, the address to be shown shall be the taxpayer's
principal place of business (or principal office, in the case of a
corporate taxpayer).
(5) The class of special tax to which the taxpayer is subject.
(6) Ownership and control information: The name, position, and
residence address of every owner of the business and of every person
having power to control its management and policies with respect to the
activity subject to special tax. ``Owner of the business'' shall
include every partner if the taxpayer is a partnership, and every
person owning 10% or more of its stock if the taxpayer is a
corporation. However, the ownership and control information required by
this paragraph need not be stated if the same information has been
previously provided to ATF, and if the information previously provided
is still current.
(b) Multiple locations. A taxpayer subject to special tax for the
same period at more than one location or for more than one class of tax
shall--
(1) File one special tax return, ATF Form 5630.5, with payment of
tax, to cover all such locations and classes of tax; and
(2) Prepare, in duplicate, a list identified with the taxpayer's
name, address (as shown on the Form 5630.5), employer identification
number, and period covered by the return. The list shall show, by
States, the name, address, and tax class of each location for which
special tax is being paid. The original of the list shall be filed with
ATF in accordance with instructions on the return, and the copy shall
be retained at the taxpayer's principal place of business (or principal
office, in the case of a corporate taxpayer) for the period specified
in Sec. 17.170.
(26 U.S.C. 6011, 7011)
Sec. 17.33 Signature on returns, ATF Form 5630.5.
The return of an individual proprietor shall be signed by the
proprietor; the return of a partnership shall be signed by a general
partner; and the return of a corporation shall be signed by a corporate
officer. All signatures must be original; photocopies are not
acceptable. In each case, the person signing the return shall designate
his or her capacity, as ``individual owner,'' ``member of
partnership,'' or, in the case of a corporation, the title of the
officer. Receivers, trustees, assignees, executors, administrators, and
other legal representatives who continue the business of a bankrupt,
insolvent, deceased person, etc., shall indicate the fiduciary capacity
in which they act.
Sec. 17.34 Verification of returns.
ATF Forms 5630.5 shall contain or be verified by a written
declaration that the return is made under the penalties of perjury.
(68A Stat. 749 (26 U.S.C. 6065))
Employer Identification Number
Sec. 17.41 Requirement for employer identification number.
The employer identification number (defined in 26 CFR 301.7701-12)
of the taxpayer who has been assigned such a number shall be shown on
each special tax return (ATF Form 5630.5), including amended returns
filed under this subpart. Failure of the taxpayer to include the
employer identification number on Form 5630.5 may result in assertion
and collection of the penalty specified in Sec. 70.113 of this chapter.
(Secs. 1(a), (b), Pub. L. 87-397, 75 Stat. 828 (26 U.S.C. 6109,
6723))
Sec. 17.42 Application for employer identification number.
(a) An employer identification number is assigned pursuant to
application on IRS Form SS-4, Application for Employer Identification
Number, filed by the taxpayer. Form SS-4 may be obtained from any
office of the Internal Revenue Service.
(b) Each taxpayer who files a return on ATF Form 5630.5 shall make
application on IRS Form SS-4 for an employer identification number,
unless he or she has already been assigned such a number or made
application for one. The application on Form SS-4 shall be filed on or
before the seventh day after the date on which the first return on Form
5630.5 is filed.
(c) Each taxpayer shall make application for and shall be assigned
only one employer identification number, regardless of the number of
places of business for which the taxpayer is required to file Form
5630.5.
(Sec. 1(a), Pub. L. 87-397, 75 Stat. 828 (26 U.S.C. 6109))
Sec. 17.43 Preparation and filing of Form SS-4.
The taxpayer shall prepare and file the application on IRS Form SS-
4, together with any supplementary statement, in accordance with
instructions on the form or issued in respect to it.
(Sec. 1(a), Pub. L. 87-397, 75 Stat. 828 (26 U.S.C. 6109))
Subpart D--Special Tax Stamps
Sec. 17.51 Issuance of stamps.
Each manufacturer of nonbeverage products, upon filing a properly
executed return on ATF Form 5630.5, together with the proper tax
payment in the full amount due, shall be issued a special tax stamp
designated ``Manufacturer of Nonbeverage Products.'' This special tax
stamp shall not be sold or otherwise transferred to another person
(except as provided in Secs. 17.71 and 17.72). If the Form 5630.5
submitted with the tax payment covers multiple locations, the taxpayer
shall be issued one appropriately designated stamp for each location
listed in the attachment to Form 5630.5 required by Sec. 17.32(b)(2),
but showing, as to name and address, only the name of the taxpayer and
the address of the taxpayer's principal place of business (or principal
office in the case of a corporate taxpayer).
Sec. 17.52 Distribution of stamps for multiple locations.
On receipt of the special tax stamps, the taxpayer shall verify
that a stamp has been obtained for each location listed on the retained
copy of the attachment to ATF Form 5630.5 required by Sec. 17.32(b)(2).
The taxpayer shall designate one stamp for each location and shall type
on it the trade name (if different from the name in which the stamp was
issued) and address of the business conducted at the location for which
the stamp is designated. The taxpayer shall then forward each stamp to
the place of business designated on the stamp.
Sec. 17.53 Correction of errors on stamps.
(a) Single location. On receipt of a special tax stamp, the
taxpayer shall
[[Page 31416]]
examine it to ensure that the name and address are correctly stated. If
an error has been made, the taxpayer shall return the stamp to ATF at
the address shown thereon, with a statement showing the nature of the
error and setting forth the proper name or address. On receipt of the
stamp and statement, the data shall be compared with that on ATF Form
5630.5, and if an error on the part of ATF has been made, the stamp
shall be corrected and returned to the taxpayer. If the Form 5630.5
agrees with the data on the stamp, the taxpayer shall be required to
file a new Form 5630.5, designated ``Amended Return,'' disclosing the
proper name and address.
(b) Multiple locations. If an error is discovered on a special tax
stamp obtained under the provisions of Sec. 17.32(b), relating to
multiple locations, and if the error concerns any of the information
contained in the attachment to Form 5630.5, the taxpayer shall return
the stamp, with a statement showing the nature of the error and the
correct data, to his or her principal office. The data on the stamp
shall then be compared with the taxpayer's copy of the attachment to
Form 5630.5, retained at the principal office. If the error is in the
name and address and was made by the taxpayer, the taxpayer shall
correct the stamp and return it to the designated place of business. If
the error was made in the attachment to Form 5630.5, the taxpayer shall
file with ATF an amended Form 5630.5 and an amended attachment with a
statement showing the error.
Sec. 17.54 Lost or destroyed stamps.
If a special tax stamp is lost or accidentally destroyed, the
taxpayer shall immediately notify the regional director (compliance).
On receipt of this notification, the regional director (compliance)
shall issue to the taxpayer a ``Certificate in Lieu of Lost or
Destroyed Special Tax Stamp.'' The taxpayer shall keep the certificate
available for inspection in the same manner as prescribed for a special
tax stamp in Sec. 17.55.
Sec. 17.55 Retention of special tax stamps.
Taxpayers shall keep their special tax stamps at the place of
business covered thereby for the period specified in Sec. 17.170, and
shall make them available for inspection by any ATF officer during
business hours.
(Title II, sec. 201, Pub. L. 85-859, 72 Stat. 1348 (26 U.S.C. 5146))
Change in Location
Sec. 17.61 General.
A manufacturer who, during a tax year for which special tax has
been paid, moves its place of manufacture to a place other than that
specified on the related special tax stamp, shall register the change
with ATF within 90 days after the move to the new premises, by
executing a new return on ATF Form 5630.5, designated as ``Amended
Return.'' This Amended Return shall set forth the time of the move and
the address of the new location. The taxpayer shall also submit the
special tax stamp to ATF, for endorsement of the change in location.
(Title II, sec. 201, Pub. L. 85-859, 72 Stat. 1374 (26 U.S.C. 5143))
Sec. 17.62 Failure to register.
A manufacturer who fails to register a change of location with ATF,
as required by Sec. 17.61, shall pay a new special tax for the new
location if a claim for drawback is filed on distilled spirits used at
the new location during the tax year for which the original special tax
was paid.
Sec. 17.63 Certificates in lieu of lost stamps.
The provisions of Secs. 17.61 and 17.62 apply to certificates
issued in lieu of lost or destroyed special tax stamps.
Change in Control
Sec. 17.71 General.
Certain persons, other than the person who paid the special tax,
may qualify for succession to the same privileges granted by law to the
taxpayer, to cover the remainder of the tax year for which the special
tax was paid. Those who may qualify are specified in Sec. 17.72. To
secure these privileges, the successor or successors shall file with
ATF, within 90 days after the date on which the successor or successors
assume control, a return on ATF Form 5630.5, showing the basis of the
succession.
Sec. 17.72 Right of succession.
Under the conditions set out in Sec. 17.71, persons listed below
have the right of succession:
(a) The surviving spouse or child, or executor, administrator, or
other legal representative of a taxpayer.
(b) A husband or wife succeeding to the business of his or her
living spouse.
(c) A receiver or trustee in bankruptcy, or an assignee for the
benefit of creditors.
(d) The members of a partnership remaining after the death or
withdrawal of a general partner.
Sec. 17.73 Failure to register.
A person eligible for succession to the privileges of a taxpayer,
in accordance with Secs. 17.71 and 17.72, who fails to register the
succession with ATF, as required by Sec. 17.71, shall pay a new special
tax if a claim for drawback is filed on distilled spirits used by the
successor during the tax year for which the original special tax was
paid.
Sec. 17.74 Certificates in lieu of lost stamps.
The provisions of Secs. 17.71-73 apply to certificates issued in
lieu of lost or destroyed special tax stamps.
Sec. 17.75 Formation of partnership or corporation.
If one or more persons who have paid special tax form a partnership
or corporation, as a separate legal entity, to take over the business
of manufacturing nonbeverage products, the new firm or corporation
shall pay a new special tax in order to be eligible to receive
drawback.
Sec. 17.76 Addition or withdrawal of partners.
(a) General partners. When a business formed as a partnership,
subject to special tax, admits one or more new general partners, the
new partnership shall pay a new special tax in order to be eligible to
receive drawback. Withdrawal of general partners is covered by
Sec. 17.72(d).
(b) Limited partners. Changes in the membership of a limited
partnership requiring amendment of the certificate but not dissolution
of the partnership are not changes that incur liability to additional
special tax.
Sec. 17.77 Reincorporation.
When a new corporation is formed to take over and conduct the
business of one or more corporations that have paid special tax, the
new corporation shall pay special tax and obtain a stamp in its own
name.
Change in Name or Style
Sec. 17.81 General.
A person who paid special tax is not required to pay a new special
tax by reason of a mere change in the trade name or style under which
the business is conducted, nor by reason of a change in management
which involves no change in the proprietorship of the business.
Sec. 17.82 Change in capital stock.
A new special tax is not required by reason of a change of name or
increase in the capital stock of a corporation, if the laws of the
State of incorporation provide for such changes without creating a new
corporation.
Sec. 17.83 Sale of stock.
A new special tax is not required by reason of the sale or transfer
of all or a controlling interest in the capital stock of a corporation.
[[Page 31417]]
Refund of Special Tax
Sec. 17.91 Absence of liability, refund of special tax.
The special tax paid may be refunded if it is established that the
taxpayer did not file a claim for drawback for the period covered by
the special tax stamp. If a claim for drawback is filed, the special
tax may be refunded if no drawback is paid or allowed for the period
covered by the stamp.
Sec. 17.92 Filing of refund claim.
Claim for refund of special tax shall be filed on ATF Form 2635
(5620.8), Claim--Alcohol, Tobacco and Firearms Taxes. The claim shall
be filed with the Chief, Tax Processing Center, PO Box 145433,
Cincinnati, OH 45203. The claim shall set forth in detail sufficient
reasons and supporting facts to inform the regional director
(compliance) of the exact basis of the claim. The special tax stamp
shall be attached to the claim.
(68A Stat. 791 (26 U.S.C. 6402))
Sec. 17.93 Time limit for filing refund claim.
A claim for refund of special tax shall not be allowed unless filed
within three years after the payment of the tax.
(68A Stat. 808 (26 U.S.C. 6511))
Subpart E--Bonds and Consents of Sureties
Sec. 17.101 General.
A bond shall be filed by each person claiming drawback on a monthly
basis. Persons who claim drawback on a quarterly basis are not required
to file bonds. Bonds shall be prepared and executed on ATF Form 5154.3,
Bond for Drawback Under 26 U.S.C. 5131, in accordance with the
provisions of this part and the instructions printed on the form. The
bond requirement of this part shall be satisfied either by bonds
obtained from authorized surety companies or by deposit of collateral
security. Regional directors (compliance) are authorized to approve all
bonds and consents of surety required by this part.
Sec. 17.102 Amount of bond.
The bond shall be a continuing one, in an amount sufficient to
cover the total drawback to be claimed on spirits used during any
quarter. However, the amount of any bond shall not exceed $200,000 nor
be less than $1,000.
Sec. 17.103 Bonds obtained from surety companies.
(a) The bond may be obtained from any surety company authorized by
the Secretary of the Treasury to be a surety on Federal bonds. Surety
companies so authorized are listed in the current revision of
Department of the Treasury Circular 570 (Companies Holding Certificates
of Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies), and subject to such amendatory circulars as may
be issued from time to time. Bonds obtained from surety companies are
also governed by the provisions of 31 U.S.C. 9304, and 31 CFR part 223.
(b) A bond executed by two or more surety companies shall be the
joint and several liability of the principal and the sureties; however,
each surety company may limit its liability, in terms upon the face of
the bond, to a definite, specified amount. This amount shall not exceed
the limitations prescribed for each surety company by the Secretary, as
stated in Department of the Treasury Circular 570. If the sureties
limit their liability in this way, the total of the limited liabilities
shall equal the required amount of the bond.
(c) Department of the Treasury Circular No. 570 is published in
the Federal Register annually on the first workday in July. As they
occur, interim revisions of the circular are published in the Federal
Register. Copies of the circular may be obtained from: Surety Bond
Branch, Financial Management Service, Department of the Treasury,
Washington, DC 20227.
(Sec. 1, Pub. L. 97-258, 96 Stat. 1047 (31 U.S.C. 9304))
Sec. 17.104 Deposit of collateral.
Except as otherwise provided by law or regulations, bonds or notes
of the United States, or other obligations which are unconditionally
guaranteed as to both interest and principal by the United States, may
be pledged and deposited by principals as collateral security in lieu
of bonds obtained from surety companies. Deposit of collateral security
is governed by the provisions of 31 U.S.C. 9303, and 31 CFR part 225.
(Sec. 1, Pub. L. 97-258, 96 Stat. 1046 (31 U.S.C. 9301, 9303))
Sec. 17.105 Filing of powers of attorney.
(a) Surety companies. The surety company shall prepare and submit
with each bond, and with each consent to changes in the terms of a
bond, a power of attorney in accordance with Sec. 17.6, authorizing the
agent or officer who executed the bond or consent to act in this
capacity on behalf of the surety. The power of attorney shall be
prepared on a form provided by the surety company and executed under
the corporate seal of the company. If other than a manually signed
original is submitted, it shall be accompanied by certification of its
validity.
(b) Principal. The principal shall execute and file with the
regional director (compliance) a power of attorney, in accordance with
Sec. 17.6, for every person authorized to execute bonds on behalf of
the principal.
(Sec. 1, Pub. L. 97-258, 96 Stat. 1047 (31 U.S.C. 9304, 9306))
Sec. 17.106 Consents of surety.
The principal and surety shall execute on ATF Form 1533 (5000.18),
Consent of Surety, any consents of surety to changes in the terms of
bonds. Form 1533 (5000.18) shall be executed with the same formality
and proof of authority as is required for the execution of bonds.
Sec. 17.107 Strengthening bonds.
Whenever the amount of a bond on file and in effect becomes
insufficient, the principal may give a strengthening bond in a
sufficient amount, provided the surety is the same as on the bond
already on file and in effect; otherwise a superseding bond covering
the entire liability shall be filed. Strengthening bonds, filed to
increase the bond liability of the surety, shall not be construed in
any sense to be substitute bonds, and the regional director
(compliance) shall not approve a strengthening bond containing any
notation which may be interpreted as a release of any former bond or as
limiting the amount of either bond to less than its full amount.
Sec. 17.108 Superseding bonds.
(a) The principal on any bond filed pursuant to this part may at
any time replace it with a superseding bond.
(b) Executors, administrators, assi
FR Doc. 96-14881 Taxpaid Distilled Spirits Used in Manufacturing Products Unfit for Beverage Use (73R-24P)
gnees, receivers, trustees, or
other persons acting in a fiduciary capacity continuing or liquidating
the business of the principal, shall execute and file a superseding
bond or obtain the consent of the surety or sureties on the existing
bond or bonds.
(c) When, in the opinion of the regional director (compliance), the
interests of the Government demand it, or in any case where the
security of the bond becomes impaired in whole or in part for any
reason whatever, the principal shall file a superseding bond. A
superseding bond shall be filed immediately in case of the insolvency
of the surety. If a bond is found to be not acceptable or for any
reason becomes invalid or of no effect, the principal shall immediately
file a satisfactory superseding bond.
(d) A bond filed under this section to supersede an existing bond
shall be marked by the obligors at the time of execution, ``Superseding
Bond.'' When
[[Page 31418]]
such a bond is approved, the superseded bond shall be released as to
transactions occurring wholly subsequent to the effective date of the
superseding bond, and notice of termination of the superseded bond
shall be issued, as provided in Sec. 17.111.
Termination of Bonds
Sec. 17.111 General.
(a) Bonds on ATF Form 5154.3 shall be terminated by the regional
director (compliance), as to liability on drawback allowed after a
specified future date, in the following circumstances:
(1) Pursuant to a notice by the surety as provided in Sec. 17.112.
(2) Following approval of a superseding bond, as provided in
Sec. 17.108.
(3) Following notification by the principal of an intent to
discontinue the filing of claims on a monthly basis.
(b) However, the bond shall not be terminated until all outstanding
liability under it has been discharged. Upon termination, the regional
director (compliance) shall mark the bond ``canceled,'' followed by the
date of cancellation, and shall issue a notice of termination of bond.
A copy of this notice shall be given to the principal and to each
surety.
Sec. 17.112 Notice by surety of termination of bond.
A surety on any bond required by this part may at any time, in
writing, notify the principal and the regional director (compliance) in
whose office the bond is on file that the surety desires, after a date
named, to be relieved of liability under the bond. Unless the notice is
withdrawn, in writing, before the date named in it, the notice shall
take effect on that date. The date shall not be less than 60 days after
the date on which both the notice and proof of service on the principal
have been received by the regional director (compliance). The surety
shall deliver one copy of the notice to the principal and the original
to the regional director (compliance). The surety shall also file with
the regional director (compliance) an acknowledgment or other proof of
service on the principal.
Sec. 17.113 Extent of release of surety from liability under bond.
The rights of the principal as supported by the bond shall cease as
of the date when termination of the bond takes effect, and the surety
shall be relieved from liability for drawback allowed on and after that
date. Liability for drawback previously allowed shall continue until
the claims for such drawback have been properly verified by the
regional director (compliance) according to law and this part.
Sec. 17.114 Release of collateral.
The release of collateral security pledged and deposited to satisfy
the bond requirement of this part is governed by the provisions of 31
CFR part 225. When the regional director (compliance) determines that
there is no outstanding liability under the bond, and is satisfied that
the interests of the Government will not be jeopardized, the security
shall be released and returned to the principal.
(Sec. 1, Pub. L. 97-258, 96 Stat. 1046 (31 U.S.C. 9301, 9303))
Subpart F--Formulas and Samples
Sec. 17.121 Product formulas.
(a) General. Except as provided in Secs. 17.132 and 17.182,
manufacturers shall file quantitative formulas for all preparations for
which they intend to file drawback claims. Such formulas shall state
the quantity of each ingredient, and shall separately state the
quantity of spirits to be recovered or to be consumed as an essential
part of the manufacturing process.
(b) Filing. Formulas shall be filed with the Alcohol and Tobacco
Laboratory on ATF Form 5154.1, Formula and Process for Nonbeverage
Products. Filing shall be accomplished no later than 6 months after the
end of the quarter in which taxpaid distilled spirits were first used
to manufacture the product for purposes of drawback. If a product's
formula is disapproved, no drawback shall be allowed on spirits used to
manufacture that product, unless it is later used as an intermediate
product, as provided in Sec. 17.137.
(c) Numbering. The formulas shall be serially numbered by the
manufacturer, commencing with number 1 and continuing thereafter in
numerical sequence. However, a new formula for use at several plants
shall be given the highest number next in sequence at any of those
plants. The numbers that were skipped at the other plants shall not be
used subsequently.
(d) Distribution and retention of approved formulas. One copy of
each approved Form 5154.1 shall be returned to the manufacturer. The
formulas returned to manufacturers shall be kept in serial order at the
place of manufacture, as provided in Sec. 17.170, and shall be made
available to ATF officers for examination in the investigation of
drawback claims.
Sec. 17.122 Amended or revised formulas.
Except as provided in this section, amended or revised formulas are
considered to be new formulas and shall be numbered accordingly. Minor
changes may be made to a current formula on ATF Form 5154.1 with
retention of the original formula number, if approval is obtained from
the Director. In order to obtain approval to make a minor formula
change, the person holding the Form 5154.1 shall submit a letter of
application to the Alcohol and Tobacco Laboratory, indicating the
formula change and requesting that the proposed change be considered a
minor change. Each such application shall clearly identify the original
formula by number, date of approval, and name of product. The
application shall indicate whether the product is, has been, or will be
used in alcoholic beverages, and shall specify whether the proposed
change is intended as a substitution or merely as an alternative for
the original formula. No changes may be made to current formulas
without specific ATF approval in each case.
Sec. 17.123 Statement of process.
Any person claiming drawback under the regulations in this part may
be required, at any time, to file a statement of process, in addition
to that required by ATF Form 5154.1, as well as any other data
necessary for consideration of the claim for drawback. When pertinent
to consideration of the claim, submission of copies of the commercial
labels used on the finished products may also be required.
Sec. 17.124 Samples.
Any person claiming drawback or submitting a formula for approval
under the regulations in this part may be required, at any time, to
submit a sample of each nonbeverage or intermediate product for
analysis. If the product is manufactured with a mixture of oil or other
ingredients, the composition of which is unknown to the claimant, a 1-
ounce sample of the mixture shall be submitted with the sample of
finished product when so required.
Sec. 17.125 Adoption of formulas and processes.
(a) Adoption of predecessor's formulas. If there is a change in the
proprietorship of a nonbeverage plant and the successor desires to use
the predecessor's formulas at the same location, the successor may, in
lieu of submitting new formulas in its own name, adopt any or all of
the formulas of the predecessor by filing a notice of
[[Page 31419]]
adoption with the regional director (compliance). The notice shall be
filed with the first claim relating to any of the adopted formulas. The
notice shall list, by name and serial number, all formulas to be
adopted, and shall state that the products will be manufactured in
accordance with the adopted formulas and processes. The notice shall be
accompanied by a certified copy of the articles of incorporation or
other document(s) necessary to prove the transfer of ownership. The
manufacturer shall retain a copy of the notice with the related
formulas.
(b) Adoption of manufacturer's own formulas from a different
location. A manufacturer's own formulas may be adopted for use at
another of the manufacturer's plants. Further, a wholly owned
subsidiary may adopt the formulas of the parent company, and vice
versa. The procedure for such adoption shall be by filing a letterhead
notice, accompanied by two photocopies of each formula to be adopted,
with the Alcohol and Tobacco Laboratory for transmittal to the regional
director (compliance). The notice shall list the numbers of all
formulas to be adopted and shall indicate the plant where each was
originally approved and the plant(s) where each is to be adopted. Some
evidence of the relationship between the plants involved in the
adoption shall be attached to the notice. The notice shall be
referenced in Part IV of the supporting data (ATF Form 5154.2) filed
with the first claim relating to the adopted formula(s).
Sec. 17.126 Formulas for intermediate products.
(a) The manufacturer shall submit a formula on ATF Form 5154.1 to
the Alcohol and Tobacco Laboratory for each self-manufactured
ingredient made with taxpaid spirits and intended for the
manufacturer's own use in nonbeverage products, unless the formula for
any such ingredient is fully expressed as part of the approved formula
for each nonbeverage product in which that ingredient is used, or
unless the formula for the ingredient is contained in one of the
pharmaceutical publications listed in Sec. 17.132.
(b) Upon receipt of Form 5154.1 covering a self-manufactured
ingredient made with taxpaid spirits, the formula shall be examined
under Sec. 17.131. If the formula is approved for drawback, the
ingredient shall be treated as a finished nonbeverage product for
purposes of this part, rather than as an intermediate product,
notwithstanding its use by the manufacturer. (For example, see
Sec. 17.152(d).) If the formula is disapproved for drawback, the
ingredient may be treated as an intermediate product in accordance with
this part. Requirements pertaining to intermediate products are found
in Sec. 17.185(b).
(c) If there is a change in the composition of an intermediate
product, the manufacturer shall submit an amended or revised formula,
as provided in Sec. 17.122.
Sec. 17.127 Self-manufactured ingredients treated optionally as
unfinished nonbeverage products.
A self-manufactured ingredient made with taxpaid spirits, which
otherwise would be treated as an intermediate product, may instead be
treated as an unfinished nonbeverage product, if the ingredient's
formula is fully expressed as a part of the approved formula for the
nonbeverage product in which the ingredient will be used. A
manufacturer desiring to change the treatment of an ingredient from
``intermediate product'' to ``unfinished nonbeverage product'' (or vice
versa) may do so by resubmitting the applicable formula(s) on ATF Form
5154.1. Requirements pertaining to unfinished nonbeverage products are
found in Sec. 17.185(c).
Approval of Formulas
Sec. 17.131 Formulas on ATF Form 5154.1.
Upon receipt by the Alcohol and Tobacco Laboratory, formulas on ATF
Form 5154.1 shall be examined and, if found to be medicines, medicinal
preparations, food products, flavors, flavoring extracts, or perfume
which are unfit for beverage purposes and which otherwise meet the
requirements of law and this part, they shall be approved for drawback.
If the formulas do not meet the requirements of the law and regulations
for drawback products, they shall be disapproved.
Sec. 17.132 U.S.P., N.F., and H.P.U.S. preparations.
(a) General. Except as otherwise provided by paragraph (b) of this
section or by ATF ruling, formulas for compounds in which alcohol is a
prescribed quantitative ingredient, which are stated in the current
revisions or editions of the United States Pharmacopoeia (U.S.P.), the
National Formulary (N.F.), or the Homeopathic Pharmacopoeia of the
United States (H.P.U.S.), shall be considered as approved formulas and
may be used as formulas for drawback products without the filing of ATF
Form 5154.1.
(b) Exceptions. Alcohol (including dehydrated alcohol and
dehydrated alcohol injection), U.S.P.; alcohol and dextrose injection,
U.S.P.; and tincture of ginger, H.P.U.S., have been found to be fit for
beverage use and are disapproved for drawback. All attenuations of
other H.P.U.S. products diluted beyond one part in 10,000 (``4 x '')
are also disapproved for drawback, unless the manufacturer receives
approval for a formula submitted on Form 5154.1 in accordance with this
subpart. The formula for such attenuations shall be submitted with a
sample of the product and a statement explaining why it should be
classified as unfit for beverage use.
Sec. 17.133 Food product formulas.
Formulas for nonbeverage food products on ATF Form 5154.1 may be
approved if they are unfit for beverage purposes. Approval does not
authorize manufacture or sale contrary to State law. Examples of food
products that have been found to be unfit for beverage purposes are
stated below:
(a) Sauces or syrups. Sauces, or syrups consisting of sugar
solutions and distilled spirits, in which the alcohol content is not
more than 12 percent by volume and the sugar content is not less than
60 grams per 100 cubic centimeters.
(b) Brandied fruits. Brandied fruits consisting of solidly packaged
fruits, either whole or segmented, and distilled spirits products not
exceeding the quantity and alcohol content necessary for flavoring and
preserving. Generally, brandied fruits will be considered to have met
these standards if the container is well filled, the alcohol in the
liquid portion does not exceed 23 percent by volume, and the liquid
portion does not exceed 45 percent of the volume of the container.
(c) Candies. Candies with alcoholic fillings, if the fillings meet
the standards prescribed for sauces and syrups by paragraph (a) of this
section.
(d) Other food products. Food products such as mincemeat, plum
pudding, and fruit cake, where only sufficient distilled spirits are
used for flavoring and preserving; and ice cream and ices where only
sufficient spirits are used for flavoring purposes. Also food adjuncts,
such as preservatives, emulsifying agents, and food colorings, that are
unfit for beverage purposes and are manufactured and used, or sold for
use, in food.
Sec. 17.134 Determination of unfitness for beverage purposes.
The Director has responsibility for determining whether products
are fit or unfit for beverage purposes within the meaning of 26 U.S.C.
5131. This determination may be based either on the content and
description of the
[[Page 31420]]
ingredients as shown on ATF Form 5154.1, or on organoleptic
examination. In such examination, samples of products may be diluted
with water to an alcoholic concentration of 15% and tasted. Sale or use
for beverage purposes is indicative of fitness for beverage use.
Sec. 17.135 Use of specially denatured alcohol (S.D.A.).
(a) Use of S.D.A. in nonbeverage or intermediate products--(1)
General. Except as provided in paragraph (b) of this section, the use
of specially denatured alcohol (S.D.A.) and taxpaid spirits in the same
product by a nonbeverage manufacturer is prohibited where drawback of
tax is claimed.
(2) Alternative formulations. No formula for a product on ATF Form
5154.1 shall be approved for drawback under this subpart if the
manufacturer also has on file an approved ATF Form 1479-A or Form
5150.19, Formula for Article Made With Specially Denatured Alcohol or
Rum, pertaining to the same product.
(b) Use of S.D.A. in ingredients--(1) Purchased ingredients.
Generally, purchased ingredients containing S.D.A. may be used in
nonbeverage or intermediate products. However, such ingredients shall
not be used in medicinal preparations or flavoring extracts intended
for internal human use, where any of the S.D.A. remains in the finished
product.
(2) Self-manufactured ingredients. Self-manufactured ingredients
may be made with S.D.A. and used in nonbeverage or intermediate
products, provided--
(i) No taxpaid spirits are used in manufacturing such ingredients;
and
(ii) All S.D.A. is recovered or dissipated from such ingredients
prior to their use in nonbeverage or intermediate products. (Recovery
of S.D.A. shall be in accordance with subpart K of part 20 of this
chapter; recovered S.D.A., with or without its original denaturants,
shall not be reused in nonbeverage or intermediate products.)
(Sec. 201, Pub. L. 85-859, 72 Stat. 1372, as amended (26 U.S.C.
5273))
Sec. 17.136 Compliance with Food and Drug Administration requirements.
A product is not a medicine, medicinal preparation, food product,
flavor, flavoring extract, or perfume for nonbeverage drawback if its
formula would violate a ban or restriction of the U.S. Food and Drug
Administration (FDA) pertaining to such products. If FDA bans or
restricts the use of any ingredient in such a way that further
manufacture of a product in accordance with its formula would violate
the ban or restriction, then the manufacturer shall change the formula
and resubmit it on ATF Form 5154.1 to the Alcohol and Tobacco
Laboratory. This section does not preclude approval for products
manufactured solely for export or for uses other than internal human
consumption (e.g. tobacco flavors or animal feed flavors) in accordance
with laws and regulations administered by FDA. Under Sec. 17.123,
manufacturers may be required to demonstrate compliance with FDA
requirements applicable to this section.
Sec. 17.137 Formulas disapproved for drawback.
A formula may be disapproved for drawback either because it does
not prescribe appropriate ingredients in sufficient quantities to make
the product unfit for beverage use, or because the product is neither a
medicine, a medicinal preparation, a food product, a flavor, nor a
flavoring extract. The formula for a disapproved product may be used as
an intermediate product formula under Sec. 17.126. No drawback will be
allowed on distilled spirits used in a disapproved product, unless that
product is later used in the manufacture of an approved nonbeverage
product. In the case of a product that is disapproved because it is fit
for beverage use, any further use or disposition of such a product,
other than as an intermediate product in accordance with this part,
subjects the manufacturer to the qualification requirements of parts 1
and 19 of this chapter.
Subpart G--Claims for Drawback
Sec. 17.141 Drawback.
Upon the filing of a claim as provided in this subpart, drawback
shall be allowed to any person who meets the requirements of this part.
Drawback shall be paid at the rate specified by 26 U.S.C. 5134 on each
proof gallon of distilled spirits on which the tax has been paid or
determined and which have been used in the manufacture of nonbeverage
products. The drawback rate is $1.00 less than the effective tax rate.
Drawback shall be allowed only to the extent that the claimant can
establish, by evidence satisfactory to the regional director
(compliance), the actual quantity of taxpaid or tax-determined
distilled spirits used in the manufacture of the product, and the
effective tax rate applicable to those spirits. Special tax as a
manufacturer of nonbeverage products shall be paid before drawback is
allowed.
Sec. 17.142 Claims.
(a) General. The manufacturer shall file claim for drawback with
the regional director (compliance) for the region in which the place of
manufacture is located. A separate claim shall be filed for each place
of business. Each claim shall pertain only to distilled spirits used in
the manufacture or production of nonbeverage products during any one
quarter of the tax year. Unless the manufacturer is eligible to file
monthly claims (see Secs. 17.143 and 17.144), only one claim per
quarter may be filed for each place of business. The regional director
(compliance) has the authority to approve or disapprove claims. Claims
shall be filed on ATF Form 2635 (5620.8), Claim--Alcohol and Tobacco
Taxes.
(b) Manufacturers who are also proprietors of distilled spirits
plants. If a manufacturer of nonbeverage products is owned and operated
by the same business entity that owns and operates a distilled spirits
plant, the manufacturer's claim for drawback may be filed for credit on
Form 2635 (5620.8). After the claim is approved, the distilled spirits
plant may use the claim as an adjustment decreasing the taxes due in
Schedule B of ATF Form 5000.24, Excise Tax Return. Adjustments
resulting from an approved drawback claim are not subject to interest.
This procedure may be utilized only if the manufacturer of nonbeverage
products and the distilled spirits plant have the same employer
identification number.
Sec. 17.143 Notice for monthly claims.
If the manufacturer has notified the regional director
(compliance), in writing, of an intention to file claims on a monthly
basis instead of a quarterly basis, and has filed a bond in compliance
with the provisions of this part, claims may be filed monthly instead
of quarterly. The election to file monthly claims shall not preclude a
manufacturer from filing a single claim covering an entire quarter, or
a single claim covering just two months of a quarter, or two claims
(one of them covering one month and the other covering two months). An
election for the filing of monthly claims may be withdrawn by the
manufacturer by filing a notice to that effect, in writing, with the
regional director (compliance).
Sec. 17.144 Bond for monthly claims.
Each person intending to file claims for drawback on a monthly
basis shall file with the regional director (compliance) an executed
bond on ATF Form 5154.3, conforming to the provisions of subpart E of
this part. A
[[Page 31421]]
monthly drawback claim shall not be allowed until bond coverage in a
sufficient amount has been approved by the regional director
(compliance). When the limit of liability under a bond given in less
than the maximum amount has been reached, further drawback on monthly
claims may be suspended until a strengthening or superseding bond in a
sufficient amount is furnished.
Sec. 17.145 Date of filing claim.
Quarterly claims for drawback shall be filed with the regional
director (compliance) within six months after the quarter in which the
distilled spirits covered by the claim were used in the manufacture of
nonbeverage products. Monthly claims for drawback may be filed at any
time after the end of the month in which the distilled spirits covered
by the claim were used in the manufacture of nonbeverage products, but
shall be filed not later than the close of the sixth month succeeding
the quarter in which the spirits were used.
Sec. 17.146 Information to be shown by the claim.
The claim shall set forth the following:
(a) Whether the special tax has been paid.
(b) That the distilled spirits on which drawback is claimed were
fully taxpaid or tax-determined at the effective tax rate applicable to
the distilled spirits.
(c) That the distilled spirits on which the drawback is claimed
were used in the manufacture of nonbeverage products.
(d) Whether the nonbeverage products were manufactured in
compliance with quantitative formulas approved under subpart F of this
part. (If not, attach explanation.)
(e) That the data submitted in support of the claim are correct.
Sec. 17.147 Supporting data.
(a) Each claim for drawback shall be accompanied by supporting data
presented according to the format shown on ATF Form 5154.2, Supporting
Data for Nonbeverage Drawback Claims (or according to any other
suitable format which provides the same information). Modifications of
Form 5154.2 may be used without prior authorization, if the modified
format clearly shows all of the required information that is pertinent
to the manufacturing operation. Under Sec. 17.123, the regional
director (compliance) may require additional supporting data when
needed to determine the correctness of drawback claims.
(b) Separate data shall be shown for eligible distilled spirits
taxpaid at different effective tax rates. This requirement applies to
all eligible spirits, including eligible recovered alcohol and eligible
spirits contained in intermediate products.
(c) Separate data shall be shown for imported rum, spirits from
Puerto Rico containing at least 92% rum, and spirits from the U.S.
Virgin Islands containing at least 92% rum. The total number of proof
gallons of each such category used subject to drawback during the claim
period shall also be shown, with separate totals for each effective tax
rate. These amounts shall include eligible spirits and rum from
intermediate products or recovered alcohol.
(d) Any gain in eligible distilled spirits reported in the
supporting data shall be reflected by an equivalent deduction from the
amount of drawback claimed. Gains shall not be offset by known losses.
Sec. 17.148 Allowance of claims.
(a) General. Except in the case of fraudulent noncompliance, no
claim for drawback shall be denied for a failure to comply with either
26 U.S.C. 5131-5134 or the requirements of this part, if the claimant
establishes that spirits on which the tax has been paid or determined
were in fact used in the manufacture of medicines, medicinal
preparations, food products, flavors, flavoring extracts, or perfume,
which were unfit for beverage purposes.
(b) Penalty. Noncompliance with the requirements of 26 U.S.C. 5131-
5134 or of this part subjects the claimant to a civil penalty of $1,000
for each separate product, reflected in a claim for drawback, to which
the noncompliance relates, or the amount claimed for that product,
whichever is less, unless the claimant establishes that the
noncompliance was due to reasonable cause. Late filing of a claim
subjects the claimant to a civil penalty of $1,000 or the amount of the
claim, whichever is less, unless the claimant establishes that the
lateness was due to reasonable cause.
(c) Reasonable cause. Reasonable cause exists where a claimant
establishes it exercised ordinary business care and prudence, and still
was unable to comply with the statutory and regulatory requirements.
Ignorance of law or regulations, in and of itself, is not reasonable
cause. Each case is individually evaluated.
(Sec. 452, Pub. L. 98-369, 98 Stat. 819 (26 U.S.C. 5134(c))
Spirits Subject to Drawback
Sec. 17.151 Use of distilled spirits.
Distilled spirits are considered to have been used in the
manufacture of a product under this part if the spirits are consumed in
the manufacture, are incorporated into the product, or are determined
by ATF to have been otherwise utilized as an essential part of the
manufacturing process. However, spirits lost by causes such as
spillage, leakage, breakage or theft, and spirits used for purposes
such as rinsing or cleaning a system, are not considered to have been
used in the manufacture of a product.
Sec. 17.152 Time of use of spirits.
(a) General. Distilled spirits shall be considered used in the
manufacture of a product as soon as that product contains all the
ingredients called for by its formula.
(b) Spirits used in an ion exchange column. Distilled spirits used
in recharging an ion exchange column, the operation of which is
essential to the production of a product, shall be considered to be
used when the spirits are entered into the manufacturing system in
accordance with the product's formula.
(c) Products requiring additional processing or treatment. Further
manipulation of a product, such as aging or filtering, subsequent to
the mixing together of all of its ingredients, shall not postpone the
time when spirits are considered used, as determined under paragraph
(a) of this section. This is true even if at the time of use there has
not yet been a final determination of alcoholic content by assay. If,
however, it is later found necessary to add more distilled spirits to
standardize the product, such added spirits shall be considered as used
in the period during which they were added.
(d) Nonbeverage products used to manufacture other products.
Nonbeverage products may be used to manufacture other nonbeverage (or
intermediate) products. However, such subsequent usage of a nonbeverage
product shall not affect the time when the distilled spirits contained
therein are considered used. When distilled spirits are used in the
manufacture of a nonbeverage product, the time of use shall be the
point at which that product first contains all of its prescribed
ingredients, and such use shall not be determined by the time of any
subsequent usage of that product in another product.
Sec. 17.153 Recovered spirits.
(a) Recovery from intermediate products. Eligible spirits recovered
in the manufacture of intermediate products are not subject to drawback
until such recovered spirits are used in the manufacture of a
nonbeverage
[[Page 31422]]
product. (However, see Sec. 17.127 with respect to optional treatment
of ingredients as unfinished nonbeverage products, rather than as
intermediate products.) Spirits recovered in the manufacture of
intermediate products shall be reused only in the manufacture of
intermediate or nonbeverage products.
(b) Recovery from nonbeverage products. Distilled spirits recovered
in the manufacture of a nonbeverage product are considered as having
been used in the manufacture of that product. If the spirits were
eligible when so used, they became subject to drawback at that time.
Upon recovery, such spirits may be reused in the manufacture of
nonbeverage products, but shall not be reused for any other purpose.
When reused, such recovered spirits are not again eligible for drawback
and shall not be used in the manufacture of intermediate products.
(c) Cross references. For additional provisions respecting the
recovery of distilled spirits and related recordkeeping requirements,
see Secs. 17.168 and 17.183.
Sec. 17.154 Spirits contained in intermediate products.
Spirits contained in an intermediate product are not subject to
drawback until that intermediate product is used in the manufacture of
a nonbeverage product.
Sec. 17.155 Spirits consumed in manufacturing intermediate products.
Spirits consumed in the manufacture of an intermediate product--
which are not contained in the intermediate product at the time of its
use in nonbeverage products--are not subject to drawback. Such spirits
are not considered to have been used in the manufacture of nonbeverage
products. However, see Sec. 17.127 with respect to optional treatment
of ingredients as unfinished nonbeverage products, rather than as
intermediate products.
Subpart H--Records
Sec. 17.161 General.
Each person claiming drawback on taxpaid distilled spirits used in
the manufacture of nonbeverage products shall maintain records showing
the information required in this subpart. No particular form is
prescribed for these records, but the data required to be shown shall
be clearly recorded and organized to enable ATF officers to trace each
operation or transaction, monitor compliance with law and regulations,
and verify the accuracy of each claim. Ordinary business records,
including invoices and cost accounting records, are acceptable if they
show the required information or are annotated to show any such
information that is lacking. The records shall be kept complete and
current at all times, and shall be retained by the manufacturer at the
place covered by the special tax stamp for the period prescribed in
Sec. 17.170.
Sec. 17.162 Receipt of distilled spirits.
(a) Distilled spirits received in tank cars, tank trucks, barrels,
or drums. For distilled spirits received in tank cars, tank trucks,
barrels, or drums, the manufacturer shall record, with respect to each
shipment received--
(1) The date of receipt;
(2) The name and address of the person from whom received;
(3) The serial number or other identification mark (if any) of each
tank car, tank truck, barrel, or drum;
(4) The name of the producer or warehouseman who paid or determined
the tax;
(5) The effective tax rate (if other than the rate prescribed by 26
U.S.C. 5001); and
(6) The kind, quantity, and proof (or alcohol percentage by volume)
of the spirits.
(b) Distilled spirits received in bottles. For distilled spirits
received in bottles, the manufacturer shall record--
(1) The date of receipt;
(2) The name and address of the seller;
(3) The serial number of each case, if the bottles are received in
cases;
(4) The name of the bottler;
(5) The effective tax rate (if other than the rate prescribed by 26
U.S.C. 5001); and
(6) The kind, quantity, and proof (or alcohol percentage by volume)
of the spirits.
(c) Distilled spirits received by pipeline. For distilled spirits
received by pipeline, the manufacturer shall record--
(1) The date of receipt;
(2) The name of the producer or warehouseman who paid or determined
the tax;
(3) The effective tax rate (if other than the rate prescribed by 26
U.S.C. 5001); and
(4) The kind, quantity, and proof (or alcohol percentage by volume)
of the spirits.
(d) Determination of quantity. At the time of receipt, each
manufacturer shall determine (preferably by weight) and record the
exact number of proof gallons of distilled spirits received. The amount
received in bottles may be determined by the required statements on the
labels. The amount received in sealed drums with no evidence of leakage
may be determined from the record of shipment, which is required by
Sec. 19.780 of this chapter to accompany spirits received from a
distilled spirits plant. If spirits are received in a tank car or tank
truck, and the result of the manufacturer's gauge of the spirits is
within 0.2 percent of the number of proof gallons reported on the
record of shipment required by Sec. 19.780, then the number of proof
gallons reported on that record may be recorded as the quantity
received. Nevertheless, the receiving gauge shall be noted on the
record of receipt. If, for any shipment, the amount recorded in the
manufacturer's records as the quantity received is greater than the
amount shown as taxpaid on the record required by Sec. 19.780, a
deduction equivalent to the excess shall be made from the amount of
drawback claimed in the manufacturer's claim covering that period. If
no claim is filed for that period, then the deduction shall be made in
the manufacturer's next claim. Losses in transit that exceed the 0.2
percent limitation provided in this paragraph shall be determined and
noted on the record of receipt. Such losses shall not be recorded as
distilled spirits received.
(e) Receipt of imported rum, or spirits from Puerto Rico or the
Virgin Islands. If spirits are received which contain at least 92% rum,
and which originate from Puerto Rico or the U.S. Virgin Islands, the
record of receipt shall indicate the place of origin. If rum is
received, the record shall indicate whether it is from Puerto Rico,
from the U.S. Virgin Islands, imported from other countries, or
domestic.
(f) Shipments from distilled spirits plants. If spirits are
received directly from the distilled spirits plant that paid or
determined the tax, the manufacturer shall retain the record of
shipment required by Sec. 19.780 of this chapter. To the extent that
the information on that record duplicates the requirements of this
section, retention of that record shall satisfy those requirements. If
there are differences between the information on the record of shipment
and the information required to be recorded by this section, the
requirements of this section may be met by appropriate annotations on
the record of shipment.
Sec. 17.163 Evidence of taxpayment of distilled spirits.
(a) Shipments from distilled spirits plants. For each shipment of
taxpaid spirits from the bonded premises of a distilled spirits plant,
the manufacturer shall obtain the record of shipment prepared by the
supplier under Sec. 19.780 of this chapter. This record shall be
retained with the commercial invoice (if
[[Page 31423]]
the latter is a separate document) as evidence of taxpayment of the
spirits. The record shall show the effective tax rate(s) (if other than
the rate prescribed by 26 U.S.C. 5001) applicable to the shipment.
(b) Purchases from wholesale and retail liquor dealers.
Manufacturers shall obtain commercial invoices or other documentation
pertaining to purchases of distilled spirits from wholesale and retail
liquor dealers (including such dealership operations when conducted in
conjunction with a distilled spirits plant). For spirits other than
alcohol, grain spirits, neutral spirits, distilled gin, or straight
whisky (as defined in the standards of identity prescribed by Sec. 5.22
of this chapter), the manufacturer of nonbeverage products shall obtain
evidence, from the producer or bottler of the spirits, as to the
effective tax rate paid thereon.
(c) Imported spirits. For imported spirits that were taxpaid
through Customs, evidence of such taxpayment (such as Customs Forms
7501 and 7505, receipted to indicate payment of tax, and the
certificate of effective tax rate computation, if applicable) shall be
secured from the importer and retained by the manufacturer.
(d) Evidence of effective tax rate. If the evidence of effective
tax rate, required by this section for distilled spirits products that
may contain wine or flavors, is not obtained, drawback shall only be
allowed based on the lowest effective tax rate possible for the kind of
distilled spirits product used.
Sec. 17.164 Production record.
(a) General. Each manufacturer shall keep a production record for
each batch of intermediate product and for each batch of nonbeverage
product. The production record shall be an original record made at the
time of production by a person (or persons) having actual knowledge
thereof. If any product is produced by a continuous process rather than
by batches, the production record shall pertain to the total quantity
of that product produced during each claim period.
(b) Information to be shown. The record shall show the name and
formula number of the product, the actual quantities of all ingredients
used in the manufacture of the batch (including the proof or alcohol
percentage by volume of all spirits), the date when eligible spirits
were considered used (see Sec. 17.152), the effective tax rate
applicable to those spirits (if other than the rate prescribed by 26
U.S.C. 5001), and the quantity of product produced. The alcohol content
of the product shall be shown if a test of alcohol content was made
(see paragraph (e) of this section). Usage of eligible and ineligible
spirits shall be shown separately. If spirits from Puerto Rico or the
U.S. Virgin Islands, containing at least 92% rum, were used, the record
shall indicate their place of origin. If rum was used, the record shall
indicate whether it was from Puerto Rico, from the U.S. Virgin Islands,
imported from other countries, or domestic. If spirits were recovered,
the production record shall so indicate, and the record required by
Sec. 17.168 shall be kept. If drawback is claimed on spirits consumed
as an essential part of the manufacture of a nonbeverage product, which
were not contained in that product at its completion, then the
production record shall show the quantity of spirits so consumed in the
manufacture of each batch.
(c) Specificity of information. The production record shall refer
to ingredients by the same names as are used for them in the product's
formula. This includes formulas submitted to ATF and formulas contained
in the publications listed in Sec. 17.132. Other names for the
ingredients may be added in the production record, if necessary for the
manufacturer's operations. Usage of ingredients (including spirits) may
be shown in units of weight or volume.
(d) Determining quantity of distilled spirits used. Each
manufacturer shall accurately determine, by weight or volume, and
record in the production records the quantity of all distilled spirits
used. When the quantity used is determined by volume, adjustments shall
be made if the temperature of the spirits is above or below 60 degrees
Fahrenheit. A table for correction of volume of spirituous liquors to
60 degrees Fahrenheit, Table 7 of the ``Gauging Manual,'' is available.
See subpart E of part 30 of this chapter and Sec. 30.67. Losses after
receipt due to leakage, spillage, evaporation, or other causes not
essential to the manufacturing process shall be accurately recorded in
the manufacturer's permanent records at the time such losses are
determined.
(e) Tests of alcohol content. At representative intervals, the
manufacturer shall verify the alcohol content of nonbeverage products.
The results of such tests shall be recorded.
Sec. 17.165 Receipt of raw ingredients.
For raw ingredients destined to be used in nonbeverage or
intermediate products, the manufacturer shall record, for each shipment
received--
(a) The date of receipt;
(b) The quantity received; and
(c) The identity of the supplier.
Sec. 17.166 Disposition of nonbeverage products.
(a) Shipments. For each shipment of nonbeverage products, the
manufacturer shall record--
(1) The formula number of the product;
(2) The date of shipment;
(3) The quantity shipped; and
(4) The identity of the consignee.
(b) Other disposition. For other dispositions of nonbeverage
products, the manufacturer shall record--
(1) The type of disposition;
(2) The date of disposition; and
(3) The quantity of each product so disposed of.
(c) Exception. The manufacturer need not keep the records required
by paragraphs (a) and (b) of this section for any nonbeverage product
which either contains less than 3 percent of distilled spirits by
volume, or is sold by the producer directly to the consumer in retail
quantities. However, when needed for protection of the revenue, the
regional director (compliance) may at any time require the keeping of
these records upon giving at least five days' notice to the
manufacturer.
Sec. 17.167 Inventories.
(a) Distilled spirits. The ``on hand'' figures reported in Part II
of ATF Form 5154.2 shall be verified by physical inventories taken as
of the end of each quarter in which nonbeverage products were
manufactured for purposes of drawback. Spirits taxpaid at different
effective tax rates shall be inventoried separately. The inventory
record shall show the date inventory was taken, the person(s) by whom
it was taken, subtotals for each product inventoried, and any gains or
losses disclosed; and shall be retained with the manufacturer's
records. The manufacturer shall explain in Part IV of the supporting
data (Form 5154.2) any discrepancy between the amounts on hand as
disclosed by physical inventory and the amounts indicated by the
manufacturer's records. Any gain in eligible spirits disclosed by
inventory requires an equivalent deduction from the claim with which
the inventory is reported. Gains shall not be offset by known losses.
If no claim is filed for a quarter (nor for any monthly period
therein), then no physical inventory is required for that quarter.
(b) Raw ingredients and nonbeverage products. When necessary for
ensuring compliance with regulations and protection of the revenue, the
regional director (compliance) may require a manufacturer to take
physical inventories of finished nonbeverage products, and/or raw
ingredients
[[Page 31424]]
intended for use in the manufacture of nonbeverage or intermediate
products. The results of such inventories shall be recorded in the
manufacturer's records. Any discrepancy between the amounts on hand as
disclosed by physical inventory and such amounts as indicated by the
manufacturer's records shall also be recorded with an explanation of
its cause.
Sec. 17.168 Recovered spirits.
(a) Each manufacturer intending to recover distilled spirits under
the provisions of this part shall first notify the regional director
(compliance). Any apparatus used to separate alcohol is subject to the
registration requirements of 26 U.S.C. 5179 and subpart C of part 170
of this chapter. Recovery operations shall only be conducted on the
premises covered by the manufacturer's special tax stamp.
(b) The manufacturer shall keep a record of the distilled spirits
recovered and the subsequent use to which such spirits are put. The
record shall show--
(1) The date of recovery;
(2) The commodity or process from which the spirits were recovered;
(3) The amount in proof gallons, or by weight and proof (or alcohol
percentage by volume) of distilled spirits recovered;
(4) The amount in proof gallons, or by weight and proof (or alcohol
percentage by volume) of recovered distilled spirits reused;
(5) The commodity in which the recovered distilled spirits were
reused; and
(6) The date of reuse.
(c) Whenever recovered spirits are destroyed (see Sec. 17.183), the
record shall further show--
(1) The reason for the destruction;
(2) The date, time, location, and manner of destruction;
(3) The number of proof gallons destroyed; and
(4) The name of the individual who accomplished or supervised the
destruction.
Sec. 17.169 Transfer of intermediate products.
When intermediate products are transferred as permitted by
Sec. 17.185(b), supporting records of such transfers shall be kept at
the shipping and receiving plants, showing the date and quantity of
each product transferred.
Sec. 17.170 Retention of records.
Each manufacturer shall retain for a period of not less than 3
years all records required by this part, a copy of all claims and
supporting data filed in support thereof, all commercial invoices or
other documents evidencing taxpayment or tax-determination of domestic
spirits, all documents evidencing taxpayment of imported spirits, and
all bills of lading received which pertain to shipments of spirits. In
addition, a copy of each formula submitted on ATF Form 5154.1 shall be
retained at each factory where the formula is used, for not less than 3
years from the date of filing of the last claim for drawback under the
formula. A copy of an approval to use an alternate method or procedure
shall be retained as long as the manufacturer employs the method or
procedure, and for 3 years thereafter. Further, the regional director
(compliance) may require these records, forms, and documents to be
retained for an additional period of not more than 3 years in any case
where he or she deems such retention to be necessary or advisable for
protection of the revenue.
Sec. 17.171 Inspection of records.
All of the records, forms, and documents required to be retained by
Sec. 17.170 shall be kept at the place covered by the special tax stamp
and shall be readily available during the manufacturer's regular
business hours for examination and copying by ATF officers. At the same
time, any other books, papers, records or memoranda in the possession
of the manufacturer, which have a bearing upon the matters required to
be alleged in a claim for drawback, shall be available for inspection
by ATF officers.
(Sec. 5133, 68A Stat. 623 (26 U.S.C. 5133); sec. 201, Pub. L. 85-
859, 72 Stat. 1348 (26 U.S.C. 5146)).
Subpart I--Miscellaneous Provisions
Sec. 17.181 Exportation of medicinal preparations and flavoring
extracts.
Medicinal preparations and flavoring extracts, approved for
drawback under the provisions of this part, may be exported subject to
19 U.S.C. 1313(d), which authorizes export drawback equal to the entire
amount of internal revenue tax found to have been paid on the domestic
alcohol used in the manufacture of such products. (Note: Export
drawback is not allowed for imported alcohol under this provision of
customs law.) Claims for such export drawback shall be filed in
accordance with the applicable regulations of the U.S. Customs Service.
Such claims may cover either the full rate of tax which has been paid
on the alcohol, if no nonbeverage drawback has been claimed thereon, or
else the remainder of the tax if nonbeverage drawback under 26 U.S.C.
5134 has been or will be claimed.
Sec. 17.182 Drawback claims by druggists.
Drawback of tax under 26 U.S.C. 5134 is allowable on taxpaid
distilled spirits used in compounding prescriptions by druggists who
have paid the special tax prescribed by 26 U.S.C. 5131. The
prescriptions so compounded shall be shown in the supporting data by
listing the first and last serial numbers thereof. The amount of
taxpaid spirits used in each prescription need not be shown, but such
prescriptions shall be made available for examination by ATF officers.
If refills have been made of prescriptions received in a previous claim
period, their serial numbers shall be recorded separately. Druggists
claiming drawback as authorized by this section are subject to all the
applicable requirements of this part, except those requiring the filing
of quantitative formulas.
Sec. 17.183 Disposition of recovered alcohol and material from which
alcohol can be recovered.
(a) Recovered alcohol. Manufacturers of nonbeverage products shall
not sell or transfer recovered spirits to any other premises without
ATF authorization under Sec. 17.3. If recovered spirits are stored
pending reuse, storage facilities shall be adequate to protect the
revenue. If recovered spirits are destroyed, the record required by
Sec. 17.168(c) must be kept. Spirits recovered from intermediate
products may be destroyed without notice to ATF. Spirits recovered from
nonbeverage products may be destroyed pursuant to a notice filed with
the regional director (compliance) at least 12 days prior to the date
of destruction. The notice shall state the reason for the destruction,
the intended date of destruction, and the approximate quantity
involved. The regional director (compliance) may impose specific
conditions, including requiring that the destruction be witnessed by an
ATF officer. Unless the manufacturer is otherwise advised by the
regional director (compliance) before the date specified in the notice,
the destruction may proceed as planned.
(b) By-product material (general). By-product material from which
alcohol can be recovered shall not be sold or transferred unless the
alcohol has been removed or an approved substance has been added to
prevent recovery of residual alcohol. Material from which alcohol can
be recovered may also be destroyed on the manufacturer's premises by a
suitable method. Except as provided in paragraph (c) of this section,
prior written approval shall be obtained from the regional director
(compliance) as to the adequacy, under this section, of any substance
proposed
[[Page 31425]]
to be added to prevent recovery of alcohol, or of any proposed method
of destruction.
(c) Spent vanilla beans. Specific approval from the regional
director (compliance) is not required when spent vanilla beans
containing residual alcohol are destroyed on the manufacturer's
premises by burning, or when they are removed from those premises after
treatment with sufficient kerosene, mineral spirits, rubber hydrocarbon
solvent, or gasoline to prevent recovery of residual alcohol.
Sec. 17.184 Distilled spirits container marks.
All marks required by Part 19 of this chapter shall remain on
containers of taxpaid distilled spirits until the contents are emptied.
Whenever such a container is emptied, such marks shall be completely
obliterated.
(Sec. 454, Pub. L. 98-369, 98 Stat. 820 (26 U.S.C. 5206(d)))
Sec. 17.185 Requirements for intermediate products and unfinished
nonbeverage products.
(a) General. Self-manufactured ingredients made with taxpaid
spirits may be accounted for either as intermediate products or as
unfinished nonbeverage products. The manufacturer may choose either
method of accounting for such self-manufactured ingredients (see
Sec. 17.127). However, the method selected determines the requirements
that will apply to those ingredients, as prescribed in paragraphs (b)
and (c) of this section.
(b) Intermediate products. Intermediate products shall be used
exclusively in the manufacture of nonbeverage products. Intermediate
products may be accumulated and stored indefinitely and may be used in
any nonbeverage product whose formula calls for such use. Intermediate
products shall be manufactured by the same entity that manufactures the
finished nonbeverage products. Intermediate products shall not be sold
or transferred between separate and distinct entities. However, they
may be transferred to another branch or plant of the same manufacturer,
for use there in the manufacture of approved nonbeverage products. (See
Sec. 17.169 for recordkeeping requirement.) For the purposes of this
section, the phrase ``separate and distinct entities'' includes parent
and subsidiary corporations, regardless of any corporate (or other)
relationship, and even if the stock of both the manufacturing firm and
the receiving firm is owned by the same persons.
(c) Unfinished nonbeverage products. An unfinished nonbeverage
product shall only be used in the particular nonbeverage product for
which it was manufactured, and shall be entirely so used within the
time limit stated in the approved ATF Form 5154.1. Spirits dissipated
or recovered in the manufacture of unfinished nonbeverage products
shall be regarded as having been dissipated or recovered in the
manufacture of nonbeverage products. Spirits contained in such
unfinished products shall be accounted for in the supporting data under
Sec. 17.147 and inventoried under Sec. 17.167 as ``in process'' in
nonbeverage products. Production of unfinished nonbeverage products
shall be recorded as an integral part of the production records for the
related nonbeverage products. Unfinished nonbeverage products shall not
be transferred to other premises.
Sec. 17.186 Transfer of distilled spirits to other containers.
A manufacturer may transfer taxpaid distilled spirits from the
original package to other containers at any time for the purpose of
facilitating the manufacture of products unfit for beverage use.
Containers into which distilled spirits have been transferred under
this section shall bear a label identifying their contents as taxpaid
distilled spirits, and shall be marked with the serial number of the
original package from which the spirits were withdrawn.
Sec. 17.187 Discontinuance of business.
The manufacturer shall notify ATF when business is to be
discontinued. Upon discontinuance of business, a manufacturer's entire
stock of taxpaid distilled spirits on hand may be sold in a single sale
without the necessity of qualifying as a wholesaler under part 1 of
this chapter or paying special tax as a liquor dealer under part 194 of
this chapter. The spirits likewise may be returned to the person from
whom purchased, or they may be destroyed or given away.
PART 19--[AMENDED]
Paragraph B. The regulations in 27 CFR part 19 are amended as
follows:
1. The authority citation for part 19 continues to read as follows:
Authority: 19 U.S.C. 81c, 1311; 26 U.S.C. 5001, 5002, 5004-5006,
5008, 5010, 5041, 5061, 5062, 5066, 5081, 5101, 5111-5113, 5142,
5143, 5146, 5171-5173, 5175, 5176, 5178-5181, 5201-5204, 5206, 5207,
5211-5215, 5221-5223, 5231, 5232, 5235, 5236, 5241-5243, 5271, 5273,
5301, 5311-5313, 5362, 5370, 5373, 5501-5505, 5551-5555, 5559, 5561,
5562, 5601, 5612, 5682, 6001, 6065, 6109, 6302, 6311, 6676, 6806,
7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.
2. Part 19, subpart D, is amended to add Secs. 19.57-19.58 grouped
under an undesignated center heading, to read as follows:
* * * * *
Subpart D--Administrative and Miscellaneous Provisions
Sec.
Activities Not Subject to This Part
19.57 Recovery and reuse of denatured spirits in manufacturing
processes.
19.58 Use of taxpaid distilled spirits to manufacture products
unfit for beverage use.
* * * * *
Subpart D--Administrative and Miscellaneous Provisions
Activities Not Subject to This Part
Sec. 19.57 Recovery and reuse of denatured spirits in manufacturing
processes.
The following persons are not, by reason of the activities listed
below, subject to the provisions of this part, but they shall comply
with the provisions of part 20 of this chapter relating to the use and
recovery of spirits or denatured spirits:
(a) Manufacturers who use denatured spirits, or articles or
substances containing denatured spirits, in a process wherein any part
or all of the spirits, including denatured spirits, are recovered.
(b) Manufacturers who use denatured spirits in the production of
chemicals which do not contain spirits but which are used on the permit
premises in the manufacture of other chemicals resulting in spirits as
a by-product.
(c) Manufacturers who use chemicals or substances which do not
contain spirits or denatured spirits (but which were manufactured with
specially denatured spirits) in a process resulting in spirits as a by-
product.
(Sec 201, Pub. L. 85-859, 72 Stat. 1372, as amended (26 U.S.C.
5273))
Sec. 19.58 Use of taxpaid distilled spirits to manufacture products
unfit for beverage use.
(a) General. Apothecaries, pharmacists, and manufacturers are not
required to qualify as processors under 26 U.S.C. 5171 before
manufacturing or compounding the following products, if the tax has
been paid or determined on all of the distilled spirits contained
therein:
(1) Medicines, medicinal preparations, food products, flavors,
flavoring extracts, and perfume, conforming to the standards for
approval of nonbeverage drawback products found in Secs. 17.131-17.137
of this chapter, whether or not drawback is
[[Page 31426]]
actually claimed on those products. Except as provided in paragraph (c)
of this section, a formula need not be submitted if drawback is not
desired.
(2) Patented, patent, and proprietary medicines that are unfit for
use for beverage purposes.
(3) Toilet, medicinal, and antiseptic preparations and solutions
that are unfit for use for beverage purposes.
(4) Laboratory reagents, stains, and dyes that are unfit for use
for beverage purposes.
(5) Flavoring extracts, syrups, and concentrates that are unfit for
use for beverage purposes.
(b) Exceptions; products classed as beverages. Products specified
under part 17 of this chapter as being fit for beverage use are
alcoholic beverages. Bitters, patent medicines, and similar alcoholic
preparations which are fit for beverage purposes, although held out as
having certain medicinal properties, are also alcoholic beverages. Such
products are required to be manufactured on the bonded premises of a
distilled spirits plant, and are subject to the provisions of this
part.
(c) Formulas and samples; when required. On request of the
Director, or when in doubt as to the classification of a product, the
manufacturer shall submit to the Director the formula for and a sample
of the product for examination to verify the manufacturer's claim of
exemption from qualification requirements.
(d) Change of formula; when required. If the regional director
(compliance) finds at any time that any product manufactured under
paragraph (a) of this section is being used for beverage purposes, or
for mixing with beverage spirits other than by a processor, he or she
shall notify the manufacturer to desist from manufacturing the product
until the formula is changed to make the product not susceptible of
beverage use and the change is approved by the Director. (However, the
provisions of this paragraph shall not prohibit such products, which
are unfit for beverage use, from being used in small quantities for
flavoring drinks at the time of serving for immediate consumption.)
Where, pursuant to notice, the manufacturer does not desist, or the
formula is not so modified as to make the product unsusceptible of
beverage use, the manufacturer shall immediately qualify as a
processor.
(Sec. 805, Pub. L. 96-39, 93 Stat. 275, 278 (26 U.S.C. 5002, 5171))
Sec. 19.69 [Removed]
3. Section 19.69 is removed.
4. Section 19.780(c) (4) and (5) are revised to read as follows:
Sec. 19.780 Record of distilled spirits shipped to manufacturers of
nonbeverage products.
* * * * *
(c) * * *
(4) Kind, proof, and quantity of distilled spirits in each
container;
(5) Number of containers of each size;
* * * * *
PART 70--[AMENDED]
Paragraph C. The regulations in 27 CFR part 70 are amended as
follows:
1. The authority citation for part 70 is revised to read as
follows:
Authority: 5 U.S.C. 301 and 552; 26 U.S.C. 4181, 4182, 5146,
5203, 5207, 5275, 5367, 5415, 5504, 5555, 5684(a), 5741, 5761(b),
5802, 6020, 6021, 6064, 6102, 6155, 6159, 6201, 6203, 6204, 6301,
6303, 6311, 6313, 6314, 6321, 6323, 6325, 6326, 6331-6343, 6401-
6404, 6407, 6416, 6423, 6501-6503, 6511, 6513, 6514, 6532, 6601,
6602, 6611, 6621, 6622, 6651, 6653, 6656-6658, 6665, 6671, 6672,
6701, 6723, 6801, 6862, 6863, 6901, 7011, 7101, 7102, 7121, 7122,
7207, 7209, 7214, 7304, 7401, 7403, 7406, 7423, 7424, 7425, 7426,
7429, 7430, 7432, 7502, 7503, 7505, 7506, 7513, 7601-7606, 7608-
7610, 7622, 7623, 7653, 7805.
2. The concluding text of Sec. 70.321(a) is amended to read as
follows:
Sec. 70.321 Registration of persons paying a special tax.
(a) Persons required to register. * * *
* * * * *
For provisions with respect to the registration of persons subject
to the special tax imposed by section 5131, relating to the tax on
persons claiming drawback on distilled spirits used in the manufacture
of certain nonbeverage products, see section 5132 of the Internal
Revenue Code and 27 CFR part 17 (Drawback on Taxpaid Distilled Spirits
Used in Manufacturing Nonbeverage Products).
* * * * *
Sec. 70.411 [Amended]
3. Section 70.411 is amended by removing paragraphs (c)(2)(v) and
(c)(2)(vii), redesignating existing paragraph (c)(2)(vi) as paragraph
(c)(2)(v), and by adding a new paragraph (c)(2)(vi) to read as follows:
* * * * *
(c) * * *
(2) * * *
(vi) Floor stocks tax on alcoholic beverages and imported perfumes
held for sale on January 1, 1991.
* * * * *
4. Section 70.411(c)(17) is amended by replacing the words ``Part
197'' with the words ``part 17''.
5. Section 70.414(j) is revised to read as follows:
Sec. 70.414 Preparation and filing of claims.
* * * * *
(j) Distilled spirits used in nonbeverage products. Procedural
instructions in respect of claims for drawback of excise tax and claims
for refund of special (occupational) tax, submitted by persons using
distilled spirits in the manufacture of medicines, medicinal
preparations, food products, flavors, flavoring extracts, or perfume,
which are unfit for beverage purposes, are contained in part 17 of
title 27 CFR.
* * * * *
PART 170--[AMENDED]
Paragraph D. The regulations in 27 CFR part 170 are amended as
follows:
1. The authority citation for part 170 is revised to read as
follows:
Authority: 26 U.S.C. 5001, 5002, 5064, 5101, 5102, 5179, 5291,
5301, 5362, 5601, 5615, 5687, 7805; 31 U.S.C. 9304, 9306.
Secs. 170.611-170.618 Subpart U [Removed and reserved]
2. Subpart U is removed and reserved.
PART 194--[AMENDED]
Paragraph E. The regulations in 27 CFR part 194 are amended as
follows:
1. The authority citation for part 194 is revised to read as
follows:
Authority: 26 U.S.C. 5001, 5002, 5111-5117, 5121-5124, 5142,
5143, 5145, 5146, 5206, 5207, 5301, 5352, 5555, 5613, 5681, 5691,
6001, 6011, 6061, 6065, 6071, 6091, 6109, 6151, 6311, 6314, 6402,
6511, 6601, 6621, 6651, 6657, 7011, 7805.
2. Section 194.33(b) is revised to read as follows:
Sec. 194.33 Sales of alcoholic compounds, preparations, or mixtures
containing distilled spirits, wines, or beer.
* * * * *
(b) Products unfit for beverage use. Products meeting the
requirements for exemption from qualification under the provisions of
Sec. 19.58 of this chapter shall be deemed to be unfit for beverage
purposes for the purposes of this part.
Sec. 194.191 [Amended]
3. Section 194.191(a) is amended by replacing the words ``Part
170'' with the words ``Sec. 19.58''.
PART 197--[REMOVED]
Paragraph F. Title 27 CFR part 197 is removed.
PART 250--[AMENDED]
Paragraph G. The regulations in 27 CFR part 250 are amended as
follows:
1. The authority citation for part 250 continues to read as
follows:
[[Page 31427]]
Authority: 19 U.S.C. 81c; 26 U.S.C. 5001, 5007, 5008, 5010,
5041, 5051, 5061, 5081, 5111, 5112, 5114, 5121, 5122, 5124, 5131-
5134, 5141, 5146, 5207, 5232, 5271, 5276, 5301, 5314, 5555, 6001,
6301, 6302, 6804, 7101, 7102, 7651, 7652, 7805; 27 U.S.C. 203, 205;
31 U.S.C. 9301, 9303, 9304, 9306.
Sec. 250.11 [Amended]
2. The definition of ``Chief, Puerto Rico Operations'' in
Sec. 250.11 is amended by replacing the words ``Room 329'' with the
words ``Room 659''.
3. The definition of ``Eligible article'' in Sec. 250.11 is amended
by replacing the words ``flavor or flavoring extract'' with the words
``flavor, flavoring extract or perfume''.
Sec. 250.51 [Amended]
4. Paragraph (a) of Sec. 250.51 is amended by replacing the words
``part 197'' with the words ``part 17''.
5. Paragraph (c) of Sec. 250.51 is amended by replacing the words
``5530.5 (1678)'' with the words ``5154.1 (formerly 1678)''.
Sec. 250.171 [Amended]
6. The second sentence of Sec. 250.171 is amended by replacing the
words ``part 197'' with the words ``part 17''.
7. Section 250.172 is revised to read as follows:
Sec. 250.172 Bonds.
(a) General. Persons bringing eligible articles into the United
States from Puerto Rico and intending to file monthly claims for
drawback under the provisions of this subpart shall obtain a bond on
Form 5154.3. When the limit of liability under a bond given in less
than the maximum amount has been reached, further drawback on monthly
claims may be suspended until a strengthening or superseding bond in a
sufficient amount has been furnished. For provisions relating to
bonding requirements, subpart E of part 17 of this chapter is
incorporated in this part, but references therein to a regional
director (compliance) shall apply, for purposes of this part, to the
Chief, Puerto Rico Operations.
(b) Approval required. No person bringing eligible articles into
the United States from Puerto Rico may file monthly claims for drawback
under the provisions of this subpart until bond on Form 5154.3 has been
approved by the Chief, Puerto Rico Operations. Bonds approved by a
regional director (compliance) prior to the effective date of this
provision shall remain in effect.
8. In Sec. 250.173, the first sentence of paragraph (a), the
introductory text of paragraph (c), and the first sentence of paragraph
(d) are revised to read as follows:
Sec. 250.173 Claims for drawback.
(a) General. Persons bringing eligible articles into the United
States from Puerto Rico shall file claim for drawback on Form 2635
(5620.8) with the Chief, Puerto Rico Operations. * * *
* * * * *
(c) Supporting data. Each claim shall be accompanied by supporting
data as specified in this paragraph. ATF Form 5154.2, Supporting Data
for Nonbeverage Drawback Claims, may be used, or the claimant may use
any suitable format that provides the following information:
* * * * *
(d) Date of filing claim. Quarterly claims for drawback shall be
filed with the Chief, Puerto Rico Operations, within the 6 months next
succeeding the quarter in which the eligible products covered by the
claim were brought into the United States. * * *
Sec. 250.221 [Amended]
9. Paragraph (a) of Sec. 250.221 is amended by replacing the words
``part 197'' with the words ``part 17''.
10. Paragraph (c) of Sec. 250.221 is amended by replacing the words
``5530.5 (1678)'' with the words ``5154.1 (formerly 1678)''.
Sec. 250.307 [Amended]
11. The second sentence of Sec. 250.307 is amended by replacing the
words ``Part 197'', wherever they occur, with the words ``part 17''.
12. Section 250.308 is revised to read as follows:
Sec. 250.308 Bonds.
(a) General. Persons bringing eligible articles into the United
States from the Virgin Islands and intending to file monthly claims for
drawback under the provisions of this subpart shall obtain a bond on
Form 5154.3. When the limit of liability under a bond given in less
than the maximum amount has been reached, further drawback on monthly
claims may be suspended until a strengthening or superseding bond in a
sufficient amount has been furnished. For provisions relating to
bonding requirements, subpart E of part 17 of this chapter is
incorporated in this part, but references therein to a regional
director (compliance) shall apply, for purposes of this part, to the
Chief, Puerto Rico Operations.
(b) Approval required. No person bringing eligible articles into
the United States from the Virgin Islands may file monthly claims for
drawback under the provisions of this subpart until bond on Form 5154.3
has been approved by the Chief, Puerto Rico Operations. Bonds approved
by a regional director (compliance) prior to the effective date of this
provision shall remain in effect.
13. In Sec. 250.309, the first sentence of paragraph (a), the
introductory text of paragraph (c), paragraph (c)(1) in its entirety,
and the first sentence of paragraph (d) are revised to read as follows:
Sec. 250.309 Claims for drawback.
(a) General. Persons bringing eligible articles into the United
States from the Virgin Islands shall file claim for drawback on Form
2635 (5620.8) with the Chief, Puerto Rico Operations. * * *
* * * * *
(c) Supporting data. Each claim shall be accompanied by supporting
data as specified in this paragraph. ATF Form 5154.2, Supporting Data
for Nonbeverage Drawback Claims, may be used, or the claimant may use
any suitable format that provides the following information:
(1) The control number of the Special Tax Stamp and the tax year
for which issued;
* * * * *
(d) Date of filing claim. Quarterly claims for drawback shall be
filed with the Chief, Puerto Rico Operations, within the 6 months next
succeeding the quarter in which the eligible products covered by the
claim were brought into the United States. * * *
Signed: April 5, 1996.
Bradley A. Buckles,
Acting Director.
Approved: May 9, 1996.
John P. Simpson,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 96-14881 Filed 6-19-96; 8:45 am]
BILLING CODE 4810-31-P
Complete official Federal Register PDF
FR Doc. 96-14636 List of Regulated Substances and Thresholds for Accidental Release Prevention; Final RuleStay of Effectiveness
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31730-31732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14636]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5516-6]
List of Regulated Substances and Thresholds for Accidental
Release Prevention; Final Rule--Stay of Effectiveness
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On April 15, 1996, the Environmental Protection Agency (EPA)
proposed several modifications to provisions of the rule listing
regulated substances and establishing threshold quantities under
section 112(r) of the Clean Air Act as amended (List Rule Amendments).
The proposed List Rule Amendments, if promulgated in a final rule,
would clarify or establish that part 68 does not apply to several types
of processes and sources. In addition, EPA proposed, pursuant to Clean
Air Act section 301(a)(1), 42 U.S.C. 7601(a)(1), to stay the
effectiveness of provisions that would be affected by the proposed List
Rule Amendments, for so long as necessary to take final action on the
proposed List Rule Amendments. EPA received no adverse public comment
on the short-term stay. Today EPA is amending part 68 to promulgate the
stay, under which owners and operators of processes and sources that
EPA has proposed not be subject to part 68 would not become subject to
part 68 until EPA has determined whether to proceed with the List Rule
Amendments. The effect of today's action will be to give owners and
operators of sources affected by the proposed List Rule Amendments the
same amount of time to achieve compliance with the requirements of part
68 as owners and operators of other sources in the event that EPA does
not proceed with the List Rule Amendments as proposed.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Vanessa Rodriguez, Chemical Engineer,
Chemical Emergency Preparedness and Prevention Office, Environmental
Protection Agency (5101), 401 M St. SW., Washington, DC 20460, (202)
260-7913.
SUPPLEMENTARY INFORMATION:
I. Background and Discussion
On April 15, 1996, EPA proposed amendments to regulations in 40 CFR
part 68 that, inter alia, list regulated substances and establish
threshold quantities for the accident prevention provisions under Clean
Air Act section 112(r). 61 FR 16598. Readers should refer to that
document for a complete discussion of the background of the rule
affected. The amendments proposed in that document (``List Rule
Amendments'') would, if promulgated, delete explosives from the list of
regulated substances, modify threshold provisions to exclude flammable
substances in gasoline and in naturally occurring hydrocarbon mixtures
prior to entry into a processing unit or plant, modify the threshold
provisions for other flammable mixtures, and clarify the definition of
stationary source with respect to transportation, storage incident to
transportation, and naturally occurring hydrocarbon reservoirs.
On the same date, EPA proposed to stay provisions of part 68 that
were affected by the proposed List Rule Amendments until such time as
EPA takes final action on the proposed List Rule Amendments. 61 FR
16606. EPA proposed a stay of 18 months because it believed such a
period would be sufficient to take final action on the List Rule
Amendments and believed that owners and operators affected by the List
Rule Amendments should have the same certainty about whether they are
subject to part 68 as owners and operators of other sources have when
they begin their regulatory compliance planning. In general, owners and
operators of sources subject to the ``Risk Management Program'' final
rule promulgated elsewhere in today's Federal Register, have three
years from today to achieve compliance with part 68.
[[Page 31731]]
EPA received seven comment letters on the proposed stay; all
generally supported EPA's action. The Agency's response to comments is
contained below. Three commenters suggested that EPA should promulgate
a stay for so long as it takes the Agency to take final action on the
List Rule Amendments rather than for a certain (18 month) time period.
