issue-1996-07-05•Federal Register final rules — 1996-07-05
Federal Register final rules — 1996-07-05
issue-1996-07-05Federal Register final rules — 1996-07-05Regulation
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. 96-17168 General Regulations for Areas Administered by the National Park Service and National Park System Units in Alaska
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35133-35137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17168]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 13
RIN 1024-AC21
General Regulations for Areas Administered by the National Park
Service and National Park System Units in Alaska
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: The National Park Service (NPS) is revising portions of its
general regulations for areas it administers that define the primary
scope and applicability and contain definitions for terms used in the
text of the regulations. NPS is also modifying regulations that relate
to National Park System units in Alaska. This revision clarifies the
applicability of those NPS regulations that apply in all National Park
System areas to waters subject to federal jurisdiction located within
park boundaries, including navigable waters.
In order to protect wildlife and the other values and purposes of
the National Park System, NPS developed general regulations intended to
be applicable on navigable waters located within park boundaries
irrespective of ownership of submerged lands. However, litigation
concerning a seal shot in the navigable waters of a national park
revealed that a 1987 editorial correction to 36 CFR 1.2(b), aimed at
clarifying a separate and distinct application of the regulations, had
the unforeseen and unintended effect of arguably linking federal title
to submerged lands with the exercise of management authority over
activities occurring on navigable waters. This rulemaking will clarify
the regulations and ensure the continued protection of wildlife and
other National Park System values and purposes on navigable waters
within parks, regardless of ownership of submerged lands. The revision
clarifies that NPS regulations continue to apply on navigable waters,
as they have for years. Two definitions, ``park area'' and
``boundary,'' are modified by this revision. This rulemaking clarifies
and interprets existing NPS regulatory intent, practices and policies,
and generally would not place new or additional regulatory controls on
the public.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT: Dennis Burnett, Ranger Activities
Division, National Park Service, P.O. Box 37127, Washington, D.C.
20013-7127, Telephone (202) 208-4874.
SUPPLEMENTARY INFORMATION:
Background
The NPS Organic Act of 1916 directs the Secretary of the Interior
and the NPS to manage national parks and monuments to ``conserve the
scenery and the natural and historic objects and the wild life therein
and to provide for the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment of future
generations.'' 16 U.S.C. Sec. 1. The organic act also grants the
secretary the authority to implement ``rules and regulations as he may
deem necessary or proper for the use and management of the parks,
monuments and reservations under the jurisdiction of the National Park
Service.'' 16 U.S.C. Sec. 3. In the Redwood Expansion Act of 1978,
Congress gave further direction to the secretary to ensure that:
The authorization of activities shall be construed and the
protection, management and administration of [NPS] areas shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been
established, except as may have been or shall be directly and
specifically provided by Congress. 16 U.S.C. Sec. 1a-1.
In to general regulatory authority delegated in 16 U.S.C. Sec. 3,
in 1976 Congress amended the 1970 Act for Administration (known as the
General Authorities Act) and authorized NPS to ``[p]romulgate and
enforce regulations concerning boating and other activities on or
relating to waters located within areas of the National Park System,
including waters subject to the jurisdiction of the United States.* *
*'' 16 U.S.C. Sec. 1a-2(h). ``Waters subject to the jurisdiction of the
United States'' include navigable waters. See, H. Rep. No. 1569, 94th
Cong., 2nd Sess., 4292 (1976). Under these authorities the NPS has
managed and regulated activities occurring on and in the waters of the
National Park System.
Before 1966, NPS regulations for boating, sanitation, and other
water-use regulations were scattered throughout 36 CFR parts 1 and 2.
In 1966, NPS published consolidated boating regulations as 36 CFR part
3. The regulations provided for the enforcement of U.S. Coast Guard
regulations by NPS ``on navigable waters of the United States'' located
within park boundaries (31 FR 16650). In 1983, NPS moved water-use
activity regulations from part 2 to part 3 (48 FR 30290). In addition
to regulations generally applicable in all national park areas, NPS has
promulgated special park-specific regulations that NPS enforces on and
in navigable waters within the boundaries of particular National Park
System units. See, e.g., 36 CFR 7.45(f)-(h) (Everglades National Park,
Fishing and Boating); 36 CFR 7.38(b) (Isle Royale National Park,
Underwater diving); 36 CFR 7.83(a) (Ozark National Scenic Riverways,
Boating); 36 CFR 13.65(b) (Glacier Bay National Park, Vessel
Management/Whale protection).
Applicability and Scope Provision
In 1982-83 NPS undertook a comprehensive review of general
regulations that apply in virtually all NPS administered areas (47 FR
11598). The applicability and scope provisions adopted pursuant to the
1983 rulemaking included navigable waters.
[[Page 35134]]
In that rulemaking, 36 CFR 1.2(a) provided that the regulations
contained in 36 CFR chapter 1 would apply: (1) on federally owned
waters, and (2) on waters ``controlled, * * * administered or otherwise
subject to the jurisdiction of the National Park Service. * * *'' (48
FR 30252). In some park areas, the United States holds title to the
submerged lands under navigable waters. In other park areas, the United
States does not hold title to the submerged lands beneath navigable
waters within the boundaries of the park; federal authority to regulate
within the ordinary reach of these waters is based on the commerce and
property clauses of the U.S. Constitution, not ownership. Like the
United States Coast Guard, NPS exercises authority over navigable
waters irrespective of ownership of submerged lands. 16 U.S.C. Sec. 1a-
2(h). As promulgated in 1983, 36 CFR 1.2(a)(2) reflected the
congressional intent that NPS regulations applied in these waters.
The 1983 regulations also provided that--except in park areas under
the legislative jurisdiction of the United States, where 10
specifically enumerated provisions were intended to apply regardless of
ownership--the regulations were ``not applicable on privately owned
lands and waters. * * *'' (48 FR 30252); 36 CFR 1.2(b). While 36 CFR
1.2(b) (as promulgated in 1983) was specific as to the applicability of
the 10 enumerated provisions on privately owned lands, it was silent as
to the applicability of those 10 regulations on lands and waters owned
by a state or other government entity. In 1987, in response to
questions concerning this issue, and in order to clarify the original
NPS intent (i.e., that the 10 specifically enumerated provisions were
meant to apply on all lands and waters regardless of landownership) the
term ``privately owned lands and waters'' was replaced with the term
``non-federally owned lands and waters.'' (52 FR 35238; see also, 52 FR
12037). The 1987 rulemaking emphasized that it was only an editorial
change and not a substantive change, the sole purpose of which was to
clarify the originally intended reach of the 10 enumerated provisions;
there was no change intended concerning state lands.
However, in its effort to ensure that (in areas of legislative
jurisdiction) the 10 enumerated regulations clearly apply on all ``non-
federally owned lands and waters'' within the boundaries of park areas,
the 1987 revision to section 1.2(b) inadvertently incorporated language
that seems ambiguous and could preclude park regulation of ``non-
federally owned * * * waters.'' See, 52 FR 35238, September 18, 1987.
NPS recognizes that regulations must provide an ordinary person a
reasonable opportunity to know when regulations apply. Accordingly,
this rulemaking clarifies that NPS regulations otherwise applicable
within the boundaries of a National Park System unit apply on and
within waters subject to the jurisdiction of the United States located
within that unit, including navigable waters and areas within their
ordinary reach (up to the mean high water line in places subject to the
ebb and flow of the tide, or up to the ordinary high water mark in
other places that are navigable), irrespective of ownership of
submerged lands, tidelands or lowlands, and jurisdictional status.
This rulemaking also revises the definition of ``boundary'' to
better cover the many and diverse sites that have been placed under the
care and administration of NPS. The revision provides protection to
people and property at NPS sites such as maintenance facilities and
warehouses, administrative sites, ranger stations, visitor information
centers and associated parking lots, which, though located outside a
park proper, are managed and administered by NPS as components of the
National Park System. This definition is also tailored to cover the
various NPS-administered sites in the District of Columbia. The term
``park area'' is revised to mean the same as the term ``National Park
System.'' The definition for ``National Park System'' adopted by this
rulemaking repeats the statutory definition from 16 U.S.C. Sec. 1c.
Revisions to section 13.2 in this rule serve three purposes: (1)
Paragraph (c) is revised to clarify that NPS subsistence regulations,
promulgated under the authority of the Alaska National Interest Lands
Conservation Act (ANILCA), 16 U.S.C. Sec. 3101 et seq., Titles II and
VIII, apply only ``on federally owned lands and interests therein
within park areas where subsistence is authorized;'' (2) paragraph (e)
is revised to clarify that, pursuant to proposed Sec. 1.2(a)(3), NPS
general regulations specifically apply within the reach of navigable
waters located within the boundaries of park areas in Alaska; and (3)
paragraph (e) is revised to clarify that the part 13 modifications
(that generally are relaxations of prohibitions contained in the
general regulations) also apply on the navigable waters of national
parks in Alaska (e.g., 36 CFR 13.20 (authorization for recreational
gold panning), see also, 43 CFR 36.11(d) (special authorization for
motorboat use)).
Analysis of Comments
NPS published the proposed rule in the Federal Register on December
5, 1995 (60 FR 62233). NPS received six timely comments on the proposed
rule. The State of Alaska, Office of the Attorney General and the
Alaska State Legislature; the Alaska Miners Association, Incorporated;
the International Association of Fish and Wildlife Agencies; Sierra
Club; and the National Parks and Conservation Association commented.
NPS has carefully considered each of these comments. NPS's responses to
the comments are as follows:
Legislative Jurisdiction: Ten Enumerated Regulations
One commenter supposed that adoption of this rule would make the 10
enumerated 36 CFR part 2 regulations that apply on all lands and waters
within a park that are under the legislative jurisdiction of the United
States apply on park waters (regardless of legislative jurisdiction).
Those ten regulations are:
36 CFR 2.2 Wildlife protection
36 CFR 2.3 Fishing
36 CFR 2.4 Weapons, traps and nets
36 CFR 2.13 Fires
36 CFR 2.22 (a)(2), (b) and (c) Property
36 CFR 2.30 Misappropriation of property and services
36 CFR 2.31 Trespassing, tampering and vandalism
36 CFR 2.32 Interfering with agency functions
36 CFR 2.34 Disorderly conduct
36 CFR 2.36 Gambling
NPS believes that confusion over this point stems from the fact
that the rule uses the term ``waters subject to the jurisdiction of the
United States'' in subparagraph 1.2(a)(3). NPS notes that this term may
be confused with the term ``lands and waters under the legislative
jurisdiction of the United States'' (see, e.g., 36 CFR 2.2(g); see
also, 36 CFR 4.1).
``Legislative jurisdiction'' means exclusive federal or concurrent
(state and federal) jurisdiction (see, 36 CFR Sec. 1.4 (definition of
legislative jurisdiction) and 40 U.S.C. 255 (the legislative authority
for cessions of jurisdiction)), i.e., lands and waters over which the
federal government has general lawmaking authority. The 10 enumerated
provisions of 36 CFR part 2 apply on lands and waters that are within
park boundaries and under the legislative jurisdiction of the United
States regardless of ownership (see, e.g., 36 CFR 2.2(g); see also, 36
CFR 4.1).
[[Page 35135]]
``Waters subject to the jurisdiction of the United States'' has a
different meaning, and refers to waters over which the United States
exercises federal commerce clause authority (see, H. Rep. No. 1569,
94th Cong., 2nd Sess., 4292 (1976); see also, 33 CFR parts 328-329).
This rulemaking clarifies that NPS regulations contained in 36 CFR
parts 1 through 5, part 7, and part 13 (including the 10 enumerated
regulations) apply on such waters located within park boundaries
regardless of jurisdictional status.
National Park System Units in Alaska: ANILCA Section 103
The Alaska State Legislature contends in their comments that ANILCA
Sec. 103(c) should be interpreted as superseding NPS authority to
regulate waters within park boundaries pursuant to 16 U.S.C. Sec. 1a-
2(h). The Attorney General of Alaska makes a similar contention
concerning NPS general authority to protect natural and other resources
through general regulations; the Attorney General concedes only that 16
U.S.C. Sec. 1a-2(h) permits NPS to promulgate and enforce regulations
concerning boating and related activities, and to enforce Coast Guard
regulations on navigable waters within park boundaries. In contrast,
the National Parks and Conservation Association writes that NPS has
clear authority to regulate on all waters within National Park System
areas to protect park purposes and values.
In ANILCA, Congress outlined an expansive and inclusive scope of
resource protection that was to apply within national parks in Alaska.
Congress further charged NPS to protect populations of fish and
wildlife and habitat that necessarily includes the great river systems
running through and within the parks (ANILCA Title II). NPS does not
agree with the State of Alaska's contention that ANILCA Sec. 103(c)
preempts NPS's well-established authority on navigable waters. NPS does
not think that ANILCA Sec. 103(c), which was characterized by Congress
as a minor technical provision, should be read in isolation from the
context of the whole act. ANILCA should be interpreted consistent with
its underlying protective purposes: to protect objects of ecological,
cultural, geological, historical, prehistorical, and scientific
interest.
National Park System Units in Alaska: Subsistence Uses on ``Public
Lands''
In response to a comment NPS would like to emphasize that this
rulemaking does not affect subsistence uses conducted in National Park
System units in Alaska. As adopted, subparagraph (c) of 36 CFR 13.2
provides that: ``Subpart B of this part 13 contains regulations
applicable to subsistence uses. Such regulations apply on federally
owned lands and interests therein within park areas where subsistence
is authorized.'' This revision merely moves the reference to federally
owned lands currently found in subparagraph (e) to subparagraph (c) to
maintain the status quo. Although the term ``public lands'' appeared in
the proposed rule (rather than ``federally owned lands'') NPS intended
no change. Application of Federal Subsistence Board regulations (i.e.
seasons and bag limits) to navigable waters or selected but not yet
conveyed lands is outside the scope of this rulemaking. See, 61 FR
15014, April 4, 1996.
Lands Administered Pursuant to the Terms of a Written Instrument
NPS would like to clarify that when NPS leases property and
administers the property for public-use purposes, NPS regulations
apply. If an owner/lessor wishes to retain rights or uses, the owner
should do so as part of the lease; otherwise NPS general regulations
will apply equally to the owner as they would to a third party. When
NPS administers property for public use pursuant to an easement, the
easement will define the federal interest. The scope of the acquired
federal interest will determine the regulations that would apply.
However, when NPS enters into an agreement to administer property
through a written instrument, such as a memorandum of agreement,
memorandum of understanding, or other written form (such as a national
trail certification agreement), NPS regulations will apply only to the
extent provided by the owner of the property during the term of the
agreement. The agreement document must describe the type(s) of public
use to be managed by NPS or otherwise define the scope of management
delegated by the owner to NPS. Regulations that are consistent with the
intent of the agreement will then apply.
NPS wishes to note that NPS often enters into agreements with
landowners where there is no intent by the landowner to grant--nor by
NPS to assume--regulatory control of the property.
Section-by-Section Analysis
Section 1.2 paragraph (a) is promulgated without change. This
paragraph limits the applicability of NPS regulations to within park
boundaries and interests.
Subparagraphs (a)(1) and (a)(2) provide that the regulations apply,
respectively, on lands and waters located within park system boundaries
that are federally owned, or administered as park lands by NPS (in
whole or in part) through a written instrument with the owner, party of
interest, or the person, corporation, company, organization, state or
political subdivision holding an interest in, or title to, such land. A
written instrument could be in the form of a lease or public use
easement, or a memorandum of agreement or some other written form
authorizing NPS management. Without such an agreement, NPS regulations
would not apply on non-federally owned lands within park boundaries,
the exception being particular regulations containing a provision that
makes them specifically applicable to such lands. See, e.g., 36 CFR
2.2(g) (regulation applies to lands and waters under legislative
jurisdiction within a park); see also, 36 CFR part 6 (59 FR 65948).