The 18 month time period was selected to be consistent with the time
period provided for final action on amendments discussed in the
settlement of litigation concerning the List Rule. EPA believes this
time will be sufficient to take any necessary action. Another commenter
expressed concern that the stay would not affect statutory deadlines
for seeking judicial review of the final Risk Management Program rule.
EPA has not taken final action on the Risk Management Program rule's
applicability to stationary sources, mixtures containing regulated
flammable substances, and regulated explosive substances that are
subject to today's stay. In the event that the Agency does not
promulgate the List Rule Amendments, the Agency intends to take final
action on applying the Risk Management Program to the sources,
mixtures, and substances to be regulated. In the absence of final
action on the Risk Management Program rule as it applies to these
sources, mixtures, and substances, a petition seeking review of that
rule would be premature.
Under the provisions of section 307(b)(1) of the Clean Air Act, a
petition for judicial review of this stay may only be filed in the
United States Court of Appeals for District of Columbia Circuit within
60 days of today's publication of this action.
II. Required Analyses
A. E.O. 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must judge whether the regulatory action is ``significant,'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, jobs, the environment, public health or safety,
or state, local, or tribal government or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined this final rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.
B. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, Federal
agencies must evaluate the effects of this final rule on small entities
and examine alternatives that may reduce these effects. EPA has
examined this final rule's potential effects on small entities as
required by the Regulatory Flexibility Act. It has determined that this
rule will have no adverse effect on small entities because it defers
the need for stationary sources to comply with current rule provisions
that EPA has proposed to amend; the amendments, if adopted, likely
would reduce the number of stationary sources subject to the accidental
release prevention requirements. Therefore, I certify that today's
final stay of effectiveness rule will not have a significant economic
effect on a substantial number of small entities.
C. Paperwork Reduction Act
This final rule does not include any information collection
requirements for OMB to review under the provisions of the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any one year. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objective of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly impacted by the rule.
EPA has estimated that this rule does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Chemical accident prevention,
Clean Air Act, Extremely hazardous substances, Intergovernmental
relations, Hazardous substances, Reporting and recordkeeping
requirements.
Dated: May 24, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, Title 40, Chapter I,
Subchapter C, Part 68 of the Code of Federal Regulations is amended to
read as follows:
PART 68--ACCIDENTAL RELEASE PREVENTION PROVISIONS
1. The authority citation for Part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601.
2. In Subpart A, Sec. 68.2 is added to read as follows:
Sec. 68.2 Stayed Provisions.
(a) Notwithstanding any other provision of this part, the
effectiveness of the following provisions is stayed from March 2, 1994
to December 22, 1997.
(1) In Sec. 68.3, the definition of ``stationary source,'' to the
extent that such definition includes naturally occurring hydrocarbon
reservoirs or transportation subject to oversight or regulation under a
state natural gas or hazardous liquid program for which the state has
in effect a certification to DOT under 49 U.S.C. 60105;
(2) Section 68.115(b)(2) of this part, to the extent that such
provision requires an owner or operator to treat as a regulated
flammable substance:
(i) Gasoline, when in distribution or related storage for use as
fuel for internal combustion engines;
(ii) Naturally occurring hydrocarbon mixtures prior to entry into a
petroleum refining process unit or a natural gas processing plant.
Naturally occurring hydrocarbon mixtures include any of
[[Page 31732]]
the following: condensate, crude oil, field gas, and produced water,
each as defined in paragraph (b) of this section;
(iii) Other mixtures that contain a regulated flammable substance
and that do not have a National Fire Protection Association
flammability hazard rating of 4, the definition of which is in the NFPA
704, Standard System for the Identification of the Fire Hazards of
Materials, National Fire Protection Association, Quincy, MA, 1990,
available from the National Fire Protection Association, 1 Batterymarch
Park, Quincy, MA 02269-9101; and
(3) Section 68.130(a).
(b) From March 2, 1994 to December 22, 1997, the following
definitions shall apply to the stayed provisions described in paragraph
(a) of this section:
Condensate means hydrocarbon liquid separated from natural gas that
condenses because of changes in temperature, pressure, or both, and
remains liquid at standard conditions.
Crude oil means any naturally occurring, unrefined petroleum
liquid.
Field gas means gas extracted from a production well before the gas
enters a natural gas processing plant.
Natural gas processing plant means any processing site engaged in
the extraction of natural gas liquids from field gas, fractionation of
natural gas liquids to natural gas products, or both. A separator,
dehydration unit, heater treater, sweetening unit, compressor, or
similar equipment shall not be considered a ``processing site'' unless
such equipment is physically located within a natural gas processing
plant (gas plant) site.
Petroleum refining process unit means a process unit used in an
establishment primarily engaged in petroleum refining as defined in the
Standard Industrial Classification code for petroleum refining (2911)
and used for the following: Producing transportation fuels (such as
gasoline, diesel fuels, and jet fuels), heating fuels (such as
kerosene, fuel gas distillate, and fuel oils), or lubricants;
separating petroleum; or separating, cracking, reacting, or reforming
intermediate petroleum streams. Examples of such units include, but are
not limited to, petroleum based solvent units, alkylation units,
catalytic hydrotreating, catalytic hydrorefining, catalytic
hydrocracking, catalytic reforming, catalytic cracking, crude
distillation, lube oil processing, hydrogen production, isomerization,
polymerization, thermal processes, and blending, sweetening, and
treating processes. Petroleum refining process units include sulfur
plants.
Produced water means water extracted from the earth from an oil or
natural gas production well, or that is separated from oil or natural
gas after extraction.
[FR Doc. 96-14636 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31668-31730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14597]
[[Page 31667]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
Accidental Release Prevention Requirements: Risk Management Programs
Under the Clean Air Act, Section 112(r)(7); List of Regulated
Substances and Thresholds for Accidental Release Prevention, Stay of
Effectiveness; and Accidental Release Prevention Requirements: Risk
Management Programs Under Section 112(r)(7) of the Clean Air Act as
Amended, Guidelines; Final Rules and Notice
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules
and Regulations
[[Page 31668]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5516-5]
RIN 2050-AD26
Accidental Release Prevention Requirements: Risk Management
Programs Under Clean Air Act Section 112(r)(7)
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Clean Air Act requires EPA to promulgate regulations to
prevent accidental releases of regulated substances and reduce the
severity of those releases that do occur. EPA is promulgating rules
that apply to all stationary sources with processes that contain more
than a threshold quantity of a regulated substance. Processes will be
divided into three categories based on: the potential for offsite
consequences associated with a worst-case accidental release; accident
history; or compliance with the prevention requirements under OSHA's
Process Safety Management Standard. Processes that have no potential
impact on the public in the case of an accidental release will have
minimal requirements. For other processes, sources will implement a
risk management program that includes more detailed requirements for
hazard assessment, prevention, and emergency response. Processes in
industry categories with a history of accidental releases and processes
already complying with OSHA's Process Safety Management Standard will
be subject to a prevention program that is identical to parallel
elements of the OSHA Standard. All other processes will be subject to
streamlined prevention requirements. All sources must prepare a risk
management plan based on the risk management programs established at
the source. The source must submit the plan to a central point
specified by EPA; the plan will be available to state and local
governments and the public. These regulations will encourage sources to
reduce the probability of accidental releases of substances that have
the potential to cause immediate harm to public health and the
environment and will stimulate the dialogue between industry and the
public to improve accident prevention and emergency response practices.
DATES: The rule is effective August 19, 1996.
ADDRESSES: Supporting material used in developing the proposed rule,
supplemental notice, and final rule is contained in Docket No. A-91-73.
The docket is available for public inspection and copying between 8:00
a.m. and 5:30 p.m., Monday through Friday (except government holidays)
at Room 1500, 401 M St. SW, Washington, DC 20460. A reasonable fee may
charged for copying.
FOR FURTHER INFORMATION CONTACT: Craig Matthiessen at (202) 260-8600,
Chemical Emergency Preparedness and Prevention Office, U.S.
Environmental Protection Agency, 401 M St. SW, Washington, DC 20460, or
the Emergency Planning and Community Right-to-Know Hotline at 1-800-
424-9346 (in the Washington, DC, metropolitan area, (703) 412-9810).
SUPPLEMENTARY INFORMATION: Judicial Review. Accidental Release
Prevention Requirements: Risk Management Programs Under Clean Air Act
Section 112(r)(7) were proposed in the Federal Register on October 20,
1993 (58 FR 54190). A supplemental notice was issued on March 13, 1995
(60 FR 13526). This Federal Register action announces the EPA's final
decisions on the rule. Under section 307(b)(1) of the Act, judicial
review of the Accidental Release Prevention Requirements: Risk
Management Programs is available only by the petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit within 60
days of today's publication of this final rule. Under section 307(b)(2)
of the Act, the requirements that are the subject of today's notice may
not be challenged later in civil or criminal proceedings brought by the
EPA to enforce these requirements.
Regulated Entities
Entities potentially regulated by this action are those stationary
sources that have more than a threshold quantity of a regulated
substance in a process. Regulated categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Chemical Manufacturers............ Industrial organics & inorganics,
paints, pharmaceuticals, adhesives,
sealants, fibers
Petrochemical..................... Refineries, industrial gases,
plastics & resins, synthetic rubber
Other Manufacturing............... Electronics, semiconductors, paper,
fabricated metals, industrial
machinery, furniture, textiles
Agriculture....................... Fertilzers, pesticides
Public Sources.................... Drinking and waste water treatment
works
Utilities......................... Electric and Gas Utilities
Others............................ Food and cold storage, propane
retail, warehousing and wholesalers
Federal Sources................... Military and energy installations
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether a
stationary source is regulated by this action, carefully examine the
provisions associated with the list of substances and thresholds under
Sec. 68.130 (59 FR 4478), the proposed modifications (61 FR 16598,
April 15, 1996) and the stay of implementation of the affected
provisions until the proposed modifications are final published
elsewhere in today's Federal Register, and the applicability criteria
in Sec. 68.10 of today's rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
The following outline is provided to aid in reading this preamble:
I. Introduction and Background
A. Statutory Authority
B. Background
II. Discussion of Final Rule
A. Applicability
B. Program Criteria and Requirements
C. Hazard Assessment
D. Prevention Programs
E. Emergency Response
F. Risk Management Plan (RMP)
G. Air Permitting
H. Other Issues
III. Discussion of Comments
A. Tiering
1. Rationale
2. Program 1 vs. Program 2 and Program 3 Criteria
[[Page 31669]]
a. Potential for Offsite Impact
b. Accident History
c. Other
3. Program 2 vs. Program 3 Criteria
a. Number of Employees
b. SIC Code
c. Site-specific, Risk-based Criteria
d. Accident History
e. Other
4. Program 1 Requirements
a. Certification of No Environmental Impact
b. Signs
c. Emergency Response Program
d. Other
5. Program 2 Requirements
a. Streamlined Program
b. Other Regulations
c. Emergency Response Program
B. Offsite Consequence Analysis
1. Worst-Case Release Scenario
2. Mitigation Systems
a. Worst-Case Release Scenario
b. Alternative Scenarios
3. Populations Affected
4. Number of Scenarios
5. Technical Guidance
6. Modeling Parameters
a. Endpoints
b. Meteorology
C. Consideration of Environmental Impact
1. Inclusion of Environmental Impacts
2. Environments to be Considered
3. Level of Analysis Required
D. Program 3 Consistency with OSHA PSM Standard
1. Prevention Program
2. Enforcement
3. Exemptions
E. Relationship to Air Permits
1. General Relationship between the Part 68 and Part 70 programs
2. Impact of EPA's Proposal on Air Permitting Programs
3. Part 68 as an ``Applicable Requirement'' under Part 70
4. Role of the Air Permitting Authority
5. Air Permit Application Contents
6. Air Permit Contents
7. Completeness Review
8. Interaction of the Implementing Agency and the Permitting
Authority
9. Designated Agency
10. Reopening Air Permits to Incorporate Section 112(r)
Requirements
11. Use of Air Funds
12. Other Issues
F. General Definitions
1. Significant Accidental Release
2. Stationary Source
3. Process
4. Offsite
5. Other Definitions
G. Risk Management Plan (RMP)
1. Level of Detail
2. RMP Content
3. Submission
4. Other Issues
H. Prevention Program
I. Accident History
J. Emergency Response Program
K. Registration
L. Model Risk Management Programs
M. Implementing Agency Audits
N. Public Participation
O. Inherently Safer Technologies
P. Coverage by Other Regulations
1. General Issues
2. DOT Transportation Regulations
3. Other EPA Regulations
4. Other Federal Regulations
5. State and Local Regulations
Q. Industry-Specific Issues
1. Oil and Gas Facilities
2. Retail Facilities
a. Propane Retailers
b. Ammonia Retailers
3. Refrigeration Systems
4. Other Operations
R. Implementing Agency Delegation
S. Accident Reporting
T. Other Issues
1. OSHA VPP
2. Qualified Third Party
3. Documentation
IV. Section-by-Section Analysis of the Rule
V. Required Analyses
A. E.O. 12866
B. Regulatory Flexibility Act
C. Unfunded Mandate Reform Act
D. Paperwork Reduction Act
E. Submission to Congress and the General Accounting Office
I. Introduction and Background
A. Statutory Authority
This rule is promulgated under sections 112(r), 301(a)(1), Title V
of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r), 7601(a)(1),
7661-7661f).
B. Background
The CAA Amendments of 1990 amend section 112 and add paragraph (r).
The intent of section 112(r) is to prevent accidental releases to the
air and mitigate the consequences of such releases by focusing
prevention measures on chemicals that pose the greatest risk to the
public and the environment. Section 112(r)(3) mandates that EPA
promulgate a list of regulated substances, with threshold quantities;
this list defines the stationary sources that will be subject to
accident prevention regulations mandated by section 112(r)(7). EPA
promulgated its list of substances on January 31, 1994 (59 FR 4478)
(``List Rule'').
As noted elsewhere in today's Federal Register, EPA has stayed
certain provisions of part 68 that were promulgated as part of the List
Rule. The stayed provisions are being addressed in amendments to the
List Rule, which were proposed in 61 FR 16598 (April 15, 1996).
Therefore, EPA has not taken final action on provisions of the Risk
Management Program rule that apply to regulated substances, mixtures,
and stationary sources addressed by the stayed provisions. Final action
will be deferred until EPA takes final action on the proposed
amendments to the List Rule.
Section 112(r)(7) mandates that EPA promulgate regulations and
develop guidance to prevent, detect, and respond to accidental
releases. Stationary sources covered by these regulations must develop
and implement a risk management program that includes a hazard
assessment, a prevention program, and an emergency response program.
The risk management program must be described in a risk management plan
(RMP) that must be registered with EPA, submitted to state and local
authorities, and made available to the public. On October 20, 1993, EPA
published a Notice of Proposed Rulemaking (NPRM) for the section
112(r)(7) regulations (58 FR 54190). (For a summary of the statutory
requirements of section 112(r) and related statutory provisions, see
the October 20, 1993, NPRM).
Following publication of the proposed rule, EPA held four public
hearings and received approximately 770 written comments. Because of
these comments, EPA issued a supplemental notice of proposed rulemaking
(SNPRM) on March 13, 1995 (60 FR 13526) for comment on: approaches for
setting different requirements for sources that pose different levels
of hazard (tiering); worst-case releases and other hazard assessment
issues; accident information reporting; public participation;
inherently safer approaches; and implementation and integration of
section 112(r) with state programs, particularly state air permitting
programs. EPA held a public hearing on March 31, 1995, in Washington,
DC, and received more than 280 written comments. Today's rule reflects
EPA's consideration of all comments; major issues raised by commenters
and EPA's response are briefly discussed in Section III of this
preamble. A summary of all comments submitted and EPA's response to
them is available in the Docket (see ADDRESSES).
EPA has proposed to delist explosives from Sec. 68.130.
Consequently, explosives are not addressed in this rule. EPA had also
requested at the time of the final List Rule comments on whether
flammable substances, when used as fuel, posed a lesser intrinsic
hazard than the same substance handled otherwise (59 FR 4500, January
31, 1994). The comments submitted lacked data that would justify a
lesser level of hazard consideration for flammable fuels; hence, the
Agency will not adopt a fuel use exemption for purposes of threshold
quantity determination.
With today's rule, EPA continues the philosophy that the Agency
embraced in implementing the Emergency Planning and Community Right-to-
Know Act of
[[Page 31670]]
1986 (EPCRA). Specifically, EPA recognizes that regulatory
requirements, by themselves, will not guarantee safety. Instead, EPA
believes that information about hazards in a community can and should
lead public officials and the general public to work with industry to
prevent accidents. For example, today's rule requires covered sources
to provide information about possible worst-case scenarios. EPA intends
that officials and the public use this information to understand the
chemical hazards in the community and then engage in a dialogue with
industry to reduce risk. In this way, accident prevention is focused
primarily at the local level where the risk is found. Further, today's
rule builds on existing programs and standards. For example, EPA has
coordinated with Occupational Safety and Health Administration (OSHA)
and the Department of Transportation (DOT) in developing this
regulation. To the extent possible, covered sources will not face
inconsistent requirements under these agencies' rules. EPA is
encouraging sources to use existing emergency response programs, rather
than develop a separate and duplicative program under this rule. In
addition, today's rule scales requirements based on the potential risk
posed by a source and the steps needed to address the risk, rather than
imposing identical requirements on all sources.
To accommodate the concerns of small businesses, EPA is providing
guidance with reference tables that covered sources can use to model
the offsite consequences of a release. EPA is providing a model RMP
guidance for the ammonia refrigeration industry, and will develop
similar guidance for propane handlers and drinking water systems. As
today's rule is implemented, EPA hopes that other industry sectors will
work with EPA to develop model RMPs for other processes, thereby
reducing costs for individual sources. Finally, today's rule requires
industry to submit RMPs centrally in a format and method to be
determined by EPA. Working with stakeholders, EPA will develop
mechanisms to allow industry to use appropriate electronic technology
to register with EPA and submit RMPs. In turn, all interested parties
will be able to access electronically the data in RMPs. This method of
submission and access avoids a potentially significant amount of
paperwork for all involved parties and promotes uniformity. Users will
be able to develop databases for specific purposes and compare RMPs for
various sites across the country. In turn, industries' use of the data
will promote continuous improvement, for example, through new safety
technologies. As the method for submitting RMPs is developed, EPA
invites the participation of all stakeholders, including industry,
state and local governments, local emergency planning committees,
environmental groups, and the general public.
II. Discussion of Final Rule
A. Applicability
The owner or operator of a stationary source that has more than a
threshold quantity of a regulated substance in a process must comply
with these requirements no later than June 21, 1999; three years after
the date on which a regulated substance is first listed under
Sec. 68.130; or the date on which a regulated substance is first
present in more than a threshold quantity in a process, whichever is
later.
B. Program Criteria and Requirements
Under today's rule, processes subject to these requirements are
divided into three tiers, labeled Programs 1, 2, and 3. EPA has adopted
the term ``Program'' to replace the term ``Tier'' found in the SNPRM to
avoid confusion with Tier I and Tier II forms submitted under EPCRA,
also known as Title III of the Superfund Amendments and Reauthorization
Act of 1986 (SARA Title III). Eligibility for any given Program is
based on process criteria so that classification of one process in a
Program does not influence the classification of other processes at the
source. For example, if a process meets Program 1 criteria, the source
need only satisfy Program 1 requirements for that process, even if
other processes at the source are subject to Program 2 or Program 3. A
source, therefore, could have processes in one or more of the three
Programs.
Program 1 is available to any process that has not had an
accidental release with offsite consequences in the five years prior to
the submission date of the RMP and has no public receptors within the
distance to a specified toxic or flammable endpoint associated with a
worst-case release scenario. Program 3 applies to processes in Standard
Industrial Classification (SIC) codes 2611 (pulp mills), 2812 (chlor-
alkali), 2819 (industrial inorganics), 2821 (plastics and resins), 2865
(cyclic crudes), 2869 (industrial organics), 2873 (nitrogen
fertilizers), 2879 (agricultural chemicals), and 2911 (petroleum
refineries). Program 3 also applies to all processes subject to the
OSHA Process Safety Management (PSM) standard (29 CFR 1910.119), unless
the process is eligible for Program 1. Owners or operators will need to
determine individual SIC codes for each covered process to determine
whether Program 3 applies. All other covered processes must satisfy
Program 2 requirements. Program requirements and differences are
illustrated on Tables 1 and 2:
Table 1--Program Eligibility Criteria
------------------------------------------------------------------------
Program 1 Program 2 Program 3
------------------------------------------------------------------------
No offsite accident history. .................. Process is subject
to OSHA PSM.
No public receptors in worst- The process is not Process is in SIC
case circle. eligible for code 2611, 2812,
Program 1 or 3. 2819, 2821, 2865,
2869, 2873, 2879,
or 2911.
Emergency response ..................
coordinated with local
responders.
------------------------------------------------------------------------
Table 2--Comparison of Program Requirements
------------------------------------------------------------------------
Program 1 Program 2 Program 3
------------------------------------------------------------------------
Hazard Assessment:
Worst-case analysis......... Worst-case analysis. Worst-case analysis.
Alternative releases Alternative
releases.
5-year accident history..... 5-year accident 5-year accident
history. history.
Management Program:
Document management Document management
system. system.
[[Page 31671]]
Prevention Program:
Certify no additional steps Safety Information.. Process Safety
needed. Information.
Hazard Review....... Process Hazard
Analysis.
Operating Procedures Operating
Procedures.
Training............ Training.
Maintenance......... Mechanical
Integrity.
Incident Incident
Investigation. Investigation.
Compliance Audit.... Compliance Audit.
.................. Management of
Change.
.................. Pre-startup Review.
.................. Contractors.
.................. Employee
Participation.
.................. Hot Work Permits.
Emergency Response Program:
Coordinate with local Develop plan and Develop plan and
responders. program. program.
Risk Management Plan
Contents:
Executive Summary........... Executive Summary... Executive Summary
Registration................ Registration........ Registration.
Worst-case data............. Worst-case data..... Worst-case data.
5-year accident history..... Alternative release Alternative release
data. data.
Certification............... 5-year accident 5-year accident
history. history.
Prevention program Prevention program
data. data.
Emergency response Emergency response
data. data.
Certification....... Certification.
------------------------------------------------------------------------
The owner or operator of a covered process must: (1) prepare and
submit a single risk management plan (RMP), including registration that
covers all affected processes and chemicals; (2) conduct a worst-case
release scenario analysis, review accident history, ensure emergency
response procedures are coordinated with community response
organizations to determine eligibility for Program 1 and, if eligible,
document the worst case and complete a Program 1 certification for the
RMP; (3) conduct a hazard assessment, document a management system,
implement a more extensive, but still streamlined prevention program,
and implement an emergency response program for Program 2 processes;
and (4) conduct a hazard assessment, document a management system,
implement a prevention program that is fundamentally identical to the
OSHA PSM Standard, and implement an emergency response program for
Program 3 processes.
Measures taken by sources to comply with OSHA PSM for any process
that meets OSHA's PSM standard are sufficient to comply with the
prevention program requirements of all three Programs. EPA will retain
its authority to enforce the prevention program requirements and the
general duty requirements of CAA Section 112(r)(1). EPA and OSHA are
working closely to coordinate interpretation and enforcement of PSM and
accident prevention programs. EPA will also work with state and local
agencies to coordinate oversight of worker and public safety and
environmental protection programs.
C. Hazard Assessment
EPA has adopted the worst-case definition proposed in the SNPRM.
For all substances, the worst-case release scenario will be defined as
the release of the largest quantity of a regulated substance from a
vessel or process line failure, including administrative controls and
passive mitigation that limit the total quantity involved or the
release rate. For most gases, the worst-case release scenario assumes
that the quantity is released in 10 minutes. For liquids, the scenario
assumes an instantaneous spill; the release rate to the air is the
volatilization rate from a pool 1 cm deep unless passive mitigation
systems contain the substance in a smaller area. For flammables, the
worst case assumes an instantaneous release and a vapor cloud
explosion.
For the final rule, EPA has adopted the term ``alternative release
scenarios'' to replace the term ``other more likely scenarios'' found
in the NPRM and SNPRM. The non-worst-case accidental releases for the
hazard assessment portion of the risk management plan were presumed
``more likely to occur'' and ``more realistic'' than the worst case.
EPA believes sources should have flexibility to select non-worst-case
scenarios that are the most useful for communication with the public
and first responders and for emergency response preparedness and
planning. Catastrophic accidental releases are typically rare events;
the words ``more likely'' suggests certainty of occurrence.
Consequently, the scenarios other than worst case provided in the
hazard assessment are called alternative release scenarios. For
alternative scenarios, sources may consider the effects of both passive
and active mitigation systems.
One worst-case release scenario will be defined to represent all
toxics, and one worst-case release scenario will be defined to
represent all flammables held above the threshold at the source.
Additional worst-case release scenario(s) must be analyzed and reported
if such a release from another covered process at the source
potentially affects public receptors that would not be potentially
affected by the first scenario. EPA recognizes that this approach may
be problematic for some sources such as batch processors and warehouses
where use of listed substances or inventory may vary considerably
within an RMP reporting period. EPA suggests that owners or operators
of such processes develop a worst-case scenario for future chemical use
and inventory based on past practices to minimize the need for frequent
revision of their worst-case scenario. For alternative release
scenarios, one scenario is required for each toxic substance and one to
represent all flammable substances held in covered processes at the
source.
An endpoint is needed for the offsite consequence analysis.
Appendix A of today's rule lists the endpoints for toxic substances
that must be used in worst-
[[Page 31672]]
case and alternative scenario assessment. The endpoint for a toxic
substance is its Emergency Response Planning Guideline level 2 (ERPG-2)
developed by the American Industrial Hygiene Association (AIHA). If a
substance has no ERPG-2, then the endpoint is the level of concern
(LOC) from the Technical Guidance for Hazards Analysis, updated where
necessary to reflect new toxicity data. EPA recognizes the limitations
associated with ERPG-2 and LOC values and is working with other
agencies to develop Acute Exposure Guideline Limits (AEGLs). When these
values have been developed and peer-reviewed, EPA intends to adopt them
through rulemaking as the toxic endpoints for this rule. For
flammables, vapor cloud explosion distances will be based on an
overpressure of 1 psi; for alternative flammable releases, radiant heat
distances will be based on an exposure of 5 kW/m\2\ for 40 seconds. For
vapor cloud fires and jet fires, the lower flammability limit provided
by the National Fire Protection Association (NFPA) or other sources
shall be used.
EPA selected 1.5 meter per second (m/s) wind speed and F
atmospheric stability class as the default worst-case scenario
meteorological conditions. If the owner or operator has meteorological
data that show that higher minimum wind speeds or less stable
atmospheric class conditions existed at the source at all times in the
previous three years, then the higher wind speed and different
stability class may be used. Alternative release analyses may use site-
specific, typical meteorological conditions. If the owner or operator
has no data on typical meteorological conditions, then conditions used
in the RMP Offsite Consequence Analysis Guidance (3 m/s and D
stability), may be used. Although EPA is providing technical guidance
and reference tables for worst-case and alternative release scenario
assessments, owners or operators may use any generally recognized,
commercially or publicly available air dispersion modeling techniques,
provided the modeling parameters specified in the rule are used.
For the hazard assessment and the RMP, populations potentially
affected are defined as those within a circle that has as its center
the point of release and its radius the distance to the toxic or
flammable endpoint. Owners or operators may use Census data to define
this population, and may update those data if they are inaccurate. EPA
suggests that owners or operators use LandView, an electronic
publication of environmental, geographic and demographic information
published by EPA and the Bureau of Census. The presence of schools,
hospitals, other institutions, public arenas, recreational areas, and
large commercial and industrial developments that can be identified on
street maps within this circle must be noted in the RMP, but the number
of people occupying them need not be enumerated. The presence of
environmental receptors within this circle must also be listed. EPA has
defined environmental receptors as natural areas such as national or
state parks, forests, or monuments; officially designated wildlife
sanctuaries, preserves, refuges, or areas; and Federal wilderness
areas, that can be exposed to an accidental release. All of these can
be identified on local U.S. Geological Survey maps or maps based on
USGS data.
The five-year accident history will cover all accidents involving
regulated substances, but only from covered processes at the source
that resulted in serious on site or certain known offsite impacts in
the five years prior to the submission of each RMP. EPA has replaced
the definition of significant accidental release with specific
definitions of the types of releases to be covered under each of the
specific requirements previously associated with this definition.
D. Prevention Programs
EPA has retained the management system requirement proposed in the
NPRM, but only for Program 2 and 3 processes. EPA has moved the
management system requirement from the prevention program section to
the general requirements section because it should be designed to
oversee the implementation of all elements of the risk management
program. The owner or operator must designate a qualified person or
position with overall responsibility for the program and specify the
lines of authority if responsibility for implementing individual
requirements is assigned to other persons or positions.
In the SNPRM, EPA proposed a Program 2 prevention program that
covered training, maintenance, safety precautions, and monitoring, but
did not specify any particular actions. EPA solicited comment on
whether specific prevention activities should be required for Program 2
sources, such as any of the specific activities initially proposed in
the NPRM. For today's rule, EPA has developed seven specific elements
for the Program 2 prevention program: safety information (Sec. 68.48),
hazard review (Sec. 68.50), operating procedures (Sec. 68.52), training
(Sec. 68.54), maintenance (Sec. 68.56), compliance audits (Sec. 68.58),
and incident investigation (Sec. 68.60). Most Program 2 processes are
likely to be relatively simple and located at smaller businesses. EPA
believes owners or operators of Program 2 processes can successfully
prevent accidents without a program as detailed as the OSHA PSM, which
was primarily designed for the chemical industry. EPA combined and
tailored elements common to OSHA's PSM and EPA's NPRM to generate
Program 2 requirements and applied them to non-petrochemical industry
processes. EPA is also developing model risk management programs (and
RMPs) for several industry sectors that will have Program 2 processes.
These model guidances will help sources comply by providing standard
elements that can be adopted to a specific source. EPA expects that
many Program 2 processes will already be in compliance with most of the
requirements through compliance with other Federal regulations, state
laws, industry standards and codes, and good engineering practices.
The Program 3 prevention program includes the requirements of the
OSHA PSM standard, 29 CFR 1910.119 (c) through (m) and (o), with minor
wording changes to address statutory differences. This makes it clear
that one accident prevention program to protect workers, the general
public, and the environment will satisfy both OSHA and EPA. For
elements that are in both the EPA and OSHA rules, EPA has used OSHA's
language verbatim, with the following changes: the replacement of the
terms ``highly hazardous substance,'' ``employer,'' ``standard'' and
``facility'' with ``regulated substance,'' ``owner or operator,''
``part or rule,'' and ``stationary source''; the deletion of specific
references to workplace impacts or to ``safety and health;'' changes to
specific schedule dates; and changes to references within the standard.
The ``safety and health'' and ``workplace impacts'' references occur in
OSHA's PSM standard in process safety information (29 CFR 1910.119
(d)(2)(E)), process hazards analysis (29 CFR 1910.119(e)(3)(vii)), and
incident investigation (29 CFR 1910.119(m)(1)). These changes are
designed to ensure that OSHA retains its oversight of actions designed
to protect workers while EPA retains its oversight of actions to
protect public health and the environment and to remove possible
interpretations that certain elements of process safety management fail
to account for offsite impacts. Commenters were particularly concerned
about the phase-in of process hazard analyses
[[Page 31673]]
(PHAs). Under the final rule, PHAs conducted for OSHA are considered
adequate to meet EPA's requirements. They will be updated on the OSHA
schedule (i.e., by the fifth anniversary of their initial completion).
This approach will eliminate any need for duplicative analyses.
Documentation for the PHA developed for OSHA will be sufficient to meet
EPA's purposes.
EPA anticipates that sources whose processes are already in
compliance with OSHA PSM will not need to take any additional steps or
create any new documentation to comply with EPA's Program 3 prevention
program. Any PSM modifications necessary to account for protection of
public health and the environment along with protection of workers can
be made when PSM elements are updated under the OSHA requirements. EPA
has modified the OSHA definition of catastrophic release, which serves
as the trigger for an incident investigation, to include events ``that
present imminent and substantial endangerment to public health and the
environment.'' As a result, this rule requires investigation of
accidental releases that pose a risk to the public or the environment,
whereas the OSHA rule does not. EPA recognizes that catastrophic
accidental releases primarily affect the workplace and that this change
will have little effect on incident investigation programs already
established. However, EPA needs to ensure that deviations that could
have had only an offsite impact are also addressed.
E. Emergency Response
EPA has adopted the emergency response requirements found in the
statute, without additional specific planning requirements beyond those
necessary to implement the statute. This action is consistent with the
Agency's effort to develop a single Federal approach for emergency
response planning. The Presidential Review of Federal release
prevention, mitigation, and response authorities (required under
section 112(r)(10) of the Clean Air Act) found that there is seldom
harmony in the required formats or elements of response plans prepared
to meet various Federal regulations. Accordingly, EPA has committed not
to specify new plan elements and/or a specific plan format in today's
rule beyond those that are statutorily required. EPA believes that
plans developed to comply with other EPA contingency planning
requirements and the OSHA Hazardous Waste and Emergency Operations
(HAZWOPER) rule (29 CFR 1910.120) will meet most of the requirements
for the emergency response program. In addition, EPA and other National
Response Team agencies have prepared Integrated Contingency Plan
Guidance (``one plan'') (NRT, May 1996). The NRT and the agencies
responsible for reviewing and approving federal response plans to which
the one plan option applies agree that integrated response plans
prepared in the format provided in this guidance will be acceptable and
be the federally preferred method of response planning. An emergency
response plan that includes the elements specified in this guidance can
be used to meet the requirements in today's rule. The final rule also
provides relief for sources that are too small to respond to releases
with their own employees; these sources will not be required to develop
emergency response plans provided that procedures for notifying non-
employee emergency responders have been adopted and that appropriate
responses to their hazards have been addressed in the community
emergency response plan developed under EPCRA (42 U.S.C. 11003) for
toxics or coordinated with the local fire department for flammables.
F. Risk Management Plan (RMP)
Owners or operators must submit their first RMP by the date
specified in Sec. 68.10. After the RMP is submitted, changes at the
source may require updates to the RMP other than the standard update
every five years. If a new substance or new process is added, the RMP
will need to be revised and submitted by the date the substance is
first in the process above the threshold quantity. If changes to
processes require revised hazard assessments or PHAs, or if a process
changes Program level, the source must submit a revised RMP within six
months.
EPA intends that the RMP will be submitted in a method and format
to a central point as specified by EPA. States, local entities
including local emergency planning committees (LEPCs), and the public
will be able to access all RMPs electronically. This process will
relieve states and local entities of the burden of filing documents and
providing public access to them without limiting these agencies' or the
public's access to the information.
The RMP is a multi-purpose document. The CAA requires that the RMP
indicate compliance with the regulations and also include the hazard
assessment, prevention program, and emergency response program. EPA is
mandated to develop a program for auditing RMPs and requiring
revisions, where appropriate. The RMP, therefore, must include enough
data to allow the implementing agency to determine, through review of
the RMP, whether the source is in compliance with the rule. EPA,
however, believes that the RMP must serve another function; to provide
information to the public in a form that will be understandable and
will encourage the public to use the information to improve the
dialogue with sources on issues related to prevention and preparedness.
To meet both of these purposes, the RMP will consist of the
source's registration; an executive summary that will provide a brief
description of the source's activities as they relate to covered
processes and program elements; and data elements that address
compliance with each of the rule elements. While the public and
implementing agencies could make use of all sections of the RMP, the
executive summary will provide text descriptions and give the source a
chance to explain its programs in a format that will be easy for
communities to read and understand. The data elements will provide the
implementing agency with the basic data it needs to assess compliance
without asking for detailed documentation. The Agency is considering
development of an RMP form where the data elements of the form would
provide the implementing agency with the basic data it needs to assess
compliance without asking for detailed documentation. All data elements
would be checkoff boxes, yes/no answers, or numerical entries.
This approach will provide data that anyone can download or search.
States, communities, trade associations, or public interest groups may
want to use the data or a subset of the data to create databases that
allow them to compare sources in the same industry or same area. For
example, a local entity will be able to download data from all
reporting sources that are similar to ones in its community to
determine whether the quantities stored and process controls used are
typical. The information will provide the public with data that will
enhance their dialogue with sources. It will also help sources and
trade associations to understand practices in their industries and
identify practices that could be used to reduce risks. The risk
management program documentation will remain at the source and will be
available for review by EPA and the implementing agency.
G. Air Permitting
The SNPRM discussed the relationship between section 112(r) and CAA
air permitting requirements for sources subject to both provisions.
Under the CAA, air permitting authorities must ensure that sources are
[[Page 31674]]
in compliance with applicable requirements to issue a permit. Because
section 112(r) is an applicable requirement, EPA has identified in the
final rule the permit conditions and the actions owners or operators
and air permitting authorities must take to ensure compliance. The
permit must identify part 68 as an applicable requirement and establish
conditions that require the owner or operator of the source to submit
either a compliance schedule for meeting the requirements of part 68 by
the date specified in Sec. 68.10(a) or, as part of the compliance
certification submitted under 40 CFR 70.6(c)(5), a certification
statement that, to the best of the owner or operator's knowledge, the
source is in compliance with all requirements of this part, including
the registration and submission of the RMP. The owner or operator must
also submit any additional relevant information requested by the air
permitting authority or designated agency to ensure compliance with the
requirements of this section. If a permit is already issued that does
not contain the provisions described above, then, the owner or operator
or air permitting authority shall initiate permit revision or reopening
according to the procedures in 40 CFR 70.7 or 71.7 to incorporate the
terms and conditions as described above. EPA also allows the state to
assign the authority to implement and enforce these requirements to
another agency or agencies (the ``designated agency'') to take
advantage of resources or accident prevention expertise that might be
available in these other agencies. Finally, the air permitting
authority or designated agency must: (1) Verify that the source owner
or operator has registered and submitted an RMP or a revised plan when
required; (2) verify that the source owner or operator has submitted
the proper certification or compliance schedule; (3) for some or all
sources, use one or more mechanisms such as, but not limited to, a
completeness check, source audits, record reviews or facility
inspections to ensure that permitted sources are in compliance; and (4)
initiate enforcement action, based on the requirements of this section,
as appropriate.
H. Other Issues
In the SNPRM, EPA discussed three other issues raised by
commenters: accident information reporting, public participation, and
inherently safer technologies. EPA has decided not to develop any
requirements related to these issues at this time. Although EPA
continues to believe that accident reports that provide more detail on
the causes and impacts of accidents could be useful, the Agency has
decided to limit such reporting required under this rule to the five-
year accident history mandated by the CAA. When necessary, EPA will use
its authority to investigate individual accidents and to seek
additional information to the extent authorized by CAA section 114
(i.e., to determine compliance with this rule and CAA section
112(r)(1), to support further rule development, and to assist research
on hazard assessment).
Secondly, the Agency encourages sources, the public, and local
entities to work together on accident prevention issues, but believes
that the wide variety and large number of sources subject to this rule
make any single mandatory approach to public participation
inappropriate. RMP information should be used as the basis for dialogue
between the community and sources on accidental release prevention,
risk reduction and preparedness for emergency response. Industry and
the public should continue to use the LEPC as a mechanism for this
dialogue.
Finally, EPA does not believe that a requirement that owners or
operators conduct searches or analyses of alternative process
technologies for new or existing processes will produce significant
additional benefits. Many commenters, including those who support these
analyses, indicated that an assessment of inherently safer design
alternatives has the most benefit in the development of new processes.
Industry generally examines new process alternatives to avoid the
addition of more costly administrative or engineering controls
associated with a design that may be more hazardous in nature. Although
some existing processes may be judged to be inherently less safe than
others, EPA believes most of these processes can be safely operated
through management and control of the hazards without spending
resources searching for unavailable or unaffordable new process
technologies. Application of good PHA techniques often reveals
opportunities for continuous improvement of existing processes and
operations without a separate analysis of alternatives. EPA encourages
owners or operators to continue to examine and adopt viable alternative
processing technologies, system safeguards, or process modifications to
make new and existing processes and operations inherently safer.
Through the process and prevention program information in the RMP,
sources can demonstrate, and users of the RMP information can observe
and promote, progress toward safer processes and operations.
EPA is considering the development of incentives and awards to
stimulate inherently safer alternative research and development, public
outreach and education, and risk communication efforts. The Agency
welcomes ideas and participation in this effort.
III. Discussion of Comments
EPA received 1220 comments, including 180 relevant comments
submitted for the List Rule, 757 comments on the NPRM, and 283 comments
on the SNPRM. The commenters represented 92 chemical manufacturers, 81
other chemical users, 111 petroleum industry companies, 174 industry
trade associations, 40 other trade associations, 58 agricultural supply
retailers, 102 propane retailers, 132 explosives users, 29 water
treatment facilities, 26 utilities, 66 state agencies, 63 local
governments, 8 other Federal agencies, 52 academics and consultants, 61
environmental groups, 6 labor unions, and 31 private citizens. The
remaining 88 letters were requests for extensions of the comment
period, interim or duplicate sets of comments, or had been sent to the
incorrect docket. The major issues raised by the commenters are briefly
addressed below; a complete presentation of the Agency's response to
the comments received on this rulemaking is available in the Risk
Management Program Rule: Summary and Response to Comments in the docket
(see ADDRESSES).
Many commenters requested that EPA's list be identical to OSHA's
list of highly hazardous substances and no thresholds should be less
than OSHA's. These comments were addressed in the final list rule (59
FR 4478; January 21, 1994) and background material related to these
issues is available in docket number A-91-74 (see ADDRESSES).
A. Tiering
Commenters on the NPRM suggested that EPA create different levels
of requirements for sources that pose different risks. In the SNPRM,
EPA proposed three tiers: a low hazard tier for sources whose worst-
case release would not affect any public or environmental receptors of
concern; a medium hazard tier for sources that were not eligible or
covered by the low or high hazard tiers; and a high hazard tier based
on either industry sector accident history and number of employees or
simply based on the number of employees. Generally, commenters were
concerned that all processes at a source would need to be eligible for
Program 1 before any process could be. EPA has revised the rule to
clarify that eligibility for any tier
[[Page 31675]]
(Program) is based on process criteria, not source. If a process meets
Program 1 criteria, the owners or operators need only meet Program 1
requirements for that process even if other processes at the source are
subject to Program 2 or Program 3.
1. Rationale. Only 2 of the 57 commenters opposed tiering arguing
that the CAA mandates that all covered sources be required to complete
a full prevention program and that Congress had considered and rejected
exemptions. One commenter argued that EPA had already accounted for
``differences in size, operations, processes, class and categories of
sources'' in developing the list and thresholds. Most commenters
supported tiering as an appropriate way to recognize different levels
of risks and to allow sources and emergency responders to focus on the
highest risk processes.
EPA disagrees that the CAA requires all covered processes to comply
with the same detailed risk management program. EPA listed regulated
substances because of their inherent hazards, such as toxicity and
volatility. EPA did not consider, nor does the CAA indicate that it may
consider, ``differences in size, operations, processes, class and
categories of sources'' in selecting chemicals or setting thresholds.
In establishing section 112(r)(7) requirements, however, Congress
clearly recognized that a ``one-size-fits-all'' approach may not be
appropriate for these regulations and directed EPA to consider these
factors in the development of the accident prevention regulations.
Furthermore, EPA strongly disputes the assertion that it has exempted
any source from regulation by creating different programs for different
sources. As noted below, all covered processes will be addressed in
RMPs that contain hazard assessment, prevention, and response
information, as required by statute.
2. Program 1 vs. Program 2 and Program 3 Criteria. Commenters
generally supported Program 1 for low-risk sources, but argued that
few, if any, sources would qualify because the requirements were too
stringent.
a. Potential for Offsite Impact. Commenters generally agreed that
sources that can demonstrate no offsite impact should be eligible for
Program 1, but only public health should be considered, not
environmental impacts. Others stated that only sources posing a threat
of ``considerable'' impacts should not be eligible for Program 1. One
commenter stated that EPA's worst-case scenario is unrealistic and its
use as a Program 1 trigger is unreasonable. Other commenters want EPA
to allow site-specific modeling for the offsite consequence analysis,
rather than look-up tables.
In today's rule, EPA specifically allows owners or operators to use
site-specific air dispersion modeling for their offsite consequence
analyses. EPA disagrees that offsite impacts should be limited to
``considerable'' impacts. When offsite impacts are possible, it may be
reasonable to implement some additional measures to reduce accidental
releases, especially when the burden of measures such as additional
training or safety precautions is low. Programs 2 and 3 provide
flexibility to allow source-specific consideration of the appropriate
level of effort. Program 1 requires no additional prevention measures,
which is only categorically justifiable if such measures would not
reduce offsite impact. It is reasonable to couple a no impact criterion
with a conservative worst-case scenario to conclude categorically the
public would not benefit from additional prevention measures. If no
impact can be demonstrated for a conservative worst-case release, then
no impact is likely to occur for any other release event, and the
process could be judged to pose a low threat to the surrounding area.
EPA has decided that potential impact on environmental receptors
resulting from a worst-case scenario will not be a criterion to
determine eligibility for Program 1. EPA agrees that very little, if
any, data exist on the potential acute environmental impacts or
environmental endpoints associated with listed chemicals upon
accidental release. In addition, the offsite consequence distances
estimated using human acute toxicity or overpressure effects may not be
directly relevant to environmental effects. However, owners or
operators will be required to document in the RMP the presence of such
receptors within the distance determined for the worst case. EPA
believes that natural resource agencies and the public will be able to
benefit from the environmental receptors information in the RMP in
discussions with the source.
b. Accident History for Program 1. Many commenters objected to
accident history as a Program 1 criterion, arguing that a process that
had a significant accidental release in the previous five years may
have been changed to reduce or eliminate future events and public
impact. Several commenters suggested that such processes that otherwise
meet Program 1 criteria should remain eligible, but be required to
justify and document the changes. Some commenters also objected to
EPA's proposed definition of significant accidental release, arguing
that many companies and emergency responders conservatively evacuate or
shelter-in-place during minor incidents. Under the proposed definition,
these actions disqualify a process from Program 1 even if there were no
offsite impacts. Some commenters stated that the accident history
provision was unnecessary because, by definition, a Program 1 process
is not capable of an accidental release that could affect public
receptors.
EPA has decided to retain the accident history criterion for
Program 1 processes, excluding events with evacuations and shelterings
in place, and to drop the definition of significant accidental release.
Program 1 eligibility is not a one-time exercise; owners or operators
must certify in each RMP that no qualifying releases have occurred
since the previous RMP submission and provide current worst-case
release data indicating no offsite impacts are anticipated in the
future. Program 1 criteria and accident history provide owners or
operators an opportunity to demonstrate to the community ongoing
excellence in accident prevention and an incentive to search for and
implement ways, such as inventory reduction, to reduce the potential
for offsite impacts associated with large scale accidental releases.
Further, the unique circumstances surrounding past accidents can
provide a reality check on the theoretical modeling and worst-case
scenario claims used for the offsite consequence assessment and serve
to verify that administrative controls and passive mitigation measures
work as intended. EPA decided to delete public evacuations or
shelterings-in-place as criteria for Program 1 eligibility. EPA is that
inclusion of these criteria in Program 1 eligibility may create a
perverse incentive not to report releases and it may encourage sources
and local emergency officials to take more chances during an event when
there may be potential exposures that do not rise to the endpoint
specified in this rule but would otherwise be worthy of precautionary
actions by the source or by local officials. If the evacuation or
sheltering takes place because of a concern for public exposure to an
endpoint as specified in this rule, then public receptors necessarily
would be under the worst case distance and the process would not be
eligible for Program 1 under the criteria of the rule. Owners or
operators of processes that meet Program 1 eligibility requirements are
required to report a 5 year accident history for that process. If local
[[Page 31676]]
emergency planners, first responders or the public have concerns about
processes in Program 1 because of a past evacuation or sheltering-in-
place event, then mechanisms under EPCRA could be used to gather more
information from the source about its prevention program (such as EPCRA
sections 302(b)(2) [designation of a facility if it does not already
handle extremely hazardous substances listed under section 302] and
303(d)(3) [provision of information to the emergency planning
committee]) and involve the source in emergency planning. Sources and
local first responders should be discussing evacuation and sheltering-
in-place criteria and decisions as part of emergency response planning.
c. Other. Many commenters asked that specific industries such as
ammonia refrigeration, retail fertilizer outlets, all flammables, and
all non-PSM sources be assigned to Program 1. EPA disagrees because
each source has unique surroundings that must be considered in the
worst-case assessment and each source must demonstrate favorable
accident history. All ammonia refrigeration units covered by this rule
are already subject to OSHA PSM; many of these have had accidents that
affected the community and should be required to complete the
requirements of the hazard assessment and emergency response program
and provide the community with full RMP information. According to the
industry, a typical ammonia fertilizer retailer handles 200 tons of
ammonia. Some retailers may be very geographically isolated and can
qualify for Program 1, but EPA expects that most will be subject to
Program 2. Given the large quantity of ammonia involved, EPA considers
it important that the community have information on offsite
consequences from these sources and that the owner or operator takes
the necessary steps to address accidental release prevention and
emergency response.
EPA expects that some sources handling flammables will qualify for
Program 1 because the distance to a 1 psi overpressure is generally
less than distances to toxic endpoints. Nonetheless, those sources
handling flammables in sufficient quantity to generate a potential
offsite impact should provide the community with information on hazards
and address prevention and response steps. Many sources handling
flammables are already subject to PSM; the only additional steps
required under this rule are completion of the hazard assessment and
emergency response programs and submission of an RMP.
EPA does not agree that non-PSM sources should be assigned to
Program 1. Many of these sources could have an accidental release that
can affect the community. OSHA exempted retailers because they are
covered by other OSHA or state regulations that address workplace
safety, not because they are incapable of having offsite impacts. All
retailers are in Program 2 unless they can meet Program 1 criteria;
thus, they should be taking prevention steps and will be providing the
community with information. Compliance with other existing Federal and
state programs may satisfy many Program 2 prevention requirements,
thereby limiting the burden. In addition, EPA expects to develop model
risk management programs for these sectors. Public sources in states
without delegated OSHA programs are not covered by OSHA PSM because
OSHA is barred by law from regulating them. Nonetheless, these sources
may pose a threat to the community. Today's rule places these sources
in Program 2.
3. Program 2 vs. Program 3 Criteria. In the SNPRM, EPA's preferred
approach assigned sources to Program 3 based on SIC code and number of
employees; sources in specified SIC codes with 100 or more full-time
employees (FTE) would have been subject to the full program in 3 years;
sources in a subset of these SIC codes with 20 to 99 FTEs would have
been subject to the full program in 8 years. The alternative was to
impose the full program on all sources with more than 100 FTEs. Most
SNPRM commenters submitted suggestions and arguments about this
approach.
a. Number of Employees. Only two commenters supported using the
number of employees as the sole criterion, arguing it would be the
easiest approach to implement with the greatest amount of industry
participation. Commenters opposed it because the number of employees
proposed does not reliably correlate with risk, hazard, or quantity on
site, and because it could act as an incentive to reduce employment. In
addition, some commenters stated that smaller sources may have fewer
resources to manage hazards and, therefore, may pose a greater risk to
the public.
EPA agrees and has deleted the number of employees as a Program 3
criterion. Although size of a source in the manufacturing sectors may
be related to the quantities on site and complexity of the processes,
many other sources may have similar characteristics with fewer
employees. Complexity is more directly associated with the type of
industry (i.e., SIC code) than with number of employees; a highly
automated process may involve fewer employees and be more complex than
a more labor intensive process. Quantity, if relevant, can be directly
measured rather than indirectly by number of employees. In addition,
EPA was concerned that the data on which the Agency based its proposed
approach may not be representative of all accidental releases. These
data, drawn from reports to the National Response Center and EPA
regions, appear to indicate that larger sources have more and larger
accidental releases than do smaller sources. This finding, however, may
in part reflect different levels of reporting, rather than different
levels of accidents. Both Federal and state officials report that the
number of releases has risen in recent years as more sources learn
about their reporting obligations. EPA has decided that, because the
processes within the SIC codes basically handle the same chemicals in
the same way, smaller sources should not be moved to a different
Program based on the number of employees.
b. SIC Code. Fifty-seven commenters, particularly those in the oil
industry, utilities, and public systems, supported the use of SIC codes
based on accident history; 28 commenters opposed it. Supporters argued
that industry accident records represented a reasonable criterion for
identifying high-risk sources. If an entire industry has a long history
without accidental release, it may indicate that the materials handled
and handling conditions generate a smaller potential for serious
releases or that the industry is effectively controlled by government
or industry standards. Some commenters argued that industry accident
histories reflect underlying risk better than individual source
accident histories because accidents are rare events; a source with no
accidental releases over the previous five years is not necessarily
safe.
Commenters opposing the use of SIC codes stated that the approach
is arbitrary, that accidents with only onsite effects should not be
used, that sources in other industry sectors handle similar quantities
and pose similar risks, and that sources within an industry that have
successful risk management practices are penalized by a few isolated
sources within the industry.
EPA has decided to retain the use of SIC codes, adding SIC 2865
based on further review of accident histories, and to add coverage by
the OSHA PSM standard as a separate criterion for Program 3. EPA
selected the SIC codes by analyzing accident data filed by
[[Page 31677]]
sources in response to EPA's request for information in the Accidental
Release Information Program (ARIP). ARIP collects data from certain
sources that report releases under CERCLA section 103. EPA selected the
SIC codes that showed a high frequency of the most serious accidents
across a significant percentage of all sources within the SIC code to
avoid mischaracterizing an industry based on isolated, problematic
sources. Data on the selection criteria were summarized in the SNPRM
and the docket at the time of the SNPRM. The accident history of the
cyclic crudes industry (SIC code 2865) is similar to that of the
categories selected. EPA disagrees that only offsite impacts should be
considered; accidental releases that caused death, hospitalizations, or
injuries on site are also of concern because they indicate significant
safety problems that could lead to releases that cause impacts offsite.
The SIC codes selected by EPA are basically the same ones OSHA selected
for its PSM program inspection focus. EPA disagrees that sources are
``penalized'' by this approach because owners or operators of processes
in these SIC codes have an opportunity to present their safety record,
demonstrate the success of their accident prevention programs, and
communicate with the local community the basis for their risk
management practices. Sources that receive Merit or Star status in the
OSHA Voluntary Protection Program will be favorably distinguished from
others in the same industry when implementing agencies are selecting
sources for audits (see section III.T.1 below).
EPA agrees that serious accidents occur infrequently even at
sources with poor safety practices and that industry-wide accident
records provide a better mechanism than the accident history at a
single source for identifying those sectors whose chemicals and
processes may lead to serious releases. A high proportion of the
sources in some SIC codes reported releases; EPA's analysis
specifically took into account the number of reports from individual
sources to avoid selecting an SIC code because of a small number of
sources with serious safety problems.
The OSHA PSM already applies to most covered processes in the
selected SIC codes. EPA expects that there will be fewer than 400
additional processes assigned to Program 3 that are not already subject
to the OSHA PSM standard at the approximately 1,400 sources in these
SIC codes and that all of these sources will already have other
processes covered by OSHA PSM. Consequently, fulfilling the RMP
requirements imposes little additional burden.
EPA decided to include all covered processes currently subject to
the OSHA PSM standard in Program 3 to eliminate any confusion and
inconsistency between the prevention requirements that the owners or
operators of such processes must meet. EPA's Program 3 prevention
program is identical to the OSHA PSM standard. Including OSHA PSM
processes in Program 3, therefore, imposes no additional burden on
these processes; the only new requirements for such processes are the
hazard assessment, emergency response program, and the RMP, which are
the same under Programs 2 and 3.
c. Site-Specific, Risk-based Criteria. Many commenters stated that
Program assignment should be based on site-specific risk-based
criteria. Accident history is one such criterion and is discussed
separately in Section III.A.3.d. Other criteria suggested include
population density or proximity, quantity on site, number of substances
held above the threshold, process conditions, toxicity, volatility,
alternative release scenario results, or combinations of these factors
as a risk index.
EPA agrees with commenters that Program assignments should be risk-
based to the extent possible; however, as the variety of suggestions
indicates, a considerable number of variables would need to be
considered. EPA knows of no standard approach or equation that is used
and generally accepted. The variety of suggestions indicate the
likelihood that any proposed formula would meet opposition. No
commenter provided a method to comprehensively address these factors on
a nation-wide basis.
An important consideration for EPA in developing the rule
provisions for Program assignment was to avoid undue complexity,
confusion, and resource expenditure by sources and implementing
agencies implementing the rule's criteria. To some extent, EPA has
incorporated risk factors, including site-specific factors, in
determining which sources are eligible for which Program. For example,
Program 1 eligibility already considers the potential for offsite
impacts; any process for which there are no public receptors within the
distance to an endpoint from a worst-case release may be eligible for
Program 1, provided there have been no releases with certain offsite
consequences within the previous five years. Today's rule allows
sources to consider passive mitigation and administrative controls in
conducting the worst-case release analysis. Such site-specific
considerations affect the extent of potential exposure to a worst-case
release, and thus are reflected in the Program 1 eligibility criteria.
Elements of risk such as process complexity and accident history are
also reflected the design of Program 2 and Program 3 requirements and
the assignment of processes to these Programs. Program 2 sources
generally handle and store regulated substances, but do not react or
manufacture them. EPA believes Program 2 sources can take prevention
steps that are less detailed than those in the OSHA PSM standard and
still accomplish accident prevention that is protective of any
population nearby. Program 3 is reserved for processes already subject
to the OSHA PSM standard and processes with high accidental release
histories. The SIC codes with an accident history selected by EPA for
Program 3 are typically complex processes. The PSM standard was
designed for, and is particularly appropriate for, these processes.
EPA takes issue with the appropriateness of some of the suggested
factors. Meteorological conditions vary too much to be considered in
determining a risk level. Chemical quantity alone does not accurately
relate to risk because the location and handling conditions can
dramatically change the potential for exposures.
In addition, EPA has implementation concerns about a detailed,
national, multi-factor, risk-based approach, were it to be feasible.
States such as Delaware have used a simple version of a risk-based
approach and found that it created serious problems for the state and
the sources. Smaller sources and those without technical staff have had
great difficulty in implementing the approach and have had to rely on
state officials to determine applicability for them. Delaware
specifically recommended that EPA not attempt implementing a similar
approach on a national basis because of the burden it imposes on the
state and the confusion and uncertainty it creates for sources.
Delaware has fewer than 100 sources; nationally, EPA estimates that
66,000 sources will be subject to the rule, approximately 62,000 of
which are outside of the chemical and refining sectors. If implementing
agencies had to help most of these sources determine the index score
and Program for each process, not only would the burden on the agencies
be extreme, but implementation would also be delayed. Furthermore, were
EPA to simply iden
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
tify risk factors without an index and leave the
determination of Program
[[Page 31678]]
level to sources or implementing agencies, the process for such site-
specific determinations would be even more complex and resource
intensive for sources and implementing agencies; it would create
disincentives for a state to become involved and to take on the role of
an implementing agency. EPA believes it is better to have sources and
agencies focus their resources on prevention activities.
EPA considered, but decided against, a less comprehensive risk-
based approach using proximity or population density as criteria for
distinguishing between Program 2 and 3. EPA recognizes that accidental
releases from sources near or in densely populated areas may harm more
individuals and be perceived to pose a greater risk than other sources.
However, as stated above, EPA believes that the type of process, its
complexity and accident history should be considered for Program 2 or 3
assignment, regardless of the number of people potentially exposed. In
other words, EPA does not believe the streamlined Program 2 prevention
elements should apply to a complex Program 3 process just because fewer
persons could be potentially exposed or that the Program 3 prevention
elements should apply to a Program 2 process because more people could
be potentially exposed. EPA believes that populations offsite should be
protected from harm based on the type of process; the Program 2
prevention elements, properly applied to the expected types of Program
2 processes, serves to protect off-site populations, just as the
Program 3 prevention elements for complex processes serves to protect
offsite populations.
If Program assignments were based on the alternative release
scenario results, sources would not have the flexibility and latitude
in today's rule for these scenarios because more definite criteria
would need to be considered to ensure the proper scenarios and results
are assessed. This places more emphasis and burden for sources on the
offsite consequence assessment rather than on accident prevention and
communication with the public and first responders. Furthermore,
because active mitigation includes process and control equipment that
may fail, considering such equipment in evaluating risk would not be
appropriate without detailed review by the source and oversight by the
implementing agency.
Some commenters suggested yet another variation of a less
comprehensive, ``risk''-based approach that would have EPA use a site-
specific analysis of likelihood of release to assign Program levels.
Many of the same difficulties in developing a ``risk index'' for
determining Program assignments would apply to an attempt to
incorporate likelihood in a more sophisticated manner than EPA was able
to do in its analysis of accident history by SIC code. In addition to
the substance-specific properties considered as part of the chemical
listing criteria, the site-specific likelihood of a release depends on
a number of factors, including the appropriateness of the equipment in
use, the maintenance of that equipment, operator performance, and
safety systems and their performance. Evaluating site-specific
likelihood of release requires data on each of these items; such data
rarely exist especially for complex processes where a variety of
equipment must be evaluated along with the performance of multiple
operators and maintenance workers. Using surrogate data (e.g.,
manufacturer's failure rate data) introduces error of an unknown
magnitude to the analysis. Such analyses are very costly and produce
results that are, at best, questionable.
EPA also believes that assessing the likelihood of a release at
most sites for site-specific individualized Program-level
determinations is neither technically feasible nor cost-effective. In
most cases, the data do not exist to conduct a meaningful analysis;
where they do exist, the cost of developing a defensible analysis and
overseeing it could well exceed the cost of compliance with the rule.
Such an approach would resemble a permit program, which would be
resource-intensive for sources and implementing agencies. EPA
determined that the simpler approach for assigning sources to Program 1
would provide regulatory relief for those sources that could not affect
the public while allowing other sources to devote their resources to
prevention activities rather than to analyses that would be subject to
legal challenges.
EPA notes that sources have the flexibility to implement
appropriate accident prevention measures based on the hazards and risks
discovered in the hazard review or process hazard analysis. The
structure of Programs 2 and 3, therefore, reflect site-specific risk
criteria. Further, the purpose of the risk management program and RMP
effort is to prevent accidents and facilitate local level dialogue
about the risks, prevention measures, and emergency response effort in
place at the source. The local community and first responders may have
far different concerns that should, and can be addressed better through
today's approach than those reflected by a risk index approach.
d. Accident History. Some commenters argued that EPA should assign
sources to Program 3 based on the accident history of the source. One
commenter suggested that any source with no accidental release that
exceeded a reportable quantity (as defined in CERCLA) for the previous
five years should be in Program 2. Others argued that a source should
be in Program 2 if it had no significant accidental release in the
previous five years. Some commenters said that a one-release standard
was too stringent and that two or more significant accidental releases
should be allowed before a source was assigned to Program 3. Another
commenter suggested that a source with no significant accidental
releases in the past five years and with few potentially impacted
neighbors should be placed in Program 2.
Other commenters opposed this approach, arguing that, in many
cases, sources take steps to prevent recurrences following a serious
release. In some cases, the offsite impacts from releases are minor and
would not justify assigning a source to a particular Program. Other
commenters stated that the absence of an accidental release can be
indicative of lower risk, but it can also simply mean that a release
has not yet occurred. Several commenters noted that a five-year time
period is statistically insignificant because accidental releases are
infrequent events.
EPA agrees that source-specific accident history is not a
reasonable basis for assigning processes to Programs 2 and 3. Given the
relative infrequency of serious accidents, a five- or even ten-year
period without an accident may not be indicative of safe operations. In
addition, the criteria necessary to define the types of past accidental
release for the purposes of program classification would need to be
based on a wide variety of variables and site-specific factors, which
would lead to confusion and unnecessary complexity. Factors such as
weather conditions at the time of the release, rather than the size of
a source or its management practices, often determine whether a release
has offsite consequences. EPA believes that accident history is
appropriately used on an industry-wide basis as described above for
selection of Program 3 sources. If accidental releases with
consequences appear to occur at a large proportion of sources within an
SIC code, where similar processes, equipment and chemicals are used,
then it is reasonable to conclude that
[[Page 31679]]
processes in that SIC code pose a greater likelihood of a high hazard
release than others. This approach removes the need for at least one
accident to occur at every source that EPA believes ought to be
assigned to a particular Program, especially when such accidents are
rare events. EPA is also concerned that using source-specific accident
history as a criterion would create an incentive for sources to fail to
report releases. Finally, as EPA has stated, assignments to Program 2
and 3 also consider the appropriateness of the prevention steps for the
types of sources. EPA believes that both Programs move sources to
greater accident prevention.
e. Other. Some commenters asked that the implementing agency be
given discretion to move a source into a different Program based on
local concerns and knowledge. EPA notes that states have the authority,
under the CAA, to impose more, but not less, stringent standards than
EPA (see CAA section 112(r)(11)).
A few commenters suggested that Program 2 be limited to sources for
which a model risk management program had been developed. The models
would be designed to reflect risks associated with categories of
sources that all use the same type of equipment and handle the
substances in the same way (e.g., propane retailers and users, ammonia
retailers). EPA considered this approach and decided that the Program 2
prevention program provides a better, generic prevention approach for
processes for which the more detailed PSM program would be
inappropriate. Limiting Program 2 to those industrial sectors where
industry-specific models are feasible would place some manufacturing
sources at a disadvantage simply because their chemical uses,
processes, and equipment were too varied to allow development of a
model or because there are too few sources to justify use of EPA or
industry resources to develop a model. In addition, if EPA were to
limit Program 2 to sources with model programs, Program 2 regulations
would need sufficient specificity to enforce the use of these models;
otherwise, sources would be able to ignore both PSM and the models. EPA
is also concerned that codifying the model plans could stifle
innovation in safety practices. If industry codes or other Federal
regulations on which parts of the models may be based were updated, EPA
would have to revise its models; given the time needed to propose and
adopt regulations, sources might have to delay implementation of new
systems and, in some cases, might be caught between complying with a
revised EPA or OSHA regulation or state law or complying with the
model. Consequently, EPA decided it was better to have models available
as guidance, but not require compliance with them. Further, EPA
believes that the key elements of good accident prevention practices
are captured within the requirements of the Program 2 prevention
program. Model programs and plans are likely to build on these
approaches, making it easier for sources in Program 2 to use models
that are later developed by others.
EPA is working with industry to develop model risk management
programs and RMPs for ammonia refrigeration systems, propane
distributors and users, and water treatment systems. EPA also expects
to develop models for ammonia retailers and wastewater treatment
systems. EPA encourages other industrial sectors to work together on
additional model development.
4. Program 1 Requirements. Commenters were generally opposed to
posting signs, and certification of no environmental impact.
a. Certification of No Environmental Impact. Many commenters stated
that it would be ``virtually impossible'' to certify ``no potential for
environmental impacts,'' as required by the SNPRM. Commenters said that
the definition of environmental impact was too vague, that the list of
environments suggested in the SNPRM was too broad, and that the
language seemed to require a full environmental consequence assessment,
making the requirement impossible. One commenter noted that companies
would find it difficult to assert that there could be ``no
environmental impacts'' even after an environmental consequence
assessment reveals insignificant impacts. Two commenters suggested that
EPA substitute ``low potential for environmental impact'' or ``no
potential for long-term, adverse environmental impact.'' Other
commenters requested that environmental impact be dropped or that the
requirement be changed to mirror the Program 1 eligibility criteria
with an indication in the RMP that no environmental receptors of
concern were within the worst-case distance to an endpoint.
As described above in section III.A.2.a. Potential for Offsite
Impact, EPA has decided not to make the presence of environmental
receptors a part of the eligibility criteria for Program 1 and has
deleted the certification requirement. Instead, owners or operators of
all covered processes will have to identify in the RMP any
environmental receptors that are within the distance potentially
affected by the worst case.
b. Signs. Commenters generally opposed the SNPRM requirement that
sources with Program 1 processes post signs warning of the hazards on
site if the only regulated substances present at the site above the
threshold quantity were listed for flammability. Commenters stated that
local and state fire and safety codes often already require such signs.
In addition, sources are already required under EPCRA section 312 to
file annual inventories with the LEPC and fire department that identify
hazards on site. Signs would have fulfilled the emergency response
program requirements for a source. Because Program 1 eligibility will
now be determined on a by-process basis rather than by source-wide
criteria and because EPA has revised the emergency response program
provisions as noted below, EPA has dropped the requirement for signs.
c. Emergency Response Program. In the SNPRM, EPA asked whether
additional emergency response planning and coordination should be
required for Program 1 processes. Some commenters supported this
requirement, while others stated that most sources are already covered
by EPCRA and participate in community response planning. Commenters
stated that because the worst-case release could not reach public
receptors, such efforts were not necessary.
In the final rule, EPA is requiring the owner or operator of a
Program 1 process to ensure that any necessary response actions have
been coordinated with local response agencies. EPA believes that local
responders may become involved in an incident, even if the public is
not threatened. No additional CAA-related planning activities are
required, however.
d. Other. Many commenters stated that, since Program 1 processes
generate no offsite impact, they should be exempt from this rule. One
commenter objected to Program 1 because members of the public,
particularly first responders and business visitors, could still be
hurt by a release. Other commenters suggested that the annual EPCRA
section 312 form could be amended to indicate that a source was covered
by the rule, replacing the RMP registration form.
The CAA requires that all sources with more than a threshold
quantity of a listed substance register an RMP, perform a hazard
assessment, and develop accidental release prevention and emergency
response programs. Therefore, total exemption of processes that meet
Program 1 criteria is not
[[Page 31680]]
possible. See S. Rep. No. 228, 101st Cong., 1st session, at 208
(``Senate Report'') (precursor of RMP provision mandating hazard
assessments for sources that exceed threshold for listed substance);
136 Congressional Record S16927 (daily ed. October 27, 1990) (remarks
of Sen. Durenburger, sources with more than a threshold quantity are
subject to regulations); 136 Cong. Rec. H12879 (daily ed. Oct. 26,
1990)(remarks of Rep. Barton)(all users of hazardous chemicals are
required to plan for accidents). Moreover, even if an exemption for
processes that exceed a threshold were permissible, the owner or
operator would need to take steps that are equivalent to the hazard
assessment to establish eligibility for the exemption. The offsite
consequence analysis is the most significant burden for a Program 1
process under this rule. The minimal additional actions required in
today's rule for Program 1 simply establish a record of eligibility and
a response coordination mechanism.
EPA recognizes that emergency responders and site visitors could be
hurt by an accidental release from any process, but notes that
responder safety is covered by OSHA and EPA under the HAZWOPER
regulations. It is the owners' or operators' responsibility to inform
visitors about the hazards and the appropriate steps to take in the
event of an accidental release from any process subject to today's
rule.
Finally, EPA has based the registration information requirements in
today's rule on the EPCRA section 312 Tier II form. The CAA requires
that the RMP be registered with EPA. Because the EPCRA form is not
submitted to EPA, it would not substitute for registration with EPA
either in its present or amended form. Completion of the registration
portion of the RMP should impose little additional burden on owners or
operators. However, EPA recognizes the information overlap between the
Tier II form and the RMP registration and is considering use of the RMP
registration for the Tier II reporting requirement.
5. Program 2 Requirements. Commenters were generally concerned
about the lack of specific requirements for the Program 2 streamlined
prevention program and emergency response requirements, and how
compliance with other regulations would be incorporated.
a. Streamlined Program. Commenters stated that the Program 2
prevention program does not provide much, if any, regulatory relief
because sources would need to address most of the ten elements of the
Program 3 prevention program. Others said that the majority of the
sources affected by the rule are already covered by OSHA PSM and
chemical industry standards, the Program 2 requirements do not satisfy
the CAA mandate, and that only a full process hazard analysis would
meet the hazard assessment requirements under section 112(r). Another
commenter argued that EPA's statement that sources must comply with the
CAA's general duty clause was inadequate because EPA has not used, and
has no policy about, the clause.
EPA agrees that the preferred approach in the SNPRM did not provide
sufficient detail on Program 2 prevention requirements to distinguish
it from Program 3. EPA solicited comments on whether Program 2 should
require additional, specific prevention steps. Today's rule provides
specific requirements as discussed in section I.D above and in Section
IV below. In the RMP, the owner or operator will be required to report
on other Federal or state regulations, industry codes, and standards
used to comply with prevention elements as well as any major hazards,
process controls, mitigation systems, monitoring and detection systems
examined in the hazard review. This streamlined prevention program
addresses many of the PSM elements as the basis for sound prevention
practices, but is tailored to processes with less complex chemical
uses; this program provides considerable regulatory relief by
substantially reducing the documentation and recordkeeping burden of
PSM. In addition, EPA will provide guidance and model risk management
programs to further assist Program 2 processes in developing and
maintaining good prevention program practices.
EPA disagrees that only a full PHA would meet the requirements of
the Act. Section 112(r) does not contain detailed requirements for the
hazard assessment, beyond the key components of accidental release
scenarios and a five-year accident history. EPA believes that a PHA is
more appropriately considered an element of a prevention program, such
as PSM. The statute does not mandate detailed PHA engineering analyses
for all sources, whether as part of the hazard assessment or the
prevention program. EPA believes PHAs involve a more detailed
engineering analysis than is necessary to prevent accidents at Program
2 sources. The ``hazard review'' provisions of Program 2 should be
sufficient to detect process hazards at these simpler processes. EPA
recognizes that although hazard assessments and PHAs or process hazard
reviews are discreet elements that can be performed independently,
hazard assessment results can enhance PHA or process hazards reviews
and in turn, the results of the PHA or review can enhance the hazard
assessment. EPA encourages owners or operators to make maximum use of
the PHA or review and hazard assessment information to manage risks and
prevent accidents.
Finally, sources with Program 2 requirements, as well as sources
with Program 1 or 3 requirements, must comply with the general duty
clause of CAA Section 112(r)(1). The general duty clause provides that
owners and operators have a general duty to identify hazards that may
result from accidental releases, design and maintain a safe facility,
and minimize the consequences of any releases that occur. The general
duty clause is a self-executing statutory requirement: it requires no
regulations or other EPA action to take effect. The clause provides a
separate statutory mechanism that EPA will use in appropriate
circumstances to ensure the protection of public health and the
environment. To date, EPA has undertaken several inspections designed
in part to determine compliance with Section 112(r)(1). As appropriate
at a future date, EPA may issue policies or guidance on application of
the general duty clause.
b. Other Regulations. Commenters generally agree that OSHA PSM,
HAZWOPER, the OSHA hazard communication standard (29 CFR 1910.1200),
and NFPA-58 are examples of other regulations or voluntary industry
standards that could be cited to meet the requirements of a Program 2
prevention program. Commenters requested that EPA provide a matrix or
crosswalk that indicates which other regulations, standards, and codes
met specific requirements. One commenter opposed the use of other
regulations or referencing of voluntary industry standards, stating
that, other than OSHA PSM, no other OSHA standard addresses safety
precautions or maintenance. Another commenter objected that this
approach creates another documentation burden without any commensurate
benefit.
EPA agrees that the SNPRM preferred approach for Program 2 was not
specific enough and has provided more detailed requirements in this
rule as noted above. EPA continues to believe that many of the Program
2 prevention requirements are already met through industry compliance
with existing regulations and voluntary standards. For example, ammonia
retailers whose processes are designed to meet the OSHA ammonia
handling rule (29 CFR
[[Page 31681]]
1910.111) should be able to meet the Program 2 requirement that the
process design meets good engineering practices. This effectively
allows sources to cite compliance with these other regulations and
standards instead of developing specific, duplicative elements solely
to comply with Program 2. EPA will also use these existing regulations
and standards as it develops model programs.
c. Emergency Response Program. Commenters supported considering
HAZWOPER programs as adequate to meet the Program 2 emergency response
program. A few commenters said that HAZWOPER is inadequate because it
does not consider offsite impacts or the environment. Some commenters
also said that coverage of a source by an EPCRA community emergency
response plan should be sufficient. Others said that any contingency
plan developed under Federal or state law should be considered
sufficient because the requirements under these programs are generally
consistent with EPA's proposed emergency response program; one
commenter noted that, for flammable processes, compliance with 29 CFR
1910.38 should be adequate because the response is usually evacuation
of employees. Five commenters opposed any requirement that sources with
Program 2 processes conduct drills or exercises because they represent
lower hazards.
Consistent with its efforts to consolidate Federal emergency
planning requirements, EPA has included language in the final rule that
will allow any source in compliance with another Federal emergency
response program that includes the elements specified in this rule to
use that program to meet these requirements. In particular, this
applies to response plans prepared in accordance with the National
Response Team's Integrated Contingency Plan Guidance (``one plan'')
(NRT, May 1996). EPA believes that sources should have a single
response plan; creation of multiple response plans to meet slightly
different Federal or state standards is counterproductive, diverting
resources that could be used to develop better response capabilities.
EPA recognizes that some sources will only evacuate their employees
in the event of a release. For these sources, EPA will not require the
development of emergency response plans, provided that appropriate
responses to their hazards have been discussed in the community
emergency response plan developed under 42 U.S.C. 11003 for toxics or
coordinated with the local fire department for flammables.
B. Offsite Consequence Analysis
1. Worst-Case Release Scenario. EPA proposed in the NPRM to define
the worst-case release as the ``loss of all of the regulated substance
from the process * * * that leads to the worst offsite consequences''
and that the scenario should assume ``instantaneous release.'' Hundreds
of commenters stated that instantaneous loss of the total process
contents is not technically feasible for complex systems and,
therefore, represents a non-credible worst case that would provide no
useful information to the public or the source for risk communication,
accident prevention, and emergency preparedness. Many commenters also
argued that this approach differed from the release modeling
assumptions contained in EPA's Technical Guidance for Hazards Analysis,
which has been the basis for community emergency planning activities
under EPCRA. Although some commenters were generally opposed to the
concept of worst case, most of the commenters were supportive of an
approach similar to that taken in the Technical Guidance.
In response to these comments, EPA proposed in the SNPRM to
redefine a worst-case scenario as the release, over a 10-minute period,
of the largest quantity of a regulated substance resulting from a
vessel or process piping failure. The 10-minute release time is drawn
from the Technical Guidance for Hazards Analysis. EPA believes this
duration is reasonable and accounts for comments arguing that an
``instantaneous'' release is unrealistic for large-scale releases.
EPA has decided to adopt the SNPRM approach for worst-case toxic
vapor releases in the final rule because most of the SNPRM comments
agreed that the redefinition is generally more credible and that the
10-minute time frame particularly applies to vapor releases. Although
some commenters argued that this approach still does not account for
all process-specific conditions, EPA believes it is reasonable and
representative of accident history. EPA notes that owners or operators
may use air dispersion modeling techniques that better account for
site-specific conditions, provided modeling parameters as specified in
the rule are applied. This release scenario will apply to substances
that are gases at ambient conditions, including those liquefied under
pressure. Gases liquefied by refrigeration only may be analyzed as
liquids if the spill would be contained by passive mitigation systems
to a depth greater than 1 cm.
Under the SNPRM, worst-case liquid spills were assumed to form a
pool in 10 minutes, with the release rate to the air determined by
volatilization rate. EPA recognized that this approach differs from the
use of an instantaneous release in the Technical Guidance, which EPA
cited as an alternative to its favored approach. The few comments
received were divided between support of this approach and arguments
that the 10-minute time frame was unrealistic for liquid releases
(particularly for pipelines and connected equipment) and thus did not
properly account for process-specific conditions.
EPA's approach for the liquid worst-case scenario in the final rule
is similar to the Technical Guidance methodology, in which the total
quantity of liquid in a vessel or pipeline is instantaneously spilled
upon failure, considering administrative controls or passive mitigation
discussed below. The rate of release to the air is not instantaneous;
it is determined by the volatilization rate of the spilled liquid,
which depends on the surface area of the pool formed after the spill.
The pool surface area is determined by assuming the spilled liquid
rapidly spreads out and forms a one-centimeter deep pool, unless
passive mitigation systems contain the pool to a smaller area. EPA
believes this approach is reasonable because total vessel or pipeline
failure will generally lead to immediate and rapid spillage followed by
pool volatilization. Further, if the liquid were assumed to spill over
a particular time frame rather than instantaneously, owners or
operators would need to calculate the amount of vapor emitted to the
air as the liquid is spilled, in addition to the volatilization rate as
the pool spreads out and reaches its maximum size. Computer-based
models are available for such calculations, but they are complex and
require considerable data input to use. EPA believes that liquid
spillage from a worst-case scenario is likely to be extremely rapid
such that the most significant portion of the release rate is given by
pool volatilization; consequently, liquid release time is not
necessary. Liquid spill rates and times could be reflected in
alternative scenarios discussed below.