Subparagraph (a)(3) clearly defines and includes waters subject to
federal jurisdiction that are located within National Park System
boundaries, including navigable waters, within the scope of NPS
regulations. Subparagraph (a)(4) contains a provision for NPS to
administer lands and waters in the District of Columbia (pursuant to
the Act of March 17, 1948 (62 Stat. 81)), that was added to the former
subparagraph (2) in 1986 (51 FR 37010). The less-than-fee interests
provision, formerly subparagraph (a)(3), has been revised, renumbered
and adopted as subparagraph (a)(5). This provision encompasses scenic
easements (sometimes referred to as negative easements) and other
federal interests where NPS administration of the site is shared or
limited.
Paragraph (b) continues to limit the applicability of NPS general
regulations to federally owned lands in the absence of an agreement or
a superseding provision. Similarly, in order for NPS general
regulations to apply on Indian tribal trust lands located within
National Park System boundaries, NPS must enter into an agreement with
the benefiting Indian nation, tribe, band, or pueblo (pursuant to
proposed subparagraph (a)(2)). Without such an agreement, and
regardless of jurisdictional status, NPS authority on Indian lands
located within National Park System units is limited to federal laws
and implementing regulations made applicable at the express direction
of Congress. Paragraph (d) extends existing administrative exceptions
to include part 13 regulations.
[[Page 35136]]
Section 1.4 adopts revisions to the definitions ``boundary'' and
``park area.'' ``Boundary,'' as revised, affords comprehensive coverage
to the many and diverse sites that have been placed under the care and
administration of NPS, including those sites located in the District of
Columbia. The term ``park area'' is revised to mean the same as the
term ``National Park System.'' The definition for ``National Park
System'' repeats the statutory definition from 16 U.S.C. 1c.
Section 13.2 paragraph (c) has been revised to clarify that NPS
general subsistence regulations for Alaska apply on federally owned
lands and interests therein within park areas where subsistence is
authorized. The final rule refers to subsistence uses rather than
subsistence activities to standardize part 13 text. The term
``subsistence uses'' is defined at section 13.42(c) and used throughout
section 13, subpart B. The omission of Sitka National Historical Park
from the list of subsistence-excepted parks in the proposed rule was an
oversight that this rulemaking corrects. ANILCA does not authorize
subsistence uses in Sitka National Historical Park. Paragraph (e) is
revised to clarify that NPS general regulations (e.g., part 2), as
modified by part 13, apply to waters subject to federal jurisdiction,
including navigable waters, located within the boundaries of park areas
in Alaska.
Drafting Information
The primary authors of this revision are Michael Tiernan, Division
of Conservation and Wildlife, Office of the Solicitor, Department of
the Interior, Washington, DC, and Steve Shackelton and Russel J. Wilson
of the Alaska System Support Office and Alaska Field Office, National
Park Service. Richard G. Robbins, Division of Conservation and
Wildlife, Office of the Solicitor, Department of the Interior,
Washington, DC, also contributed.
Paperwork Reduction Act
This rule does not contain collections of information requiring
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
Compliance With Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior has
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). The economic effects of this
rulemaking are local in nature and negligible in scope.
NPS has determined and certifies pursuant to the Unfunded Mandates
Reform Act, 2 U.S.C. 1502 et seq., that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
NPS has determined that this rulemaking will not have a significant
effect on the quality of the human environment, health and safety
because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses that may compromise the nature and
characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, this rulemaking is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6, (49 FR
21438). As such, neither an Environmental Assessment (EA) nor an
Environmental Impact Statement (EIS) has been prepared.
List of Subjects
36 CFR Part 1
National parks. Reporting and recordkeeping requirements.
36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, NPS amends 36 CFR chapter I,
parts 1 and 13, as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460 l-6a(e), 462(k); D.C. Code 8-
137, 40-721 (1981).
2. Section 1.2 is amended by revising paragraphs (a), (b) and (d)
to read as follows:
Sec. 1.2 Applicability and scope.
(a) The regulations contained in this chapter apply to all persons
entering, using, visiting, or otherwise within:
(1) The boundaries of federally owned lands and waters administered
by the National Park Service;
(2) The boundaries of lands and waters administered by the National
Park Service for public-use purposes pursuant to the terms of a written
instrument;
(3) Waters subject to the jurisdiction of the United States located
within the boundaries of the National Park System, including navigable
waters and areas within their ordinary reach (up to the mean high water
line in places subject to the ebb and flow of the tide and up to the
ordinary high water mark in other places) and without regard to the
ownership of submerged lands, tidelands, or lowlands;
(4) Lands and waters in the environs of the District of Columbia,
policed with the approval or concurrence of the head of the agency
having jurisdiction or control over such reservations, pursuant to the
provisions of the Act of March 17, 1948 (62 Stat. 81);
(5) Other lands and waters over which the United States holds a
less-than-fee interest, to the extent necessary to fulfill the purpose
of the National Park Service administered interest and compatible with
the nonfederal interest.
(b) The regulations contained in parts 1 through 5, part 7, and
part 13 of this chapter do not apply on non-federally owned lands and
waters or on Indian tribal trust lands located within National Park
System boundaries, except as provided in paragraph (a) or in
regulations specifically written to be applicable on such lands and
waters.
* * * * *
(d) The regulations contained in parts 2 through 5, part 7, and
part 13 of this section shall not be construed to prohibit
administrative activities conducted by the National Park Service, or
its agents, in accordance with approved general management and resource
management plans, or in emergency operations involving threats to life,
property, or park resources.
* * * * *
3. Section 1.4 is amended in paragraph (a) by revising the
definition of Boundary, by adding a definition for National Park
System, and by revising the definition of Park area to read as follows:
Sec. 1.4 Definitions.
(a) * * *
Boundary means the limits of lands or waters administered by the
National Park Service as specified by Congress, or denoted by
presidential proclamation, or recorded in the records of a state or
political subdivision in accordance with applicable law, or published
pursuant to law, or otherwise published or posted by the National Park
Service.
* * * * *
National Park System (Park area) means any area of land and water
now
[[Page 35137]]
or hereafter administered by the Secretary of the Interior through the
National Park Service for park, monument, historic, parkway,
recreational, or other purposes.
* * * * *
Park area. See the definition for National Park System in this
section.
* * * * *
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
4. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; subpart D also
issued under 16 U.S.C. 20, 3197; Sec. 13.65(b) also issued under 16
U.S.C. 1361, 1531.
5. Section 13.2 is amended by revising paragraphs (c) and (e), to
read as follows:
Sec. 13.2 Applicability and scope.
* * * * *
(c) Subpart B of this part 13 contains regulations applicable to
subsistence uses. Such regulations apply on federally owned lands and
interests therein within park areas where subsistence is authorized.
Subsistence uses are not allowed in Kenai Fjords National Park, Katmai
National Park, Glacier Bay National Park, Klondike Gold Rush National
Historical Park, Sitka National Historical Park, and parts of Denali
National Park. The regulations in subpart B amend in part the general
regulations contained in this chapter and the regulations contained in
subpart A of this part 13.
* * * * *
(e) For purposes of this chapter, ``federally owned lands'' does
not include those land interests:
(1) Tentatively approved to the State of Alaska; or
(2) Conveyed by an interim conveyance to a Native corporation.
Dated: June 21, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-17168 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-17157 Acquisition of Citizenship; Equal Treatment of Women in Conferring Citizenship on Children Born Abroad
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35111-35112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17157]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 301
[INS No. 1736-95]
RIN 1115-AE19
Acquisition of Citizenship; Equal Treatment of Women in
Conferring Citizenship on Children Born Abroad
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Immigration and Naturalization
Service (Service) regulations by establishing procedures for certain
United States citizen women to confer citizenship on their children
born outside of the United States before noon (Eastern Standard Time)
May 24, 1934. The purpose of this rule is to ensure that all women
receive equal treatment under laws relating to nationality.
Implementation of the rule would allow for the issuance of certificates
of citizenship to certain foreign-born children previously ineligible
to acquire citizenship from their United States citizen mothers.
DATES: This interim rule is effective July 5, 1996. Written comments
must be submitted on or before September 3, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS number 1736-95
on your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
Jane B. Barker, Adjudications Officer, Adjudications Branch,
Immigration and Naturalization Service, 425 I Street, NW., Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
Prior to the enactment of the Immigration and Nationality Technical
Corrections Act of 1994 (INTCA), Public Law 103-416, dated October 25,
1994, a child born abroad before noon (Eastern Standard Time (EST) May
24, 1934, to an alien father and United States citizen mother could not
acquire United States citizenship through his or her mother. If,
however, the mother was the alien and the father was the United States
citizen, the child could become a citizen through his or her father,
pursuant to Section 1993 of Revised Statutes, February 10, 1855, 10
Stat. 604.
On May 24, 1934, Congress amended Section 1993 of the Revised
Statutes so that children born abroad to parents, only one of whom was
a United States citizen, would become citizens regardless of whether
the citizen was the father or the mother. The 1934 amendment, however,
was not retroactive. Subsection 101(a)(2) of INTCA amended the
Immigration and Nationality Act (the Act) by adding a new subsection
301(h) to provide for the acquisition of United States citizenship from
either parent for persons born abroad before noon (EST) May 24, 1934,
to parents, only one of whom is a United States citizen.
Section 301(h)
Under section 301(h) of the Act, a person born abroad before noon
(EST) May 24, 1934, to a United States citizen mother and an alien
father, may now acquire United States citizenship if his or her mother
resided in the United States prior to the person's birth. A person who
qualifies for United States citizenship under section 301(h) of the Act
shall not be subject to any provisions of law that provided for loss of
citizenship or nationality (including section 301(b) of the Act (as in
effect before October 10, 1978) and the provisos of section 201(g) of
the Nationality Act of 1940) if the person failed to come to, reside,
or be physically present in the United States.
For purposes of transmission of citizenship, section 301(h) shall
have no effect on the residence and retention requirements for those
persons born abroad to a citizen parent and an alien parent between May
24, 1934, and October 10, 1978. Section 301(h) also shall have no
effect on the validity of the citizenship of anyone who obtained United
States citizenship under section 1993 of the Revised Statutes (as in
effect before the enactment of the Act of May 24, 1934, 49 Stat. 797).
Further, section 301(h) shall not confer citizenship on, nor have any
effect on, the validity of any denaturalization, deportation, or
exclusion action against any person who is or was excludable from the
United States for participation in Nazi persecution or genocide, or who
was excluded from, or who would not have been eligible for admission to
the United States under the Displaced Persons Act of 1948 or under
section 14 of the Refugee Relief Act of 1953.
Procedures for Acquiring United States Citizenship Under Section
301(h)
A person who is eligible for benefits under section 301(h) may make
his or her citizenship claim in the United States with the Attorney
General or abroad with the Secretary of State. A person who currently
resides in the United States may file Form N-600, Application for
Certificate of Citizenship, accompanied by the fee specified in 8 CFR
103.7(b)(1), with the Service office having jurisdiction over the
applicant's place of residence, or with such other Service office as
the Commissioner may designate. The application shall be supported by
[[Page 35112]]
documentary and other evidence essential to establish the claimed
citizenship, such as birth, adoption, marriage, death, and divorce
certificates. Applicants will be notified, in writing, of the date and
time to appear for an interview. If an applicant fails to appear for a
required interview without good cause, the application will not be
approved and may be denied. Upon completion of the interview, if all
requirements are met, the applicant will be required to take the oath
of allegiance, as prescribed under 8 CFR part 337, and will be issued a
certificate of citizenship.
A person who currently resides abroad and is eligible for
citizenship under section 301(h) may proceed to a United States embassy
or consulate for an interview under oath concerning his or her claim of
citizenship, in accordance with such regulations as may be prescribed
by the Secretary of State.
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comment, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reason for immediate implementation of this interim rule is as follows:
This rule provides a benefit to the public by ensuring that all women
receive equal treatment under laws relating to nationality.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic effect on a substantial number of
small entities because of the following factors. This interim rule
establishes procedures for certain United States citizen women to
confer citizenship on their children born outside of the United States
before May 24, 1934. The affected parties are not small entities, and
the effect of the regulation is not an economic one.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. The clearance number for
this collection is contained in 8 CFR part 299.5, Display of Control
Numbers.
List of Subjects in 8 CFR Part 301
Citizenship and naturalization, Reporting and recordkeeping
requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended by adding a new part 301 to subchapter C to read
as follows:
PART 301--NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
Sec.
301.0 Procedures.
Authority: 8 U.S.C. 1103, 1401; 8 CFR part 2.
Sec. 301.1 Procedures.
(a) Application. (1) A person residing in the United States who
desires to become a United States citizen pursuant to section 301(h) of
the Act shall submit an application on Form N-600, Application for
Certificate of Citizenship, as provided in 8 CFR part 341. Such
application shall be filed with the Service office having jurisdiction
over the applicant's place of residence, or with such other Service
office as the Commissioner may designate. It must be accompanied by the
fee specified in 8 CFR 103.7(b)(1). The application also must be
accompanied by supporting documentary and other evidence essential to
establish the claimed citizenship, such as birth, adoption, marriage,
death, and divorce certificates. The applicant will be notified in
writing when and where to appear before a Service officer for
examination on his or her application.
(2) A person residing outside of the United States who desires to
become a United States citizen under subsection 301(H) of the Act shall
make his or her claim at a United States embassy or consulate, in
accordance with such regulations as may be prescribed by the Secretary
of State. (b) Oath of allegiance; issuance of certificate (1) Upon
determination by the district director that a person is eligible for
United States citizenship pursuant to section 301(h) of the Act, the
person shall take the oath of allegiance, prescribed in 8 CFR part 337,
before an officer of the Service designated to administer the oath of
allegiance within the United States, and a certificate of citizenship
shall be issued. The person shall be considered a United States citizen
as of the date of his or her birth.
(2) A person residing outside of the United States who is eligible
for United States citizenship under section 301(h) of the Act shall
take the oath of allegiance abroad before any diplomatic or consular
officer of the United States, in accordance with such regulations as
may be prescribed by the Secretary of State. The person shall be
considered a United States citizen as of the date of his or her birth.
Dated: May 23, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-17157 Filed 7-3-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-17116 Administrative Procedures and Sanctions; Annual Reports From States and Nonregulated Utilities on Progress in Considering the Ratemaking and Other Regulatory Standards Under the Public Utility Regulatory Policies Act of 1978; Removal of Unnecessary or Obsolete Regulations
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35114-35115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17116]
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DEPARTMENT OF ENERGY
10 CFR Parts 205 and 463
Administrative Procedures and Sanctions; Annual Reports From
States and Nonregulated Utilities on Progress in Considering the
Ratemaking and Other Regulatory Standards Under the Public Utility
Regulatory Policies Act of 1978; Removal of Unnecessary or Obsolete
Regulations
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy is amending the Code of Federal
Regulations (CFR) to remove unnecessary regulations. This action is
being taken in response to the President's Regulatory Reform Initiative
to eliminate unnecessary regulations and streamline existing rules.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Romulo L. Diaz, Jr., Director,
Rulemaking Support, Office of the General Counsel, (GC-75), U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585, (202) 586-2902.
SUPPLEMENTARY INFORMATION: In connection with the President's
Regulatory Reinvention Initiative, the Department of Energy (Department
or DOE) is engaged in a continuing and comprehensive review of its
regulatory program. As part of that review, the Department is removing
from Title 10 of the CFR those regulations for which statutory
authority has expired or been superseded by subsequent legislation,
those regulations that are no longer necessary to the agency's mission,
as well as regulations governing unfunded and nonfunctioning programs.
DOE removed obsolete regulations on September 22, 1995 (60 FR 49195)
and December 5, 1995 (60 FR 62316).
The Department has identified the following regulations for
removal:
10 CFR Part 205--Subpart L Rulemaking
10 CFR Part 205--Subpart P Investigations, Violations, Sanctions,
and Judicial Actions
Part 205 establishes the procedures to be utilized and identifies
the sanctions that are available in proceedings before the Department
of Energy, in accordance with parts 209 through 214 concerning the
pricing and allocation of crude oil. Parts 209 through 214 implement
the provisions of the Emergency Petroleum Allocation Act of 1973 (Pub
L. 93-159, as amended) which expired in 1981. Subpart L establishes the
procedures that govern a rulemaking proceeding. Subpart P establishes
procedures relating to investigations, violations, sanctions, and
judicial actions. The Department has determined that subpart L and
subpart P of part 205, which set forth procedures and sanctions that
apply to crude oil regulation, are no longer necessary.
10 CFR Part 463--Annual Reports From States and Nonregulated Utilities
on Progress in Considering the Ratemaking and Other Regulatory
Standards Under the Public Utility Regulatory Policies Act of 1978
Part 463 was promulgated to implement sections 116 and 309 of the
Public Utility Regulatory Policies Act of 1978 (``Act''), 16 U.S.C.
2626 and 15 U.S.C. 3209. Sections 116 and 309 required each State
regulatory authority and nonregulated gas utility to submit annually a
report to the Secretary of Energy on actions taken with respect to
standards in the Act. The Act required these reports for a 10-year
period, which expired at the end of 1989 (see 10 CFR Sec. 463.3(a)).
Because the authority for the reporting requirement has expired, this
part is now obsolete.
Rulemaking Analyses
Regulatory Planning and Review
The elimination of unnecessary regulations does not constitute a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866 (58 FR 51735); therefore, this rulemaking has not
been reviewed by the Office of Information and Regulatory Affairs of
the Office of Management and Budget.
Federalism
The Department has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined that there are no federalism implications that would warrant
the preparation of a Federalism Assessment.
National Environmental Policy Act
This rule amends Title 10 of the Code of Federal Regulations by
removing regulations that are unnecessary. This rulemaking will not
change the environmental effect of the regulations being amended
because the regulations have no current environmental effect. The
Department has therefore determined that this rule is covered under the
Categorical Exclusion found at paragraph A.5 of Appendix A to Subpart
D, 10 CFR Part 1021, which applies to a rulemaking amending an existing
regulation that does not change
[[Page 35115]]
the environmental effect of the regulation being amended.
Paperwork Reduction Act
This rulemaking contains no reporting requirement that is subject
to OMB approval under 5 CFR Part 1320, pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Final Rulemaking
As the foregoing discussion indicates, the Code of Federal
Regulation subparts being removed are no longer necessary. Accordingly,
the Department has determined, pursuant to 5 U.S.C. 553, that there is
good cause to conclude that prior notice and opportunity for public
comment is unnecessary and contrary to the public interest.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs
agencies to prepare a regulatory flexibility analysis whenever an
agency is required to publish a general notice of proposed rulemaking
for a rule. As discussed above, the Department has determined, that
prior notice and opportunity for public comment is unnecessary and
contrary to the public interest. In accordance with 5 U.S.C. 604(a), no
regulatory flexibility analysis has been prepared for today's rule.
Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
rules prior to their effective dates. 5 U.S.C. 801. The Department is
reporting today's rulemaking to Congress in accordance with 5 U.S.C.
801(a)(1)(A). The Office of Management and Budget has determined that
this is not a major rule as defined in 5 U.S.C. 804(2)
List of Subjects
10 CFR Part 205
Administrative practice and procedure, Petroleum allocation,
Petroleum price regulations.
10 CFR Part 463
Public utilities.
Issued in Washington, DC on June 28, 1996.
Robert R. Nordhaus,
General Counsel.
For the reasons set forth in the preamble, title 10 of the Code of
Federal Regulations is amended as set forth below:
PART 205-ADMINISTRATIVE PROCEDURES AND SANCTIONS
1. The authority citation for part 205 continues to read as
follows:
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L.
93-159; Federal Energy Administration Act of 1974, Pub. L. 93-275
(88 Stat. 96; E.O. 11790, 39 FR 23185); 42 U.S.C. 7101 et seq.,
unless otherwise noted.
Subpart L and P--[Removed]
2. Subparts L (Secs. 205.160-205.162) and P (Secs. 205.200-205.204)
of part 205 are removed.
PART 463--ANNUAL REPORTS FROM STATES AND NONREGULATED UTILITIES ON
PROGRESS IN CONSIDERING THE RATEMAKING AND OTHER REGULATORY
STANDARDS UNDER THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978
[REMOVED]
3. Part 463 of 10 CFR is removed.
[FR Doc. 96-17116 Filed 7-3-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-17115 Supplemental Standards of Ethical Conduct for Employees of the Department of Energy
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35085-35088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17115]
========================================================================
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. 130 / Friday, July 5, 1996 / Rules
and Regulations
[[Page 35085]]
DEPARTMENT OF ENERGY
5 CFR Chapter XXIII
10 CFR Part 1010
RINs 1990-AA04, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Energy
AGENCY: Department of Energy (DOE).
ACTION: Interim final rule with invitation for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy, with the concurrence of the Office
of Government Ethics (OGE), is issuing a regulation for employees of
DOE that supplements the Standards of Ethical Conduct for Employees of
the Executive Branch issued by OGE. This interim rule is a necessary
supplement to the Standards because it addresses ethical issues unique
to DOE. The supplemental regulation requires DOE employees to seek
approval from management prior to engaging in certain outside
activities. The supplemental regulation also requires employees to
document recusals in writing. DOE is also revising its residual
standards regulation in its own CFR title and adding a cross-reference
to the new provisions.
DATES: These regulations take effect July 5, 1996. Comments must be
received on or before September 3, 1996.
ADDRESSES: All comments concerning these regulations should be
addressed to Susan Beard (Deputy Assistant General Counsel for
Standards of Conduct), Office of the Assistant General Counsel for
General Law, GC-80, U.S. Department of Energy, 1000 Independence
Avenue, SW, Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Susan Beard (Deputy Assistant General
Counsel for Standards of Conduct), Office of the Assistant General
Counsel for General Law, GC-80, U.S. Department of Energy, 1000
Independence Avenue, SW, Washington, DC 20585, telephone 202-586-1522.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published the Standards of Ethical Conduct
for Employees of the Executive Branch. See 57 FR 35006-35067, as
corrected at 57 FR 48557, 57 FR 52583, and 60 FR 51667, with additional
grace period extensions at 59 FR 4779-4780, 60 FR 6390-6391 and 60 FR
66857-66858. The Standards, codified at 5 CFR part 2635 and effective
February 3, 1993, establish uniform standards of ethical conduct
applicable to all executive branch personnel.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
agencies to publish agency-specific supplemental regulations that are
necessary to implement an agency's ethics program. DOE, with OGE's
concurrence, has determined that the following supplemental rules,
being codified in new chapter XXIII of 5 CFR, consisting of part 3301,
are necessary for successful implementation of DOE's ethics program.
II. Analysis of the Regulations
Section 3301.101 General
Section 3301.101 explains that the regulations contained in the
interim rule apply to all employees of the Department of Energy, with
the exception of employees of the Federal Energy Regulatory Commission,
and are supplemental to the uniform executive branch standards at 5 CFR
part 2635. The Federal Energy Regulatory Commission was established as
part of DOE by sections 204 and 401 of the Department of Energy
Organization Act (Pub. L. 95-91, codified at 42 U.S.C. 7134 & 7171).
Section 401(d) of that Act specifies that employees of the Federal
Energy Regulatory Commission shall not be subject to supervision or
direction of any officer, employee, or agent of any other part of DOE.
Accordingly, employees of the Federal Energy Regulatory Commission are
not subject to these regulations.
This section also notes that DOE employees are subject to the
executive branch financial disclosure regulations at 5 CFR part 2634,
and additional rules of conduct published in 5 CFR part 735 and DOE's
Conduct of Employees Regulation at 10 CFR part 1010. In addition, this
section contains definitions of the terms used in this part. ``Agency
designee'' is defined as an employee's immediate supervisor. This
supplement to the definition of this term at 5 CFR 2635.102(b) is
needed so that DOE employees know how to contact their agency designee.
This section also defines the term ``counselor,'' a term that has
historically been used at DOE, to identify the persons primarily
responsible for providing counseling on ethics and standards of conduct
matters.
Section 3301.102 Procedure for Accomplishing Disqualification
Section 3301.102 of the interim rule supplements the Standards for
disqualification contained in 5 CFR part 2635 by requiring written
notice of employee disqualifications under 5 CFR 2635.402(c),
2635.502(e) and 2635.604. In the past, it has been DOE's practice to
require a written notice of employee disqualification. DOE has
determined that it is necessary to the success of its ethics program to
continue its procedures for written notice of employee
disqualification. DOE recognizes the problems noted by the Office of
Government Ethics in adopting a requirement for written notice of
disqualification on an executive branch-wide basis. See 57 FR 35024. It
is not DOE's purpose to impose an overly technical requirement that
would result in disciplining an employee for failure to provide written
notice by some arbitrary deadline. Thus, the notice requirement imposed
by this regulation is phrased to give an employee flexibility in
determining precisely when the employee will give notice of
disqualification from a matter to which the employee has been assigned.
Notice is to be given when the employee determines that he or she will
not participate in the matter. In no way does the notice requirement
affect the employee's obligation not to participate in the matter.
Section 3301.103 Prior Approval for Outside Employment
The Standards, at 5 CFR 2635.803, recognize that individual
agencies may find it necessary or desirable to
[[Page 35086]]
supplement the executive branch-wide regulations with a requirement
that their employees obtain approval prior to engaging in outside
activities. Pursuant to 10 CFR 1010.204, which is being repealed in
this rulemaking document, the Department of Energy has long required
employees, other than special Government employees, to provide written
notification, and in some cases, to obtain written permission before
engaging in certain outside activities or employment. The Department
has found this requirement useful in ensuring that employees' outside
activities conform to all applicable laws and regulations, and, in
accordance with 5 CFR 2635.803, has determined that it is necessary to
the administration of its ethics program to require any employee of DOE
who wants to engage in outside employment to obtain prior approval of
such activity from the employee's supervisor and the counselor.
Accordingly, new Sec. 3301.103(a) imposes a requirement on
employees to obtain written approval from their immediate supervisors
before engaging in such activities, and describes what must be
contained in the approval form. To ensure that this provision is not
itself construed as authority to deny permission to engage in any
outside activity, Sec. 3301.103(b) specifies that approval will be
granted unless the activity is expected to involve conduct prohibited
by statute or regulation. Section 3301.103(c) defines outside
``employment'' to include any non- Federal employment involving the
provision of personal services by the employee.
III. Repeal and Revision of Department of Energy Conduct of
Employees Regulations
On November 30, 1993, the National Defense Authorization Act for
Fiscal Year 1994 was enacted. Pub. L. 103-160, sec. 3161. That statute
repealed certain statutory conflict-of-interest provisions applicable
to DOE employees. On February 10, 1996, the National Defense
Authorization Act for Fiscal Year 1996 was enacted. Public Law 104-106.
That statute repealed the remaining statutory conflict-of-interest
provisions that were unique to DOE. Accordingly, DOE is repealing the
regulatory provisions in 10 CFR part 1010 implementing the repealed
statutory provisions. This repeal also applies to those provisions of
part 1010 that were applicable to the Federal Energy Regulatory
Commission (FERC). The FERC is an independent regulatory commission
within the DOE and, to an extent, is subject to DOE rulemaking
authority. 42 U.S.C. Secs. 7134, 7171, & 7254. The FERC has agreed to
DOE's repeal of this provision, and FERC has indicated its intention to
publish its own supplemental regulations pursuant to its own regulatory
authority.
Because much of the remainder of 10 CFR part 1010, DOE's Conduct of
Employees regulation, is largely superseded by new chapter XXIII of
title 5, as added by this rulemaking, and the provisions of 5 CFR part
2635, DOE is herewith amending part 1010 to remove the existing
provisions, with the exception of the provisions concerning reporting
fraud, waste, abuse, and corruption, cooperation with the Inspector
General, and the conflict of interest waiver for widely diversified
mutual funds. The latter provision will only remain in effect until the
Office of Government Ethics publishes final regulations on 18 U.S.C.
208 (at which time DOE will repeal the residual waiver provision at
Sec. 1010.105). A new cross-reference provision is also being added to
part 1010 to refer to the executive branch-wide Standards and financial
disclosure regulation as well as the new DOE supplemental standards
regulation.
Section 1010.101 General
Section 1010.101 explains that these regulations apply to DOE
employees, excluding employees of the Federal Energy Regulatory
Commission.
Section 1010.102 Cross Reference to Employee Ethical Conduct Standards
and Financial Disclosure Regulations
Section 1010.102 provides cross-references to the executive branch-
wide Standards at 5 CFR part 2635, to DOE's new supplemental regulation
at 5 CFR part 3301, to the executive branch financial disclosure
regulation at 5 CFR part 2634, and to the executive branch-wide
employee responsibilities and conduct regulation at 5 CFR part 735.
Section 1010.103 Reporting Fraud, Waste, Abuse, and Corruption
Section 1010.103 assists employees in adhering to the general
principle of ethical conduct at 5 CFR 2635.101(b)(11), under which an
employee shall disclose waste, fraud, abuse, and corruption to
appropriate authorities. It identifies the Department's Office of
Inspector General as an authority to which it would be appropriate for
an employee to disclose waste, fraud, abuse, and corruption. In
addition, this section institutes a procedure by which appropriate
authorities within the Department who receive such allegations that
involve the ethical restrictions cross-referenced in Sec. 1010.102 of
this part shall refer those allegations to the designated agency ethics
official or his delegatee, or the Inspector General.
Section 1010.104 Cooperation with the Inspector General
This section requires employees to cooperate with official
inquiries. Section 2(1) & (2) of the Inspector General Act, 5 U.S.C.
app. sec. 2, provides that the Inspector General shall be responsible
for conducting investigative activities relating to the promotion of
economy and efficiency in the administration of, or the detection and
prevention of fraud and abuse in, programs and operations of the
Department. This regulation is intended to facilitate such activities
and those activities provided for in section 6 of the Inspector General
Act, including accessing materials and information with respect to
agency programs and operations.
Section 1010.105 Conflict of Interest Waiver
This section grandfathers an existing exemption to the prohibition
of 5 CFR 2635.402(a). It exempts ownership of stock in a widely
diversified mutual fund or other regulated investment company that in
turn owns stock in, or bonds of, another enterprise. This provision
will be repealed by DOE when the Office of Government Ethics publishes
its final regulation on 18 U.S.C. 208.
IV. Matters of Regulatory Procedure
Review Under Executive Order 12866
Today's regulatory action has been determined by the Department of
Energy not to be a ``significant regulatory action'' under Executive
order 12866,
[[Page 35087]]
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive order by the Office of Information and Regulatory Affairs.
Review Under the Regulatory Flexibility Act
Pursuant to section 605 of the Regulatory Flexibility Act (Pub. L.
96-354), it is hereby certified that the interim final rule will not
have a significant economic impact on a substantial number of small
entities within the meaning of the Act. It is related solely to
internal agency organization, management, or personnel.
Review Under the National Environmental Policy Act
This rule revises DOE's regulations on standards of conduct. It
will not change the environmental effects of the regulations being
amended. The Department has therefore determined that the rule is
covered under the Categorical Exclusion found at paragraph A.5 of
appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings
interpreting or amending an existing rule. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
Review Under the Paperwork Reduction Act
This interim final rule does not impose a ``collection of
information'' requirement, as defined in 44 U.S.C. 3502(4).