As proposed, the worst-case for flammables assumes that the total
quantity of the substance in the vessel or pipeline vaporizes,
resulting in a vapor cloud explosion. If the vapor cloud explosion is
modeled using a TNT-equivalent methodology, then a 10 percent yield
factor must be used.
EPA requested comment in the SNPRM on whether the worst-case
scenario should include an additional
[[Page 31682]]
amount of substance that could potentially drain or flow from process
equipment interconnected with the failed vessel or pipeline. Many
commenters opposed this option, suggesting that it is technically
uncertain and would have little value in terms of what they saw as
EPA's intended purpose for the worst-case assessment. Other commenters
requested that ``interconnected equipment'' be defined and clarified.
Given the assumption of rapid release associated with initial equipment
failure, EPA agrees that determination of the spill rate from connected
piping and equipment is likely to be technically complex, very
different from that of the quantity in the vessel or failed pipeline,
and likely to extend the duration of volatilization rather than
affecting the rate overall. Therefore, EPA has not included this
requirement in the final rule.
EPA also sought comment in the SNPRM on options for the
determination of the relevant quantity of regulated substance in a
vessel or process piping for a worst-case release scenario: the maximum
possible vessel inventory (design capacity) at any time without regard
for operational practices and administrative controls; the maximum
possible vessel inventory unless there are internal administrative
controls (written procedural restrictions) that limit inventories to
less than the maximum; or historic or projected maximum operating
inventories without regard to administrative controls. EPA preferred
that the maximum vessel inventory including administrative controls
that might limit or raise the vessel quantity to be used in the worst-
case assessment and reported in the worst-case release analysis section
of the RMP. If the quantity used in the assessment were exceeded (e.g.,
an administrative control were ignored), then the source would be in
violation of the rule (i.e., failure to perform a worst-case analysis)
and RMP reporting unless the administrative control was revised, the
worst-case analysis updated to reflect any changes in the analysis, and
a revised RMP submitted. This approach acknowledges the efforts by
sources to increase process safety by intentionally reducing the
inventory of regulated substances (e.g., vessels kept at half capacity
to allow for process upsets, emergency shutdowns, and deinventorying or
maintenance turnarounds). EPA notes that at some sources, as a result
of inventory reduction measures, the largest quantity may be held in a
transportation container that is loaded or unloaded at the source (See
section P.2).
A few commenters supported the other options, noting that
administrative controls may fail, potentially generating a larger
scenario. However, the majority of commenters supported EPA's preferred
approach based on the historical reliability of such controls at many
sources and the role that such a provision could play in encouraging
their use at additional locations. Other commenters asked whether
mechanical controls, alone or in combination with administrative
controls, should be incorporated into the proposal. Although mechanical
controls may also serve to limit the quantity, EPA has decided not to
include them in the quantity determination for the worst-case release
scenario because the definition for administrative control as ``written
procedural mechanisms used for hazard control'' provides a backup for
possible failure of mechanical controls. For more discussion of
mechanical controls, see section III(B)(2), mitigation systems, below.
In the SNPRM, EPA considered providing the implementing agency with
the discretion to determine the appropriate quantity for the worst-case
release scenario on a site-specific or industry-specific basis. EPA
noted in the SNPRM, and most of the few comments received on this issue
agreed, that implementing agency discretion would result in increased
administrative burden on the implementing agency and cross-
jurisdictional differences in the methodology used for the worst-case
analyses. EPA has decided not to incorporate this approach in the final
rule. States, however, may impose more stringent requirements, such as
additional modeling, under state authority.
In the NPRM worst-case definition, EPA did not specify what
constitutes or how to determine the worst offsite consequences. Some
commenters indicated that without clear direction, EPA's proposed worst
case might not actually capture the scenario that leads to the most
severe offsite impact. In the SNPRM, EPA indicated that the worst-case
scenario should be the scenario that generates the greatest distance to
a specified endpoint (i.e., the toxic vapor cloud or blast wave from a
vapor cloud explosion that travels the farthest).
EPA recognizes that there may be other release scenarios that could
generate a greater distance than the release from the largest vessel or
pipeline. Consequently, EPA has added paragraph (h) to Sec. 68.25 to
require owners or operators to consider other scenarios if those
scenarios generate greater distances to the endpoint than the distance
generated by the largest vessel or pipeline scenario. Owners or
operators need to consider releases from smaller vessels if those
vessels contain the substance at higher temperature or pressures or if
they are closer to public receptors. In some cases, the largest vessel
will be a storage vessel where the substance is held at ambient
conditions. A reactor vessel may hold a smaller quantity, but at high
pressures and temperatures, generating a release that could travel
farther offsite to an endpoint. Vessel location is important,
especially at large sources. A smaller vessel located nearer to the
stationary source boundary may generate a greater impact distance than
a larger vessel farther away. This difference may be particularly
important for flammables, because impact distances for flammables are
generally shorter than those for toxic releases.
2. Mitigation Systems
a. Worst-case scenario. In the NPRM worst-case scenario, EPA
indicated that sources must assume that both active and passive systems
fail to mitigate the release. Commenters were generally split between
those who wanted passive (as well as certain redundant active)
mitigation systems to be included and those who argued that historical
evidence from catastrophic releases suggests that the worst case should
assume the failure of all such systems. Those who supported mitigation
argued that inclusion provides a more credible scenario for improved
risk communication, accident prevention, and emergency planning.
EPA proposed in the SNPRM to include passive mitigation systems in
the worst-case release scenario as long as the system is capable of
withstanding, and continuing to function as intended during and after a
destructive event, such as an earthquake, storm, or explosion, which
causes a vessel or pipeline to fail. Passive systems such as dikes,
catch basins, and drains for liquids, and enclosures for both liquids
and gases, could be assumed to mitigate the release. Some commenters
opposed this approach, arguing again that the worst case should account
for the possibility of passive mitigation failure. The majority
supported this approach because the assumption that passive systems
specifically designed and installed as protection against a potential
catastrophe fail is unrealistic. Furthermore, the approach recognizes
and encourages prevention through additional passive mitigation and
supports more realistic emergency
[[Page 31683]]
planning. A few commenters also suggested that active mitigation
measures that were unlikely to fail (e.g., redundant or backup systems)
should be considered, for similar reasons. Historical data, however,
indicate that certain events compromise active mitigation systems
(e.g., explosions have destroyed fire water piping systems).
For the final rule, EPA has decided to adopt the SNPRM approach.
Passive mitigation systems would be defined as those systems that
operate without human, mechanical, or other energy input and would
include building enclosures, dikes, and containment walls. EPA also
agrees that reservoirs or vessels sufficiently buried underground are
passively mitigated or prevented from failing catastrophically. In this
case, sources should evaluate the failure of piping connected to
underground storage for the worst case or alternative case scenarios.
In addition to the requirements outlined in Sec. 68.25, EPA provides
guidance on how passive mitigation would affect release rate and
distance to endpoints in its RMP Offsite Consequence Analysis Guidance.
b. Alternative scenarios. EPA initially proposed that sources could
include passive mitigation systems in their alternative scenario
assessments, but that active mitigation systems (e.g., excess flow
valves, fail-safe and automatic shutdown valves, scrubbers, flares,
deluge systems, and water curtains) would be assumed to fail. Some
commenters generally opposed inclusion of any mitigation systems in the
hazard assessment, while other commenters noted that the alternative
release scenario should recognize and encourage industry accident
prevention efforts, specifically the installation of additional
mitigation systems, and support more realistic emergency planning.
EPA proposed in the SNPRM to allow sources to consider passive and
active mitigation measures in the alternative release scenario
assessment. Commenters supported this approach and EPA has decided to
retain it in the final rule. EPA agrees that the assumption that both
passive and active mitigation measures fail when such measures are
specifically designed and installed to mitigate catastrophic releases
is unrealistic for the alternative scenarios. Although not required,
EPA notes that sources may choose to apply passive and active
mitigation measures to a worst-case type scenario to illustrate the
capabilities of such systems to reduce the potential impact of a worst-
case accidental release. In addition to the requirements outlined in
Sec. 68.28, EPA provides guidance in its RMP Offsite Consequence
Analysis Guidance on how passive and active mitigation would affect
release rate and distance to endpoints.
3. Populations Affected. EPA described in the NPRM preamble certain
locations (e.g., schools and hospitals) where sensitive populations
might be present and proposed in the rule that owners or operators
identify potentially exposed populations as part of the offsite
consequence assessment. Commenters generally opposed requirements for
population surveys; several commenters suggested that Census data or
other readily available population information should be sufficient,
while other commenters indicated that the LEPC or other local planning
entities were the appropriate entity to prepare these data.
EPA believes owners or operators need to be aware of the magnitude
of impact on populations associated with the worst-case and alternative
scenarios. However, EPA learned that, although much of this information
is readily available, identification of some sensitive populations
could require considerable effort, especially if the distance to an
endpoint generated in the offsite consequence assessment is large or
crosses several jurisdictions. Consequently, EPA proposed in the SNPRM
that offsite populations be defined using available Census data;
information on the number of children and people over 65 could be
considered a proxy for sensitive populations, thereby accomplishing the
same objective as the proposed rule. EPA also indicated that it has
developed a geographic information system, LandView, that will
facilitate analysis of resident populations. (LandView can be ordered
from the U.S. Bureau of the Census customer service at (301) 457-4100.)
In general, commenters agreed with the SNPRM approach. However, some
commenters questioned the accuracy of potentially ten-year-old Census
data and requested additional flexibility, or a greater role for local
government, in this analysis.
EPA has decided to adopt the approach outlined in the SNPRM for the
final rule. Sources will be allowed to use available Census data to
estimate populations potentially affected. Sources may update these
data if they believe the data are inaccurate, but are not required to
do so. Populations shall be reported to two significant digits. Because
Census data are limited to residential populations, sources will also
have to note in the RMP whether other, non-residential populations,
such as schools, hospitals, prisons, public recreational areas or
arenas, and major commercial or industrial areas, are within the
distance to an endpoint. These institutions and areas are those that
can generally be found on local street maps. Sources will not be
required to estimate the number of people who might be present at these
locations. EPA provides further guidance on the identification of
affected populations in its RMP Offsite Consequence Analysis Guidance.
4. Number of Scenarios In the NPRM. EPA required a worst-case
release scenario for each regulated substance. Commenters requested
clarification, because one substance could be present in more than one
process at the source and sources would need to select the ``worst''
worst case for substances in multiple processes. In addition, one
process may have several, similar listed substances and multiple worst-
case analyses of similar substances (e.g., flammables) would not
provide additional useful information to the public.
EPA proposed in the SNPRM that sources report in the RMP one worst-
case release scenario representative of all toxic substances present at
the source and one worst-case release scenario representative of all
flammable substances present at the source. Even though additional
screening analyses to determine the appropriate worst-case scenario
might be necessary, this approach reduces to a maximum of two the
number of worst-case analyses reported in the RMP by a source. In
general, commenters favored this approach, particularly for flammables,
which do not produce markedly different adverse effects. A few
commenters argued that a single toxic substance should not be
considered representative of all toxic substances at a source, since
there are considerable differences in toxic endpoint and adverse
affect.
EPA has decided to adopt the approach outlined in the SNPRM for the
final rule: report one worst-case release scenario for all flammables
and one worst-case release scenario for all toxics at the source. EPA
notes that the worst-case scenario is designed principally to support a
dialogue between the source and the community on release prevention,
and not to serve as the sole or primary basis for local emergency
planning. The ``worst'' worst-case release scenario will inform the
broadest range of individuals that they may be impacted by the source
so that they may participate in dialogue with the source about
prevention, preparedness, and emergency response actions. Lesser worst-
case release scenarios would not
[[Page 31684]]
inform any person not already within the range of the ``worst'' worst
case even though the health effects may be different; consequently, EPA
believes that only a single toxic worst case is necessary. However,
sources must also analyze and report another worst-case release
scenario (for flammables or toxics) if such a release from another
location at the source potentially affects public receptors different
from those potentially affected by the first scenario (e.g., if a
large-sized source is located between two communities and has a covered
process adjacent to each community).
In the NPRM, EPA did not specify the number of alternative
scenarios to be reported for each regulated substance. EPA noted in the
preamble that this approach, while providing flexibility, may also
create uncertainty about what EPA will consider to be an adequate
number of scenarios. While a few commenters argued against scenarios
beyond the worst case, many commenters supported a requirement for a
maximum of two: the worst case plus one additional scenario; others
supported a maximum of three. Many of the commenters noted that local
entities could request further information under EPCRA section
303(d)(3) authority if they desired. At the same time, a number of
commenters suggested that this determination should be made by the
source based on their scenario analysis, perhaps in coordination with a
local agency.
In the SNPRM, EPA proposed to require one alternative release
scenario for all flammable substances at the source and one alternative
scenario for each toxic substance at the source. As discussed above,
the listed flammable substances behave similarly upon release and have
the same endpoint, while each toxic substance has a different endpoint
and different atmospheric behavior. EPA sought comment on whether one
toxic substance alternative scenario could represent all toxic
substances at a source or in a process. Although commenters generally
agreed with the approach for flammables, only a few argued that a
single alternative scenario for all toxics was also appropriate; most
others supported EPA's proposal.
Upon review of the comments, EPA has decided to adopt the approach
outlined in the SNPRM: an alternative release scenario must be reported
in the RMP for each toxic held above the threshold at the source, and
one alternative scenario must be reported that represents all
flammables held above the threshold. As EPA noted in the SNPRM preamble
and commenters echoed, the differences in the hazards posed by
individual toxic regulated substances are significant and should be
reflected in the alternative scenarios. This information has
significant value for emergency planning purposes and could increase
public interest in prevention at the source.
5. Technical Guidance The proposed rule required sources to
evaluate the consequences (vapor cloud dispersion, blast wave, or
radiant heat modeling calculations) associated with the worst-case and
alternative release scenarios. EPA did not specify a methodology or
models, expecting that sources would have, contract for, or find the
expertise and modeling tools needed to perform potentially complex
modeling calculations. Because of the potential burden associated with
this approach, EPA began working on the development of a set of simple,
generic tools that could provide useful results and become part of the
technical guidance for the rule. Based on its experience in developing
the Technical Guidance for Hazards Analysis and on advice from
commenters, EPA understands that a generic methodology depends on
approximations to capture a wide variety of situations, will likely
ignore site-specific conditions, and potentially may generate overly
conservative or less realistic estimates of offsite impacts. In spite
of these limitations, EPA believes that generic modeling tools are
capable of supporting greater understanding of the hazards posed by
substances and emergency planning. Commenters agreed this approach
would reduce the burden on smaller sources unfamiliar with such
activities as long as use of the guidance was not mandatory, and the
guidance addressed specific industry sectors or was used as part of a
screening process to focus resources on significant problem areas. Many
commenters recommended that sources be given the flexibility to use any
appropriate modeling techniques for the offsite consequence analysis to
take advantage of expertise and to apply site-specific considerations
to the hazard assessment. Other commenters argued that EPA should
establish mandatory guidelines or specify certain dispersion modeling
tools to make release scenario results more comparable across sources.
Some commenters were concerned about the development of modeling tools
by EPA outside of the rulemaking process and requested the opportunity
to participate in their development.
In the SNPRM, EPA stated it would develop a generic methodology and
reference tables in an offsite consequence assessment guidance to
assist sources with the analyses required by the rule. EPA believed
that the Technical Guidance could be revised, expanded, and updated to
address the rule requirements. The methodologies and tables would be
subject to public review prior to publication of the final rule; once
finalized, the tables would replace the Technical Guidance. EPA added
that sources that wish to conduct more sophisticated modeling could do
so, provided the techniques used account for the modeling parameters
described in the rule. Alternatively, EPA proposed that only Program 2
sources use the guidance; Program 3 sources would be required to
conduct their own dispersion modeling.
Most commenters supported the SNPRM approach, especially if sources
were given the option to use their own site-specific modeling. Some
commenters argued that the generic methodology and reference tables and
the option for site-specific modeling should be applied to processes in
all three Programs, while others suggested that they be applied only to
a specific Program. In recognition of these comments, EPA prepared
draft modeling methodologies and reference tables, provided an
opportunity for their review (see 61 FR 3031, January 30, 1996), and
has published them as the RMP Offsite Consequence Analysis Guidance.
EPA intends to conduct peer review of the RMP Offsite Consequence
Analysis Guidance and will revise it as appropriate. For the final
rule, EPA will allow sources in all Programs to use the guidance or
conduct their own site-specific modeling, provided the modeling
techniques used account for the parameters described in the rule. For
example, EPA's Office of Air Quality Planning and Standards has
prepared a publicly available modeling tool called TScreen that can
assist owners and operators with consequence assessments. EPA also
encourages local emergency planners, fire departments, and others who
use tools such as CAMEO/ALOHA or other modeling techniques to assist
businesses in their community who may need help in their modeling
efforts. EPA believes the final rule approach takes advantage of the
broad range of expertise and modeling tools already available and will
provide more useful results at the local level for chemical emergency
prevention, preparedness, and response. This approach will also
stimulate accidental release modeling research, new and existing model
development, and model validation to generate new tools for better
understanding of hazards and the behavior of substances in accidental
release situations.
[[Page 31685]]
6. Modeling Parameters. a. Endpoints. In the NPRM, EPA did not
specify toxic or flammable substance endpoints that must be used in the
offsite consequence assessment modeling. Most commenters recommended
that EPA specify endpoints to provide a consistent basis for modeling;
many favored the use of existing standards or guidelines, primarily the
emergency response planning guidelines (ERPGs) developed by the
American Industrial Hygiene Association for toxic substances. For
flammables, commenters suggested overpressure, heat radiation, and
explosion or flammability limits. In addition to other specific
standards, a few commenters recommended a hierarchy of values if
certain levels for some chemicals were not available.
In the SNPRM, EPA indicated that it would select one endpoint for
each toxic substance for use in the offsite consequence assessment
methodology and sought comment on whether it should use a single
endpoint to the extent possible (e.g., the Immediately Dangerous to
Life and Health (IDLH) value developed by the National Institute for
Occupational Safety and Health (NIOSH), unless one does not exist for a
substance), or a hierarchy of endpoints (e.g., ERPGs; if one does not
exist, then the IDLH; and finally toxicity data if no other value is
available). EPA also asked whether overpressure or both overpressure
and radiant heat effects should be used for flammable substance
endpoints. Some commenters supported the use of ERPG values for the
toxic substance endpoint, or a hierarchy of values beginning with the
ERPG. Others opposed IDLH or the IDLH divided by 10 for technical
reasons.
EPA agrees with commenters that one toxic endpoint should be set
for each substance. The endpoint for each listed toxic substance is
provided in Appendix A to the final rule. The endpoint, applicable
whether the source uses the EPA guidance or conducts site-specific
modeling described below, is the AIHA ERPG-2 or, if no ERPG-2 is
available, the level of concern (LOC) developed for the Technical
Guidance, corrected where necessary to account for new toxicity data.
The LOCs that were based on IDLHs have been updated only if the IDLHs
were revised between the original LOC listing in 1987 and the 1995 IDLH
revisions. The most recent IDLH revisions were not used because they
are based on a methodology that EPA has not reviewed; the previous IDLH
methodology was reviewed by EPA's Science Advisory Board for use as
LOCs. EPA chose the ERPG-2 first because ERPGs are subject to peer
review and are specifically developed by a scientific committee for
emergency planning to protect the general public in emergency
situations. The ERPG-2 represents the maximum airborne concentration
below which the committee judges that nearly all individuals could be
exposed for up to an hour without experiencing or developing
irreversible or other serious human health effects or symptoms that
could impair their ability to take protective action. EPA rejected the
ERPG-3, which is a lethal exposure level, because it is not protective
enough of the public in emergency situations. About 30 listed toxic
substances have ERPGs. EPA chose to use LOC levels for substances with
no ERPG because LOCs have been peer reviewed by EPA's Science Advisory
Board, they are intended to be protective of the general public for
exposure periods of up to an hour, they are widely used by the
emergency response planning community, and, for a majority of the
listed toxic substances, there are no acceptable alternatives. EPA
notes that, for substances with both values, the LOC is comparable to,
and in some cases is identical to, the ERPG-2.
EPA recognizes potential limitations associated with the ERPG and
LOC and is working with other agencies to develop Acute Exposure
Guideline Limits (AEGLs). See Establishment of a National Advisory
Committee for Acute Exposure Guideline Levels (AEGLs) for Hazardous
Substances, (60 FR 55376; October 31, 1995). When these values have
been developed and peer-reviewed, EPA intends to adopt them, through
rulemaking, as the toxic endpoint for substances under this rule.
As proposed, vapor cloud explosion distances will be based on an
overpressure of 1 psi, and for analysis of worst-case releases, a yield
factor of 10 percent. Yield factors (the percentage of the available
energy released in the explosion process) can vary considerably. EPA
selected 10 percent to generate conservative worst-case consequences.
For flammables, EPA selected a radiant heat exposure level of 5 kW/
m2 for 40 seconds as recommended by the commenters, and, for vapor
cloud fire and jet fire dispersion analysis, the lower flammability
limit (LFL) as specified by NFPA or other recognized sources.
b. Meteorology. In the NPRM, EPA proposed that sources model the
downwind dispersion of the worst-case release scenario using an F
atmospheric stability class and 1.5 m/s wind speed and model the
alternative release scenarios using both the worst-case conditions and
the meteorological conditions prevailing at the source. EPA did not
revise the meteorological assumptions in the SNPRM.
Several commenters argued that the worst-case meteorological
conditions were too conservative or not applicable on a national basis
and that site-specific conditions should be used, while others agreed
that for worst case, minimum wind speeds and the most stable
atmospheric conditions should be used. In the final rule, EPA has
decided that sources must conduct worst-case dispersion modeling using
an F atmospheric stability class and a 1.5 m/s wind speed. A higher
wind speed or less stable atmospheric stability class may be used if
the owner or operator has local meteorological data applicable to the
source that show that the lowest recorded wind speed was always greater
or the atmospheric stability class was always less stable during the
previous three years.
In the final rule, EPA also requires sources to conduct alternative
release scenario dispersion modeling using the typical meteorological
conditions applicable to the source. If meteorological data are not
available, typical conditions in the RMP Offsite Consequence Analysis
Guidance may be used. EPA believes typical meteorological conditions
should be used to generate realistic hazard assessments for
communication with the public and first responders and for emergency
planning.
C. Consideration of Environmental Impact
The issue of whether and how environmental impacts should be
addressed in the hazard assessment and the rule in general drew
considerable comment. The comments divide into three questions: Should
EPA consider environmental impacts from accidental releases? If so,
which environments should be identified? What constitutes an
environmental impact?
1. Inclusion of Environmental Impacts. Environmental groups argued
that the CAA requires assessment of potential impacts to the
environment and that the environmental receptors listed in the SNPRM
should be broadened. One commenter stated that since the CAA Amendments
of 1990 strengthened limits of continuous air toxic emissions, wildlife
is now threatened more by accidental releases. However, the majority of
commenters on this issue, principally industry groups, opposed
consideration of the environment because it is adequately protected by
other environmental statutes, environmental protection in section
112(r) relates only to emergency
[[Page 31686]]
response, and Congress intended in section 112(r) for the environment
to be addressed only to the extent that human health is protected.
Several commenters argued that flammable substances were unlikely to
generate environmental impacts. Commenters also stated that many
industries have voluntarily developed nature reserves around their
sources, often at the urging of government agencies. Additional
regulations based on ``environmental'' impact consideration would
``penalize'' these sources for their efforts. Finally, two commenters
noted that EPA's endpoints are based on acute human effects; applying
these to the environment may not be valid.
EPA disagrees that section 112(r) was not intended to protect the
environment as well as human health. Although section 112(r)(5) links
the threshold quantity to human health, section 112(r)(3) requires EPA
to select substances that could impact human health and the
environment. EPA agrees that the only time sections 112(r)(7)(B)(I) and
(ii) mention protection of the environment is in conjunction with
emergency response; however, this is also true for protection of human
health. Congress did not intend to limit concern about either impact
strictly to emergency response procedures; Congress may not have
mentioned either impact relative to prevention because the act of
preventing an accident eliminates the impact on both. When accidents
occur, human health and the environment need protection. By mentioning
both impacts in the response or post accident phase, Congress was
stressing its concern for the environment as well as human health.
Given the integrated nature of the RMP, it would be an inappropriately
narrow reading of CAA section 112(r)(7)(B) to say environmental impacts
must be ignored in hazard assessments and in the design of the
prevention program, but must be accounted for in emergency response. In
addition, section 112(r)(9) provides authority for EPA to take
emergency action when an actual or threatened accidental release of a
regulated substance may cause imminent and substantial endangerment to
human health, welfare, or the environment. Clearly, section 112(r)(9)
allows EPA to take action to prevent, as opposed to simply respond to,
accidental releases to protect the environment. Because section
112(r)(7) is intended to prevent situations that could lead to
emergency orders under section 112(r)(9), it is logical to conclude
that Congress meant EPA to develop regulations that would prevent
accidental releases that could cause environmental damage. Although the
consequences may not be precisely known, EPA believes that impacts
could occur at environmental receptors located within the distance to a
human acute exposure endpoint associated with a worst-case or
alternative scenario because wildlife may be more sensitive or require
less exposure to cause an adverse effect than humans.
2. Environmental Receptors to Be Considered. In the SNPRM, EPA
proposed that sources report in their RMP which sensitive environments
listed by the National Oceanographic and Atmospheric Administration
(NOAA) for the Clean Water Act are within the distance determined by
the worst-case or alternative case scenario. A few commenters argued
that the list should include state and local level analogues to Federal
entities (e.g., state parks), all surface waters that are fishable or
swimmable or supply drinking water, and ground water recharge areas.
Many commenters opposed the NOAA list, arguing that the list is
extremely broad, covers millions of acres in primarily rural areas, and
contains areas that are difficult for both the regulated community and
the government to clearly identify (e.g., habitat used by proposed
threatened or endangered species, cultural resources, and wetlands).
They stated that the NOAA list is not appropriate for this rule because
it represents guidance applicable to offshore sources, and to a limited
number of very large onshore sources, that could have catastrophic oil
spills. A few commenters suggested limiting the list to Federal Class I
areas designated under the CAA prevention of significant deterioration
program, or reducing the list of sensitive areas to national parks and
the designated critical habitat for listed endangered species, and
limiting environmental concern to those accidents that generate a
significant and long-term impact, such as an actual ``taking'' of an
endangered species.
For the final rule, EPA has not used the NOAA list. Instead EPA
requires owners or operators to indicate in the RMP the environmental
receptors located within circles whose radii are the distances to an
endpoint for the worst-case and alternative release scenarios. EPA
agrees with commenters that the locations of certain natural resources
are difficult to identify. Consequently, EPA has defined environmental
receptors as natural areas such as national or state parks, forests, or
monuments; officially designated wildlife sanctuaries, preserves,
refuges, or areas; and Federal wilderness areas, that can be exposed to
an accidental release. All such receptors typically can be found on
local U.S. Geological Survey (USGS) maps or maps based on USGS data.
Habitats of endangered or threatened species are not included because
the locations of these habitats are frequently not made public to
protect the species. Natural resource agencies will have access to the
RMP information and can raise concerns with local officials about
potential harm to these habitats, as necessary. Local emergency
planners and responders may want to consult with environmental
management agencies as part of emergency preparedness.
3. Level of Analysis Required. In the SNPRM, EPA proposed that
sources only identify sensitive environments within the area of the
worst-case release, rather than analyzing potential impacts. A few
commenters opposed this approach, stating that the CAA requires that
sources analyze impacts. Most commenters supported EPA's position
because extensive expertise at considerable cost is required to
adequately assess all environmental impacts associated with the
environments list EPA provided. Commenters stated that this cost would
make fewer resources available for prevention activities and providing
no benefit. Other commenters noted that much of the data needed for
such analyses is not available.
EPA agrees that extensive environmental analysis is not justified.
Irreversible adverse effect exposure level data for the wide variety of
environmental species potentially exposed in an accidental release
event are not available for most of the listed substances. EPA believes
that identification of potentially affected environmental receptors in
the RMP is sufficient for purposes of accident prevention,
preparedness, and response by the source and at the local level.
D. Program 3 Consistency with OSHA PSM Standard
1. Prevention Program. In EPA's original proposal, the prevention
program requirements were based on the elements of OSHA's PSM standard
(29 CFR 1910.119), and some commenters supported this approach. But EPA
added a paragraph to each OSHA prevention program element to explain
the purpose of the provision and, in some instances, added additional
recordkeeping, reporting, or substantive provisions to ensure that
statutory requirements were met. Several commenters argued that these
additions cause confusion and appear to require sources to create two
separate
[[Page 31687]]
prevention programs, which could cause conflicting inspection and
enforcement actions and greater cost for sources that must comply with
both the OSHA and EPA requirements. Many commenters suggested that EPA
simply reference the OSHA requirements.
EPA agrees that the Program 3 prevention program requirements
should be identical to OSHA's PSM standard to avoid confusion and
redundant requirements and to ensure that sources develop one
accidental release prevention program that protects workers, the
general public, and the environment. Therefore, EPA has moved the
Management System requirement (see section I.D) supported by most
commenters to a section separate from the Prevention Program and
deleted the introductory paragraphs and modifications to the PSM
language. The Agency recognizes that many workplace hazards also
threaten public receptors and that the majority of accident prevention
steps taken to protect workers also protect the general public and the
environment; thus, a source owner or operator responsible for a process
in compliance with the OSHA PSM standard should already be in
compliance with the Program 3 prevention program requirements.
EPA did not cross-reference sections of the PSM standard in today's
rule because, under Office of Federal Register requirements at 1 CFR
21.21(c)(2), EPA cannot adopt OSHA's requirements. EPA and OSHA have
separate legal authority to regulate chemical process safety to prevent
accidental releases. Furthermore, cross-referencing the OSHA standard
would be tantamount to a delegation of authority to set standards in
this area from the Administrator of EPA to the Secretary of Labor,
because OSHA would be able to modify the PSM requirements without an
EPA rulemaking under CAA Sec. 307(d). The Senate explicitly considered
and rejected the possibility of the Administrator delegating to OSHA
responsibility for hazard assessment. Senate Report at 226. As that
term was used in the Senate bill, hazard assessment included many of
the elements of PSM.
With the exception of some key terms and phrases, the Program 3
prevention program language in the final rule is identical to the OSHA
standard language (the rulemaking docket contains a side-by-side
analysis of the OSHA standard and EPA rule text with word differences
highlighted). Most of the differences are terms based on specific
legislative authorities given to OSHA or EPA that have essentially the
same meaning:
------------------------------------------------------------------------
OSHA term EPA term
------------------------------------------------------------------------
Highly hazardous substance............. Regulated substance.
Employer............................... Owner or operator.
Facility............................... Stationary source.
Standard............................... Rule or part.
------------------------------------------------------------------------
EPA also agrees with commenters that sound process safety
management systems ideally address chemical accident prevention in a
way that protects workers, the public, and the environment. Since
OSHA's responsibility is to protect workers, there are phrases in the
OSHA standard that are designed to focus employer attention on
accidents that affect the workplace. It could be argued that these
phrases inadvertently exclude consideration of offsite impacts. EPA has
deleted the phrases noted below to ensure that all sources implement
process safety management in a way that protects not only workers, but
also the public and the environment:
------------------------------------------------------------------------
OSHA PSM requirement EPA program 3 requirement
------------------------------------------------------------------------
1910.119(d)(2)(E) An evaluation of the 68.65(c)(1)(v) An evaluation of
consequences of deviations, including the consequences of
those affecting the safety and health deviations.
of employees.
1910.119(e)(3)(ii) The identification 68.67(c)(2) The identification
of any previous incident which had a of any previous incident which
likely potential for catastrophic had a likely potential for
consequences in the workplace. catastrophic consequences.
1910.119(e)(3)(vii) A qualitative 68.67(c)(7) A qualitative
evaluation of a range of the possible evaluation of a range of the
safety and health effects of failure possible safety and health
of controls on employees in the effects of failure of
workplace. controls.
1910.119(m)(1) The employer shall 68.81(a) The owner or operator
investigate each incident which shall investigate each
resulted in, or could reasonably have incident which resulted in, or
resulted in a catastrophic release of could reasonably have resulted
a highly hazardous chemical in the in a catastrophic release of a
workplace. regulated substance.
------------------------------------------------------------------------
EPA also made changes to specific schedule dates to coordinate with
the OSHA PSM requirements, made internal references consistent, and
added a provision to the PHA section specifically grandfathering all
OSHA PHAs and allowing sources to update and revalidate these PHAs on
their OSHA schedule. EPA believes these modifications do not cause
source owners or operators to make major adjustments to their PSM
systems established under OSHA. These minor modifications ultimately
lead to the development of one comprehensive process safety management
system satisfying both OSHA and EPA that works to prevent accidents
affecting workers, the public, and the environment.
EPA also modified the OSHA definition of catastrophic release,
which serves as a trigger for an accident investigation, to include
events ``that present imminent and substantial endangerment to public
health and the environment.'' This modification, in combination with
the changes noted above, ensure that sources covered by both OSHA and
EPA requirements must investigate not only accidents that threate
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
n
workers, but also those that threaten the public or the environment.
EPA agrees with commenters and recognizes that most catastrophic
accidental releases affect workers first. However, the Agency also
believes that there are accidental release situations where workers are
protected but the public and the environment are threatened, e.g.
vessel overpressurizations that cause emergency relief devices to work
as designed and vent hazardous atmospheres away from the workplace and
into the air where they are carried downwind. Although many sources
through the PHA process will have recognized and addressed the
potential impact offsite associated with safety measures that protect
workers (e.g. an
[[Page 31688]]
emergency vent scrubber system), EPA believes that the requirements in
today's rule ensure that all sources routinely consider such
possibilities and integrate the protection of workers, the public, and
the environment into one program.
2. Enforcement. Many commenters expressed concern for conflicting
audit procedures, interpretations, and enforcement actions when EPA and
OSHA auditors inspect the same processes. EPA has no authority to
exempt a source covered under the PSM standard and today's rule from
any prospect of an EPA enforcement action for violations of section
112(r) and EPA regulations issued under it. EPA and OSHA are working
closely to ensure that enforcement actions are based on consistent
interpretations and coordinated to avoid overlapping audits. Such
coordination in enforcement was recognized as an appropriate method for
exercising the Administrator's duty to coordinate the EPA program with
OSHA (Senate Report at 244).
3. Exemptions. Many commenters suggested that the Agency exempt
small businesses or certain industry sectors because the rule is too
costly, some industries are already subject to substantial regulation
by other Federal or state agencies, OSHA exempts certain industries
from the PSM standard, and some sources have effective self-policing
regimes in place.
Regardless of whether the source is covered under some other
Federal, state, or local program, EPA has no authority to exempt a
source that has more than a threshold quantity of a regulated substance
from complying with the risk management program rule (CAA section
112(r)(7)(B)(ii)). EPA established the tiered approach to acknowledge
that different industries pose different potential risks to human
health and the environment and that elements of other regulatory
programs may serve to prevent accidents. EPA believes that owners or
operators can indicate in their Program and RMP how compliance with
other particular regulations and standards satisfies Program or RMP
elements, thereby, avoid duplication. Only those processes in certain
SIC codes or covered by OSHA's PSM standard must implement the full PSM
program under Program 3. A source owner or operator can demonstrate
compliance with the Program 2 or 3 prevention program under today's
rule for a covered process by showing that it complies with the PSM
standard. This approach is consistent with the authority to set
different standards for different types of sources under CAA section
112(r)(7)(B)(I).
E. Relationship to Air Permitting
Several commenters on the NPRM requested that EPA clarify the
relationship between the risk management program and the air permit
program under Title V of the CAA for sources subject to both
requirements. In the SNPRM, EPA indicated that in Title V, section
502(b)(5)(A), Congress clearly requires that permitting authorities
must have the authority to ``assure compliance by all sources required
to have a permit under this title with each applicable standard,
regulation or requirement under this Act.'' EPA further states in part
70.2 that ``Applicable Requirement means * * * (4) Any standard or
other requirement under section 112 of the Act, including any
requirement concerning accident prevention under section 112(r)(7) of
the Act; * * *'' Consequently, EPA must require that air permitting
authorities implementing Title V permit programs be able to assure
compliance with section 112(r). In the SNPRM, EPA attempted to identify
the section 112(r) ``applicable requirements,'' clarify the minimum
content of part 70 permits with respect to these requirements, and to
specify the role and responsibilities of the part 70 permitting
authority in assuring compliance with these requirements.
The sections below address the major issue areas raised by
commenters on the SNPRM. More detail can be found in the Risk
Management Program Rule: Summary and Response to Comments in the
Docket. The SNPRM also addressed the role and responsibilities of the
implementing agency with respect to section 112(r). This issue is
addressed separately in Section R below.
1. General relationship between the part 68 and air permitting
programs. Some commenters agreed with EPA's proposed role for the air
permitting authority with respect to section 112(r), but encouraged EPA
to avoid new, confusing, and duplicative state and source permitting
requirements. A few commenters suggested that all part 68 requirements
should become permit conditions, that it be fully enforced through the
part 70 permitting program, and that anything less violates the CAA.
Most commenters (state air permitting authorities and industry),
opposed EPA's proposal stating that Congress did not intend, and
legislative history does not support, section 112(r) to be implemented
or enforced through the Title V permit program.
EPA agrees that Congress did not intend for section 112(r) to be
implemented and enforced primarily through Title V and recognizes the
potential for confusion and burden on sources and air permitting
authorities associated with section 112(r). EPA believes that the
requirements in today's rule are flexible, impose minimal burden,
address the concerns raised by commenters and satisfy the CAA
requirement for assurance of compliance with section 112(r) as an
applicable requirement for permitting. The requirements apply only to
sources subject to both part 68 and parts 70 or 71; there are no
permitting requirements on sources subject solely to part 68. EPA
agrees that ideally, one authority should implement part 68 oversight;
however, air permitting authorities should not be responsible for
implementation just as implementing agencies should not be responsible
for permitting (see implementing agency discussion in Section R,
below). The air permitting authority has the flexibility under today's
rule to obtain assistance, expertise or resources from other agencies
in fulfilling its responsibilities with respect to section 112(r). This
will foster interaction and coordination of air pollution, pollution
prevention, public and worker safety and health and environmental
programs at the state and local levels leading to more effective
oversight.
2. Impact of EPA's proposal on air permitting programs. Several
commenters stated that EPA's proposal places an unreasonable burden on
air permitting programs because states would need to amend or develop
new legislative authority and implementing regulations which diverts
limited state resources away from the development and operation of more
important routine emissions permit programs.
EPA disagrees that today's rule places an unreasonable burden on
air permitting programs. Part of the approval process for a state air
permitting program is confirmation that states have the authority to
ensure that sources are in compliance with air toxics requirements
under section 112 including section 112(r). The provisions of section
68.215 are sufficient to meet the obligations under part 70. Thus, for
state and local agencies that have approved part 70 programs, states
would need to develop new legislative authorities only if they seek
delegation to implement part 68 beyond the narrow responsibilities
provided in Sec. 68.215 (see Section R, below). State obligations under
Sec. 68.215, which should be covered by permit fees (see section E.11,
below), should not impose a substantial burden on state resources
because the rule streamlines the RMP requirements and establishes
centralized recordkeeping for RMPs.
[[Page 31689]]
3. Part 68 as an ``applicable requirement'' under part 70. As
described above, the CAA requires that air permitting authorities
ensure that sources are in compliance with applicable requirements as a
condition of permitting. In the preamble of previous rulemakings for
part 70 (57 FR 32301), EPA indicated that the definition of
``applicable requirement'' under Title V includes ``any requirement
under section 112(r) to prepare and register a risk management plan
(RMP).'' This explanatory statement preceded development of part 68,
which implements section 112(r)(7). In the SNPRM, EPA proposed more
specific provisions to assure compliance with applicable requirements
for section 112(r) than the part 70 preamble so that air permitting
authority responsibility is clear. EPA believed that all elements of
part 68 are applicable requirements; however, compliance with
applicable requirements could be assured by including generic terms in
permits and certain minimal oversight activities. Together, these steps
ensure that permitted sources fulfill their accident prevention and
information sharing responsibilities.
EPA proposed standard permit conditions that would allow air
permitting authorities to verify compliance with part 68. Commenters
stated that alteration of the part 70 rule definition of the term
`applicable requirement' under the part 68 rulemaking is inappropriate
and that the role of the air permitting authority with respect to
section 112(r) should be defined in part 70 rulemakings rather than in
part 68.
EPA's action today does not alter the definition of ``applicable
requirements'' under 40 CFR 70.2, which already includes ``any
requirement concerning accident prevention under section 112(r)(7).''
Rather, EPA is establishing very simple permit terms and flexible,
minimal oversight responsibilities that will assure compliance with
part 68. EPA disagrees that part 68 cannot establish more specific
terms for permits than those given in part 70 or 71 with respect to
section 112(r). As mentioned in the SNPRM preamble, part 70 does not
preclude EPA from clarifying or even expanding air permitting
responsibilities. Specific permit requirements are useful to clearly
establish the minimum permit conditions and state responsibilities
essential to ensuring compliance with part 68 and to reduce
uncertainties that may lead to overly broad interpretations of the
requirements. However, air permitting authorities still have the
flexibility to establish additional terms for the permit if it so
chooses.
4. Role of the air permitting authority. In the SNPRM, EPA proposed
certain air permitting authority responsibilities necessary to ensure
that sources are in compliance with part 68 for purposes of permitting.
Commenters stated that the role of the Title V permitting authority
should be defined in part 70, not in part 68 and opposed EPA's proposal
arguing that it causes unnecessary confusion for sources. Commenters
also argued that air permitting authorities do not have the relevant
expertise needed and that states should have the flexibility to
implement risk management programs in whichever agency they see fit.
Other commenters argued that air permitting authorities, without
section 112(l) delegation, could not accept the responsibilities
assigned by the SNPRM and that EPA was unlawfully attempting to
delegate the responsibility for implementing section 112(r) to the
state permitting authorities. Several commenters believed the
permitting authority should have no responsibilities beyond those set
forth in EPA's April 13, 1993, policy memorandum from John Seitz,
Director of the Office of Air and Quality Planning and Standards
(OAQPS), to EPA Regional Air Division Directors, available in the
docket because states invested significant resources and effort into
the development of their programs, guided by this EPA memorandum.
However, a state permitting authority stated that the EPA memorandum
did not account for many of the key program elements, including the
necessary incorporation of standard permit conditions. Many commenters
also opposed requiring extensive details or all aspects of part 68
compliance in the permit, finding this approach excessive and overly
burdensome on both state air permitting authorities and sources and
contrary to the law and Congressional intent in that it would have
required section 112(r)(7) to be fully implemented by state permit
programs.
Several commenters were concerned that a single violation of part
68 could potentially be enforced by both the permitting authority and
the implementing agency. One commenter suggested that the only case
where a violation of a part 68 requirement should also be considered a
violation of part 70 would be the failure to register an RMP on time
under the requirements of Sec. 68.12. Another commenter requested that,
at Sec. 68.58(b)(3), EPA should allow the state the discretion to
determine whether a penalty should be assessed. Several commenters,
uncertain how the Programs proposed by EPA in the SNPRM would affect
the role of the permitting authority, suggested that EPA develop a
process to inform states of the tiering approach and to exclude Program
1 and 2 sources from additional permitting requirements.
EPA believes that part 68 should more clearly define the role of
the air permitting authority with respect to section 112(r). Part 70
requirements were established well before part 68 and are therefore
vague. Consequently, EPA is using part 68 to clarify the applicable
requirements, to specify permit terms and to establish the minimum
permit conditions and activities to avoid misinterpretations and to
ensure compliance with part 68. EPA agrees that air permitting
authorities may not have the expertise necessary with respect to part
68; consequently, the requirements in today's rule only specify the
actions the state must take to assure that sources have met their part
68 responsibilities while giving the state flexibility to assign or
designate by agreement entities other than the permitting authority to
carry out these activities. The elements in today's rule are the
minimal components of a successful compliance program; anything less
falls short of the statutory requirements of assuring compliance with
all applicable requirements. EPA also disagrees that it is forcing
delegation on air permitting authorities to implement section 112(r).
As described in the SNPRM and above, air permitting authorities must
ensure that sources are in compliance with applicable requirements for
purposes of permitting. This is not section 112(r) implementation (see
section R below). EPA is merely specifying more clearly the
requirements already upon air permitting authorities; without the
specification given in today's rule, it could be argued that air
permitting authorities are obligated to review and evaluate the
adequacy of RMP submissions. EPA agrees that oversight of the adequacy
of part 68 compliance, including RMPs, is not an appropriate activity
for the air permitting authority and is more appropriately an
implementing agency duty. Delegation of these implementing agency
activities can only be accomplished through a delegation consistent
with part 63, subpart E.
EPA also maintains that the air permitting authority role should be
more specifically defined than that offered by the April 13, 1993,
memorandum. The April 1993 policy was prepared prior to the NPRM and
SNPRM, it does not account for implementation of the risk management
program by the source (as opposed to
[[Page 31690]]
implementation of the plan), and there is no mechanism, such as a
review of the RMP by the permitting authority, to ensure that the plan
contains the elements required by part 68. These deficiencies were
previously indicated by EPA in a June 24, 1994, memorandum from John
Seitz and Jim Makris, Director of the Chemical Emergency Preparedness
and Prevention Office (CEPPO) to EPA Regional Division Directors, which
stated that ``approval criteria in the April 13 memorandum may not be
sufficient to ensure compliance with all `applicable requirements'
established'' in the risk management program rule. EPA acknowledges
that states may have invested considerable resources and effort in
development of air permitting programs based on the April 13, 1993
policy. However, EPA also believes that the minimum requirements and
flexibility offered by today's rule allow air permitting authorities to
fold these activities into their programs with minimal burden. EPA
recognizes that there may be multiple agency oversight related to
permitting and part 68. As mentioned above, today's rule allows the air
permitting authority the flexibility to use other agencies, such as the
implementing agency or a designated agency (upon agreement), to better
coordinate at the state and local level. In addition, EPA must note
that there is no `approval' of either initial or revised RMP
submissions.
EPA agrees that requiring the permit to contain extensive details
of part 68 compliance goes well beyond the need for part 70 permits to
assure compliance with applicable section 112(r) requirements and it
would impose considerable resource and expertise burdens on the
permitting authority. EPA has maintained that it is not appropriate to
include risk management program elements as permit conditions since
these elements will be highly source-specific and subject to change as
the source develops and implements its programs.
While enforcement would primarily occur using part 68 authority,
EPA agrees that the permitting authority also has the authority to
pursue violations under part 70 and sources could be subject to
multiple violations. This is no different from any other standard
promulgated by EPA that becomes an applicable requirement for
permitting. EPA agrees that the air permitting authority has the
discretion to coordinate with the implementing agency with respect to
penalty assessment associated with Sec. 68.58(b)(3) in the SNPRM
(Sec. 68.215(e)(4) under today's rule).
Finally, the tiering (Program) approach benefits sources as well as
air permitting authorities. EPA has simplified the tiering provisions
so sources and air permitting authorities should be able to readily
determine the Program requirements each process must satisfy, leading
to more effective oversight. EPA has also streamlined the RMP reporting
requirements and is working on electronic submission of RMP information
which serve to reduce the burden on air permitting authorities and
implementing agencies.
5. Title V permit application contents. Many commenters stated that
sources regulated under parts 70 or 71 and part 68 should only be
required to certify whether they are subject to section 112(r) in their
initial permit application to allow timely processing. Although EPA
indicated that it did not want the RMP included in permit applications
or in the permit, many commenters stated their opposition because the
additional time required for RMP review could delay permit grants and,
in some states, the RMP could be included in the source's permit.
Several commenters suggested that the air permitting authority should
decide whether it wants the RMP; one commenter stated that sources
would have a significant incentive to comply with such a request, given
the permitting authority's ability to withdraw an application shield.
Others stated that the permitting authority should be prohibited from
asking for the RMP as part of the permit application.
As EPA has indicated, the RMP should not be submitted with the
permit application or made part of the permit. EPA is working to
streamline permit application requirements and has indicated that the
minimum with respect to section 112(r) is a ``check box'' for the
source to note whether it is subject to section 112(r), and either
certification that the source is in compliance with part 68 or has a
plan for achieving compliance. Any other requirements are up to the air
permitting authority. All sources will be required to submit their RMP
to a central point to be specified by EPA and will be immediately
available to local responders and the state which may elect to make it
available to air permitting authorities.
6. Air permit contents. EPA proposed in the SNPRM that each permit
contain standard conditions that address key compliance elements in
part 68 and mechanisms for compliance plans, certifications and
revisions. Although EPA indicated it did not believe the RMP should be
part of the permit, two commenters suggested that it should be included
while most others indicated that it should not or that the air
permitting authority should decide. Several commenters supported no
more than the four conditions proposed in the SNPRM while others
suggested requirements including: prompt development and updating of a
complete RMP; no conditions other than an indication that a source is
subject to part 68; provisions stating the need to register according
to Sec. 68.12; a condition stating that the source will comply with all
part 68 requirements; and a standard provision recognizing that the
implementing agency has the section 112(r) enforcement authority.
Except for the provisions of Sec. 68.215(a), EPA does not believe
that the RMP or all or any portion of the remainder of part 68 should
become permit conditions because the RMP and part 68 elements will be
highly source-specific and subject to frequent change introducing
unnecessary complexity and delaying permit implementation. The
provisions of Sec. 68.215 should allow the air permitting authority to
implement the conditions in a standardized way across many sources with
minimal burden. EPA has revised Sec. 68.215 to require that all permits
contain a statement listing part 68 as an applicable requirement and
that conditions shall be added that require the source to submit a
compliance schedule for meeting the requirements of part 68 or, as part
of the compliance certification all permitted sources must submit under
40 CFR 70.6(c)(5), a certification statement that, to the best of the
owner or operator's knowledge, the source is in compliance with all
requirements of this part, including the registration and submission of
the RMP. EPA had amended the authority citation for part 68 to include
CAA Title V because EPA is promulgating permit terms and oversight
duties. Consistent with parts 70 and 71, the permit shield provisions
of parts 70 and 71 would not apply to the substantive requirements of
part 68 because the detailed substantive requirements of part 68 are
not addressed in the Title V permit or permit application. If a permit
without these conditions has already been issued, then when the permit
comes up for renewal under part 70 or 71 requirements (40 CFR Part
70.7), the owner or operator shall submit an application for a revision
to its permit to incorporate these conditions. The suggested
alternative conditions, not adopted, generally help assure compliance
only with portions of part 68, such as registration or the preparation
of the RMP, or omit critical
[[Page 31691]]
information, such as whether the source is subject to part 68 or what
its compliance status is. The implementing agency's enforcement
authority is apparent on the face of the CAA.
7. Completeness review. As part of ensuring compliance, EPA
proposed in the SNPRM that within a certain time-frame the air
permitting authority must verify that an RMP containing the required
elements had been submitted and indicated in the preamble that it would
assist air permitting authorities by developing a checklist. EPA stated
that this review is independent of completeness reviews required for
permit applications to avoid interfering with the permit process.
Further, air permitting authorities could arrange for other agencies,
including the implementing agency, to perform the completeness review.
EPA also requested comment on whether the permitting authority should
be able to require sources to make revisions to an RMP.
Most commenters disagreed with this proposal arguing that if a
completeness check is necessary, it should be performed by the
implementing agency since most air permitting authorities will not have
the technical expertise (e.g., chemical process safety) required to
adequately review RMPs for technical completeness. Commenters also
argued that a completeness review would be merely procedural, it
duplicates effort without creating any real benefit, it consumes scarce
resources, and it leads to inconsistent RMP review without ensuring the
source is in compliance with risk management program requirements. Some
commenters suggested that the completeness review could be better
defined only as a review of source self-certification that a complete
RMP was submitted rather than a substantive review. Some commenters
generally agreed that completeness checks should be completed within
sixty days. Finally, most commenters argued that only the implementing
agency should be able to require revisions to the RMP. Otherwise,
another revision review, appeal and verification process would be
necessary, duplicating the process already established for the
implementing agency.
Based on these comments, EPA has decided not to require that air
permitting authorities perform a completeness check as part of the
verification of compliance with part 68. EPA has modified the rule
requirements so that the air permitting authority may select for itself
one or more appropriate mechanisms (such as source audits, record
reviews, source inspections or completeness checks) and time-frame in
conjunction with source certifications, to ensure that permitted
sources are in compliance with the part 68 requirements. Without some
kind of oversight, source self-certification is not a sufficient means
of compliance assurance, given that an RMP contains information
essential at the local level for emergency prevention, preparedness,
and response and is not subject to routine, case-by-case review for
quality. These oversight mechanisms do not need to be used on each
source in order to be effective. EPA agrees that the review for quality
or adequacy of the RMP is best accomplished by the implementing agency
on a frequency and scope that may vary. EPA is willing to work with air
permitting authorities on guidance, checklists or other tools to assist
in the development of compliance mechanisms related to the RMP. In
addition, EPA is willing to assist air permitting authorities in
electronic checks once the electronic system for RMP submittal is
developed. EPA emphasizes that if an RMP completeness check is used by
the air permitting authority, it should remain independent of the
completeness determination for the permit application. The RMP will
most likely be submitted at a different time than a permit application,
since almost all permit applications will have been submitted well in
advance of the risk management program rule deadline. If the
completeness check determines that an incomplete RMP has been
submitted, the permitting authority can request additional information
under Sec. 68.215(b) and should coordinate with the implementing agency
on necessary RMP revisions. The completeness checks are facial reviews
of RMPs to verify that there are no omissions. Such checks could be
performed on a select basis and occasionally integrated with a multi-
purpose source inspection conducted to ensure that the air source is in
compliance with its permit.
8. Interaction of the implementing agency and the permitting
authority. In the SNPRM, EPA attempted to delineate the specific
requirements unique to the air permitting authority and the
implementing agency. The role of the state is described in more detail
in E.4 while the implementing agency is discussed in R. Commenters on
the SNPRM suggested that EPA should require the implementing agency to
certify to permitting authorities whether part 68 sources regulated
under part 70 are in compliance with part 68 requirements. Such
certification should be deemed sufficient to ``assure compliance'' with
the applicable requirement under part 70. Other commenters suggested
that the permitting authority could simply consult with the
implementing agency when it believes there is a problem requiring
attention or that the implementing agency should notify the permitting
authority of any problems in part 68 compliance, so that the permitting
authority may then expand the permit conditions accordingly.
EPA does not believe it is necessary to define the interaction
between the permitting authority and the implementing agency. Ideally,
this coordination and interaction should occur at the state or local
level. Coordination of other CAA programs (Title V, SBAP, and other 112
programs) with the 112(r) program will ensure that the programs are
more consistently implemented and enforced, while easing regulatory
burden and providing the public greater access to information. However,
when EPA is the implementing agency, it stands ready to work with air
permitting authorities on oversight associated with permitting and
enforcement of the part 68 requirements. Today's rule also provides the
state the flexibility to assign some or all of its responsibilities by
prior cooperative agreements or memoranda of understanding to the
implementing agency or another state, local, or Federal ``designated
agency.'' EPA recognizes that each state is structured differently and
will have different impediments and opportunities; therefore each state
has the flexibility to place the program in an appropriate agency or
department, including the air permitting agency.
9. The ``designated agency.'' In the SNPRM, EPA proposed to define
the designated agency as the state or local agency designated by the
air permitting authority as the agency responsible for the review of an
RMP for completeness. This provision was designed to give the air
permitting authority the flexibility to obtain expertise from other
agencies to fulfill its responsibilities. Several commenters believed
the SNPRM does not clearly allow the permitting authority to delegate
tasks to a designated agency and the permitting authority should be
able to delegate more than the completeness review, e.g., enforcement.
Some commenters requested that EPA redefine the term to allow
permitting authorities to delegate tasks to EPA or other Federal
agencies; while one commenter argued that EPA should not allow the
permitting authority to designate EPA as the designated agency.
[[Page 31692]]
EPA agrees that the definition should be revised to give the air
permitting authority more flexibility. EPA has dropped the mandatory
completeness review, added broader implementation and enforcement
activities, and included Federal agencies in the designated agency
definition. Thus, a ``designated agency'' may be any state, local, or
Federal agency designated by the state as the agency to carry out the
provisions of Sec. 68.215, provided that such designation is in writing
and, in the case of a Federal agency, consented to by the agency. The
parties to any such designation should negotiate the terms and details
of any agreements.
10. Reopening part 70 permits to incorporate section 112(r)
requirements. In the preamble to the SNPRM, EPA indicated that part 68
requirements should be incorporated into part 70 or 71 permits using
the part 70 administrative amendment process because of the timing
difference between part 68 and air permitting. Most commenters agreed
with this approach or indicated that permits should not be reopened at
all; instead, sources that submitted permit applications prior to
promulgation of the final section 112(r) regulations should not be
subject to enforcement action under Title V until after the first
renewal of the permit (i.e., after 5 years).
As discussed under section E.6, if a permit without the necessary
part 68 conditions has already been issued, then the owner or operator
or air permitting authority shall initiate a permit revision or
reopening according to the procedures detailed in 40 CFR 70.7 or 71.7
to incorporate the terms and conditions under paragraph (a) of
Sec. 68.215. Although EPA has not completed part 70 permit streamlining
efforts, the requirements for permit revisions or reopenings should be
complete by the time sources will be required to be in compliance with
the part 68 requirements. Under the most recent part 70 proposal, the
part 68 requirements would be classified as ``less environmentally
significant'' and the associated procedures would be followed. Sources
with such permits shall be subject to enforcement under authorities
other than Title V.
11. Use of Title V funds. In the SNPRM, EPA indicated that
activities conducted by air permitting authorities should be covered by
fees collected under part 70 since part 68 is an ``applicable
requirement.'' EPA also acknowledged that air permitting authorities
may not have planned for section 112(r) activities and requested input
on alternative funding mechanisms or whether resources would need to be
reduced in other programs to allow completion of part 68
responsibilities.
Several commenters raised concerns about the impact of the section
112(r) requirements on state and local air permitting authorities
because funding will be needed and it may not be possible in the
current political climate for the permitting authorities to raise the
necessary fees through Title V. Some commenters argued that funding
decisions should be left up to the air permitting authorities.
EPA agrees that funding decisions regarding the part 68 program
should be made at the discretion of the state and local agencies.
However, air permitting authorities need to be aware that the CAA
requires states to impose permit fees that are sufficient to cover the
direct and indirect costs of implementing the permit program, including
part 68 activities and activities conducted by state designated
agencies. EPA believes the straight-forward and flexible requirements
established in today's rule impose minimal additional burden on air
permitting authorities. Funding associated with section 112(r)
implementation is addressed in section R, below.
12. Other issues. In the SNPRM preamble, EPA stated that it worked
closely with and directly involved several state and local air program
officials and state emergency response and prevention representatives
in the development of the preamble and regulatory language to prepare
the approaches described. EPA stated that the proposed approaches
``best reflect the concerns of the states about air permit program
implementation and the needs for comprehensive participation in
chemical accident prevention, preparedness, and response at the state
and local level.'' Two commenters disagreed, arguing that in January
1995, the National Governors Association (NGA) and ECOS (organization
of state environmental officials) presented numerous recommendations to
EPA Assistant Administrator Mary Nichols for changes in several clean
air programs; regarding section 112(r), NGA/ECOS recommended that Title
V permitting authorities be required only to certify that an RMP has
been submitted. These commenters believe that the SNPRM fails to
adequately address states' central concern; requiring permitting
authorities to review RMPs will encumber an already overtaxed system.
Although EPA disagrees that the proposal fails to adequately
address states' concerns, EPA agreed that the air permitting authority
requirements could be more sharply focused to minimize the burden. EPA
believes that today's rule is the product of many hours of hard work
with state and local air permitting authorities to recognize their
concerns and to develop a rule that is effective, flexible and imposes
the least economic burden possible.
F. General Definitions
1. Significant Accidental Release. In the NPRM, EPA proposed to
define significant accidental release as ``any release of a regulated
substance that has caused or has the potential to cause offsite
consequences such as death, injury, or adverse effects to human health
or the environment or to cause the public to shelter in place or be
evacuated to avoid such consequences.'' This definition was key to the
applicability of a number of rule requirements, including hazard
assessment, accident history, and accident investigation. Only four of
more than 115 commenters supported this proposal arguing that the
definition should be protective of the public and should consider
inconvenience to the public and precautionary measures taken. Other
commenters argued that Congress intended for the section 112(r) rules
to address catastrophic releases, not those with minor impacts, and
that this definition overly broadens the scope of the rule diverting
resources and increasing cost for little additional benefit. Many
commenters stated that ``injury'' and ``adverse effects'' are undefined
and could mean any health impact from irreversible effects to minor
irritation requiring no medical treatment. ``Potential to cause'' was
also considered too vague. As discussed in Section III.C, many
commenters objected to consideration of environmental impacts.
Commenters also opposed sheltering-in-place and evacuation as criteria
because these actions are often precautionary and, in many cases, are
later viewed as unnecessary and may discourage owners or operators from
making recommendations to evacuate or shelter-in-place. Several
commenters submitted alternative definitions where injuries were
limited to those that require hospitalization, adverse effects were
limited to serious effects, and environmental effects were limited to
those that generate human deaths or hospitalizations. Some suggested
that all environmental effects be dropped.
EPA agrees that the definition as proposed was too vague and
subject to a wide variety of interpretations. In addition, EPA decided
that a single definition does not adequately address
[[Page 31693]]
the criteria needed for all affected sections of the rule. For example,
the five-year accident history requirement depends on the offsite
impacts generated by the accident while endpoint criteria are used for
the worst-case and alternate scenario offsite consequence assessments.
Consequently, EPA has decided to drop the definition and instead
identify the criteria for the types of releases or impacts that should
be addressed by the appropriate requirement. EPA has considered the
suggestions offered by commenters and added definitions of the terms
``environmental receptor,'' ``injury,'' ``medical treatment,'' and
``public receptor'' and adopted (with modifications as described above)
the OSHA definition of catastrophic release. EPA notes that sources
should be aware that within the definition of Injury, direct
consequences include effects caused by shrapnel and debris set in
motion by a vapor cloud explosion. EPA adopted its Medical Treatment
definition from one OSHA uses for logging occupational injuries and
illness. Finally, under the environmental and public receptor
definitions, sources should note that certain parks and recreational
areas may be both if the public could be exposed as a result of an
accidental release.
2. Stationary Source. Commenters requested that EPA state whether
the term stationary source covers the entire ``facility'' or simply a
single process and provide guidance on which requirements apply source-
wide and which are process-specific. EPA also received comments
regarding the relationship or overlap between the stationary source
definition and DOT regulations. These are discussed in section III.P.2
below.
In the List and Thresholds rule, EPA defined stationary source to
include an entire ``facility.'' Sources will be required to submit one
RMP and one registration as part of that RMP for all processes at the
source with more than a threshold quantity of a regulated substance.
Although the management system applies to all Program 2 and 3
processes, the prevention program elements are process-specific. The
hazard assessment requirements apply to the regulated substances, but
only in covered processes. As a practical matter, the emergency
response program will probably apply to the entire source although
technically it applies only to covered processes.
3. Process. Several commenters argued that the definition of
process was susceptible to overly expansive interpretations and asked
that certain activities such as storage at sources or distribution
terminals be excluded. Many commenters sought clarification of ``close
proximity'' and ``interconnected vessel.'' Commenters also wanted the
definition to be consistent with OSHA.
EPA adopted OSHA's definition of process in the original proposal
and for the final rule. This definition specifically covers storage (as
well as handling and processing) of regulated substances. EPA disagrees
that storage-only sources are adequately covered by SPCC regulations
since the regulations under SPCC and OPA-90 cover oil terminals and
releases to water. This rule is directed at accidental releases of
regulated substances (not including oil) to the ambient air. Generally,
OSHA PSM also covers these chemical terminals; consequently, the only
additional steps these sources will need to take will be to conduct the
hazard assessment and submit the RMP, as existing emergency response
plans may meet the emergency response program requirements.
Since EPA's definition is identical to OSHA's, EPA will coordinate
interpretations of the definition of process with OSHA to ensure that
the rule is applied consistently. OSHA has stated that processes are in
``close proximity'' if a release from one could lead to a release from
the other. Owners or operators must be able to demonstrate that an
``effective barrier'' exists to prevent a release from one process from
affecting another. OSHA has interpreted ``interconnected vessel'' to
mean vessels connected by any means, such as piping, valves or hoses,
even if these are occasionally disconnected. EPA will also adhere to
these interpretations.
4. Offsite. One commenter stated that EPA's proposed definition of
offsite should be expanded to include the air above and below the point
of release to cover exposure to the upper atmosphere and groundwater.
Another asked EPA to limit the definition to areas frequented by the
public. Two commenters opposed including areas on site where the public
has access because OSHA already covers these areas.
In the final rule, EPA has retained a definition of offsite as
``areas beyond the property boundary of the stationary source or areas
within the property boundary to which the public has routine and
unrestricted access during or outside business hours.'' OSHA's
jurisdiction includes visitors that may be on the property of a
facility who are conducting business as employees of other companies
but does not necessarily extend to casual visitors or to areas within a
facility boundary to which the public has routine and unrestricted
access at any time.
5. Other Definitions. Commenters raised questions about several
other definitions. Three commenters suggested changes or clarifications
to the definition of accidental release. EPA's definition is the
statutory definition. Commenters also proposed modifications to the
definition of ``analysis of offsite consequence.'' As noted above, EPA
has determined that this definition is not needed and has deleted it
from the final rule.
Commenters sought clarification of the definition of mitigation
systems and whether personnel should be considered an active mitigation
system. Others asked for a list of passive mitigation systems and
provided proposals. These commenters also objected to limiting passive
systems to those that capture or control released substances; they
suggested that systems that are designed to prevent releases or control
the volume or rate of a release, such as vent/catch tanks, quench
tanks, blowdown tanks, elevated stacks and high velocity stacks,
adsorbents including carbon beds, neutralization tanks, double-walled
vessels or pipelines, chemical sewers, closed drain header systems for
flammables, vapor-liquid separators, fire barriers, explosion-resistant
walls, isolation distances, barriers to prevent free access of air flow
after a release, containment buildings, pre-charged water spray
systems, closed vent systems, and filters should also be considered
passive mitigation. One commenter suggested that active mitigation
systems should be defined as those that require manual activation or an
energy source (other than gravitational attraction) to perform their
intended function.
For the final rule, EPA has decided to define passive mitigation
systems as those systems that operate without human, mechanical, or
other energy input and would include building enclosures, dikes, and
containment walls but excludes active mitigation systems such as excess
flow valves, fail-safe systems, scrubbers, flares, deluge systems, and
water curtains. In addition to the requirements outlined in Secs. 68.25
and 68.28, EPA provides further guidance on the consideration of the
effect of passive mitigation in its RMP Offsite Consequence Analysis
Guidance. EPA does not believe that all systems designed to prevent
releases or control the volume or rate of a release should be
considered passive mitigation, consistent with its intent to reflect
the potential for failure of any system that requires human,
mechanical, or other energy inputs.
[[Page 31694]]
G. Risk Management Plan (RMP)
In the NPRM, EPA proposed that owners or operators of stationary
sources covered by the requirements submit an RMP summarizing the key
elements of its risk management program. In the NPRM preamble, EPA
indicated that summaries of the information requested (e.g., hazard
assessment and emergency response program) would provide the most
useful information to the public and local agencies without
overburdening them with unneeded detailed information. EPA further
stated that the RMP should serve to provide local and state agencies
and the public with sufficient information to determine if additional
details are needed. These details would be available, if needed, to
implementing agency officials conducting audits or compliance
inspections.
1. Level of Detail. Most commenters agreed with EPA's proposal
noting that the public should be able to identify key hazard and risk
management information from the RMP without being overwhelmed by
extraneous documentation that is more appropriately maintained on site.
A detailed submission would not be cost-effective and could threaten
plant security; these commenters expressed fears of terrorism, thieves,
and saboteurs.
Other commenters disagreed and argued that summaries would not
provide enough information while ``full disclosure'' would support an
informed public. Some commenters argued that the public could be misled
by a summary derived from a ``full'' RMP withheld from the public by
the source. Further, several commenters made the general argument that
right-to-know provisions should be strengthened and that the public
should be given full access to all risk management program information
including PHAs and actual operating procedures. Individual commenters
also requested public access to specific information regarding such
details as worst-case scenarios and descriptions of chemical accidents.
Some commenters argued that an informed public and public scrutiny, in
general, can act as a powerful force in reducing risk and preventing
accidents at stationary sources.
EPA agrees that an informed public is a key element of sound
chemical emergency prevention, preparedness, and response. However, EPA
also believes that it is essential for the public to focus on the
information essential at the local level for prevention, preparedness,
and response and has decided to maintain its proposed requirement that
the RMP provide certain information about the risk management programs
at a source. EPA notes that its previous use of the word summary was
not intended to imply that the source prepares a ``full'' RMP document
from which a source extracts summary information that is shared with
the public. Rather, the source is obligated to develop certain
information about the hazards, prevention, and emergency response
programs from the array of documentation at the source to prepare an
RMP. EPA believes it would be impractical to require sources to share
all documentation used for the safe operation of the processes at a
source. Not only is much of this information likely to be confidential,
but significant technical expertise and time are necessary to extract,
understand, and to make meaningful judgments about the adequacy of the
information. The RMP will consist of an executive summary and required
data elements addressing all elements of the risk management program as
described below. Detailed supporting documentation will be maintained
on site available to the implementing agency for review.
2. RMP Contents. Most commenters requested that EPA generally limit
the level of detail required, the number of scenarios, or the number of
pages in the RMP. Other commenters recommended EPA require submission
of only information specified in the CAA and incorporate other detailed
information by reference. Commenters also noted that documenting each
action taken to address a hazard, the date on which the action started
(or is scheduled to start), and the actual or scheduled completion date
would prove impractical. EPA received many comments stating that the
requirement that exact dates on which training, emergency exercises, or
rescue drills, are conducted would be impractical and unnecessary.
Commenters seeking more comprehensive RMPs argued in favor of
requiring an index or bibliography of detailed information or a catalog
of all available documents, an investigation and analysis of all other
credible release scenarios, and submission of assumptions, methodology,
and modeling methods used to determine worst-case accidents.
As described above, EPA is considering development of a reporting
mechanism and form to collect key data elements. As discussed below,
this approach will foster electronic submission and immediate
availability to Federal, state and local entities, and the public. To
make such submission possible, EPA wants to collect data that generally
can be reported by numerical information, yes/no answers, and check
boxes. For the offsite consequence analyses, owners or operators will
be asked to provide distance to the endpoint, populations and
environments affected, and enough of the data used to determine these
distances so that local entities and the public can check the distance
against the distance derived from EPA's reference tables or a model
identified in the RMP. If EPA's guidance was not used, sources will
need to indicate which models were used. Many of the parameters for
modeling are set in the rule and do not need to be respecified in the
RMP. The rule requires only one alternative release scenario per toxic
substance and one for all flammables; owners or operators may submit
additional scenarios.
For prevention programs, owners or operators must provide
information (primarily dates) that will allow the implementing agency
to assess whether the source is in compliance with the rule elements.
For the PHA, owners or operators must state which technique was used
for each covered process, the general hazards associated with the
chemicals and process, the process controls in use, mitigation and
monitoring or detection systems in use, and changes instituted since
the last PHA (Program 3) or hazard review (Program 2) update. Through
lists and checkoff boxes, EPA can collect a significant amount of
information on current safety practices without requiring sources to
develop lengthy documentation that would have proved a burden to both
the source and any government or public data user and reduced the
potential for electronic submission. EPA believes this approach
provides the Agency and others with a mechanism for identifying
industry practices and controls from almost 70,000 sources that would
not be feasible otherwise. EPA notes that some of the largest chemical
sources and refineries may be providing data on 30 or more processes.
In the format proposed in the NPRM, these sources might have submitted
several thousand pages each; analyzing such submissions would have been
a daunting task for the implementing agencies and probably would have
made it impossible for public interest groups to review an industry as
a whole. With electronic submission, such reviews will be easier. The
implementing agency or EPA can seek additional details from individual
sources, as needed. EPA has eliminated the requirement to provide dates
of training and emergency exercises or
[[Page 31695]]
drills because the Agency agrees that this amount of detail is
unnecessary and impractical.
3. Submission. In the NPRM preamble, EPA proposed that computer
software be developed that would provide sources with a standard format
for completing the information required in the RMP; that local
authorities be allowed to designate the state as the receiving entity;
or that RMPs be submitted only on request from the state, or local
entity.
Many commenters, particularly those in the potentially regulated
community, supported submission of the RMP upon request or mandatory
submission to the implementing agency with submission by request to
other organizations. Others recommended submission to the LEPC and
public with submission by request to the implementing agency, and SERC.
Most commenters favored reducing the paperwork burden and electronic
submission because it would reduce time and errors, provide more
consistency, and make information more useful for the LEPC and
regulatory agencies. Only two commenters opposed electronic filing
because all sources may not have the computer capability.
Commenters also supported the development of a standard RMP format
regardless of whether the RMP is submitted electronically because
standardization would ensure submissions were manageable and useful and
would ease burdens on both regulated and reviewing entities.
EPA has decided to work toward electronic submission of RMPs. The
Agency believes this will meet numerous objectives of the program and
will address several issues. First, electronic submission would reduce
the burden on regulated and receiving entities. The Agency has noted
that information management of regulatory documents is not a cost-free
requirement, and that duplication of effort, including system
development, personnel resources, and storage and maintenance efforts
could be significant. Electronic submissions would reduce the paperwork
burden on sources and state and local governments and would further
serve to comply with the Paperwork Reduction Act of 1995, which
supports the maximum feasible use of electronic submission. Second, EPA
wishes to limit the information management burden on local entities so
they can focus on the chemical safety issues raised by this rule.
Third, electronic submissions would benefit affected communities
and the general public. Besides having the RMP provide the statutorily
required information on compliance with the regulations to the
implementing agency, EPA believes the specific value of RMP information
is for the local community to understand its community's risk from
chemical accidents and to help them work with sources using these
chemicals to reduce such risks. The Agency believes this objective
would not be served well with a centralized paper information source
and that using an electronic medium would support better access to
information. With electronic submission of RMPs to a central point,
states, local entities, and the public will have access to all RMPs
electronically. RMP information may also be made available on-line via
libraries and other institutions. Electronic submissions further
address the issue of standardized RMPs. The RMP data elements included
in the submission will be checkoff boxes, yes/no answers, or numerical
entries to ease the burden of submission and reception and will promote
consistency and uniformity. The Agency intends to develop technical
guidance for the submission of the RMPs, which will provide for
submission and receipt of an electronic formatted document containing
the data elements outlined in Secs. 68.160 through 68.180.
4. Other Issues. In the NPRM, EPA proposed that RMPs be resubmitted
within six months of an information change. Several commenters argued
it would generate a continual flow of paperwork and recommended an
update frequency requirement of once a year.
EPA has retained the requirement that the RMP be resubmitted within
six months of the elimination of a substance in a process or at the
source, a change in Program status for a process, or if a process
change at the source requires a revised hazard assessment or hazard
review/PHA. To be consistent with the statutory requirements for
compliance, the RMP would also have to be updated on the date an
already regulated substance becomes present in a process above the
threshold or within three years of the date when EPA lists a new
substance. EPA believes that with a standardized format and electronic
filing, updates can be rapidly and easily made, and this information
should be promptly shared. EPA changed the update schedule for hazard
assessments to make them consistent with the RMP update. EPA also
specified when offsite consequence analyses require update; the rule
states that these analyses need to be reviewed and changed if on-site
changes may be reasonably expected to change the distance to an
endpoint by a factor of two or more. EPA notes that this change is
likely to reduce the number of updates required. For PHAs, only major
changes to a process or installation of new processes is likely to
trigger a revised PHA. EPA expects that relatively few sources will
need to update either their offsite consequence analyses or PHAs/hazard
reviews more frequently than once every five years because the majority
of sources have simple processes that do not change frequently.
Chemical industry sources may need to submit more updates if processes
are changing significantly. The RMP should reflect such significant
changes.
EPA proposed that RMPs be submitted to implementing agencies,
SERCs, and LEPCs, and be made available to the public. Several
commenters recommended that additional parties, local fire officials in
particular, also receive RMPs. One commenter stated that EPCRA requires
various reports go to local fire departments, and another commenter
noted that RMP information may be better used by emergency management
agencies, fire departments, and hazardous materials teams. Because EPA
plans to have RMPs submitted to and available from a central point in
electronic format, any agency that wants the information will be able
to access it directly on-line. The RMP will be immediately available to
local responders and the state. Thus, this manner of submission
fulfills the requirements of CAA section 112(r)(7)(B)(iii). Additional
submission requirements are, therefore, unnecessary.
The Department of Defense (DOD) commented concerning the lack of a
rule provision explicitly declaring that information that is classified
under applicable laws and Executive Orders (E.O.s) is not to be
included in the RMP. EPA is clarifying that such classified information
is protected from disclosure by including a specific regulatory
exemption for such information. Furthermore, EPA is clarifying that no
provision of part 68 requires the disclosure of classified information
in violation of Federal law, regulations, or E.O.s. Finally, EPA is
also promulgating a definition of ``classified information'' that
adopts the definition under the Classified Information Procedures Act.
EPA has found no relevant statutory language superseding or
impliedly repealing the Classified Information Procedures Act or
applicable E.O.s regarding disclosure of classified information, nor
has EPA found any legislative history indicating that Congress intended
to supersede or repeal these provisions when it established the
requirement to prepare
[[Page 31696]]
publicly-available RMPs. The provision for exemptions from standards
and limitations established under CAA section 112 narrowly addresses
the procedures for an exemption when ``the President determines that
the technology to implement such standard is not available and * * * it
is in the national security interests of the United States to do so.''
CAA Sec. 112(i)(4). The focus of section 112(i)(4) is on the technical
capability to meet a limitation; for example, the provision would apply
when an emission standard requires a control device that precludes
national security-related equipment from functioning. Section 112(i)(4)
does not consider or address the availability or distribution of
classified information to the public, nor does the legislative history
demonstrate that such disclosure was contemplated.
The requirement of section 112(r)(7)(B)(iii) to make RMPs publicly
available must read in congruence with the provisions prohibiting
disclosure of classified information. ``Classified information,'' as
defined by the Classified Information Procedures Act, 18 U.S.C. App. 3,
section 1(a), is ``any information or material that has been determined
by the United States Government pursuant to an Executive order,
statute, or regulation, to require protection against unauthorized
disclosure for reasons of national security. * * *'' ``National
security * * * means the national defense and foreign relations of the
United States'' 18 U.S.C. App. 3, section 1(b). Criminal penalties
exist for unauthorized disclosure of classified information that has
been designated by the Department of Defense or defense agencies for
limited or restricted dissemination or distribution. 18 U.S.C. 793. It
is not reasonable to interpret the CAA to require the disclosure of
classified information in violation of criminal law. It has been EPA's
long-standing policy to interpret information disclosure provisions in
its statutes as being consistent with national security law to the
maximum extent possible and to require such information to be
maintained in accordance with the originating agency's requirements.
Federal Facilities Compliance Strategy (November 1988), at page V-6.
Therefore, EPA is promulgating language in Sec. 68.150(d) to clarify
its intent with respect to the disclosure of classified information in
RMPs by specifically exempting classified information from the RMP
except by means of a classified annex submitted to appropriately
cleared Federal or state representatives with proper security
clearances. Furthermore, EPA is promulgating Sec. 68.210(b) to clarify
that disclosure of classified information is controlled by the
Classified Information Procedures Act, E.O.s 12958 and 12968, and other
laws, regulations, and E.O.s applicable to classified information.
Finally, in Sec. 68.3, EPA is defining classified information by
promulgating the definition under the Classified Information Procedures
Act.
H. Prevention Program
In the NPRM preamble, EPA noted that the CAA requires the risk
management program to include a prevention program that covers safety
precautions and maintenance, monitoring, and employee training
measures. Because OSHA PSM covers this same set of elements, EPA
proposed a prevention program that adopted and built on OSHA PSM. The
proposed requirements for EPA's prevention program included a
management system requirement and sections covering nine elements:
process hazard analysis, process safety information, operating
procedures (SOPs), training, maintenance, pre-startup review,
management of change, safety audits, and accident investigation.