Review Under Executive Order 12988
Section 3 of Executive order 12988 on Civil Justice Reform, 61 FR
4729 (February 7, 1996), instructs each agency to adhere to certain
requirements in promulgating new regulations. These requirements, set
forth in section 3(a) and (b), include eliminating drafting errors and
needless ambiguity, drafting the regulations to minimize litigation,
providing clear and certain legal standards for affected legal conduct,
and promoting simplification and burden reduction. Agencies are also
instructed to make every reasonable effort to ensure that regulation
describes any administrative proceeding to be available prior to
judicial review and any provisions for the exhaustion of administrative
remedies. The Department has determined that today's regulatory action
meets the requirements of sections 3(a) and (b) of Executive order
12988.
Administrative Procedure Act
Since these interim final regulations relate to agency management
and personnel, they are exempt from notice and comment rulemaking
requirements under the Administrative Procedure Act. 5 U.S.C.
Sec. 553(a). Accordingly, DOE is neither giving prior notice nor
providing for a 30-day hiatus between the date of publication and the
date the regulations take effect. However, DOE will consider public
comments made within 60 days after the publication of this interim
final rule.
Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
final rules prior to their effective dates. 5 U.S.C. 801. That
reporting requirement does not apply to the interim final rule in this
notice because it falls within a statutory exception for rules relating
to agency management personnel. 5 U.S.C. 804(3)(B).
List of Subjects
5 CFR Part 3301
Conflict of interests, Government employees, Energy Department,
Standards of conduct.
10 CFR Part 1010
Conflicts of interest, Government employees, Energy Department,
Standards of conduct.
Issued in Washington, DC, June 28, 1996.
Robert R. Nordhaus,
General Counsel, Department of Energy.
Approved: June 28, 1996.
F. Gary Davis,
Deputy Director, Office of Government Ethics.
For the reasons set forth in the preamble, title 5 and chapter X of
title 10 of the Code of Federal Regulations are amended as follows:
TITLE 5--[AMENDED]
1. A new chapter XXIII, consisting of part 3301, is added to title
5 of the Code of Federal Regulations to read as follows:
5 CFR Chapter XXIII--Department of Energy
PART 3301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF ENERGY
Sec.
3301.101 General.
3301.102 Procedure for accomplishing disqualification.
3301.103 Prior approval for outside employment.
Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in
Government Act); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215,
as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5
CFR 2635.105, 2635.402(c), 2635.502(e), 2635.604, 2635.802,
2635.803.
Sec. 3301.101 General.
(a) Purpose. The regulations in this part apply to employees of the
Department of Energy (DOE), excluding employees of the Federal Energy
Regulatory Commission, and supplement the Standards of Ethical Conduct
for Employees of the Executive Branch contained in 5 CFR part 2635. DOE
employees are also subject to the regulations on financial disclosure
contained in 5 CFR part 2634, and to additional regulations on
responsibilities and conduct at 5 CFR part 735, and DOE specific
provisions contained in 10 CFR part 1010.
(b) Definitions. Unless a term is otherwise defined in this part,
the definitions set forth in 5 CFR part 2635 apply to terms used in
this part. In addition, for purposes of this part:
Agency designee, as used also in 5 CFR part 2635, means the
employee's immediate supervisor and, for purposes of the approval
required by Sec. 3301.103(a), includes the Counselor.
Counselor means the DOE's designated agency ethics official or his
delegates.
Sec. 3301.102 Procedure for accomplishing disqualification.
(a) Disqualifying financial interests. A DOE employee who is
required, in accordance with 5 CFR 2635.402(c), to disqualify himself
from participation in a particular matter to which he has been assigned
shall, notwithstanding the guidance in 5 CFR 2635.402(c)(1) and
[[Page 35088]]
(2), provide written notice of disqualification to his supervisor and
counselor upon determining that he will not participate in the matter.
(b) Disqualification to ensure impartiality. A DOE employee who is
required, in accordance with 5 CFR 2635.502(e), to disqualify himself
from participation in a particular matter involving specific parties to
which he has been assigned shall, notwithstanding the guidance in 5 CFR
2635.502(e)(1) and (2), provide written notice of disqualification to
his supervisor and counselor upon determining that he will not
participate in the matter.
(c) Disqualification from matter effecting prospective employers. A
DOE employee who is required, in accordance with 5 CFR 2635.604(a), to
disqualify himself from participation in a particular matter to which
he has been assigned shall, notwithstanding the guidance in 5 CFR
2635.604(b) and (c), provide written notice of disqualification to his
supervisor and counselor upon determining that he will not participate
in the matter.
(d) Withdrawal of notification. A DOE employee may withdraw written
notice under paragraphs (a), (b), or (c) of this section upon deciding
that disqualification from participation in the matter is no longer
required. A withdrawal of notification shall be in writing and provided
to the employee's supervisor and counselor.
Sec. 3301.103 Prior approval for outside employment.
(a) Prior approval requirement. Before engaging in any outside
employment, whether or not for compensation, an employee, other than a
special Government employee, must obtain written approval of his
immediate supervisor and the Counselor. Requests for approval shall
include the name of the person, group or organization for whom the work
is to be performed; the type of work to be performed; and the proposed
hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted unless there
is a determination that the outside employment is expected to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
part 2635.
(c) Definition of employment. For purposes of this section,
``employment'' means any form of non-Federal employment or business
relationship involving the provision of personal services by the
employee. It includes but is not limited to personal services as an
officer, director, trustee, general partner, agent, attorney,
consultant, contractor, employee, advisor, or teacher. It does not
include participating in the activities of a nonprofit, charitable,
religious, public service or civic organization, unless such activities
involve the provision of professional services or are for compensation.
TITLE 10--ENERGY
Chapter X--Department of Energy (General Provisions)
2. 10 CFR part 1010 is revised to read as follows:
PART 1010--CONDUCT OF EMPLOYEES
Sec.
1010.101 General.
1010.102 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
1010.103 Reporting wrongdoing.
1010.104 Cooperation with the Inspector General.
1010.105 Conflict of interest waiver.
Authority: 5 U.S.C. 301, 303; 5 U.S.C. App. (Inspector General
Act of 1978); 18 U.S.C. 208; and E.O. 12674, 54 FR 15159, 3 CFR,
1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR,
1990 Comp., p. 306.
Sec. 1010.101 General.
This part applies to employees of the Department of Energy (DOE),
excluding employees of the Federal Energy Regulatory Commission.
Sec. 1010.102 Cross-reference to employee ethical conduct standards
and financial disclosure regulations.
Employees of DOE are subject to the Standards of Ethical Conduct
for Employees of the Executive Branch at 5 CFR part 2635, the DOE
regulation at 5 CFR part 3301 which supplements the executive branch-
wide standards, the executive branch-wide financial disclosure
regulations at 5 CFR part 2634, and the executive branch-wide employee
responsibilities and conduct regulation at 5 CFR part 735.
Sec. 1010.103 Reporting wrongdoing.
(a) Employees shall, in fulfilling the obligation of 5 CFR
2635.101(b)(11), report fraud, waste, abuse, and corruption in DOE
programs, including on the part of DOE employees, contractors,
subcontractors, grantees, or other recipients of DOE financial
assistance, to the Office of Inspector General or other appropriate
Federal authority.
(b) All alleged violations of the ethical restrictions described in
section 1010.102 that are reported in accordance with (a) of this
section to an appropriate authority within the Department shall in turn
be referred by that authority to the designated agency ethics official
or his delegatee, or the Inspector General.
Sec. 1010.104 Cooperation with the Inspector General.
Employees shall respond to questions truthfully under oath when
required, whether orally or in writing, and must provide documents and
other materials concerning matters of official interest. An employee is
not required to respond to such official inquiries if answers or
testimony may subject the employee to criminal prosecution.
Sec. 1010.105 Conflict of interest waiver.
If a financial interest arises from ownership by an employee, or
other person or enterprise referred to in 5 CFR 2635.402(b)(2), of
stock in a widely diversified mutual fund or other regulated investment
company that in turn owns stock in, or bonds of, another enterprise,
that financial interest is exempt from the prohibition of 5 CFR
2635.402(a).
[FR Doc. 96-17115 Filed 7-3-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-17112 Radio Broadcasting Services; Homerville, Lakeland, and Statenville, GA
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35138-35139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17112]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
=======================================================================
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[[Page 35139]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 90-214; RM-7101 and RM-7226]
Radio Broadcasting Services; Homerville, Lakeland, and
Statenville, GA
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition for reconsideration.
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SUMMARY: The Commission affirms the grant of the rulemaking petition
(RM-7226) of Lakeland Broadcasters, Inc., permittee of a station
authorized to operate on Channel 290A, Lakeland, Georgia, requesting an
upgrade from a Class A to a Class C3 channel. See Memorandum Opinion
and Order 58 FR 26918, May 6, 1993. In so doing, the Commission denies
the petition for reconsideration of La Taurus Productions, Inc. and
dismisses as moot the petition for reconsideration filed by Southland
Radio, Inc.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: Paul R. Gordon, Mass Media Bureau,
(202) 418-2130.
SUPPLEMENTARY INFORMATION: The Commission declined to reconsider the
allotment of Channel 248A to Statenville, Georgia, as that community's
first local transmission service, and the upgrade of Channel 290A in
Lakeland, Georgia, to Channel 290C3. Channel 248B can be allotted to
Statenville in compliance with the Commission's requirements for
minimum station distance separations with a site restricted to 16.0
kilometers (9.9 miles) northeast of Statenville, at reference
coordinates 30, 46, 24 North, 82, 52, 50 West. With this action, the
proceeding is terminated.
This is a summary of the Commission's Second Memorandum Opinion and
Order, MM Docket No. 90-214, adopted June 21, 1996 and released June
28, 1996. The full text of this Commission decision is available for
inspection and copying during normal business hours in the FCC Dockets
Branch (Room 239), 1919 M Street, NW., Washington, DC. The complete
text of this decision may also be purchased from the Commission's copy
contractor, International Transcription Services, (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. 96-17112 Filed 7-3-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-17111 Regulatory Review; Gas Pipeline Safety Standards; Correction
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Page 35139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17111]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 192
[Docket PS-124; Amdt. 192-78]
RIN 2137-AC25
Regulatory Review; Gas Pipeline Safety Standards; Correction
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Correction of final regulation.
-----------------------------------------------------------------------
SUMMARY: This document corrects a final regulation published June 6,
1996 (61 FR 28770). The final regulation clarified the circumstances in
which pipeline operators may adjust the boundaries of Class 2 and 3
locations that involve clusters of buildings. Because the regulation
could have a significant, unintended economic impact on the gas
pipeline industry, it is corrected to remove any substantive change to
the rules governing boundary adjustment.
EFFECTIVE DATE: July 8, 1996.
FOR FURTHER INFORMATION CONTACT: L.M. Furrow, (202) 366-4559.
SUPPLEMENTARY INFORMATION: RSPA revised the class location definitions
(Sec. 192.5) to provide clarity and minimize the possibility of
needless design and construction expenditures (61 FR 28783; June 6,
1996). One revision concerned the boundary adjustment of Class 2 and 3
locations that involve a cluster of buildings intended for human
occupancy (old Secs. 192.5(f)(2) and (f)(3)). With this adjustment, a
Class 2 or 3 location on a pipeline ends 220 yards from the nearest
building in the cluster. As revised, the adjustment applies only when
all buildings in a 1-mile class location unit (the basis for
classification under Sec. 192.5) are in a single cluster (new
Sec. 192.5(c)(2)).
Since the revision was published, RSPA has learned that many
operators customarily apply the cluster adjustment irrespective of
buildings outside the cluster. We also learned this practice has been
tacitly accepted by RSPA enforcement personnel and may be consistent
with instruction at RSPA's Transportation Safety Institute. Under these
circumstances, the revised regulation could have a significant,
unintended economic impact on the pipeline industry. Also, because this
pipeline classification practice reflects the adjoining population
density, the practice is consistent with pipeline safety. Therefore, we
are correcting new Sec. 192.5(c)(2) so there is no substantive change
from old Secs. 192.5(f)(2) and (f)(3).
Correction of Publication
Accordingly, the publication on June 6, 1996, of the final
regulations in FR Doc. 96-13787 is corrected as follows:
Sec. 192.5 [Corrected]
On page 28783, in the 2nd column, in Sec. 192.5, paragraph (c)(2)
is corrected to read as follows:
* * * * *
(c) * * *
(2) When a cluster of buildings intended for human occupancy
requires a Class 2 or 3 location, the class location ends 220 yards
from the nearest building in the cluster.
Issued in Washington DC, on June 28, 1996.
Richard B. Felder,
Associate Administrator for Pipeline Safety.
[FR Doc. 96-17111 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-17103 Implantation or Injectable Dosage Form New Animal Drugs; Ceftiofur
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35129-35130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17103]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration-
21 CFR Part 522
Implantation or Injectable Dosage Form New Animal Drugs;
Ceftiofur
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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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. The supplemental NADA
provides for a revised indication for use of a reconstituted solution
of ceftiofur sterile powder for injection in day-old chicks for control
of mortality associated with Escherichia coli organisms susceptible to
ceftiofur and for use of the reconstituted injection in day-old turkey
poults for the same indication.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: George K. Haibel, Center for
Veterinary Medicine (HFV-133), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1644.
SUPPLEMENTARY INFORMATION: The Upjohn Co., Kalamazoo, MI 49001, is
sponsor of supplemental NADA 140-338, which provides for use of
Naxcel Sterile Powder (ceftiofur sodium) as a 50 milligrams
per milliliter reconstituted injectable for use in cattle, swine, day-
old chicks, horses, and dogs. The supplemental NADA provides for: (1) A
revised indication for use in
[[Page 35130]]
chicks for control of early mortality associated with E. coli organisms
susceptible to ceftiofur, and (2) use in a new species, day-old turkey
poults, for the revised indication. According to 21 CFR 556.113 a
tolerance for ceftiofur residues in edible tissues derived from treated
poultry is not needed. The supplemental NADA is approved as of May 21,
1996, and the regulations are amended in 21 CFR 522.313(d) 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 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)), approval for use in
turkeys qualifies for 3 years of marketing exclusivity beginning May
21, 1996, because the application contains reports of new clinical or
field investigations (other than bioequivalence or residue studies) or
human food safety studies (other than bioequivalence or residue
studies) essential to the approval and conducted or sponsored by the
applicant.
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 522
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 522 is
amended as follows:
PART 522--IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 522 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
2. Section 522.313 is amended by revising paragraph (d)(3)(ii), by
redesignating paragraphs (d)(4) and (d)(5) as paragraphs (d)(5) and
(d)(6), respectively, and by adding new paragraph (d)(4) to read as
follows:
Sec. 522.313 Ceftiofur sterile powder for injection.
* * * * *
(d) * * *
(3) * * *
(ii) Indications for use. For control of early mortality associated
with Escherichia coli organisms susceptible to ceftiofur.
* * * * *
(4) Day-old turkey poults--(i) Amount. 0.17 to 0.5 milligram per
poult.
(ii) Indications for use. For control of early mortality associated
with E. coli organisms susceptible to ceftiofur.
(iii) Limitations. For subcutaneous use in the neck of day-old
poults only. As a single dose only. Federal law restricts this drug to
use by or on the order of a licensed veterinarian.
* * * * *
Dated: June 14, 1996.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-17103 Filed 7-3-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-17091 Western Pacific Crustacean Fisheries; Amendment 9; OMB Control Numbers
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35145-35151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17091]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 681 and 15 CFR Part 902
[Docket No. 960401094-6183-02; I.D. 022296D]
RIN 0648-AI32
Western Pacific Crustacean Fisheries; Amendment 9; OMB Control
Numbers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule to implement Amendment 9 to the
Fishery Management Plan for the Crustacean Fisheries of the Western
Pacific Region (FMP). This rule establishes a new annual harvest
limitation program for the Northwestern Hawaiian Islands (NWHI) lobster
fishery based on the status of stocks and an explicit level of risk of
overfishing. This eliminates operational problems with the current
quota system. Current prohibitions on retaining juvenile lobsters and
berried lobsters are eliminated. The rule establishes framework
procedures to implement regulatory changes if needed in the future.