To assist in describing its prevention program, EPA included a
section in its preamble comparing its prevention program to OSHA PSM
standard. EPA noted that with the exception of the management system
requirement, the proposed prevention program covered the same elements
as OSHA's PSM and generally used identical language except where the
statutory mandates of the two agencies dictated differences. EPA added
introductory paragraphs to most sections to provide additional
information. Further, in some of the sections, EPA proposed additional
requirements and established different deadlines. The majority of
comments EPA received concerned conflicts and differences between EPA's
proposed requirements and OSHA PSM standard.
In the final rule, the Program 3 prevention program is the OSHA PSM
standard for parallel elements, with minor wording changes to address
statutory differences. For elements that are in both the EPA and OSHA
rules, EPA has used OSHA's language verbatim, changing only certain
regulatory terms (e.g., highly hazardous chemical to regulated
substance and employer to owner/operator) and dates. The sections of
the OSHA PSM standard were not cross-referenced for the reasons
discussed in section III.D of this preamble. Key issues under PSM are
discussed below; the remainder are addressed in the Response to
Comments Document.
Management. In the NPRM preamble, EPA stated the purpose of its
proposed management system is to ensure integration of all prevention
program elements. EPA proposed that owners or operators identify a
single person or position that has the overall responsibility for the
development, implementation, and integration of the risk management
program requirements. When responsibility for implementing individual
requirements of the risk management program is assigned to persons
other than the person designated, the names or positions of these
people shall be documented and the lines of authority defined through
an organization chart or similar document.
Several commenters agreed with this approach because it serves a
useful purpose and many PSM sources already implement management
systems. Many commenters opposed the requirement for submission of an
organization chart of their source because it would be of no value to
EPA and that continual updating would waste company resources.
EPA has decided to maintain its management system requirements in
the final rule for sources with processes in Program 2 and 3, but has
moved it to general requirements (Sec. 68.15) because it is the entire
risk management program that should be managed, not just the prevention
program. EPA has also revised the requirement to provide flexibility in
indicating lines of authority; an organization chart is not absolutely
required and is not included in the RMP.
Management of Change. Some commenters objected to EPA's definition
of replacement in kind, asking that EPA adopt the OSHA PSM definition.
Other commenters stated that management of change procedures should
only be implemented when the changes had the potential to increase the
risk (e.g., an increase in inventory, an introduction of a new
substance).
As part of its efforts to strengthen coordination between the two
programs, EPA will use the OSHA definition for ``replacements in
kind'': ``a replacement which satisfies the design specification.''
OSHA defined this term to address a concern expressed by commenters on
its standard that failing to define ``replacements in kind'' could
result in misunderstandings such as employers believing that only a
replacement with the same brand and model number could be characterized
as a ``replacement in kind.'' OSHA promulgated a definition in
recognition of these comments, and EPA
[[Page 31697]]
understands it to reflect a concept understood in industry.
Further, EPA does not agree that management of change requirements
should exclude changes that reduce the risk of an accidental release.
The Agency does not believe that only changes to ``critical systems''
should be subject to management of change procedures. As EPA stated in
the NPRM preamble, most process changes improve process safety or
efficiency. However, even these changes may result in unintended
effects when source owners and operators fail to evaluate the
consequences of the change. Therefore, the Agency continues to believe
that a change that reduces the risk of an accidental chemical release
may, nonetheless, be an appropriate subject for a management of change
procedure. Failure to subject such changes to a management of change
process could inadvertently result in a change that was believed to
lower risk when such a change, in fact, increases risk. Regarding the
comment about critical systems, EPA notes that chemical processes are
integrated systems, and that a change in one part of the process can
have unintended effects in other parts of the system--irrespective of
whether the system is ``critical.'' Consequently, EPA agrees with OSHA
that source owners and operators must establish and implement written
management of change procedures for any change to a regulated
substance, process technology, or equipment and any change to a source
that affects the covered process.
Other Provisions. Several commenters stated that EPA should include
in its risk management program the OSHA PSM provisions on contractors,
employee participation, and hot work permits that EPA had not proposed
in its prevention program. The NPRM solicited comment on whether to
include these provisions (58 FR 54205; October 20, 1993). Commenters
argued that contractors have been responsible for a number of accidents
that have affected the public and the environment. Commenters presented
the same argument to support inclusion of the hot work permit
requirements. A substantial number of commenters also argued that
employee participation is a key factor in successful implementation of
PSM. A few commenters supported EPA's initial position that these
requirements were more properly OSHA concerns.
In response to the former commenters' arguments and to ensure
consistency between the elements of the two rules, EPA has decided to
add these sections to its Program 3 prevention program. EPA believes
that each of these elements is important to the implementation of an
effective prevention program. Worker participation in PHAs and other
elements is critical to the success of process safety because workers
are intimately familiar with the process and equipment operation,
possible failure modes and consequences of deviations. It also serves
as a mechanism for greater communication and understanding of specific
process hazards (as opposed to the general chemical hazards) and the
importance of developing and following proper procedures. Similarly,
contract employees have been involved in a number of major accidents in
recent years; for example, the explosion in Pasadena, Texas, in 1989,
which killed 23 workers, has been attributed to improper maintenance
practices by contractor employees. Oversight of contractors, therefore,
can be critical for accident prevention. Finally, hot work permits
ensure that use of flame or spark-producing equipment is carefully
controlled. Not only are many of the listed substances highly
flammable, but fires in the vicinity of vessels or pipes containing the
toxic substances can lead to releases of these substances.
I. Accident History
In the NPRM, EPA required sources to document a five-year history
of releases that caused or had the potential to cause offsite
consequences for each regulated substance handled at the source. EPA
specified that the accident history should include the nature of any
offsite consequences, such as deaths, injuries, hospitalizations,
medical treatments, evacuations, sheltering-in-place, and major offsite
environmental impacts such as soil, groundwater, or drinking water
contamination, fish kills, and vegetation damage.
A few commenters argued that releases with only the potential for
offsite consequences should not be included, while other commenters
were evenly divided on whether near-miss events should be included in
the accident history. A number of commenters indicated that releases
with on-site consequences should be added to the accident history.
Several commenters requested that EPA clarify that the accident history
applies only to covered processes.
In recognition of these comments, in the final rule, only those
accidents from covered processes that resulted in deaths, injuries, or
significant property damage on-site, or known offsite deaths, injuries,
evacuations, sheltering in place, property damage, or environmental
damage need to be included in the five-year accident history. Near-miss
accidents or accidents with only the potential for offsite consequences
(that did not meet any of the previous criteria) would not need to be
included. Because the accident history is, by statute, an aspect of the
hazard assessment, and the hazard assessment provisions apply only to
covered processes, EPA believes that requiring the accident history to
address accidental releases from processes not covered by this rule
would be inconsistent with the structure of part 68. EPA notes that
such releases may be subject to reporting under other statutes; the
Agency may investigate such releases to determine the need for a
response action under CERCLA and to determine whether CAA section
112(r)(1) has been violated.
J. Emergency Response Program
In the
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
proposed rule, EPA required sources to develop an emergency
response plan that defines the steps the source and each employee
should take during an accidental release of a regulated substance. EPA
noted that most sources are already required to have at least part of
the emergency response plan in place as a result of other EPA (Spill
Prevention, Control, and Countermeasures and Resource Conservation and
Recovery Act) and OSHA (emergency action plans and HAZWOPER)
regulations and requested comment on how the proposed requirements
could best be integrated with these existing programs to minimize
duplication. Many of the commenters were particularly concerned with
the potential for increased duplication of emergency planning
requirements at the state and Federal levels that would require
expenditure of additional resources without improving source emergency
response capabilities. Most of these commenters suggested that EPA
allow compliance with other Federal regulatory programs to meet the
mandate of the Clean Air Act for an emergency response program, while
other commenters recommended that EPA work with other agencies to
develop a format for a single, comprehensive response plan for the
source. Some commenters addressed related concerns with respect to
state program or voluntary initiatives.
EPA has decided to adopt the emergency response requirements found
in the statute, without additional specific planning requirements. This
action is consistent with the Agency's effort to develop a single
Federal approach for emergency response planning. The Review of Federal
Authorities for Hazardous Materials Accident Safety, (required under
section
[[Page 31698]]
112(r)(10) of the Clean Air Act) reported little harmony in the
required formats or elements of response plans prepared to meet various
Federal regulations. Accordingly, EPA has committed not to specify new
plan elements or a specific plan format in today's rule. EPA believes
that plans developed to comply with other EPA contingency planning
requirements and the OSHA Hazardous Waste and Emergency Operations
(HAZWOPER) rule (29 CFR 1910.120) will meet the requirements for the
emergency response program provided that they address the elements in
section 68.95(a). EPA believes that coordination of the emergency
response plan with the community emergency response plan will help
ensure that offsite response issues are addressed. In addition, EPA and
other National Response Team agencies have prepared Integrated
Contingency Plan Guidance (``one plan'') (NRT, May 1996). An emergency
response plan that includes the elements specified in this guidance can
be used to meet the requirements in today's rule. The final rule also
provides relief for sources that are too small to respond to releases
with their own employees; these sources will not be required to develop
emergency response plans provided that appropriate responses to their
hazards have been discussed in the community emergency response plan
developed under EPCRA (42 U.S.C. 11003) for toxics or coordinated with
the local fire department for flammables.
K. Registration
In the NPRM, EPA proposed that sources register with the EPA
Administrator by three years after the publication date of the final
rule, or within three years of the date on which a source becomes
subject to the risk management program requirements as mandated by the
CAA. While a number of commenters agreed with this proposal, a greater
number requested that EPA accelerate the registration to between six
months and two years of promulgation of the rule so that implementing
agencies could better determine resource allocation and conduct more
extensive outreach and technical assistance to sources developing risk
management programs and preparing RMPs.
EPA agrees that earlier registration could aid outreach efforts and
help implementing agencies focus resources. However, since the first
RMP need not be submitted until June 21, 1999, an earlier, pre-
registration would impose an additional burden on sources. Some sources
may reduce inventories, make process modifications or switch chemicals
prior to the first RMP due date and, consequently, will not be subject
to the rule. If EPA required a pre-registration, these sources would
have to deregister at that time. Further, states and local agencies
already have information gathered under EPCRA section 312 that could be
used for early identification and outreach to sources covered by this
rule. EPA is also working with trade associations and other
representatives of affected industries to ensure that sources are aware
of the rule. Instead, in today's rule, the registration is included as
part of the RMP to limit the number of filings made by sources.
EPA also proposed that sources submit written registration
information. A number of commenters advocated either the modification
of existing forms (e.g., the EPCRA Tier II form) or an electronic
filing system for the submission of this information. Since the RMP and
the registration are consolidated into one submission, this issue is
addressed generally in Section III.G.
Under the proposed rule sources would need to submit an amended
notice to the Administrator and the implementing agency within 60 days
if information in the registration is no longer accurate. Many
commenters argued that six months or a year is needed to ensure
compliance with the certification requirements. EPA agrees with
commenters and in the final rule has lengthened the time for submission
of an amended registration to six months which should be enough time to
modify the information and to electronically resubmit the registration
and RMP.
L. Model Risk Management Programs
Commenters supported the development of model risk management
programs and RMPs, stating that the models were needed by smaller
businesses and public systems that lack the expertise to implement
process safety management. Commenters specifically supported
development of models for industries with well-understood processes and
practices, such as chlorination systems, propane and ammonia retailers,
and refrigeration systems. A few commenters asked that the models be
made available for public review. Others said the models should be
published as guidance, not regulations.
EPA is working with industry groups to develop model programs for
ammonia refrigeration, propane handling, and water treatment. After
having provided the public with an opportunity to review a draft of the
ammonia model program, EPA today is issuing a guidance on a model
program for this industry (see Model Risk Management Program for
Ammonia Refrigeration). EPA encourages other industry groups to work
with the Agency to develop models for their sectors. EPA notes that the
models are particularly relevant to sources with Program 2 processes.
Because EPA has adopted the OSHA PSM standard, EPA has not provided an
EPA guidance on PSM compliance. EPA will also publish general technical
guidance to help sources understand and comply with the rule which will
include Program 2 prevention program guidance. The RMP Offsite
Consequence Analysis Guidance contains reference tables for the offsite
consequence analysis, which can be used instead of site-specific
modeling. EPA emphasizes that the models are guidance, not regulations;
sources are not required to use them.
M. Implementing Agency Audits
EPA originally proposed in Sec. 68.60 seven criteria an
implementing agency could use to determine whether to audit a source's
RMP. EPA also proposed that the implementing agency have the authority
to determine whether an RMP should be revised and to direct the owner
or operator to make revisions. Many commenters suggested that the
Agency lacked statutory authority to specify measures to correct risk
management program elements through the RMP, and that RMP changes based
on implementing agency directives will be costly.
EPA or other implementing agencies have general inspection and
enforcement authority under CAA sections 112(r)(7)(E), 113, and 114 to
compel source owners and operators to correct deficiencies in the risk
management program. EPA intends to use the audit process as a way to
verify the quality of the program summarized in the RMP. When it is
reasonable, EPA will require modifications to the RMP that may lead to
quality improvements in the underlying program.
EPA notes that many commenters were uncertain of the distinction
among audits conducted under Sec. 68.220, reviews by the permitting
authority under Sec. 68.215, and inspections. CAA section
112(r)(7)(B)(iii) requires EPA to develop, by regulation, a system for
auditing RMPs. These audits will review the information submitted by
sources to determine whether the source is in compliance with the rule
elements. For example, the implementing agency will consider whether
the dates for reviews and revisions of various elements are consistent
with the steps sources are
[[Page 31699]]
required to take. If a source reported a major change on a date later
than the last date on which safety information and operating procedures
were reviewed, the implementing agency could seek further information
about why such reviews had not been conducted and require updates if
the agency determined that the source should have reviewed the
documents. Audits may be detailed paper reviews or may be done at a
source to confirm that on-site documentation is consistent with
reported information.
In contrast, the air permitting authority or its designated agency
may be reviewing the RMP for completeness, rather that the quality of
the RMP contents. Inspections are generally more extensive in scope
than audits although they may include a review of the accuracy of the
RMP information. Inspections will consider whether the source is in
compliance with part 68 as a whole, not just with the RMP requirements,
and may review both the documentation kept at the source and operating
practices.
Regarding comments that making changes to the RMP would be too
costly, EPA has endeavored to ameliorate the cost burden of this rule
by using a tiering approach to make the risk management program
elements on which the RMP rests appropriate for sources of various
sizes and complexity. In addition, EPA is considering development of a
standard RMP reporting format and data elements, which should
significantly reduce the time and effort necessary to revise the RMP.
Any source owner or operator can further limit the costs associated
with revising its RMP by submitting a timely, complete, and valid plan
in the first instance.
N. Public Participation
In the SNPRM, EPA requested comments on how public participation in
the risk management program process might be encouraged. EPA's
preferred approach was to encourage the public and sources to use
existing groups, primarily the LEPC, as a conduit for communications
between the source and the public throughout the RMP development
process. A substantial number of commenters supported this approach,
stating that the LEPC was well placed to interpret the RMP information
for the public. Commenters said that LEPCs and their member
organizations have considerable experience and have established rapport
in dealing with the community. Others stated that this role is a
logical extension of current LEPC responsibilities under EPCRA,
although funding for LEPCs was a concern.
A number of commenters opposed this approach because some LEPCs are
not functional and that LEPCs are not a substitute for public
participation. A few LEPCs also objected to assuming any additional
role. Commenters suggested that EPA should require public participation
in the development of the RMP and require all major sources to have a
public participation strategy. Industry commenters generally opposed
any mandated public participation requirements because direct
involvement in risk management program development would delay the
process and would represent an unwarranted and inappropriate
interference in management and site control responsibilities. A few
commenters supported the SNPRM suggestion that public participation be
limited to sources with Program 3 processes because these sources
represent the greatest risk. Other commenters opposed this idea,
preferring the decision to be left to local authorities.
EPA has not adopted any specific public participation requirements.
EPA plans to make the RMP immediately available to any member of the
public. LEPCs and others will be able to compare their sources with
similar sources in other areas to determine whether quantities on
sites, process controls, mitigation systems, and monitoring systems are
significantly different. This information will give the public an
opportunity to gain a better understanding of local industries and
carry on a more informed dialogue with sources on their prevention
practices. EPA continues to encourage sources to work with the LEPCs
and other community groups to provide information to the public and
ensure an on-going dialogue during and after RMP development and
submission. The public is a valuable resource and a key stakeholder in
chemical accident prevention, preparedness, and response at the local
level.
A number of commenters said that EPA should prohibit the public
from triggering an audit through petitions because this approach would
open the process to litigation; a petition process would be expensive,
time-consuming, and increase the time needed to complete the RMP. Some
commenters said it would impose an excessive burden on the implementing
agency. Two commenters favored public petitions to trigger audits. One
said that the audits should be conducted by qualified third parties,
subject to community selection and supervision.
EPA has not included public petitions as a mechanism for periodic
audits of sources under Sec. 68.220. States, however, are able to adopt
more stringent requirements.
O. Inherently Safer Technologies
In response to the NPRM, a number of commenters stated that EPA
should require sources to conduct ``technology options analyses'' to
identify inherently safer technologies. In the SNPRM, EPA solicited
comments on this issue, but did not propose a requirement for such
analyses.
A number of commenters stated that EPA should require analyses of
inherently safer technologies, at least for sources with Program 3
processes or new processes. Some commenters argued that inherent safety
is primary prevention (directed at the source of the hazard), while
EPA's proposed requirements are secondary prevention (control of the
hazard). One commenter asked that sources be required to provide full
economic and technical analyses of options. Commenters argued that
without a technology options analysis requirement, industry will not
conduct these analyses because, unlike its pollution prevention
efforts, EPA has provided no incentive for safer plants.
Other commenters strongly opposed any requirement for these
analyses because PHA teams regularly suggest viable, effective (and
inherently safer) alternatives for risk reduction, which may include
features such as inventory reduction, material substitution, and
process control changes. These changes are made as opportunities arise,
without regulation or adopting of completely new and unproven process
technologies. Commenters said that similar analyses are frequently
conducted during the design phase of a process or source where there
are sufficient economic incentives to design a process with as few
costly additional safety features as possible without new EPA
requirements. Commenters also said that a requirement would prove
costly, without providing commensurate benefits.
EPA has decided not to mandate inherently safer technology
analyses. EPA does not believe that a requirement that sources conduct
searches or analyses of alternative processing technologies for new or
existing processes will produce additional benefits beyond those
accruing to the rule already. As many commenters, including those that
support such analyses, pointed out, an assessment of inherently safer
design alternatives has the most benefit in the development of new
processes. Industry generally
[[Page 31700]]
examines new process alternatives to avoid the addition of more costly
administrative or engineering controls to mitigate a design that may be
more hazardous in nature. Although some existing processes may be
superficially judged to be inherently less safe than other processes,
EPA believes these processes can be safely operated through management
and control of the hazards without spending resources searching for
unavailable or unaffordable new process technologies. Good PHA
techniques often reveal opportunities for continuous improvement of
existing processes and operations. EPA encourages sources to continue
to examine and adopt viable alternative processing technologies, system
safeguards, or process modifications to make new and existing processes
and operations inherently safer. EPA included questions related to
process modifications in the RMP so that sources can demonstrate, and
users of the RMP information can observe, progress toward safer
processes and operations.
P. Coverage by Other Regulations
A large number of commenters expressed concerns about duplication
between the risk management program rule and other Federal and state
regulations. Issues related to overlap between this rule and OSHA PSM
are discussed in Section III.D of this preamble; issues related to
overlap between this rule and other emergency response planning
regulations are discussed in Section III.J of this preamble.
1. General Issues. A substantial number of commenters stated that
EPA had failed to consider other regulations to which sources are
subject that cover some of the same requirements as this rule. They
noted that many sources are covered by DOT rules, other EPA rules, OSHA
rules, and, in some cases, other agency or state rules. Some commenters
argued that these other regulations essentially prevent accidents and,
therefore, this rule is not needed. Commenters stated that EPA should
define jurisdictional and enforcement boundaries so that sources
subject to multiple regulations are not subjected to multiple
enforcement actions for the same violation. Other commenters said that
EPA should clearly identify which similar requirements imposed by other
programs satisfy this rule and what additional steps are needed. Some
commenters said that any source covered by another, similar rule should
be excluded from this rule. Others suggested that EPA explicitly cross-
reference other applicable rules. A few commenters stated that EPCRA
reporting requirements provide ample information to local entities and
no further reporting is needed.
EPA disagrees with some of these comments. Except for the OSHA PSM
rule, no other rule cited by the commenters addresses accidental
releases of regulated substances to the extent that today's rule does.
Some Federal and state rules for certain industries provide design
standards; compliance with these rules will satisfy parts of today's
rule. For example, sources in compliance with 29 CFR 1910.111 for
handling of anhydrous ammonia may not need to take additional steps to
ensure the safe design of the process. These other standards generally
do not cover training, maintenance, hazards analysis, and accident
investigation, which are all key elements in process safety management.
In addition, none of the Federal rules require offsite consequence
analyses or reporting to the public on the results of these analyses
and on prevention steps. Information submitted under EPCRA, which
consists primarily of annual inventories, is not equivalent to the RMP
information.
Nevertheless, EPA agrees with commenters that duplication should be
minimized, which is why the emergency response and Program 2 prevention
program steps recognize that meeting other requirements will satisfy
elements of this rule. The model risk management programs that EPA is
developing with industry will explicitly cite other regulations, as
well as codes and standards, that satisfy specific elements of this
rule.
2. DOT Transportation Regulations. Commenters concerned with
overlap with DOT regulations focused on two issues: pipeline
regulations, and loading/unloading and storage regulations. Commenters
asked EPA to exclude pipelines and transportation containers connected
for loading or unloading since these are adequately covered by DOT
regulations. Some commenters disagreed and wanted loading and unloading
of transportation containers to be included because many accidents
occur during these procedures.
In the final List Rule, EPA defined stationary source to include
``transportation containers that are no longer under active shipping
orders and transportation containers that are connected to equipment at
the stationary source for the purposes of temporary storage, loading,
or unloading.'' One commenter stated that the 1993 oleum release in
Richmond, California, demonstrated that DOT regulations do not
adequately address risk management of loading and unloading. The other
commenters, however, said that loading and unloading were covered by
DOT regulations and should not be subject to this rule. They noted that
DOT has adopted regulations requiring training for anyone who loads or
unloads hazardous materials. They further said that at distribution
centers, regulated substances are not used or processed, and, if in
packages, the containers are not opened.
Several commenters were concerned that EPA regulation in this area
could create problems with DOT's preemption of state rules. Under U.S.
law, states may not adopt regulations in certain specified areas that
are not substantively the same as DOT rules or in other areas that pose
an obstacle to DOT goals under Federal Hazardous Materials
Transportation Law. If state laws are authorized by Federal law,
however, states could develop different requirements than DOT imposes.
In this case, the commenter said, if EPA were to regulate loading and
unloading under the CAA, the states would have the authority under the
CAA to impose more stringent requirements on this activity.
EPA disagrees with the commenters concerning the scope of the
Hazardous Materials Transportation Act preemption authority in this
area. EPA's definition of stationary source clearly covers
transportation containers only when they are no longer in
transportation in commerce and was addressed in the List Rule. EPA
believes commenters have overstated the extent of any preemption
problem. EPA's interpretation today is consistent with DOT's, as
explained in ``California and Los Angeles County Requirements
Applicable to the On-Site Handling and Transportation of Hazardous
Materials--Preemption Determination'' (60 FR 8774, 8776-78, February
15, 1995). EPA notes that in many cases warehouses and wholesalers take
delivery of materials and resell them; EPA considers this storage to be
covered by today's rule. EPA believes that DOT standards for container
integrity satisfy process safety information requirements. The same
applies to DOT standards for training requirements for loading and
unloading; that training satisfies the training requirements of this
rule for loading and unloading. Requirements for the PHA only apply to
connections to transportation containers and for storage of containers.
3. Other EPA Regulations. Many commenters stated that other EPA
regulations cover the same activities and
[[Page 31701]]
should be deferred to or referenced to prevent duplicative requirements
and enforcement. A number of commenters said that regulations under the
Clean Water Act, specifically the Spill Prevention, Control, and
Countermeasure (SPCC) and Oil Pollution Act of 1990 (OPA-90) rules,
duplicate many of the provisions of this rule. Other commenters argued
the Underground Storage Tank (UST) rules require sources to comply with
requirements equivalent to many of the notification, prevention, and
emergency response provisions. A few commenters stated that EPCRA
already covers the right-to-know provisions; others stated that the
risk management program regulations should support existing EPCRA
rules. Three commenters said that EPA should exempt any source covered
by the Resource Conservation and Recovery Act (RCRA) because the rules
under that act already impose comprehensive risk management
requirements.
As discussed in Section III.J, emergency response plans developed
under SPCC, OPA-90, or RCRA can be used to meet the emergency response
requirements of this rule. EPA notes, however, that SPCC, OPA-90, and
UST rules do not address storage, handling, and release prevention for
regulated substances. SPCC and OPA-90 rules apply to oil; UST rules
apply to oil and gasoline. The processes addressed by these rules,
therefore, do not overlap with the processes covered by today's rule.
RCRA requirements apply only to certain activities undertaken at
sources that may be subject to the requirements of today's final rule.
As noted above, EPA anticipates that emergency response plans developed
under RCRA can be used to meet the emergency response requirements of
this rule. In addition, certain training and other release prevention
activities required under RCRA may satisfy certain of the prevention
program requirements for Program 2 processes.
4. Other Federal Regulations. A number of commenters stated that
EPA should not cover outer continental shelf (OCS) sources because they
are adequately regulated under the Marine Mineral Service, Pipeline
Safety Act, and OPA-90. The mining industry said that they should not
be covered because their handling of explosives is regulated in great
detail by the Mine Safety and Health Administration and the Bureau of
Alcohol, Tobacco, and Firearms. In its proposed rule (61 FR 16598,
April 15, 1996), EPA has proposed to delist explosives and proposed a
stay of the affected list provisions; elsewhere in today's Federal
Register, EPA has stayed implementation of the affected provisions
until these changes are finalized. OCS sources are not subject to part
68 because the connection between this part and protection of ambient
air quality is too remote; therefore, CAA section 328 proscribes EPA's
jurisdiction.
5. State and Local Regulations. Commenters sought clarification of
how risk management programs implemented under state laws in Delaware,
New Jersey, California, and Nevada would be treated. Some commenters
said sources complying with these state rules should be grandfathered
into EPA's rule for at least five years. California commenters asked
that risk management prevention programs (RMPPs) developed and
submitted under California's rule be considered in lieu of the required
RMP. Some commenters asked that documentation created to meet the state
requirements be considered adequate to meet EPA's program so that
additional documentation need not be created just to meet slightly
different rules. A few commenters suggested that EPA should explicitly
preempt any state risk management program regulations that are not
submitted to and approved by EPA. Other states said that EPA should
defer to state rules on hydrogen sulfide and propane.
None of the four state risk management program rules is identical
to EPA's or each other. The Delaware, New Jersey, and Nevada programs
closely parallel the OSHA PSM rule; the California program is less
specific. EPA expects that sources in compliance with these state
programs will have completed most of the steps required under EPA's
rule. EPA notes that these sources are generally also covered by OSHA
PSM and, therefore, should be in compliance with a significant portion
of EPA's rule.
In relation to the request for grandfathering, EPA does not have
the authority to grandfather compliance with programs that the Agency
has not reviewed and approved. EPA expects that these four states will
seek delegation of the 112(r) program under CAA section 112(l). At that
time, EPA will review the state programs and approve them if they are
as stringent as EPA's rule and meet other section 112(l) requirements.
If states are granted delegation, they will have the authority to
grandfather previous compliance. Because the CAA specifically grants
states the right to impose more stringent regulations, EPA cannot
preempt state programs as one commenter requested.
EPA believes that substitution of the RMPP for the RMP for
California sources is not feasible. The California RMPPs are voluminous
documents, submitted per process, not per source. These documents could
not be submitted electronically. Because EPA is concentrating on
submission of data elements, EPA believes that its RMP requirements can
be met quickly by any source that has completed an RMPP. Completion of
the RMP will not impose a large burden on sources. If the RMPP has
summary sections, these may be directly transferable for use as the
executive summary.
In regard to other state laws, states may include them as part of
their CAA section 112(l) submission for EPA's review and approval.
These laws, however, must be as stringent as EPA's; that is, they must
cover all elements of the rule with requirements that at least match
EPA's. EPA notes that state propane laws are generally based on NFPA-
58, which EPA is using to help develop its model risk management
program for propane distributors and users. Therefore, sources in
compliance with NFPA-58 requirements may meet many of the requirements
of Program 2, as defined in the model.
Q. Industry-Specific Issues
A number of industries submitted comments on issues that were
particular to them, in many cases seeking exemption from the rule.
1. Oil and Gas Facilities. Industry commenters argued that
components of the oil and gas industries should be excluded from EPA's
risk management program; in particular, that EPA should exempt the
following operations and facilities from RMP requirements:
Atmospheric storage and transfer of flammable liquids;
Retail facilities;
Marketing terminals and bulk plants;
Remote, low-risk petroleum operations;
Oil and gas exploration, production and processing
facilities;
Crude oil separation, handling, and storage operations;
Subsurface hydrocarbon reservoirs;
All transportation and facilities incident to
transportation; and
Outer continental shelf facilities.
Commenters noted that these industries and facilities pose a low risk
to the public for a number of reasons. Significant accidental releases
are highly unlikely because these facilities handle materials which,
given site conditions, have limited potential for release to the air or
offsite impacts. Existing regulations reduce the potential
[[Page 31702]]
for significant accidental releases. Additionally, commenters argued
that the RMP provisions extend beyond EPA's statutory authority and run
counter to the Domestic Natural Gas and Oil Initiative established by
President Clinton.
Commenters stated that most of the exploration and production
facilities are remotely located and argued that even the tiering
approach that EPA proposed in the SNPRM did not provide adequate relief
for these sources, which pose minimal risks. They noted that OSHA
specifically excludes remotely located sources, retail facilities, DOT-
regulated sources, and atmospheric storage tanks. A number of
commenters said that EPA had never included most of these sources in
its economic analysis, implying that EPA did not intend to cover them
in these regulations; they requested an explicit statement to that
effect. One commenter opposed an exemption for oil and gas sources and
pipeline and other transportation companies, arguing that these sources
have some of the most common or worst accidents.
EPA does not agree that marketing terminals or bulk plants should
be excluded if there are regulated substances present above their
threshold quantities. Although EPA did not specifically exempt gasoline
and naturally occurring hydrocarbons (e.g., crude oil), it did not
intend to cover regulated flammables in these mixtures. In its proposed
rule (61 FR 16598, April 15, 1996), EPA has proposed to revise the
criteria for flammable mixtures and to exclude naturally occurring
hydrocarbons prior to processing at a gas processing plant or refinery.
Flammable mixtures would be covered only if they met all of the NFPA-4
criteria. Gasoline and crude oil are listed with NFPA 3 flammability
ratings in NFPA 325 M, Fire Hazard Properties of Flammable Liquids,
Gases, and Volatile Solids, 1991. Elsewhere in today's Federal
Register, EPA has stayed implementation of the risk management program
rule for substances and processes that would be affected by the
proposed changes. As EPA explained in the preamble to the final list
rule, the Agency has not adopted OSHA's exemption for atmospheric
storage of flammables because, unlike OSHA, EPA has listed only
flammable gases and highly volatile flammable liquids. EPA considers
these substances to be intrinsically hazardous, regardless of storage
conditions and, therefore, does not believe it is appropriate to
provide an exemption for such tanks.
2. Retail Facilities. The rule is expected to cover a substantial
number of retail facilities, specifically those handling propane and
ammonia as a fertilizer. Approximately 100 commenters requested that
EPA exempt propane retailers from coverage under the risk management
program, primarily due to the effectiveness of the existing regulatory
structure for the industry (in particular, NFPA Standard 58). At the
same time, more than 50 commenters requested that EPA exempt
agricultural chemical retailers (with inventories of ammonia
fertilizer) from coverage under the risk management program because of
the existing state and Federal regulation of these operations.
a. Propane Retailers. Commenters argued that the primary thrust of
the proposed regulations is to preclude unwarranted risk to the
surrounding community from an accidental failure of a storage tank.
They stated that the basic purpose of NFPA 58, the Storage and Handling
of Liquefied Petroleum Gases, is to prevent such releases through
design and engineering. This standard requires fire safety analyses,
distance separation between the storage tank and surrounding exposures,
and approval of plans for new or existing facilities by local
authorities. They noted that NFPA 58 has been adopted as state law in
48 of the 50 states and that the two remaining states (California and
Texas) have similar rules. They said that propane storage containers
are manufactured strictly to the specifications of the American Society
of Mechanical Engineers. According to commenters, emergency response
planning is already covered by NFPA-58, OSHA, and DOT. Because of
compliance with this standard and state law, commenters argued that the
rule would not provide any improvement in safety. A number of
commenters argued that propane was a heating fuel, not a chemical, and
did not pose the same level of risk as larger quantities of propane
held and used as a chemical feedstock. One commenter noted that OSHA
had exempted retailers and propane when used as a fuel.
In contrast, one state, which also regulates propane under its
state risk management program law, argued that propane is not
sufficiently regulated. It stated:
Fire authorities inspect each new facility before propane is
introduced. They concentrate on adequate fire water supply, electrical
code compliance, and distance separation requirements. Some fire
authorities are not technically capable of determining if the facility
piping system complies with NFPA 58. There are no follow-up inspections
to assure continuing compliance and no requirements under NFPA 58 for
training distribution plant operators or mechanics, written maintenance
programs, or procedures to control change. During our inspections, we
have identified some facilities that were not in conformance with NFPA
58.
EPA does not agree with commenters who are seeking exemption of
propane retailers and users. In a supplemental notice, EPA sought
comment on whether flammable substances, when used as a fuel, posed a
lesser intrinsic hazard than the same substances handled otherwise; no
data were submitted to EPA to justify this position. Further, EPA has
considerable accident data for propane that illustrates its potential
to affect the public located nearby. As a result, EPA continues to
believe that the hazard posed by propane is inherent and does not vary
with its use. Because of a lack of data justifying a different level of
hazard for flammables used as fuel, the Agency will not adopt a fuel
use exemption similar to that provided by OSHA.
Furthermore, EPA notes that many propane retailers are relatively
close to other commercial buildings and the community. Should a fire or
explosion occur, the community could be substantially impacted. EPA
believes the community and sources need to be aware of the potential
risk and understand the steps the source is taking to limit the
potential for a release. Because EPA recognizes that the full PSM
standard is not appropriate for propane retailers, EPA has assigned
propane retailers and users to Program 2. Compliance with most aspects
of Program 2 should be simple. For example, use of tanks that meet
relevant ASME standards and retention of the material safety data
sheets required by OSHA will satisfy the safety information
requirements of Sec. 68.48. Furthermore, EPA is developing a model risk
management program to help sources comply. This model is being based on
NFPA-58 standards, where they apply, so that sources already in
compliance with NFPA-58 will be in substantial compliance with Program
2. The model will help sources comply with other elements in a cost-
effective manner.
b. Ammonia Retailers. Ammonia is sold as a fertilizer from
agricultural retailers, primarily in the Middle West, Great Plains, and
West. Commenters stated that the retail fertilizer industry is already
governed by OSHA's Health and Safety Standards, which are specifically
applicable to the storage and handling of anhydrous ammonia. They noted
that this standard (29 CFR 1910.111) is based on ANSI K61.1 and sets
forth extensive
[[Page 31703]]
requirements applicable to the design, construction, location,
installation, and operation of anhydrous ammonia facilities. Measures
designed to adequately provide for the prevention of and response to
accidental releases are an integral part of this standard. Some
commenters said that if EPA did not exempt retail sources, ammonia
retailers should be deemed to be in compliance with the prevention
program. In addition, commenters said they are regulated under state
laws and are subject to EPCRA reporting requirements. Many commenters
argued that retail fertilizer sources have an excellent safety record.
They stated that retail fertilizer facilities are limited in size, do
not involve complex processing and manufacturing operations, and are
located in rural areas; consequently, they present a low risk to the
surrounding communities. Commenters objected to the regulations because
they would impose a substantial burden on what are small operations.
Some commenters argued that, because Congress had granted EPA the
authority to exempt ammonia when held by a farmer for use as a
fertilizer, EPA could grant retail ammonia sources the same exemption.
Although EPA recognizes that other regulatory programs address
safety for agricultural retailers and that such operations do not
involve complex processing or manufacturing, EPA disagrees with the
conclusions of these commenters. According to the industry, the typical
ammonia retailer has 200 tons of ammonia on site at times. Even in
rural areas, release of even a fraction of this quantity could affect
the community. Sources constructed and operated consistent with the
relevant ANSI standard will meet the EPA rule for subjects addressed by
both. EPA recognizes the OSHA standard for anhydrous ammonia handling
and hopes to work with the ammonia industry to develop a model risk
management program for ammonia retailers. This model would be based on
the OSHA standard, where applicable. The standard, however, does not
include some elements mandated by the CAA as part of the prevention
program, specifically training and maintenance programs. In addition,
EPA believes that there is a further need to convey information on
hazards and risk management practices of these operations to the public
and local entities. The model will provide guidance to help sources
comply with these elements in a cost-effective manner. Finally, EPA
does not agree that the Congressionally allowed exemption of farmers
can be extended to non-farmers. See 136 Cong. Rec. S2284 (March 7,
1990) (colloquy between Sens. Kerrey and Chafee).
3. Refrigeration Systems. A number of commenters stated that
ammonia used in a refrigeration system should be exempted from this
rule because these systems pose little risk to the public. One
commenter said that EPA should exempt roof-mounted air handlers, pipes,
and components. Some commenters said that the industry was already
overregulated and the imposition of this rule would be a burden.
The CAA requires EPA to impose this rule on any source with more
than a threshold quantity of a regulated substance. Therefore, EPA
cannot exempt ammonia refrigeration systems that contain more than
10,000 pounds of ammonia. In addition, ammonia refrigeration plants
have had a substantial number of accidents where the ammonia has
migrated offsite, indicating that these systems do pose a risk to the
public. At the same time, it should be noted that all of these
refrigeration systems are already covered by the OSHA PSM standard.
Consequently, the only additional steps sources will have to take are
to conduct the hazard assessment, comply with the emergency response
requirements, and file the RMP. EPA worked with the International
Institute of Ammonia Refrigeration to develop a model risk management
program that will facilitate compliance and reduce the burden on
sources (Model Risk Management Program for Ammonia Refrigeration). For
most of these sources, which have only one chemical, the RMP will be a
very brief document.
4. Other Operations. Comments were submitted on a range of other
industries.
The warehouse industry said that it should be exempted where
material is received and shipped in packages that are not opened;
commenters noted that they are covered by DOT packaging regulations.
EPA believes that warehouses must be covered if they have more than a
threshold quantity of a regulated substance. Under the OSHA definition
of process, which EPA has adopted, packages of a substance stored in
the same room may be counted toward the threshold quantity if the
packages could release their contents in the same event. EPA notes that
warehouse fires have created major incidents in the past 10 years, and
the Agency believes that warehouses should take the steps necessary to
prevent and mitigate such incidents. EPA is interested in working with
the industry to create a model risk management program that would help
sources develop a hazard assessment process that can account for
potentially changing contents of a warehouse.
Batch processors face related problems with changing chemicals on
site. EPA is willing to work with industry to develop a generic
approach to risk management programs. EPA believes, however, that most
batch processors will already be covered by OSHA PSM. The RMP Offsite
Consequence Analyses Guidance will reduce the burden of developing
multiple release scenario analyses. To minimize the need for continual
revision of their worst-case scenario to accommodate periodic inventory
changes, sources such as warehouses and batch processors may want to
analyze their expected chemical inventory in developing a scenario that
represents the worst case for the foreseeable future, even if the
substance is not currently in use at the source.
A number of commenters raised questions about coverage of POTWs. A
specific concern was EPA's statement in the NPRM that substances in
waste streams would not be covered by the rule. This statement is based
on the belief that the regulated toxic substances will not constitute
more than one percent of any waste stream received by a POTW.
Consequently, they will not be considered in calculations of threshold
quantities. No waste stream is likely to meet EPA's flammability
criteria. POTWs are likely, however, to be covered because of regulated
substances they use to treat wastes.
R. Implementing Agency Delegation
EPA received a number of comments to the NPRM regarding the role
and potential burden on LEPCs, SERCs, and other local agencies that may
result from implementation of the risk management program. In the SNPRM
preamble, EPA indicated that EPA and the states share the
responsibility for protecting public health and the environment and
encouraged state and local agencies to seek delegation for this program
because their participation is essential to successful chemical
accident prevention, preparedness and response and recognized by the
legislative history and the CAA section 112(r) requirements by
requiring that RMPs be submitted to states and local planning entities.
States are already involved in chemical emergency preparedness and
planning through the requirements of EPCRA.
Commenters on the SNPRM requested that the final rule clearly state
that EPA is the implementing agency unless a state or local agency is
granted a
[[Page 31704]]
delegation of authority under section 112(l). Several commenters
indicated that EPA should allow states the flexibility to designate the
most appropriate implementing agency, such as OSHA or the state agency
that administers and enforces the OSHA PSM standard, rather than
mandating the air permitting authority or a SERC agency in the final
rule. A number of commenters on the SNPRM and NPRM suggested that
existing local emergency planning agencies (e.g., LEPCs, fire
departments) would be best suited to serve as implementing agencies, in
part because they are closest to the communities at risk. However, many
commenters (including LEPCs that commented) argued that LEPCs would be
unprepared to take on such a burden and that even a minimal role in
implementing section 112(r), including mere storage of RMPs, would
overwhelm their limited resources and technical expertise. In addition,
commenters indicated that LEPCs, as mostly volunteer agencies, would
not and could not have the authority necessary to implement and enforce
the RMP rule.
The implementing agency is the state or local agency that obtains
delegation of the section 112(r) program under section 112(l). As
stated in the definition of Implementing Agency in today's rule, until
a state or local agency is granted delegation of the risk management
program under CAA section 112(l), EPA will serve as the implementing
agency. States may select any state or local agency to implement this
program, including an air permitting authority or a state OSHA program,
provided the agency has the expertise, legal authority and resources to
implement the program; the state must also have the authority to
enforce the program. EPA realizes that, in most cases, LEPCs will not
have the authority to be implementing agencies, but they should be
involved as much as possible in the program.
Commenters on the SNPRM suggested that EPA should avoid adding
specific implementation details to the final rule so that states would
have the flexibility to develop or continue programs that meet local
needs. Other commenters, however, suggested that EPA should issue
delegation guidance and to define the elements of an adequate state
program to avoid inconsistent interpretations and implementation of the
rule. Commenters representing companies that operate in several states
were particularly concerned about maintaining uniform implementation.
EPA has not added specific state or local implementation
requirements to today's rule because the Agency already promulgated
sufficient provisions for delegation of accident prevention programs
under section 112(r) to states and local authorities under 40 CFR part
63, subpart E, which implements CAA Sec. 112(l). As EPA discussed in
the SNPRM, implementing agencies will be responsible for such tasks as
reviewing RMP information, auditing and inspecting a percentage of
sources annually, requiring revisions to the RMP as necessary, and
assisting the permitting authority in ensuring compliance. States have
the flexibility to implement their own programs, however the CAA
requires that state or local program requirements must be as stringent
as EPA's and must include EPA regulated substances and processes. This
means that California, Delaware, Nevada, and New Jersey will need to
revise their existing program requirements, substance lists, and in
some cases, thresholds, to meet EPA's requirements and to obtain
section 112(r) delegation. EPA intends to issue additional guidance
that will help state and local agencies obtain program delegation. EPA
must review delegation requests submitted under 40 CFR part 63, subpart
E to ensure that state and local programs requirements are as stringent
as EPA's. With respect to nationwide uniform implementation, EPA notes
that the CAA specifically grants states the right to develop more
stringent requirements; consequently, there may be state-to-state
variations. Many states, however, are prohibited under their state laws
from adopting regulations that are more stringent than Federal rules.
One commenter on the NPRM indicated that EPA's estimation of the
costs of implementing the section 112(r) program is extremely low,
representing demands that are 65 to 75 percent lower than those
experienced by states implementing similar programs. LEPCs and state
governments were concerned about the imposition of section 112(r)
requirements on state and local governments as an unfunded mandate.
Several state agencies indicated that the considerable financial burden
imposed by section 112(r) implementation would prohibit them from
seeking section 112(l) delegation. Commenters encouraged EPA to develop
guidance on potential funding mechanisms, including descriptions of the
fee systems used by existing state programs for accidental release
prevention. Several commenters indicated that the political climate at
the state and local level would make it impossible to levy new, or
raise existing, fees.
Since states are not required to seek delegation of this program,
it does not constitute an unfunded mandate (see also section V.C).
Before EPA grants delegation, state or local agencies must show that
they have the resources to implement and enforce the risk management
program rules. EPA recognizes that there is no Federal funding
associated with implementation of section 112(r) but believes that the
tiered program levels and centralized electronic submission of RMPs in
today's rule substantially reduces the cost and resource demand for
state and local entities seeking delegation. State and local agencies
that fully implement section 112(r) will be able to develop and operate
a program that best fits their individual needs, resources, and
structures. As part of consideration of the costs to implement section
112(r), state and local agencies should also weigh the benefits of
integrating accident prevention with pollution prevention,
environmental protection, and worker and public health and safety at
the state level, and the benefits to local industry associated with
state, rather than Federal, implementation of this program. Many states
and local agencies have established a close working relationship with
the sources in their jurisdiction. In addition, a number of state and
local publicly owned sources are covered by this rule; state
implementation can serve to enhance compliance that may otherwise
require increased coordination with EPA. Although other states have
successfully ``self-funded'' their accident prevention programs with
various state authorized fees, EPA recognizes that it may be difficult
for state or local agencies to generate the resources necessary to fund
full section 112(r) implementation.
Several commenters on the SNPRM requested guidance and training for
sources, local entities, and implementing agencies on understanding
hazard assessments, and conducting program inspections, reviews, and
audits. EPA recognizes the need for guidance and training for
implementing agencies and sources. EPA plans to modify and to continue
offering its four-day Chemical Safety Audit workshop to other federal
agency representatives, state and local government officials, and
industry representatives as an introduction to chemical process safety,
current industry chemical accident prevention practices and
understanding the elements of the risk management program. EPA is ready
to assist state and local agencies through its regional offices to
coordinate state and local
[[Page 31705]]
programs and to help in obtaining program delegation and development of
resources to fund state or local programs. Region 4 in Atlanta,
Georgia, for example, has developed an integrated section 112(r) work
group of state and local air pollution control, SERC, and LEPC
representatives who participate in workshops, seminars, and pilot
studies designed to foster local program implementation and to build a
support network. EPA also continues to work with NOAA to enhance
modeling and information management tools contained in the Computer
Aided Management of Emergency Operations (CAMEO) and Areal Locations of
Hazardous Atmospheres (ALOHA) software for local emergency planners and
responders.
Two commenters on the NPRM requested that EPA address the issue of
tort liability in the event that an accidental release occurs after an
RMP has been submitted to the implementing agency. One other commenter
believed that the implementing agency must be held accountable for RMP
content while another believed that EPA must ensure that adequate
limits to implementing agency liability exist.
The primary responsibility for accident prevention rests with the
owners or operators of sources. Section 112(r) does not create a basis
for implementing agency tort liability under federal law. CAA
Sec. 112(r)(1). When EPA is the implementing agency, it is immune from
tort liability under state law. States that are implementing agencies
generally will have protection from liability under their state laws.
If a state has waived its sovereign immunity, EPA cannot take steps to
alter that situation. EPA encourages states concerned about this issue
to discuss the matter with their attorneys general to determine whether
state law protects them from liability.
S. Accident Information Reporting
In the SNPRM, EPA discussed the possibility of additional accident
reporting to support a variety of future accident prevention
activities. EPA proposed that sources either submit an OSHA PSM or
Program 3 investigation report for certain accidental releases or a
survey form that collects certain accident data. Otherwise EPA could
use existing authorities to collect additional accident data from
existing information, as needed.
Most commenters opposed EPA's proposal for additional accident
reporting requirements, especially the collection of accident
investigations prepared under Program 3 or OSHA PSM, because it
increases costs, it would have no benefit, it generates significant
liability issues, and it would divert limited resources away from
activities with greater public health benefit. Commenters supported the
use of existing reports since this approach should not generate an
additional burden, such reports are available through EPA and OSHA
under other regulations and they should be adequate for the objectives
outlined by EPA.
EPA agrees with commenters and has decided not to adopt any
additional accident reporting requirements. EPA will rely on the five-
year accident history for the immediate future and, based on that
information, determine whether additional information and requirements
are needed. EPA has the authority under CAA section 114 to investigate
releases and seek additional information as needed.
T. Other Issues
1. OSHA VPP. In the SNPRM, EPA asked whether the OSHA Voluntary
Protection Program (VPP) protects public health and the environment and
suggested that one approach to third party review (discussed below)
would be to assign sources that participate in VPP to Program 2. Many
commenters supported VPP participation as a criterion for assigning a
source to Program 2. Several of these commenters noted, however, that
because VPP sources are probably already covered by OSHA PSM, assigning
them to Program 2 would provide no reduction in burden or regulatory
relief. One commenter suggested that EPA could allow VPP sources the
flexibility to determine, with the LEPC, what the offsite consequence
analysis would cover. Seven commenters opposed VPP participation as a
Program 2 criterion because VPP does not address offsite consequences,
no evidence was presented that PSM is being carried out adequately at
VPP sources, and this approach would discriminate against other
voluntary programs.
After consideration of the comments, EPA has decided not to use VPP
participation as a Program 2 criterion, but has adopted language in the
final rule to exempt sources with a Star or Merit ranking under OSHA's
VPP from selection for audits based on the criteria in Sec. 68.220
(b)(2) and (b)(7); such a source may be audited if it has an accidental
release that requires an accident investigation under these
regulations. This decision recognizes that such sources have active
accident prevention programs and should not be regarded in the same way
as other sources within the same industry or as other sources in
general. In addition, it thus provides a similar degree of benefit with
respect to EPA auditing as it does with respect to OSHA auditing. EPA
agrees that VPP sources would gain no benefit by assignment to Program
2. EPA does not believe it is appropriate to adjust the hazard
assessment requirements for VPP sources; this information is essential
to local emergency preparedness and response and for public dialogue.
2. Qualified Third Party. In the SNPRM, EPA sought comments on
whether sources should be allowed to have qualified third parties
assist them in achieving and maintaining compliance. Eight commenters
supported third party reviews as a way to reduce implementing agency
efforts. One commenter stated that sources should be required to hire a
qualified third party to assess their activities. Most commenters,
however, expressed some reservations including greater cost if sources
were required to hire third parties, when many sources already have
staff qualified to implement the risk management program. Commenters
said that a third party review would be particularly costly for
retailers who will have model programs and stated that use of third
parties would add another layer of bureaucracy to the process. A number
of commenters said that EPA should fund third parties. Commenters also
stated that use of third parties might confuse the issue of who was
responsible for safety and for enforcement; they said that EPA must
make it clear that the owner or operator of the source remains
responsible for accidents and that the implementing agency retains
enforcement authority. Finally, several commenters asked who would
determine the qualifications of a qualified third party.
EPA is not requiring use of qualified third parties in this rule.
EPA, however, endorses the concept of offering sources the option of
using third parties to assist owner/operators in meeting their
obligations under the rule. Based on the comments, EPA recognizes that
any third party proposal must:
Not weaken the compliance responsibilities of source
owner/operators;
Offer cost savings and benefits to the industry,
community, and implementing agencies that significantly exceed the cost
of implementing the qualified third party approach;
Lead to a net increase in process safety, particularly for
smaller, less technically sophisticated sources; and
Promote cost-effective agency prioritization of
implementing agency oversight resources.
[[Page 31706]]
Several key issues need further discussion before the use of a
qualified third party may be offered as an option. These include
qualification criteria, certification procedures, liability, and other
critical issues associated with the use of a qualified third party.
Therefore, following promulgation of this rule, EPA proposes to call a
meeting to solicit input from trade associations, professional and
technical societies, states, and other interested parties to address
these issues and investigate the need for developing a process and a
national exam to qualify third parties.
3. Documentation. Commenters expressed a number of concerns about
the level of recordkeeping and the availability of information. Some
commenters stated that records need to be maintained for longer than
five years; commenters suggested 10 years, 20 years, and the life of
the source. One commenter suggested that records should be kept for the
life of the process and then seven years thereafter to ensure that
records would be available if a lawsuit was initiated. Industry
commenters said that only current documents and data should be
maintained to prevent confusion from having multiple versions of the
same document. One commenter stated that policies and procedures should
be kept until they are superseded, then they should be destroyed;
retaining old, superseded information is unsafe and unacceptable and
can result in accidents.
One commenter said that sources should be required to develop and
maintain a master index or catalogue of documents relevant to the
proposed rule to support public access. Another commenter stated that,
in addition to maintaining records supporting the implementation of the
risk management program, the owner or operator should submit the
records to the implementing agency. A third commenter said that the
rule should require that all records supporting compliance with the
rule be organized and readily available through the designated contact
person at the source to the implementing agency for inspection.
Other commenters said the proposed recordkeeping was excessive. One
stated that EPA is forcing industries towards ``defensive universal
recordkeeping,'' retaining mountains of documents because EPA has not
specified what records need to be kept. Another commenter said that an
examination of the proposal indicated that no fewer than about 22
separate written documents are required to be maintained on site or
submitted to the responsible regulatory agency and other parties. One
commenter noted that more resources will be spent on filling out
paperwork than on actual spill prevention.
In the final rule, EPA has adopted the OSHA PSM language for
Program 3 processes; therefore, documentation for PSM elements is
dictated by that rule. For other elements of the risk management
program and for processes in other tiers, EPA has set a period of five
years for the maintenance of supporting documentation. EPA agrees with
commenters that only current versions of documents and procedures
should be retained. On the issue of records submitted to the
implementing agency, EPA believes that the provisions outlined in the
final rule (as described in Subpart G to part 68) will limit the volume
of such documentation. The implementing agency and EPA will have access
to all on-site documentation when needed. Much of the on-site
documentation will be confidential and protected under Section 114(c)
of the CAA. The burden on the implementing agency will be substantially
reduced because it will not have to establish protected trade secret
files and procedures.
Finally, EPA agrees with commenters that level of recordkeeping
should be kept as low as possible consistent with EPA's statutory
mandate. EPA has reduced the documentation requirements for Program 2
processes (particularly with respect to the prevention program) because
it believes that for these sources, the benefit of the records does not
offset the cost of creating and maintaining files.
IV. Section-by-Section Analysis of the Rule
This section discusses specific changes to the rule that are not
otherwise described in this preamble. The rule has been renumbered to
include new sections and subparts. The hazard assessment requirements
have been divided into separate sections in subpart B. The Program 2
prevention program requirements are in subpart C; Program 3 prevention
program elements are in Subpart D. Emergency response requirements are
in subpart E, RMP requirements in subpart G. The registration
requirement, proposed Sec. 68.12, has been moved to the RMP subpart.
Tables 3 and 4 present the distribution of NPRM and SNPRM sections and
derivation of final rule sections.
Table 3.--Distribution Table
------------------------------------------------------------------------
NPRM and SNPRM citations Final rule citations
------------------------------------------------------------------------
68.3 Definitions..................... 68.3 Definitions.
68.10 Applicability................... 68.10 Applicability.
68.12 Registration.................... 68.160 Registration.
68.13 No Impact Sources (Tier 1)...... 68.10(b) Applicability.
68.12(b) General Requirements.
68.14 Streamlined Risk Management Subpart C Program 2 Prevention
Program (Tier 2). Program (68.48-68.60).
68.15 Hazard Assessment............... Subpart B Hazard Assessment
(68.20-68.42).
68.20 Prevention Program--Purpose..... Deleted.
68.22 Prevention Program--Management 68.15 Management.
System.
68.24 Prevention Program--Process 68.67 Process Hazard Analysis.
Hazard Analysis.
68.26 Prevention Program--Process 68.65 Process Safety
Safety. Information.
68.28 Prevention Program--Standard 68.69 Operating Procedures.
Operating Procedures.
68.30 Prevention Program--Training.... 68.71 Training.
68.32 Prevention Program--Maintenance 68.73 Mechanical Integrity.
(mechanical integrity).
68.34 Prevention Program--Pre-Startup 68.77 Pre-Startup Review.
Review.
68.36 Prevention Program--Management 68.75 Management of Change.
of Change.
68.38 Prevention Program--Safety 68.58 Compliance Audits.
Audits.
68.79 Compliance Audits.
68.40 Prevention Program--Accident 68.60 Incident Investigation.
Investigation.
68.81 Incident Investigation.
68.45 Emergency Response Program...... 68.95 Emergency Response
Program.
[[Page 31707]]
68.50 Risk Management Plan............ Subpart G Risk Management Plan
(68.150-68.190).
68.55 Recordkeeping Requirements...... 68.200 Recordkeeping.
68.58 Permit Content and Air 68.215 Permit Content and Air
Permitting Authority Requirements. Permitting Authority or
Designated Agency
Requirements.
68.60 Audits.......................... 68.220 Audits.
------------------------------------------------------------------------
Table 4.--Derivation Table
------------------------------------------------------------------------
Final rule citations NPRM and SNPRM citations
------------------------------------------------------------------------
68.3 Definitions..................... 68.3 Definitions.
68.10 Applicability................... 68.10 Applicability, SNPRM
68.13.
68.12 General Requirements............ SNPRM 68.13, 68.14.
68.15 Management...................... 68.22 Prevention Program--
Management.
68.20 Applicability (Hazard 68.10 Applicability.
Assessment).
68.22 Offsite Consequence Analysis 68.15(e) Hazard Assessment.
Parameters (Hazard Assessment).
68.25 Worst-Case Release Analysis 68.15(c) Hazard Assessment.
(Hazard Assessment).
68.28 Alternative Release Analysis 68.15(d) Hazard Assessment.
(Hazard Assessment).
68.30 Defining Offsite Impacts-- 68.15(e)(3) Hazard Assessment.
Population (Hazard Assessment).
68.33 Defining Offsite Impacts-- 68.15(e)(4) Hazard Assessment.
Environment (Hazard Assessment).
68.36 Review and Update (Hazard 68.15(g) Hazard Assessment.
Assessment).
68.39 Documentation (Hazard 68.15(h) Hazard Assessment.
Assessment).
68.42 Five-year Accident History 68.15(f) Hazard Assessment.
(Hazard Assessment).
68.48 Safety Information (Program 2).. 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.26 Process Safety
Information.
68.50 Hazard Review (Program 2)....... 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.24 PHA.
68.52 Operating Procedures (Program 2) 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.28 SOPs.
68.54 Training (Program 2)............ 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.30 Training.
68.56 Maintenance (Program 2)......... 68.14(b) Streamlined Risk
Management Program (Tier 2);
68.32 Maintenance.
68.58 Compliance Audits (Program 2)... 68.38 Prevention Program--
Safety Audits.
68.60 Incident Investigation (Program 68.40 Prevention Program--
2). Incident Investigation.
68.65 Process Safety Information 68.26 Prevention Program--
(Program 3). Process Safety.
68.67 Process Hazard Analysis (Program 68.24 Prevention Program--
3). Process Hazard Analysis.
68.69 Operating Procedures (Program 3) 68.28 Prevention Program--
Standard Operating Procedures.
68.71 Training (Program 3)............ 68.30 Prevention Program--
Training.
68.73 Mechanical Integrity (Program 3) 68.32 Prevention Program--
Maintenance (mechanical
integrity).
68.75 Management of Change (Program 3) 68.36 Prevention Program--
Management of Change.
68.77 Pre-Startup Review (Program 3).. 68.34 Prevention Program--Pre-
Startup Review.
68.79 Compliance Audits (Program 3)... 68.38 Prevention Program--
Safety Audits.
68.81 Accident Investigation (Program 68.40 Prevention Program--
3). Accident Investigation.
68.83 Employee Participation (Program 68.24(f) Process Hazard
3). Analysis.
68.85 Hot Work Permit (Program 3)..... NPRM Preamble (58 FR 54205).
68.87 Contractors (Program 3)......... NPRM Preamble (58 FR 54205).
68.90 Applicability (Emergency
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
68.45(a) Emergency Response
Response). Program.
68.95 Emergency Response Program...... 68.45(b)-(f) Emergency Response
Program.
68.150 Submission (Risk Management 68.50(a) Risk Management Plan.
Plan).
68.155 Executive Summary (Risk 68.50(a) Risk Management Plan.
Management Plan).
68.160 Registration (Risk Management 68.12 Registration.
Plan).
68.165 Offsite Consequence Analysis 68.50(c) Risk Management Plan.
(Risk Management Plan).
68.168 Five-Year Accident History 68.15(f) Hazard Assessment.
(Risk Management Plan).
68.170 Prevention Program/Program 2 68.14(b) Streamlined Risk
(Risk Management Plan). Management Program (Tier 2);
68.50(g).
68.175 Prevention Program/Program 3 68.50(g) Risk Management Plan.
(Risk Management Plan).
68.180 Emergency Response Program 68.50(e) Risk Management Plan.
(Risk Management Plan).
68.185 Certification (Risk Management 68.50(g) Risk Management Plan.
Plan).
68.13(a) No Impact Sources.
68.190 Updates (Risk Management Plan). 68.50(h) Risk Management Plan.
68.200 Recordkeeping.................. 68.55 Recordkeeping
Requirements.
68.210 Availability of Information to 42 U.S.C. 7412.
the Public.
68.215 Permit Content and Air 68.58 Permit Content and Air
Permitting Authority or Designated Permitting Authority
Agency Requirements. Requirements.
68.220 Audits......................... 68.60 Audits.
Appendix A--Table of Toxic Endpoints... 68.15(h)(3)(iii) Hazard
Assessment.
------------------------------------------------------------------------
Section 68.3, Definitions, has been revised to add or delete a
number of definitions. A definition of administrative controls has been
added that is derived from the definition used
[[Page 31708]]
by the Center for Chemical Process Safety (CCPS).
The definition of analysis of offsite consequences has been
deleted.
A definition of catastrophic release has been added that is adapted
from OSHA's definition of catastrophic release (29 CFR 1910.119);
OSHA's language on danger to employees in the workplace has been
changed to imminent and substantial endangerment to public health and
the environment.
A definition of classified information has been added. The
definition is adopted from the Classified Information Procedures Act.
The proposed definition of covered process is unchanged.
The proposed definition of designated agency has been revised to
indicate that the state, not the state air permitting authority, shall
select an agency to conduct activities required by Sec. 68.215.
As discussed above, a definition of environmental receptor has been
added to list the receptors of concern.
The definition of full-time employee has been deleted.
A definition of hot work has been adopted verbatim from the OSHA
PSM standard.
The definition of implementing agency is adopted as proposed in the
SNPRM.
A definition of injury has been added.
A definition of major change has been added to clarify the types of
changes that necessitate actions to manage change. The definition will
help sources understand when they are required to take steps to review
their activities for new hazards.
A definition of mechanical integrity has been added to clarify the
requirements of maintenance sections.
A definition of medical treatment has been added to clarify what
constitutes an injury. The definition is adapted from an OSHA
definition used by sources in logging occupational injuries and
illnesses.
The proposed definition of mitigation has been changed by adding a
definition of active mitigation.
A definition of offsite has been changed to clarify that areas
within the source would be considered offsite if the public has routine
and unrestricted access during or outside of business hours. Areas
within a source's boundaries that may be considered offsite are public
roads that pass through sections of the site and natural areas owned by
the source to which the public has unrestricted access. For some sites,
parking lots within the boundary may be offsite if the source cannot
restrict access.
A definition of population has been added. Population is defined as
the public.
A definition of public has been added to state that all persons
except employees and contractors at the stationary source are members
of the public. A number of commenters stated that employees at other
facilities should not be considered part of the public. EPA disagrees
because these employees may not be trained in protective actions or
have protective equipment appropriate for releases from covered
processes.
A definition of public receptor has been added. Some commenters
stated that EPA should include public roads within this definition. EPA
decided that inclusion of public roads was unwarranted. EPA recognizes
that people on public roads may be exposed during a release. In most
cases, however, vehicles on public roads will be able to leave the area
quickly and further access can be blocked, especially in isolated
areas. If public roads were included, almost no sources would be
eligible for Program 1 because there will be public roads leading to
the source. In those cases where public roads are heavily traveled,
there will be other public receptors near the source and, therefore,
the source's processes will not qualify for Program 1.
OSHA's definition of replacement in kind has been adopted.
The definition of significant accidental release has been deleted.
A definition of typical meteorological conditions has been added
which means the temperature, wind speed, cloud cover, and atmospheric
stability class prevailing at the source. Data on the first three of
these are available from local meteorological stations (e.g.,
airports). Atmospheric stability class can be derived from cloud cover
data.
The definition of worst-case release has been revised to clarify
that the release is the one that leads to the greatest distance to the
applicable endpoint.
Section 68.10, Applicability, has been revised to change the term
``tier'' to ``Program.'' The section now details the eligibility
criteria for all three programs. Paragraph (a) has been revised to be
consistent with statutory language on compliance dates. Sources must
comply with the requirements by June 21, 1999, three years after EPA
first lists a substance, or the date on which a source first becomes
subject to this part, whichever is latest. After June 21, 1999, sources
that begin using a regulated substance that has been listed for at
least three years must be in compliance with the requirements of part
68 on the day they bring the substance on site above a threshold
quantity.
The Program 1 eligibility requirements have been revised to clarify
that the criteria are applied to a process, not the source as a whole,
as discussed above. EPA has deleted requirements for explosives because
the Agency is proposing to delist explosives. The types of accidents
that will disqualify a process from Program 1 are now specified in the
rule as those accidental releases of a regulated substance that led to
offsite exposure to the substance, its reaction products, overpressure
generated by an explosion involving the substance, or radiant heat
generated by a fire involving the substance which resulted in offsite
death or injury (as defined by the rule), or response or restoration
activities at an environmental receptor. These accidental release
criteria eliminate the need for a definition of significant accidental
release, which has been deleted. Offsite environmental response or
restoration would include such activities as collection, treatment and
disposal of soil, shutoff of drinking water, replacement of damaged
vegetation, or isolation of a natural areas due to contamination
associated with an accidental release. The distance calculation
equation for flammables has been dropped, and the worst-case release
endpoint for flammables is specified which allows the source to use the
reference tables or their own methodology to determine the distance to
the endpoint. The requirement that the community have an EPCRA
emergency response plan has been replaced by a requirement that the
source coordinate emergency response procedures with local community
responders.
As discussed above, the eligibility criteria for Program 2 and 3
have been changed. Both apply to processes, not sources.
Paragraph (e) states that if a process no longer meets the
eligibility criteria of its Program level, the source must comply with
the requirements of the new Program level and the update the RMP
according to Sec. 68.190. This paragraph clarifies the responsibility
of the source when a process becomes ineligible for a Program level
(e.g., public receptors move within the distance to an endpoint for a
Program 1 process or OSHA changes the applicability of its PSM
standard).
Proposed Sec. 68.12, Registration, has been dropped. Registration
requirements are now part of the RMP requirements in subpart G,
Sec. 68.160.
New Sec. 68.12, General Requirements, has been added to provide a
roadmap
[[Page 31709]]
for sources to use to identify the requirements that apply to processes
in each of the three tiers. The Program 1 requirements, in proposed
Sec. 68.13, have been included in this section. Owners or operators of
Program 1 processes are required to analyze and document in the RMP the
worst-case release to ensure that they meet the eligibility criteria of
no public receptors within the distance to the endpoint. As discussed
above, the requirement to post signs has been dropped. The
certification statement has been revised to be consistent with the
eligibility requirements. If a source has more than one Program 1
process, a single certification may be submitted to cover all such
processes.
The Program 2 requirements specify the sections of the rule that
apply to these processes.
The Program 3 requirements specify the sections of the rule that
apply to these processes.
Proposed Sec. 68.22, Management, has been moved from the prevention
program to Sec. 68.15 in subpart A-General. The section has been
adopted as proposed except that the purpose sentence in paragraph (a)
has been dropped and a phrase at the beginning of paragraph (b) has
been deleted as unnecessary.
A new subpart B has been created to cover the hazard assessment
requirements. The proposed Sec. 68.15 has been divided into separate
sections to cover the parameters, the different types of analyses, the
identification of offsite populations and environments, documentation
and updates, and the five-year accident history. EPA believes that
limiting each section to a single topic will make the rule easier to
understand.
Section 68.20 has been added to specify which hazard assessment
requirements apply to Program 1, 2, and 3 processes. All sources are
required to complete a worst-case release analysis for regulated
substances in covered processes, based on the requirements of
Sec. 68.25. Program 2 and 3 processes must also perform alternative
release analyses required by Sec. 68.28. All sources must complete the
five-year accident history for all covered processes.
A new Sec. 68.22 has been added to list the parameters to be used
in the offsite consequence analyses. Owners or operators who choose to
use their own air dispersion modeling tools must use the parameters
specified in paragraphs (a), (e), (f), and (g) of this section; they
must use the meteorological parameters specified in paragraph (b) of
this section unless they can demonstrate that the conditions do not
exist at their site. Paragraph (c) specifies the ambient temperature
and humidity for worst case (highest daily maximum over the previous
three years and average humidity); if a source uses the guidance, it
may use average temperature and humidity (25 deg. C and 50 percent) as
default values. EPA recognizes that these values are less conservative
than the worst-case meteorological conditions, but determined that they
represent a reasonable average to be used for developing tables.
Providing tables for a variety of temperatures and humidity would have
made the guidance much more voluminous and difficult to use. EPA is
requiring sources that use dispersion models instead of the guidance to
use actual temperature and humidity data applicable to the site. EPA
believes this approach represents a reasonable tradeoff. The guidance
generates conservative results even with the less conservative
assumptions about temperature and humidity; air dispersion modeling
will generally produce less conservative results and, therefore, should
be based on actual data for these variables. Average data applicable to
the source may be used for alternative scenarios. Paragraph (d)
requires that the release height for worst-case be at ground level
(zero feet). Paragraph (e) specifies that urban or rural topography be
used as appropriate in modeling. Paragraph (f) requires sources to use
models or tables appropriate for the density of the substance being
released (e.g., dense gases must be modeled using tables or models that
account for the behavior of dense gases). Dense gases are typically
those that are heavier than air as well as those that form aerosols and
behave as if they are heavier than air upon release. For worst-case
releases, liquids (other than gases liquefied by refrigeration only)
shall be considered to be released at the highest daily maximum
temperature or at process temperature, whichever is higher. For
alternative scenarios, substances may be considered to be released at
ambient or process temperatures as appropriate. Owners or operators may
choose to use EPA's RMP Offsite Consequence Analysis Guidance for their
offsite consequence analyses. All of the parameters specified here are
reflected in this guidance.
A new Sec. 68.25 has been added on the worst-case release analysis.
As discussed above, the section requires one worst-case release for
toxics and one for flammables. If additional scenarios, for either
class of substances, would potentially expose receptors not exposed by
the worst-case release, the additional scenario shall be analyzed and
reported. This provision is to take into account the possibility that
at large sources, vessels at opposite ends of the source may expose
different populations.
The section specifies how maximum quantity in a vessel or pipe is
to be determined, the scenarios to be considered for toxic gases, toxic
gases liquefied by refrigeration only, toxic liquids, and flammables,
the parameters to be used, consideration of passive mitigation, and
factors to be considered in selecting the worst-case scenario. The
section also specifies that sources may use proprietary models if the
source provides the implementing agency access to the model and
explains differences between the model and publicly available models,
if requested. This approach will allow sources to use the most
appropriate models available, while preserving the transparency of the
results.
A new Sec. 68.28 has been added on alternative release scenario
analysis. As discussed above, the section requires one alternative
release analysis for all flammables held above the threshold in
processes at the source and one alternative release analysis for each
toxic held above the threshold in processes. For each scenario, the
owner or operator shall select a scenario that is more likely to occur
than the worst case; and that will reach an endpoint offsite, unless no
such scenario exists. The section includes a list of scenarios that
owners/operators may want to consider, but does not dictate a
particular scenario. EPA has provided additional direction and
suggestions for defining these scenarios in the RMP Offsite Consequence
Analysis Guidance. As noted above, the section references the
parameters to be used and allows consideration of both passive and
active mitigation systems. The section specifies factors to be
considered in selecting alternative scenarios; specifically, sources
shall consider releases that have been documented in the five-year
accident history; or failure scenarios identified through the PHA or
hazard review.
A new Sec. 68.30 has been added on defining offsite impacts--
population. The section specifies that populations are to be defined
for a circle with a radius that is the distance to the endpoint. Owners
or operators are required only to estimate the residential population
within the circle to two significant digits and may use Census data to
make these estimates. Owners or operators are also required to note, in
the RMP, the presence of any major institutions, such as schools,
hospitals, prisons, public recreational areas, arenas, and major
commercial and
[[Page 31710]]
industrial developments, but they are not required to estimate the
number of people present at such sites. These additional locations are
those that would normally be shown on area street maps.
A new Sec. 68.33 has been added on defining offsite impacts to the
environment. As discussed above, the owners or operators are required
only to identify any environmental receptors within the circle with a
radius determined by the distance to the endpoint. The owners or
operators are not required to assess the potential types or degree of
damage that might occur from a release of the substance. The
environmental receptors are those that can be identified on U.S.
Geological Survey local topographical maps or maps based on U.S.G.S.
data.
A new Sec. 68.36 has been added to list the requirements for
reviewing and updating the offsite consequence analysis. As proposed,
if no changes occur at the site, the analyses must be reviewed and
updated at least once every five years. If changes at the site occur
that would reasonably be expected either to increase or decrease the
distance to the endpoint by a factor of two or more, owners/operators
are required to update the offsite consequence analysis within six
months. The time for the reanalysis has been changed to six months to
make it consistent with the update requirements for the RMP. The
proposed requirement for reviewing the analyses based on offsite
changes has been deleted. A number of commenters objected to the
requirement because it would have compelled them to track changes over
very large areas. Because the distance to the endpoints, especially for
toxics, may be as much as 40 km, the area affected could easily exceed
1,000 square miles. EPA agreed with commenters that there was little
benefit from requiring sources to track offsite changes and redo
analyses because the public is aware of the changes.
A new Sec. 68.39 has been added to list the documentation related
to the offsite consequence analyses that must be retained on site. For
both types of scenarios, the documentation shall include a description
of the scenarios identified, assumptions and parameters used, the
rationale for the selection of specific scenarios; assumptions shall
include use of mitigation and any administrative controls that were
assumed to limit the quantity that could be released. Documentation
shall include the effect of the mitigation and controls on the release
quantity. The documentation shall also include the estimated quantities
released, release rates, and durations of release. The owners or
operators shall also identify the methodology used to determine
distance to endpoints (i.e., EPA's guidance or an air dispersion model)
and the data used to estimate population and environmental receptors
potentially affected. EPA has deleted the proposed requirement for
documentation of endpoints because these are now dictated by the rule.
EPA has also dropped the requirement for documentation of distance
calculations; distances will either be determined from EPA's reference
tables or by an air dispersion model.
A new Sec. 68.42 has been added to detail the requirements for the
five-year accident history. As discussed above, the accident history is
limited to accidental releases of listed substances from covered
processes only. The only accidental releases that must be included in
the history are those that resulted in deaths, injuries, or significant
property damage on site, or known offsite deaths, injuries,
evacuations, sheltering in place, property damage, or environmental
damage. Although language related to the types of environmental damage
listed in the proposed rule has been dropped, EPA intends that
environmental damage not be limited to environmental receptors; events
where any known environmental impact of any kind (e.g., fish or animal
kills, lawn, shrub, or crop damage), should be included in the history.
The data required on each accident include date, time, and
approximate duration of the release; chemical(s) released; estimated
quantity in pounds; the type of release event and its source; weather
conditions (if known); on-site impacts and known offsite impacts; the
initiating event and contributing factors (if known); whether offsite
responders were notified (if known); and operational or process changes
that resulted from the release. Estimates may be provided to two
significant digits. EPA expects that for accidents that occur after the
publication of this rule, sources will be able to document weather
conditions, initiating events and contributing factors, and
notification of offsite responders as these items would be part of the
incident investigation. The Agency recognizes, however, that for
incidents that occur before the rule is final, sources may not have
this information unless OSHA PSM already would require the source to
gather such information (e.g., initiating event and contributing
factors). EPA has dropped the requirement that the concentration of the
released substance be reported. Concentration at the point of release
is assumed to be 100 percent except for substances in solution, where
the concentration at the point of release is assumed to be the
percentage of the solution as held or processed. The data provided will
allow the source or the public to estimate the concentration offsite.
Because the five-year accident history will initially cover
releases that occurred before this rule is promulgated, EPA is
requiring reports on weather conditions only if the source has a
record. For future releases, EPA encourages the owners or operators
keep a record of wind speed and temperature if possible as these
conditions have a significant impact on the migration of a release
offsite. The rule specifies that the source must document known offsite
impacts. The source is not required to conduct research on this
subject, but must report impacts of which it is aware through direct
reporting to the source or claims filed, or reasonably should have been
aware of from publicly available information. The source is not
required to verify the accuracy of public or media reports.
A new subpart C has been created to include the requirements of the
prevention program for Program 2 processes.
New Sec. 68.48 details the safety information that sources will be
required to develop. The information is a subset of the information
required under the OSHA rule and is limited to those items that are
likely to apply to Program 2 processes: MSDSs, maximum intended
inventory, safe upper and lower process parameters, equipment
specifications, and the codes and standards used to design, build, and
operate the process. Because Program 2 processes are generally simple,
EPA determined that items such as process chemistry, process flow
diagrams, detailed drawings on equipment, and material and energy
balances are not necessary for these processes. Evaluation of
consequences of deviations will be handled under the process review and
the offsite consequence analysis.
Paragraph (b) of Sec. 68.48 requires owners or operators to ensure
that the process is designed in compliance with good engineering
practices. The paragraph states that compliance with Federal or state
regulations that address industry-specific safe design or with
industry-specific design codes may be used to demonstrate compliance.
NFPA-58 for propane handlers and OSHA's rule for ammonia handling (29
CFR 1910.111) are examples of such design codes.
[[Page 31711]]
The final paragraph of Sec. 68.48 requires owners or operators to
update the safety information if a major change makes it inaccurate.
New Sec. 68.50 sets the requirements for a hazard review. The
section lists the hazards and safeguards that the owners or operators
must identify and review. The section states that owners or operators
may use checklists, such as those provided in model risk management
programs, to conduct the review. For processes that are designed to
industry standards (e.g., NFPA-58) or Federal/state design rules,
owners or operators need only check their equipment closely to ensure
that it has been fabricated and installed according to the standards or
rules and is being operated appropriately. In this case, the standard
or rule-setting body has, in essence, conducted the hazard review and
designed the equipment to reduce hazards. Like the PHA required under
PSM, the hazard review must be documented and the findings resolved.
The review must be updated at least once every five years or when a
major change occurs. A streamlined version of the PHA requirement, the
review recognizes that for simple processes some of the OSHA
requirements, such as the requirement for a team and a person trained
in the technique, may not be necessary. Most Program 2 processes will
have model risk management programs that will assist owners or
operators in conducting the review.
New Sec. 68.52 covers operating procedures. The section allows
owners or operators to use standardized procedures developed by
industry groups or provided in model risk management programs as a
basis for the SOPs. Owners or operators will need to review
standardized SOPs to ensure that they are appropriate for their
operations; some may need to be tailored. The steps covered in the SOP
are adapted from the OSHA PSM standard. Certain elements of the PSM
requirement (e.g., safety and health consideration) were dropped
because they are generally covered in training provided under the OSHA
hazard communication standard. Other elements were not included because
they are covered by other OSHA rules or may not apply to the kinds of
sources in Program 2. The section requires that the SOPs be updated
whenever necessary.