This rule also announces the harvest guideline for the 1996 fishing
season. The rule is intended to maintain the productivity of the stocks
while providing a reasonable opportunity for permit holders to
participate in the fishery and to maintain their markets. The changes
also improve the administration of the
[[Page 35146]]
management program and enforcement efforts.
EFFECTIVE DATES: June 28, 1996, except new Sec. 681.12 which is
effective on August 5, 1996.
ADDRESSES: Copies of Amendment 9 and the associated environmental
assessment may be obtained from Kitty M. Simonds, Executive Director,
Western Pacific Fishery Management Council (Council), 1164 Bishop St.,
Suite 1405, Honolulu, HI 96813.
A copy of the Biological Opinion (BO) associated with this rule and
the Final Regulatory Flexibility Analysis (FRFA) may be obtained from
Hilda Diaz-Soltero, Director, Southwest Region, NMFS (Regional
Director), 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.
Send comments on the modifications to approved collection-of-
information requirements to the Regional Director and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Attn: Paperwork Reduction Project 0648-0204 and 0648-0214, Washington,
D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Kitty M. Simonds at (808) 522-8220;
Svein Fougner at (310) 980-4034; or Alvin Z. Katekaru at (808) 973-
2985.
SUPPLEMENTARY INFORMATION: The FMP was approved in 1983 and governs
fishing for spiny and slipper lobsters in the NWHI. The history of the
development of the FMP and Amendment 9 is summarized in the proposed
rule (61 FR 15452, April 8, 1996) and will not be repeated here.
Amendment 9 includes the following measures, which are explained in
more detail in the proposed rule published on April 8, 1996:
1. Establish an annual harvest guideline based on a constant
harvest rate and a specific level of risk of overfishing. Under the
constant harvest rate policy, the harvest guideline, which is expressed
in terms of the total number of lobsters (spiny and slipper combined),
is proportional to the estimated exploitable population size.
2. Allow the retention of egg-bearing (``berried'') lobsters and
eliminate size limits. The FMP and implementing regulations currently
prohibit fishers from retaining berried lobsters or lobsters with a
tail width of less than 50 mm for spiny lobsters and 56 mm for slipper
lobsters.
3. Eliminate the in-season quota adjustment. The in-season quota
adjustment has proven to be unworkable, given the extreme sensitivity
of the quota formula to changes in catch-per-unit-of-effort (CPUE). A
harvest guideline will be set once annually and will not be adjusted
during the year.
4. Authorize the Regional Director to close the fishery by direct
notice to fishermen. The Council concluded that the fishery is
sufficiently small (there are only 15 persons with limited entry
permits) that direct notice to permit holders by telephone or radio is
feasible and provides the most effective means of ensuring timely
closure of the fishery with minimal likelihood of premature or late
closure.
5. Establish broad framework procedures for future regulatory
changes. The FMP currently has framework procedures dealing with
protected species conservation, and the annual harvest quota is set
under a specific framework (i.e., formula). Amendment 9 authorizes
measures affecting the operation of the fisheries, gear, harvest
guidelines, or changes in catch and/or effort, and provides a mechanism
to respond to new information quickly.
6. Conduct a 5-year review of the new program. The Council is aware
that the proposed new management approach of Amendment 9 is an
innovative approach to crustacean fishery management and that it
warrants a complete review of its effectiveness. This analysis is in
addition to the annual review of the fishery.
This rule eliminates the requirement that fishers notify NMFS in
advance of plans to embark on each fishing trip so that NMFS may place
observers on the fishing vessel. Although the single vessel fishing in
1994 under an Experimental Fishing Permit carried a NMFS observer, NMFS
does not anticipate sending observers on lobster trips on a regular
basis. Therefore, NMFS removes the requirement to report each trip in
advance. This action accords with President Clinton's directive that
agencies reduce public reporting requirements.
In compliance with the new procedures of Amendment 9, a harvest
guideline of 186,000 lobsters for the NWHI crustacean fishery is
announced for the 1996 fishing season, which begins July 1, 1996. This
harvest guideline supersedes the initial quota published on February
21, 1996 (61 FR 6577), and is the final landings limit for the 1996
fishing season. The harvest guideline is computed by using a harvest
rate associated with a 10 percent risk of overfishing applied to the
estimate of the exploitable population. For 1996, the exploitable
population is 1,432,586 lobsters.
Comments
Comments were received from the State of Hawaii Department of Land
and Natural Resources, the Marine Mammal Commission (MMC), the U.S.
Fish and Wildlife Service (USFWS), and the Small Business
Administration (SBA). Similar comments have been combined.
Comment: Some comments suggested that NMFS was reopening or
resuming the NWHI lobster fishery, implying that the fishery is now
closed.
Response: The lobster fishery has been closed only when there was
no announced quota or after available quota has been taken. Commercial
fishing is allowed under the current system when there are lobsters to
be harvested according to the formula contained in the FMP. Without
Amendment 9, the fishery would open on July 1, 1996, under a quota
system.
Comment: The regulations should require the retention of all small
and berried female lobsters. Giving the fishermen no choice would
minimize highgrading and would provide more sound information in the
sales reports.
Response: This measure was not included by the Council in Amendment
9, so it cannot be implemented at this time. However, NMFS does not
expect highgrading to occur because competition for the total number of
lobsters set by the harvest guideline will encourage fishermen to keep
all lobsters, but NMFS will provide the Council with catch, effort, and
sales data to evaluate whether this expectation is realized. The
Council has agreed to consider requiring retention if the first year of
data demonstrates a need and provides a sound basis for such action.
Comment: A vessel monitoring system (VMS) should be required on
each vessel. Such a system would monitor vessel traffic and determine
if there were illegal entry to the Hawaiian Islands National Wildlife
Refuge (HINWR).
Response: This measure was not included by the Council in Amendment
9, so it cannot be implemented at this time. The Council did not
propose the use of VMS because VMS has not been justified to the
satisfaction of the Council as being needed in the lobster fishery. The
Council has agreed, however, to review the measure in the future within
the framework procedures of the amendment.
Comment: Amendment 9 is deficient in its description of the HINWR.
It is the USFWS position that the boundaries of the HINWR extend to the
20 fathom isobath around Necker Island and to the 10 fathom isobath
around the other
[[Page 35147]]
islands of the refuge; and that permits are required for access to the
HINWR. The Amendment could lead to the impression that, in the absence
of the FMP, fishing would be allowed in the HINWR.
Response: The legal basis for this assertion of jurisdiction over
offshore waters was not provided. The original Executive Order
designating the HINWR does not indicate that offshore waters are
included in the HINWR. The original FMP provides a more complete
discussion of management agencies and their authorities in the NWHI,
and there is no new information concerning USFWS authority or
jurisdiction. The USFWS has been asked to provide to the Council more
information concerning HINWR jurisdiction and controls for use in
future planning efforts. The original FMP clearly explains that fishing
in waters in the HINWR or in state waters is not controlled under the
FMP; nothing in Amendment 9 changes that position.
Comment: An area-wide harvest guideline means that specific areas
in the Hawaiian Islands chain could be severely depleted of lobster,
possibly adversely affecting monk seals.
Response: Due to the lack of scientific data and enforcement
resources, bank-by-bank management is not possible at this time. The
stock assessment model is conservative, however, and guards against
excessive harvests. Historically, most of the harvest has occurred at a
small number of locations, and this is likely to continue unless
productivity of the lobster stocks returns to the levels of the late
1970's and 1980's. The Council has agreed to evaluate the use of VMS,
which could be useful in reporting the catch at sea. Such a system may
be able to provide a basis for area specific management in the future.
Comment: Area specific spawning potential ratios (SPR) should be
evaluated and used to restrict fishing in areas where it is important
to maintain healthy lobster populations.
Response: As stated above, this is not possible at this time. If
area-specific management becomes a reality, determining the SPR for
individual areas would be a factor to be considered.
Comment: The conclusion that the proposed fishery will not affect
Hawaiian monk seals is not supported by the information in Amendment 9
and the biological assessment. The Amendment should include a full
discussion of the potential impacts, such as increasing entrapment
hazards and decreasing food availability. Also, Amendment 9 does not
address the status of monk seals at French Frigate Shoals (FFS), where
the seal population is undergoing a severe decline due to starvation.
If lobster and octopus are relatively important components of monk seal
diets, the proposed lobster fishery could impact monk seals. The MMC
recommends closing FFS to lobster fishing until the importance of
lobster and octopus in the diets of monk seals is known. Amendment 9
should be disapproved and no fishing allowed until an adequate BO is
completed.
Response: There are three records of direct interaction between
monk seals and the lobster fishery. One occurred early in the fishery
when a seal became entangled in a trap bridle and drowned. The second
occurred in 1994, when a fisherman reported that a monk seal approached
the vessel and fed on released lobster. In the third, a seal was
observed attempting to move a lost trap, presumably in search of food
underneath the trap. No reports have been received of dead or live monk
seals with scars or injuries that suggest interaction with lobster
fishing gear. No interactions have occurred on research cruises. With
reduced effort in the fishery, the potential for direct entrapment or
harm has greatly declined. There is no information on the number of
lost lobster traps and the likelihood that a lost trap would harm a
seal, but the maximum allowable size of the trap openings was set with
the objective of protecting monk seals.
There may be indirect effects on monk seals from the lobster
fishery, especially for the population at FFS, where overall prey
availability appears to be low. However, NMFS has concluded that there
is insufficient information to support closing waters around FFS at
this time. The NMFS Honolulu Laboratory is conducting research on
foraging and feeding behavior, as well as on the diet of monk seals
through the use of remote video cameras attached to seals and by
analyzing seal scats and spewings. Eventually, a better understanding
of the relationship between monk seals and their food sources will be
available. Amendment 9 recognizes a potential for impacts, but NMFS
agreed with the Council's view that there is no basis to determine that
impacts are likely. On May 24, 1996, the NMFS Office of Protected
Resources issued a BO, under the Endangered Species Act, that concluded
that the fishery, as it would be conducted under Amendment 9 and these
implementing regulations, is not likely to jeopardize the continued
existence of any listed species. The May 24, 1996, BO will be provided
to the Council for use in future planning and management decisions.
Comment: The frameworking procedures may not be quick enough to
respond effectively to rapidly occurring changes in the proposed
fishery, including the implementation of measures to protect monk
seals. The procedures should be streamlined to provide for quick
action.
Response: Actions cannot be taken until effects of the actions are
thoroughly analyzed. The new framework procedures will provide for a
proper review, and actions can be taken without amending the plan,
which is a much more lengthy process. The ability of the Regional
Director to close the fishery by direct notice to fishermen is one of
the benefits of the Amendment. Also, the Magnuson Act authorizes NMFS,
on behalf of the Secretary, to take emergency action if necessary.
Existing regulations in 50 CFR Secs. 681.27 and 681.28 also provide
authority for NMFS to issue quickly a short-term regulation (10 days to
6 months), specifically in the event of a monk seal mortality that
appears related to the fishery.
Comment: Eliminating size limits introduces a strong incentive for
highgrading and underreporting, which is to be detected by untested and
unconvincing methods.
Response: NMFS expects highgrading to be minimal. The following
year's harvest guideline will be adjusted for any identified
highgrading following review of landings data through the monitoring
system. The relationship between lobster size and price depends on the
market, which varies from year to year. There is a market for all
lobster, so a fisherman would have to decide whether the vessel's
economic return would be sufficiently greater if some lobster were
discarded in order to retain others. Competition for the available
quota puts pressure on fishermen to catch as many lobsters as possible
and return to port before the harvest guideline is reached. Highgrading
is more likely to occur when fishing begins, and becomes less likely as
the fishery approaches the limit on total harvest established by the
annual quota. The fewer vessels harvesting the quota, the greater the
possibility that highgrading will occur, depending on the size of the
quota. High levels of harvest are required to sustain a lobster
operation, and the decision to forego the catch of some lobster in
anticipation of a more valuable catch is not a simple decision and not
the most likely choice.
If highgrading occurs, it can be detected. Catch and effort
reported in logbooks can be compared with historic catch and effort
data and with the results of research cruise data from the same year.
The specific management response to highgrading will depend on
[[Page 35148]]
the extent of the highgrading and the benefits and costs of corrective
measures, which can be implemented through the framework process. The
Council has agreed to evaluate the degree and effects of highgrading in
the first year of the fishery under Amendment 9 to determine if
adjustments are necessary.
Comment: The basis for the statement that mandatory escape vents
reduce the number of undersized lobsters caught in traps by 50 percent
should be stated. NMFS should explain why the percentage of sublegal
lobsters in the catch doubled between 1985 and 1994. The increasing
percentage of undersized lobsters suggests that the fishery has
substantially reduced the number of large, preferred lobsters.
Response: The information on the effectiveness of escape vents was
obtained through NMFS research. The most likely explanation for an
increase in the percentage of sublegal lobsters caught is that the
spatial nature of the fishery has changed. Before 1990, the main
fishing areas were Maro Reef and Necker Island. Sublegal and legal
spiny lobster inhabit separate areas on Maro Reef; however, they occur
together on the fishing grounds at Necker Island. After 1990, fishing
effort was targeted primarily on Necker Island, thus increasing the
relative proportion of sublegal spiny lobster in the catch.
Comment: Past harvest projections designed to achieve sustainable
harvest levels have exceeded sustainable catch levels, and the approach
of Amendment 9 is untested.
Response: There have not been errors in projections of sustainable
harvest. The in-season adjustment, however, has resulted in very large
and unpredictable variations in harvest quotas due to extreme
sensitivity to changes in CPUE. For example, in 1994 the initial quota
was 200,000 lobsters, but was adjusted down to 20,000 lobsters using
data from the first month of fishing and a target CPUE of 1.0 lobster/
trap haul. However, the CPUE dropped to only 0.9 lobster/trap haul. The
resource has not been overfished, and the resource has grown since a
quota system was implemented.
Comment: An explanation should be provided as to why in-season
harvest adjustments are administratively cumbersome and how fishery
management would be improved by eliminating the measure.
Response: The in-season adjustment caused wide and unpredictable
changes in the quotas for the fishery. As a result, it was difficult
for permit holders to plan their activities and for NMFS to manage the
opening and closing of the fishery in a rational manner. The 1994
experience cited by the reviewer demonstrated that the old quota
formula was overly sensitive to very small changes in catch rates, such
that a 10 percent change in catch rate led to a 90 percent change in
the quota.
Comment: The best way to assess and detect highgrading is through
observers.
Response: The FMP provides authority for the Regional Director to
place observers on permitted vessels, and observers may be placed if
deemed necessary and appropriate. As previously explained, highgrading
can be detected without using observers.
Comment: The variability of the constant harvest proposal may force
some fishermen out of business and ultimately interfere with the
current competitive market structure, or could result in a number of
fishermen deciding not to participate. This could result in excessive
market power for remaining businesses. Also, a few of the companies
could merge or a large business could decide to enter the market if it
sees the small harvesters exiting the market. This could adversely
affect other small businesses, such as markets and restaurants.
Response: Most of the kinds of prospective problems foreseen by the
SBA are also inherent in the current management scheme and would arise
if the constant catch alternative were chosen. However, monopolization
of the harvesting capacity is not likely given that any single entity
may not now hold more than one permit. Both now and under the proposed
alternative, it is possible for a large business to enter the fishery.