New Sec. 68.54 covers training and is a streamlined version of the
OSHA PSM requirement. The primary difference with the OSHA PSM training
element is that the documentation requirements have been dropped. EPA
believes that for Program 2 sources, which generally will have simple
processes and few employees involved in the process, the level of
documentation required by OSHA PSM is not needed. The section
specifically states that training conducted to comply with other
Federal or state rules or industry codes may be used to demonstrate
compliance with the section if the training covers the SOPs for the
process. Workers must be retrained when SOPs change as a result of a
major change.
New Sec. 68.56 covers maintenance and requires owners or operators
to prepare and implement procedures for maintenance and train workers
in these procedures. The owners or operators are also required to
inspect and test process equipment consistent with good engineering
practices. The OSHA list of equipment has been dropped because it
seemed too detailed for the simpler Program 2 processes. Similarly, the
OSHA PSM requirements for documentation, equipment deficiencies, and
quality assurance seem too burdensome given the type of processes in
Program 2. EPA emphasizes that sources should address equipment
deficiencies when they arise.
New Secs. 68.58 and 68.60 on compliance audits and accident
investigation are adopted directly from the OSHA PSM standard. EPA
believes that these two elements are critical to good prevention
practices and that no changes are needed from the OSHA requirements.
EPA has added a provision to clearly indicate that audit reports more
than five-years old need not be retained.
The Program 3 prevention program is codified in new subpart D. As
explained above, the subpart adopts the OSHA PSM standard with only
minor editorial changes necessitated by the different statutory
authorities of the two agencies. Throughout the subpart, ``employer''
has been changed to ``owner or operator,'' ``facility'' to ``stationary
source,'' and ``highly hazardous chemical'' to ``regulated substance.''
EPA has reordered the elements somewhat so that the order reflects the
progression in which sources will generally implement the program. For
example, process safety information, which is needed for the PHA, now
precedes that section. Pre-startup review, which is the last step of
management of change procedures, now follows management of change. The
reordering does not reflect any change in the content.
Section 68.65, process safety information, is adopted directly from
OSHA. The only changes are the following: references to other
requirements have been changed to reflect the appropriate EPA section
numbers; the phrase ``highly hazardous chemical'' has been changed to
``regulated substance''; the word ``standard'' has been changed to
``rule'' in paragraph (a); and the date when material and energy
balances are needed for new processes has been changed to June 21,
1999. The words ``including those affecting the safety and health of
employees'' has been deleted from the requirement for the evaluation of
the consequences of deviations (paragraph (c)(1)(v)) because EPA has no
authority to regulate the workplace. Further, EPA believes this change
reflects EPA's desire that sources implement one prevention program
that protects the safety and health of workers, the public and the
environment and should have no effect on sources already complying with
the OSHA PSM rule.
Section 68.67, process hazard analysis, has been adopted from the
OSHA rule with a few changes. The OSHA schedule for completion of PHAs
has been replaced with the compliance date of this rule; a new sentence
has been added to state that PHAs conducted to comply with OSHA PSM are
acceptable as the initial PHA under this rule. These PHAs shall be
updated and revalidated based on their OSHA completion date. This
provision will ensure that sources do not need to duplicate PHAs
already completed or change their update schedule.
In paragraph (c)(2), the phrase ``in the workplace'' has been
deleted from the requirement to identify previous incidents with the
potential for catastrophic consequences because EPA does not have the
authority to regulate the work place. EPA believes that this change
will have no effect on the rule; any incident with the potential for
catastrophic consequences in the workplace will also have had the
potential for catastrophic consequences offsite. Similarly, the phrase
``on employees in the workplace'' has been deleted from paragraph
(c)(7), which requires a qualitative evaluation of a range of the
possible safety and health effects of failure of controls. By deleting
the language, rather than changing it, EPA is consistent with its
authority without imposing any new requirements on sources. A new
sentence has been added to paragraph (f) to state that PHAs updated and
revalidated under the OSHA rule are acceptable for EPA's purposes.
Throughout this section, internal references have been changed.
To maintain consistency with OSHA PSM, proposed paragraph (j),
which would have required the evaluation of mitigation and detection
systems, has been dropped, as have proposed
[[Page 31712]]
references to offsite consequences and public health and the
environment. Evaluation of mitigation and detection systems is normally
part of the PHA process and of management's decisions on implementing
recommendations and, therefore, EPA decided that a separate requirement
was not needed. EPA will collect information on monitoring, detection,
and mitigation systems used in each Program 2 and 3 process as part of
the RMP. Proposed paragraph (a), which was advisory, has been dropped.
Section 68.69, Operating Procedures, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator.''
Proposed paragraph (a) has been deleted to ensure consistency with
OSHA.
Section 68.71, Training, has been adopted verbatim from OSHA except
for changing ``employer'' to ``owner or operator'' and changes in
referenced sections. Proposed paragraph (a) has been deleted to ensure
consistency with OSHA, as has proposed paragraph (e).
Section 68.73, Mechanical Integrity proposed as Maintenance, has
been adopted verbatim from OSHA except for changing ``employer'' to
``owner or operator.'' Proposed paragraph (a) has been deleted to
ensure consistency with OSHA. The proposed requirements to develop a
critical equipment list, document training, and ``maintain'' as well as
inspect and test under paragraph (d) have been dropped to ensure
consistency with OSHA.
Section 68.75, Management of Change, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) has been deleted
to ensure consistency with OSHA. EPA's proposed paragraph (b), which
defined changes not covered by the section, has also been dropped in
favor of OSHA's definition of ``replacement in kind.''
Section 68.77, Pre-Startup Review, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) and the
reference to emergency response training in proposed paragraph (c)(4)
have been deleted to ensure consistency with OSHA.
Section 68.79, Compliance Audits, has been adopted verbatim from
OSHA except for changing ``employer'' to ``owner or operator'' and
changes to referenced sections. Proposed paragraph (a) has been deleted
to ensure consistency with OSHA.
Section 68.81, Accident Investigation, has been adopted verbatim
from OSHA except for changing ``employer'' to ``owner or operator'' and
``highly hazardous chemical'' to ``regulated substance'' and changes to
referenced sections. Proposed paragraphs (a) and (b), the latter of
which would have required written procedures, have been deleted to
ensure consistency with OSHA. References to significant accidental
release have been dropped because the phrase is no longer used.
Although EPA has adopted OSHA's language, EPA has changed the
definition of catastrophic release. Consequently, this section requires
owners or operators to investigate accidents that resulted in or could
reasonably have resulted in a release that presented serious danger to
public health or the environment. EPA does not believe that, except in
isolated cases, the modification to this provision will require sources
to investigate accidents that they would not investigate under the OSHA
rule.
Section 68.83, Employee Participation, has been adopted verbatim
from OSHA except for changing ``employer'' to ``owner or operator.''
Although EPA did not propose adopting this section, the Agency
solicited comments on this issue, and commenters convinced the Agency
that employee participation is an important component of a complete
prevention program.
Section 68.85, Hot Work Permit, has been adopted verbatim from OSHA
except for changing ``employer'' to ``owner or operator.'' Although EPA
did not propose adopting this section, the Agency solicited comments on
this provision and decided that it was valuable to maintain consistency
with the OSHA PSM elements and that the hot work permit was important
to good prevention practices.
Section 68.87, Contractors, has been adopted verbatim from OSHA
except for changing ``employer'' to ``owner or operator,'' changing to
referenced sections, and deleting OSHA's paragraph 29 CFR
1910.119(h)(2)(vi). Although EPA did not propose adopting this section,
the Agency solicited comments on this issue. Commenters argued that
contractor practices are an important component of a complete
prevention program. A number of major accidents have resulted from
contractor mistakes. EPA agrees with the commenters and has included
the provision in the final rule. EPA has, however, deleted the
requirement that employers maintain an occupational injury and illness
log for contract employees because the Agency does not have the
authority to impose this requirement.
EPA has placed the emergency response requirements in a new Subpart
E and divided the proposed emergency response section into two separate
sections, an applicability section and a section to cover the emergency
response program.
A new Sec. 68.90, Applicability, has been added. Because many
sources covered by this rule may be too small to handle emergency
response themselves, EPA has provided, in this new section, the actions
they must take if they will not respond to releases. Specifically, for
sources with regulated toxic substances, the source must be addressed
in the community emergency response plan developed under EPCRA section
303. Sources with regulated flammable substances must coordinate
response actions with the local fire department. These sources must
also establish a mechanism to contact local emergency responders.
Sources that do not meet these requirements must comply with EPA's
emergency response program requirements.
Section 68.95, Emergency Response Program, is adopted from
Sec. 68.45 of the proposed rule. The program has four components: an
emergency response plan, procedures for use of response equipment and
its maintenance, training for employees, and procedures to update the
plan after changes to the source. The required elements of the plan are
those specified in CAA section 112(r)(7)(B)(ii): procedures for
informing the public and local response agencies; documentation of
emergency medical treatment; and procedures and measures for emergency
response. As explained above, EPA decided that, to avoid inconsistency
with other emergency response planning regulations, the rule would be
limited to the statutory requirements. Consequently, EPA has deleted
the following proposed requirements: documentation of evacuation routes
(which should be covered under the emergency action plans required by
OSHA under 29 CFR 1910.38); descriptions of all response and mitigation
technologies available at the source; documentation of the maintenance
and training programs; emergency response drills and exercises;
revision of the plan based on the findings of the drills and exercises;
and documentation of management's response to findings and a schedule
for completion. EPA believes that these requirements are addressed in
other Federal regulations and, therefore, sources are already doing
them. By not including them, EPA, however, avoids the possibility that
slightly different wording could lead to unnecessary additional effort
on the part of sources.
[[Page 31713]]
EPA has added a paragraph (b) to this section to state that
compliance with other Federal contingency plan regulations or use of
the National Response Team's Integrated Contingency Plan Guidance
(``One Plan'') that results in a written plan that addresses the
elements in paragraph (a) shall satisfy the requirements of the rule,
provided that the owner or operator also complies with paragraph (c) of
this section.
Paragraph (c) is adopted from proposed paragraph Sec. 68.45(g) and
requires coordination of the plan with the local community emergency
response plan. References to the local emergency planning committee
(LEPC) have been changed to `local emergency response officials' to
recognize and include other local groups that may be in charge of
coordinating emergency planning. LEPCs would be included in this
category.
A new Subpart G has been created to cover the Risk Management Plan.
The Risk Management Plan includes three main sections, an executive
summary, the registration, and data elements that provide information
on the offsite consequence analyses, the five-year accident history,
the prevention program, and the emergency response program. The subpart
includes separate section to address each of these, plus sections on
submission, certifications, and updates.
New Sec. 68.150, Submission, has been added. As discussed above, an
owner or operator shall submit a single RMP for the source, regardless
of the number of covered processes or the tiers for which they are
eligible. All RMPs will be submitted in a manner and method EPA will
specify by the compliance date to a point designated by EPA; no other
submission will be required because other agencies and the public will
have access to the submissions on-line. As required by the CAA, the
first RMP must be submitted by June 21, 1999, three years after EPA
first lists a substance, or the date on which a source first becomes
subject to this part, whichever is latest. As discussed above under
applicability, after June 21, 1999, sources that begin using a
substance that has been listed for at least three years will be
required to submit their RMPs on the date the substance is first on
site above the threshold quantity. Sources that begin using such a
regulated substance prior to June 21, 1999 will need to be in
compliance with the rule on June 21, 1999. The final paragraph states
that, except for a classified annex that would not be publicly
available, the RMP shall exclude classified information.
New Sec. 68.155 details the requirements for the executive summary.
The summary shall include brief descriptions of the following items:
the source's prevention and emergency response approach; the stationary
source and regulated substances; worst-case release scenario(s) and
alternative release scenario(s), including any administrative controls
applied to limit the release quantity; the general prevention program
and chemical-specific prevention steps; the five-year accident history;
the emergency response program; and planned changes to improve safety.
EPA anticipates that none of these items should require more than a
half page of text. Because this information may be filed
electronically, EPA is not asking sources to submit maps of the worst-
case or alternative release scenario circles. The data submitted under
each of these sections will allow state or local agencies and the
public to map the circles.
Section 68.160, Registration, replaces proposed Sec. 68.12. The
registration shall include the following data: stationary source name,
street, city, county, state, zip code, latitude, and longitude; the
stationary source and corporate Dun and Bradstreet numbers; the name,
telephone number, and mailing address of the owner/operator; the name
and title of the person responsible for implementation of the risk
management program; the name, title, telephone number, and 24-hour
telephone number of the emergency contact; the stationary source EPA
identifier; the number of full-time employees at the stationary source;
whether the stationary source is subject to 29 CFR 1910.119; whether
the stationary source is subject to 40 CFR part 355; and the date on
which the stationary source last had a safety inspection by a Federal,
state, or local government agency.
For each covered process, the source must list the regulated
substances present above a threshold quantity (name and CAS number),
the maximum quantity of each substance in the process, the SIC code of
the process, and the Program level that applies to the process. This
process information provides a simple method for describing covered
processes and identifying Program levels.
The reporting of the quantity has been changed; rather than have
sources report in ranges, the rule requires that the quantity be
reported to two significant digits. EPA has found that the reporting
ranges are so broad (generally an order of magnitude) that data
analysis is extremely difficult. By limiting the reporting to two
significant digits, EPA will allow sources to estimate quantities, but
still provide more precise data than are currently available. EPA has
added a requirement for reporting full-time employees. These data are
easy for sources to provide and will enhance the Agency's ability to
assess the impact of its rule on businesses of various sizes. The EPA
identifier will be the unique number EPA will assign to each source and
will allow EPA to cross reference other reporting to the Agency. Use of
the identifier also means that EPA may not need to collect certain data
on this form because they will be available from the identifier
database; EPA may revise the requirements when the identifier rule is
promulgated.
EPA has deleted the certification statement proposed for the
registration because the RMP as a whole will have a certification
statement that will cover all elements, including registration.
Corrections to the registration will be treated as corrections to the
RMP and must be filed within six months of the change, rather than the
60 days proposed for registration changes.
The registration now requires the owners or operators to check off
the agency that last conducted a safety inspection at the source and
provide the date. The inspection does not need to have been related to
prevention practices as defined in this rule, but may instead cover
fire safety, workplace safety, etc.
New Sec. 68.165 covers the requirements for reporting on the
offsite consequence analysis. As discussed in Section III.B, the RMP
shall include data on one worst case release scenario for each Program
1 process; and, for Program 2 and 3 processes, one worst case release
scenario for toxics and one for flammables (for sources with substances
in both hazard classes). If additional worst-case release scenarios are
required under Sec. 68.25 for either class, data on that scenario must
also be reported. Sources with Program 2 and 3 processes will also
provide data on one alternative release scenario to cover all
flammables in covered processes and an alternative release scenario for
each toxic substance held in covered processes.
For each reported scenario, the owners or operators shall provide
the following data: chemical name; physical state (toxics only); basis
of results and model (if used); scenario; quantity released in pounds;
release rate; duration; wind speed and stability (toxics only);
topography (toxics only); distance to endpoint; public and
environmental receptors within the distance; passive mitigation
considered; and active mitigation (alternative releases only)
considered. A number of the data elements are not relevant to all
[[Page 31714]]
flammable releases; for example, in the worst-case release flammables
are assumed to be released and explode almost instantly so that release
rate, duration, wind speed and stability, and topography are not
factors in determining distances.
The purpose of requiring these data elements, rather than the
proposed summary of the assessment, is to provide the public with the
essential estimates of distance to the endpoints and provide enough
data on the release scenario to allow agencies or the public to confirm
the distance estimate. With the data provided, a public agency will be
able to use EPA's guidance to determine the distance for a particular
chemical release and compare that distance with the one reported by the
source. This ability will be particularly important when a source has
chosen to use an air dispersion model rather than the reference table.
The proposed rule approach, which required a summary of the assessment,
would have resulted in considerable variation in the information
submitted, as happened in the Kanawha Valley exercise. In that case,
each source decided on the level of information to provide; although
each provided maps, it was not possible, in many cases, to determine
how the distances were estimated because much of the underlying data
was not reported. EPA believes that these requirements will impose a
minimal burden on sources, because they will already have the data from
completing the analyses, will ensure that the same data are reported by
all sources, and will provide enough data to evaluate the results using
publicly available documents and models.
New Sec. 68.168 on the five-year accident history simply references
the data elements listed in Sec. 68.42(a). The data elements will be
reported for each accidental release covered by the accident history
requirement.
New Sec. 68.170, Prevention Program/Program 2, requires owners or
operators with Program 2 processes to list the name of chemical(s) in,
and SIC code for, the Program 2 process; to provide the dates of the
most recent revisions or reviews of the prevention program elements; to
provide, based on the hazard review, information on the major hazards,
process controls, mitigation systems, monitoring or detection systems,
and changes since the last hazard review; to list any state or federal
regulations of industry-specific design codes or standards being used
to demonstrate compliance with prevention program elements; to list the
type of training and competency testing used; to provide the date of
the most recent change that triggered a review or revision of
prevention elements; and to provide the date of the completion of any
changes resulting from hazard reviews, audits, or incident
investigations. EPA recognizes that not all recommendations resulting
from hazard reviews, audits, or incident investigations result in
changes; some or all may be resolved without changes. However, if any
changes are made, the owners or operators shall report in the RMP the
date when such changes are complete or expected to be complete.
New Sec. 68.175, Prevention Program/Program 3, requires owners or
operators with Program 3 processes to list the name of chemical(s) in,
and SIC code for, the Program 3 process; to provide the dates of the
most recent revisions or reviews of the prevention program elements; to
provide, based on the PHA, information on the major hazards, process
controls, mitigation systems, monitoring or detection systems, and
changes since the last PHA; to list the type of training and competency
testing used; to provide the date of the most recent change that
triggered a review or revision of prevention elements; and to provide
the date of the completion of any changes resulting from PHAs, audits,
or incident investigations. As above, EPA recognizes that not all
recommendations resulting from PHAs, audits, or incident investigations
result in changes; some or all may be resolved without changes.
However, if any changes are made, the owners or operators shall report
in the RMP the date when such changes are complete or expected to be
complete.
New Sec. 68.180, Emergency Response Program, requires owners or
operators to answer questions about the required content of the
emergency response plan, providing the date of the most recent training
of employees update of the plan, indicate whether the source emergency
response plan has been coordinated with the LEPC plan, provide the name
and telephone number of the local agency with which the plan has been
coordinated, and list other Federal or state emergency planning
requirements to which the source is subject.
New Sec. 68.185, Certification, specifies the certification
requirements that owners or operators must complete when the RMP is
submitted.
New Sec. 68.190 details the requirements for updating the RMP. The
plan must be updated at least once every five years. If a new substance
is added to an already covered process or a new covered process is
added, the RMP must be updated on the date on which the regulated
substance is first present above a threshold quantity. If EPA lists a
new substance that the source has above a threshold quantity, the RMP
must be updated within three years of the date of listing. If a change
at the source leads to a revised offsite consequence analysis, process
hazard analysis or review, or a process changes Program level, the RMP
must be revised and resubmitted within six months of the change.
Subsequent updates will be required within five years of the update.
A new Subpart H, Other Requirements, has been added.
New Sec. 68.200, Recordkeeping, simply states that records will be
maintained for five years unless otherwise specified in the Program 3
prevention program.
New Sec. 68.210, Availability of information to the public, has
been added and a paragraph included to provide that classified
information is protected under applicable laws, regulations, and
executive orders.
New Sec. 68.215, Permit content and air permitting authority or
designated agency requirements, has been added to define the
requirements for including part 68 in Part 70 and 71 permits, as
discussed above.
Section 68.220, Audits, has been revised to change references in
paragraph (a). A new paragraph (c) has been added to specify the
sources that have achieved a star or merit rating under OSHA's VPP
program will be exempt from audits if the audit program is based on
industry accident history or on neutral random oversight and if the
source has not had an accidental release that requires investigation
under the rule. Paragraph (h) has been revised to clarify that the
source must revise the RMP 30 days after completion of the actions
detailed in the implementation plan, not 30 days after the issuance of
the final determination.
Appendix A has been added to provide the toxic endpoints.
V. Required Analyses
A. E.O. 12866
Under Executive Order (E.O.) 12866 (58 FR 51735; October 4, 1993),
EPA must determine whether a regulatory action is ``significant'' and,
therefore, subject to OMB review and the requirements of the E.O. The
Order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal government or communities.
[[Page 31715]]
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the E.O.
Under terms of E.O. 12866, EPA has determined that today's final
rulemaking is a ``significant regulatory action.'' EPA, therefore, has
developed an economic impact analysis for the final rule, (Economic
Analysis in Support of Final Rule on Risk Management Program
Regulations for Chemical Accidental Release Prevention), which is
available in the docket.
In developing the final rule, EPA notes that it has taken actions
to streamline requirements whenever possible and has tailored the
requirements through the use of Programs. This approach differed from
the proposed rule, which imposed what are now Program 3 requirements on
all sources and processes. EPA has also changed substantially the
requirements for two elements of the rule, the offsite consequence
analysis and the RMP. For the offsite consequence analysis, EPA decided
to develop methodologies and look-up tables so sources would not need
to spend resources obtaining air dispersion models; EPA also reduced
the requirements to define offsite populations by allowing sources to
use Census data and to identify only those institutions and
developments that appear on local maps (as opposed to identifying day
care centers and nursing homes). For the RMP, EPA has limited the
requirements for information to that which can be reported as data
elements. In contrast, the rule as proposed would have required sources
to document for each process all major hazards, the consequences of
each of these hazards, the risk reduction steps taken to address each
hazard, and the consequences of each risk reduction step. The result
would have been, for large, complex sources, documents of a 1,000 pages
or more.
To analyze the cost impacts of the various approaches, EPA
considered three possible options in the final EIA: the final rule, an
option that imposed final rule Program 3 requirements on all sources,
and an option that imposed proposed rule requirements on all sources.
The last of these options was considered to evaluate the impact of
changing the requirements for the offsite consequence analysis and RMP.
Based on the final list and thresholds, EPA estimates that
approximately 66,100 sources will be affected by the rule. EPA expects
that about 360 sources and approximately 410 processes will be eligible
for Program 1. These sources are primarily gas processors that, because
they are remote and unstaffed, are not covered by OSHA PSM. EPA also
estimated that approximately 50 processes using toluene di-isocyanate
(TDI) may qualify for Program 1 based on the relatively low volatility
of TDI. Program 2 is expected to include 40,200 sources and 47,700
processes; these sources include all retailers, propane users, public
drinking water and wastewater systems and public electric utilities not
subject to OSHA PSM, wholesalers, processes at Federal facility
processes, and non-chemical manufacturers. Program 3 is expected to
cover 25,500 sources and 43,800 processes. These sources include
manufacturers, electric utilities, POTWs and drinking water sites
covered by OSHA PSM, wholesalers, ammonia refrigeration systems, gas
utilities, gas processors, and Federal facilities. All of these sources
are already covered by OSHA PSM for at least one regulated substance;
EPA estimates that about 370 non-OSHA Program 3 processes in the
specified SIC codes will be covered.
Sources that already have a high quality PSM program would not need
to take any additional actions to satisfy EPA's Program 3 prevention
program, but the analysis assumed that many sources may still be in the
process of improving their PSM programs after achieving initial
compliance. The public scrutiny expected to follow submission of the
RMP is likely to encourage sources to ensure that their prevention
efforts are fully implemented and effective. To account for these
efforts, the analysis assumed that sources covered by OSHA would
improve training, maintenance, and management oversight and, in some
cases, institute additional capital improvements.
The rule provides sources three years to come into compliance with
the rule. The rule, however, will impose continuing costs as sources
implement their risk management programs. Initial compliance,
therefore, covers the cost of meeting the requirements of the rule by
the three-year compliance date. These costs are presented as a single
figure, but are assumed to be incurred over a three-year period. Total
costs to industry were estimated by multiplying the estimated unit
costs of compliance with the risk management program elements by the
estimated number of affected sources. Because many sources already
implement some of the risk management requirements (e.g., training),
cost estimates were adjusted to account for the expected likelihood
that a source is already human health (death or injury), responses to
these threats (evacuations, sheltering in place) threats to the
environment, and economic damages (lost production, property damages,
and litigation). Additional benefits may be provided by making
information available to the public in the RMP. These benefits,
however, cannot be quantified.
B. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, Federal
agencies must evaluate the impacts of rules on small entities and
consider less burdensome regulatory alternatives. As originally
proposed in 1993, EPA believes that the rule would have created a
severe, adverse impact on small manufacturers. In February 1995, EPA
published a supplemenatal proposal which introduced a tiering approach
for this regulation. By using the tiering approach and streamlining the
Program 2 requirements, this final rule significantly reduces the
impact on small businesses. The tiering approach also significantly
reduces the impact on small communities.
EPA has developed a Regulatory Flexibility Analysis for this final
rule evaluating the effects on small entities, which is presented in
Chapter 7 of the EIA. The number of small manufacturers was estimated
to be 960 sources with fewer than 20 FTEs, and 2,000 sources with
between 20 and 99 FTEs. The number of small non-manufacturers is more
difficult to determine. Virtually all retailer and wholesalers have
fewer than 100 FTEs. Industry estimates, however, indicate that about
80 percent of the affected retailers may be owned by larger companies;
the analysis assumed that 3,700 retailers were small businesses. No
information was available to estimate the percentage of wholesalers
that might be owned by large corporations. The analysis assumed that
all wholesalers were small. The total number of small businesses,
therefore, was estimated to be 8,160.
Public drinking water and waste water systems affected by the rule
generally serve a minimum of 10,000 people. Approximately 980 water
systems are estimated to serve between 10,000 and 25,000 people.
Approximately 500 water systems are estimated to serve between 25,000
and 50,000 people. Consequently, 1,480 drinking water systems would be
considered small governmental entities. The number of small POTWs was
[[Page 31716]]
estimated to include all systems treating less than 10 mgd and 59
percent of those treating between 10 and 25 mgd (based on the ratio of
drinking water systems in this category that serve populations below
50,000). Approximately 2,600 POTWs were estimated to serve between
10,000 and 25,000 people and 180 to serve between 25,000 and 50,000,
for a total of 2,800 POTWs. A total of approximately 4,300 small
governmental entities would be affected by this rule.
The total number of small entities affected by this rule was
estimated to be 12,500 or 19 percent of the affected universe. No
detailed analysis of the impact on small entities was performed because
of the relatively low cost of the rule for small entities. Initial
costs are considerably less than one percent of sales for all small
manufacturers. Subsequent year costs will be even lower. Costs for non-
manufacturers are very low (less than $1,000 per year for initial
compliance). These sums do not impose a serious adverse burden on these
sources. Only chemical manufacturers with complex processes and 20 to
99 FTEs have initial costs that exceed $6,000 per year. The costs for
these sources, $28,000 to $30,000 per year for the first three years,
represent less than 0.5 percent of sales. It should be noted that all
of the costs for small manufacturers assume that the sources will take
additional efforts, above their actions to comply with the OSHA rule,
to improve the quality of the risk management programs. If they do not
take additional actions, their costs would be substantially lower.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA must
generally prepare a written statement, including a cost-benefit
analysis for proposed and final rules with ``Federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternatives
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that significantly or uniquely affect small governments,
including tribal governments, it must have developed under section 203
of UMRA, a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input into the
development of the regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule contains a Federal mandate that
may result in expenditures of $100 million or more for state, local,
and tribal governments, in the aggregate, or to the private sector, in
any one year. Accordingly, EPA has prepared, under section 202 of the
UMRA, a written statement which is summarized below.
EPA is required to promulgate this rule under CAA section 112(r).
In the first and third year of initial compliance, the cost of the rule
to the regulated community will exceed $100 million; in all subsequent
years the costs will be below $100 million. EPA has developed an
economic impact analysis, discussed above, that evaluates several
regulatory alternatives. EPA has adopted the least costly of these
alternatives. EPA estimates that annualized costs for state and local
governments will be $13 million; annualized costs for the private
sector are estimated to be $72 million.
Consistent with the intergovernmental consultation provisions of
section 204 of the UMRA and Executive Order 12875 ``Enhancing the
Intergovernmental Partnership,'' EPA has involved state, local and
business representatives in focus groups to develop the rule. EPA
included representatives of state government in the rulemaking
workgroup process, available to the public under CAA section 114(c) and
40 CFR part 2; EPA does not believe that any of the requested
information will be considered confidential.
The public reporting burden will depend on the regulatory program
into which the 66,100 sources are placed. The public reporting burden
for rule familiarization is estimated to range from 4 to 68 hours per
source for all three program tiers. The public reporting burden to
prepare and submit the registration and other RMP elements is estimated
to be 0.5 hours for sources with only Program 1 processes, between 6.0
and 11.25 hours for Program 2 sources, and between 6.25 and 30.5 hours
for Program 3 sources. The RMP is submitted once, at the end of the
three year compliance period. The public recordkeeping burden to
maintain on-site documentation is estimated to range from 10 to 180
hours for Program 2 sources and from 52 to 1,200 hours for Program 3
sources. On-site documentation must be developed and maintained on an
ongoing basis, which varies by rule element; based on the statute of
limitation for this rule, documentation must generally be maintained
for five years. The total annual public reporting burden for rule
familiarization, to complete the RMP, and to maintain on-site
documentation is estimated to be about 3.36 million hours over three
years, or an annual burden of 1.119 million hours. No capital costs are
expected to be incurred to maintain or submit this documentation.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and use
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is a ``major rule'' as defined by section 804(2) of the APA
as amended.
[[Page 31717]]
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Hazardous substances,
Intergovernmental relations.
Dated: May 24, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Part 68 is amended
as follows:
PART 68--[AMENDED]
1. The authority citation for part 68 is revised to read as
follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
2. Part 68 is amended by redesignating Subpart C (Secs. 68.100--
68.130) as Subpart F.
Subpart A--[Amended]
4. Section 68.3 is amended to add the following definitions:
Sec. 68.3 Definitions.
Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.)
* * * * *
Administrative controls mean written procedural mechanisms used for
hazard control.
AIChE/CCPS means the American Institute of Chemical Engineers/
Center for Chemical Process Safety.
* * * * *
API means the American Petroleum Institute.
ASME means the American Society of Mechanical Engineers.
Catastrophic release means a major uncontrolled emission, fire, or
explosion, involving one or more regulated substances that presents
imminent and substantial endangerment to public health and the
environment.
Classified information means ``classified information'' as defined
in the Classified Information Procedures Act, 18 U.S.C. App. 3, section
1(a) as ``any information or material that has been determined by the
United States Government pursuant to an executive order, statute, or
regulation, to require protection against unauthorized disclosure for
reasons of national security.''
Covered process means a process that has a regulated substance
present in more than a threshold quantity as determined under
Sec. 68.115.
Designated agency means the state, local, or Federal agency
designated by the state under the provisions of Sec. 68.215(d) .
* * * * *
Environmental receptor means natural areas such as national or
state parks, forests, or monuments; officially designated wildlife
sanctuaries, preserves, refuges, or areas; and Federal wilderness
areas, that could be exposed at any time to toxic concentrations,
radiant heat, or overpressure greater than or equal to the endpoints
provided in Sec. 68.22(a) , as a result of an accidental release and
that can be identified on local U. S. Geological Survey maps.
Hot work means work involving electric or gas welding, cutting,
brazing, or similar flame or spark-producing operations.
Implementing agency means the state or local agency that obtains
delegation for an accidental release prevention program under subpart
E, 40 CFR part 63. The implementing agency may, but is not required to,
be the state or local air permitting agency. If no state or local
agency is granted delegation, EPA will be the implementing agency for
that state.
Injury means any effect on a human that results either from direct
exposure to toxic concentrations; radiant heat; or overpressures from
accidental releases or from the direct consequences of a vapor cloud
explosion (such as flying glass, debris, and other projectiles) from an
accidental release and that requires medical treatment or
hospitalization.
Major change means introduction of a new process, process
equipment, or regulated substance, an alteration of process chemistry
that results in any change to safe operating limits, or other
alteration that introduces a new hazard.
Mechanical integrity means the process of ensuring that process
equipment is fabricated from the proper materials of construction and
is properly
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
installed, maintained, and replaced to prevent failures and
accidental releases.
Medical treatment means treatment, other than first aid,
administered by a physician or registered professional personnel under
standing orders from a physician.
Mitigation or mitigation system means specific activities,
technologies, or equipment designed or deployed to capture or control
substances upon loss of containment to minimize exposure of the public
or the environment. Passive mitigation means equipment, devices, or
technologies that function without human, mechanical, or other energy
input. Active mitigation means equipment, devices, or technologies that
need human, mechanical, or other energy input to function.
NFPA means the National Fire Protection Association.
Offsite means areas beyond the property boundary of the stationary
source, and areas within the property boundary to which the public has
routine and unrestricted access during or outside business hours.
OSHA means the U.S. Occupational Safety and Health Administration.
Owner or operator means any person who owns, leases, operates,
controls, or supervises a stationary source.
Population means the public.
* * * * *
Public means any person except employees or contractors at the
stationary source.
Public receptor means offsite residences, institutions (e.g.,
schools, hospitals), industrial, commercial, and office buildings,
parks, or recreational areas inhabited or occupied by the public at any
time without restriction by the stationary source where members of the
public could be exposed to toxic concentrations, radiant heat, or
overpressure, as a result of an accidental release.
* * * * *
Replacement in kind means a replacement that satisfies the design
specifications.
RMP means the risk management plan required under subpart G of this
part.
SIC means Standard Industrial Classification.
* * * * *
Typical meteorological conditions means the temperature, wind
speed, cloud cover, and atmospheric stability class, prevailing at the
site based on data gathered at or near the site or from a local
meteorological station.
* * * * *
Worst-case release means the release of the largest quantity of a
regulated substance from a vessel or process line failure that results
in the greatest distance to an endpoint defined in Sec. 68.22(a).
5. Section 68.10 is added to subpart A to read as follows:
Sec. 68.10 Applicability.
(a) An owner or operator of a stationary source that has more than
a threshold quantity of a regulated substance in a process, as
determined under Sec. 68.115, shall comply with the requirements of
this part no later than the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above
a threshold quantity in a process.
(b) Program 1 eligibility requirements. A covered process is
eligible for
[[Page 31718]]
Program 1 requirements as provided in Sec. 68.12(b) if it meets all of
the following requirements:
(1) For the five years prior to the submission of an RMP, the
process has not had an accidental release of a regulated substance
where exposure to the substance, its reaction products, overpressure
generated by an explosion involving the substance, or radiant heat
generated by a fire involving the substance led to any of the following
offsite:
(i) Death;
(ii) Injury; or
(iii) Response or restoration activities for an exposure of an
environmental receptor;
(2) The distance to a toxic or flammable endpoint for a worst-case
release assessment conducted under Subpart B and Sec. 68.25 is less
than the distance to any public receptor, as defined in Sec. 68.30; and
(3) Emergency response procedures have been coordinated between the
stationary source and local emergency planning and response
organizations.
(c) Program 2 eligibility requirements. A covered process is
subject to Program 2 requirements if it does not meet the eligibility
requirements of either paragraph (b) or paragraph (d) of this section.
(d) Program 3 eligibility requirements. A covered process is
subject to Program 3 if the process does not meet the requirements of
paragraph (b) of this section, and if either of the following
conditions is met:
(1) The process is in SIC code 2611, 2812, 2819, 2821, 2865, 2869,
2873, 2879, or 2911; or
(2) The process is subject to the OSHA process safety management
standard, 29 CFR 1910.119.
(e) If at any time a covered process no longer meets the
eligibility criteria of its Program level, the owner or operator shall
comply with the requirements of the new Program level that applies to
the process and update the RMP as provided in Sec. 68.190.
6. Section 68.12 is added to subpart A to read as follows:
Sec. 68.12 General requirements.
(a) General requirements. The owner or operator of a stationary
source subject to this part shall submit a single RMP, as provided in
Secs. 68.150 to 68.185. The RMP shall include a registration that
reflects all covered processes.
(b) Program 1 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process eligible for Program 1, as provided in
Sec. 68.10(b), shall:
(1) Analyze the worst-case release scenario for the process(es), as
provided in Sec. 68.25; document that the nearest public receptor is
beyond the distance to a toxic or flammable endpoint defined in
Sec. 68.22(a); and submit in the RMP the worst-case release scenario as
provided in Sec. 68.165;
(2) Complete the five-year accident history for the process as
provided in Sec. 68.42 of this part and submit it in the RMP as
provided in Sec. 68.168;
(3) Ensure that response actions have been coordinated with local
emergency planning and response agencies; and
(4) Certify in the RMP the following: ``Based on the criteria in 40
CFR 68.10, the distance to the specified endpoint for the worst-case
accidental release scenario for the following process(es) is less than
the distance to the nearest public receptor: [list process(es)]. Within
the past five years, the process(es) has (have) had no accidental
release that caused offsite impacts provided in the risk management
program rule (40 CFR 68.10(b)(1)). No additional measures are necessary
to prevent offsite impacts from accidental releases. In the event of
fire, explosion, or a release of a regulated substance from the
process(es), entry within the distance to the specified endpoints may
pose a danger to public emergency responders. Therefore, public
emergency responders should not enter this area except as arranged with
the emergency contact indicated in the RMP. The undersigned certifies
that, to the best of my knowledge, information, and belief, formed
after reasonable inquiry, the information submitted is true, accurate,
and complete. [Signature, title, date signed].''
(c) Program 2 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process subject to Program 2, as provided in
Sec. 68.10(c), shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the Program 2 prevention steps provided in
Secs. 68.48 through 68.60 or implement the Program 3 prevention steps
provided in Secs. 68.65 through 68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 2 processes as provided in Sec. 68.170.
(d) Program 3 requirements. In addition to meeting the requirements
of paragraph (a) of this section, the owner or operator of a stationary
source with a process subject to Program 3, as provided in
Sec. 68.10(d) shall:
(1) Develop and implement a management system as provided in
Sec. 68.15;
(2) Conduct a hazard assessment as provided in Secs. 68.20 through
68.42;
(3) Implement the prevention requirements of Secs. 68.65 through
68.87;
(4) Develop and implement an emergency response program as provided
in Secs. 68.90 to 68.95 of this part; and
(5) Submit as part of the RMP the data on prevention program
elements for Program 3 processes as provided in Sec. 68.175.
7. Section 68.15 is added to subpart A to read as follows:
Sec. 68.15 Management.
(a) The owner or operator of a stationary source with processes
subject to Program 2 or Program 3 shall develop a management system to
oversee the implementation of the risk management program elements.
(b) The owner or operator shall assign a qualified person or
position that has the overall responsibility for the development,
implementation, and integration of the risk management program
elements.
(c) When responsibility for implementing individual requirements of
this part is assigned to persons other than the person identified under
paragraph (b) of this section, the names or positions of these people
shall be documented and the lines of authority defined through an
organization chart or similar document.
8. Subpart B--is added to read as follows:
Subpart B--Hazard Assessment
Sec.
68.20 Applicability.
68.22 Offsite consequence analysis parameters.
68.25 Worst-case release scenario analysis.
68.28 Alternative release scenario analysis.
68.30 Defining offsite impacts population.
68.33 Defining offsite impacts environment.
68.36 Review and update.
68.39 Documentation.
68.42 Five-year accident history.
Subpart B--Hazard Assessment
Sec. 68.20 Applicability.
The owner or operator of a stationary source subject to this part
shall prepare a worst-case release scenario analysis as provided in
Sec. 68.25 of this part and complete the five-year accident history as
provided in Sec. 68.42. The owner or
[[Page 31719]]
operator of a Program 2 and 3 process must comply with all sections in
this subpart for these processes.
Sec. 68.22 Offsite consequence analysis parameters.
(a) Endpoints. For analyses of offsite consequences, the following
endpoints shall be used:
(1) Toxics. The toxic endpoints provided in Appendix A of this
part.
(2) Flammables. The endpoints for flammables vary according to the
scenarios studied:
(i) Explosion. An overpressure of 1 psi.
(ii) Radiant heat/exposure time. A radiant heat of 5 kw/m2 for
40 seconds.
(iii) Lower flammability limit. A lower flammability limit as
provided in NFPA documents or other generally recognized sources.
(b) Wind speed/atmospheric stability class. For the worst-case
release analysis, the owner or operator shall use a wind speed of 1.5
meters per second and F atmospheric stability class. If the owner or
operator can demonstrate that local meteorological data applicable to
the stationary source show a higher minimum wind speed or less stable
atmosphere at all times during the previous three years, these minimums
may be used. For analysis of alternative scenarios, the owner or
operator may use the typical meteorological conditions for the
stationary source.
(c) Ambient temperature/humidity. For worst-case release analysis
of a regulated toxic substance, the owner or operator shall use the
highest daily maximum temperature in the previous three years and
average humidity for the site, based on temperature/humidity data
gathered at the stationary source or at a local meteorological station;
an owner or operator using the RMP Offsite Consequence Analysis
Guidance may use 25 deg.C and 50 percent humidity as values for these
variables. For analysis of alternative scenarios, the owner or operator
may use typical temperature/humidity data gathered at the stationary
source or at a local meteorological station.
(d) Height of release. The worst-case release of a regulated toxic
substance shall be analyzed assuming a ground level (0 feet) release.
For an alternative scenario analysis of a regulated toxic substance,
release height may be determined by the release scenario.
(e) Surface roughness. The owner or operator shall use either urban
or rural topography, as appropriate. Urban means that there are many
obstacles in the immediate area; obstacles include buildings or trees.
Rural means there are no buildings in the immediate area and the
terrain is generally flat and unobstructed.
(f) Dense or neutrally buoyant gases. The owner or operator shall
ensure that tables or models used for dispersion analysis of regulated
toxic substances appropriately account for gas density.
(g) Temperature of released substance. For worst case, liquids
other than gases liquified by refrigeration only shall be considered to
be released at the highest daily maximum temperature, based on data for
the previous three years appropriate for the stationary source, or at
process temperature, whichever is higher. For alternative scenarios,
substances may be considered to be released at a process or ambient
temperature that is appropriate for the scenario.
Sec. 68.25 Worst-case release scenario analysis.
(a) The owner or operator shall analyze and report in the RMP:
(1) For Program 1 processes, one worst-case release scenario for
each Program 1 process;
(2) For Program 2 and 3 processes:
(i) One worst-case release scenario that is estimated to create the
greatest distance in any direction to an endpoint provided in Appendix
A of this part resulting from an accidental release of regulated toxic
substances from covered processes under worst-case conditions defined
in Sec. 68.22;
(ii) One worst-case release scenario that is estimated to create
the greatest distance in any direction to an endpoint defined in
Sec. 68.22(a) resulting from an accidental release of regulated
flammable substances from covered processes under worst-case conditions
defined in Sec. 68.22; and
(iii) Additional worst-case release scenarios for a hazard class if
a worst-case release from another covered process at the stationary
source potentially affects public receptors different from those
potentially affected by the worst-case release scenario developed under
paragraphs (a)(2)(i) or (a)(2)(ii) of this section.
(b) Determination of worst-case release quantity. The worst-case
release quantity shall be the greater of the following:
(1) For substances in a vessel, the greatest amount held in a
single vessel, taking into account administrative controls that limit
the maximum quantity; or
(2) For substances in pipes, the greatest amount in a pipe, taking
into account administrative controls that limit the maximum quantity.
(c) Worst-case release scenario--toxic gases.
(1) For regulated toxic substances that are normally gases at
ambient temperature and handled as a gas or as a liquid under pressure,
the owner or operator shall assume that the quantity in the vessel or
pipe, as determined under paragraph (b) of this section, is released as
a gas over 10 minutes. The release rate shall be assumed to be the
total quantity divided by 10 unless passive mitigation systems are in
place.
(2) For gases handled as refrigerated liquids at ambient pressure:
(i) If the released substance is not contained by passive
mitigation systems or if the contained pool would have a depth of 1 cm
or less, the owner or operator shall assume that the substance is
released as a gas in 10 minutes;
(ii) If the released substance is contained by passive mitigation
systems in a pool with a depth greater than 1 cm, the owner or operator
may assume that the quantity in the vessel or pipe, as determined under
paragraph (b) of this section, is spilled instantaneously to form a
liquid pool. The volatilization rate (release rate) shall be calculated
at the boiling point of the substance and at the conditions specified
in paragraph (d) of this section.
(d) Worst-case release scenario--toxic liquids.
(1) For regulated toxic substances that are normally liquids at
ambient temperature, the owner or operator shall assume that the
quantity in the vessel or pipe, as determined under paragraph (b) of
this section, is spilled instantaneously to form a liquid pool.
(i) The surface area of the pool shall be determined by assuming
that the liquid spreads to 1 centimeter deep unless passive mitigation
systems are in place that serve to contain the spill and limit the
surface area. Where passive mitigation is in place, the surface area of
the contained liquid shall be used to calculate the volatilization
rate.
(ii) If the release would occur onto a surface that is not paved or
smooth, the owner or operator may take into account the actual surface
characteristics.
(2) The volatilization rate shall account for the highest daily
maximum temperature occurring in the past three years, the temperature
of the substance in the vessel, and the concentration of the substance
if the liquid spilled is a mixture or solution.
(3) The rate of release to air shall be determined from the
volatilization rate of the liquid pool. The owner or operator may use
the methodology in the RMP Offsite Consequence Analysis Guidance or any
other publicly available techniques that account for the modeling
conditions and are recognized by industry as applicable as part of
[[Page 31720]]
current practices. Proprietary models that account for the modeling
conditions may be used provided the owner or operator allows the
implementing agency access to the model and describes model features
and differences from publicly available models to local emergency
planners upon request.
(e) Worst-case release scenario--flammables. The owner or operator
shall assume that the quantity of the substance, as determined under
paragraph (b) of this section, vaporizes resulting in a vapor cloud
explosion. A yield factor of 10 percent of the available energy
released in the explosion shall be used to determine the distance to
the explosion endpoint if the model used is based on TNT-equivalent
methods.
(f) Parameters to be applied. The owner or operator shall use the
parameters defined in Sec. 68.22 to determine distance to the
endpoints. The owner or operator may use the methodology provided in
the RMP Offsite Consequence Analysis Guidance or any commercially or
publicly available air dispersion modeling techniques, provided the
techniques account for the modeling conditions and are recognized by
industry as applicable as part of current practices. Proprietary models
that account for the modeling conditions may be used provided the owner
or operator allows the implementing agency access to the model and
describes model features and differences from publicly available models
to local emergency planners upon request.
(g) Consideration of passive mitigation. Passive mitigation systems
may be considered for the analysis of worst case provided that the
mitigation system is capable of withstanding the release event
triggering the scenario and would still function as intended.
(h) Factors in selecting a worst-case scenario. Notwithstanding the
provisions of paragraph (b) of this section, the owner or operator
shall select as the worst case for flammable regulated substances or
the worst case for regulated toxic substances, a scenario based on the
following factors if such a scenario would result in a greater distance
to an endpoint defined in Sec. 68.22(a) beyond the stationary source
boundary than the scenario provided under paragraph (b) of this
section:
(1) Smaller quantities handled at higher process temperature or
pressure; and
(2) Proximity to the boundary of the stationary source.
Sec. 68.28 Alternative release scenario analysis.
(a) The number of scenarios. The owner or operator shall identify
and analyze at least one alternative release scenario for each
regulated toxic substance held in a covered process(es) and at least
one alternative release scenario to represent all flammable substances
held in covered processes.
(b) Scenarios to consider. (1) For each scenario required under
paragraph (a) of this section, the owner or operator shall select a
scenario:
(i) That is more likely to occur than the worst-case release
scenario under Sec. 68.25; and
(ii) That will reach an endpoint offsite, unless no such scenario
exists.
(2) Release scenarios considered should include, but are not
limited to, the following, where applicable:
(i) Transfer hose releases due to splits or sudden hose uncoupling;
(ii) Process piping releases from failures at flanges, joints,
welds, valves and valve seals, and drains or bleeds;
(iii) Process vessel or pump releases due to cracks, seal failure,
or drain, bleed, or plug failure;
(iv) Vessel overfilling and spill, or overpressurization and
venting through relief valves or rupture disks; and
(v) Shipping container mishandling and breakage or puncturing
leading to a spill.
(c) Parameters to be applied. The owner or operator shall use the
appropriate parameters defined in Sec. 68.22 to determine distance to
the endpoints. The owner or operator may use either the methodology
provided in the RMP Offsite Consequence Analysis Guidance or any
commercially or publicly available air dispersion modeling techniques,
provided the techniques account for the specified modeling conditions
and are recognized by industry as applicable as part of current
practices. Proprietary models that account for the modeling conditions
may be used provided the owner or operator allows the implementing
agency access to the model and describes model features and differences
from publicly available models to local emergency planners upon
request.
(d) Consideration of mitigation. Active and passive mitigation
systems may be considered provided they are capable of withstanding the
event that triggered the release and would still be functional.
(e) Factors in selecting scenarios. The owner or operator shall
consider the following in selecting alternative release scenarios:
(1) The five-year accident history provided in Sec. 68.42; and
(2) Failure scenarios identified under Secs. 68.50 or 68.67.
Sec. 68.30 Defining offsite impacts--population.
(a) The owner or operator shall estimate in the RMP the population
within a circle with its center at the point of the release and a
radius determined by the distance to the endpoint defined in
Sec. 68.22(a).
(b) Population to be defined. Population shall include residential
population. The presence of institutions (schools, hospitals, prisons),
parks and recreational areas, and major commercial, office, and
industrial buildings shall be noted in the RMP.
(c) Data sources acceptable. The owner or operator may use the most
recent Census data, or other updated information, to estimate the
population potentially affected.
(d) Level of accuracy. Population shall be estimated to two
significant digits.
Sec. 68.33 Defining offsite impacts--environment.
(a) The owner or operator shall list in the RMP environmental
receptors within a circle with its center at the point of the release
and a radius determined by the distance to the endpoint defined in
Sec. 68.22(a) of this part.
(b) Data sources acceptable. The owner or operator may rely on
information provided on local U.S. Geological Survey maps or on any
data source containing U.S.G.S. data to identify environmental
receptors.
68.36 Review and update.
(a) The owner or operator shall review and update the offsite
consequence analyses at least once every five years.
(b) If changes in processes, quantities stored or handled, or any
other aspect of the stationary source might reasonably be expected to
increase or decrease the distance to the endpoint by a factor of two or
more, the owner or operator shall complete a revised analysis within
six months of the change and submit a revised risk management plan as
provided in Sec. 68.190.
Sec. 68.39 Documentation
The owner or operator shall maintain the following records on the
offsite consequence analyses:
(a) For worst-case scenarios, a description of the vessel or
pipeline and substance selected as worst case, assumptions and
parameters used, and the rationale for selection; assumptions shall
include use of any administrative
[[Page 31721]]
controls and any passive mitigation that were assumed to limit the
quantity that could be released. Documentation shall include the
anticipated effect of the controls and mitigation on the release
quantity and rate.
(b) For alternative release scenarios, a description of the
scenarios identified, assumptions and parameters used, and the
rationale for the selection of specific scenarios; assumptions shall
include use of any administrative controls and any mitigation that were
assumed to limit the quantity that could be released. Documentation
shall include the effect of the controls and mitigation on the release
quantity and rate.
(c) Documentation of estimated quantity released, release rate, and
duration of release.
(d) Methodology used to determine distance to endpoints.
(e) Data used to estimate population and environmental receptors
potentially affected.
Sec. 68.42 Five-year accident history.
(a) The owner or operator shall include in the five-year accident
history all accidental releases from covered processes that resulted in
deaths, injuries, or significant property damage on site, or known
offsite deaths, injuries, evacuations, sheltering in place, property
damage, or environmental damage.
(b) Data required. For each accidental release included, the owner
or operator shall report the following information:
(1) Date, time, and approximate duration of the release;
(2) Chemical(s) released;
(3) Estimated quantity released in pounds;
(4) The type of release event and its source;
(5) Weather conditions, if known;
(6) On-site impacts;
(7) Known offsite impacts;
(8) Initiating event and contributing factors if known;
(9) Whether offsite responders were notified if known; and
(10) Operational or process changes that resulted from
investigation of the release.
(c) Level of accuracy. Numerical estimates may be provided to two
significant digits.
9. Subpart C is added to read as follows:
Subpart C--Program 2 Prevention Program
Secs.
68.48 Safety information.
68.50 Hazard review.
68.52 Operating procedures.
68.54 Training.
68.56 Maintenance.
68.58 Compliance audits.
68.60 Incident investigation.
Subpart C--Program 2 Prevention Program
Sec. 68.48 Safety information.
(a) The owner or operator shall compile and maintain the following
up-to-date safety information related to the regulated substances,
processes, and equipment:
(1) Material Safety Data Sheets that meet the requirements of 29
CFR 1910.1200(g);
(2) Maximum intended inventory of equipment in which the regulated
substances are stored or processed;
(3) Safe upper and lower temperatures, pressures, flows, and
compositions;
(4) Equipment specifications; and
(5) Codes and standards used to design, build, and operate the
process.
(b) The owner or operator shall ensure that the process is designed
in compliance with recognized and generally accepted good engineering
practices. Compliance with Federal or state regulations that address
industry-specific safe design or with industry-specific design codes
and standards may be used to demonstrate compliance with this
paragraph.
(c) The owner or operator shall update the safety information if a
major change occurs that makes the information inaccurate.
Sec. 68.50 Hazard review.
(a) The owner or operator shall conduct a review of the hazards
associated with the regulated substances, process, and procedures. The
review shall identify the following:
(1) The hazards associated with the process and regulated
substances;
(2) Opportunities for equipment malfunctions or human errors that
could cause an accidental release;
(3) The safeguards used or needed to control the hazards or prevent
equipment malfunction or human error; and
(4) Any steps used or needed to detect or monitor releases.
(b) The owner or operator may use checklists developed by persons
or organizations knowledgeable about the process and equipment as a
guide to conducting the review. For processes designed to meet industry
standards or Federal or state design rules, the hazard review shall, by
inspecting all equipment, determine whether the process is designed,
fabricated, and operated in accordance with the applicable standards or
rules.
(c) The owner or operator shall document the results of the review
and ensure that problems identified are resolved in a timely manner.
(d) The review shall be updated at least once every five years. The
owner or operator shall also conduct reviews whenever a major change in
the process occurs; all issues identified in the review shall be
resolved before startup of the changed process.
Sec. 68.52 Operating procedures.
(a) The owner or operator shall prepare written operating
procedures that provide clear instructions or steps for safely
conducting activities associated with each covered process consistent
with the safety information for that process. Operating procedures or
instructions provided by equipment manufacturers or developed by
persons or organizations knowledgeable about the process and equipment
may be used as a basis for a stationary source's operating procedures.
(b) The procedures shall address the following:
(1) Initial startup;
(2) Normal operations;
(3) Temporary operations;
(4) Emergency shutdown and operations;
(5) Normal shutdown;
(6) Startup following a normal or emergency shutdown or a major
change that requires a hazard review;
(7) Consequences of deviations and steps required to correct or
avoid deviations; and
(8) Equipment inspections.
(c) The owner or operator shall ensure that the operating
procedures are updated, if necessary, whenever a major change occurs
and prior to startup of the changed process.
Sec. 68.54 Training.
(a) The owner or operator shall ensure that each employee presently
operating a process, and each employee newly assigned to a covered
process have been trained or tested competent in the operating
procedures provided in Sec. 68.52 that pertain to their duties. For
those employees already operating a process on June 21, 1999, the owner
or operator may certify in writing that the employee has the required
knowledge, skills, and abilities to safely carry out the duties and
responsibilities as provided in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
operating a process to ensure that the employee understands and adheres
to the current operating procedures of the process. The owner or
operator, in consultation with the employees operating the process,
shall determine the appropriate frequency of refresher training.
[[Page 31722]]
(c) The owner or operator may use training conducted under Federal
or state regulations or under industry-specific standards or codes or
training conducted by covered process equipment vendors to demonstrate
compliance with this section to the extent that the training meets the
requirements of this section.
(d) The owner or operator shall ensure that operators are trained
in any updated or new procedures prior to startup of a process after a
major change.
Sec. 68.56 Maintenance.
(a) The owner or operator shall prepare and implement procedures to
maintain the on-going mechanical integrity of the process equipment.
The owner or operator may use procedures or instructions provided by
covered process equipment vendors or procedures in Federal or state
regulations or industry codes as the basis for stationary source
maintenance procedures.
(b) The owner or operator shall train or cause to be trained each
employee involved in maintaining the on-going mechanical integrity of
the process. To ensure that the employee can perform the job tasks in a
safe manner, each such employee shall be trained in the hazards of the
process, in how to avoid or correct unsafe conditions, and in the
procedures applicable to the employee's job tasks.
(c) Any maintenance contractor shall ensure that each contract
maintenance employee is trained to perform the maintenance procedures
developed under paragraph (a) of this section.
(d) The owner or operator shall perform or cause to be performed
inspections and tests on process equipment. Inspection and testing
procedures shall follow recognized and generally accepted good
engineering practices. The frequency of inspections and tests of
process equipment shall be consistent with applicable manufacturers'
recommendations, industry standards or codes, good engineering
practices, and prior operating experience.
Sec. 68.58 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart at least every three
years to verify that the procedures and practices developed under the
rule are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) The owner or operator shall develop a report of the audit
findings.
(d) The owner or operator shall promptly determine and document an
appropriate response to each of the findings of the compliance audit
and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports. This requirement does not apply to any
compliance audit report that is more than five years old.
Sec. 68.60 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic
release.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) A summary shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(d) The owner or operator shall promptly address and resolve the
investigation findings and recommendations. Resolutions and corrective
actions shall be documented.
(e) The findings shall be reviewed with all affected personnel
whose job tasks are affected by the findings.
(f) Investigation summaries shall be retained for five years.
10. Subpart D is added to read as follows:
Subpart D--Program 3 Prevention Program
Sec.
68.65 Process safety information.
68.67 Process hazard analysis.
68.69 Operating procedures.
68.71 Training.
68.73 Mechanical integrity.
68.75 Management of change.
68.77 Pre-startup review.
68.79 Compliance audits.
68.81 Incident investigation.
68.83 Employee participation.
68.85 Hot work permit.
68.87 Contractors.
Subpart D--Program 3 Prevention Program
Sec. 68.65 Process safety information.
(a) In accordance with the schedule set forth in Sec. 68.67, the
owner or operator shall complete a compilation of written process
safety information before conducting any process hazard analysis
required by the rule. The compilation of written process safety
information is to enable the owner or operator and the employees
involved in operating the process to identify and understand the
hazards posed by those processes involving regulated substances. This
process safety information shall include information pertaining to the
hazards of the regulated substances used or produced by the process,
information pertaining to the technology of the process, and
information pertaining to the equipment in the process.
(b) Information pertaining to the hazards of the regulated
substances in the process. This information shall consist of at least
the following:
(1) Toxicity information;
(2) Permissible exposure limits;
(3) Physical data;
(4) Reactivity data:
(5) Corrosivity data;
(6) Thermal and chemical stability data; and
(7) Hazardous effects of inadvertent mixing of different materials
that could foreseeably occur.
Note to paragraph (b): Material Safety Data Sheets meeting the
requirements of 29 CFR 1910.1200(g) may be used to comply with this
requirement to the extent they contain the information required by
this subparagraph.
(c) Information pertaining to the technology of the process.
(1) Information concerning the technology of the process shall
include at least the following:
(i) A block flow diagram or simplified process flow diagram;
(ii) Process chemistry;
(iii) Maximum intended inventory;
(iv) Safe upper and lower limits for such items as temperatures,
pressures, flows or compositions; and,
(v) An evaluation of the consequences of deviations.
(2) Where the original technical information no longer exists, such
information may be developed in conjunction with the process hazard
analysis in sufficient detail to support the analysis.
(d) Information pertaining to the equipment in the process.
(1) Information pertaining to the equipment in the process shall
include:
(i) Materials of construction;
(ii) Piping and instrument diagrams (P&ID's);
(iii) Electrical classification;
(iv) Relief system design and design basis;
(v) Ventilation system design;
(vi) Design codes and standards employed;
(vii) Material and energy balances for processes built after June
21, 1999; and
(viii) Safety systems (e.g. interlocks, detection or suppression
systems).
[[Page 31723]]
(2) The owner or operator shall document that equipment complies
with recognized and generally accepted good engineering practices.
(3) For existing equipment designed and constructed in accordance
with codes, standards, or practices that are no longer in general use,
the owner or operator shall determine and document that the equipment
is designed, maintained, inspected, tested, and operating in a safe
manner.
Sec. 68.67 Process hazard analysis.
(a) The owner or operator shall perform an initial process hazard
analysis (hazard evaluation) on processes covered by this part. The
process hazard analysis shall be appropriate to the complexity of the
process and shall identify, evaluate, and control the hazards involved
in the process. The owner or operator shall determine and document the
priority order for conducting process hazard analyses based on a
rationale which includes such considerations as extent of the process
hazards, number of potentially affected employees, age of the process,
and operating history of the process. The process hazard analysis shall
be conducted as soon as possible, but not later than June 21, 1999.
Process hazards analyses completed to comply with 29 CFR 1910.119(e)
are acceptable as initial process hazards analyses. These process
hazard analyses shall be updated and revalidated, based on their
completion date.
(b) The owner or operator shall use one or more of the following
methodologies that are appropriate to determine and evaluate the
hazards of the process being analyzed.
(1) What-If;
(2) Checklist;
(3) What-If/Checklist;
(4) Hazard and Operability Study (HAZOP);
(5) Failure Mode and Effects Analysis (FMEA);
(6) Fault Tree Analysis; or
(7) An appropriate equivalent methodology.
(c) The process hazard analysis shall address:
(1) The hazards of the process;
(2) The identification of any previous incident which had a likely
potential for catastrophic consequences.
(3) Engineering and administrative controls applicable to the
hazards and their interrelationships such as appropriate application of
detection methodologies to provide early warning of releases.
(Acceptable detection methods might include process monitoring and
control instrumentation with alarms, and detection hardware such as
hydrocarbon sensors.);
(4) Consequences of failure of engineering and administrative
controls;
(5) Stationary source siting;
(6) Human factors; and
(7) A qualitative evaluation of a range of the possible safety and
health effects of failure of controls.
(d) The process hazard analysis shall be performed by a team with
expertise in engineering and process operations, and the team shall
include at least one employee who has experience and knowledge specific
to the process being evaluated. Also, one member of the team must be
knowledgeable in the specific process hazard analysis methodology being
used.
(e) The owner or operator shall establish a system to promptly
address the team's findings and recommendations; assure that the
recommendations are resolved in a timely manner and that the resolution
is documented; document what actions are to be taken; complete actions
as soon as possible; develop a written schedule of when these actions
are to be completed; communicate the actions to operating, maintenance
and other employees whose work assignments are in the process and who
may be affected by the recommendations or actions.
(f) At least every five (5) years after the completion of the
initial process hazard analysis, the process hazard analysis shall be
updated and revalidated by a team meeting the requirements in paragraph
(d) of this section, to assure that the process hazard analysis is
consistent with the current process. Updated and revalidated process
hazard analyses completed to comply with 29 CFR 1910.119(e) are
acceptable to meet the requirements of this paragraph.
(g) The owner or operator shall retain process hazards analyses and
updates or revalidations for each process covered by this section, as
well as the documented resolution of recommendations described in
paragraph (e) of this section for the life of the process.
Sec. 68.69 Operating procedures.
(a) The owner or operator shall develop and implement written
operating procedures that provide clear instructions for safely
conducting activities involved in each covered process consistent with
the process safety information and shall address at least the following
elements.
(1) Steps for each operating phase:
(i) Initial startup;
(ii) Normal operations;
(iii) Temporary operations;
(iv) Emergency shutdown including the conditions under which
emergency shutdown is required, and the assignment of shutdown
responsibility to qualified operators to ensure that emergency shutdown
is executed in a safe and timely manner.
(v) Emergency operations;
(vi) Normal shutdown; and,
(vii) Startup following a turnaround, or after an emergency
shutdown.
(2) Operating limits:
(i) Consequences of deviation; and
(ii) Steps required to correct or avoid deviation.
(3) Safety and health considerations:
(i) Properties of, and hazards presented by, the chemicals used in
the process;
(ii) Precautions necessary to prevent exposure, including
engineering controls, administrative controls, and personal protective
equipment;
(iii) Control measures to be taken if physical contact or airborne
exposure occurs;
(iv) Quality control for raw materials and control of hazardous
chemical inventory levels; and,
(v) Any special or unique hazards.
(4) Safety systems and their functions.
(b) Operating procedures shall be readily accessible to employees
who work in or maintain a process.
(c) The operating procedures shall be reviewed as often as
necessary to assure that they reflect current operating practice,
including changes that result from changes in process chemicals,
technology, and equipment, and changes to stationary sources. The owner
or operator shall certify annually that these operating procedures are
current and accurate.
(d) The owner or operator shall develop and implement safe work
practices to provide for the control of hazards during operations such
as lockout/tagout; confined space entry; opening process equipment or
piping; and control over entrance into a stationary source by
maintenance, contractor, laboratory, or other support personnel. These
safe work practices shall apply to employees and contractor employees.
Sec. 68.71 Training.
(a) Initial training. (1) Each employee presently involved in
operating a process, and each employee before being involved in
operating a newly assigned process, shall be trained in an overview of
the process and in the operating procedures as specified in Sec. 68.69.
The training shall include emphasis on the specific safety and health
hazards, emergency operations including shutdown, and safe work
practices applicable to the employee's job tasks.
[[Page 31724]]
(2) In lieu of initial training for those employees already
involved in operating a process on June 21, 1999 an owner or operator
may certify in writing that the employee has the required knowledge,
skills, and abilities to safely carry out the duties and
responsibilities as specified in the operating procedures.
(b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
involved in operating a process to assure that the employee understands
and adheres to the current operating procedures of the process. The
owner or operator, in consultation with the employees involved in
operating the process, shall determine the appropriate frequency of
refresher training.
(c) Training documentation. The owner or operator shall ascertain
that each employee involved in operating a process has received and
understood the training required by this paragraph. The owner or
operator shall prepare a record which contains the identity of the
employee, the date of training, and the means used to verify that the
employee understood the training.
Sec. 68.73 Mechanical integrity.
(a) Application. Paragraphs (b) through (f) of this section apply
to the following process equipment:
(1) Pressure vessels and storage tanks;
(2) Piping systems (including piping components such as valves);
(3) Relief and vent systems and devices;
(4) Emergency shutdown systems;
(5) Controls (including monitoring devices and sensors, alarms, and
interlocks) and,
(6) Pumps.
(b) Written procedures. The owner or operator shall establish and
implement written procedures to maintain the on-going integrity of
process equipment.
(c) Training for process maintenance activities. The owner or
operator shall train each employee involved in maintaining the on-going
integrity of process equipment in an overview of that process and its
hazards and in the procedures applicable to the employee's job tasks to
assure that the employee can perform the job tasks in a safe manner.
(d) Inspection and testing. (1) Inspections and tests shall be
performed on process equipment.
(2) Inspection and testing procedures shall follow recognized and
generally accepted good engineering practices.
(3) The frequency of inspections and tests of process equipment
shall be consistent with applicable manufacturers' recommendations and
good engineering practices, and more frequently if determined to be
necessary by prior operating experience.
(4) The owner or operator shall document each inspection and test
that has been performed on process equipment. The documentation shall
identify the date of the inspection or test, the name of the person who
performed the inspection or test, the serial number or other identifier
of the equipment on which the inspection or test was performed, a
description of the inspection or test performed, and the results of the
inspection or test.
(e) Equipment deficiencies. The owner or operator shall correct
deficiencies in equipment that are outside acceptable limits (defined
by the process safety information in Sec. 68.65) before further use or
in a safe and timely manner when necessary means are taken to assure
safe operation.
(f) Quality assurance. (1) In the construction of new plants and
equipment, the owner or operator shall assure that equipment as it is
fabricated is suitable for the process application for which they will
be used.
(2) Appropriate checks and inspections shall be performed to assure
that equipment is installed properly and consistent with design
specifications and the manufacturer's instructions.
(3) The owner or operator shall assure that maintenance materials,
spare parts and equipment are suitable for the process application for
which they will be used.
Sec. 68.75 Management of change.
(a) The owner or operator shall establish and implement written
procedures to manage changes (except for ``replacements in kind'') to
process chemicals, technology, equipment, and procedures; and, changes
to stationary sources that affect a covered process.
(b) The procedures shall assure that the following considerations
are addressed prior to any change:
(1) The technical basis for the proposed change;
(2) Impact of change on safety and health;
(3) Modifications to operating procedures;
(4) Necessary time period for the change; and,
(5) Authorization requirements for the proposed change.
(c) Employees involved in operating a process and maintenance and
contract employees whose job tasks will be affected by a change in the
process shall be informed of, and trained in, the change prior to
start-up of the process or affected part of the process.
(d) If a change covered by this paragraph results in a change in
the process safety information required by Sec. 68.65 of this part,
such information shall be updated accordingly.
(e) If a change covered by this paragraph results in a change in
the operating procedures or practices required by Sec. 68.69, such
procedures or practices shall be updated accordingly.
Sec. 68.77 Pre-startup review.
(a) The owner or operator shall perform a pre-startup safety review
for new stationary sources and for modified stationary sources when the
modification is significant enough to require a change in the process
safety information.
(b) The pre-startup safety review shall confirm that prior to the
introduction of regulated substances to a process:
(1) Construction and equipment is in accordance with design
specifications;
(2) Safety, operating, maintenance, and emergency procedures are in
place and are adequate;
(3) For new stationary sources, a process hazard analysis has been
performed and recommendations have been resolved or implemented before
startup; and modified stationary sources meet the requirements
contained in management of change, Sec. 68.75.
(4) Training of each employee involved in operating a process has
been completed.
Sec. 68.79 Compliance audits.
(a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this section at least every three
years to verify that the procedures and practices developed under the
standard are adequate and are being followed.
(b) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(c) A report of the findings of the audit shall be developed.
(d) The owner or operator shall promptly determine and document an
appropriate response to each of the findings of the compliance audit,
and document that deficiencies have been corrected.
(e) The owner or operator shall retain the two (2) most recent
compliance audit reports.
Sec. 68.81 Incident investigation.
(a) The owner or operator shall investigate each incident which
resulted in, or could reasonably have resulted in a catastrophic
release of a regulated substance.
(b) An incident investigation shall be initiated as promptly as
possible, but not later than 48 hours following the incident.
(c) An incident investigation team shall be established and consist
of at least one person knowledgeable in the
[[Page 31725]]
process involved, including a contract employee if the incident
involved work of the contractor, and other persons with appropriate
knowledge and experience to thoroughly investigate and analyze the
incident.
(d) A report shall be prepared at the conclusion of the
investigation which includes at a minimum:
(1) Date of incident;
(2) Date investigation began;
(3) A description of the incident;
(4) The factors that contributed to the incident; and,
(5) Any recommendations resulting from the investigation.
(e) The owner or operator shall establish a system to promptly
address and resolve the incident report findings and recommendations.
Resolutions and corrective actions shall be documented.
(f) The report shall be reviewed with all affected personnel whose
job tasks are relevant to the incident findings including contract
employees where applicable.
(g) Incident investigation reports shall be retained for five
years.
Sec. 68.83 Employee participation.
(a) The owner or operator shall develop a written plan of action
regarding the implementation of the employee participation required by
this section.
(b) The owner or operator shall consult with employees and their
representatives on the conduct and development of process hazards
analyses and on the development of the other elements of process safety
management in this rule.
(c) The owner or operator shall provide to employees and their
representatives access to process hazard analyses and to all other
information required to be developed under this rule.
Sec. 68.85 Hot work permit.
(a) The owner or operator shall issue a hot work permit for hot
work operations conducted on or near a covered process.
(b) The permit shall document that the fire prevention and
protection requirements in 29 CFR 1910.252(a) have been implemented
prior to beginning the hot work operations; it shall indicate the
date(s) authorized for hot work; and identify the object on which hot
work is to be performed. The permit shall be kept on file until
completion of the hot work operations.
Sec. 68.87 Contractors.
(a) Application. This section applies to contractors performing
maintenance or repair, turnaround, major renovation, or specialty work
on or adjacent to a covered process. It does not apply to contractors
providing incidental services which do not influence process safety,
such as janitorial work, food and drink services, laundry, delivery or
other supply services.
(b) Owner or operator responsibilities. (1) The owner or operator,
when selecting a contractor, shall obtain and evaluate information
regarding the contract owner or operator's safety performance and
programs.
(2) The owner or operator shall inform contract owner or operator
of the known potential fire, explosion, or toxic release hazards
related to the contractor's work and the process.
(3) The owner or operator shall explain to the contract owner or
operator the applicable provisions of subpart E of this part.
(4) The owner or operator shall develop and implement safe work
practices consistent with Sec. 68.69(d), to control the entrance,
presence, and exit of the contract owner or operator and contract
employees in covered process areas.
(5) The owner or operator shall periodically evaluate the
performance of the contract owner or operator in fulfilling their
obligations as specified in paragraph (c) of this section.
(c) Contract owner or operator responsibilities. (1) The contract
owner or operator shall assure that each contract employee is trained
in the work practices necessary to safely perform his/her job.
(2) The contract owner or operator shall assure that each contract
employee is instructed in the known potential fire, explosion, or toxic
release hazards related to his/her job and the process, and the
applicable provisions of the emergency action plan.
(3) The contract owner or operator shall document that each
contract employee has received and understood the training required by
this section. The contract owner or operator shall prepare a record
which contains the identity of the contract employee, the date of
training, and the means used to verify that the employee understood the
training.
(4) The contract owner or operator shall assure that each contract
employee follows the safety rules of the stationary source including
the safe work practices required by Sec. 68.69(d).
(5) The contract owner or operator shall advise the owner or
operator of any unique hazards presented by the contract owner or
operator's work, or of any hazards found by the contract owner or
operator's work.
11. Subpart E is added to read as follows:
Subpart E--Emergency Response
Sec.
68.90 Applicability.
68.95 Emergency Response Program.
Subpart E--Emergency Response
Sec. 68.90 Applicability.
(a) Except as provided in paragraph (b) of this section, the owner
or operator of a stationary source with Program 2 and Program 3
processes shall comply with the requirements of Sec. 68.95.
(b) The owner or operator of stationary source whose employees will
not respond to accidental releases of regulated substances need not
comply with Sec. 68.95 of this part provided that they meet the
following:
(1) For stationary sources with any regulated toxic substance held
in a process above the threshold quantity, the stationary source is
included in the community emergency response plan developed under 42
U.S.C. 11003;
(2) For stationary sources with only regulated flammable substances
held in a process above the threshold quantity, the owner or operator
has coordinated response actions with the local fire department; and
(3) Appropriate mechanisms are in place to notify emergency
responders when there is a need for a response.
Sec. 68.95 Emergency response program.
(a) The owner or operator shall develop and implement an emergency
response program for the purpose of protecting public health and the
environment. Such program shall include the following elements:
(1) An emergency response plan, which shall be maintained at the
stationary source and contain at least the following elements:
(i) Procedures for informing the public and local emergency
response agencies about accidental releases;
(ii) Documentation of proper first-aid and emergency medical
treatment necessary to treat accidental human exposures; and
(iii) Procedures and measures for emergency response after an
accidental release of a regulated substance;
(2) Procedures for the use of emergency response equipment and for
its inspection, testing, and maintenance;
(3) Training for all employees in relevant procedures; and
(4) Procedures to review and update, as appropriate, the emergency
response plan to reflect changes at the stationary source and ensure
that employees are informed of changes.
(b) A written plan that complies with other Federal contingency
plan
[[Page 31726]]
regulations or is consistent with the approach in the National Response
Team's Integrated Contingency Plan Guidance (``One Plan'') and that,
among other matters, includes the elements provided in paragraph (a) of
this section, shall satisfy the requirements of this section if the
owner or operator also complies with paragraph (c) of this section.
(c) The emergency response plan developed under paragraph (a)(1) of
this section shall be coordinated with the community emergency response
plan developed under 42 U.S.C. 11003. Upon request of the local
emergency planning committee or emergency response officials, the owner
or operator shall promptly provide to the local emergency response
officials information necessary for developing and implementing the
community emergency response plan.
12. Subpart G is added to read as follows:
Subpart G--Risk Management Plan
Sec.
68.150 Submission.
68.155 Executive summary.
68.160 Registration.
68.165 Offsite consequence analysis.
68.168 Five-year accident history.
68.170 Prevention program/Program 2.
68.175 Prevention program/Program 3.
68.180 Emergency response program.
68.185 Certification.
68.190 Updates.
Subpart G--Risk Management Plan
Sec. 68.150 Submission.
(a) The owner or operator shall submit a single RMP that includes
the information required by Secs. 68.155 through 68.185 for all covered
processes. The RMP shall be submitted in a method and format to a
central point as specified by EPA prior to June 21, 1999.
(b) The owner or operator shall submit the first RMP no later than
the latest of the following dates:
(1) June 21, 1999;
(2) Three years after the date on which a regulated substance is
first listed under Sec. 68.130; or
(3) The date on which a regulated substance is first present above
a threshold quantity in a process.
(c) Subsequent submissions of RMPs shall be in accordance with
Sec. 68.190.
(d) Notwithstanding the provisions of Secs. 68.155 to 68.190, the
RMP shall exclude classified information. Subject to appropriate
procedures to protect such information from public disclosure,
classified data or information excluded from the RMP may be made
available in a classified annex to the RMP for review by Federal and
state representatives who have received the appropriate security
clearances.
Sec. 68.155 Executive summary.
The owner or operator shall provide in the RMP an executive summary
that includes a brief description of the following elements:
(a) The accidental release prevention and emergency response
policies at the stationary source;
(b) The stationary source and regulated substances handled;
(c) The worst-case release scenario(s) and the alternative release
scenario(s), including administrative controls and mitigation measures
to limit the distances for each reported scenario;
(d) The general accidental release prevention program and chemical-
specific prevention steps;
(e) The five-year accident history;
(f) The emergency response program; and
(g) Planned changes to improve safety.
Sec. 68.160 Registration.
(a) The owner or operator shall complete a single registration form
and include it in the RMP. The form shall cover all regulated
substances handled in covered processes.
(b) The registration shall include the following data:
(1) Stationary source name, street, city, county, state, zip code,
latitude, and longitude;
(2) The stationary source Dun and Bradstreet number;
(3) Name and Dun and Bradstreet number of the corporate parent
company;
(4) The name, telephone number, and mailing address of the owner or
operator;
(5) The name and title of the person or position with overall
responsibility for RMP elements and implementation;
(6) The name, title, telephone number, and 24-hour telephone number
of the emergency contact;
(7) For each covered process, the name and CAS number of each
regulated substance held above the threshold quantity in the process,
the maximum quantity of each regulated substance or mixture in the
process (in pounds) to two significant digits, the SIC code, and the
Program level of the process;
(8) The stationary source EPA identifier;
(9) The number of full-time employees at the stationary source;
(10) Whether the stationary source is subject to 29 CFR 1910.119;
(11) Whether the stationary source is subject to 40 CFR part 355;
(12) Whether the stationary source has a CAA Title V operating
permit; and
(13) The date of the last safety inspection of the stationary
source by a Federal, state, or local government agency and the identity
of the inspecting entity.
Sec. 68.165 Offsite consequence analysis.
(a) The owner or operator shall submit in the RMP information:
(1) One worst-case release scenario for each Program 1 process; and
(2) For Program 2 and 3 processes, one worst-case release scenario
to represent all regulated toxic substances held above the threshold
quantity and one worst-case release scenario to represent all regulated
flammable substances held above the threshold quantity. If additional
worst-case scenarios for toxics or flammables are required by
Sec. 68.25(a)(2)(iii), the owner or operator shall submit the same
information on the additional scenario(s). The owner or operator of
Program 2 and 3 processes shall also submit information on one
alternative release scenario for each regulated toxic substance held
above the threshold quantity and one alternative release scenario to
represent all regulated flammable substances held above the threshold
quantity.
(b) The owner or operator shall submit the following data:
(1) Chemical name;
(2) Physical state (toxics only);
(3) Basis of results (give model name if used);
(4) Scenario (explosion, fire, toxic gas release, or liquid spill
and vaporization);
(5) Quantity released in pounds;
(6) Release rate;
(7) Release duration;
(8) Wind speed and atmospheric stability class (toxics only);
(9) Topography (toxics only);
(10) Distance to endpoint;
(11) Public and environmental receptors within the distance;
(12) Passive mitigation considered; and
(13) Active mitigation considered (alternative releases only);
Sec. 68.168 Five-year accident history.
The owner or operator shall submit in the RMP the information
provided in Sec. 68.42(b) on each accident covered by Sec. 68.42(a).
Sec. 68.170 Prevention program/Program 2.
(a) For each Program 2 process, the owner or operator shall provide
in the RMP the information indicated in paragraphs (b) through (k) of
this section. If the same information applies
[[Page 31727]]
to more than one covered process, the owner or operator may provide the
information only once, but shall indicate to which processes the
information applies.
(b) The SIC code for the process.
(c) The name(s) of the chemical(s) covered.
(d) The date of the most recent review or revision of the safety
information and a list of Federal or state regulations or industry-
specific design codes and standards used to demonstrate compliance with
the safety information requirement.
(e) The date of completion of the most recent hazard review or
update.
(1) The expected date of completion of any changes resulting from
the hazard review;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last hazard review.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit.
(j) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation.
(k) The date of the most recent change that triggered a review or
revision of safety information, the hazard review, operating or
maintenance procedures, or training.
Sec. 68.175 Prevention program/Program 3.
(a) For each Program 3 process, the owner or operator shall provide
the information indicated in paragraphs (b) through (p) of this
section. If the same information applies to more than one covered
process, the owner or operator may provide the information only once,
but shall indicate to which processes the information applies.
(b) The SIC code for the process.
(c) The name(s) of the substance(s) covered.
(d) The date on which the safety information was last reviewed or
revised.
(e) The date of completion of the most recent PHA or update and the
technique used.
(1) The expected date of completion of any changes resulting from
the PHA;
(2) Major hazards identified;
(3) Process controls in use;
(4) Mitigation systems in use;
(5) Monitoring and detection systems in use; and
(6) Changes since the last PHA.
(f) The date of the most recent review or revision of operating
procedures.
(g) The date of the most recent review or revision of training
programs;
(1) The type of training provided--classroom, classroom plus on the
job, on the job; and
(2) The type of competency testing used.
(h) The date of the most recent review or revision of maintenance
procedures and the date of the most recent equipment inspection or test
and the equipment inspected or tested.
(i) The date of the most recent change that triggered management of
change procedures and the date of the most recent review or revision of
management of change procedures.
(j) The date of the most recent pre-startup review.
(k) The date of the most recent compliance audit and the expected
date of completion of any changes resulting from the compliance audit;
(l) The date of the most recent incident investigation and the
expected date of completion of any changes resulting from the
investigation;
(m) The date of the most recent review or revision of employee
participation plans;
(n) The date of the most recent review or revision of hot work
permit procedures;
(o) The date of the most recent review or revision of contractor
safety procedures; and
(p) The date of the most recent evaluation of contractor safety
performance.
Sec. 68.180 Emergency response program.
(a) The owner or operator shall provide in the RMP the following
information:
(1) Do you have a written emergency response plan?
(2) Does the plan include specific actions to be taken in response
to an accidental releases of a regulated substance?
(3) Does the plan include procedures for informing the public and
local agencies responsible for responding to accidental releases?
(4) Does the plan include information on emergency health care?
(5) The date of the most recent review or update of the emergency
response plan;
(6) The date of the most recent emergency response training for
employees.
(b) The owner or operator shall provide the name and telephone
number of the local agency with which the plan is coordinated.
(c) The owner or operator shall list other Federal or state
emergency plan requirements to which the stationary source is subject.
Sec. 68.185 Certification.
(a) For Program 1 processes, the owner or operator shall submit in
the RMP the certification statement provided in Sec. 68.12(b)(4).
(b) For all other covered processes, the owner or operator shall
submit in the RMP a single certification that, to the best of the
signer's knowledge, information, and belief formed after reasonable
inquiry, the information submitted is true, accurate, and complete.
Sec. 68.190 Updates.
(a) The owner or operator shall review and update the RMP as
specified in paragraph (b) of this section and submit it in a method
and format to a central point specified by EPA prior to June 21, 1999.
(b) The owner or operator of a stationary source shall revise and
update the RMP submitted under Sec. 68.150 as follows:
(1) Within five years of its initial submission or most recent
update required by paragraphs (b)(2) through (b)(7) of this section,
whichever is later.
(2) No later than three years after a newly regulated substance is
first listed by EPA;
(3) No later than the date on which a new regulated substance is
first present in an already covered process above a threshold quantity;
(4) No later than the date on which a regulated substance is first
present above a threshold quantity in a new process;
(5) Within six months of a change that requires a revised PHA or
hazard review;
(6) Within six months of a change that requires a revised offsite
consequence analysis as provided in Sec. 68.36; and
(7) Within six months of a change that alters the Program level
that applied to any covered process.
(c) If a stationary source is no longer subject to this part, the
owner or operator shall submit a revised
[[Page 31728]]
registration to EPA within six months indicating that the stationary
source is no longer covered.
13. Subpart H is added to read as follows:
Subpart H--Other Requirements
Sec.
Sec. 68.200 Recordkeeping.
Sec. 68.210 Availability of information to the public.
68.215 Permit content and air permitting authority or designated
agency requirements.
68.220 Audits.
Subpart H--Other Requirements
Sec. 68.200 Recordkeeping.
The owner or operator shall maintain records supporting the
implementation of this part for five years unless otherwise provided in
Subpart D of this part.
Sec. 68.210 Availability of information to the public.
(a) The RMP required under subpart G of this part shall be
available to the public under 42 U.S.C. 7414(c).
(b) The disclosure of classified information by the Department of
Defense or other Federal agencies or contractors of such agencies shall
be controlled by applicable laws, regulations, or executive orders
concerning the release of classified information.
Sec. 68.215 Permit content and air permitting authority or designated
agency requirements.
(a) These requirements apply to any stationary source subject to
this part 68 and parts 70 or 71 of this Chapter. The 40 CFR part 70 or
par
FR Doc. 96-14597 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)
t 71 permit for the stationary source shall contain:
(1) A statement listing this part as an applicable requirement;
(2) Conditions that require the source owner or operator to submit:
(i) A compliance schedule for meeting the requirements of this part
by the date provided in Sec. 68.10(a) or;
(ii) As part of the compliance certification submitted under 40 CFR
70.6(c)(5), a certification statement that the source is in compliance
with all requirements of this part, including the registration and
submission of the RMP.
(b) The owner or operator shall submit any additional relevant
information requested by the air permitting authority or designated
agency.
(c) For 40 CFR part 70 or part 71 permits issued prior to the
deadline for registering and submitting the RMP and which do not
contain permit conditions described in paragraph (a) of this section,
the owner or operator or air permitting authority shall initiate permit
revision or reopening according to the procedures of 40 CFR 70.7 or
71.7 to incorporate the terms and conditions consistent with paragraph
(a) of this section.
(d) The state may delegate the authority to implement and enforce
the requirements of paragraph (e) of this section to a state or local
agency or agencies other than the air permitting authority. An up-to-
date copy of any delegation instrument shall be maintained by the air
permitting authority. The state may enter a written agreement with the
Administrator under which EPA will implement and enforce the
requirements of paragraph (e) of this section.
(e) The air permitting authority or the agency designated by
delegation or agreement under paragraph (d) of this section shall, at a
minimum:
(1) Verify that the source owner or operator has registered and
submitted an RMP or a revised plan when required by this part;
(2) Verify that the source owner or operator has submitted a source
certification or in its absence has submitted a compliance schedule
consistent with paragraph (a)(2) of this section;
(3) For some or all of the sources subject to this section, use one
or more mechanisms such as, but not limited to, a completeness check,
source audits, record reviews, or facility inspections to ensure that
permitted sources are in compliance with the requirements of this part;
and
(4) Initiate enforcement action based on paragraphs (e)(1) and
(e)(2) of this section as appropriate.
Sec. 68.220 Audits.
(a) In addition to inspections for the purpose of regulatory
development and enforcement of the Act, the implementing agency shall
periodically audit RMPs submitted under subpart G of this part to
review the adequacy of such RMPs and require revisions of RMPs when
necessary to ensure compliance with subpart G of this part.
(b) The implementing agency shall select stationary sources for
audits based on any of the following criteria:
(1) Accident history of the stationary source;
(2) Accident history of other stationary sources in the same
industry;
(3) Quantity of regulated substances present at the stationary
source;
(4) Location of the stationary source and its proximity to the
public and environmental receptors;
(5) The presence of specific regulated substances;
(6) The hazards identified in the RMP; and
(7) A plan providing for neutral, random oversight.
(c) Exemption from audits. A stationary source with a Star or Merit
ranking under OSHA's voluntary protection program shall be exempt from
audits under paragraph (b)(2) and (b)(7) of this section.
(d) The implementing agency shall have access to the stationary
source, supporting documentation, and any area where an accidental
release could occur.
(e) Based on the audit, the implementing agency may issue the owner
or operator of a stationary source a written preliminary determination
of necessary revisions to the stationary source's RMP to ensure that
the RMP meets the criteria of subpart G of this part. The preliminary
determination shall include an explanation for the basis for the
revisions, reflecting industry standards and guidelines (such as AIChE/
CCPS guidelines and ASME and API standards) to the extent that such
standards and guidelines are applicable, and shall include a timetable
for their implementation.
(f) Written response to a preliminary determination.
(1) The owner or operator shall respond in writing to a preliminary
determination made in accordance with paragraph (e) of this section.
The response shall state the owner or operator will implement the
revisions contained in the preliminary determination in accordance with
the timetable included in the preliminary determination or shall state
that the owner or operator rejects the revisions in whole or in part.
For each rejected revision, the owner or operator shall explain the
basis for rejecting such revision. Such explanation may include
substitute revisions.
(2) The written response under paragraph (f)(1) of this section
shall be received by the implementing agency within 90 days of the
issue of the preliminary determination or a shorter period of time as
the implementing agency specifies in the preliminary determination as
necessary to protect public health and the environment. Prior to the
written response being due and upon written request from the owner or
operator, the implementing agency may provide in writing additional
time for the response to be received.
(g) After providing the owner or operator an opportunity to respond
under paragraph (f) of this section, the implementing agency may issue
the owner or operator a written final determination of necessary
revisions to
[[Page 31729]]
the stationary source's RMP. The final determination may adopt or
modify the revisions contained in the preliminary determination under
paragraph (e) of this section or may adopt or modify the substitute
revisions provided in the response under paragraph (f) of this section.
A final determination that adopts a revision rejected by the owner or
operator shall include an explanation of the basis for the revision. A
final determination that fails to adopt a substitute revision provided
under paragraph (f) of this section shall include an explanation of the
basis for finding such substitute revision unreasonable.
(h) Thirty days after completion of the actions detailed in the
implementation schedule set in the final determination under paragraph
(g) of this section, the owner or operator shall be in violation of
subpart G of this part and this section unless the owner or operator
revises the RMP prepared under subpart G of this part as required by
the final determination, and submits the revised RMP as required under
Sec. 68.150.
(i) The public shall have access to the preliminary determinations,
responses, and final determinations under this section in a manner
consistent with Sec. 68.210.
(j) Nothing in this section shall preclude, limit, or interfere in
any way with the authority of EPA or the state to exercise its
enforcement, investigatory, and information gathering authorities
concerning this part under the Act.
14. Part 68 Appendix A is added to read as follows:
Appendix A to Part 68--Table of Toxic Endpoints
[As defined in Sec. 68.22 of this part]
----------------------------------------------------------------------------------------------------------------
Toxic
CAS No. Chemical name endpoint (mg/
L)
----------------------------------------------------------------------------------------------------------------
107-02-8..................................... Acrolein [2-Propenal].............................. 0.0011
107-13-1..................................... Acrylonitrile [2-Propenenitrile]................... 0.076
814-68-6..................................... Acrylyl chloride [2-Propenoyl chloride]............ 0.00090
107-18-6..................................... Allyl alcohol [2-Propen-1-ol]...................... 0.036
107-11-9..................................... Allylamine [2-Propen-1-amine]...................... 0.0032
7664-41-7.................................... Ammonia (anhydrous)................................ 0.14
7664-41-7.................................... Ammonia (conc 20% or greater)...................... 0.14
7784-34-1.................................... Arsenous trichloride............................... 0.010
7784-42-1.................................... Arsine............................................. 0.0019
10294-34-5................................... Boron trichloride [Borane, trichloro-]............. 0.010
7637-07-2.................................... Boron trifluoride [Borane, trifluoro-]............. 0.028
353-42-4..................................... Boron trifluoride compound with methyl ether (1:1) 0.023
[Boron, trifluoro[oxybis[methane]]-, T-4.
7726-95-6.................................... Bromine............................................ 0.0065
75-15-0...................................... Carbon disulfide................................... 0.16
7782-50-5.................................... Chlorine........................................... 0.0087
10049-04-4................................... Chlorine dioxide [Chlorine oxide (ClO2)]........... 0.0028
67-66-3...................................... Chloroform [Methane, trichloro-]................... 0.49
542-88-1..................................... Chloromethyl ether [Methane, oxybis[chloro-]....... 0.00025
107-30-2..................................... Chloromethyl methyl ether [Methane, chloromethoxy-] 0.0018
4170-30-3.................................... Crotonaldehyde [2-Butenal]......................... 0.029
123-73-9..................................... Crotonaldehyde, (E)-, [2-Butenal, (E)-]............ 0.029
506-77-4..................................... Cyanogen chloride.................................. 0.030
108-91-8..................................... Cyclohexylamine [Cyclohexanamine].................. 0.16
19287-45-7................................... Diborane........................................... 0.0011
75-78-5...................................... Dimethyldichlorosilane [Silane, dichlorodimethyl-]. 0.026
57-14-7...................................... 1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-]... 0.012
106-89-8..................................... Epichlorohydrin [Oxirane, (chloromethyl)-]......... 0.076
107-15-3..................................... Ethylenediamine [1,2-Ethanediamine]................ 0.49
151-56-4..................................... Ethyleneimine [Aziridine].......................... 0.018
75-21-8...................................... Ethylene oxide [Oxirane]........................... 0.090
7782-41-4.................................... Fluorine........................................... 0.0039
50-00-0...................................... Formaldehyde (solution)............................ 0.012
110-00-9..................................... Furan.............................................. 0.0012
302-01-2..................................... Hydrazine.......................................... 0.011
7647-01-0.................................... Hydrochloric acid (conc 30% or greater)............ 0.030
74-90-8...................................... Hydrocyanic acid................................... 0.011
7647-01-0.................................... Hydrogen chloride (anhydrous) [Hydrochloric acid].. 0.030
7664-39-3.................................... Hydrogen fluoride/Hydrofluoric acid (conc 50% or 0.016
greater) [Hydrofluoric acid].
7783-07-5.................................... Hydrogen selenide.................................. 0.00066
7783-06-4.................................... Hydrogen sulfide................................... 0.042
13463-40-6................................... Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB- 0.00044
5-11)-].
78-82-0...................................... Isobutyronitrile [Propanenitrile, 2-methyl-]....... 0.14
108-23-6..................................... Isopropyl chloroformate [Carbonochloride acid, 1- 0.10
methylethyl ester].
126-98-7..................................... Methacrylonitrile [2-Propenenitrile, 2-methyl-].... 0.0027
74-87-3...................................... Methyl chloride [Methane, chloro-]................. 0.82
79-22-1...................................... Methyl chloroformate [Carbonochloridic acid, 0.0019
methylester].
60-34-4...................................... Methyl hydrazine [Hydrazine, methyl-].............. 0.0094
624-83-9..................................... Methyl isocyanate [Methane, isocyanato-]........... 0.0012
74-93-1...................................... Methyl mercaptan [Methanethiol].................... 0.049
556-64-9..................................... Methyl thiocyanate [Thiocyanic acid, methyl ester]. 0.085
75-79-6...................................... Methyltrichlorosilane [Silane, trichloromethyl-]... 0.018
13463-39-3................................... Nickel carbonyl.................................... 0.00067
7697-37-2.................................... Nitric acid (conc 80% or greater).................. 0.026
[[Page 31730]]
10102-43-9................................... Nitric oxide [Nitrogen oxide (NO)]................. 0.031
8014-95-7.................................... Oleum (Fuming Sulfuric acid) [Sulfuric acid, 0.010
mixture with sulfur trioxide].
79-21-0...................................... Peracetic acid [Ethaneperoxoic acid]............... 0.0045
594-42-3..................................... Perchloromethylmercaptan [Methanesulfenyl chloride, 0.0076
trichloro-].
75-44-5...................................... Phosgene [Carbonic dichloride]..................... 0.00081
7803-51-2.................................... Phosphine.......................................... 0.0035
10025-87-3................................... Phosphorus oxychloride [Phosphoryl chloride]....... 0.0030
7719-12-2.................................... Phosphorus trichloride [Phosphorous trichloride]... 0.028
110-89-4..................................... Piperidine......................................... 0.022
107-12-0..................................... Propionitrile [Propanenitrile]..................... 0.0037
109-61-5..................................... Propyl chloroformate [Carbonochloridic acid, 0.010
propylester].
75-55-8...................................... Propyleneimine [Aziridine, 2-methyl-].............. 0.12
75-56-9...................................... Propylene oxide [Oxirane, methyl-]................. 0.59
7446-09-5.................................... Sulfur dioxide (anhydrous)......................... 0.0078
7783-60-0.................................... Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)- 0.0092
].
7446-11-9.................................... Sulfur trioxide.................................... 0.010
75-74-1...................................... Tetramethyllead [Plumbane, tetramethyl-]........... 0.0040
509-14-8..................................... Tetranitromethane [Methane, tetranitro-]........... 0.0040
7750-45-0.................................... Titanium tetrachloride [Titanium chloride (TiCl4) 0.020
(T-4)-].
584-84-9..................................... Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato- 0.0070
1-methyl-].
91-08-7...................................... Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato- 0.0070
2-methyl-].
26471-62-5................................... Toluene diisocyanate (unspecified isomer) [Benzene, 0.0070
1,3-diisocyanatomethyl-].
75-77-4...................................... Trimethylchlorosilane [Silane, chlorotrimethyl-]... 0.050
108-05-4..................................... Vinyl acetate monomer [Acetic acid ethenyl ester].. 0.26
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-14597 Filed 6-19-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-14548 Federal Acquisition Regulation; Termination for Convenience
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31665-31666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14548]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 52
[FAC 90-39; FAR Case 91-102; Item XXXIII]
RIN 9000-AF55
Federal Acquisition Regulation; Termination for Convenience
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to clarify language in the
``Termination for Convenience of the Government (Fixed-Price)'' clause.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 91-102.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register at 58 FR
64826, December 9, 1993. The proposed rule amended the clause at FAR
52.249-2, Termination for Convenience of the Government (Fixed-Price),
to clarify existing language. Changes were made to clarify that
incremental payments may be involved in some instances, such as a
partial termination action, and to clarify the two instances when the
contractor forfeits its right of appeal. After evaluation of public
comments, the Councils agreed to two changes in the proposal. The first
change revises paragraph (e) of the clause by replacing the word
``amended'' with the word ``modified.'' The second change revises
paragraph (i) by deleting the phrase ``following a claim and final
decision.''
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
[[Page 31666]]
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because it simply clarifies
existing language pertaining to settlement of contract termination
costs. No comments were received on the impact of this rule on small
entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 52 is amended as set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 52.249-2 is amended by revising the date in the clause
heading; and revising paragraphs (e) and (i) of the clause to read as
follows:
Sec. 52.249-2 Termination for Convenience of the Government (Fixed-
Price).
* * * * *
TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (AUG 1996)
* * * * *
(e) Subject to paragraph (d) of this clause, the Contractor and
the Contracting Officer may agree upon the whole or any part of the
amount to be paid or remaining to be paid because of the
termination. The amount may include a reasonable allowance for
profit on work done. However, the agreed amount, whether under this
paragraph (e) or paragraph (f) of this clause, exclusive of costs
shown in subparagraph (f)(3) of this clause, may not exceed the
total contract price as reduced by (1) the amount of payments
previously made and (2) the contract price of work not terminated.
The contract shall be modified, and the Contractor paid the agreed
amount. Paragraph (f) of this clause shall not limit, restrict, or
affect the amount that may be agreed upon to be paid under this
paragraph.
* * * * *
(i) The Contractor shall have the right of appeal, under the
Disputes clause, from any determination made by the Contracting
Officer under paragraph (d), (f), or (k) of this clause, except that
if the Contractor failed to submit the termination settlement
proposal or request for equitable adjustment within the time
provided in paragraph (d) or (k), respectively, and failed to
request a time extension, there is no right of appeal.
* * * * *
(End of clause)
* * * * *
[FR Doc. 96-14548 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14547 Federal Acquisition Regulation; Inspection ClausesFixed Price
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14547]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 52
[FAC 90-39; FAR Case 92-001; Item XXXII]
RIN 9000-AG94
Federal Acquisition Regulation; Inspection Clauses--Fixed Price
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to clarify
certain Federal Acquisition Regulation (FAR) Inspection clauses
pertaining to quality assurance by replacing the words ``without
additional charge'' with the words ``at no increase in contract
price.'' This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4035, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-001.
SUPPLEMENTARY INFORMATION:
A. Background
An amendment to FAR 52.246-4 published in Federal Acquisition
Circular 90-09 as FAR case 90-58 (see 56 FR 67135, December 27, 1991),
included the addition of the phrase ``without additional charge'' in
paragraph (d). A comment was received questioning the phrase ``without
additional charge.'' As a result, this final rule replaces the phrase
``without additional charge'' with the phrase ``at no increase in
contract price'' in certain FAR Inspection clauses for clarity.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 92-001), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because these final
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of OMB
under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 52 is amended as set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Sec. 52.246-2, 52.246-4, 52.246-7, 52.246-12, and 52.246-13 [Amended]
2. The clause dates in sections 52.246-2, 52.246-4, 52.246-7,
52.246-12, and 52.246-13 are revised to read ``(AUG 1996)''; and
sections 52.246-2(d), 52.246-4(d), 52.246-7(c), and 52.246-12(e) are
amended by removing the words ``without additional charge'' and
inserting ``at no increase in contract price'' in their place; and
section 52.246-13(a) is amended by removing the words promptly and
without additional charge'' and inserting ``promptly, and at no
increase in contract price'' in its place.
[FR Doc. 96-14547 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14546 Federal Acquisition Regulation; Small Business Innovation Research Rights in Data
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31664-31665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14546]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 52
[FAC 90-39; FAR Case 93-305; Item XXXI]
RIN 9000-AF54
Federal Acquisition Regulation; Small Business Innovation
Research Rights in Data
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published at 59 FR 11386, March 10, 1994, to a final rule without
change. The rule amends the Federal Acquisition Regulation (FAR) to
implement Section 15(f) of the revised SBIR Program Policy Directive
published by the Small Business Administration in the Federal Register
on January 26, 1993 (58 FR 6144). The revision to the clause, Rights in
Data--SBIR Program, increases the small business concern's data rights
retention period from 2 to 4 years. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-305.
SUPPLEMENTARY INFORMATION:
A. Background
This rule implements Section 15(f) of the revised SBIR Program
Policy Directive published by the SBA in the Federal Register on
January 26, 1993 (58 FR 6144). Section 15(f) implements Section
103(f)(4) of Public Law 102-564, ``Small Business Research and
Development Enhancement Act of 1992,'' which increases the small
business concern's data rights retention period from 2 to 4 years.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely amends
the FAR to conform to the requirements of the Small Business Innovation
Research Program Policy Directive published by the Small Business
Administration. No comments were received on the impact of this rule on
small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors,
[[Page 31665]]
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR Part 52, which was
published at 59 FR 11386, March 10, 1994 (FAC 90-20, Item XIX), is
adopted as a final rule without change.
The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14546 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14545 Federal Acquisition Regulation; Contract AwardSealed Bidding Construction
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31663-31664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14545]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 52
[FAC 90-39; FAR Case 91-031; Item XXX]
RIN 9000-AE41
Federal Acquisition Regulation; Contract Award--Sealed Bidding--
Construction
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
[[Page 31664]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to inform offerors under
construction solicitations that the Government may reject bids as
nonresponsive if the prices are materially unbalanced. The proposed
rule was published in the Federal Register at 56 FR 29539, June 27,
1991. This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 91-31.
SUPPLEMENTARY INFORMATION:
A. Background
The FAR was previously amended to include unbalanced bidding
provisions at 52.214-10, Contract Award--Sealed Bidding, and 52.215-16,
Contract Award, for supplies and services procured under sealed bidding
and negotiation procedures. At that time, the unbalanced bidding
provisions were not made applicable to construction solicitations.
However, the Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have decided that, for consistency,
construction solicitations should include a similar provision to notify
offerors that their bids may be rejected as nonresponsive if the prices
are materially unbalanced.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because unbalanced bidding
provisions have already been incorporated in solicitations, for other
than construction, with no known impact on the small business
community. No comments were received on the impact of this rule on
small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 52 is amended as set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 52.214-19 is amended by revising the date of the
provision to read ``(AUG 1996)''; and by adding paragraph (d) to the
provision to read as follows:
52.214-19 Contract Award--Sealed Bidding--Construction.
* * * * *
CONTRACT AWARD--SEALED BIDDING--CONSTRUCTION (AUG 1996)
* * * * *
(d) The Government may reject a bid as nonresponsive if the
prices bid are materially unbalanced between line items or subline
items. A bid is materially unbalanced when it is based on prices
significantly less than cost for some work and prices which are
significantly overstated in relation to cost for other work, and if
there is a reasonable doubt that the bid will result in the lowest
overall cost to the Government even though it may be the low
evaluated bid, or if it is so unbalanced as to be tantamount to
allowing an advance payment.
[FR Doc. 96-14545 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14544 Federal Acquisition Regulation; Solicitation ProvisionsContract Clauses
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14544]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 52
[FAC 90-39; FAR Case 95-603; Item XXIX]
RIN 9000-AG98
Federal Acquisition Regulation; Solicitation Provisions--Contract
Clauses
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend a
Federal Acquisition Regulation (FAR) provision to delete the statement
advising offerors to obtain copies of specifications from General
Services Administration Business Service Centers. The substance of the
provision is not changed. Specifications are no longer available at the
Business Service Centers. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405, (202) 501-
4755. Please cite FAC 90-39, FAR case 95-603.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the provision at FAR 52.211-1 to delete the
statement that copies of specifications may be obtained from the
General Services Administration Business Service Centers in Boston, New
York, Philadelphia, Atlanta, Kansas City, and Fort Worth. Copies of
specifications are no longer available at the Business Service Centers.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 95-603), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 52 is amended as set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
52.211-1 [Amended]
2. Section 52.211-1 is amended in the introductory paragraph by
revising ``11.203(a)'' to read ``11.204(a)''; revising the date of the
provision to read ``(AUG 1996)''; and in the first sentence of
paragraph (a) of the provision by removing ``, or from any of the
General Services Administration Business Service Centers which are
located in Boston, MA; New York, NY; Philadelphia, PA; Atlanta, GA;
Kansas City, MO; and Fort Worth, TX.'' and replacing it with a period.
52.211-2 and 52.211-3 [Amended]
3. Section 52.211-2 is amended in the introductory paragraph by
revising ``11.203(b)'' to read ``11.204(b)''.
4. Section 52.211-3 is amended in the introductory paragraph by
revising ``11.203(c)'' to read ``11.204(c)''.
[FR Doc. 96-14544 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14543 Federal Acquisition Regulation; Quality Assurance Nonconformances
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31662-31663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14543]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 46
[FAC 90-39; FAR Case 92-027; Item XXVIII]
RIN 9000-AF80
Federal Acquisition Regulation; Quality Assurance Nonconformances
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to provide standardized
definitions of the terms ``critical nonconformance,'' ``major
nonconformance,'' and ``minor nonconformance,'' and make other
conforming amendments as a result of recommendations made by the
Department of Defense Inspector General. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-027.
SUPPLEMENTARY INFORMATION:
A. Background
On September 27, 1990, the Department of Defense Inspector General
(DoDIG) issued Audit Report 90-113, Nonconforming Products Procured by
the Defense Industrial Supply Center. The report included
recommendations that the DoD should use standardized terminology for a
nonconformance, and that the DoD definition of a nonconformance should
be in agreement with the FAR. On March 28, 1994 (59 FR 14466), the
Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council published a proposed rule implementing the DoDIG's
recommendation.
As a result of evaluating the comments received, changes were made
to the proposed rule. The changes included deleting the words
``judgment and experience indicate'' from the definition of ``critical
nonconformance;'' and adding the words ``of the supplies or services,''
to the definition of ``major nonconformance'' after the word
``failure.''
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule merely
provides standard terminology and definitions and guidance to
contracting officers pertaining to nonconforming supplies and services.
No comments were received on the impact of this rule on small entities
during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 46
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 46 is amended as set forth below:
PART 46--QUALITY ASSURANCE
1. The authority citation for 48 CFR Part 46 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 46.101 is amended by adding in alphabetical order the
definitions ``Critical nonconformance'', ``Major nonconformance'', and
``Minor nonconformance'' to read as follows:
46.101 Definitions.
* * * * *
Critical nonconformance means a nonconformance that is likely to
result in hazardous or unsafe conditions for individuals using,
maintaining, or depending upon the supplies or services; or is likely
to prevent performance of a vital agency mission.
* * * * *
Major nonconformance means a nonconformance, other than critical,
that is likely to result in failure of the supplies or services, or to
materially reduce the usability of the supplies or services for their
intended purpose.
[[Page 31663]]
Minor nonconformance means a nonconformance that is not likely to
materially reduce the usability of the supplies or services for their
intended purpose, or is a departure from established standards having
little bearing on the effective use or operation of the supplies or
services.
* * * * *
3. Section 46.103 is amended at the end of paragraph (c) by
removing ``and''; in paragraph (d) by removing the period and inserting
``; and''; and by adding paragraph (e) to read as follows:
46.103 Contracting office responsibilities.
* * * * *
(e) Ensuring that nonconformances are identified, and establishing
the significance of a nonconformance when considering the acceptability
of supplies or services which do not meet contract requirements.
4. Section 46.407 is amended by revising the first sentence of
paragraph (c)(1) introductory text, and in the third sentence by
removing the comma after the word ``determination''; revising paragraph
(d); and revising the first sentence of paragraph (f) to read as
follows:
46.407 Nonconforming supplies or services.
* * * * *
(c)(1) In situations not covered by paragraph (b) of this section,
the contracting officer shall ordinarily reject supplies or services
when the nonconformance is critical or major. * * *
* * * * *
(d) If the nonconformance is minor, the cognizant contract
administration office may make the determination to accept or reject,
except where this authority is withheld by the contracting office of
the contracting activity. To assist in making this determination, the
contract administration office may establish a joint contractor-
contract administrative office review group. Acceptance of supplies and
services with critical or major nonconformances is outside the scope of
the review group.
* * * * *
(f) Each contract under which supplies or services with critical or
major nonconformances are accepted as authorized in paragraph (c) of
this section shall be modified to provide for an equitable price
reduction or other consideration. * * *
* * * * *
[FR Doc. 96-14543 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14542 Federal Acquisition Regulation; Quality Assurance Actions Electronic Screening
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31661-31662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14542]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 46
[FAC 90-39; FAR Case 92-031; Item XXVII]
RIN 9000-AG06
Federal Acquisition Regulation; Quality Assurance Actions--
Electronic Screening
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to include definitions of the
terms ``latent defect'' and ``patent defect.'' This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993, and is not a major
rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-031.
SUPPLEMENTARY INFORMATION:
A. Background
On June 8, 1992, the Department of Defense Inspector General issued
Audit Report 92-099, Quality Assurance Actions Resulting from
Electronic Component Screening, which included a recommendation that
the Defense FAR Supplement be revised to include definitions of the
terms ``latent defect'' and ``patent defect.'' Since both terms are
used in the FAR, Part 46 of the FAR is being revised to include uniform
definitions for use by all acquiring agencies. A proposed rule was
published in the Federal Register at 59 FR 46386 on September 8, 1994.
After evaluation of public comments, the Councils agreed to convert the
proposed rule to a final rule without change.
[[Page 31662]]
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the revision merely
provides uniform definitions for existing FAR terms. No comments were
received on the impact of this rule on small entities during the public
comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 46
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 46 is amended as set forth below:
PART 46--QUALITY ASSURANCE
1. The authority citation for 48 CFR Part 46 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 46.101 is amended by adding in alphabetical order the
definitions ``Latent defect'' and ``Patent defect'' to read as follows:
46.101 Definitions.
* * * * *
Latent defect means a defect which exists at the time of acceptance
but cannot be discovered by a reasonable inspection.
* * * * *
Patent defect means any defect which exists at the time of
acceptance and is not a latent defect.
* * * * *
[FR Doc. 96-14542 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14541 Federal Acquisition Regulation; Quick-Closeout Procedures
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31660-31661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14541]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 42 and 52
[FAC 90-39; FAR Case 95-009; Item XXVI]
RIN 9000-AG57
Federal Acquisition Regulation; Quick-Closeout Procedures
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to ensure maximum use of the
quick-closeout procedures. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-009.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 42.708, Quick-closeout procedure, the
clause at FAR 52.216-7, Allowable Cost and Payment, and the clause at
FAR 52.216-13, Allowable Cost and Payment--Facilities, to ease the
restrictions and maximize the use of the quick-closeout procedure. This
rule was based on the recommendations of the Interagency Process Action
Team (PAT) sponsored by the Air Force Materiel Command. The PAT's
rationale was that, by raising the dollar limitation of quick-closeout
procedures to those contracts with total unsettled indirect costs not
exceeding $1 million in lieu of $500,000, the number of contracts which
could be closed using quick-closeout procedures would increase. Use of
this procedure would benefit contractors by allowing them to invoice
earlier and avoid the administrative costs which would otherwise be
incurred for tracking these
[[Page 31661]]
contracts until final indirect cost rates are negotiated. In addition,
the use of quick-closeout procedures is voluntary on the part of the
contractor to ensure that the contractor does not suffer any loss. The
final rule (1) revises FAR 42.708(a) by substituting the word ``shall''
for ``may''; (2) raises the limitation in FAR 42.708(a)(2)(i) for total
unsettled indirect costs allocable to any one contract from $500,000 to
$1 million; and (3) revises FAR 42.708(a)(2)(ii) to permit the
contracting officer to waive the 15 percent restriction based upon a
risk assessment that considers contractor's accounting, estimating, and
purchasing systems; other concerns of the cognizant contract auditors;
and any other pertinent information. Paragraph (f) of the clause at FAR
52.216-7 and paragraph (e) of the clause at 52.216-13 have also been
revised to be consistent with the revisions to 42.708 as outlined
above.
A proposed rule was published in the Federal Register on July 25,
1995 (60 FR 38196). Five comments from two sources were received in
response to the proposed rule. All comments were considered in the
development of the final rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because most contracts awarded
to small business are awarded on the basis of a firm-fixed price, and
settlement of final indirect cost rates is, therefore, not an issue. No
comments were received on the impact of this rule on small entities
during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 42 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 42 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 42 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 42--CONTRACT ADMINISTRATION
2. Section 42.708 is amended in the introductory text of paragraph
(a) by removing ``may'' and inserting ``shall''; and by revising
paragraph (a)(2) (i) and (ii) to read as follows:
42.708 Quick-closeout procedure.
(a) * * *
(2) * * *
(i) The total unsettled indirect cost to be allocated to any one
contract does not exceed $1,000,000; and
(ii) Unless otherwise provided in agency procedures, the cumulative
unsettled indirect costs to be allocated to one or more contracts in a
single fiscal year do not exceed 15 percent of the estimated, total
unsettled indirect costs allocable to cost-type contracts for that
fiscal year. The contracting officer may waive the 15 percent
restriction based upon a risk assessment that considers the
contractor's accounting, estimating, and purchasing systems; other
concerns of the cognizant contract auditors; and any other pertinent
information; and
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.216-7 is amended by revising the date of the clause
and paragraph (f) to read as follows:
52.216-7 Allowable Cost and Payment.
* * * * *
ALLOWABLE COST AND PAYMENT (AUG 1996)
* * * * *
(f) Quick-closeout procedures. Quick-closeout procedures are
applicable when the conditions in FAR 42.708(a) are satisfied.
* * * * *
4. Section 52.216-13 is amended by revising the introductory
paragraph, the date in the clause heading, and paragraph (e) to read as
follows:
52.216-13 Allowable Cost and Payment--Facilities.
As prescribed in 16.307(g), insert the following clause:
ALLOWABLE COST AND PAYMENT--FACILITIES (AUG 1996)
* * * * *
(e) Quick-closeout procedures. Quick-closeout procedures are
applicable when the conditions in FAR 42.708(a) are satisfied.
* * * * *
[FR Doc. 96-14541 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14540 Federal Acquisition Regulation; Child Care Services
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14540]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 37
[FAC 90-39; FAR Case 91-106; Item XXV]
RIN 9000-AF31
Federal Acquisition Regulation; Child Care Services
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published in the Federal Register at 59 FR 67050, December 28, 1994, to
a final rule. The rule amends the Federal Acquisition Regulation (FAR)
to add a definition of ``child care services'' and to require
contracting officers to ensure that contracts for child care services
include requirements for criminal history background checks of
employees in accordance with 42 U.S.C. 13041. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993, and is not a major
rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 91-106.
SUPPLEMENTARY INFORMATION:
A. Background
This rule implements Subtitle E, section 231 of the Crime Control
Act of 1990 (Pub. L. 101-647), codified at 42 U.S.C. 13041, as amended
by section 1094 of the Fiscal Year 1992 Defense Authorization Act
(Public Law 102-190). The effective date for compliance with Public Law
101-647 was May 29, 1991. Public Law 102-190 was effective upon
enactment on December 5, 1991.
In part, section 231 of Public Law 101-647 requires that child care
employees, hired to provide child care services at a facility operated
by the Government or under contract with the Government, undergo a
criminal history background check. The statute broadly defines ``child
care services'' as child protective services (including the
investigation of child abuse and neglect reports), social services,
health and mental health care, child day care, education (whether or
not directly involved in teaching), foster care, residential care,
recreational or rehabilitative programs, and detention, correctional,
or treatment services. Subsequently, section 1094 of Public Law 102-190
amended 42 U.S.C. 13041 to provide for the provisional supervised
employment of child care employees prior to the completion of the
required criminal history background check and specified additional
safety measures for Federal child care service facilities.
B. Regulatory Flexibility Act
Under the interim rule, because Subtitle E, Section 231 of the
Crime Control Act of 1990, Public Law 101-647 (42 U.S.C. 13041),
requires child care employees hired under contract to undergo a
criminal history background check, an Initial Regulatory Flexibility
Act Analysis was prepared. No comments were received.
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been prepared and will be provided to the Chief Counsel for Advocacy
for the Small Business Administration. A copy of the FRFA may be
obtained from the FAR Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 37
Government procurement.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR Part 37, which was
published at 59 FR 67050, December 28, 1994 (FAC 90-23, Item XXVII) is
adopted as a final rule without change.
The authority citation for 48 CFR Part 37 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14540 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14539 Federal Acquisition Regulation; Defense Production Act Amendments
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31659-31660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14539]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 34 and 52
[FAC 90-39; FAR Case 93-304; Item XXIV]
RIN 9000-AG11
Federal Acquisition Regulation; Defense Production Act Amendments
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published in the Federal Register at 59 FR 67047, December 28, 1994, to
a final rule. This rule amends the Federal Acquisition Regulation (FAR)
to add policy and procedures for testing and qualification, and use of
industrial resources manufactured or developed with assistance provided
under Title III of the Defense Production Act (DPA) of 1950. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993, and is
not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-304.
SUPPLEMENTARY INFORMATION:
A. Background
Title III of the DPA authorizes various forms of Government
assistance to encourage expansion of production of capacity and supply
of industrial resources essential to national defense. The DPA
Amendments of 1992 (Public Law 102-558) provide for the testing,
qualification, and use of industrial resources manufactured or
developed with assistance provided under Title III of the DPA. This
rule expresses Government policy to pay for such testing, and provides
definitions, procedures, and a contract clause to implement the policy.
An interim rule was published in the Federal Register on December 28,
1994 (59 FR 67047), with a request for public comments. No comments
were received.
B. Regulatory Flexibility Act
The addition of FAR Subpart 34.1 may have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because small
entities are sometimes asked to perform the qualification testing
required under the rule. A Final Regulatory Flexibility Analysis has
been prepared and is summarized as follows:
The change is required to implement amendments to the DPA made by
Public Law 102-558. The DPA amendments provide for testing,
qualification, and use of industrial resources manufactured or
developed with assistance provided under Title III of the DPA. This
rule expresses Government policy to pay for such testing, and provides
definitions, procedures, and a contract clause to implement the policy.
This rule will apply to any small entity that has Government contracts
that require qualification testing under the Act. A reporting
requirement is in the rule that requires contractors who perform this
testing to provide the test results to the Government. No public
comments were received in response to the statement in the interim rule
regarding the Regulatory Flexibility Act. There are no alternatives
that will accomplish the objectives of the rule.
C. Paperwork Reduction Act
The Paperwork Reduction Act is deemed to apply because the final
rule contains information collection requirements. Accordingly, a
request for approval of a new information collection requirement
concerning the DPA Amendments was submitted to the Office of Management
and Budget under 44 U.S.C. 3501, et seq., and approved under OMB
Control No. 9000-0133 effective through September 30, 1997. Public
comments concerning this request were invited through a Federal
Register notice at 59 FR 67047, December 28, 1994, and no comments were
received.
List of Subjects in 48 CFR Parts 34 and 52
Government procurement.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending CFR Parts 34 and 52, which
was published at 59 FR 67047, December 28, 1994 (FAC 90-23, Item XXIV),
is adopted as a final rule without change.
The authority citation for 48 CFR Parts 34 and 52 continues to read
as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
[[Page 31660]]
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14539 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14538 Federal Acquisition Regulation; Alternate Dispute Resolution and Federal Courts Administration Act
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31658-31659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14538]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 33, 42, and 52
[FAC 90-39; FAR Cases 91-062 and 92-301; Item XXIII]
RIN 9000-AE96/9000-AF35
Federal Acquisition Regulation; Alternate Dispute Resolution and
Federal Courts Administration Act
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rules adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to adopt two interim rules
as final: FAR Case 91-62, Alternative Dispute Resolution, published in
the Federal Register (FR) at 56 FR 67416, December 30, 1991, and 92-
301, Federal Courts Administration Act, published at 59 FR 11380 on
March 10, 1994. The rules amend the claim certification procedures and
the Alternative Means of Dispute Resolution (ADR) procedures, and
implement section 907(a) of the Federal Courts Administration Act of
1992. These regulatory actions were not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993, and are not major rules under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR cases 91-062 and 92-301.
SUPPLEMENTARY INFORMATION:
A. Background
Upon passage of the Federal Courts Administration Act (Act) of
1992, the Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council issued two interim rules implementing
the changes made by the Act as well as changes to the Alternative
Disputes Resolution procedures and claim certification procedures. Only
three parties submitted comments in response to the interim rules. No
issue was raised by the public comments that
[[Page 31659]]
necessitated changes to the interim rules. The interim rules are,
therefore, being converted to final rules without change.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule simplifies
policies and procedures for the certification of claims submitted by
contractors and is intended to reduce the need for costly litigation
which arose under previous regulations. No comments were received on
the impact of this rule on small entities during the public comment
period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 33, 42, and 52
Government procurement.
Interim Rules Adopted as Final
Accordingly, the interim rule amending 48 CFR parts 33and 52, which
was published at 56 FR 67416, December 30, 1991, is adopted as final,
as amended by the interim rule amending 48 CFR parts 33, 42 and 52,
published at 59 FR 11380, March 10, 1994, which is hereby adopted as
final without change.
The authority citation for 48 CFR parts 33, 42, and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14538 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14537 Federal Acquisition Regulation; Prompt Payment Overseas
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14537]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 32 and 52
[FAC 90-39; FAR Case 92-046; Item XXII]
RIN 9000-AF41
Federal Acquisition Regulation; Prompt Payment Overseas
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published in the Federal Register at 59 FR 11379, March 10, 1994, and
amended by FAR case 94-770 (60 FR 34741, July 3, 1995), to a final
rule. This rule amends the Federal Acquisition Regulation (FAR) to
reflect that the Prompt Payment Act applies to overseas contracts. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993, and is
not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-046.
SUPPLEMENTARY INFORMATION:
A. Background
On January 13, 1992, the Armed Services Board of Contract Appeals
(ASBCA), in Held & Francke Baukittengesellschaft (ASBCA Nos. 42463 and
42464), held that FAR 32.901 improperly excluded applicability of the
Prompt Payment Act (31 U.S.C. 3901, et seq.) to contracts awarded to
foreign contractors for work performed outside the United States. As a
result of the ASBCA decision, an interim rule was issued which, in
effect, makes the Government liable for payment of interest and
interest penalties under the Act for contracts with foreign contractors
for work performed or supplies delivered overseas.
Section 32.901 and the clauses at 52.232-25, 52.232-26, and 52.232-
27 were amended by the interim rule to remove the statements that no
interest penalty will be paid on contracts awarded to foreign vendors
outside the United States for work performed outside the United States
and to remove the definition of ``foreign vendor'' from the clauses.
That interim rule, as amended on July 3, 1995, is now converted to a
final rule without further change.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule only applies
to contracts with foreign contractors for work performed overseas by
extending the Government's liability to pay interest and penalties
under the Prompt Payment Act to such entities. No comments were
received on the impact of this rule on small entities during the public
comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 32 and 52
Government procurement.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending CFR Parts 32 and 52, which
was published at 59 FR 11379, March 10, 1994 (FAC 90-20, Item XIII),
and further amended by FAR case 94-770 (60 FR 34741, July 3, 1995), is
adopted as a final rule without further change.
The authority citation for 48 CFR Parts 32 and 52 continues to read
as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14537 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14536 Federal Acquisition Regulation; Travel Costs
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31657-31658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14536]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 31
[FAC 90-39; FAR Case 93-022; Item XXI]
RIN 9000-AG00
Federal Acquisition Regulation; Travel Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council (CAAC) and the Defense
Acquisition Regulations Council (DARC) have agreed on a final rule to
amend the Federal Acquisition Regulation (FAR) to specify the
documentation required to support the allowability of contractors'
claimed travel costs. This regulatory action was subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993. It is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-022.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register at 59 FR
47777, September 16, 1994, because the CAAC and the DARC determined
that the FAR did not adequately specify what documentation is required
to support travel costs incurred under Government contracts. The rule
reflects a recommendation made by the Office of Federal Procurement
Policy SWAT Team on Civilian Agency Contracting in its report of
December 3, 1992, entitled ``Improving Contracting Practices and
Management Controls on Cost-Type Federal Contracts,'' which found that
agencies were having difficulty because the travel cost principle is
silent on the documentation requirements.
The rule amends FAR 31.205-46 by adding paragraph (a)(7) which sets
forth specific documentation criteria for travel costs. The major
difference between the final rule and the proposed rule is that the
final rule strikes the reference to ``time'' and adds a parenthetical
after ``place'' in (a)(7)(i) to make the rule consistent with similar
requirements already imposed by section 274 of the Internal Revenue
Code for claiming costs for Federal tax purposes (26 U.S.C. 274(d)).
The final rule also coincides with guidance currently contained in the
Defense Contract Audit Manual (CAM) at CAM 7-1002.2.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because most contracts awarded
to small entities are awarded on a competitive, fixed-price basis and
the cost principles do not apply. No comments were received on the
impact of this rule on small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.205-46 is amended--
(a) By adding a heading to paragraph (a) and by revising paragraph
(a)(1);
(b) By revising the first sentence of paragraph (a)(3)(iv); and
(c) By adding paragraph (a)(7) immediately preceding paragraph (b)
to read as follows:
31.205-46 Travel costs.
(a) Costs for transportation, lodging, meals, and incidental
expenses. (1) Costs incurred by contractor personnel on official
company business are allowable, subject to the limitations contained in
this subsection. Costs for transportation may be based on mileage
rates, actual costs incurred, or on a combination thereof, provided the
method used results in a reasonable charge. Costs for lodging, meals,
and incidental expenses may be based on per diem, actual expenses, or a
combination thereof, provided the method used results in a reasonable
charge.
* * * * *
(3) * * *
(iv) Documentation to support actual costs incurred shall be in
accordance with the contractor's established practices, subject to
paragraph (a)(7) of this subsection, and provided that a receipt is
required for each expenditure in excess of $25.00. * * *
* * * * *
[[Page 31658]]
(7) Costs shall be allowable only if the following information is
documented:
(i) Date and place (city, town, or other similar designation) of
the expenses;
(ii) Purpose of the trip; and
(iii) Name of person on trip and that person's title or
relationship to the contractor.
[FR Doc. 96-14536 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14535 Federal Acquisition Regulation; Legislative Lobbying Costs
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31656-31657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14535]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 31
[FAC 90-39; FAR Case 93-006; Item XX]
RIN 9000-AF98
Federal Acquisition Regulation; Legislative Lobbying Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) cost principles concerning
lobbying costs. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-006.
SUPPLEMENTARY INFORMATION:
A. Background
This FAR case was opened to address issues raised by the Office of
Management and Budget SWAT team concerning the requirement to maintain
records which are in addition to normal records maintained to record
lobbying costs under FAR 31.205-22(f). The FAR rule deletes 31.205-
22(f) because it conflicts with the recordkeeping requirements in
31.201-6(c), 31.205-22(e), and Cost Accounting Standards (CAS) 405,
Accounting for Unallowable Costs (48 CFR 9904.405-50(a)). In addition,
the Councils believe that 31.205-22(f) is inconsistent with the clause
at 52.203-12, Limitation on Payments to Influence Certain Federal
Transactions, which requires contractors to disclose lobbying
activities. The reporting of such activities must necessarily be based
upon certain contractor records which support the disclosures. The rule
also removes the prohibition against reimbursing executive lobbying
costs at 31.205-50 and adds it to the list of specifically unallowable
lobbying costs at 31.205-22(a). A proposed rule was published in the
Federal Register at 59 FR 47776 on September 16, 1994. After evaluation
of public comments, the Councils agreed to convert the proposed rule to
a final rule without further change.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the revisions clarify a
condition of allowability for contractors who wish to be reimbursed
under Government contracts. The revisions eliminate a subsection which
may be misinterpreted in its application and more accurately describe
the subject matter of the cost principle. Further, most contracts
awarded to small entities are awarded on a competitive, fixed-price
basis and the cost principles do not apply. No comments were received
on the impact of this rule on small entities during the public comment
period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors,
[[Page 31657]]
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.205-22 is amended by revising the section heading; at
the end of paragraph (a)(4) by removing the word ``or''; at the end of
paragraph (a)(5) by removing the period and inserting ``;or''; by
adding paragraph (a)(6); and by removing paragraph (f) and
redesignating paragraph (g) as (f) to read as follows:
31.205-22 Lobbying and political activity costs.
(a) * * *
(6) Costs incurred in attempting to improperly influence (see
3.401), either directly or indirectly, an employee or officer of the
Executive branch of the Federal Government to give consideration to or
act regarding a regulatory or contract matter.
* * * * *
31.205-50 [Reserved]
3. Section 31.205-50 is removed and reserved.
[FR Doc. 96-14535 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14534 Federal Acquisition Regulation; Records Retention
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31655-31656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14534]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 31
[FAC 90-39; FAR Case 93-020; Item XIX]
RIN 9000-AF99
Federal Acquisition Regulation; Records Retention
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to explicitly state that
contractors must maintain adequate cost records in order to be
reimbursed for all claimed costs. This regulatory action was subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993. It is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-020.
[[Page 31656]]
SUPPLEMENTARY INFORMATION:
A. Background
The guidance for determining cost allowability at FAR 31.201-2
previously did not explicitly state that contractors must maintain
adequate cost records in order to be reimbursed for all claimed costs
nor did it specifically state that the contracting officer has the
authority to disallow costs which are determined to be inadequately
supported. This requirement and authority have, heretofore, been
considered to be implicit in the cost principles. However, the Councils
are revising the FAR to explicitly address these issues because the
Office of Federal Procurement Policy SWAT Team on Civilian Agency
Contracting in its report of December 3, 1992, ``Improving Contracting
Practices and Management Controls on Cost-Type Federal Contracts,''
found that agencies were having difficulty because the FAR was silent
on these issues. A new paragraph (d) is added to FAR 31.201-2 to
explicitly state that costs claimed for reimbursement must be
adequately supported and that the contracting officer may disallow
costs which are inadequately supported. A proposed rule was published
in the Federal Register at 59 FR 47776 on September 16, 1994. After
evaluation of public comments, the Councils agreed to convert the
proposed rule to a final rule without further change.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because most contracts awarded
to small entities are awarded on a competitive, fixed-price basis and
the cost principles do not apply. No comments were received on the
impact of this rule on small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.201-2 is amended by adding paragraph (d) to read as
follows:
31.201-2 Determining allowability.
* * * * *
(d) A contractor is responsible for accounting for costs
appropriately and for maintaining records, including supporting
documentation, adequate to demonstrate that costs claimed have been
incurred, are allocable to the contract, and comply with applicable
cost principles in this subpart and agency supplements. The contracting
officer may disallow all or part of a claimed cost which is
inadequately supported.
[FR Doc. 96-14534 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14533 Federal Acquisition Regulation; Part 31 Agency Supplements
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14533]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 31
[FAC 90-39; FAR Case 94-606; Item XVIII]
RIN 9000-AG93
Federal Acquisition Regulation; Part 31 Agency Supplements
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to remove the requirement for
Civilian Agency Acquisition Council approval for agency supplements to
FAR Part 31. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 94-606.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of Transportation recommended that FAR 31.101 be
amended to remove the requirement for Civilian Agency Acquisition
Council approval for agency supplements to FAR Part 31. The change does
not amend the requirement for approval of class deviations.
Accordingly, supplementary coverage will be consistent with the FAR
Part 31 coverage, unless a class deviation is approved. Therefore,
advance approval of supplements is considered to be unnecessary.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected subpart will be considered in accordance with 5
U.S.C. 610. Such comments must be submitted separately and cite 5
U.S.C. 601, et seq. (FAC 90-39, FAR case 94-606), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.101 is amended by removing the third and fourth
sentences and replacing them with the following text to read as
follows:
31.101 Objectives.
* * * To achieve this uniformity, individual deviations concerning
cost principles require advance approval of the agency head or
designee. Class deviations for the civilian agencies require advance
approval of the Civilian Agency Acquisition Council. Class deviations
for the National Aeronautics and Space Administration require advance
approval of the Associate Administrator for Procurement. Class
deviations for the Department of Defense require advance approval of
the Director of Defense Procurement, Office of the Under Secretary of
Defense for Acquisition and Technology.
[FR Doc. 96-14533 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14532 Federal Acquisition Regulation; Irrevocable Letters of Credit and Alternatives to Miller Act Bonds
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31651-31655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14532]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 28 and 52
[FAC 90-39, FAR Case 95-301, Item XVII]
RIN 9000-AG99
Federal Acquisition Regulation; Irrevocable Letters of Credit and
Alternatives to Miller Act Bonds
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule to amend
the Federal Acquisition Regulation (FAR) to implement OFPP Policy
Letter 91-4 (previously considered under FAR case 91-113, Irrevocable
Letters of Credit) and provide alternatives to Miller Act Bonds, as
required by Section 4104(b) of the Federal Acquisition Streamlining Act
of 1994 (FASA) (Pub. L. 103-355). This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
DATES: Effective Date: June 20,1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before August 19, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.
Please cite FAC 90-39, FAR case 95-301 in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-301.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends FAR Parts 28 and 52 to provide for use of
Irrevocable Letters of Credit as an alternative to corporate or
individual sureties as security for Miller Act bonds, and provides
alternatives to Miller Act bonds for construction contracts valued at
$25,000 to $100,000, which are no longer subject to the Miller Act, in
accordance with Section 4104(b)(1) of FASA.
B. Regulatory Flexibility Act
The interim rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule
provides alternatives to Miller Act bonds for construction contracts
valued at $25,000 to $100,000. In addition, it offers Irrevocable
Letters of Credit as an alternative to surety on Miller Act bonds for
construction contracts over $100,000. These alternatives may be helpful
to both large and small construction contractors. An Initial Regulatory
Flexibility Analysis (IRFA) has been prepared and will be provided to
the Chief Counsel for Advocacy for the Small Business Administration. A
copy of the IRFA may be obtained from the FAR Secretariat. Comments are
invited. Comments from small entities concerning the affected FAR
subpart will be considered in accordance with 5 U.S.C. 610. Such
comments must be submitted separately and cite 5 U.S.C 601, et seq.
(FAR Case 95-301), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
because Section 4104(b) of the Federal Acquisition Streamlining Act of
1994 (Public Law 103-355), regarding Irrevocable Letters of Credit and
alternatives to Miller Act Bonds, requires immediate implementation.
However, pursuant to Public Law 98-577 and FAR 1.501, public comments
received in response to this interim rule will be considered in the
formation of the final rule.
List of Subjects in 48 CFR Parts 28 and 52
Government procurement.
[[Page 31652]]
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR parts 28 and 52 are amended as set forth below:
1. The authority citation for 48 CFR parts 28 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 28--BONDS AND INSURANCE
2. Section 28.001 is amended in the definition of ``Bond'' by
revising the first sentence; and adding, in alphabetical order, the
definition ``Irrevocable letter of credit'' to read as follows:
28.001 Definitions.
* * * * *
Bond means a written instrument executed by a bidder or contractor
(the ``principal''), and a second party (``the surety'' or
``sureties'') (except as provided in 28.204), to assure fulfillment of
the principal's obligations to a third party (the ``obligee'' or
``Government''), identified in the bond. * * *
* * * * *
Irrevocable letter of credit (ILC) means a written commitment by a
federally insured financial institution to pay all or part of a stated
amount of money on demand to the Government (the beneficiary) until the
expiration date of the letter. The letter of credit cannot be revoked
or conditioned.
* * * * *
28.102 Performance and payment bonds and alternative payment
protections for construction contracts.
3. The heading at section 28.102 is revised as set forth above.
4. Section 28.102-1 is amended in paragraph (a) introductory text
by revising ``$25,000'' to read ``$100,000''; redesignating paragraph
(b) as (c) and adding after the word ``bonds'' the phrase ``or
alternative payment protection''; and adding (b)(1) and (b)(2). The
revised text reads as follows:
28.102-1 General.
* * * * *
(b)(1) Pursuant to Section 4104(b)(2) of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355), for construction
contracts greater than $25,000, but not greater than $100,000, the
contracting officer shall select two or more of the following payment
protections, giving particular consideration to inclusion of an
irrevocable letter of credit as one of the selected alternatives:
(i) A payment bond.
(ii) An irrevocable letter of credit (ILC).
(iii) A tripartite escrow agreement. The prime contractor
establishes an escrow account in a federally insured financial
institution and enters into a tripartite escrow agreement with the
financial institution, as escrow agent, and all of the suppliers of
labor and material. The escrow agreement shall establish the terms of
payment under the contract and of resolution of disputes among the
parties. The Government makes payments to the contractor's escrow
account, and the escrow agent distributes the payments in accordance
with the agreement, or triggers the disputes resolution procedures if
required.
(iv) Certificates of deposit. The contractor deposits certificates
of deposit from a federally insured financial institution with the
contracting officer, in an acceptable form, executable by the
contracting officer.
(v) A deposit of the types of security listed in 28.204-1 and
28.204-2.
(2) The contractor shall submit to the Government one of the
payment protections selected by the contracting officer.
* * * * *
5. Section 28.102-2 is amended by--
(a) Revising the heading of paragraph (b) and (b)(1) introductory
text;
(b) In the last sentence of paragraph (b)(2) by removing
``subparagraph (1) immediately above'' and inserting ``paragraph (b)(1)
of this subsection'' in its place;
(c) At the end of paragraph (b)(3) by removing the period and
inserting ``, or to furnish additional alternative payment
protection.'' in its place;
(d) In paragraph (c)(1) and the first sentence of (c)(2) by
inserting after the word ``bonds'' the phrase ``or alternative payment
protection'';
(e) In the second sentence of paragraph (c)(2) by removing the word
``above'' and inserting ``of this subsection'' in its place;
(f) Adding paragraph (d). The revised text reads as follows:
28.102-2 Amount required.
* * * * *
(b) Payment bonds or alternative payment protection. (1) The penal
amount of payment bonds or alternative payment protection shall equal--
* * * * *
(d) Reducing amounts. The contracting officer has the discretion to
reduce the amount of security to support a bond, subject to the
conditions of 28.203-5(c) or 28.204(b).
6. Section 28.102-3 is amended by revising the section heading;
redesignating paragraphs (a), (b) and (c) as (a)(1), (a)(2) and (a)(3),
respectively; redesignating the undesignated introductory paragraph as
paragraph (a); and adding paragraph (b) to read as follows:
28.102-3 Solicitation requirements and contract clause.
* * * * *
(b) Insert the clause at 52.228-13, Alternative Payment
Protections, in solicitations and contracts for construction, when the
estimated or actual value exceeds $25,000 but does not exceed $100,000.
Complete the clause by specifying the payment protection or protections
selected (see 28.102-1(b)(1)), the penal amount required, and the
deadline for submission.
7. Section 28.106-3 is amended by revising the section heading and
adding paragraph (c) to read as follows:
28.106-3 Additional bond or security.
* * * * *
(c) When an ILC is used as an alternative to corporate or
individual sureties as security for a performance or payment bond and
the contract performance period is extended, the contracting officer
shall require the contractor to provide an ILC with an appropriately
extended maturity that meets the requirements of 28.204-3(f).
8. Section 28.106-5 is amended by redesignating paragraph (b) as
(c); and adding a new paragraph (b) to read as follows:
Sec. 28.106-5 Consent of surety.
* * * * *
(b) When a contract for which performance or payment is secured by
any of the types of security listed in 28.204 is modified as described
in paragraph (a) of this subsection, no consent of surety is required.
* * * * *
9. Section 28.106-8 is added to read as follows:
28.106-8 Payment to subcontractors or suppliers.
The contracting officer will only authorize payment from an ILC (or
any other cash equivalent security) upon a judicial determination of
the rights of the parties, a signed notarized statement by the
contractor that the payment is due and owed, or a signed agreement
between the parties as to amount due and owed.
10. Section 28.203-5 is amended by redesignating paragraph (a)(2)
as (a)(3) and revising the heading; adding a new
[[Page 31653]]
paragraph (a)(2); and in the second sentence of paragraph (c) by
removing ``and (2)'' and inserting in its place ``through (3)''. The
revised text reads as follows:
28.203-5 Release of lien.
* * * * *
(a) * * *
(2) Contracts subject to alternative payment protection (28.102-
1(b)(1)). The security interest shall be maintained for the full
contract performance period plus one year.
(3) Other contracts not subject to the Miller Act. * * *
* * * * *
11. Section 28.204 is revised to read as follows:
28.204 Alternatives in lieu of corporate or individual sureties.
(a) Any person required to furnish a bond to the Government may
furnish any of the types of security listed in 28.204-1 through 28.204-
3 instead of a corporate or individual surety for the bond. When any of
those types of security are deposited, a statement shall be
incorporated in the bond form pledging the security. The contractor
shall execute the bond forms as the principal. Agencies shall establish
safeguards to protect against loss of the security and shall return the
security or its equivalent to the contractor when the bond obligation
has ceased.
(b) Upon written request by any contractor securing a performance
or payment bond by any of the types of security listed in 28.204-1
through 28.204-3, the contracting officer may release a portion of the
security only when the conditions allowing the partial release of lien
in 28.203-5(c) are met. The contractor shall, as a condition of the
partial release, furnish an affidavit agreeing that the release of such
security does not relieve the contractor of its obligations under the
bond(s).
(c) The contractor may satisfy a requirement for bond security by
furnishing a combination of the types of security listed in 28.204-1
through 28.204-3 or a combination of bonds supported by these types of
security and additional surety bonds under 28.202 or 28.203. During the
period for which a bond supported by security is required, the
contractor may substitute one type of security listed in 28.204-1
through 28.204-3 for another, or may substitute, in whole or
combination, additional surety bonds under 28.202 or 28.203.
12. Sections 28.204-3 and 28.204-4 are added to read as follows:
28.204-3 Irrevocable letter of credit (ILC).
(a) Any person required to furnish a bond has the option to furnish
a bond secured by an ILC in an amount equal to the penal sum required
to be secured (see 28.204). A separate ILC is required for each bond.
(b) The ILC shall be irrevocable, unconditional, expire only as
provided in paragraph (f) of this subsection, and be issued by an
acceptable federally insured financial institution as provided in
paragraph (g) of this subsection. ILCs over $5 million must be
confirmed by another acceptable financial institution that had letter
of credit business of at least $25 million in the past year.
(c) To draw on the ILC, the contracting officer shall use the sight
draft set forth in the clause at 52.228-14 and present it with the ILC
to the issuing financial institution or the confirming financial
institution (if any).
(d) If the contractor does not furnish an acceptable replacement
ILC, or other acceptable substitute, at least 30 days before an ILC's
scheduled expiration, the contracting officer shall immediately draw on
the ILC.
(e) If, after the period of performance of a contract where ILCs
are used to support payment bonds, there are outstanding claims against
the payment bond, the contracting officer shall draw on the ILC prior
to the expiration date of the ILC to cover these claims.
(f) Expiration dates shall be established as follows:
(1) If used as a bid guarantee, the ILC should expire no earlier
than 60 days after the close of the bid acceptance period.
(2) If used as an alternative to corporate or individual sureties
as security for a performance or payment bond, the offeror/contractor
may submit an ILC to cover the entire period of performance or an ILC
with an initial expiration date which is a minimum period of one year
from the date of issuance, with a provision which states that the ILC
is automatically extended without amendment for one year from the
expiration date, or any future expiration date, until the period of
performance is completed. The final expiration date shall be:
(i) For contracts subject to the Miller Act, the later of--
(A) One year following the expected date of final payment;
(B) For performance bonds only, until completion of any warranty
period; or
(C) For payment bonds only, until resolution of all claims filed
against the payment bond during the one-year period following final
payment.
(ii) For contracts not subject to the Miller Act, the later of--
(A) 90 days following final payment; or
(B) Until completion of any warranty period for performance bonds
only.
(g) The ILC shall be issued or confirmed by a federally insured
financial institution rated investment grade or higher.
(1) The offeror/contractor shall provide the contracting officer a
credit rating that indicates the financial institution has the required
rating(s) as of the date of issuance of the ILC.
(2) If the contracting officer learns that a financial
institution's rating has dropped below the required level, the
contracting officer shall give the contractor 30 days to substitute an
acceptable ILC or shall draw on the ILC using the sight draft in
paragraph (g) of the clause at 52.228-14.
(h) Additional information on credit rating services and investment
grade ratings, and a copy of the Uniform Customs and Practice (UCP) for
Documentary Credits, 1983 Revision, International Chamber of Commerce
Publication No. 400, is contained within the Office of Federal
Procurement Policy Pamphlet No. 7, Use of Irrevocable Letters of
Credit. This pamphlet may be obtained by calling the Office of
Management and Budget's publications office at (202) 395-7332.
28.204-4 Contract clause.
Insert the clause at 52.228-14, Irrevocable Letter of Credit, in
solicitations and contracts for services, supplies, or construction,
when a bid guarantee, or performance bonds, or performance and payment
bonds are required.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
13. Section 52.228-2 is amended by revising the introductory text,
the date in the clause heading, and paragraph (a) of the clause; in
paragraph (b) by removing ``or''; at the end of paragraph (c) by
removing the period and replacing it with ``; or''; and adding
paragraph (d) to read as follows:
52.228-2 Additional Bond Security.
As prescribed in 28.106-4, insert the following clause:
ADDITIONAL BOND SECURITY (JUN 1996)
* * * * *
(a) Any surety upon any bond, or issuing financial institution
for other security, furnished with this contract becomes
unacceptable to the Government;
* * * * *
(d) The contract performance period is extended and an
irrevocable letter of credit (ILC) is used as security. If the
Contractor
[[Page 31654]]
does not furnish an acceptable extension or replacement ILC, or
other acceptable substitute, at least 30 days before an ILC's
scheduled expiration, the Contracting Officer has the right to
immediately draw on the ILC.
(End of clause)
14. Sections 52.228-13 and 52.228-14 are added to read as follows:
52.228-13 Alternative Payment Protections.
As prescribed in 28.102-3(b), insert the following clause:
ALTERNATIVE PAYMENT PROTECTIONS (JUN 1996)
(a) The Contractor shall submit one of the following payment
protections:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(b) The penal sum of the payment protection shall be in the
amount of $ __________.
(c) The submission of the payment protection is required by
____________________.
(d) The payment protection shall provide protection for the full
contract performance period plus a one-year period.
(e) Except for escrow agreements and payment bonds, which
provide their own protection procedures, the Contracting Officer is
authorized to access funds under the payment protection when it has
been alleged in writing by a supplier of labor or material that a
nonpayment has occurred, and to withhold such funds pending
resolution by administrative or judicial proceedings or mutual
agreement of the parties.
(f) When a tripartite escrow agreement is used, the Contractor
shall utilize only suppliers of labor and material who signed the
escrow agreement.
(End of clause)
52.228-14 Irrevocable Letter of Credit.
As prescribed in 28.204-4, insert the following clause:
IRREVOCABLE LETTER OF CREDIT (JUN 1996)
(a) Irrevocable letter of credit (ILC), as used in this clause,
means a written commitment by a federally insured financial
institution to pay a stated amount of money on demand to the
Government (the beneficiary), until the expiration date of the
letter. Neither the financial institution nor the offeror/Contractor
can revoke or condition the letter of credit.
(b) If the offeror intends to use an ILC in lieu of a bid bond,
or to support other types of bonds such as performance and payment
bonds, the letter of credit and letter of confirmation formats in
paragraphs (e) and (f) of this clause shall be used.
(c) The letter of credit shall be irrevocable, unconditional,
issued by an acceptable federally insured financial institution as
provided in paragraph (d) of this clause, and--
(1) If used as a bid guarantee, the ILC shall expire no earlier
than 60 days after the close of the bid acceptance period;
(2) If used to secure a performance or payment bond, the
offeror/Contractor may submit an ILC to cover the entire period of
performance or may submit an ILC with an initial expiration date
which is a minimum period of one year from the date of issuance,
with a provision which states that the ILC is automatically extended
without amendment for one year from the expiration date, or any
future expiration date, until the period of performance is
completed. The final expiration date shall be:
(i) For contracts subject to the Miller Act, the later of--
(A) One year following the expected date of final payment;
(B) For performance bonds only, until completion of any warranty
period; or
(C) For payment bonds only, until resolution of all claims filed
against the payment bond during the one-year period following final
payment.
(ii) For contracts not subject to the Miller Act, the later of--
(A) 90 days following final payment; or
(B) Until completion of any warranty period for performance
bonds only.
(d) The ILC shall be issued or confirmed by a federally insured
financial institution rated investment grade or higher. The offeror/
Contractor shall provide the Contracting Officer a credit rating
that indicates the financial institution has the required rating(s)
as of the date of issuance of the ILC. ILCs over $5 million must be
confirmed by another acceptable financial institution that had
letter of credit business of at least $25 million in the past year.
(e) The following format shall be used by the issuing financial
institution to create an ILC:
----------------------------------------------------------------------
[Issuing Financial Institution's Letterhead or Name and Address]
Issue Date-------------------------------------------------------------
Irrevocable Letter of Credit No.---------------------------------------
Account party's name---------------------------------------------------
Account party's address------------------------------------------------
For Solicitation No.---------------------------------------------------
(For reference only)
TO: [U.S. Government agency]
[U.S. Government agency's address]
1. We hereby establish this irrevocable, unconditional, and
transferable Letter of Credit in your favor for one or more drawings
up to United States $__________. This Letter of Credit is payable at
[issuing financial institution's and, if any, confirming financial
institution's] office at [issuing financial institution's address
and, if any, confirming financial institution's address] and expires
with our close of business on __________, or any automatically
extended expiration date.
2. We hereby undertake to honor your or transferee's sight
draft(s) drawn on issuing and, if any, confirming financial
institution, for all or any part of this credit that is presented at
the office specified in paragraph 1 of this Letter of Credit on or
before the expiration date or any automatically extended expiration
date.
3. [This paragraph is omitted if used as a bid guarantee, and
subsequent paragraphs are renumbered.] It is a condition of this
Letter of Credit that it is deemed to be automatically extended
without amendment for one year from the expiration date hereof, or
any future expiration date, unless at least 60 days prior to any
expiration date, we notify you or the transferee by registered mail,
or other receipted means of delivery, that we elect not to consider
this Letter of Credit renewed for any such additional period. At the
time we notify you, we also agree to notify the account party (and
confirming financial institution, if any) by the same means of
delivery.
4. This Letter of Credit is transferable. Transfers and
assignments of proceeds are to be effected without charge to either
the beneficiary or the transferee/assignee of proceeds.
5. This Letter of Credit is subject to the Uniform Customs and
Practice (UCP) for Documentary Credits, 1983 Revision, International
Chamber of Commerce Publication No. 400, and to the extent not
inconsistent therewith, to the laws of ____________ [state of
confirming financial institution, if any, otherwise state of issuing
financial institution].
6. If this credit expires during an interruption of business of
this financial institution as described in Article 19 of the UCP,
the financial institution specifically agrees to effect payment if
this credit is drawn against within 30 calendar days after the
resumption of our business.
Sincerely,
[Issuing financial institution]
(f) The following format shall be used by the financial
institution to confirm an ILC:
[Confirming Financial Institution's Letterhead or Name and Address]---
____________________, 19______
Our Letter of Credit
Advice Number----------------------------------------------------------
Beneficiary:-----------------------------------------------------------
[U.S. Government agency]
Issuing Financial Institution:-----------------------------------------
Issuing Financial Institution's LC No.:--------------------------------
Gentlemen:
1. We hereby confirm the above indicated Letter of Credit, the
original of which is attached, issued by __________ [name of issuing
financial institution] for drawings of up to United States dollars
__________/U.S. $__________ and expiring with our close of business
on __________ [the expiration date], or any automatically extended
expiration date.
2. Draft(s) drawn under the Letter of Credit and this
Confirmation are payable at our office located at ____________.
3. We hereby undertake to honor sight draft(s) drawn under the
Letter of Credit and this Confirmation if presented at our offices
as specified herein.
4. [This paragraph is omitted if used as a bid guarantee, and
subsequent paragraphs are renumbered.] It is a condition of this
confirmation that it be deemed automatically extended without
amendment for one year from the expiration date hereof, or any
automatically extended expiration date, unless:
(a) At least sixty (60) days prior to any such expiration date
we shall notify the
[[Page 31655]]
Contracting Officer, or the transferee and the issuing financial
institution, by registered mail or other receipted means of
delivery, that we elect not to consider this confirmation extended
for any such additional period; or
(b) The issuing financial institution shall have exercised its
right to notify you or the transferee, the account party, and
ourselves, of its election not to extend the expiration date of the
Letter of Credit.
5. This confirmation is subject to the Uniform Customs and
Practice (UCP) for Documentary Credits, 1983 Revision, International
Chamber of Commerce Publication No. 400, and to the extent not
inconsistent therewith, to the laws of __________ [state of
confirming financial institution].
6. If this confirmation expires during an interruption of
business of this financial institution as described in Article 19 of
the UCP, we specifically agree to effect payment if this credit is
drawn against within 30 calendar days after the resumption of our
business.
Sincerely,
----------------------------------------------------------------------
[Confirming financial institution]
(g) The following format shall be used by the Contracting
Officer for a sight draft to draw on the Letter of Credit:
SIGHT DRAFT
----------------------------------------------------------------------
[City, State]
____________________, 19______
[Name and address of financial institution]
Pay to the order of----------------------------------------------------
[Beneficiary Agency] __________
the sum of United States $ __________-------------------------
This draft is drawn under----------------------------------------------
Irrevocable Letter of Credit No.---------------------------------------
----------------------------------------------------------------------
[Beneficiary Agency]
By: ____________________
(End of clause)
[FR Doc. 96-14532 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14531 Federal Acquisition Regulation; Fluctuating Exchange Rates
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31650-31651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14531]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 25 and 52
[FAC 90-39; FAR Case 92-048; Item XVI]
RIN 9000-AF83
Federal Acquisition Regulation; Fluctuating Exchange Rates
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to provide guidance and a
solicitation provision regarding evaluation of foreign currency offers.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-048.
SUPPLEMENTARY INFORMATION:
A. Background
An amendment to FAR Subpart 25.5 and a corresponding solicitation
provision were published in the Federal Register as a proposed rule,
with a request for comments (see 59 FR 16391, April 6, 1994). Two
responses were received. The Council's analysis of those comments
resulted in a revision to the rule to delete ``commercially available''
in the description of the current market exchange rate used in the
evaluation of foreign currency offers. The final rule also adds
language at 25.501(b) and 52.225-4 to address evaluation of offers in
negotiated acquisitions, when award is based on initial offers
received.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule pertains to
contracts entered into and performed overseas and, with rare
exceptions, will affect only foreign concerns. No comments were
received on the impact of this rule on small entities during the public
comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 25 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 25 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
2. In part 25, subpart 25.5, the heading is revised to read as
follows:
Subpart 25.5--Use of Foreign Currency
3. Section 25.501 is revised to read as follows:
25.501 Policy.
(a) Unless a specific currency is required by international
agreement or by the Trade Agreements Act (see 25.405(d)), contracting
officers shall determine whether solicitations for contracts to be
entered into and performed outside the United States will require
submission of offers either in U.S. currency or in a specified foreign
[[Page 31651]]
currency. In unusual circumstances, the contracting officer may permit
submission of offers in other than a specified currency.
(b) To ensure a fair evaluation of offers, solicitations should
generally require all offers to be priced in the same currency.
However, if submission of offers in other than a specified currency is
permitted, the contracting officer shall convert the offered prices to
U.S. currency for evaluation purposes. The contracting officer shall
use the current market exchange rate from a commonly used source in
effect on the
(1) Date of bid opening for sealed bid acquisitions,
(2) Closing date for negotiated acquisitions when award is based on
initial offers, or
(3) Due date for receipt of best and final offers, for other
negotiated acquisitions.
(c) If contracts are priced in foreign currency, agencies must
ensure that adequate funds are available to cover currency fluctuations
in order to avoid a violation of the Anti-Deficiency Act.
4. Section 25.502 is added to read as follows:
25.502 Solicitation provision. -
The contracting officer shall insert the provision at 52.225-4,
Evaluation of Foreign Currency Offers, in solicitations if the use of
other than a specified currency is permitted. The contracting officer
shall insert the source of the rate to be used in the evaluation of
offers.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 52.225-4 is added to read as follows:
52.225-4 Evaluation of Foreign Currency Offers.
As prescribed in 25.502, insert the following provision:
EVALUATION OF FOREIGN CURRENCY OFFERS (AUG 1996)
If offers are received in more than one currency, offers shall
be evaluated by converting the foreign currency to United States
currency using (insert source of rate) in effect on the (a) date of
bid opening for sealed bid acquisitions, (b) closing date for
negotiated acquisitions when award is based on initial offers, or
(c) due date for receipt of best and final offers, for other
acquisitions.
(End of provision)
[FR Doc. 96-14531 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14530 Federal Acquisition Regulation; Caribbean Basin Countries
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31649-31650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14530]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 25
[FAC 90-39; FAR Case 95-030; Item XV]
RIN 9000-AG96
Federal Acquisition Regulation; Caribbean Basin Countries
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to implement the extension by
the U.S. Trade Representative of the date of eligibility under the
Trade Agreements
[[Page 31650]]
Act for products of Caribbean Basin countries. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993, and is not a major
rule under 5 U.S.C. 804.
EFFECTIVE DATE: September 30, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-030.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 25.402(b) by changing the date ``1995''
to ``1996.'' Products of Caribbean Basin countries were to be treated
as eligible products until September 30, 1995, unless otherwise
extended by the U.S. Trade Representative (USTR) by means of a Federal
Register notice. On October 3, 1995, the USTR published an extension
through September 30, 1996 (60 FR 51822).
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 95-030), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 25
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 25 is amended as set forth below:
PART 25--FOREIGN ACQUISITION
1. The authority citation for 48 CFR Part 25 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Sec. 25.402 [Amended]
2. Section 25.402 is amended in the first sentence of paragraph (b)
by removing ``(see 51 FR 6964-6965, February 27, 1986)''; and in the
second sentence by revising ``1995'' to read ``1996''.