It should be noted that NWHI lobster fishermen are generally unable to
set market prices due to the relatively low overall volume of the
fishery (the projected average harvest guideline is 288,000 lobsters
per year); the strong competition from other sources of lobsters
(Australia and Brazil especially); and the limited season (not more
than 6 months per year). It seems unlikely, therefore, that a large
firm would enter the fishery. It is even more unlikely that any single
firm could set prices because of competition from international
sources. Neither the fishery in aggregate nor any one participant can
affect supply or price in the long run to the extent that the consumer
would be impacted. It is expected that the difference in ultimate
supply of lobster under either the constant harvest rate or the
constant catch approach would not be large enough to affect price or
markets. However, as the ``use-or-lose'' provision has been eliminated,
greater flexibility is provided to permit holders to decide when (if at
all) they want to enter the fishery. They are already free to transfer
their permits. Thus the proposed management program should result in
the more efficient producers being more likely to participate in the
fishery.
Comment: The proposal may affect small businesses by interfering
with their ability to make short-term and long-term plans. Since the
businesses will have to decide each year about whether or not to
operate, the businesses may be apprehensive about making administrative
decisions, expanding their fleets, upgrading or repairing vessels, or
selecting a product price that is beneficial to the economy. The
variable nature of the proposal will discourage long-term business
expansion. It may be difficult for the business to obtain capital for
long-term projects that may require payment over a number of years.
Response: The concerns expressed are generic to this fishery and
would exist if the constant catch alternative were selected. The
constant catch alternative does not eliminate variability because any
harvest guideline would be based on the exploitable biomass, which
fluctuates naturally. Since harvest guidelines must be linked to the
biological status of the lobster stocks, the FMP cannot guarantee any
particular long-term harvest for the industry, or for a particular
vessel or business. Expansion of fleets is not likely given the limit
on the number of permits any one entity (defined to include a business)
can hold. Most participants in the fishery are active in other
fisheries and make a decision each year about whether to go lobster
fishing. In fact, the constant catch alternative would more likely
discourage some prospective fishermen from entering the lobster
fishery. The advantage of the constant harvest rate alternative, to
these fishermen, is that some years with very strong recruitment may
provide income that they would not expect in average years. It should
be noted that the average expected harvest under any of the
alternatives with a 10 percent risk level is not likely to be large
enough to support a full years operation for a large portion of the
fleet.
Comment: The constant harvest rate proposal is not the most viable
alternative for small businesses. The net present value (NPV) analysis
of the alternatives indicated that the constant catch alternative had
the highest NPV. The constant catch approach involves less uncertainty,
has low overall catch variability, and allows high catch rates. The SBA
urges the Council to reconsider its decision and suggests that the
Council execute the constant catch alternative.
[[Page 35149]]
Response: This reading of Table 7 of the Regulatory Impact Review
is correct. However, in the Council's and NMFS' view, the constant
harvest rate approach was preferred because it provides higher
allowable catches with moderate to high CPUE, and takes greater
advantage of years with exceptional lobster production, while still
limiting uncertainty and providing full protection to stocks when
production is low. While maximizing NPV was considered, tradeoffs were
made based on biological and operational considerations, with the
constant harvest rate option deemed the optimal strategy. Maximizing
NPV was not the sole decision criterion. The Council recognizes that
most lobster fishermen are not dependent on the lobster fishery. It is
likely that only a few permit holders will be active most years and
that most permit holders will not shift from other fisheries to lobster
except in years of exceptional production. There would be greater
incentive for permit holders to exit the fishery altogether if there
were a constant catch approach with a relatively low and fixed harvest
limit for a number of years. That is, with no potential for the harvest
limit to increase for a period of time, many permit holders would
appear more likely to leave the fishery, such that the concerns about
the concentration of harvesting capacity and control over markets would
be more likely to materialize. The constant harvest rate appears more
likely to provide an incentive for potential harvest capacity to be
maintained.
Changes From the Proposed Rule
When the harvest guideline is projected to be taken, NMFS will
notify fishermen 5 days in advance that further landings are prohibited
under Sec. 681.29(b)(3). This is shorter notice than the 7 days
provided in the former regulations at Sec. 681.31(c)(4). The delay in
prohibiting landings, after fishing for lobster has been prohibited, is
intended to allow a minimum number of days for vessels to return to
port. In most circumstances lobstermen in the NWHI do not need 7 days
to get to port. Seven days notice provides additional time to fish,
while weakening NMFS' ability to keep the harvest within the harvest
guideline. Five days is sufficient time to get back to port from most
areas under normal weather conditions. The requirement is for a minimum
number of days and does not preclude NMFS from giving more than 5 days
if circumstances warrant. Advance notice may be given by direct notice
to fishermen or by publication in the Federal Register.
Classification
Section 3507(c)(B)(i) of the PRA requires that agencies inventory
and display a current control number assigned by the Director, Office
of Management and Budget (OMB), for each agency information collection.
Section 902.1(b) identifies the location of NOAA regulations for which
OMB approval numbers have been issued. Because this final rule amends a
recordkeeping and reporting requirement, 15 CFR 902.1(b) is revised to
reference correctly the new sections resulting from the consolidation.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
This rule includes a reduction in collection-of-information
requirements subject to the Paperwork Reduction Act. The current rule,
which was approved by the Office of Management and Budget (OMB) under
OMB Control No. 0648-0204, requires that permits be renewed annually.
Under the final rule, permits are effective until modified, suspended,
or revoked. The permit holder must advise NMFS of changes in permit
information such as change of ownership or the vessel covered by the
permit. The estimated burden decreases from \1/2\ hour per year to \1/
2\ hour per 3 years. Vessel owners are no longer required to notify
NMFS prior to departing on each fishing trip, a requirement approved
under OMB Control No. 0648-0214. This reduces the estimated burden by 5
minutes per vessel per trip, or up to 30 minutes per year. This rule
also mentions the daily lobster and sales reports which take 5 minutes
to complete, respectively, and have been approved under OMB control
number 0648-0214. The total burden is estimated to decrease by about 10
hours per year. Send comments regarding these burden estimates or any
other aspect of these collection-of-information requirements, including
suggestions for reducing the burden, to the Regional Director and to
OMB (see ADDRESSES).
This final rule has been determined to be not significant for
purposes of E.O. 12866.
NMFS has prepared a FRFA as part of the regulatory impact review,
which describes the impact this rule would have on small entities. To
the extent that there are impacts, they are expected to be beneficial.
Under the proposed harvest guideline, there will likely be fewer years
in which the fishery is closed. The increased harvest guideline and
reduction in costs may result in a 5 percent or greater increase in
gross annual revenues. All vessels in this fishery (15 vessels have
permits) are considered small entities. No new reporting,
recordkeeping, or compliance requirements are imposed by this rule. No
Federal rules are known to duplicate, overlap, or conflict with this
rule. The reasons for, objectives of, and legal basis for this rule are
described elsewhere in this preamble. Multiple alternatives are
analyzed in the FRFA. A copy of the FRFA is available for public review
(see ADDRESSES).
The Southwest Region, NMFS, completed a formal consultation under
section 7 of the ESA to consider the possible impacts of the fishery on
Hawaiian monk seals and other listed species and critical habitat. The
BO concludes that the fishery under Amendment 9 is not likely to
jeopardize the continued existence of the listed species or adversely
effect critical habitat within the management area.
The Assistant Administrator finds that under 5 U.S.C. 553(d)(1),
this rule (except for Sec. 681.21) is not subject to a 30-day delay in
effectiveness date as it relieves restrictions on lobster fishermen.
Therefore, except for new Sec. 681.12, which is effective on August 5,
1996, the rule is effective June 28, 1996.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 681
Fisheries, Reporting and recordkeeping requirements.
Nancy Foster, Ph.D.,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR Chapter VI are amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 0648-204 and 0648-214
1. The authority citation for part 902 continues to read as
follows:
[[Page 35150]]
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b), the table is amended by removing
in the left column under 50 CFR, the entry ``681.10'', and in the right
column the corresponding control number.
50 CFR CHAPTER VI
In Sec. 902.1, paragraph (b), the table, in the entries for 50 CFR
in the left column, the following entry and corresponding OMB number
are removed: ``681.10''.
PART 681--WESTERN PACIFIC CRUSTACEAN FISHERIES
1. The authority citation for part 681 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 681.2, the definitions of ``Final quota'', ``Initial
quota'', ``Processing'', ``Processor'', ``Receiving Vessel'', ``Tail
width of slipper lobster'', ``Tail width of spiny lobster'', and
``U.S.-harvested lobster'' are removed; the definition of ``Harvest
guideline'' is added in alphabetical order, and the definition of
``Slipper lobster'' is revised to read as follows:
Sec. 681.2 Definitions.
* * * * *
Harvest guideline means a specified numerical harvest objective.
* * * * *
Slipper lobster means any crustacean of the family Scyllaridae.
* * * * *
3. In Sec. 681.4, paragraphs (b) (2), (d), and (f) are revised,
paragraph (g) is removed, and paragraphs (h) through (l) are
redesignated as paragraphs (g) through (k) respectively, to read as
follows:
Sec. 681.4 Permits.
* * * * *
(b) * * *
(2) Each application must be submitted on a Southwest Region
Federal Fisheries application form obtained from the Pacific Area
Office containing all the necessary information, attachments,
certification, signature, and fees.
* * * * *
(d) Change in application information. Any change in information on
the permit application form submitted under paragraph (b)(2) of this
section must be reported to the Pacific Area Office at least 10 days
before the effective date of the change. Failure to report such change
is a basis for permit sanctions.
* * * * *
(f) Expiration. Permits issued under this section will remain valid
indefinitely unless transferred, revoked, suspended, or modified under
15 CFR part 904.
* * * * *
4. In Sec. 681.5, paragraphs (b) and (d) are removed, paragraphs
(c) and (e) are redesignated as paragraphs (b) and (c) respectively,
and paragraph (a) and newly redesignated paragraph (b) are revised to
read as follows:
Sec. 681.5 Recordkeeping and reporting.
(a) Daily Lobster Catch Report. The operator of any vessel engaged
in commercial fishing for lobster subject to this part must maintain on
board the fishing vessel, while fishing for lobster, an accurate and
complete NMFS Daily Lobster Catch Report on a form provided by the
Regional Director. All information specified on the form, which has
been approved under the Paperwork Reduction Act, must be recorded on
the form within 24 hours after the completion of the fishing day. The
Daily Lobster Catch Reports for a fishing trip must be submitted to the
Regional Director within 72 hours of each landing of lobsters.
(b) Lobster Sales Report. The operator of any vessel engaged in
commercial fishing for lobster subject to this part must submit to the
Regional Director, within 72 hours of off-loading of lobster, an
accurate and complete Lobster Sales Report on a form provided by the
Regional Director, and attach packing or weigh-out slips provided to
the operator by the first-level buyer(s), unless the packing/weigh-out
slips have not been provided in time by the buyer(s). The form, which
has been approved under the Paperwork Reduction Act, must be signed and
dated by the vessel operator.
* * * * *
5. In Sec. 681.7, paragraphs (a)(5), (b)(2) through (b)(4) are
removed, paragraphs (b)(5) through (b)(14) are redesignated as
paragraphs (b)(2) through (b)(11) respectively, and paragraphs
(b)(1)(i) through (b)(1)(v), newly redesignated paragraphs (b)(6),
(b)(7), (b)(9), and (b)(11) are revised to read as follows:
Sec. 681.7 Prohibitions.
* * * * *
(b) * * *
(1) * * *
(i) Without a limited access permit issued under Sec. 681.28;
(ii) By methods other than lobster traps or by hand for lobsters,
as specified in Sec. 681.22;
(iii) From closed areas for lobsters, as specified in Sec. 681.21;
(iv) During a closed season, as specified in Sec. 681.27; or
(v) After the closure date, as specified in Sec. 681.29(b)(3), and
until the fishery opens again in the following calendar year.
* * * * *
(6) Leave a trap unattended in the Management Area except as
provided in Sec. 681.22(f).
(7) Maintain on board the vessel or in the water, more than 1200
traps per fishing vessel, of which no more than 1100 can be assembled
traps, as specified in Sec. 681.22(e).
* * * * *
(9) Land lobsters taken in Permit Area 1 after the closure date, as
specified in Sec. 681.29 (b)(3), until the fishery opens again the
following year.
* * * * *
(11) Refuse to make available to an authorized officer and employee
of NMFS designated by the Regional Director for inspection and copying
any records that must be made available in accordance with
Sec. 681.11(a).
* * * * *
6. Section 681.10 is revised to read as follows:
Sec. 681.10 Observers.
All fishing vessels subject to this part must carry an observer
when requested to do so by the Regional Director.
7. In Sec. 681.11, paragraph (a) introductory text is revised to
read as follows:
Sec. 681.11 Availability of records for inspection.
(a) Upon request, any first-level buyer must immediately allow an
authorized officer and any employee of NMFS designated by the Regional
Director, to access, inspect, and copy all records relating to the
harvest, sale, or transfer of management unit species taken by vessels
that have permits issued under this part or that are otherwise subject
to this part, including, but not limited to information concerning:
* * * * *
8. Section 681.12 is added effective (insert 30 days after
publication in the Federal Register) to subpart A to read as follows:
Sec. 681.12 Framework procedures.
(a) Introduction. New management measures may be added through
rulemaking if new information demonstrates that there are biological,
social, or economic concerns in Permit Areas 1, 2, or 3. The following
framework process authorizes the implementation of measures that may
affect the operation of the fisheries, gear, harvest guidelines, or
changes in catch and/or effort.
(b) Annual report. By June 30 of each year, the Council-appointed
Crustaceans
[[Page 35151]]
Plan Team will prepare an annual report on the fisheries in the
management area. The report shall contain, among other things,
recommendations for Council action and an assessment of the urgency and
effects of such action(s).
(c) Procedures for established measures. (1) Established measures
are management measures that, at some time, have been included in
regulations implementing the FMP, and for which the impacts have been
evaluated in Council/NMFS documents in the context of current
conditions.
(2) Following the framework procedures of Amendment 9 to the FMP,
the Council may recommend to the Regional Director that established
measures be modified, removed, or re-instituted. Such recommendation
shall include supporting rationale and analysis, and shall be made
after advance public notice, public discussion, and consideration of
public comment. NMFS may implement the Council's recommendation by
rulemaking if approved by the Regional Director.
(d) Procedure for New Measures. (1) New measures are management
measures that have not been included in regulations implementing the
FMP, or for which the impacts have not been evaluated in Council/NMFS
documents in the context of current conditions.
(2) Following the framework procedures of Amendment 9 to the FMP,
the Council will publicize, including by Federal Register notification,
and solicit public comment on, any proposed new management measure.
After a Council meeting at which the measure is discussed, the Council
will consider recommendations and prepare a Federal Register document
summarizing the Council's deliberations, rationale, and analysis for
the preferred action, and the time and place for any subsequent Council
meeting(s) to consider the new measure. At subsequent public
meeting(s), the Council will consider public comments and other
information received to make a recommendation to the Regional Director
about any new measure. NMFS may implement the Council's recommendation
by rulemaking if approved by the Regional Director.
9. In Subpart B, Secs. 681.21 and 681.22 are removed and
Secs. 681.23 through 681.32 are redesignated as Secs. 681.21 through
681.30, respectively.
10. In newly redesignated Sec. 681.25, in paragraphs (b) and
(g)(1), the words ``He'' and ``he'' are removed and the words ``The
Regional Director'' and ``the Regional Director'' are added in their
place, respectively.
11. In newly redesignated Sec. 681.26, in paragraphs (a)
introductory text, (b)(1), and (b)(3), the words ``he'', ``He'', and
``He'' are removed and the words ``the Regional Director'', ``The
Regional Director'', and ``The Regional Director'' are added in their
place, respectively.
12. In newly redesignated Sec. 681.28, paragraphs (b) and (c) are
removed, paragraphs (d), (e), and (f) are redesignated as paragraphs
(b), (c), and (d), respectively, and paragraphs (a)(8) and newly
redesignated paragraph (c) are revised to read as follows:
Sec. 681.28 Limited access management program.
(a) * * *
(8) A limited entry permit has no fixed expiration date.