[FR Doc. 96-14530 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14529 Federal Acquisition Regulation; Implementation of the North American Free Trade Agreement Implementation Act
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31646-31649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14529]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 25, 27, and 52
[FAC 90-39, FAR Case 93-310, Item XIV]
RIN 9000-AF60
Federal Acquisition Regulation; Implementation of the North
American Free Trade Agreement Implementation Act
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Revised interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to a revised interim rule
implementing the North American Free Trade Agreement (NAFTA)
Implementation Act. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
DATES: Effective Date: June 20, 1996.
-Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before August 19, 1996, to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW., Room 4035, Attn: Ms. Beverly Fayson, Washington, DC
20405. Please cite FAC 90-39, FAR case 93-310 in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-310.
SUPPLEMENTARY INFORMATION:
A. Background
While the North American Free Trade Agreement (NAFTA) remains in
effect, the Canadian Free Trade Agreement (CFTA) is suspended. The CFTA
interim rule published December 30, 1988 (53 FR 53340, FAC 84-41, FAR
case 88-070), which revised the FAR coverage
[[Page 31647]]
concerning Canadian products, has been revised and updated by FAR case
93-310, which implements NAFTA. As a result, FAR case 88-070 was closed
into FAR case 93-310.
An interim rule was published January 5, 1994 (59 FR 544, FAC 90-
19, FAR case 93-310), to implement NAFTA. Based on the analysis of
public comments, the interim rule has been revised to--
(1) Add language to FAR 25.402 to address the applicability of
NAFTA to services.
(2) Implement Article 1709(10) of NAFTA and Section 6 of Executive
Order 12889 of December 27, 1993. FAR 27.208 is added to make
contracting personnel aware of the requirements to obtain authorization
from the owner of technology covered by a valid patent prior to use by
or for the Federal Government and of waivers permitted under Section 6
of Executive Order 12889.
(3) Revise 52.212-3 and 52.212-5 to reflect changes to 52.225-20
and 52.225-21, accomplished in this revised interim rule.
(4) Add alternates for the provision at 52.225-20 and the clause at
52.225-21 for use in procurements between $25,000 and $50,000.
(5) Add a new clause 52.225-22, ``Balance of Payments Program--
Construction Materials--NAFTA,'' for construction contracts awarded
outside the United States with an estimated value over $6,500,000.
B. Regulatory Flexibility Act
The amendments in this revised interim rule are not expected to
have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C.
601 et seq., because (1) the new clause, ``Balance of Payments
Program--Construction Materials--NAFTA, is only for construction
contracts awarded outside the United States; (2) the new coverage at
27.208 pertains only to patents held by parties from NAFTA countries;
and (3) other changes are primarily for clarification or editorial. An
Initial Regulatory Flexibility Analysis (IRFA) was prepared and
provided to the Chief Counsel for Advocacy for the Small Business
Administration when the interim rule was issued in January 1994. A copy
of the IRFA may be obtained from the FAR Secretariat. Comments are
invited. Comments from small entities concerning the affected FAR
subparts will be considered in accordance with 5 U.S.C. 610. Such
comments must be submitted separately and cite 5 U.S.C. 601 et seq.
(FAC 90-39, FAR case 93-310), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501 et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this revised interim
rule without prior opportunity for public comment. This action is
necessary because the North American Free Trade Agreement
Implementation Act, signed into law on December 8, 1993, became
effective on January 1, 1994, and several substantive changes to the
existing interim rule are needed to fully implement the Act. However,
pursuant to Public Law 98-577 and FAR 1.501, public comments received
in response to this interim rule will be considered in the formation of
the final rule.
List of Subjects in 48 CFR Parts 25, 27, and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR parts 25, 27, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR parts 25, 27, and 52 continues
to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 25--FOREIGN ACQUISITION
2. Section 25.305 is amended in the section heading and in the
heading of paragraph (c) by revising the word ``clause'' to read
``clauses''; designating the existing paragraph (c) as (c)(1); and
adding paragraph (c)(2) to read as follows:
25.305 Solicitation provision and contract clauses.
* * * * *
(c) * * *
(2) For construction contracts outside the United States, with an
estimated value of $6,500,000 or more, insert the clause at 52.225-22,
Balance of Payments Program--Construction Materials-- NAFTA.
3. Section 25.402 is amended by adding paragraph (g) to read as
follows:
25.402 Policy.
* * * * *
(g) The procedures in 25.405 apply to the acquisition of NAFTA
country services. These are services provided by a firm established in
a NAFTA country under service contracts with an estimated acquisition
value of $50,000 or more ($6,500,000 or more for construction), except
for the following excluded services (Federal Service Code or Category
from the Federal Procurement Data System Product/Service Code Manual is
indicated in parentheses):
(1) Information processing and related telecommunications services
(D):
(i) Automated data processing (ADP) telecommunications and
transmission services (D304).
(ii) ADP teleprocessing and timesharing services (D305).
(iii) Telecommunications network management services (D316).
(iv) Automated news services, data services, or other information
services (D317).
(v) Other ADP and telecommunications services (D399).
(2) Maintenance, repair, modification, rebuilding, and installation
of equipment (J):
(i) Maintenance, repair, modification, rebuilding, and installation
of equipment related to ships (J019).
(ii) Non-nuclear ship repair (J998).
(3) Operation of Government-owned facilities (M):
(i) All facilities operated by the Department of Defense,
Department of Energy, and the National Aeronautics and Space
Administration.
(ii) Research and development facilities (M180).
(4) Utilities--all classes (S).
(5) Transportation, travel, and relocation services--all classes
except V503 travel agent services (V).
(6) All services purchased in support of military forces overseas.
(7) Construction dredging services.
4. Section 25.408 is amended by revising paragraphs (a)(3) and
(a)(4) to read as follows:
25.408 Solicitation provisions and contract clauses.
(a) * * *
(3) The provision at 52.225-20, Buy American Act--North American
Free Trade Agreement Implementation Act--Balance of Payments Program
Provision, in solicitations containing the clause at 52.225-21. Use the
provision with its
[[Page 31648]]
Alternate I if the acquisition value is between $25,000 and $50,000;
and
(4) The clause at 52.225-21, Buy American Act--North American Free
Trade Agreement Implementation Act--Balance of Payments Program, in
solicitations and contracts for supplies where the contracting officer
has determined that the acquisition is not subject to the Trade
Agreements Act but is subject to NAFTA. Use the clause with its
Alternate I if the acquisition value is between $25,000 and $50,000.
* * * * *
PART 27--PATENTS, DATA, AND COPYRIGHTS
5. Section 27.208 is added to read as follows:
27.208 Use of patented technology under the North American Free Trade
Agreement.
(a) The requirements of this section apply to the use of technology
covered by a valid patent when the patent holder is from a country that
is a party to the North American Free Trade Agreement (NAFTA).
(b) Article 1709(10) of NAFTA generally requires a user of
technology covered by a valid patent to make a reasonable effort to
obtain authorization prior to use of the patented technology. However,
NAFTA provides that this requirement for authorization may be waived in
situations of national emergency or other circumstances of extreme
urgency, or public noncommercial use.
(c) Section 6 of Executive Order 12889 of December 27, 1993, waives
the requirement to obtain advance authorization for--
(1) An invention used or manufactured by or for the Federal
Government, except that the patent owner must be notified whenever the
agency or its contractor, without making a patent search, knows or has
demonstrable reasonable grounds to know that an invention described in
and covered by a valid U.S. patent is or will be used or manufactured
without a license; and
(2) The existence of a national emergency or other circumstances of
extreme urgency, except that the patent owner must be notified as soon
as it is reasonably practicable to do so.
(d) Section 6(c) of Executive Order 12889 provides that the notice
to the patent owner does not constitute an admission of infringement of
a valid privately owned patent.
(e) When addressing issues regarding compensation for the use of
patented technology, Government personnel should be advised that NAFTA
uses the term ``adequate remuneration.'' Executive Order 12889 equates
``remuneration'' to ``reasonable and entire compensation'' as used in
28 U.S.C. 1498, the statute which gives jurisdiction to the U.S. Court
of Federal Claims to hear patent and copyright cases involving
infringement by the U.S. Government.
(f) Depending on agency procedures, either the technical/requiring
activity or the contracting officer shall ensure compliance with the
notice requirements of NAFTA Article 1709(10). A contract award should
not be suspended pending notification to the right holder.
(g) When questions arise regarding the notice requirements or other
matters relating to this section, the contracting officer should
consult with legal counsel.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 52.212-3 is amended--
(a) By revising the date of the provision to read ``(JUN 1996)'';
(b) Redesignating paragraphs (g)(1) through (g)(4) as (g)(1)(i)
through (g)(1)(iv) and redesignating paragraph (g) as ``(g)(1)'';
removing ``(NAFTA)'' each time it appears (twice); and removing the
word ``Certificate'';
(c) Revising newly designated paragraphs (g)(1)(i), (g)(1)(iii),
and (g)(1)(iv); and
(d) Adding paragraph (g)(2) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (JUN 1996)
* * * * *
(g)(1) * * *
(i) Each end product being offered, except those listed in
paragraph (g)(1)(ii) of this provision, is a domestic end product
(as defined in the clause entitled ``Buy American Act--North
American Free Trade Agreement Implementation Act--Balance of
Payments Program.'' Components of unknown origin have been
considered to have been mined, produced, or manufactured outside the
United States.
* * * * *
(iii) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (g)(1)(ii) of this
provision, offerors must identify below those excluded end products
that are NAFTA country end products. Products that are not
identified below will not be deemed NAFTA country end products.
The following supplies qualify as ``NAFTA country end products''
as that term is defined in the clause entitled ``Buy American Act--
North American Free Trade Agreement Implementation Act--Balance of
Payments Program:''
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert line item numbers)
(iv) Offers will be evaluated in accordance with Part 25 of the
Federal Acquisition Regulation. In addition, if this solicitation is
for supplies for use outside the United States, an evaluation factor
of 50 percent will be applied to offers of end products that are not
domestic or NAFTA country end products.
(2) Alternate I. If Alternate I to the clause at 52.225-21 is
included in this solicitation, substitute the following paragraph
(g)(1)(iii) for paragraph (g)(1)(iii) of this provision:
(g)(1)(iii) Offers will be evaluated by giving certain
preferences to domestic end products or Canadian end products over
other end products. In order to obtain these preferences in the
evaluation of each excluded end product listed in paragraph (b) of
this provision, offerors must identify below those excluded end
products that are Canadian end products. Products that are not
identified below will not be deemed Canadian end products.
The following supplies qualify as ``Canadian end products'' as
that term is defined in the clause entitled ``Buy American Act--
North American Free Trade Agreement Implementation Act--Balance of
Payments Program'':
----------------------------------------------------------------------
(Insert line item numbers)
7. Section 52.212-5 is amended by revising the date of the clause
to read ``(JUN 1996)''; paragraph (b)(15) is redesignated as
(b)(15)(i); and (b)(15)(ii) is added to read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required to Implement Statutes or
Executive Orders--Commercial Items (Jun 1996)
* * * * *
(b) * * *
____(15)(ii) Alternate I of 52.225-21.
* * * * *
8. Section 52.225-20 is amended in the section heading and
provision heading by revising the word ``Certificate'' to read
``Provision''; revising the date of the provision to read ``(JUN
1996)''; revising paragraphs (a), (c), and (d) of the provision; and
adding Alternate I to read as follows:
52.225-20 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program Provision.
* * * * *
[[Page 31649]]
Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program Provision (Jun 1996)
(a) Each end product being offered, except those listed in
paragraph (b) of this provision, is a domestic end product (as
defined in the clause entitled ``Buy American Act--North American
Free Trade Agreement Implementation Act--Balance of Payments
Program''). Components of unknown origin have been considered to
have been mined, produced, or manufactured outside the United
States.
* * * * *
(c) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify below those excluded end products that are
NAFTA country end products. Products that are not identified below
will not be deemed NAFTA country end products.
The following supplies qualify as ``NAFTA country end products''
as that term is defined in the clause entitled ``Buy American Act--
North American Free Trade Agreement Implementation Act--Balance of
Payments Program'':
------------------------------------------------------------------------
Line item no.---- Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
(List as necessary)
(d) Offers will be evaluated in accordance with Part 25 of the
Federal Acquisition Regulation. In addition, if this solicitation is
for supplies for use outside the United States, an evaluation factor
of 50 percent will be applied to offers of end products that are not
domestic or NAFTA country end products.
(End of provision)
Alternate I (JUN 1996). As prescribed in 25.408(a)(3),
substitute the following paragraph (c) for paragraph (c) of the
basic provision:
(c) Offers will be evaluated by giving certain preferences to
domestic end products or Canadian end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify below those excluded end products that are
Canadian end products. Products that are not identified below will
not be deemed Canadian end products.
The following supplies qualify as ``Canadian end products'' as
that term is defined in the clause entitled ``Buy American Act--
North American Free Trade Agreement Implementation Act--Balance of
Payments Program'':
----------------------------------------------------------------------
(Insert line item numbers)
9. Section 52.225-21 is amended by revising the date of the clause
to read ``(JUN 1996)''; in the fourth sentence of paragraph (c) by
revising the word ``certifying'' to read ``specifying''; removing
paragraph (d) of the clause; and by adding Alternate I to read as
follows:
52.225-21 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program.
* * * * *
Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program (Jun 1996)
* * * * *
Alternate I (JUN 1996). As prescribed in 25.408(a)(4), add the
following definition to paragraph (a) and substitute the following
paragraph (c) for paragraph (c) of the basic clause:
Canadian end product means an article that (1) is wholly the
growth, product, or manufacture of Canada, or (2) in the case of an
article which consists in whole or in part of materials from another
country or instrumentality, has been substantially transformed in
Canada into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from
which it was transformed. The term refers to a product offered for
purchase under a supply contract, but for purposes of calculating
the value of the end product includes services (except
transportation services) incidental to its supply; provided, that
the value of those incidental services does not exceed that of the
product itself.
(c) The Contracting Officer has determined that NAFTA applies to
this acquisition. Unless otherwise specified, NAFTA applies to all
items in the schedule. The Contractor agrees to deliver under this
contract only domestic end products unless, in its offer, it
specifies delivery of foreign end products in the provision entitled
``Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program Certificate.'' An
offer specifying that a Canadian end product will be supplied
requires the Contractor to supply a Canadian end product or, at the
Contractor's option, a domestic end product.
10. Section 52.225-22 is added to read as follows:
52.225-22 Balance of Payments Program--Construction Materials--NAFTA.
As prescribed in 25.305(c)(2), insert the following clause:
Balance of Payments Program--Construction Materials--NAFTA (Jun 1996)
(a) Definitions. As used in this clause--
Components means those articles, materials, and supplies
incorporated directly into construction materials.
Construction material means an article, material, or supply
brought to the construction site for incorporation into the building
or work. Construction material also includes an item brought to the
site pre-assembled from articles, materials, or supplies. However,
emergency life safety systems, such as emergency lighting, fire
alarm, and audio evacuation systems, which are discrete systems
incorporated into a public building or work and which are produced
as a complete system, shall be evaluated as a single and distinct
construction material regardless of when or how the individual parts
or components of such systems are delivered to the construction
site.
Domestic construction material means (1) an unmanufactured
construction material mined or produced in the United States, or (2)
a construction material manufactured in the United States, if the
cost of its components mined, produced, or manufactured in the
United States exceeds 50 percent of the cost of all its components.
Components of foreign origin of the same class or kind as the
construction materials determined to be unavailable pursuant to
subparagraph 25.202(a)(3) of the Federal Acquisition Regulation
shall be treated as domestic.
NAFTA country construction material means a construction
material that (1) is wholly the growth, product, or manufacture of a
NAFTA country, or (2) in the case of a construction material which
consists in whole or in part of materials from another country or
instrumentality, has been substantially transformed in a NAFTA
country into a new and different construction material distinct from
the materials from which it was transformed.
North American Free Trade Agreement (NAFTA) country means Canada
and Mexico.
(b) The Balance of Payments Program provides that the Government
give preference to domestic construction material.
(c) The Contractor agrees that only domestic construction
material or NAFTA country construction material will be used by the
Contractor, subcontractors, material men, and suppliers in the
performance of this contract, except for other foreign construction
materials, if any, listed in this contract.
(End of clause)
[FR Doc. 96-14529 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14528 Federal Acquisition Regulation; Uruguay Round (1996 Code)
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14528]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 25 and 52
[FAC 90-39; FAR Case 95-304; Item XIII]
RIN 9000-AG80
Federal Acquisition Regulation; Uruguay Round (1996 Code)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are finalizing without further change
the interim rule on the renegotiated General Agreement on Tariffs and
Trade (GATT) Government Procurement Agreement (1996 Code) (Uruguay
Round). This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-304.
SUPPLEMENTARY INFORMATION:
A. Background
This rule finalizes without further change the interim rule,
published in the Federal Register on December 29, 1995 (60 FR 67514),
which implemented the Uruguay Round Agreement Act, Public Law 103-465.
No public comments were received in response to the interim rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not
impose any new requirements on contractors, large or small. The rule
primarily changes the list of designated foreign countries and extends
applicability of the Trade Agreements Act to all agencies for supply
and construction contracts over certain dollar thresholds. However,
those contracts which are now subject to the Trade Agreements Act were
already subject to the Memorandum of Understanding between the United
States of America and the European Community on Government Procurement.
This change will have minimal impact on U.S. firms. The rule does not
diminish existing preferences for small businesses, because purchases
under small and small disadvantaged business preference programs are
exempted from the Trade Agreements Act.
C. Paperwork Reduction Act
The final rule does not impose any new reporting or recordkeeping
requirements which require OMB approval under 44 U.S.C. 3501, et seq.
Contractors, which previously were required to respond to the now
deleted provision at 52.225-16, Buy American Act--Supplies under
European Community Agreement Certificate, will now be required to
respond to the comparable provision at 52.225-8, Buy American Act--
Trade Agreements--Balance of Payments Program Certificate (OMB Control
No. 9000-0046).
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Interim Rule Adopted as Final
Accordingly, the interim rule amending 48 CFR Parts 25 and 52,
which was published at 60 FR 67514, December 29, 1995, is adopted as
final without further change.
The authority citation for 48 CFR Parts 25 and 52 continues to read
as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14528 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14527 Federal Acquisition Regulation; Ozone Executive Order
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31644-31646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14527]
-----------------------------------------------------------------------
[[Page 31645]]
DEPARTMENT OF DEFENSE
48 CFR Parts 23 and 52
[FAC 90-39; FAR Case 93-307; Item XII]
RIN 9000-AG42
Federal Acquisition Regulation; Ozone Executive Order
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the interim rule
published at 60 FR 28500, May 31, 1995, to a final rule with changes to
amend the Federal Acquisition Regulation (FAR) to provide policy for
the acquisition of items that contain or are manufactured with ozone-
depleting substances. This regulatory action was not subject to Office
of Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-307.
SUPPLEMENTARY INFORMATION:
A. Background
The Environmental Protection Agency (EPA) promulgated 40 CFR Part
82, Subpart D, to satisfy EPA's obligation under Section 613, Title VI
of the Clean Air Act Amendments of 1990. The EPA rule requires each
department, agency, and instrumentality of the United States to conform
its procurement regulations to the policies and requirements of Title
VI of the Clean Air Act and to maximize the substitution of safe
alternatives for ozone-depleting substances as identified under Section
612 of the Act. The EPA rule complements Executive Order 12843,
Procurement Requirements and Policies for Federal Agencies for Ozone-
Depleting Substances (58 FR 21881, April 23, 1993). Both the Executive
Order and the EPA rule require that new contracts provide that any
acquired products which contain or are manufactured with ozone-
depleting substances be labeled in the manner and to the extent
required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR Part 82,
Subpart E. On May 31, 1995 (60 FR 28500), the Civilian Agency
Acquisition Council and the Defense Acquisition Regulations Council
published an interim rule to implement the EPA regulations and the
Executive Order.
This final FAR rule contains revisions resulting from public
comments received in response to the interim rule. Several respondents
questioned whether the interim rule went beyond the labeling
requirements in Section 611 of the 1990 amendments to the Clean Air Act
(42 U.S.C. 7671j) and its implementing EPA regulations at 40 CFR. This
confusion has been resolved by replacing the definitions of ``Class I
substance'' and ``Class II substance'' with a definition of ``ozone-
depleting substance'', and by revising the clause at 52.223-11 to
clarify that labeling shall be in accordance with 42 U.S.C. 7671j and
40 CFR Part 82. The intent of the rule is to stay within the bounds of
the Clean Air Act and the EPA regulations.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis has been
performed. A copy of the analysis may be obtained from the FAR
Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 23 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR Parts 23 and 52 which
was published at 60 FR 28500, May 31, 1995, is adopted as final with
changes as set forth below:
1. The authority citation for 48 CFR Parts 23 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
23.800 [Amended]
2. Section 23.800 is amended by removing the last sentence.
3. Section 23.802 is revised to read as follows:
23.802 Definition.
Ozone-depleting substance means--
(a) Any substance designated as Class I by EPA (40 CFR part 82),
including but not limited to chlorofluorocarbons, halons, carbon
tetrachloride, and methyl chloroform; or
(b) Any substance designated as Class II by EPA (40 CFR part 82),
including but not limited to hydrochlorofluorocarbons.
23.803 [Amended]
4. Section 23.803 is amended in paragraph (b)(2) by removing the
period and inserting ``, except in the case of Class I substances being
used for specified essential uses, as identified under 40 CFR
82.4(r).''
5. Section 23.804 is revised to read as follows:
23.804 Contract clauses.
Except for contracts to be performed outside the United States, its
possessions, and Puerto Rico, the contracting officer shall insert the
clause at:
(a) 52.223-11, Ozone-Depleting Substances, in solicitations and
contracts for ozone-depleting substances or for supplies that may
contain or be manufactured with ozone-depleting substances.
(b) 52.223-12, Refrigeration Equipment and Air Conditioners, in
solicitations and contracts for services when the contract includes the
maintenance, repair, or disposal of any equipment or appliance using
ozone-depleting substances as a refrigerant, such as air conditioners,
including motor vehicles, refrigerators, chillers, or freezers.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 52.223-11 is revised to read as follows:
52.223-11 Ozone-Depleting Substances.
-As prescribed in 23.804(a), insert the following clause:
Ozone-Depleting Substances (Jun 1996)
-(a) Definitions. Ozone-depleting substance, as used in this
clause, means any substance designated as Class I by the
Environmental Protection Agency (EPA) (40 CFR Part 82),
[[Page 31646]]
including but not limited to chlorofluorocarbons, halons, carbon
tetrachloride, and methyl chloroform; or any substance designated as
Class II by EPA (40 CFR Part 82), including but not limited to
hydrochlorofluorocarbons.
(b) The Contractor shall label products which contain or are
manufactured with ozone-depleting substances in the manner and to
the extent required by 42 U.S.C. 7671j (b), (c), and (d) and 40 CFR
Part 82, Subpart E, as follows:
``WARNING: Contains (or manufactured with, if applicable)
*, a substance(s) which harm(s) public health and environment by
destroying ozone in the upper atmosphere.''----------------------------
* The Contractor shall insert the name of the substance(s).
(End of clause)
[FR Doc. 96-14527 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14526 Federal Acquisition Regulation; Use of Convict Labor
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31643-31644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14526]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 22 and 52
[FAC 90-39; FAR Case 93-615; Item XI]
RIN 9000-AG02
Federal Acquisition Regulation; Use of Convict Labor
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to reflect changes in the
statutory restrictions on employment of convict labor in the
performance of Government contracts. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building,
[[Page 31644]]
Washington, DC 20405 (202) 501-4755. Please cite FAC 90-39, FAR case
93-615.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register on September
6, 1994 (59 FR 46020). The proposed rule amended FAR Subpart 22.2 and
the clause at 52.222-3 to (1) remove all references to 18 U.S.C.
4082(c)(2), which now only applies to offenses committed prior to
November 1, 1987; (2) reflect the addition of the Commonwealth of the
Northern Mariana Islands to the jurisdictions covered by Executive
Order 11755; and (3) include further information regarding the
requirements of Executive Order 11755, as amended by Executive Order
12608.
No substantive comments were received on the proposed rule during
the public comment period. The Councils, therefore, agreed to adopt the
proposed rule as a final rule without change.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because it merely updates FAR
language pertaining to the employment of convict labor to conform to
current statutory requirements. No comments were received on the impact
of this rule on small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 22 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 22 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 22 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
2. Section 22.201 is revised to read as follows:
Sec. 22.201 General.
(a) Executive Order 11755, December 29, 1973, as amended by
Executive Order 12608, September 9, 1987, and Executive Order 12943,
December 13, 1994, states: ``The development of the occupational and
educational skills of prison inmates is essential to their
rehabilitation and to their ability to make an effective return to free
society. Meaningful employment serves to develop those skills. It is
also true, however, that care must be exercised to avoid either the
exploitation of convict labor or any unfair competition between convict
labor and free labor in the production of goods and services.'' The
Executive order does not prohibit the contractor, in performing the
contract, from employing--
(1) Persons on parole or probation;
(2) Persons who have been pardoned or who have served their terms;
(3) Federal prisoners; or
(4) Nonfederal prisoners authorized to work at paid employment in
the community under the laws of a jurisdiction listed in the Executive
order if--
(i) The worker is paid or is in an approved work training program
on a voluntary basis;
(ii) Representatives of local union central bodies or similar labor
union organizations have been consulted;
(iii) Paid employment will not--
(A) Result in the displacement of employed workers;
(B) Be applied in skills, crafts, or trades in which there is a
surplus of available gainful labor in the locality; or
(C) Impair existing contracts for services;
(iv) The rates of pay and other conditions of employment will not
be less than those for work of a similar nature in the locality where
the work is being performed; and
(v) The Attorney General of the United States has certified that
the work-release laws or regulations of the jurisdiction involved are
in conformity with the requirements of Executive Order 11755, as
amended.
(b) Department of Justice regulations authorize the Director of the
Bureau of Justice Assistance to exercise the power and authority vested
in the Attorney General by the Executive order to certify and to revoke
the certification of work-release laws or regulations (see 28 CFR 0.94-
1(b)).
22.202 [Amended]
3. Section 22.202 is amended in the introductory paragraph by
inserting after ``Samoa,'' ``the Commonwealth of the Northern Mariana
Islands,''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 52.222-3 is revised to read as follows:
52.222-3 Convict labor.
As prescribed in 22.202, insert the following clause:
Convict Labor (Aug 1996)
The Contractor agrees not to employ in the performance of this
contract any person undergoing a sentence of imprisonment which has
been imposed by any court of a State, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, or the
Trust Territory of the Pacific Islands. This limitation, however,
shall not prohibit the employment by the Contractor in the
performance of this contract of persons on parole or probation to
work at paid employment during the term of their sentence or persons
who have been pardoned or who have served their terms. Nor shall it
prohibit the employment by the Contractor in the performance of this
contract of persons confined for violation of the laws of any of the
States, the District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, or the Trust Territory of the Pacific
Islands who are authorized to work at paid employment in the
community under the laws of such jurisdiction, if--
(a)(1) The worker is paid or is in an approved work training
program on a voluntary basis;
(2) Representatives of local union central bodies or similar
labor union organizations have been consulted;
(3) Such paid employment will not result in the displacement of
employed workers, or be applied in skills, crafts, or trades in
which there is a surplus of available gainful labor in the locality,
or impair existing contracts for services; and
(4) The rates of pay and other conditions of employment will not
be less than those paid or provided for work of a similar nature in
the locality in which the work is being performed; and
(b) The Attorney General of the United States has certified that
the work-release laws or regulations of the jurisdiction involved
are in conformity with the requirements of Executive Order 11755, as
amended by Executive Orders 12608 and 12943.
(End of clause)
[FR Doc. 96-14526 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14525 Federal Acquisition Regulation; Small Business Competitiveness Demonstration Program
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14525]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 19
[FAC 90-39; FAR Case 92-302; Item X]
RIN 9000-AG10
Federal Acquisition Regulation; Small Business Competitiveness
Demonstration Program
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to finalize without change
the interim rule which was published at 59 FR 67036, December 28, 1994
(FAC 90-23, Item XIII), amending the Federal Acquisition Regulation
(FAR) Part 19 to (1) extend the Small Business Competitiveness
Demonstration Program through September 30, 1996; (2) specify that
agencies may reinstate the use of small business set-asides as
necessary to meet assigned goals, but only within the organizational
unit(s) that failed to meet the small business goals; and (3) revise
the description of Architectual and Engineering services as a
designated industry group. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-302.
SUPPLEMENTARY INFORMATION:
A. Background
This rule finalizes the interim rule, which implements Title II of
Public Law 102-366, the Small Business Credit and Business Opportunity
Enhancement Act of 1992, which revised Title VII of Public Law 100-656,
Small Business Competitiveness Demonstration Program. The Office of
Federal Procurement Policy published an interim policy directive in the
Federal Register at 58 FR 19849, April 16, 1993, revising the current
directive dated August 31, 1989, to include revisions based on Title
II.
On December 28, 1994, the interim rule was published in the Federal
Register with a request for comment. Two responses were received. No
changes were made to the interim rule as a result of the responses. The
interim rule has been adopted as a final rule without change.
B. Regulatory Flexibility Act
The final rule implements statutory revisions included in the
revisions to the OFPP policy directive. OFPP prepared the appropriate
regulatory flexibility statements as part of the revisions to the OFPP
policy directive published in the Federal Register.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 19
Government procurement.
Interim Rule Adopted as Final Without Change
Accordingly, the interim rule amending 48 CFR Part 19, which was
published at 59 FR 67036, December 28, 1994 (FAC 90-23, Item XIII), is
adopted as a final rule without change.
The authority citation for 48 CFR Part 19 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14525 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14524 Federal Acquisition Regulation; Master Subcontracting Plans
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31642-31643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14524]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 19 and 52
[FAC 90-39; FAR Case 92-039; Item IX]
RIN 9000-AG07
Federal Acquisition Regulation; Master Subcontracting Plans
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to permit master
subcontracting plans to be written for a three-year period and to
emphasize that it is incumbent upon contractors to maintain and update
master plans. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-039.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register on September
8, 1994 (59 FR 46385). The proposed rule amended FAR 19.704(b) and
52.219-9 to permit master subcontracting plans to be written for a
three-year period with contractors making changes/updates to master
subcontracting plans as necessary. After evaluating public comments,
the Councils have agreed to add language at FAR 19.704(b) stating that
changes required to update master subcontracting plans are not
effective until approved by the contracting officer.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because small businesses are
exempt from subcontracting plan requirements, and the rule does not
change the contractor's obligation to maximize subcontracting
opportunities for small business concerns. No comments were received on
the impact of this rule on small entities during the public comment
period.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Public Law 104-13) is deemed
to apply because the final rule contains information collection
requirements. This final rule will result in an estimated reduction in
the number of subcontract plans per year and associated hours.
Consequently, a revised clearance for OMB Control Number 9000-0006 was
submitted to OMB. The revised clearance has been approved through
October 31, 1997. OMB Control Number 9000-0006 has recently been
further revised by FAR case 94-780, and approval has been extended
through March 31, 1998.
List of Subjects in 48 CFR Parts 19 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 19 and 52 are amended as set forth below:
[[Page 31643]]
1. The authority citation for 48 CFR Parts 19 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 19--SMALL BUSINESS PROGRAMS
2. Section 19.704 is amended in paragraph (b) by revising the
second sentence and adding a third and fourth sentence to read as
follows:
19.704 Subcontracting plan requirements.
* * * * *
(b) * * * Master plans shall be effective for a 3-year period after
approval by the contracting officer; however, it is incumbent upon
contractors to maintain and update master plans. Changes required to
update master plans are not effective until approved by the contracting
officer. A master plan, when incorporated in an individual plan, shall
apply to that contract throughout the life of the contract.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.219-9 is amended by revising the date of the clause
to read ``(AUG 1996)''; in paragraph (f) introductory text by removing
``(d) above,'' and inserting ``paragraph (d) of this clause,'' in its
place; and revising paragraph (f)(2) of the clause to read as follows:
52.219-9 Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
* * * * *
Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (Aug 1996)
* * * * *
(f) * * *
(2) the offeror ensures that the master plan is updated as
necessary and provides copies of the approved master plan, including
evidence of its approval, to the Contracting Officer, and
* * * * *
[FR Doc. 96-14524 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14523 Federal Acquisition Regulation; Small Business Size Standards
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31622-31642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14523]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 19
[FAC 90-39; FAR Case 94-600; Item VIII]
Federal Acquisition Regulation; Small Business Size Standards
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Amendments in this document will bring the Federal Acquisition
Regulation into conformance with revised small business size standards
published by the Small Business Administration (SBA). This regulatory
action was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993, and is not a major
rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Klein at (202) 501-3775. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 90-39
(FAR case 94-600).
SUPPLEMENTARY INFORMATION:
A. Background
SBA has revised its size standards regulations at 13 CFR Part 121
(61 FR 3280, January 31, 1996), effective March 1, 1996. Corrections
were published (61 FR 6412, February 20, 1996; 61 FR 7306, February 27,
1996; and 61 FR 7986, March 1, 1996). As a result, the table of Size
Standards shown in the FAR at 19.102 has been revised to reflect the
changes made by SBA through March 1996.
SBA currently has two size standards publications available via the
Internet on SBA ONLINE. They are the table of Size Standards, which
currently appears in the FAR, and a copy of 13 CFR 121, the Size
Regulations, published in the Federal Register on January 31, 1996.
B. Regulatory Flexibility Act
These changes derive directly from SBAs regulations, without
substantive change. Therefore, the final rule does not constitute a
significant FAR revision within the meaning of FAR 1.501 and Public Law
98-577, and publication for public comments is not required. The
Regulatory Flexibility Act does not apply. However, comments from small
entities concerning the affected subpart will be considered in
accordance with 5 U.S.C. 610. Such comments must be submitted
separately and cite 5 U.S.C. 601, et seq. (FAC 90-39, FAR case 94-600),
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 19
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 19 is amended as set forth below:
PART 19--SMALL BUSINESS PROGRAMS
1. The authority citation for 48 CFR Part 19 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 19.102 is amended by revising the table consisting of
industry size standards and revising the footnotes to read as follows:
19.102 Size standards.
* * * * *
[[Page 31623]]
Size Standards by SIC Industry 3/96
----------------------------------------------------------------------------------------------------------------
Description (N.E.C. = Not elsewhere Size standards in number of
SIC classified) employees or millions of dollars
----------------------------------------------------------------------------------------------------------------
See Footnotes on Menu
Division A--Agriculture, Forestry and Fishing
----------------------------------------------------------------------------------------------------------------
Major Group 01--Agricultural Production--Crops
----------------------------------------------------------------------------------------------------------------
0111................................ Wheat................................. $0.5
0112................................ Rice.................................. $0.5
0115................................ Corn.................................. $0.5
0116................................ Soybeans.............................. $0.5
0119................................ Cash Grains, N.E.C.................... $0.5
0131................................ Cotton................................ $0.5
0132................................ Tobacco............................... $0.5
0133................................ Sugarcane and Sugar Beets............. $0.5
0134................................ Irish Potatoes........................ $0.5
0139................................ Field Crops, Except Cash Grains, $0.5
N.E.C..
0161................................ Vegetables and Melons................. $0.5
0171................................ Berry Crops........................... $0.5
0172................................ Grapes................................ $0.5
0173................................ Tree Nuts............................. $0.5
0174................................ Citrus Fruits......................... $0.5
0175................................ Deciduous Tree Fruits................. $0.5
0179................................ Fruits and Tree Nuts, N.E.C........... $0.5
0181................................ Ornamental Floriculture Nursery $0.5
Products.
0182................................ Food Crops Grown Under Cover.......... $0.5
0191................................ General Farms, Primarily Crop......... $0.5
----------------------------------------------------------------------------------------------------------------
Major Group 02--Livestock and Animal Specialties
----------------------------------------------------------------------------------------------------------------
0211................................ Beef Cattle Feedlots (Custom)......... $1.5
0212................................ Beef Cattle, Except Feedlots.......... $0.5
0213................................ Hogs.................................. $0.5
0214................................ Sheep and Goats....................... $0.5
0219................................ General Livestock, Except Dairy and $0.5
Poultry.
0241................................ Dairy Farms........................... $0.5
0251................................ Broiler, Fryer, and Roaster Chickens.. $0.5
0252................................ Chicken Eggs.......................... $9.0
0253................................ Turkeys and Turkey Eggs............... $0.5
0254................................ Poultry Hatcheries.................... $0.5
0259................................ Poultry and Eggs, N.E.C............... $0.5
0271................................ Fur-Bearing Animals and Rabbits....... $0.5
0272................................ Horses and Other Equines.............. $0.5
0273................................ Animal Aquaculture.................... $0.5
0279................................ Animal Specialties, N.E.C............. $0.5
0291................................ General Farms, Primarily Livestock and $0.5
----------------------------------------------------------------------------------------------------------------
Animal Specialties
----------------------------------------------------------------------------------------------------------------
Major Group 07--Agricultural Services
----------------------------------------------------------------------------------------------------------------
0711................................ Soil Preparation Services............. $5.0
0721................................ Crop Planting, Cultivating, and $5.0
Protecting.
0722................................ Crop Harvesting, Primarily by Machine. $5.0
0723................................ Crop Preparation Service for Market, $5.0
Except Cotton Ginning.
0724................................ Cotton Ginning........................ $5.0
0741................................ Veterinary Services for Livestock..... $5.0
0742................................ Veterinary Services for Animal $5.0
Specialties.
0751................................ Livestock Services, Except Veterinary. $5.0
0752................................ Animal Specialty Services, Except $5.0
Veterinary.
0761................................ Farm Labor Contractors and Crew $5.0
Leaders.
0762................................ Farm Management Services.............. $5.0
0781................................ Landscape Counseling and Planning..... $5.0
0782................................ Lawn and Garden Services.............. $5.0
0783................................ Ornamental Shrub and Tree Services.... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 08--Forestry
----------------------------------------------------------------------------------------------------------------
0811................................ Timber Tracts......................... $5.0
0831................................ Forest Nurseries and Gathering of $5.0
Forest Products.
[[Page 31624]]
0851................................ Forestry Services..................... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 09--Fishing, Hunting, and Trapping
----------------------------------------------------------------------------------------------------------------
0912................................ Finfish............................... $3.0
0913................................ Shellfish............................. $3.0
0919................................ Miscellaneous Marine Products......... $3.0
0921................................ Fish Hatcheries and Preserves......... $3.0
0971................................ Hunting and Trapping, and Game $3.0
Propagation.
----------------------------------------------------------------------------------------------------------------
Division B--Mining
----------------------------------------------------------------------------------------------------------------
Major Group 10--Metal Mining
----------------------------------------------------------------------------------------------------------------
1011................................ Iron Ores............................. 500
1021................................ Copper Ores........................... 500
1031................................ Lead and Zinc Ores.................... 500
1041................................ Gold Ores............................. 500
1044................................ Silver Ores........................... 500
1061................................ Ferroalloy Ores, Except Vanadium...... 500
1081................................ Metal Mining Services................. $5.0
1094................................ Uranium-Radium-Vanadium Ores.......... 500
1099................................ Miscellaneous Metal Ores, N.E.C....... 500
----------------------------------------------------------------------------------------------------------------
Major Group 12--Coal Mining
----------------------------------------------------------------------------------------------------------------
1221................................ Bituminous Coal and Lignite Surface 500
Mining.
1222................................ Bituminous Coal Underground Mining.... 500
1231................................ Anthracite Mining..................... 500
1241................................ Coal Mining Services.................. $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 13--Oil and Gas Extraction
----------------------------------------------------------------------------------------------------------------
1311................................ Crude Petroleum and Natural Gas....... 500
1321................................ Natural Gas Liquids................... 500
1381................................ Drilling Oil and Gas Wells............ 500
1382................................ Oil and Gas Field Exploration Services $5.0
1389................................ Oil and Gas Field Services, N.E.C..... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 14--Mining and Quarrying of Nonmetallic Minerals, Except Fuels
----------------------------------------------------------------------------------------------------------------
1411................................ Dimension Stone....................... 500
1422................................ Crushed and Broken Limestone.......... 500
1423................................ Crushed and Broken Granite............ 500
1429................................ Crushed and Broken Stone, N.E.C....... 500
1442................................ Construction Sand and Gravel.......... 500
1446................................ Industrial Sand....................... 500
1455................................ Kaolin and Ball Clay.................. 500
1459................................ Clay, Ceramic, and Refractory 500
Minerals, N.E.C..
1474................................ Potash, Soda, and Borate Minerals..... 500
1475................................ Phosphate Rock........................ 500
1479................................ Chemical and Fertilizer Mineral 500
Mining, N.E.C.
1481................................ Nonmetallic Minerals Services, Except $5.0
Fuels.
1499................................ Miscellaneous Nonmetallic Minerals, 500
Except Fuels.
----------------------------------------------------------------------------------------------------------------
Division C--Construction
----------------------------------------------------------------------------------------------------------------
Major Group 15--Building Construction--General Contractors and Operative Builders
----------------------------------------------------------------------------------------------------------------
1521................................ General Contractors--Single-Family $17.0
Houses.
1522................................ General Contractors--Residential $17.0
Buildings, Other Than Single-Family.
1531................................ Operative Builders.................... $17.0
1541................................ General Contractors--Industrial $17.0
Buildings and Warehouses.
1542................................ General Contractors--Nonresidential $17.0
Buildings, Other Than Industrial
Buildings and Warehouses.
----------------------------------------------------------------------------------------------------------------
[[Page 31625]]
Major Group 16--Heavy Construction Other Than Building Construction--Contractors
----------------------------------------------------------------------------------------------------------------
1611................................ Highway and Street Construction, $17.0
Except Elevated Highways.
1622................................ Bridge, Tunnel, and Elevated Highway $17.0
Construction..
1623................................ Water, Sewer, Pipeline, and $17.0
Communications and Power Line
Construction.
1629................................ Heavy Construction, N.E.C............. $17.0
Except,............................. Dredging and Surface Cleanup $13.5 \1\
Activities.
----------------------------------------------------------------------------------------------------------------
Major Group 17--Construction--Special Trade Contractors
----------------------------------------------------------------------------------------------------------------
1711................................ Plumbing, Heating, and Air- $7.0
Conditioning.
1721................................ Painting and Paper Hanging............ $7.0
1731................................ Electrical Work....................... $7.0
1741................................ Masonry, Stone Setting, and Other $7.0
Stone Work.
1742................................ Plastering, Drywall, Acoustical and $7.0
Insulation Work.
1743................................ Terrazzo, Tile, Marble, and Mosaic $7.0
Work.
1751................................ Carpentry Work........................ $7.0
1752................................ Floor Laying and Other Floor Work, $7.0
N.E.C..
1761................................ Roofing, Siding, and Sheet Metal Work. $7.0
1771................................ Concrete Work......................... $7.0
1781................................ Water Well Drilling................... $7.0
1791................................ Structural Steel Erection............. $7.0
1793................................ Glass and Glazing Work................ $7.0
1794................................ Excavation Work....................... $7.0
1795................................ Wrecking and Demolition Work.......... $7.0
1796................................ Installation or Erection of Building $7.0
Equipment, N.E.C..
1799................................ Special Trade Contractors, N.E.C...... $7.0
Except,............................. Base Housing Maintenance.............. $7.0 \12\
----------------------------------------------------------------------------------------------------------------
Division D--Manufacturing \2\
----------------------------------------------------------------------------------------------------------------
Major Group 20--Food and Kindred Products
----------------------------------------------------------------------------------------------------------------
2011................................ Meat Packing Plants................... 500
2013................................ Sausages and Other Prepared Meat 500
Products.
2015................................ Poultry Slaughtering and Processing... 500
2021................................ Creamery Butter....................... 500
2022................................ Natural, Processed, and Imitation 500
Cheese.
2023................................ Dry, Condensed, and Evaporated Dairy 500
Products.
2024................................ Ice Cream and Frozen Desserts......... 500
2026................................ Fluid Milk............................ 500
2032................................ Canned Specialties.................... 1,000
2033................................ Canned Fruits, Vegetables, Preserves, 500 \3\
Jams, and Jellies.
2034................................ Dried and Dehydrated Fruits, 500
Vegetables, and Soup Mixes.
2035................................ Pickled Fruits and Vegetables, 500
Vegetable Sauces and Seasonings, and
Salad Dressings.
2037................................ Frozen Fruits, Fruit Juices, and 500
Vegetables.
2038................................ Frozen Specialties, N.E.C............. 500
2041................................ Flour and Other Grain Mill Products... 500
2043................................ Cereal Breakfast Foods................ 1,000
2044................................ Rice Milling.......................... 500
2045................................ Prepared Flour Mixes and Doughs....... 500
2046................................ Wet Corn Milling...................... 750
2047................................ Dog and Cat Food...................... 500
2048................................ Prepared Feeds and Feed Ingredients 500
for Animals and Fowls, Except Dogs
and Cats.
2051................................ Bread and Other Bakery Products, 500
Except Cookies and Crackers.
2052................................ Cookies and Crackers.................. 750
2053................................ Frozen Bakery Products, Except Bread.. 500
2061................................ Cane Sugar, Except Refining........... 500
2062................................ Cane Sugar Refining................... 750
2063................................ Beet Sugar............................ 750
2064................................ Candy and Other Confectionery Products 500
2066................................ Chocolate and Cocoa Products.......... 500
2067................................ Chewing Gum........................... 500
2068................................ Salted and Roasted Nuts and Seeds..... 500
2074................................ Cottonseed Oil Mills.................. 500
2075................................ Soybean Oil Mills..................... 500
2076................................ Vegetable Oil Mills, Except Corn, 1,000
Cottonseed, and Soybean.
2077................................ Animal and Marine Fats and Oils....... 500
2079................................ Shortening, Table Oils, Margarine, and 750
Other Edible Fats and Oils, N.E.C.
[[Page 31626]]
2082................................ Malt Beverages........................ 500
2083................................ Malt.................................. 500
2084................................ Wines, Brandy, and Brandy Spirits..... 500
2085................................ Distilled and Blended Liquors......... 750
2086................................ Bottled and Canned Soft Drinks and 500
Carbonated Waters.
2087................................ Flavoring Extracts and Flavoring 500
Syrups, N.E.C.
2091................................ Canned and Cured Fish and Seafoods.... 500
2092................................ Prepared Fresh or Frozen Fish and 500
Seafoods.
2095................................ Roasted Coffee........................ 500
2096................................ Potato Chips, Corn Chips, and Similar 500
Snacks.
2097................................ Manufactured Ice...................... 500
2098................................ Macaroni, Spaghetti, Vermicelli, and 500
Noodles.
2099................................ Food Preparations, N.E.C.............. 500
----------------------------------------------------------------------------------------------------------------
Major Group 21--Tobacco Products
----------------------------------------------------------------------------------------------------------------
2111................................ Cigarettes............................ 1,000
2121................................ Cigars................................ 500
2131................................ Chewing and Smoking Tobacco and Snuff. 500
2141................................ Tobacco Stemming and Redrying......... 500
----------------------------------------------------------------------------------------------------------------
Major Group 22--Textile Mill Products
----------------------------------------------------------------------------------------------------------------
2211................................ Broadwoven Fabric Mills, Cotton....... 1,000
2221................................ Broadwoven Fabric Mills, Manmade Fiber 500
and Silk.
2231................................ Broadwoven Fabric Mills, Wool 500
(Including Dyeing and Finishing).
2241................................ Narrow Fabric and Other Smallwares 500
Mills: Cotton, Wool, Silk and Manmade
Fiber.
2251................................ Women's Full-Length and Knee-Length 500
Hosiery, Except Socks.
2252................................ Hosiery, N.E.C........................ 500
2253................................ Knit Outerwear Mills.................. 500
2254................................ Knit Underwear and Nightwear Mills.... 500
2257................................ Weft Knit Fabric Mills................ 500
2258................................ Lace and Warp Knit Fabric Mills....... 500
2259................................ Knitting Mills, N.E.C................. 500
2261................................ Finishers of Broadwoven Fabrics of 1,000
Cotton.
2262................................ Finishers of Broadwoven Fabrics of 500
Manmade Fiber and Silk.
2269................................ Finishers of Textiles, N.E.C.......... 500
2273................................ Carpets and Rugs...................... 500
2281................................ Yarn Spinning Mills................... 500
2282................................ Yarn Texturizing, Throwing, Twisting, 500
and Winding Mills.
2284................................ Thread Mills.......................... 500
2295................................ Coated Fabrics, Not Rubberized........ 1,000
2296................................ Tire Cord and Fabrics................. 1,000
2297................................ Nonwoven Fabrics...................... 500
2298................................ Cordage and Twine..................... 500
2299................................ Textile Goods, N.E.C.................. 500
----------------------------------------------------------------------------------------------------------------
Major Group 23--Apparel and Other Finished Products Made From Fabrics and Similar Materials
----------------------------------------------------------------------------------------------------------------
2311................................ Men's and Boys' Suits, Coats and 500
Overcoats.
2321................................ Men's and Boys' Shirts, Except Work 500
Shirts.
2322................................ Men's and Boys' Underwear and 500
Nightwear.
2323................................ Men's and Boys' Neckwear.............. 500
2325................................ Men's and Boys' Separate Trousers and 500
Slacks.
2326................................ Men's and Boys' Work Clothing......... 500
2329................................ Men's and Boys' Clothing, N.E.C....... 500
2331................................ Women's, Misses', and Juniors' Blouses 500
and Shirts.
2335................................ Women's, Misses', and Juniors' Dresses 500
2337................................ Women's, Misses', and Juniors' Suits, 500
Skirts, and Coats.
2339................................ Women's, Misses', and Juniors' 500
Outerwear, N.E.C.
2341................................ Women's, Misses', Children's, and 500
Infants' Underwear and Nightwear.
2342................................ Brassieres, Girdles, and Allied 500
Garments.
2353................................ Hats, Caps, and Millinery............. 500
2361................................ Girls', Children's, and Infants' 500
Dresses, Blouses, and Shirts.
2369................................ Girls', Children's, and Infants' 500
Outerwear, N.E.C..
2371................................ Fur Goods............................. 500
2381................................ Dress and Work Gloves, Except Knit and 500
All-Leather.
2384................................ Robes and Dressing Gowns.............. 500
2385................................ Waterproof Outerwear.................. 500
[[Page 31627]]
2386................................ Leather and Sheep-Lined Clothing...... 500
2387................................ Apparel Belts......................... 500
2389................................ Apparel and Accessories, N.E.C........ 500
2391................................ Curtains and Draperies................ 500
2392................................ Housefurnishings, Except Curtains and 500
Draperies.
2393................................ Textile Bags.......................... 500
2394................................ Canvas and Related Products........... 500
2395................................ Pleating, Decorative and Novelty 500
Stitching, and Tucking for the Trade.
2396................................ Automotive Trimmings, Apparel 500
Findings, and Related Products.
2397................................ Schiffli Machine Embroideries......... 500
2399................................ Fabricated Textile Products, N.E.C.... 500
----------------------------------------------------------------------------------------------------------------
Major Group 24--Lumber and Wood Products, Except Furniture
----------------------------------------------------------------------------------------------------------------
2411................................ Logging............................... 500
2421................................ Sawmills and Planing Mills, General... 500
2426................................ Hardwood Dimension and Flooring Mills. 500
2429................................ Special Product Sawmills, N.E.C....... 500
2431................................ Millwork.............................. 500
2434................................ Wood Kitchen Cabinets................. 500
2435................................ Hardwood Veneer and Plywood........... 500
2436................................ Softwood Veneer and Plywood........... 500
2439................................ Structural Wood Members, N.E.C........ 500
2441................................ Nailed and Lock Corner Wood Boxes and 500
Shook.
2448................................ Wood Pallets and Skids................ 500
2449................................ Wood Containers, N.E.C................ 500
2451................................ Mobile Homes.......................... 500
2452................................ Prefabricated Wood Buildings and 500
Components.
2491................................ Wood Preserving....................... 500
2493................................ Reconstituted Wood Products........... 500
2499................................ Wood Products, N.E.C.................. 500
----------------------------------------------------------------------------------------------------------------
Major Group 25--Furniture and Fixtures
----------------------------------------------------------------------------------------------------------------
2511................................ Wood Household Furniture, Except 500
Upholstered.
2512................................ Wood Household Furniture, Upholstered. 500
2514................................ Metal Household Furniture............. 500
2515................................ Mattresses, Foundations, and 500
Convertible Beds.
2517................................ Wood Television, Radio, Phonograph, 500
and Sewing Machine Cabinets.
2519................................ Household Furniture, N.E.C............ 500
2521................................ Wood Office Furniture................. 500
2522................................ Office Furniture, Except Wood......... 500
2531................................ Public Building and Related Furniture. 500
2541................................ Wood Office and Store Fixtures, 500
Partitions, Shelving, and Lockers.
2542................................ Office and Store Fixtures, Partitions, 500
Shelving, and Lockers, Except Wood.
2591................................ Drapery Hardware and Window Blinds and 500
Shades.
2599................................ Furniture and Fixtures, N.E.C......... 500
----------------------------------------------------------------------------------------------------------------
Major Group 26--Paper and Allied Products
----------------------------------------------------------------------------------------------------------------
2611................................ Pulp Mills............................ 750
2621................................ Paper Mills........................... 750
2631................................ Paperboard Mills...................... 750
2652................................ Setup Paperboard Boxes................ 500
2653................................ Corrugated and Solid Fiber Boxes...... 500
2655................................ Fiber Cans, Tubes, Drums, and Similar 500
Products.
2656................................ Sanitary Food Containers, Except 750
Folding.
2657................................ Folding Paperboard Boxes, Including 750
Sanitary.
2671................................ Packaging Paper and Plastics Film, 500
Coated and Laminated.
2672................................ Coated and Laminated Paper, N.E.C..... 500
2673................................ Plastics, Foil, and Coated Paper Bags. 500
2674................................ Uncoated Paper and Multiwall Bags..... 500
2675................................ Die-Cut Paper and Paperboard and 500
Cardboard.
2676................................ Sanitary Paper Products............... 500
2677................................ Envelopes............................. 500
2678................................ Stationery, Tablets, and Related 500
Products.
2679................................ Converted Paper and Paperboard 500
Products, N.E.C.
----------------------------------------------------------------------------------------------------------------
[[Page 31628]]
Major Group 27--Printing, Publishing, and Allied Industries
----------------------------------------------------------------------------------------------------------------
2711................................ Newspapers: Publishing, or Publishing 500
and Printing.
2721................................ Periodicals: Publishing, or Publishing 500
and Printing.
2731................................ Books: Publishing, or Publishing and 500
Printing.
2732................................ Book Printing......................... 500
2741................................ Miscellaneous Publishing.............. 500
2752................................ Commercial Printing, Lithographic..... 500
2754................................ Commercial Printing, Gravure.......... 500
2759................................ Commercial Printing, N.E.C............ 500
2761................................ Manifold Business Forms............... 500
2771................................ Greeting Cards........................ 500
2782................................ Blankbooks, Looseleaf Binders and 500
Devices.
2789................................ Bookbinding and Related Work.......... 500
2791................................ Typesetting........................... 500
2796................................ Platemaking and Related Services...... 500
----------------------------------------------------------------------------------------------------------------
Major Group 28--Chemicals and Allied Products
----------------------------------------------------------------------------------------------------------------
2812................................ Alkalies and Chlorine................. 1,000
2813................................ Industrial Gases...................... 1,000
2816................................ Inorganic Pigments.................... 1,000
2819................................ Industrial Inorganic Chemicals, N.E.C. 1,000
2821................................ Plastics Materials, Synthetic Resins, 750
and Nonvulcanizable Elastomers.
2822................................ Synthetic Rubber (Vulcanizable 1,000
Elastomers).
2823................................ Cellulosic Manmade Fibers............. 1,000
2824................................ Manmade Organic Fibers, Except 1,000
Cellulosic.
2833................................ Medicinal Chemicals and Botanical 750
Products.
2834................................ Pharmaceutical Preparations........... 750
2835................................ In Vitro and In Vivo Diagnostic 500
Substances.
2836................................ Biological Products, Except Diagnostic 500
Substances.
2841................................ Soap and Other Detergents, Except 750
Specialty Cleaners.
2842................................ Specialty Cleaning, Polishing, and 500
Sanitation Preparations.
2843................................ Surface Active Agents, Finishing 500
Agents, Sulfonated Oils, and
Assistants.
2844................................ Perfumes, Cosmetics, and Other Toilet 500
Preparations.
2851................................ Paints, Varnishes, Lacquers, Enamels, 500
and Allied Products.
2861................................ Gum and Wood Chemicals................ 500
2865................................ Cyclic Organic Crudes and 750
Intermediates, and Organic Dyes and
Pigments.
2869................................ Industrial Organic Chemicals, N.E.C... 1,000
2873................................ Nitrogenous Fertilizers............... 1,000
2874................................ Phosphatic Fertilizers................ 500
2875................................ Fertilizers, Mixing Only.............. 500
2879................................ Pesticides and Agricultural Chemicals, 500
N.E.C..
2891................................ Adhesives and Sealants................ 500
2892................................ Explosives............................ 750
2893................................ Printing Ink.......................... 500
2895................................ Carbon Black.......................... 500
2899................................ Chemicals and Chemical Preparations, 500
N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 29--Petroleum Refining and Related Industries
----------------------------------------------------------------------------------------------------------------
2911................................ Petroleum Refining.................... 1,500 \4\
2951................................ Asphalt Paving Mixtures and Blocks.... 500
2952................................ Asphalt Felts and Coatings............ 750
2992................................ Lubricating Oils and Greases.......... 500
2999................................ Products of Petroleum and Coal, N.E.C. 500
----------------------------------------------------------------------------------------------------------------
Major Group 30--Rubber and Miscellaneous Plastics Products
----------------------------------------------------------------------------------------------------------------
3011................................ Tires and Inner Tubes................. 1,000 \5\
3021................................ Rubber and Plastics Footwear.......... 1,000
3052................................ Rubber and Plastics Hose and Belting.. 500
3053................................ Gaskets, Packing, and Sealing Devices. 500
3061................................ Molded, Extruded, and Lathe-Cut 500
Mechanical Rubber Goods.
3069................................ Fabricated Rubber Products, N.E.C..... 500
3081................................ Unsupported Plastics Film and Sheet... 500
3082................................ Unsupported Plastics Profile Shapes... 500
3083................................ Laminated Plastics Plate, Sheet, and 500
Profile Shapes.
[[Page 31629]]
3084................................ Plastics Pipe......................... 500
3085................................ Plastics Bottles...................... 500
3086................................ Plastics Foam Products................ 500
3087................................ Custom Compounding of Purchased 500
Plastics Resins.
3088................................ Plastics Plumbing Fixtures............ 500
3089................................ Plastics Products, N.E.C.............. 500
----------------------------------------------------------------------------------------------------------------
Major Group 31--Leather and Leather Products
----------------------------------------------------------------------------------------------------------------
3111................................ Leather Tanning and Finishing......... 500
3131................................ Boot and Shoe Cut Stock and Findings.. 500
3142................................ House Slippers........................ 500
3143................................ Men's Footwear, Except Athletic....... 500
3144................................ Women's Footwear, Except Athletic..... 500
3149................................ Footwear, Except Rubber, N.E.C........ 500
3151................................ Leather Gloves and Mittens............ 500
3161................................ Luggage............................... 500
3171................................ Women's Handbags and Purses........... 500
3172................................ Personal Leather Goods, Except Women's 500
Handbags and Purses.
3199................................ Leather Goods, N.E.C.................. 500
----------------------------------------------------------------------------------------------------------------
Major Group 32--Stone, Clay, Glass, and Concrete Products
----------------------------------------------------------------------------------------------------------------
3211................................ Flat Glass............................ 1,000
3221................................ Glass Containers...................... 750
3229................................ Pressed and Blown Glass and Glassware, 750
N.E.C..
3231................................ Glass Products, Made of Purchased 500
Glass.
3241................................ Cement, Hydraulic..................... 750
3251................................ Brick and Structural Clay Tile........ 500
3253................................ Ceramic Wall and Floor Tile........... 500
3255................................ Clay Refractories..................... 500
3259................................ Structural Clay Products, N.E.C....... 500
3261................................ Vitreous China Plumbing Fixtures and 750
China and Earthenware Fittings and
Bathroom Accessories.
3262................................ Vitreous China Table and Kitchen 500
Articles.
3263................................ Fine Earthenware (Whiteware) Table and 500
Kitchen Articles.
3264................................ Porcelain Electrical Supplies......... 500
3269................................ Pottery Products, N.E.C............... 500
3271................................ Concrete Block and Brick.............. 500
3272................................ Concrete Products, Except Block and 500
Brick.
3273................................ Ready Mixed Concrete.................. 500
3274................................ Lime.................................. 500
327
FR Doc. 96-14523 Federal Acquisition Regulation; Small Business Size Standards
5................................ Gypsum Products....................... 1,000
3281................................ Cut Stone and Stone Products.......... 500
3291................................ Abrasive Products..................... 500
3292................................ Asbestos Products..................... 750
3295................................ Minerals and Earths, Ground or 500
Otherwise Treated.
3296................................ Mineral Wool.......................... 750
3297................................ Nonclay Refractories.................. 750
3299................................ Nonmetallic Mineral Products, N.E.C... 500
----------------------------------------------------------------------------------------------------------------
Major Group 32--Primary Metal Industries
----------------------------------------------------------------------------------------------------------------
3312................................ Steel Works, Blast Furnaces (Including 1,000
Coke Ovens), and Rolling Mills.
3313................................ Electrometallurgical Products, Except 750
Steel.
3315................................ Steel Wiredrawing and Steel Nails and 1,000
Spikes.
3316................................ Cold-Rolled Steel Sheet, Strip, and 1,000
Bars.
3317................................ Steel Pipe and Tubes.................. 1,000
3321................................ Gray and Ductile Iron Foundries....... 500
3322................................ Malleable Iron Foundries.............. 500
3324................................ Steel Investment Foundries............ 500
3325................................ Steel Foundries, N.E.C................ 500
3331................................ Primary Smelting and Refining of 1,000
Copper.
3334................................ Primary Production of Aluminum........ 1,000
3339................................ Primary Smelting and Refining of 750
Nonferrous Metals, Except Copper and
Aluminum.
3341................................ Secondary Smelting and Refining of 500
Nonferrous Metals.
3351................................ Rolling, Drawing, and Extruding of 750
Copper.
3353................................ Aluminum Sheet, Plate, and Foil....... 750
3354................................ Aluminum Extruded Products............ 750
[[Page 31630]]
3355................................ Aluminum Rolling and Drawing, N.E.C... 750
3356................................ Rolling, Drawing, and Extruding of 750
Nonferrous Metals, Except Copper and
Aluminum.
3357................................ Drawing and Insulating of Nonferrous 1,000
Wire.
3363................................ Aluminum Die-Castings................. 500
3364................................ Nonferrous Die-Castings, Except 500
Aluminum.
3365................................ Aluminum Foundries.................... 500
3366................................ Copper Foundries...................... 500
3369................................ Nonferrous Foundries, Except Aluminum 500
and Copper.
3398................................ Metal Heat Treating................... 750
3399................................ Primary Metal Products, N.E.C......... 750
----------------------------------------------------------------------------------------------------------------
Major Group 34--Fabricated Metal Products, Except Machinery and Transportation Equipment
----------------------------------------------------------------------------------------------------------------
3411................................ Metal Cans............................ 1,000
3412................................ Metal Shipping Barrels, Drums, Kegs, 500
and Pails.
3421................................ Cutlery............................... 500
3423................................ Hand and Edge Tools, Except Machine 500
Tools and Handsaws.
3425................................ Saw Blades and Handsaws............... 500
3429................................ Hardware, N.E.C....................... 500
3431................................ Enameled Iron and Metal Sanitary Ware. 750
3432................................ Plumbing Fixture Fittings and Trim.... 500
3433................................ Heating Equipment, Except Electric and 500
Warm Air Furnaces.
3441................................ Fabricated Structural Metal........... 500
3442................................ Metal Doors, Sash, Frames, Molding, 500
and Trim.
3443................................ Fabricated Plate Work (Boiler Shops).. 500
3444................................ Sheet Metal Work...................... 500
3446................................ Architectural and Ornamental Metal 500
Work.
3448................................ Prefabricated Metal Buildings and 500
Components.
3449................................ Miscellaneous Structural Metal Work... 500
3451................................ Screw Machine Products................ 500
3452................................ Bolts, Nuts, Screws, Rivets, and 500
Washers.
3462................................ Iron and Steel Forgings............... 500
3463................................ Nonferrous Forgings................... 500
3465................................ Automotive Stampings.................. 500
3466................................ Crowns and Closures................... 500
3469................................ Metal Stampings, N.E.C................ 500
3471................................ Electroplating, Plating, Polishing, 500
Anodizing, and Coloring.
3479................................ Coating, Engraving, and Allied 500
Services, N.E.C..
3482................................ Small Arms Ammunition................. 1,000
3483................................ Ammunition, Except for Small Arms..... 1,500
3484................................ Small Arms............................ 1,000
3489................................ Ordnance and Accessories, N.E.C....... 500
3491................................ Industrial Valves..................... 500
3492................................ Fluid Power Valves and Hose Fittings.. 500
3493................................ Steel Springs, Except Wire............ 500
3494................................ Valves and Pipe Fittings, N.E.C....... 500
3495................................ Wire Springs.......................... 500
3496................................ Miscellaneous Fabricated Wire Products 500
3497................................ Metal Foil and Leaf................... 500
3498................................ Fabricated Pipe and Pipe Fittings..... 500
3499................................ Fabricated Metal Products, N.E.C...... 500
----------------------------------------------------------------------------------------------------------------
Major Group 35--Industrial and Commercial Machinery and Computer Equipment
----------------------------------------------------------------------------------------------------------------
3511................................ Steam, Gas, and Hydraulic Turbines, 1,000
and Turbine Generator Set Units.
3519................................ Internal Combustion Engines, N.E.C.... 1,000
3523................................ Farm Machinery and Equipment.......... 500
3524................................ Lawn and Garden Tractors and Home Lawn 500
and Garden Equipment.
3531................................ Construction Machinery and Equipment.. 750
3532................................ Mining Machinery and Equipment, Except 500
Oil and Gas Field Machinery and
Equipment.
3533................................ Oil and Gas Field Machinery and 500
Equipment.
3534................................ Elevators and Moving Stairways........ 500
3535................................ Conveyors and Conveying Equipment..... 500
3536................................ Overhead Traveling Cranes, Hoists, and 500
Monorail Systems.
3537................................ Industrial Trucks, Tractors, Trailers, 750
and Stackers.
3541................................ Machine Tools, Metal Cutting Types.... 500
3542................................ Machine Tools, Metal Forming Types.... 500
3543................................ Industrial Patterns................... 500
3544................................ Special Dies and Tools, Die Sets, Jigs 500
and Fixtures, and Industrial Molds.
[[Page 31631]]
3545................................ Cutting Tools, Machine Tool 500
Accessories, and Machinists'
Precision Measuring Devices.
3546................................ Power-Driven Handtools................ 500
3547................................ Rolling Mill Machinery and Equipment.. 500
3548................................ Electric and Gas Welding and Soldering 500
Equipment.
3549................................ Metalworking Machinery, N.E.C......... 500
3552................................ Textile Machinery..................... 500
3553................................ Woodworking Machinery................. 500
3554................................ Paper Industries Machinery............ 500
3555................................ Printing Trades Machinery and 500
Equipment.
3556................................ Food Products Machinery............... 500
3559................................ Special Industry Machinery, N.E.C..... 500
3561................................ Pumps and Pumping Equipment........... 500
3562................................ Ball and Roller Bearings.............. 750
3563................................ Air and Gas Compressors............... 500
3564................................ Industrial and Commercial Fans and 500
Blowers and Air Purification
Equipment.
3565................................ Packaging Machinery................... 500
3566................................ Speed Changers, Industrial High-Speed 500
Drives, and Gears.
3567................................ Industrial Process Furnaces and Ovens. 500
3568................................ Mechanical Power Transmission 500
Equipment, N.E.C..
3569................................ General Industrial Machinery and 500
Equipment, N.E.C..
3571................................ Electronic Computers.................. 1,000
3572................................ Computer Storage Devices.............. 1,000
3575................................ Computer Terminals.................... 1,000
3577................................ Computer Peripheral Equipment, N.E.C.. 1,000
3578................................ Calculating and Accounting Machines, 1,000
Except Electronic Computers.
3579................................ Office Machines, N.E.C................ 500
3581................................ Automatic Vending Machines ........... 500
3582................................ Commercial Laundry, Drycleaning, and 500
Pressing Machines.
3585................................ Air-Conditioning and Warm Air Heating 750
Equipment and Commercial and
Industrial Refrigeration Equipment.
3586................................ Measuring and Dispensing Pumps........ 500
3589................................ Service Industry Machinery, N.E.C..... 500
3592................................ Carburetors, Pistons, Piston Rings, 500
and Valves.
3593................................ Fluid Power Cylinders and Actuators... 500
3594................................ Fluid Power Pumps and Motors.......... 500
3596................................ Scales and Balances, Except Laboratory 500
3599................................ Industrial and Commercial Machinery 500
and Equipment, N.E.C.
----------------------------------------------------------------------------------------------------------------
Major Group 36--Electronic and Other Electrical Equipment and Components, Except Computer Equipment
----------------------------------------------------------------------------------------------------------------
3612................................ Power, Distribution, and Specialty 750
Transformers.
3613................................ Switchgear and Switchboard Apparatus.. 750
3621................................ Motors and Generators................. 1,000
3624................................ Carbon and Graphite Products.......... 750
3625................................ Relays and Industrial Controls........ 750
3629................................ Electrical Industrial Apparatus, 500
N.E.C..
3631................................ Household Cooking Equipment........... 750
3632................................ Household Refrigerators and Home and 1,000
Farm Freezers.
3633................................ Household Laundry Equipment........... 1,000
3634................................ Electric Housewares and Fans ......... 750
3635................................ Household Vacuum Cleaners............. 750
3639................................ Household Appliances, N.E.C. ......... 500
3641................................ Electric Lamp Bulbs and Tubes......... 1,000
3643................................ Current-Carrying Wiring Devices....... 500
3644................................ Noncurrent-Carrying Wiring Devices.... 500
3645................................ Residential Electric Lighting Fixtures 500
3646................................ Commercial, Industrial, and 500
Institutional Electric Lighting
Fixtures.
3647................................ Vehicular Lighting Equipment.......... 500
3648................................ Lighting Equipment, N.E.C............. 500
3651................................ Household Audio and Video Equipment... 750
3652................................ Phonograph Records and Prerecorded 750
Audio Tapes and Disks.
3661................................ Telephone and Telegraph Apparatus..... 1,000
3663................................ Radio and Television Broadcasting and 750
Communications Equipment.
3669................................ Communications Equipment, N.E.C....... 750
3671................................ Electron Tubes........................ 750
3672................................ Printed Circuit Boards................ 500
3674................................ Semiconductors and Related Devices.... 500
3675................................ Electronic Capacitors................. 500
3676................................ Electronic Resistors.................. 500
3677................................ Electronic Coils, Transformers, and 500
Other Inductors.
[[Page 31632]]
3678................................ Electronic Connectors................. 500
3679................................ Electronic Components, N.E.C.......... 500
3691................................ Storage Batteries..................... 500
3692................................ Primary Batteries, Dry and Wet........ 1,000
3694................................ Electrical Equipment for Internal 750
Combustion Engines.
3695................................ Magnetic and Optical Recording Media.. 1,000
3699................................ Electrical Machinery, Equipment, and 750
Supplies, N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 37--Transportation Equipment
----------------------------------------------------------------------------------------------------------------
3711................................ Motor Vehicles and Passenger Car 1,000
Bodies.
3713................................ Truck and Bus Bodies.................. 500
3714................................ Motor Vehicle Parts and Accessories... 750
3715................................ Truck Trailers........................ 500
3716................................ Motor Homes........................... 1,000
3721................................ Aircraft.............................. 1,500
3724................................ Aircraft Engines and Engine Parts..... 1,000
3728................................ Aircraft Parts and Auxiliary 1,000 \9\
Equipment, N.E.C.
3731................................ Shipbuilding and Repair of Nuclear 1,000
Propelled Ships.
Except.............................. Shipbuilding of Nonnuclear Propelled 1,000
Ships and Nonpropelled Ships.
Ship Repair (Including Overhauls and 1,000
Conversions) Performed on Nonnuclear
Propelled and Nonpropelled Ships East
of the 108 Meridian.
Ship Repair (Including Overhauls and 1,000
Conversions) Performed on Nonnuclear
Propelled and Nonpropelled Ships West
of the 108 Meridian.
3732................................ Boat Building and Repairing........... 500
3743................................ Railroad Equipment.................... 1,000
3751................................ Motorcycles, Bicycles, and Parts...... 500
3761................................ Guided Missiles and Space Vehicles.... 1,000
3764................................ Guided Missile and Space Vehicle 1,000
Propulsion Units and Propulsion Unit
Parts.
3769................................ Guided Missile and Space Vehicle Parts 1,000
and Auxiliary Equipment, N.E.C.
3792................................ Travel Trailers and Campers........... 500
3795................................ Tanks and Tank Components............. 1,000
3799................................ Transportation Equipment, N.E.C. ..... 500
----------------------------------------------------------------------------------------------------------------
Major Group 38--Measuring, Analyzing, and Controlling Instruments; Photographic, Medical, and Optical Goods;
Watches and Clocks
----------------------------------------------------------------------------------------------------------------
3812................................ Search, Detection, Navigation, 750
Guidance, Aeronautical, and Nautical
Systems and Instruments.
3821................................ Laboratory Apparatus and Furniture.... 500
3822................................ Automatic Controls for Regulating 500
Residential and Commercial
Environments and Appliances.
3823................................ Industrial Instruments for 500
Measurement, Display, and Control of
Process Variables; and Related
Products.
3824................................ Totalizing Fluid Meters and Counting 500
Devices.
3825................................ Instruments for Measuring and Testing 500
of Electricity and Electrical Signals.
3826................................ Laboratory Analytical Instruments..... 500
3827................................ Optical Instruments and Lenses........ 500
3829................................ Measuring and Controlling Devices, 500
N.E.C.
3841................................ Surgical and Medical Instruments and 500
Apparatus.
3842................................ Orthopedic, Prosthetic, and Surgical 500
Appliances and Supplies.
3843................................ Dental Equipment and Supplies......... 500
3844................................ X-Ray Apparatus and Tubes and Related 500
Irradiation Apparatus.
3845................................ Electromedical and Electrotherapeutic 500
Apparatus.
3851................................ Ophthalmic Goods...................... 500
3861................................ Photographic Equipment and Supplies... 500
3873................................ Watches, Clocks, Clockwork Operated 500
Devices, and Parts.
----------------------------------------------------------------------------------------------------------------
Major Group 39--Miscellaneous Manufacturing Industries
----------------------------------------------------------------------------------------------------------------
3911................................ Jewelry, Precious Metal............... 500
3914................................ Silverware, Plated Ware, and Stainless 500
Steel Ware.
3915................................ Jewelers' Findings and Materials, and 500
Lapidary Work.
3931................................ Musical Instruments................... 500
3942................................ Dolls and Stuffed Toys................ 500
3944................................ Games, Toys, and Children's Vehicles, 500
Except Dolls and Bicycles.
3949................................ Sporting and Athletic Goods, N.E.C.... 500
3951................................ Pens, Mechanical Pencils, and Parts... 500
3952................................ Lead Pencils, Crayons, and Artists' 500
Materials.
3953................................ Marking Devices....................... 500
[[Page 31633]]
3955................................ Carbon Paper and Inked Ribbons........ 500
3961................................ Costume Jewelry and Costume Novelties, 500
Except Precious Metal.
3965................................ Fasteners, Buttons, Needles, and Pins. 500
3991................................ Brooms and Brushes.................... 500
3993................................ Signs and Advertising Specialties..... 500
3995................................ Burial Caskets........................ 500
3996................................ Linoleum, Asphalted-Felt-Base, and 750
Other Hard Surface Floor Coverings,
N.E.C..
3999................................ Manufacturing Industries, N.E.C....... 500
----------------------------------------------------------------------------------------------------------------
Division E--Transportation, Communications Electric, Gas, and Sanitary Services
----------------------------------------------------------------------------------------------------------------
Major Group 40--Railroad Transportation
----------------------------------------------------------------------------------------------------------------
4011................................ Railroads, Line-Haul Operating........ 1,500
4013................................ Railroad Switching and Terminal 500
Establishments.
----------------------------------------------------------------------------------------------------------------
Major Group 41--Local and Suburban Transit and Interurban Highway Passenger Transportation
----------------------------------------------------------------------------------------------------------------
4111................................ Local and Suburban Transit............ $5.0
4119................................ Local Passenger Transportation, N.E.C. $5.0
4121................................ Taxicabs.............................. $5.0
4131................................ Intercity and Rural Bus Transportation $5.0
4141................................ Local Bus Charter Service............. $5.0
4142................................ Bus Charter Service, Except Local..... $5.0
4151................................ School Buses.......................... $5.0
4173................................ Terminal and Service Facilities for $5.0
Motor Vehicle Passenger
Transportation.
----------------------------------------------------------------------------------------------------------------
Major Group 42--Motor Freight Transportation and Warehousing
----------------------------------------------------------------------------------------------------------------
4212................................ Local Trucking Without Storage........ $18.5
Except.............................. Garbage and Refuse Collection, Without $6.0
Disposal.
4213................................ Trucking, Except Local................ $18.5
4214................................ Local Trucking With Storage........... $18.5
4215................................ Courier Services, Except by Air....... $18.5
4221................................ Farm Product Warehousing and Storage.. $18.5
4222................................ Refrigerated Warehousing and Storage.. $18.5
4225................................ General Warehousing and Storage....... $18.5
4226................................ Special Warehousing and Storage, $18.5
N.E.C..
4231................................ Terminal and Joint Terminal $5.0
Maintenance Facilities for Motor
Freight Transportation.
----------------------------------------------------------------------------------------------------------------
Major Group 44--Water Transportation
----------------------------------------------------------------------------------------------------------------
4412................................ Deep Sea Foreign Transportation of 500
Freight.
4424................................ Deep Sea Domestic Transportation of 500
Freight.
4432................................ Freight Transportation on the Great 500
Lakes--St. Lawrence Seaway.
4449................................ Water Transportation of Freight, 500
N.E.C..
4481................................ Deep Sea Transportation of Passengers, 500
Except by Ferry.
4482................................ Ferries............................... 500
4489................................ Water Transportation of Passengers, 500
N.E.C..
4491................................ Marine Cargo Handling................. $18.5
4492................................ Towing and Tugboat Services........... $5.0
4493................................ Marinas............................... $5.0
4499................................ Water Transportation Services, N.E.C.. $5.0
Except.............................. Offshore Marine Water Transportation $20.5
Services.
----------------------------------------------------------------------------------------------------------------
Major Group 45--Transportation by Air
----------------------------------------------------------------------------------------------------------------
4512................................ Air Transportation, Scheduled......... 1,500
4513................................ Air Courier Services.................. 1,500
4522................................ Air Transportation, Nonscheduled,..... 1,500
Except.............................. Offshore Marine Air Transportation $20.5
Services.
4581................................ Airports, Flying Fields, and Airport $5.0
Terminal Services.
----------------------------------------------------------------------------------------------------------------
Major Group 46--Pipelines, Except Natural Gas
----------------------------------------------------------------------------------------------------------------
4612................................ Crude Petroleum Pipelines............. 1,500
4613................................ Refined Petroleum Pipelines........... 1,500
[[Page 31634]]
4619................................ Pipelines, N.E.C...................... $25.0
----------------------------------------------------------------------------------------------------------------
Major Group 47--Transportation Services
----------------------------------------------------------------------------------------------------------------
4724................................ Travel Agencies....................... $1.0 \6\
4725................................ Tour Operators........................ $5.0
4729................................ Arrangement of Passenger $5.0
Transportation, N.E.C..
4731................................ Arrangement of Transportation of $18.5
Freight and Cargo.
4741................................ Rental of Railroad Cars............... $5.0
4783................................ Packing and Crating................... $18.5
4785................................ Fixed Facilities and Inspection and $5.0
Weighing Services for Motor Vehicle
Transportation.
4789................................ Transportation Services, N.E.C........ $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 48--Communications
----------------------------------------------------------------------------------------------------------------
4812................................ Radiotelephone Communications......... 1,500
4813................................ Telephone Communications, Except 1,500
Radiotelephone.