* * * * *
(c) Replacement of a vessel covered by a limited access permit. A
limited access permit issued under this section may, without limitation
as to frequency, be transferred by the permit holder to a replacement
vessel owned by that person.
* * * * *
13. In newly redesignated Sec. 681.29, the section heading is
revised, and paragraph (c) is removed, paragraph (d) is redesignated as
paragraph (c), and paragraphs (a) and (b) are revised to read as
follows:
Sec. 681.29 Harvest limitation program.
(a) General. A harvest guideline for Permit Area 1 will be set
annually for the calendar year and shall:
(1) Apply to the total catch of spiny and slipper lobsters.
(2) Be expressed in terms of numbers of lobsters.
(b) Harvest guideline. (1) The Regional Director shall use
information from daily lobster catch reports and lobster sales reports
from previous years, and may use information from research sampling and
other sources, to establish the annual harvest guideline in accordance
with the FMP.
(2) NMFS shall publish a document indicating the annual harvest
guideline in the Federal Register by March 31 each year, and shall use
other means to notify permit holders of the harvest guideline for the
year.
(3) The Regional Director shall determine, on the basis of the
information reported to NMFS during the open season by the operator of
each vessel fishing, when the harvest guideline will be reached. Notice
of this determination, with a specification of the closure date after
which fishing for lobster or further landings of lobster taken in
Permit Area 1 is prohibited, will be provided to each permit holder and
operator of each permitted vessel or announced in the Federal Register.
At least 5 days advance notice of the effective date of the prohibition
on landings will be given.
* * * * *
14. Newly redesignated Sec. 681.30 is revised to read as follows:
Sec. 681.30 Five-year review.
The Council, in cooperation with NMFS, will conduct a review of the
effectiveness and impacts of the NWHI management program, including
biological, economic, and social aspects of the fishery, by July 1,
2001.
[FR Doc. 96-17091 Filed 6-28-96; 5:11 pm]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-17066 Administrative Procedures and Sanctions; Office of Hearings and Appeals Procedural Regulations; Removal of Unnecessary Regulations
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35112-35114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17066]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Parts 205 and 1003
Administrative Procedures and Sanctions; Office of Hearings and
Appeals Procedural Regulations; Removal of Unnecessary Regulations
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy is amending the Code of Federal
Regulations (CFR) to apply existing procedural rules to certain
petroleum proceedings and to remove unnecessary regulations. This
action is being taken in response to the President's Regulatory Reform
Initiative to eliminate unnecessary regulations and streamline existing
rules.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas O. Mann, Deputy Director,
Office of Hearings and Appeals, (HG-20), U.S. Department of Energy,
1000 Independence Avenue, SW., Washington, DC 20585-0107, (202) 426-
1492.
SUPPLEMENTARY INFORMATION: In connection with the President's
Regulatory Reinvention Initiative, the Department of Energy (Department
or DOE) is engaged in a continuing and
[[Page 35113]]
comprehensive review of its regulatory program. As part of that review,
the Department is removing from Title 10 of the CFR those regulations
for which statutory authority has expired or been superseded by
subsequent legislation, and those regulations that are no longer
necessary to the agency's mission, as well as regulations governing
unfunded and nonfunctioning programs. The DOE has already published
final rules removing obsolete regulations on September 22, 1995 (60 FR
49195) and December 5, 1995 (60 FR 62316).
The Department has identified the following regulations for
removal:
10 CFR Part 205--Subpart D Exception
10 CFR Part 205--Subpart E Exemption
10 CFR Part 205--Subpart H Appeal
10 CFR Part 205--Subpart I Stay and Temporary Exception
10 CFR Part 205--Subpart J Modification or Rescission
10 CFR Part 205--Subpart R Office of Private Grievances and Redress
Part 205 establishes the procedures to be utilized and identifies
the sanctions that are available in proceedings before the Department
of Energy concerning the pricing and allocation of crude oil under
parts 209 and 214. Parts 209 through 214 implement the provisions of
the Emergency Petroleum Allocation Act of 1973 (Pub L. 93-159, as
amended) which expired in 1981. The Department has determined that
subpart D, subpart E, subpart H, subpart I, subpart J, and subpart R of
part 205, which set forth procedures that apply to crude oil
regulation, are no longer necessary. Part 205 also provides certain
procedural protections required by section 504 of the Department of
Energy Organization Act for persons affected by oil-related regulations
issued under authority of the Federal Energy Administration Act, the
Emergency Petroleum Allocation Act of 1973, the Energy Supply and
Environmental Coordination Act of 1974, or the Energy Policy and
Conservation Act, 42 U.S.C. 7194. As described below, for the few oil-
related cases currently under appeal in the courts or the Federal
Energy Regulatory Commission, the procedural protections of 10 CFR part
1003, which are substantially the same as in part 205, will be
available in the event of a remand to the Department.
The Department is aware of the possibility that, in certain
instances, proceedings initiated under 10 CFR parts 209 through 214,
and as yet not concluded, may be remanded to the Office of Hearings and
Appeals for further proceedings. The Department has, in place,
regulations that govern the procedures for exceptions, appeals, stays,
modifications, recessions, redress and resolution of private grievances
that apply agency-wide, 10 CFR part 1003. To protect the rights of any
party to a proceeding remanded to the Office of Hearings and Appeals,
today's regulation amends part 205 to provide that a person's right to
exceptions, exemptions, appeals, stays, modifications, recessions,
redress or resolution of private grievances under the statutes set
forth in section 504 of the Department of Energy Organization Act shall
be governed by the procedural rules in 10 CFR part 1003. The Department
is revising 10 CFR 1003.1 to permit the application of the Office of
Hearings and Appeals procedural regulations to matters which relate to
the federal oil regulations that are no longer covered by part 205.
Finally, the Department is revising 10 CFR 1003.20 to apply to
exemptions and adjustments as provided for in 42 U.S.C. 7194.
Rulemaking Analyses
Regulatory Planning and Review
The elimination of unnecessary regulations does not constitute a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866 (58 FR 51735); therefore, this rulemaking has not
been reviewed by the Office of Information and Regulatory Affairs of
the Office of Management and Budget.
Federalism
The Department has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined that there are no federalism implications that would warrant
the preparation of a Federalism Assessment.
National Environmental Policy Act
This rule amends Title 10 of the Code of Federal Regulations by
removing regulations that are unnecessary. This rulemaking will not
change the environmental effect of the regulations being amended
because the regulations have no current environmental effect. The
Department has therefore determined that this rule is covered under the
Categorical Exclusion found at paragraph A.5 of Appendix A to Subpart
D, 10 CFR Part 1021, which applies to a rulemaking amending an existing
regulation that does not change the environmental effect of the
regulation being amended.
Paperwork Reduction Act
This rulemaking contains no reporting requirement that is subject
to OMB approval under 5 CFR Part 1320, pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Final Rulemaking
As the foregoing discussion indicates, the Code of Federal
Regulation subparts being removed are no longer necessary. The
procedural protections afforded by these subparts are available under
10 CFR part 1003. Accordingly, the Department has determined, pursuant
to 5 U.S.C. 553, that there is good cause to conclude that prior notice
and opportunity for public comment is unnecessary and contrary to the
public interest.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs
agencies to prepare a regulatory flexibility analysis whenever an
agency is required to publish a general notice of proposed rulemaking
for a rule. As discussed above, the Department has determined, that
prior notice and opportunity for public comment is unnecessary and
contrary to the public interest. In accordance with 5 U.S.C. 604(a), no
regulatory flexibility analysis has been prepared for today's rule.
Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
final rules prior to their effective dates. 5 U.S.C. 801. That
reporting requirement does not apply to the final rule in this notice
because it falls within a statutory exception for procedural rules that
do not substantially affect the substantive rights or obligations of
non-agency persons. 5 U.S.C. 804(3)(C).
List of Subjects
10 CFR Part 205
Administrative practice and procedure, Petroleum allocation,
Petroleum price regulations.
10 CFR Part 1003
Administrative practice and procedure.
Issued in Washington, DC, on June 28, 1996.
George B. Breznay,
Director, Office of Hearings and Appeals.
For the reasons set forth in the preamble, title 10 of the Code of
Federal Regulations is amended as set forth below:
[[Page 35114]]
PART 205--ADMINISTRATIVE PROCEDURES AND SANCTIONS
1. The authority citation for part 205 is revised to read as
follows:
Authority: Emergency Petroleum Allocation Act of 1973, Pub. L.
93-159; Federal Energy Administration Act of 1974, Pub. L. 93-275
(88 Stat. 96; E.O. 11790, 39 FR 23185); 42 U.S.C. 7101 et seq.,
unless otherwise noted.
2. Section 205.1 is revised to read as follows:
Sec. 205.1 Purpose and scope.
This part establishes the procedures to be utilized and identifies
the sanctions that are available in proceedings before the Department
of Energy and State Offices, in accordance with parts 209 through 214
of this chapter. Any exception, exemption, appeal, stay, modification,
recession, redress or resolution of private grievance sought under the
authority of 42 U.S.C. 7194 shall be governed by the procedural rules
set forth in 10 CFR part 1003.
Subparts D, E, H, I, J and R [Removed]
3. Subparts D, E, H, I, J, and R of Part 205 are removed and
reserved.
PART 1003--OFFICE OF HEARINGS AND APPEALS PROCEDURAL REGULATIONS
4. The authority citation for Section 1003 continues to read as
follows:
Authority: 15 U.S.C. 761 et seq.; 42 U.S.C. 7101 et seq.
5. The last sentence of Sec. 1003.1 is revised to read as follows:
Sec. 1003.1 Purpose and scope.
* * * These rules also do not apply to matters before the DOE Board
of Contract Appeals or other procurement and financial assistance
appeals boards, which are covered by their own rules.
6. The first sentence of Sec. 1003.20(a) is revised to read as
follows:
Sec. 1003.20 Purpose and scope.
(a) This subpart establishes the procedures for applying for an
exception or exemption, as provided for in section 504 (42 U.S.C. 7194)
of the Department of Energy Organization Act (42 U.S.C. 7101 et seq.),
from a rule, regulation or DOE action having the effect of a rule as
defined by 5 U.S.C. 551(4), based on an assertion of serious hardship,
gross inequity or unfair distribution of burdens, and for consideration
of such application by the OHA. * * *
* * * * *
[FR Doc. 96-17066 Filed 7-3-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-17061 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Exempted Fisheries
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35142-35143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17061]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[I.D. 062896B]
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Exempted Fisheries
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Additions and modifications to fishery exemptions.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this notification to authorize new fishery
exemptions and to modify an existing exemption under the regulations
implementing the Northeast Multispecies Fishery Management Plan (FMP).
This notification advises the public of three additional exempted
fisheries to be conducted in the Gulf of Maine/Georges Bank (GOM/GB)
and Southern New England (SNE) regulated mesh areas, adds restrictions
to an existing exempted fishery, and adds two species to the list of
allowed bycatch species in the Cultivator Shoal whiting exemption
program. The intent of this notification is to maximize fishing
opportunities in a manner that is consistent with the conservation
objectives of the FMP.
EFFECTIVE DATE: The GOM/GB monkfish exempted fishery is effective from
July 1, 1996, through September 14, 1996. The GOM/GB dogfish exempted
fishery is effective from July 1, 1996, through August 31, 1996. The
SNE monkfish exempted fishery is effective from July 1, 1996, through
October 31, 1996. The SNE dogfish exempted fishery modifications are
effective from July 29, 1996 through October 31, 1996. The Cultivator
Shoals whiting exemption program bycatch modification is effective from
July 1, 1996, through December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION: Regulations implementing Amendment 7 to the
FMP are effective on July 1, 1996 (61 FR 27710, May 31, 1996). These
regulations implement a comprehensive set of measures to control
fishing mortality and rebuild the primary stocks of regulated
multispecies. Among the specific measures is a bycatch control measure
that prohibits prosecution of any fishery that has not been determined
to have a minimal bycatch of regulated multispecies.
The bycatch control restriction is applied on a fishery basis in
each of two specific geographical areas, referred to as regulated mesh
areas: GOM/GB and SNE. A vessel may not fish in these areas unless it
is fishing lawfully in the multispecies fishery, under a scallop days-
at-sea allocation, with exempted gear, or in an exempted fishery. A
list of the exempted fisheries that have been previously determined to
meet the bycatch criteria and that may currently be conducted in each
area appears in Sec. 648.80.
Additions or deletions to the list of exempted fisheries may be
authorized by the Director, Northeast Region, NMFS (Regional Director),
if he/she determines that the bycatch of regulated species is, or can
be reduced to, less than 5 percent by weight of the total catch and
that such exemption will not jeopardize fishing mortality objectives
(Sec. 648.80(a)(7), (c)(5), and (d)(4)). The Regional Director is also
authorized to impose specific gear and area limitations to exempted
fisheries. Proposals for exemptions were submitted by members of the
fishing industry and have been examined by the NMFS Northeast Fisheries
Science Center. The proposals were to allow a sink gillnet fishery for
monkfish and dogfish and to allow squid (two species) to be retained as
bycatch in the Cultivator Shoals whiting fishery within the GOM/GB
area. Based on the data available, the Regional Director has determined
that these fisheries meet the exemption criteria in specific areas
during limited open seasons and under certain minimum mesh-size
restrictions.
GOM/GB Monkfish Exempted Fishery
For the period July 1, 1996, through September 14, 1996, an
exempted fishery for monkfish may be conducted by vessels using sink
gillnet gear within a specific portion of the GOM/GB regulated mesh
area. This is defined by connecting the following coordinates:
Latitude Longitude
41 deg.35' N. 70 deg.00' W.
42 deg.49.5' N. 70 deg.00' W.
[[Page 35143]]
42 deg.49.5' N. 69 deg.40' W.
43 deg.12' N. 69 deg.00' W.
Maine shoreline 69 deg.00' W.
Vessels fishing under this exemption are restricted to a minimum
mesh size of 10 inches (25.4 cm)(diamond). No species other than
monkfish, or lobsters in an amount not to exceed 10 percent by weight
of the total catch on board or 200 lobsters (whichever is less), may be
retained when fishing in this exempted fishery.
GOM/GB Dogfish Exempted Fishery
For the period July 1, 1996, through August 31, 1996, an exempted
fishery for dogfish may also be conducted in the area defined above by
vessels using sink gillnet gear with a minimum mesh size of 6.5 inches
(16.5 cm)(diamond). No species other than dogfish, or lobsters in an
amount not to exceed 10 percent by weight of the total catch on board
or 200 lobsters (whichever is less), may be retained when fishing in
this exemption program.
SNE Monkfish Exempted Fishery
For the period July 1, 1996, through October 31, 1996, an exempted
fishery for monkfish may be conducted by vessels using sink gillnet
gear within a specific portion of the SNE regulated mesh area. This is
defined by a line running south from the Massachusetts shoreline at
41 deg.35' N. lat. and 70 deg.00' W. long. and bounded on the west by
the Mid-Atlantic regulated mesh area. Vessels fishing under this
exemption are restricted to a minimum mesh size of 12 inches (25.4
cm)(diamond). No species other than monkfish may be retained when
fishing in this exempted fishery.
SNE Dogfish Exempted Fishery Modification
Analysis of the available data also revealed that an existing
fishery exemption, allowing sink gillnets in the dogfish fishery to be
used year-round in the SNE regulated mesh area, should be restricted by
a season and a minimum mesh-size requirement to remain consistent with
the bycatch control objective. NMFS observer data documents that
several trips exceeded the bycatch limit during the months of November
through April. Therefore, the Regional Director has determined that,
during the months of November through April, this fishery should no
longer be exempted; NMFS intends to address this through future
rulemaking. To provide additional assurance against bycatch of
regulated multispecies during the time period the fishery is exempted,
effective from July 29, 1996 through October 31, 1996, a minimum mesh
size of 6 inches (15.24 cm)(diamond) must be used. Further, from July
1, 1996, through October 31, 1996, this fishery is restricted to the
area described above for the SNE monkfish exempted fishery (i.e., the
area defined by a line running south from the Massachusetts shoreline
at 41 deg.35' N. lat. and 70 deg.00' W. long. and bounded on the west
by the Mid-Atlantic regulated mesh area). The allowed bycatch species
for this exemption are not changed.