4822................................ Telegraph and Other Message $5.0
Communications.
4832................................ Radio Broadcasting Stations........... $5.0
4833................................ Television Broadcasting Stations...... $10.5
4841................................ Cable and Other Pay Television $11.0
Services.
4899................................ Communications Services, N.E.C........ $11.0
----------------------------------------------------------------------------------------------------------------
Major Group 49--Electric, Gas, and Sanitary Services
----------------------------------------------------------------------------------------------------------------
4911................................ Electric Services..................... 4 million megawatt hrs.
4922................................ Natural Gas Transmission.............. $5.0
4923................................ Gas Transmission and Distribution..... $5.0
4924................................ Natural Gas Distribution.............. 500
4925................................ Mixed, Manufactured, or Liquefied $5.0
Petroleum.
.................................. Gas Production and/or Distribution....
4931................................ Electric and Other Services Combined.. $5.0
4932................................ Gas and Other Services Combined....... $5.0
4939................................ Combination Utilities, N.E.C.......... $5.0
4941................................ Water Supply.......................... $5.0
4952................................ Sewerage Systems...................... $5.0
4953................................ Refuse Systems........................ $6.0
4959................................ Sanitary Services, N.E.C.............. $5.0
4961................................ Steam and Air-Conditioning Supply..... $9.0
4971................................ Irrigation Systems.................... $5.0
----------------------------------------------------------------------------------------------------------------
Division F--Wholesale Trade
----------------------------------------------------------------------------------------------------------------
(Not Applicable to Government procurement of supplies. The nonmanufacturer size standard of 500 employees shall
be used for purposes of Government procurement of supplies.)
----------------------------------------------------------------------------------------------------------------
Major Group 50--Wholesale Trade--Durable Goods
----------------------------------------------------------------------------------------------------------------
5012................................ Automobiles and Other Motor Vehicles.. 100
5013................................ Motor Vehicle Supplies and New Parts.. 100
5014................................ Tires and Tubes....................... 100
5015................................ Motor Vehicle Parts, Used............. 100
5021................................ Furniture............................. 100
5023................................ Homefurnishings....................... 100
5031................................ Lumber, Plywood, Millwork, and Wood 100
Panels.
5032................................ *Brick, Stone, and Related 100
Construction Materials.
5033................................ Roofing, Siding, and Insulation 100
Materials.
5039................................ Construction Materials, N.E.C......... 100
5043................................ Photographic Equipment and Supplies... 100
5044................................ Office Equipment...................... 100
5045................................ Computers and Computer Peripheral 100
Equipment and Software.
5046................................ Commercial Equipment, N.E.C........... 100
5047................................ Medical, Dental, and Hospital 100
Equipment and Supplies.
5048................................ Ophthalmic Goods...................... 100
5049................................ Professional Equipment and Supplies, 100
N.E.C..
5051................................ Metals Service Centers and Offices.... 100
5052................................ Coal and Other Minerals and Ores...... 100
[[Page 31635]]
5063................................ Electrical Apparatus and Equipment, 100
Wiring Supplies, and Construction
Materials.
5064................................ *Electrical Appliances, Television and 100
Radio Sets.
5065................................ Electronic Parts and Equipment, N.E.C. 100
5072................................ Hardware.............................. 100
5074................................ Plumbing and Heating Equipment and 100
Supplies (Hydronics).
5075................................ Warm Air Heating and Air-Conditioning 100
Equipment and Supplies.
5078................................ Refrigeration Equipment and Supplies.. 100
5082................................ Construction and Mining (Except 100
Petroleum) Machinery and Equipment.
5083................................ Farm and Garden Machinery and 100
Equipment.
5084................................ Industrial Machinery and Equipment.... 100
5085................................ Industrial Supplies................... 100
5087................................ Service Establishment Equipment and 100
Supplies.
5088................................ Transportation Equipment and Supplies, 100
Except Motor Vehicles.
5091................................ Sporting and Recreational Goods and 100
Supplies.
5092................................ Toys and Hobby Goods and Supplies..... 100
5093................................ Scrap and Waste Materials............. 100
5094................................ Jewelry, Watches, Precious Stones, and 100
Precious Metals.
5099................................ Durable Goods, N.E.C.................. 100
----------------------------------------------------------------------------------------------------------------
Major Group 51--Wholesale Trade--Nondurable Goods
----------------------------------------------------------------------------------------------------------------
5111................................ Printing and Writing Paper............ 100
5112................................ Stationery and Office Supplies........ 100
5113................................ Industrial and Personal Service Paper. 100
5122................................ Drugs, Drug Proprietaries, and 100
Druggists' Sundries.
5131................................ Piece Goods, Notions, and Other Dry 100
Goods.
5136................................ Men's and Boys' Clothing and 100
Furnishings.
5137................................ Women's, Children's, and Infants' 100
Clothing and Accessories.
5139................................ Footwear.............................. 100
5141................................ Groceries, General Line............... 100
5142................................ Packaged Frozen Foods................. 100
5143................................ Dairy Products, Except Dried or Canned 100
5144................................ Poultry and Poultry Products.......... 100
5145................................ Confectionery......................... 100
5146................................ Fish and Seafood...................... 100
5147................................ Meats and Meat Products............... 100
5148................................ Fresh Fruits and Vegetables........... 100
5149................................ Groceries and Related Products, N.E.C. 100
5153................................ Grain and Field Beans................. 100
5154................................ Livestock............................. 100
5159................................ Farm-Product Raw Materials, N.E.C..... 100
5162................................ Plastics Materials and Basic Forms and 100
Shapes.
5169................................ Chemical and Allied Products, N.E.C... 100
5171................................ Petroleum Bulk Stations and Terminals. 100
5172................................ Petroleum and Petroleum Products 100
Wholesalers, Except Bulk Stations and
Terminals.
5181................................ Beer and Ale.......................... 100
5182................................ Wine and Distilled Alcoholic Beverages 100
5191................................ Farm Supplies......................... 100
5192................................ Books, Periodicals, and Newspapers.... 100
5193................................ Flowers, Nursery Stock, and Florists' 100
Supplies.
5194................................ Tobacco and Tobacco Products.......... 100
5198................................ Paints, Varnishes, and Supplies....... 100
5199................................ Nondurable Goods, N.E.C............... 100
----------------------------------------------------------------------------------------------------------------
Division G--Retail Trade
(Not Applicable to Government procurement of supplies.
The nonmanufacturer size standard of 500 employees shall be used for purposes of Government procurement of
supplies.)
----------------------------------------------------------------------------------------------------------------
Major Group 52--Building Materials, Hardware, Garden Supply, and Mobile Home Dealers
----------------------------------------------------------------------------------------------------------------
5211................................ Lumber and Other Building Materials $5.0
Dealers.
5231................................ Paint, Glass, and Wallpaper Stores.... $5.0
5251................................ Hardware Stores....................... $5.0
5261................................ Retail Nurseries, Lawn and Garden $5.0
Supply Stores.
5271................................ Mobile Home Dealers................... $9.5
----------------------------------------------------------------------------------------------------------------
Major Group 53--General Merchandise Stores
----------------------------------------------------------------------------------------------------------------
5311................................ Department Stores..................... $20.0
[[Page 31636]]
5331................................ Variety Stores........................ $8.0
5399................................ Miscellaneous General Merchandise $5.0
Stores.
----------------------------------------------------------------------------------------------------------------
Major Group 54--Food Stores
----------------------------------------------------------------------------------------------------------------
5411................................ Grocery Stores........................ $20.0
5421................................ Meat and Fish (Seafood) Markets, $5.0
Including Freezer Provisioners.
5431................................ Fruit and Vegetable Markets........... $5.0
5441................................ Candy, Nut, and Confectionery Stores.. $5.0
5451................................ Dairy Products Stores................. $5.0
5461................................ Retail Bakeries....................... $5.0
5499................................ Miscellaneous Food Stores............. $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 55--Automotive Dealers and Gasoline Service Stations
----------------------------------------------------------------------------------------------------------------
5511................................ Motor Vehicle Dealers (New and Used).. $21.0
5521................................ Motor Vehicle Dealers (Used Only)..... $17.0
5531................................ Auto and Home Supply Stores........... $5.0
5541................................ Gasoline Service Stations............. $6.5
5551................................ Boat Dealers.......................... $5.0
5561................................ Recreational Vehicle Dealers.......... $5.0
5571................................ Motorcycle Dealers.................... $5.0
5599................................ Automotive Dealers, N.E.C............. $5.0
Except.............................. Aircraft Dealers, Retail.............. $7.5
----------------------------------------------------------------------------------------------------------------
Major Group 56--Apparel and Accessory Stores
------------------------------------------------------------------------------
FR Doc. 96-14523 Federal Acquisition Regulation; Small Business Size Standards
----------------------------------
5611................................ Men's and Boys' Clothing and Accessory $6.5
Stores.
5621................................ Women's Clothing Stores............... $6.5
5632................................ Women's Accessory and Specialty Stores $5.0
5641................................ Children's and Infants' Wear Stores... $5.0
5651................................ Family Clothing Stores................ $6.5
5661................................ Shoe Stores........................... $6.5
5699................................ Miscellaneous Apparel and Accessory $5.0
Stores.
----------------------------------------------------------------------------------------------------------------
Major Group 57--Home Furniture, Furnishings, and Equipment Stores
----------------------------------------------------------------------------------------------------------------
5712................................ Furniture Stores...................... $5.0
5713................................ Floor Covering Stores................. $5.0
5714................................ Drapery, Curtain, and Upholstery $5.0
Stores.
5719................................ Miscellaneous Homefurnishings Stores.. $5.0
5722................................ Household Appliance Stores............ $6.5
5731................................ Radio, Television, and Consumer $6.5
Electronics Stores.
5734................................ Computer and Computer Software Stores. $6.5
5735................................ Record and Prerecorded Tape Stores.... $5.0
5736................................ Musical Instrument Stores............. $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 58--Eating and Drinking Places
----------------------------------------------------------------------------------------------------------------
5812................................ Eating Places......................... $5.0
Except.............................. Food Service, Institutional........... $15.0
5813................................ Drinking Places (Alcoholic Beverages). $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 59--Miscellaneous Retail
----------------------------------------------------------------------------------------------------------------
5812................................ Drug Stores and Proprietary Stores.... $5.0
5821................................ Liquor Stores......................... $5.0
5832................................ Used Merchandise Stores............... $5.0
5841................................ Sporting Goods Stores and Bicycle $5.0
Shops.
5842................................ Book Stores........................... $5.0
5843................................ Stationery Stores..................... $5.0
5844................................ Jewelry Stores........................ $5.0
5845................................ Hobby, Toy, and Game Shops............ $5.0
5846................................ Camera and Photographic Supply Stores. $5.0
5847................................ Gift, Novelty, and Souvenir Shops..... $5.0
5848................................ Luggage and Leather Goods Stores...... $5.0
5849................................ Sewing, Needlework, and Piece Goods $5.0
Stores.
[[Page 31637]]
5861................................ Catalog and Mail-Order Houses......... $18.5
5862................................ Automatic Merchandising Machine $5.0
Operators.
5863................................ Direct Selling Establishments......... $5.0
5883................................ Fuel Oil Dealers...................... $9.0
5884................................ Liquefied Petroleum Gas (Bottled Gas) $5.0
Dealers...
5889................................ Fuel Dealers, N.E.C................... $5.0
5892................................ Florists.............................. $5.0
5893................................ Tobacco Stores and Stands............. $5.0
5894................................ News Dealers and Newsstands........... $5.0
5895................................ Optical Goods Stores.................. $5.0
5899................................ Miscellaneous Retail Stores, N.E.C.... $5.0
----------------------------------------------------------------------------------------------------------------
Division H--Finance, Insurance, and Real Estate
----------------------------------------------------------------------------------------------------------------
Major Group 60--Depository Institutions
----------------------------------------------------------------------------------------------------------------
6021................................ National Commercial Banks............. $100 Million in Assets\7\
6022................................ State Commercial Banks................ $100 Million in Assets\7\
6029................................ Commercial Banks, N.E.C............... $100 Million in Assets\7\
6035................................ Savings Institutions, Federally $100 Million in Assets\7\
Chartered.
6036................................ Savings Institutions, Not Federally $100 Million in Assets\7\
Chartered.
6061................................ Credit Unions, Federally Chartered.... $100 Million in Assets\7\
6062................................ Credit Unions, Not Federally Chartered $100 Million in Assets\7\
6081................................ Branches and Agencies of Foreign Banks $100 Million in Assets\7\
6082................................ Foreign Trade and International Banks. $100 Million in Assets\7\
6091................................ Nondeposit Trust Facilities........... $5.0
6099................................ Functions Related to Depositor $5.0
Banking, N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 61--Nondepository Institution
----------------------------------------------------------------------------------------------------------------
6141................................ Personal Credit Institutions.......... $5.0
6153................................ Short-Term Business Credit $5.0 *
Institutions, Except Agriculture.
6158................................ Miscellaneous Business Credit $5.0
Institutions.
6162................................ Mortgage Bankers and Loan $5.0
Correspondents.
6163................................ Loan Brokers.......................... $5.0
Major Group 62--Security and Commodity Brokers, Dealers, Exchanges and Services
----------------------------------------------------------------------------------------------------------------
6211................................ Security Brokers, Dealers and $5.0
Flotation Companies.
6221................................ Commodity Contracts Brokers and $5.0
Dealers.
6231................................ Security and Commodity Exchanges...... $5.0
6282................................ Investment Advice..................... $5.0
6289................................ Services Allied With the Exchange of $5.0
Securities or Commodities, N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 63--Insurance Carriers
----------------------------------------------------------------------------------------------------------------
6311................................ Life Insurance........................ $5.0
6321................................ Accident and Health Insurance......... $5.0
6324................................ Hospital and Medical Service Plans.... $5.0
6331................................ Fire, Marine, and Casualty Insurance
1,500.
6351................................ Surety Insurance...................... $5.0
6361................................ Title Insurance....................... $5.0
6371................................ Pension, Health and Welfare Funds..... $5.0
6399................................ Insurance Carriers, N.E.C............. $5.0
----------------------------------------------------------------------------------------------------------------
[[Page 31638]]
Major Group 64--Insurance Agents, Brokers, and Service
----------------------------------------------------------------------------------------------------------------
6411................................ Insurance Agents, Brokers, and Service $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 65--Real Estate
----------------------------------------------------------------------------------------------------------------
6512................................ Operators of Nonresidential Buildings. $5.0
6513................................ Operators of Apartment Buildings...... $5.0
6514................................ Operators of Dwellings Other Than $5.0
Apartment Buildings.
6515................................ Operators of Residential Mobile Home $5.0
Sites,.
Except.............................. Leasing of Building Space to Federal $15.0 \8\
Government by Owners.
6517................................ Lessors of Railroad Property.......... $5.0
6519................................ Lessors of Real Property, N.E.C....... $5.0
6531................................ Real Estate Agents and Managers....... $1.5 \6\
6541................................ Title Abstract Offices................ $5.0
6552................................ Land Subdividers and Developers, $5.0
Except Cemeteries.
6553................................ Cemetery Subdividers and Developers... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 67--Holding and Other Investment Offices
----------------------------------------------------------------------------------------------------------------
6712................................ Offices of Bank Holding Companies..... $5.0
6719................................ Offices of Holding Companies, N.E.C... $5.0
6722................................ Management Investment Offices, Open- $5.0
End.
6726................................ Unit Investment Trusts, Face-Amount $5.0
Certificate Offices, and Closed-End
Management Investment Offices.
6732................................ Educational, Religious, and Charitable $5.0
Trusts.
6733................................ Trusts, Except Educational, Religious, $5.0
and Charitable.
6792................................ Oil Royalty Traders................... $5.0
6794................................ Patent Owners and Lessors............. $5.0
6798................................ Real Estate Investment Trusts......... $5.0
6799................................ Investors, N.E.C...................... $5.0
----------------------------------------------------------------------------------------------------------------
Division I--Services
----------------------------------------------------------------------------------------------------------------
Major Group 70--Hotels, Rooming Houses, Camps, and Other Lodging Places
----------------------------------------------------------------------------------------------------------------
7011................................ Hotels and Motels..................... $5.0
7021................................ Rooming and Boarding Houses........... $5.0
7032................................ Sporting and Recreational Camps....... $5.0
7033................................ Recreational Vehicle Parks and $5.0
Campsites.
7041................................ Organization Hotels and Lodging $5.0
Houses, on Membership Basis.
----------------------------------------------------------------------------------------------------------------
Major Group 72--Personal Services
----------------------------------------------------------------------------------------------------------------
7211................................ Power Laundries, Family and Commercial $10.5
7212................................ Garment Pressing, and Agents for $5.0
Laundries and Drycleaners.
7213................................ Linen Supply.......................... $10.5
7215................................ Coin-Operated Laundries and $5.0
Drycleaning.
7216................................ Drycleaning Plants, Except Rug $3.5
Cleaning.
7217................................ Carpet and Upholstery Cleaning........ $3.5
7218................................ Industrial Launderers................. $10.5
7219................................ Laundry and Garment Services, N.E.C... $5.0
7221................................ Photographic Studios, Portrait........ $5.0
7231................................ Beauty Shops.......................... $5.0
7241................................ Barber Shops.......................... $5.0
7251................................ Shoe Repair Shops and Shoeshine $5.0
Parlors.
7261................................ Funeral Service and Crematories....... $5.0
7291................................ Tax Return Preparation Services....... $5.0
7299................................ Miscellaneous Personal Services, N.E.C $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 73--Business Services
----------------------------------------------------------------------------------------------------------------
7311................................ Advertising Agencies.................. $5.0 \6\
7312................................ Outdoor Advertising Services.......... $5.0 \6\
7313................................ Radio, Television, and Publishers' $5.0 \6\
Advertising Representatives.
7319................................ Advertising, N.E.C.................... $5.0 \6\
7322................................ Adjustment and Collection Services.... $5.0
[[Page 31639]]
7323................................ Credit Reporting Services............. $5.0
7331................................ Direct Mail Advertising Services...... $5.0
7334................................ Photocopying and Duplicating Services. $5.0
7335................................ Commercial Photography................ $5.0
7336................................ Commercial Art and Graphic Design..... $5.0
7338................................ Secretarial and Court Reporting $5.0
Services.
7342................................ Disinfecting and Pest Control Services $5.0
7349................................ Building Cleaning and Maintenance $12.0
Services, N.E.C.
7352................................ Medical Equipment Rental and Leasing.. $5.0
7353................................ Heavy Construction Equipment Rental $5.0
and Leasing.
7359................................ Equipment Rental and Leasing, N.E.C... $5.0
7361................................ Employment Agencies................... $5.0
7363................................ Help Supply Services.................. $5.0
7371................................ Computer Programming Services......... $18.0
7372................................ Prepackaged Software.................. $18.0
7373................................ Computer Integrated Systems Design.... $18.0
7374................................ Computer Processing and Data $18.0
Preparation and Processing Services.
7375................................ Information Retrieval Services........ $18.0
7376................................ Computer Facilities Management $18.0
Services.
7377................................ Computer Rental and Leasing........... $18.0
7378................................ Computer Maintenance and Repair....... $18.0
7379................................ Computer Related Services, N.E.C...... $18.0
7381................................ Detective, Guard, and Armored Car $9.0
Services.
7382................................ Security Systems Services............. $9.0
7383................................ News Syndicates....................... $5.0
7384................................ Photofinishing Laboratories........... $5.0
7389................................ Business Services, N.E.C.............. $5.0
Except.............................. Map Drafting Services, Mapmaking $3.5
(Including Aerial) and
Photogrammetric Mapping Services.
----------------------------------------------------------------------------------------------------------------
Major Group 75--Automotive Repair, Services, and Parking
----------------------------------------------------------------------------------------------------------------
7513................................ Truck Rental and Leasing, Without $18.5
Drivers.
7514................................ Passenger Car Rental.................. $18.5
7515................................ Passenger Car Leasing................. $18.5
7519................................ Utility Trailer and Recreational $5.0
Vehicle Rental.
7521................................ Automobile Parking.................... $5.0
7532................................ Top, Body, and Upholstery Repair Shops $5.0
and Paint Shops.
7533................................ Automotive Exhaust System Repair Shops $5.0
7534................................ Tire Retreading and Repair Shops...... $10.5
7536................................ Automotive Glass Replacement Shops.... $5.0
7537................................ Automotive Transmission Repair Shops.. $5.0
7538................................ General Automotive Repair Shops....... $5.0
7539................................ Automotive Repair Shops, N.E.C........ $5.0
7542................................ Carwashes............................. $5.0
7549................................ Automotive Services, Except Repair and $5.0
Carwashes.
----------------------------------------------------------------------------------------------------------------
Major Group 76--Miscellaneous Repair Services
----------------------------------------------------------------------------------------------------------------
7622................................ Radio and Television Repair Shops..... $5.0
7623................................ Refrigeration and Air-Conditioning $5.0
Service and Repair Shops.
7629................................ Electrical and Electronic Repair $5.0
Shops, N.E.C..
7631................................ Watch, Clock, and Jewelry Repair...... $5.0
7641................................ Reupholstery and Furniture Repair..... $5.0
7692................................ Welding Repair........................ $5.0
7694................................ Armature Rewinding Shops.............. $5.0
7699................................ Repair Shops and Related Services, $5.0\9\
N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 78--Motion Pictures
----------------------------------------------------------------------------------------------------------------
7812................................ Motion Picture and Video Tape $21.5
Production.
7819................................ Services Allied to Motion Picture $21.5
Production.
7822................................ Motion Picture and Video Tape $21.5
Distribution.
7829................................ Services Allied to Motion Picture $5.0
Distribution.
7832................................ Motion Picture Theaters, Except Drive- $5.0
In.
7833................................ Drive-In Motion Picture Theaters...... $5.0
7841................................ Video Tape Rental..................... $5.0
----------------------------------------------------------------------------------------------------------------
[[Page 31640]]
Major Group 79--Amusement and Recreation Services
----------------------------------------------------------------------------------------------------------------
7911................................ Dance Studios, Schools, and Halls..... $5.0
7922................................ Theatrical Producers (Except Motion $5.0
Picture) and Miscellaneous Theatrical
Services.
7929................................ Bands, Orchestras, Actors, and Other $5.0
Entertainers and Entertainment Groups.
7933................................ Bowling Centers....................... $5.0
7941................................ Professional Sports Clubs and $5.0
Promoters.
7991................................ Physical Fitness Facilities........... $5.0
7993................................ Coin-Operated Amusement Devices....... $5.0
7996................................ Amusement Parks....................... $5.0
7997................................ Membership Sports and Recreation Clubs $5.0
7999................................ Amusement and Recreation Services, $5.0
N.E.C..
----------------------------------------------------------------------------------------------------------------
Major Group 80--Health Services
----------------------------------------------------------------------------------------------------------------
8011................................ Offices and Clinics of Doctors of $5.0
Medicine.
8021................................ Offices and Clinics of Dentists....... $5.0
8031................................ Offices and Clinics of Doctors of $5.0
Osteopathy.
8041................................ Offices and Clinics of Chiropractors.. $5.0
8042................................ Offices and Clinics of Optometrists... $5.0
8043................................ Offices and Clinics of Podiatrists.... $5.0
8049................................ Offices and Clinics of Health $5.0
Practitioners, N.E.C.
8051................................ Skilled Nursing Care Facilities....... $5.0
8052................................ Intermediate Care Facilities.......... $5.0
8059................................ Nursing and Personal Care Facilities, $5.0
N.E.C.
8062................................ General Medical and Surgical Hospitals $5.0
8063................................ Psychiatric Hospitals................. $5.0
8069................................ Specialty Hospitals, Except $5.0
Psychiatric.
8071................................ Medical Laboratories.................. $5.0
8072................................ Dental Laboratories................... $5.0
8082................................ Home Health Care Services............. $5.0
8092................................ Kidney Dialysis Centers............... $5.0
8093................................ Specialty Outpatient Facilities, $5.0
N.E.C..
8099................................ Health and Allied Services, N.E.C..... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 81--Legal Services
----------------------------------------------------------------------------------------------------------------
8111................................ Legal Services........................ $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 82--Educational Services
----------------------------------------------------------------------------------------------------------------
8211................................ Elementary and Secondary Schools...... $5.0
8221................................ Colleges, Universities, and $5.0
Professional Schools.
8222................................ Junior Colleges and Technical $5.0
Institutes.
8231................................ Libraries............................. $5.0
8243................................ Data Processing Schools............... $5.0
8244................................ Business and Secretarial Schools...... $5.0
8249................................ Vocational Schools, N.E.C............. $5.0
8299................................ Schools and Educational Services, $5.0
N.E.C..
8299................................ Flight Training Services.............. $18.5
----------------------------------------------------------------------------------------------------------------
Major Group 83--Social Services
----------------------------------------------------------------------------------------------------------------
8322................................ Individual and Family Social Services. $5.0
8331................................ Job Training and Vocational $5.0
Rehabilitation Services.
8351................................ Child Day Care Services............... $5.0
8361................................ Residential Care...................... $5.0
8399................................ Social Services, N.E.C................ $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 84--Museums, Art Galleries, and Botanical and Zoological Gardens
----------------------------------------------------------------------------------------------------------------
8412................................ Museums and Art Galleries............. $5.0
8422................................ Arboreta and Botanical or Zoological $5.0
Gardens.
----------------------------------------------------------------------------------------------------------------
Major Group 86--Membership Organizations
----------------------------------------------------------------------------------------------------------------
8611................................ Business Associations................. $5.0
[[Page 31641]]
8621................................ Professional Membership Organizations. $5.0
8631................................ Labor Unions and Similar Labor $5.0
Organizations.
8641................................ Civic, Social, and Fraternal $5.0
Associations.
8651................................ Political Organizations............... $5.0
8661................................ Religious Organizations............... $5.0
8699................................ Membership Organizations, N.E.C....... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 87--Engineering, Accounting, Research, and Related Services
----------------------------------------------------------------------------------------------------------------
8711................................ Engineering Services.................. $2.5
Except.............................. Military and Aerospace Equipment and $20.0
Military Weapons.
Except.............................. Contracts and Subcontracts for $20.0
Engineering Services Awarded Under
the National Energy Policy Act of
1992.
Except.............................. Marine Engineering and Naval $13.5
Architecture.
8712................................ Architectural Services................ $2.5
8713................................ Surveying Services.................... $2.5
8721................................ Accounting, Auditing, and Bookkeeping $6.0
Services.
8731................................ Commercial Physical and Biological 500 \10\
Research.
Except.............................. Aircraft.............................. 1,500
Except.............................. Aircraft Parts, and Auxiliary 1,000
Equipment, and Aircraft Engines and
Engine Parts.
Except.............................. Space Vehicles and Guided Missiles, 1,000
their Propulsion Units, their
Propulsion Units Parts, and their
Auxiliary Equipment and Parts.
8732................................ Commercial Economic, Sociological, and $5.0
Educational Research.
8733................................ Noncommercial Research Organizations.. $5.0
8734................................ Testing Laboratories.................. $5.0
8741................................ Management Services................... $5.0
Except.............................. Conference Management Services........ $5.06
8742................................ Management Consulting Services........ $5.0
8743................................ Public Relations Services............. $5.0
8744................................ Facilities Support Management Services $5.0 \11\
Except.............................. Base Maintenance...................... $20.0 \12\
Except.............................. Environmental Remediation Services.... 500 \13\
8748................................ Business Consulting Services, N.E.C... $5.0
----------------------------------------------------------------------------------------------------------------
Major Group 89--Services, not Elsewhere Classified
----------------------------------------------------------------------------------------------------------------
8999................................ Services, N.E.C....................... $5.0
----------------------------------------------------------------------------------------------------------------
Division K--Nonclassifiable Establishments
----------------------------------------------------------------------------------------------------------------
9999................................ Nonclassifiable Establishments........ $5.0
----------------------------------------------------------------------------------------------------------------
\1\ SIC code 1629--Dredging: To be considered small for purposes of Government procurement, a firm must perform
at least 40 percent of the volume dredged with its own equipment or equipment owned by another small dredging
concern.
\2\ SIC Division D--Manufacturing: For rebuilding machinery or equipment on a factory basis, or equivalent, use
the SIC code for a newly manufactured product. Concerns performing major rebuilding or overhaul activities do
not necessarily have to meet the criteria for being a ``manufacturer'' although the activities may be
classified under a manufacturing SIC code. Ordinary repair services or preservation are not considered
rebuilding.
\3\ SIC code 2033: For purposes of Government procurement for food canning and preserving, the standard of 500
employees excludes agricultural labor as defined in 3306(k) of the Internal Revenue Code, 26 U.S.C. 3306(k).
\4\ SIC code 2911: For purposes of Government procurement, the firm may not have more than 1,500 employees nor
more than 75,000 barrels per day capacity of petroleum-based inputs, including crude oil or bona fide
feedstocks. Capacity includes owned or leased facilities as well as facilities under a processing agreement or
an arrangement such as an exchange agreement or a throughput. The total product to be delivered under the
contract must be at least 90 percent refined by the successful bidder from either crude oil or bona fide
feedstocks.
\5\ SIC code 3011: For purposes of Government procurement, a firm is small for bidding on a contract for
pneumatic tires within Census Classification codes 30111 and 30112, provided that:
(1) The value of tires within Census Classification codes 30111 and 30112 which it manufactured in the United
States during the previous calendar year is more than 50 percent of the value of its total worldwide
manufacture,
(2) the value of pneumatic tires within Census Classification codes 30111 and 30112 comprising its total
worldwide manufacture during the preceding calendar year was less than 5 percent of the value of all such
tires manufactured in the United States during that period, and
(3) the value of the principal product which it manufactured or otherwise produced, or sold worldwide during the
preceding calendar year is less than 10 percent of the total value of such products manufactured or otherwise
produced or sold in the United States during that period.
\6\ SIC codes 4724, 6531, 7311, 7312, 7313, 7319, and 8741 (part): As measured by total revenues, but excluding
funds received in trust for an unaffiliated third party, such as bookings or sales subject to commissions. The
commissions received are included as revenue.
\7\ A financial institution's assets are determined by averaging the assets reported on its four quarterly
financial statements for the preceding year.
Assets for the purposes of this size standard means the assets defined according to the Federal Financial
Institutions Examination Council 034 call report form.
\8\ SIC code 6515: Leasing of building space to the Federal Government by Owners: For Government procurement, a
size standard of $15.0 million in gross receipts applies to the owners of building space leased to the Federal
Government. The standard does not apply to an agent.
\9\ SIC codes 7699 and 3728: Contracts for the rebuilding or overhaul of aircraft ground support equipment on a
contract basis are classified under SIC code 3728.
[[Page 31642]]
\10\ SIC code 8731: For research and development contracts requiring the delivery of a manufactured product, the
appropriate size standard is that of the manufacturing industry.
(1) Research and Development means laboratory or other physical research and development. It does not include
economic, educational, engineering, operations, systems, or other nonphysical research; or computer
programming, data processing, commercial and/or medical laboratory testing.
(2) For purposes of the Small Business Innovation Research (SBIR) program only, a different definition has been
established by law. See 121.701 of these regulations.
(3) Research and development for guided missiles and space vehicles includes evaluations and simulation, and
other services requiring thorough knowledge of complete missiles and spacecraft.
\11\ Facilities Management, a component of SIC code 8744, includes establishments, not elsewhere classified,
which provide overall management and the personnel to perform a variety of related support services in
operating a complete facility in or around a specific building, or within another business or Government
establishment. Facilities management means furnishing three or more personnel supply services which may
include, but are not limited to, secretarial services, typists, telephone answering, reproduction or
mimeograph service, mailing service, financial or business management, public relations, conference planning,
travel arrangements, word processing, maintaining files and/or libraries, switchboard operation, writers,
bookkeeping, minor office equipment maintenance and repair, or use of information systems (not programming).
\12\ SIC code 8744: (1) If one of the activities of base maintenance, as defined below, can be identified with a
separate industry and that activity (or industry) accounts for 50 percent or more of the value of an entire
contract, then the proper size standard is that of the particular industry, and not the base maintenance size
standard.
(2) ``Base Maintenance'' requires the performance of three or more separate activities in the areas of service
or special trade construction industries. If services are performed, these activities must each be in a
separate SIC code including, but not limited to, Janitorial and Custodial Service, Fire Prevention Service,
Messenger Service, Commissary Service, Protective Guard Service, and Grounds Maintenance and Landscaping
Service. If the contract requires the use of special trade contractors (plumbing, painting, plastering,
carpentry, etc.), all such special trade construction activities are considered a single activity and
classified as Base Housing Maintenance. Since Base Housing Maintenance is only one activity, two additional
activities are required for a contract to be classified as ``Base Maintenance.''
\13\ SIC code 8744: (1) For SBA assistance as a small business concern in the industry of Environmental
Remediation Services, other than for Government procurement, a concern must be engaged primarily in furnishing
a range of services for the remediation of a contaminated environment to an acceptable condition including,
but not limited to, preliminary assessment, site inspection, testing, remedial investigation, feasibility
studies, remedial design, containment, remedial action, removal of contaminated materials, storage of
contaminated materials and security and site closeouts. If one of such activities accounts for 50 percent or
more of a concern's total revenues, employees, or other related factors, the concern's primary industry is
that of the particular industry and not the Environmental Remediation Services Industry.
(2) For purposes of classifying a Government procurement as Environmental Remediation Services, the general
purpose of the procurement must be to restore a contaminated environment and also the procurement must be
composed of activities in three or more separate industries with separate SIC codes or, in some instances
(e.g., engineering), smaller sub-components of SIC codes with separate, distinct size standards. These
activities may include, but are not limited to, separate activities in industries such as: Heavy Construction;
Special Trade Construction; Engineering Services; Architectural Services; Management Services; Refuse Systems;
Sanitary Services, Not Elsewhere Classified; Local Trucking Without Storage; Testing Laboratories; and
Commercial, Physical and Biological Research. If any activity in the procurement can be identified with a
separate SIC code, or component of a code with a separate distinct size standard, and that industry accounts
for 50 percent or more of the value of the entire procurement, then the proper size standard is the one for
that particular industry, and not the Environmental Remediation Service size standard.
[FR Doc. 96-14523 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14522 Federal Acquisition Regulation; Predetermined Indirect Cost Rates
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31621-31622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14522]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 16, 42, and 52
[FAC 90-39; FAR Case 94-011; Item VII]
RIN 9000-AG92
Federal Acquisition Regulation; Predetermined Indirect Cost Rates
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to implement revisions to OMB
Circular A-21 that permit predetermined indirect cost rates for
educational institutions to be established for periods of up to four
years. This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 94-011.
SUPPLEMENTARY INFORMATION:
A. Background
On July 26, 1993, the Office of Management and Budget published
revisions to OMB Circular A-21 (58 FR 39996) which include an increase
in the period of time for which predetermined indirect cost rates for
educational institutions may be applicable. The FAR is amended to
permit use of predetermined indirect cost rates for educational
institutions for periods of up to four years, in accordance with OMB
circular A-21.
B. Regulatory Flexibility Act
This final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comment is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subparts will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 94-011), in correspondence.
C. Paperwork Reduction Act
The final rule does not impose any additional information
collection requirements which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq. However, a request
for approval of an extension of the existing information collection
requirement concerning 9000-0069, Indirect Cost Rates, is being
submitted to the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 16, 42, and 52
Government procurement.
[[Page 31622]]
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 16, 42, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR Parts 16, 42, and 52 continues
to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 16--TYPES OF CONTRACTS
2. Section 16.307 is amended by adding a sentence to the end of
paragraph (i) to read as follows:
16.307 Contract clauses.
* * * * *
(i) * * * If the contract is a facilities contract, modify
paragraph (c) by deleting the words ``Subpart 31.1'' and substituting
for them ``section 31.106.''
PART 42--CONTRACT ADMINISTRATION
3. Section 42.705-3 is amended by revising paragraphs (b)(4)(i) and
(b)(6) to read as follows:
42.705-3 Educational institutions.
* * * * *
(b) * * *
(4)(i) If predetermined rates are to be used and no rates have been
previously established for the institution's current fiscal year, the
agency shall obtain from the institution a proposal for predetermined
rates.
* * * * *
(6) Predetermined indirect cost rates shall be applicable for a
period of not more than four years. The agency shall obtain the
contractor's proposal for new predetermined rates sufficiently in
advance so that the new rates, based on current data, may be promptly
negotiated near the beginning of the new fiscal year or other period
agreed to by the parties (see paragraphs (b) and (d) of the clause at
52.216-15, Predetermined Indirect Cost Rates).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 52.216-15 is amended by revising the introductory text
and date of the clause; in the first sentence of paragraph (b) by
removing the comma after the word ``year'' and adding ``(or other
period specified in the Schedule),''; in the second sentence by
revising the word ``rate'' to read ``rates'' and removing the period at
the end of the sentence and inserting in its place ``or other period
specified in the Schedule.''; in the third sentence by revising the
word ``Negotiations'' to read ``Negotiation''; revising paragraph
(d)(3); and in paragraph (g) by inserting after the word ``year'' the
parenthetical ``(or other period specified in the Schedule)''. The
revised text read as follows:
52.216-15 Predetermined Indirect Cost Rates.
As prescribed in 16.307(i), insert the following clause:
PREDETERMINED INDIRECT COST RATES (AUG 1996)
* * * * *
(d) * * *
(3) the period for which the rates apply, and
* * * * *
[FR Doc. 96-14522 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14521 Federal Acquisition Regulation; Armed Services Pricing Manual
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31620-31621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14521]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Part 15
[FAC 90-39; FAR Case 95-027; Item VI]
RIN 9000-AG97
Federal Acquisition Regulation; Armed Services Pricing Manual
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to replace the Armed Services
Pricing Manual, as the reference guide for pricing and negotiation
personnel, with five desk references jointly prepared by the Air Force
Institute of Technology and the Federal Acquisition Institute.
[[Page 31621]]
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy F. Olson at (202) 501-3221
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-027.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 15.805-1 to replace the Armed Services
Pricing Manual, as the reference guide for pricing and negotiation
personnel, with five desk references jointly prepared by the Air Force
Institute of Technology and the Federal Acquisition Institute.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 95-027), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 15
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 15 is amended as set forth below:
1. The authority citation for 48 CFR Part 15 continues to read as
follows:
PART 15--CONTRACTING BY NEGOTIATION
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 15.805-1 is amended by revising paragraph (d) to read as
follows:
15.805-1 General.
* * * * *
(d) The Air Force Institute of Technology (AFIT) and the Federal
Acquisition Institute (FAI) jointly prepared a series of five desk
references to guide pricing and negotiation personnel. The five desk
references are: Price Analysis, Cost Analysis, Quantitative Techniques
for Contract Pricing, Advanced Issues in Contract Pricing, and Federal
Contract Negotiation Techniques. The references provide detailed
discussion and examples applying pricing policies to pricing problems.
They are to be used for instruction and professional guidance. However,
they are not directive and should be considered informational only.
Copies of the desk references are available on CD-ROM which also
contains the FAR, the FIRMR, the FTR and various other regulatory and
training materials. The CD-ROM may be purchased by annual subscription
(updated quarterly), or individually (reference ``List ID GSAFF,''
Stock No. 722-009-0000-2). The individual CD-ROMs or subscription to
the CD-ROM may be purchased from the Superintendent of Documents, U.S.
Government Printing Office, by telephone (202) 512-1800 or facsimile
(202) 512-2550, or by mail order from the Superintendent of Documents,
P.O. Box 371954, Pittsburgh, PA 15250-7954. Free copies of the desk
references are available on the World Wide Web, Internet address:
http://www.gsa.gov/staff/v/training.htm
[FR Doc. 96-14521 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14520 Federal Acquisition Regulation; Postponement of Bid Openings or Closing Dates
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31619-31620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14520]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 14, 15, and 52
[FAC 90-39; FAR Case 91-095; Item V]
RIN 9000-AF48
Federal Acquisition Regulation; Postponement of Bid Openings or
Closing Dates
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to clarify the time for
receipt of bids or proposals when an emergency or unanticipated event
interrupts normal processes at a Government installation on the date
scheduled for receipt of bids or proposals. This regulatory action was
not subject to Office of Management and Budget review under Executive
Order 12866, dated September 30, 1993, and is not a major rule under 5
U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 91-095.
SUPPLEMENTARY INFORMATION:
A. Background
A proposed rule was published in the Federal Register on November
9, 1993 (58 FR 59618). The proposed rule amended FAR 14.402-3, 15.411,
15.412, 52.214-7, and 52.215-10 to clarify policy regarding
rescheduling of the time for receipt of bids or proposals when an
emergency or unanticipated event interrupts normal Government processes
and urgent requirements do not allow time to formally extend the bid
opening or solicitation closing date. One substantive comment was
received in response to the proposed rule. After evaluation of this
comment, the Councils agreed to finalize the amendments in the proposed
rule and to make similar clarifying amendments at FAR 52.214-23,
52.214-32, 52.214-33, and 52.215-36.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., because it merely clarifies policy regarding rescheduling
of bid opening/solicitation closing dates when an emergency or
unanticipated event occurs. No comments were received on the impact of
this rule on small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 14, 15, and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 14, 15, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR Parts 14, 15, and 52 continues
to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 14--SEALED BIDDING
2. Section 14.402-3 is amended by revising paragraph (c) to read as
follows:
14.402-3 Postponement of openings.
* * * * *
(c) In the case of paragraph (a)(2) of this section, and when
urgent Government requirements preclude amendment of the solicitation
as prescribed in 14.208, the time specified for opening of bids will be
deemed to be extended to the same time of day specified in the
solicitation on the first work day on which normal Government processes
resume. In such cases, the time of actual bid opening shall be deemed
to be the time set for bid opening for the purpose of determining
``late bids'' under 14.304. A note should be made on the abstract of
bids or otherwise added to the file explaining the circumstances of the
postponement.
PART 15--CONTRACTING BY NEGOTIATION
3. Section 15.411 is amended by revising paragraph (a) to read as
follows:
15.411 Receipt of proposals and quotations.
(a) The procedures for receipt and handling of proposals and
quotations should be similar to those prescribed in 14.401. Proposals
and quotations shall be marked with the date and time of receipt.
* * * * *
4. Section 15.412 is amended by revising paragraph (b) to read as
follows:
15.412 Late proposals, modifications, and withdrawals of proposals.
* * * * *
(b) Offerors are responsible for submitting offers, and any
modifications to them, so as to reach the Government office designated
in the solicitation on time. If an emergency or unanticipated event
interrupts normal Government processes so that proposals cannot be
received at the office designated for receipt of proposals by the exact
time specified in the solicitation, and urgent Government requirements
preclude amendment of the solicitation closing date as usually
prescribed by 15.410, the
[[Page 31620]]
time specified for receipt of proposals will be deemed to be extended
to the same time of day specified in the solicitation on the first work
day on which normal Government processes resume. If no time is
specified in the solicitation, the time for receipt is 4:30 p.m., local
time, for the designated Government office on the date that proposals
are due.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 52.214-7 is amended in the provision by revising the
date in the heading and adding paragraph (h) to read as follows:
52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.
* * * * *
Late Submissions, Modifications, and Withdrawals of Bids (Aug 1996)
* * * * *
(h) If an emergency or unanticipated event interrupts normal
Government processes so as to cause postponement of the scheduled
bid opening, and urgent Government requirements preclude amendment
of the solicitation or other notice of an extension of the opening
date, the time specified for receipt of bids will be deemed to be
extended to the same time of day specified in the solicitation on
the first work day on which normal Government processes resume.
(End of provision)
6. Section 52.214-23 is amended in the provision by revising the
date in the heading and adding paragraph (g) to read as follows:
52.214-23 Late Submissions, Modifications, and Withdrawals of
Technical Proposals Under Two-Step Sealed Bidding.
* * * * *
Late Submissions, Modifications, and Withdrawals of Technical Proposals
Under Two-Step Sealed Bidding (Aug 1996)
* * * * *
(g) If an emergency or unanticipated event interrupts normal
Government processes so that technical proposals cannot be received
at the office designated for receipt of technical proposals by the
exact time specified in the solicitation, and urgent Government
requirements preclude amendment of the solicitation or other notice
of an extension of the closing date, the time specified for receipt
of technical proposals will be deemed to be extended to the same
time of day specified in the solicitation on the first work day on
which normal Government processes resume. If no time is specified in
the solicitation, the time for receipt is 4:30 p.m., local time, for
the designated Government office.
(End of provision)
7. Section 52.214-32 is amended in the provision by revising the
date in the heading and adding paragraph (f) to read as follows:
52.214-32 Late Submissions, Modifications, and Withdrawals of Bids
(Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Bids (Overseas)
(Aug 1996)
* * * * *
(f) If an emergency or unanticipated event interrupts normal
Government processes so as to cause postponement of the scheduled
bid opening, and urgent Government requirements preclude amendment
of the solicitation or other notice of an extension of the opening
date, the time specified for receipt of bids will be deemed to be
extended to the same time of day specified in the solicitation on
the first work day on which normal Government processes resume.
(End of provision)
8. Section 52.214-33 is amended in the provision by revising the
date in the heading and adding paragraph (e) to read as follows:
52.214-33 Late Submissions, Modifications, and Withdrawals of
Technical Proposals Under Two-Step Sealed Bidding (Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Technical Proposals
Under Two-Step Sealed Bidding (Overseas) (Aug 1996)
* * * * *
(e) If an emergency or unanticipated event interrupts normal
Government processes so that technical proposals cannot be received
at the office designated for receipt of technical proposals by the
exact time specified in the solicitation, and urgent Government
requirements preclude amendment of the solicitation or other notice
of an extension of the closing date, the time specified for receipt
of technical proposals will be deemed to be extended to the same
time of day specified in the solicitation on the first work day on
which normal Government processes resume. If no time is specified in
the solicitation, the time for receipt is 4:30 p.m., local time, for
the designated Government office.
(End of provision)
9. Section 52.215-10 is amended by revising the date in the heading
of the provision, and adding paragraph (i) to read as follows:
52.215-10 Late Submissions, Modifications, and Withdrawals of
Proposals.
* * * * *
Late Submissions, Modifications, and Withdrawals of Proposals (Aug
1996)
* * * * *
(i) If an emergency or unanticipated event interrupts normal
Government processes so that proposals cannot be received at the
office designated for receipt of proposals by the exact time
specified in the solicitation, and urgent Government requirements
preclude amendment of the solicitation or other notice of an
extension of the closing date, the time specified for receipt of
proposals will be deemed to be extended to the same time of day
specified in the solicitation on the first work day on which normal
Government processes resume. If no time is specified in the
solicitation, the time for receipt is 4:30 p.m., local time, for the
designated Government office.
(End of provision)
10. Section 52.215-36 is amended by revising the date in the
heading of the provision, and adding paragraph (g) to read as follows:
52.215-36 Late Submissions, Modifications, and Withdrawals of
Proposals (Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Proposals
(Overseas) (Aug 1996)
* * * * *
(g) If an emergency or unanticipated event interrupts normal
Government processes so that proposals cannot be received at the
office designated for receipt of proposals by the exact time
specified in the solicitation, and urgent Government requirements
preclude amendment of the solicitation or other notice of an
extension of the closing date, the time specified for receipt of
proposals will be deemed to be extended to the same time of day
specified in the solicitation on the first work day on which normal
Government processes resume. If no time is specified in the
solicitation, the time for receipt is 4:30 p.m., local time, for the
designated Government office.
(End of provision)
[FR Doc. 96-14520 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14519 Federal Acquisition Regulation; Implementation of Memorandum of Understanding Between the United States of America and the European Economic Community on Government Procurement and Sanctions Imposed on the European Community
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31618-31619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14519]
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DEPARTMENT OF DEFENSE
48 CFR Parts 14, 15, 17, 25, and 52
[FAC 90-39; FAR Case 93-606; Item IV]
RIN 9000-AF39
Federal Acquisition Regulation; Implementation of Memorandum of
Understanding Between the United States of America and the European
Economic Community on Government Procurement and Sanctions Imposed on
the European Community
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to implement the Memorandum of
Understanding Between the United States of America and the European
Economic Community on Government Procurement (MOU) and to implement the
sanctions imposed by the President on the European community (EC)
prohibiting the award of certain contracts for EC products, services,
and construction. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter O'Such at (202) 501-1759 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 93-606.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule was published in the Federal Register on May 28,
1993 (58 FR 31140) (FAC 90-18). Revisions based on the analysis of
public comments were incorporated in the interim rule published in FAC
90-19 as part of the implementation of the North American Free Trade
Agreement Implementation Act (FAR case 93-310) (59 FR 544, January 5,
1994). The rule was further amended by an interim rule published in FAC
90-36 to implement the Uruguay Round Agreement Act (FAR case 95-304)
(60 FR 67514, December 29, 1995).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final
[[Page 31619]]
rule, and a Final Regulatory Flexibility Analysis has been performed. A
copy of the analysis may be obtained from the FAR Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 14, 15, 17, 25, and 52
Government procurement.
Interim Rule Adopted as Final
Accordingly, the interim rule amending 48 CFR Parts 14, 15, 17, 25,
and 52, which was published at 58 FR 31140, May 28, 1993, and amended
at 59 FR 544, January 5, 1994, and 60 FR 67514, December 29, 1995, is
adopted as final without further change.
The authority citation for 48 CFR Parts 14, 15, 17, 25, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-14519 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14518 Federal Acquisition Regulation; Justification and Approval Thresholds
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31617-31618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14518]
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[[Page 31618]]
DEPARTMENT OF DEFENSE
48 CFR Part 6
[FAC 90-39; FAR Case 96-302; Item III]
RIN 9000-AH00
Federal Acquisition Regulation; Justification and Approval
Thresholds
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to raise the dollar thresholds
pertaining to approval for the use of other than full and open
competition in the acquisition process. This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 96-302.
SUPPLEMENTARY INFORMATION:
A. Background
Section 4102 of the Fiscal Year 1996 Defense Authorization Act
(Public Law 104-106) amends 10 U.S.C. 2304(f)(1)(B) and 41 U.S.C.
253(f)(1)(B) to raise the dollar thresholds at which approval for the
use of other than full and open competition must be obtained from the
competition advocate, the head of the procuring activity, or the senior
procurement executive. Section 4102 provides for approval of the
justification for other than full and open competition by (1) the
competition advocate, for proposed contracts over $500,000, but not
exceeding $10,000,000; (2) the head of the procuring activity, or
designee, for proposed contracts over $10,000,000, but not exceeding
$50,000,000; and (3) the senior procurement executive, for proposed
contracts over $50,000,000.
B. Regulatory Flexibility Act
The final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected subpart will be considered in accordance with 5
U.S.C. 610. Such comments must be submitted separately and cite 5
U.S.C. 601, et seq. (FAC 90-39, FAR case 96-302), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 6
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 6 is amended as set forth below:
PART 6--COMPETITION REQUIREMENTS
1. The authority citation for 48 CFR Part 6 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 6.304 is amended in paragraph (a)(1) by revising
``$100,000'' to read ``$500,000''; in (a)(2) by revising ``$100,000''
to read ``$500,000'' and ``$1,000,000'' to read ``$10,000,000''; in
(a)(3) introductory text by revising ``$1,000,000'' to read
``$10,000,000'' and ``$10,000,000'' to read ``$50,000,000''; and
revising (a)(4) to read as follows:
6.304 Approval of the justification.
(a) * * *
(4) For a proposed contract over $50,000,000, by the senior
procurement executive of the agency designated pursuant to the OFPP Act
(41 U.S.C. 414(3)) in accordance with agency procedures. This authority
is not delegable except in the case of the Under Secretary of Defense
(Acquisition and Technology), acting as the senior procurement
executive for the Department of Defense.
* * * * *
[FR Doc. 96-14518 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14517 Federal Acquisition Regulation; National Industrial Security Program Operating Manual (NISPOM)
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Page 31617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14517]
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DEPARTMENT OF DEFENSE
48 CFR Parts 4, 27, and 52
[FAC 90-39; FAR Case 95-004; Item II]
RIN 9000-AG95
Federal Acquisition Regulation; National Industrial Security
Program Operating Manual (NISPOM)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to reflect the applicability
of the National Industrial Security Program Operating Manual (NISPOM).
The NISPOM updates and replaces the DOD Industrial Security Manual for
Safeguarding Classified Information (DOD 5220.22-M). This regulatory
action was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993, and is not a major
rule under 5 U.S.C. 804.
EFFECTIVE DATE: August 19, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-004.
SUPPLEMENTARY INFORMATION:
A. Background
The National Industrial Security Program was established by
Executive Order 12829, ``National Industrial Security Program'' (58 FR
3479). Section 201 of the Executive order directs the Secretary of
Defense, in consultation with all affected agencies and with the
concurrence of the Secretary of Energy, the Chairman of the Nuclear
Regulatory Commission, and the Director of Central Intelligence, to
issue and maintain a National Industrial Security Program Operating
Manual.
B. Regulatory Flexibility Act
This final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comment is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected FAR subparts will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAC 90-39, FAR case 95-004), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 4, 27, and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 4, 27, and 52 are amended as set forth
below:
1. The authority citation for 48 CFR Parts 4, 27, and 52 continues
to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4--ADMINISTRATIVE MATTERS
2. Section 4.402 is amended by revising paragraphs (a) and (b); and
in paragraph (c) by removing ``Section VIII of the ISR'' and inserting
in its place ``Chapter 10 of the NISPOM''. The revised text reads as
follows:
4.402 General.
(a) Executive Order 12829, January 6, 1993 (58 FR 3479, January 8,
1993), entitled ``National Industrial Security Program'' (NISP),
establishes a program to safeguard Federal Government classified
information that is released to contractors, licensees, and grantees of
the United States Government. Executive Order 12829 amends Executive
Order 10865, February 20, 1960 (25 FR 1583, February 25, 1960),
entitled ``Safeguarding Classified Information Within Industry,'' as
amended by Executive Order 10909, January 17, 1961 (26 FR 508, January
20, 1961).
(b) The National Industrial Security Program Operating Manual
(NISPOM) incorporates the requirements of these Executive Orders. The
Secretary of Defense, in consultation with all affected agencies and
with the concurrence of the Secretary of Energy, the Chairman of the
Nuclear Regulatory Commission, and the Director of Central
Intelligence, is responsible for issuance and maintenance of this
Manual. The following DOD publications implement the program:
(1) National Industrial Security Program Operating Manual (NISPOM)
(DOD 5220.22-M).
(2) Industrial Security Regulation (ISR) (DOD 5220.22-R).
* * * * *
4.403 and 4.404 [Amended]
3. Section 4.403 is amended in paragraphs (a)(1)(i), (b)(1),
(c)(1), and (c)(2), by revising ``DISP'' to read ``NISP''; and section
4.403(c)(1) is amended in the last sentence by removing ``Section VII
of''.
3a. Section 4.404(d) is amended by revising ``DISP'' to read
``NISP''.
PART 27--PATENTS, DATA, AND COPYRIGHTS
27.207-1 [Amended]
4. Section 27.207-1 is amended in the second sentence of paragraph
(b) by removing ``Department of Defense Industrial Security Manual for
Safeguarding Classified Security Information'' and inserting in its
place ``National Industrial Security Program Operating Manual''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.204-2 [Amended]
5. Section 52.204-2 is amended by revising the introductory
paragraph to read as set forth below; by revising the date of the
clause to read ``(AUG 1996)''; and in paragraph (b)(1) of the clause by
removing ``Department of Defense Industrial Security Manual for
Safeguarding Classified Information'' and inserting in its place
``National Industrial Security Program Operating Manual''. The revised
text reads as follows:
52.204-2 Security requirements.
As prescribed in 4.404(a), insert the following clauses:
* * * * *
[FR Doc. 96-14517 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14516 Federal Acquisition Regulation; Double-Sided Copying
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31616-31617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14516]
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DEPARTMENT OF DEFENSE
48 CFR Parts 4 and 52
[FAC 90-39; FAR Case 92-050; Item I]
RIN 9000-AG41
Federal Acquisition Regulation; Double-Sided Copying
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule adopted as final with changes.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to a final rule which
amends the Federal Acquisition Regulation (FAR) to encourage
contractors to maximize the use of double-sided copying on recycled
paper when submitting written documents related to an acquisition. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993, and is
not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph De Stefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 92-050.
SUPPLEMENTARY INFORMATION:
A. Background
These revisions are based on a portion of Executive Order 12873,
Federal Acquisition, Recycling, and Waste Prevention, dated October 20,
1993 (58 FR 54911), which encourages the use of double-sided copying on
recycled paper for documents printed within the Government and under
Government contracts.
An interim rule was published in the Federal Register at 60 FR
28493, May 31, 1995, as Item I, FAC 90-27. This interim rule amended
FAR Part 4 to add a new subpart 4.3--Paper Documents, and amended FAR
Part 52 to add a clause at 52.204-4, Printing/Copying Double-Sided on
Recycled Paper. An additional amendment to section 4.304 was published
at 60 FR 34744 on July 3, 1995, to eliminate the requirement for use of
the clause at 52.204-4 in solicitations and contracts valued at or
below the simplified acquisition threshold. Further amendments have
been made in the final rule to implement Executive Order 12995 of March
25, 1996 (61 FR 13645, March 28, 1996), which amended Executive Order
12873 to revise the minimum content standards for printing and writing
paper.
Seven comments from six sources were received in response to the
interim rule. All comments were considered in developing the final
rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act, 5 U.S.C.
601, et seq., because the rule contains no mandatory requirements for
offerors or contractors. The rule encourages, but does not require, the
use of double-sided copying on recycled paper when submitting written
documents to the Government. No comments were received on the impact of
this rule on small entities during the public comment period.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 4 and 52
Government procurement.
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending CFR Parts 4 and 52, which
was published at 60 FR 28493, May 31, 1995 (FAC 90-27, Item I), and
amended at 60 FR 34744, July 3, 1995, is adopted as a final rule with
amendments at sections 4.301 and 52.204-4.
1. The authority citation for 48 CFR Parts 4 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4--ADMINISTRATIVE MATTERS
4.301 [Amended]
2. Section 4.301 is amended by removing the period at the end of
the sentence and inserting in its place ``, as amended by Executive
Order 12995, March 25, 1996.''
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.204-4 is amended by revising the date of the clause
to read ``(JUN 1996)''; in paragraph (a) of the clause by inserting
after ``October 20, 1993,'' the phrase ``as amended by Executive Order
12995, dated March 25, 1996,''; revising ``20%'' to read ``20
percent''; and by revising paragraph (b) to read as follows:
52.204-4 Printing/Copying Double-Sided on Recycled Paper.
* * * * *
PRINTING/COPYING DOUBLE-SIDED RECYCLED PAPER (JUN 1996)
* * * * *
(b) The 20 percent standard applies to high-speed copier paper,
offset paper, forms
[[Page 31617]]
bond, computer printout paper, carbonless paper, file folders, white
woven envelopes, and other uncoated printed and writing paper, such
as writing and office paper, book paper, cotton fiber paper, and
cover stock. An alternative to meeting the 20 percent postconsumer
material standard is 50 percent recovered material content of
certain industrial by-products.
(End of clause)
[FR Doc. 96-14516 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-14515 Federal Acquisition Circular 90-39 Introduction
[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31612-31616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14515]
[[Page 31611]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Ch. 1
Federal Acquisition Regulation (FAR); Final Rules
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules
and Regulations
[[Page 31612]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Circular 90-39 Introduction
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules with request
for comment.
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SUMMARY: This document summarizes the Federal Acquisition Regulation
(FAR) rules which follow it in the order listed below. The Civilian
Agency Acquisition Council and the Defense Acquisition Regulations
Council are issuing Federal Acquisition Circular (FAC) 90-39 to amend
the FAR.
DATES: For effective dates and comment dates, see separate documents
which follow. Please cite FAC 90-39 and the appropriate FAR case
number(s) in all correspondence related to the following documents.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears (in the
table below) in relation to each FAR case or subject area. For general
information, contact the FAR Secretariat, Room 4037, GS Building,
Washington, DC 20405, (202) 501-4755. Please cite FAC 90-39 and
specific FAR case number(s).
SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-39 amends
the Federal Acquisition Regulation (FAR) as specified below:
------------------------------------------------------------------------
Item- Subject- FAR case- Analyst
------------------------------------------------------------------------
I-......... Double-Sided Copying-.. 92-050- De Stefano. -
II-........ National Industrial 95-004- O'Neill. -
Security Program
Operating Manual
(NISPOM) -.
III-....... Justification and 96-302- De Stefano. -
Approval Thresholds-.
IV-........ Implementation of 93-606- O'Such. -
Memorandum of
Understanding Between
the United States of
America and the
European Economic
Community on
Government Procurement
and Sanctions Imposed
on the European
Community -.
V-......... Postponement of Bid 91-095- De Stefano.
Openings or Closing
Dates.
VI-........ Armed Services Pricing 95-027- Olson. -
Manual-.
VII-....... Predetermined Indirect 94-011- De Stefano. -
Cost Rates-.
VIII-...... Small Business Size 94-600- Klein. -
Standards-.
IX-........ Master Subcontracting 92-039- Klein. -
Plans-.
X-......... Small Business 92-302- Klein. -
Competitiveness
Demonstration Program -
.
XI-........ Use of Convict Labor-.. 93-615- O'Neill.
XII-....... Ozone Executive Order-. 93-307- De Stefano.
XIII-...... Uruguay Round (1996 95-304- O'Such. -
Code) -.
XIV-....... Implementation of the 93-310- O'Such. -
North American Free
Trade Agreement
Implementation Act -.
XV-........ Caribbean Basin 95-030- O'Such. -
Countries -.
XVI-....... Fluctuating Exchange 92-048- O'Such. -
Rates-.
XVII-...... Irrevocable Letters of 95-301- O'Neill. -
Credit and
Alternatives to Miller
Act Bonds-.
XVIII-..... Part 31 Agency 94-606- Olson. -
Supplements -.
XIX-....... Records Retention-..... 93-020- Olson.
XX-........ Legislative Lobbying 93-006- Olson. -
Costs -.
XXI-....... Travel Costs-.......... 93-022- Olson
XXII-...... Prompt Payment Overseas 92-046- Olson. -
-.
XXIII-..... Alternate Dispute 91-062/92-301- O'Neill. --
Resolution/Federal
Courts Administration
Act -.
XXIV-...... Defense Production Act 93-304- O'Neill. -
Amendments-.
XXV-....... Child Care Services-... 91-106- Klein.
XXVI-...... Quick-Closeout 95-009- Klein. -
Procedures-.
XXVII-..... Quality Assurance 92-031- Klein. -
Actions--Electronic -
Screening-.
XXVIII-.... Quality Assurance 92-027- Klein. -
Nonconformances -.
XXIX-...... Solicitation 95-603- O'Neill.
Provisions--Contract
Clauses-.
XXX-....... Contract Award--Sealed 91-031- O'Neill. -
Bidding--Construction -
.
XXXI-...... Small Business 93-305- O'Neill. -
Innovation Research
Rights in Data -.
XXXII-..... Inspection Clauses-- 92-001- Klein -
Fixed Price.
XXXIII-.... Termination for 91-102- Klein. -
Convenience -.
N/A-....... Corrections and
Technical Amendments
(1) Revision to FAR 92-617- O'Such. -
Utility Matrix (Loose-
leaf edition only) -.
(2) Table of Standard N/A- N/A.
Forms and OMB
Expiration Dates -.
------------------------------------------------------------------------
-Item I--Double-Sided Copying (FAR Case 92-050)
The interim rule published as Item I of FAC 90-27, and amended by
Item III of FAC 90-29, is revised and finalized. The interim rule added
FAR Subpart 4.3 and a clause at 52.204-4 to encourage offerors and
contractors to maximize the use of double-sided copying on recycled
paper, in accordance with Executive Order 12873. FAC 90-29 amended FAR
4.304 to eliminate the requirement for use of the clause at 52.204-4 in
acquisitions at or below the simplified acquisition threshold. The
final rule contains additional changes at 4.301 and 52.204-4 to
implement Executive Order 12995, which amended Executive Order 12873 to
revise the minimum recycled content standards for printing and writing
paper.
[[Page 31613]]
Item II--National Industrial Security Program Operating Manual
(NISPOM) (FAR Case 95-004)
This final rule amends FAR Subparts 4.4 and 27.2 and the clause at
52.204-2 to (1) replace references to the ``Defense Industrial Security
Program'' with references to the ``National Industrial Security
Program''; and (2) replace references to the ``DoD Industrial Security
Manual for Safeguarding Classified Information'' with references to the
``National Industrial Security Program Operating Manual.'' The National
Industrial Security Program has been established in accordance with
Executive Order 12829.
Item III--Justification and Approval Thresholds (FAR Case 96-302)
This final rule amends FAR 6.304 to implement Section 4102 of the
Fiscal Year 1996 Defense Authorization Act (Public Law 104-106).
Section 4102 amends 10 U.S.C. 2304(f)(1)(B) and 41 U.S.C. 253(f)(1)(B)
to raise the dollar thresholds at which approval for the use of other
than full and open competition must be obtained from the competition
advocate, the head of the procuring activity, or the senior procurement
executive. Section 4102 provides for approval of the justification for
other than full and open competition by (1) the competition advocate,
for proposed contracts over $500,000, but not exceeding $10,000,000;
(2) the head of the procuring activity, or designee, for proposed
contracts over $10,000,000, but not exceeding $50,000,000; and (3) the
senior procurement executive, for proposed contracts over $50,000,000.
Item IV--Implementation of Memorandum of Understanding Between the
United States of America and the European Economic Community on
Government Procurement and Sanctions Imposed on the European Community
(FAR Case 93-606)
The interim rule published in FAC 90-18, and amended in FACs 90-19
and 90-36, is converted to a final rule without change. The rule
amended FAR Parts 14, 15, 17, 25, and 52 to (1) implement Executive
Order 12849 which, based on a Memorandum of Understanding between the
United States and the European Community, waives the Buy American Act
in certain situations; and (2) implement certain trade sanctions
imposed on the European Community.
Item V--Postponement of Bid Openings or Closing Dates (FAR Case 91-
095)
This final rule amends FAR 14.402-3, and 15.412 and the provisions
at 52.214-7, 52.214-23, 52.214-32, 52.214-33, 52.215-10, and 52.215-36
to clarify policy regarding rescheduling of the time for receipt of
bids or proposals when an emergency or unanticipated event interrupts
normal processes at a Government installation. An editorial revision is
made at 15.411(a).
Item VI--Armed Services Pricing Manual (FAR Case 95-027)
This final rule amends FAR 15.805-1 to replace the Armed Services
Pricing Manual, as the reference guide for pricing and negotiation
personnel, with five desk references jointly prepared by the Air Force
Institute of Technology and the Federal Acquisition Institute.
Item VII--Predetermined Indirect Cost Rates (FAR Case 94-011)
This final rule amends FAR 42.705-3 and the clause at 52.216-15 to
implement revisions to OMB Circular A-21 that permit predetermined
indirect cost rates for educational institutions to be established for
periods of up to four years. An editorial revision is made at
16.307(i).
Item VIII--Small Business Size Standards (FAR Case 94-600)
This final rule revises the table at FAR 19.102 to reflect size
standards published by the Small Business Administration.
Item IX--Master Subcontracting Plans (FAR Case 92-039)
This final rule amends FAR 19.704 and the clause at 52.219-9 to
permit master subcontracting plans to be written for a three-year
period, and to emphasize that it is incumbent upon contractors to
maintain and update master plans.
Item X--Small Business Competitiveness Demonstration Program (FAR
Case 92-302)
The interim rule published as Item XIII of FAC 90-23 is converted
to a final rule without change. The rule amended FAR Subpart 19.10 to
(1) extend the Small Business Competitiveness Demonstration Program
through September 30, 1996; (2) specify that agencies may reinstate the
use of small business set-asides as necessary to meet assigned goals,
but only within the organizational unit(s) that failed to meet the
small business goals; and (3) revise the description of architectural
and engineering services as a designated industry group.
Item XI--Use of Convict Labor (FAR Case 93-615)
This final rule amends FAR Subpart 22.2 and the clause at 52.222-3
to reflect changes in the statutory restrictions on employment of
convict labor in the performance of Government contracts. The
amendments (1) remove all references to 18 U.S.C. 4082(c)(2), which now
only applies to offenses committed prior to November 1, 1987; (2)
reflect the addition of the Commonwealth of the Northern Mariana
Islands to the jurisdictions covered by Executive Order 11755; and (3)
include further information regarding the requirements of Executive
Order 11755, as amended by Executive Order 12608.
Item XII--Ozone Executive Order (FAR Case 93-307)
The interim rule published as Item III of FAC 90-27 is revised and
finalized. The rule implements Executive Order 12843 and Environmental
Protection Agency Clean Air Act regulations (40 CFR Part 82). The final
rule differs from the interim rule in that it (1) amends FAR Subpart
23.8 and the clause at 52.223-11 to replace the definitions of ``class
I substance'' and ``class II substance'' with a definition of ``ozone-
depleting substance''; and (2) amends the clause at 52.223-11 to
clarify that labeling of ozone-depleting substances shall be in
accordance with 42 U.S.C. 7671j and 40 CFR Part 82.
Item XIII--Uruguay Round (1996 Code) (FAR Case 95-304)
The interim rule published in FAC 90-36 is converted to a final
rule without further change. The rule amends FAR Parts 25 and 52 to
implement the renegotiated Government Procurement Agreement (1996 Code)
(Uruguay Round). This agreement is implemented in statute by the
Uruguay Round Agreement Act, Public Law 103-465, which amends the Trade
Agreements Act of 1979 (19 U.S.C. 2501-2582).
Item XIV--Implementation of the North American Free Trade Agreement
Implementation Act (FAR Case 93-310)
This interim rule amends the rule published in FAC 90-19 to
implement the North American Free Trade Agreement (NAFTA)
Implementation Act. This interim rule (1) adds language at FAR
25.402(g) to address the applicability of NAFTA to the acquisition of
services; (2) adds language at 27.208 to address the use of patented
technology when the patent holder is from a NAFTA country; (3) amends
the provision at 52.225- 20 to clarify procedures for evaluation of
[[Page 31614]]
offers; (4) adds an alternate to the provision at 52.225-20 and the
clause at 52.225-21 for use in acquisitions between $25,000 and
$50,000; and (5) adds a new clause at 52.225-22 for use in construction
contracts awarded outside the United States with an estimated value of
$6,500,000 or more.
Item XV--Caribbean Basin Countries (FAR Case 95-030)
This final rule amends FAR 25.402(b) to reflect the U.S. Trade
Representative's extension, through September 30, 1996, of the
designation of Caribbean Basin products as eligible products under the
Trade Agreements Act.
Item XVI--Fluctuating Exchange Rates (FAR Case 92-048)
This final rule revises FAR 25.501 and adds a new provision at
52.225-4 to address procedures for evaluation of offers priced in a
foreign currency.
Item XVII--Irrevocable Letters of Credit and Alternatives to Miller Act
Bonds (FAR Case 95-301)
This interim rule amends FAR Part 28 and the clause at 52.228-2,
and adds new clauses at 52.228-13 and 52.228-14 to (1) provide for use
of irrevocable letters of credit as an alternative to corporate or
individual sureties as security for Miller Act bonds on construction
contracts exceeding $100,000; and (2) provide alternative payment
protections for construction contracts between $25,000 and $100,000,
which are no longer subject to the Miller Act, in accordance with
Section 4104(b) of the Federal Acquisition Streamlining Act of 1994
(Public Law 103-355).
Item XVIII--Part 31 Agency Supplements (FAR Case 94-606)
This final rule amends FAR 31.101 to remove the requirement for
Civilian Agency Acquisition Council approval of agency supplements to
FAR Part 31. Approval requirements for class deviations from Part 31
remain unchanged.
Item XIX--Records Retention (FAR Case 93-020)
This final rule amends the cost principle at 31.201-2 to explicitly
state that contractors must maintain adequate cost records in order to
be reimbursed for costs claimed.
Item XX--Legislative Lobbying Costs (FAR Case 93-006)
This final rule amends FAR 31.205-22, and deletes 31.205-50, to
clarify the cost principle pertaining to legislative lobbying costs.
Item XXI--Travel Costs (FAR Case 93-022)
This final rule amends the cost principle at FAR 31.205- 46 to
specify the documentation required to support travel costs incurred by
contractors under Government contracts. These documentation
requirements are consistent with similar requirements already imposed
by Section 274 of the Internal Revenue Code for travel costs claimed
for Federal tax purposes.
Item XXII--Prompt Payment Overseas (FAR Case 92-046)
The interim rule published as Item XIII of FAC 90-20, and further
amended by Item III of FAC 90-29, is converted to a final rule without
change. The rule amended FAR 32.901 and the clauses at 52.232-25,
52.232-26, and 52.232-27 to reflect the applicability of the Prompt
Payment Act to contracts awarded and performed outside the United
States.
Item XXIII--Alternate Dispute Resolution/Federal Courts Administration
Act (FAR Cases 91-062 and 92-301)
The interim rules are converted to final rules without change. The
rules were published as Item XIV of FAC 90-20 and Item III of FAC 90-
10. The rules amend the claim certification procedures and the
Alternative Means of Dispute Resolution (ADR) procedures in FAR Part
33, and implement section 907(a) of the Federal Courts Administration
Act of 1992 (Public Law 102-572).
Item XXIV--Defense Production Act Amendments (FAR Case 93-304)
The interim rule published as Item XXIV of FAC 90-23 is converted
to a final rule without change. The rule added FAR Subpart 34.1 and a
clause at 52.234-1 to provide policy and procedures for the testing,
qualification, and use of industrial resources manufactured or
developed with assistance provided under Title III of the Defense
Production Act of 1950.
Item XXV--Child Care Services (FAR Case 91-106)
The interim rule published as Item XXVII of FAC 90-23 is converted
to a final rule without change. The rule amended FAR Subpart 37.1 to
require contracting officers to ensure that contracts for child care
services include requirements for criminal history background checks of
employees in accordance with 42 U.S.C. 13041.
Item XXVI--Quick-Closeout Procedures (FAR Case 95-009)
This final rule amends FAR 42.708 and the clauses at 52.216-7 and
52.216-13 to permit maximum use of quick contract closeout procedures.
The rule (1) permits use of quick closeout procedures if total
unsettled indirect costs allocable to any one contract do not exceed
$1,000,000; (2) and permits contracting officers to waive the 15
percent restriction on unsettled indirect costs, based upon a risk
assessment that considers certain factors.
Item XXVII--Quality Assurance Actions--Electronic Screening (FAR Case
92-031)
This final rule amends FAR 46.101 to add definitions of ``latent
defect'' and ``patent defect.''
Item XXVIII--Quality Assurance Nonconformances (FAR Case 92-027)
This final rule amends FAR Subpart 46.1 to provide standard
terminology and guidance pertaining to supplies and services that do
not meet contract requirements.
Item XXIX--Solicitation Provisions--Contract Clauses (FAR Case 95-603)
This final rule amends the provision at FAR 52.211-1 to delete the
statement that copies of specifications may be obtained from General
Services Administration Business Service Centers. Specifications are no
longer available from these centers.
Item XXX--Contract Award--Sealed Bidding--Construction (FAR Case 91-
031)
This final rule amends the provision at FAR 52.214-19 to advise
offerors that, for construction solicitations, the Government may
reject bids as nonresponsive if the prices are materially unbalanced.
This amendment is consistent with the existing language in the
provisions at 52.214-10 and 52.215- 16, which are used in solicitations
for other than construction.
Item XXXI--Small Business Innovation Research Rights in Data (FAR Case
93-305)
The interim rule published as Item XIX of FAC 90-20 is converted to
a final rule without change. The rule amended the clause at FAR 52.227-
20 to increase a small business concern's data rights retention period
from two to four years, in accordance with the Small Business
Innovation Research Program Policy Directive published by the Small
Business Administration.
[[Page 31615]]
Item XXXII--Inspection Clauses--Fixed Price (FAR Case 92-001)
This final rule amends the clauses at FAR 52.246-2, 52.246-4,
52.246-7, 52.246-12, and 52.246-13 to replace the phrase ``without
additional charge'' with the phrase ``at no increase in contract
price'' for clarity.
Item XXXIII--Termination for Convenience (FAR Case 91-102)
This final rule amends the clause at 52.249-2 to clarify language
pertaining to settlement of contract termination costs and rights of
appeal under the Disputes clause.
Corrections and Technical Amendments (Loose-leaf edition only)
Revisions to FAR Utility Matrix (FAR Case 92-617)
Section 52.301, Solicitation provisions and contract clauses
(Matrix), is amended in the Utility Services column. The matrix is not
carried in the Code of Federal Regulations and, therefore, not
published in the Federal Register. Subscribers to the loose-leaf
edition will receive matrix changes in FAC 90-39.
Table of Standard Forms and OMB Expiration Dates
Under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR)
Secretariat has obtained Office of Management and Budget (OMB)
clearance of all information collection requirements contained in the
FAR. In lieu of reissuing Standard and Optional Forms to reflect
extended OMB approval dates, and to reduce costs of reprinting forms,
FAR users should make appropriate pen-and-ink changes on any listed
forms containing expiration dates that differ from the entries
published below:
Table of Standard Forms and OMB Expiration Dates
------------------------------------------------------------------------
OMB
Standard form Edition control Expiration
No. date
------------------------------------------------------------------------
SF 24.............. Rev. 1/90.................. 9000-0045 9/30/98
SF 25.............. Rev. 1/90.................. 9000-0045 9/30/98
SF 25A............. Rev. 1/90.................. 9000-0045 9/30/98
SF 25B............. Rev. 10/83................. 9000-0045 9/30/98
SF 28.............. Rev. 1/90.................. 9000-0001 9/30/98
SF 34.............. Rev. 1/90.................. 9000-0045 9/30/98
SF 35.............. Rev. 1/90.................. 9000-0045 9/30/98
SF 119............. Rev. 1/90.................. 9000-0003 9/30/98
SF 129............. Rev. 6/90.................. 9000-0002 10/31/97
SF 254............. Rev. 11/92................. 9000-0004 3/31/99
SF 255............. Rev. 11/92................. 9000-0005 4/30/99
SF 273............. Rev. 8/90.................. 9000-0045 9/30/98
SF 274............. Rev. 8/90.................. 9000-0045 9/30/98
SF 275............. Rev. 8/90.................. 9000-0045 9/30/98
SF 294............. Rev. 10/95................. 9000-0006 3/31/98
SF 295............. Rev. 10/95................. 9000-0007 3/31/98
SF 1403............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1404............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1405............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1406............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1407............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1408............ Rev. 9/88.................. 9000-0011 10/31/97
SF 1411............ Rev. 10/95................. 9000-0013 9/30/98
SF 1413............ Rev. 6/89.................. 9000-0014 4/30/98
SF 1416............ Rev. 1/90.................. 9000-0045 9/30/98
SF 1417............ Rev. 8/90.................. 9000-0037 9/30/98
SF 1423............ Rev. 12/88................. 9000-0015 5/31/98
SF 1424............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1426............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1427............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1428............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1429............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1430............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1431............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1432............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1433............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1434............ Rev. 7/89.................. 9000-0015 5/31/98
SF 1435............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1436............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1437............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1438............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1439............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1440............ Rev. 7/89.................. 9000-0012 5/31/98
SF 1443............ Rev. 10/82................. 9000-0010 8/31/96
SF 1444............ Rev. 10/87................. 9000-0089 4/30/99
SF 1445............ Rev. 10/87................. 9000-0089 4/30/99
SF 1446............ Rev. 10/87................. 9000-0089 4/30/99
SF 1448............ 10/95 edition.............. 9000-0013 9/30/98
SF 1449............ 10/95 edition.............. 9000-0136 9/30/98
------------------------------------------------------------------------
[[Page 31616]]
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Federal Acquisition Circular Number 90-39
Federal Acquisition Circular (FAC) 90-39 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 90-39 is effective
August 19, 1996, except for Item XV which was effective September 30,
1995, and Items I, IV, VI, VIII, X, XII through XIV, XVII, XXII through
XXV, and XXXI, which are effective June 20, 1996.
Dated: May 16, 1996.
Eleanor R. Spector,
Director, Defense Procurement.
Dated: May 16, 1996.
Ida M. Ustad,
Deputy Associate Administrator for Acquisition Policy, General Services
Administration.
Dated: May 6, 1996.
L.W. Bailets,
Acting Associate Administrator for Procurement National Aeronautics and
Space Administration.
[FR Doc. 96-14515 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P
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