Cultivator Shoals Whiting Exemption Program Bycatch
For the period July 1, 1996, through December 31, 1996, the bycatch
of squid is to be allowed under the existing time, area, and mesh-size
restrictions of the Cultivator Shoals whiting fishery exemption.
The Regional Director has informed the New England Fishery
Management Council of the proposals to allow the sink gillnet fisheries
for monkfish and dogfish in the GOM/GB area and to add squid to the
list of allowable bycatch in the Cultivator Shoals whiting fishery
during 1996. No objection was raised. The Regional Director has
determined that the GOM/GB sink gillnet fisheries, as described above,
and the previously exempted SNE sink gillnet fishery for dogfish, as
temporarily modified by this action, meet the exemption qualification
requirements specified in Sec. 648.80(a)(7).
Fish that are caught, possessed, or landed in accordance with
provisions of this action will be deemed by NMFS to be in accordance
with 50 CFR 648.80.
Classification
This action is taken under 50 CFR 648.80 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 28, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-17061 Filed 6-28-96; 4:20 pm]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-17022 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35137-35138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17022]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5530-3]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of Deletion of the Arsenic Trioxide Site from the
National Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The U.S. Environmental Protection Agency (EPA) announces the
deletion of the Arsenic Trioxide Superfund Site (Site) in North Dakota,
from the National Priorities List (NPL). The NPL is Appendix B of Title
40 of the Code of Federal Regulations (40 CFR) part 300 which is the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP),
promulgated pursuant to section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as amended.
EPA and the State of North Dakota have determined that the Site poses
no significant threat to public health or the environment and,
therefore, no further remedial measures pursuant to CERCLA
[[Page 35138]]
are appropriate. Further, EPA and the State of North Dakota have
determined that all appropriate response actions have been implemented
at the Site and that no further cleanup by responsible parties is
appropriate.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: Erna Acheson, Site Manager, U.S.
Environmental Protection Agency, Region 8, 999 18th Street, Suite 500,
Mail Stop 8EPR-SR, Denver, Colorado 80202-2466, (303) 312-6762.
SUPPLEMENTARY INFORMATION: The Site to be deleted from the NPL is:
Arsenic Trioxide Superfund Site, North Dakota.
A Notice of Intent to Delete for this Site was published October 2,
1995 (60 FR 51395 (1995)). The closing date for comments on the Notice
of Intent to Delete was November 1, 1995. No comments have been
received.
EPA identifies sites that appear to present a significant risk to
public health, welfare, or the environment and maintains the NPL as a
list of those sites. Any site deleted from the NPL remains eligible for
Fund-financed remedial actions in the unlikely event that future
conditions at the site warrant such action. Section 300.425 (e)(3).
Deletion of a site from the NPL does not affect responsible party
liability or impede agency efforts to recover costs associated with
response efforts.
List of Subjects in 40 CFR Part 300
Environmental Protection, Hazardous Waste, Superfund.
Dated: June 19, 1996.
Jack W. McGraw,
Acting Regional Administrator, U.S. Environmental Protection Agency,
Region VIII.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended under Colorado by
removing the site ``Arsenic Trioxide Site, North Dakota,''.
[FR Doc. 96-17022 Filed 7-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17021 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Page 35137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17021]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5527-2]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of deletion of the Martin Marietta Aluminum Company site
from the National Priorities List.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA), Region 10,
announces the deletion of the Martin Marietta Aluminum Company site
from the National Priorities List (NPL). The NPL constitutes Appendix B
of 40 CFR part 300 which is the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), which EPA promulgated pursuant to
Section 105 of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (CERCLA). EPA and the State of
Oregon Department of Environmental Quality (DEQ) have determined that
no further cleanup under CERCLA is appropriate and that the selected
remedy has been protective of human health and the environment.
EFFECTIVE DATE: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: Howard Orlean, U.S. EPA Region 10,
1200 Sixth Avenue, Mail Stop: ECL-113, Seattle, Washington 98101, (206)
553-6903.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
Martin Marietta Aluminum Company, The Dalles, Oregon.
A Notice of Intent to Delete for this site was published on May 13,
1996, (61 FR 22006). The closing date for comments on the Notice of
Intent to Delete was June 12, 1996. EPA received no comments.
EPA identifies sites which appear to present a significant risk to
human health, welfare or the environment, and it maintains the NPL as
the list of those sites. Sites on the NPL may be the subject of
Hazardous Substances Response Trust Fund-financed remedial actions. Any
site deleted from the NPL remains eligible for Fund-financed remedial
actions in the unlikely event that conditions at the site warrant such
action. Section 300.425 of the NCP states that Fund-financed actions
may be taken at sites deleted from the NPL. Deletion of a site from the
NPL does not affect responsible party liability or impede Agency
efforts to recover costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: June 14, 1996.
Chuck Clarke,
Regional Administrator, Region 10.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
PART 300--[AMENDED]
1. The authority citation for Part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended by removing the
Martin Marietta Aluminum Company Site, The Dalles, Oregon.
[FR Doc. 96-17021 Filed 7-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17010 Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and California; Closure from Point Arena, CA, to the U.S.-Mexican Border
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35144-35145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17010]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 660
[Docket No. 960126016-6121-04; I.D. 062896A]
Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and
California; Closure from Point Arena, CA, to the U.S.-Mexican Border
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS announces that the recreational salmon fishery in the
area from Point Arena, CA, to the U.S.-Mexican border, in the exclusive
economic zone (EEZ), closes at 0001 hours, July 2, 1996 and will remain
closed until 0001 hours, July 15, 1996. The season in the EEZ will
reopen under the terms of the preseason announcement of the 1996
management measures. NMFS has determined that the 2-week closure is
necessary to offset the increased impacts on Sacramento River winter
chinook salmon resulting from the decision by the California Fish and
Game Commission (Commission) to delay implementing an increase in the
recreational minimum size limit for chinook salmon within state waters.
This action is necessary for ocean salmon fisheries to remain in
conformance with the March 8, 1996, biological opinion issued by NMFS
and is intended to provide protection to Sacramento River winter
chinook salmon.
DATES: Effective 0001 hours local time, July 2, 1996, through 0001
hours local time, July 15, 1996. Comments will be accepted through July
15, 1996.
ADDRESSES: Comments may be mailed to Hilda Diaz-Soltero, Director,
Southwest Region, National Marine Fisheries
[[Page 35145]]
Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4132.
Information relevant to this notice has been compiled in aggregate form
and is available for public review during business hours at the
Southwest Regional Office, and at the Northwest Regional Office,
National Marine Fisheries Service, 7600 Sand Point Way NE., BIN C15700-
Bldg. 1, Seattle, WA 98115-0070.
FOR FURTHER INFORMATION CONTACT: Rodney R. McInnis or Daniel Viele,
310-980-4030.
SUPPLEMENTARY INFORMATION: Sacramento River winter chinook was listed
under the Endangered Species Act (ESA) in 1989. In response to
continuing and dangerously low abundance of winter chinook, NMFS issued
a March 8, 1996, biological opinion (revised April 5, 1996) which
required that ocean fishery impacts on winter chinook be reduced to the
extent that winter chinook spawning escapement would be increased by 35
percent compared to current levels. The 1996 ocean salmon management
measures (61 FR 20175, May 6, 1996) recommended by the Pacific Fishery
Management Council (Council) and approved and implemented by NMFS meet
the requirements of the biological opinion through a combination of
season reductions and increased minimum size limits.
The State of California acted in late April to conform its
commercial and recreational fishing regulations to the Council's
recommended management measures. On May 1, 1996, the Commission, which
regulates the recreational salmon fishery within state waters,
announced its intent to consider delaying implementation of the July 2
increase in the minimum size limit south of Point Arena for
recreationally caught chinook until August 26.
The Council considered the Commission's proposed action at its June
18-19 meeting in Seattle, WA. NMFS informed the Council that any state
actions resulting in an increase in winter chinook impacts would
trigger inseason action by NMFS to ensure the requirements of the
biological opinion would continue to be met. NMFS urged the Council to
recommend adjustments to the fishing seasons in the EEZ, which would
result in ocean salmon fisheries operating within the constraints of
the biological opinion, should the Commission delay implementation of
the July 2 minimum size limit increase. Despite advice from its Salmon
Technical Team (STT) that the decrease in winter chinook spawning
escapement resulting from the proposed delay would not meet ESA
requirements, the Council, at its June 18-19 meeting, recommended that
NMFS delay the minimum size limit increase in Federal waters as well.
The Council further advised NMFS to constrain any Federal regulatory
adjustments stemming from the Commission's actions to the California
recreational fishery.
On June 21, the Commission approved a July 15, 1996, date for the
increase in the minimum size limit for chinook in the recreational
salmon fishery south of Point Arena. A preliminary analysis by the STT
indicates that the difference between the winter chinook spawning
escapement increase expected under the NMFS approved and implemented
management measures and the Commission's delay to July 15 would be 0.7
percent. Although small, this difference results in winter chinook
impacts that do not meet the requirement of the biological opinion to
increase winter chinook spawning escapement by 35 percent.
NMFS has taken this inseason action to close the recreational
fishery in the EEZ during the same time period that the Commission has
delayed the increase in the minimum size limit in state waters.
Differing size limits in Federal and state waters are considered to be
unenforceable. Analysis of how to compensate in the EEZ for the 2-week
delay is made difficult by the lack of data partitioning recreational
effort between the EEZ and state waters, and an inability to predict
the portion of the recreational effort normally occurring in the EEZ
that will shift to state waters as a result of an EEZ closure. Data for
the commercial troll fishery off California in 1983 and 1984 indicate
67 percent of the catch occurred in the EEZ. However, there is no
reason to assume a similar distribution of the recreational effort.
Officials at the California Department of Fish and Game estimate that
perhaps 70 percent of the recreational effort in July may occur inside
state waters. If it is assumed that 30 percent of the recreational
fishing effort occurs in the EEZ and that no effort shift will result
from an EEZ closure, a 2-week closure of the EEZ to recreational
fishing in July would approximately compensate for the winter chinook
impacts caused by the 2-week delay in the minimum size limit in state
waters, according to the Winter Chinook Ocean Harvest Model. Based on
that analysis, NMFS expects that with this 2-week closure the ocean
fisheries will continue to meet the requirements of the biological
opinion. If, however, further analysis by the STT should indicate that
additional adjustments are required, NMFS will consider further
closures to salmon fisheries in the EEZ.
The Regional Director consulted with representatives of the Council
and the California Department of Fish and Game. Because of the need for
immediate action, NMFS has determined that good cause exists for this
notice to be issued without affording a prior opportunity for public
comment. This notice does not apply to other fisheries that may be
operating in other areas.
Classification
This action is authorized by 50 CFR 660.409 and 660.411 and is
exempt from review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 28, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-17010 Filed 6-28-96; 4:20 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17009 Pacific Coast Groundfish Fishery; Trip Limit Reductions
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35143-35144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17009]
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DEPARTMENT OF COMMERCE
50 CFR Part 660
[Docket No. 951227306-5306-01 ; I.D. 062696A]
Pacific Coast Groundfish Fishery; Trip Limit Reductions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Fishing restrictions; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS announces further restrictions to the Pacific coast
groundfish fisheries for Pacific ocean perch (POP) coastwide and Dover
sole north of Cape Mendocino, CA (40 deg.30' N. lat.). These actions
are authorized by regulations implementing the Pacific Coast Groundfish
Fishery Management Plan (FMP), which governs the groundfish fishery off
Washington, Oregon, and California. These restrictions are intended to
keep landings as close as possible to the 1996 harvest guidelines for
these species.
DATES: Effective from 0001 hours (local time) July 1, 1996, until the
effective date of the 1997 annual specifications and management
measures for the Pacific Coast groundfish fishery, which will be
published in the Federal Register. Comments will be accepted through
July 22, 1996.
ADDRESSES: Submit comments to William Stelle, Jr., Director, Northwest
Region (Director), National Marine Fisheries Service, 7600 Sand Point
Way NE., BIN-C15700, Seattle, WA 98115-0070; or Hilda Diaz-Soltero,
Director, Southwest Region, National Marine Fisheries Service, 501 West
Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6140;
or Rodney McInnis at 310-980-4040.
SUPPLEMENTARY INFORMATION: The following changes to routine management
measures for POP and Dover sole were recommended by the Pacific Fishery
Management Council (Council) at its June 18-19, 1996, meeting in
Seattle, WA.
POP. POP has been overfished and has been managed under a
rebuilding schedule since 1981. The acceptable biological catch (ABC)
is zero, and the harvest guideline is intended to provide only for
incidental catch of POP taken while fishing for other species. The
harvest guideline was reduced from 1,300 metric tons (mt) in 1995 to
750 mt on January 1, 1996, at which time a 2-month cumulative trip
limit of 10,000 lb (4,536 kg) was implemented.
The best available information at the June 1996 Council meeting
indicated that 315 mt of POP had been taken through May 31, 1996, and
that the 750-mt harvest guideline would be reached by September 28,
1996, if the rate of landings is not slowed. The Council recommended
that the 2-month cumulative limit for POP be reduced from 10,000 lb
(4,536 kg) to 8,000 lb (3,629 kg) coastwide to keep landings within the
harvest guideline in 1996.
Dover sole. Dover sole is one component of the Dover sole,
[[Page 35144]]
thornyheads (both shortspine and longspine), and trawl-caught sablefish
(DTS) complex. In recent years, the DTS complex has been managed with
cumulative trip limits, with specific limits on sablefish and
thornyheads. The remainder of catch could be Dover sole. The industry
generally concentrated on the higher valued fish, thornyheads and
sablefish. However, at its extreme, the entire cumulative limit for the
DTS complex (since January 1, 1996, 70,000 lb (31,752 kg) per 2-month
period ) could consist of Dover sole. Dover sole currently is managed
with a coastwide harvest guideline, which includes a harvest guideline
for Dover sole in the Columbia area (43 deg.00'-47 deg.30' N. lat.),
where harvest typically has been the highest.
The best available information at the June 1996 Council meeting
indicated that 1,361 mt of Dover sole in the Columbia area had been
taken through May 31, 1996, and that the 2,850-mt harvest guideline for
this area would be reached by October 25, 1996, if the rate of landings
is not slowed. The Council recommended that an explicit 2-month
cumulative limit of 38,000 lb (17,236 kg) be specified for Dover sole
taken and retained north of Cape Mendocino, CA. This is the amount of
the DTS complex that would remain under the existing cumulative 2-month
limit north of Cape Mendocino if the sub-limits for sablefish and
thornyheads are fully taken. The 2-month cumulative limit for Dover
sole is applied north of Cape Mendocino because this encompasses the
Columbia area, and is consistent with current 2-month cumulative limits
for the DTS complex (which differ north and south of Cape Mendocino)
without unduly restricting the fishery south of Cape Mendocino.
NMFS action. NMFS concurs with the Council's recommendations, which
are intended to keep landings of POP and Dover sole within their 1996
harvest guidelines. These restrictions apply to both the limited entry
and open access fisheries, including exempt trawl gear used to harvest
pink shrimp and prawns. As stated in the annual management measures at
61 FR 279 (January 4, 1996), ``A vessel operating in the open access
fishery must not exceed any trip limit, frequency limit, and/or size
limit for the open access fishery; or for the same gear and/or subarea
in the limited entry fishery; or, in any calendar month, 50 percent of
any 2-month cumulative trip limit for the same gear and/or subarea in
the limited entry fishery, called the '50-percent monthly limit.''' The
annual management measures announced at 61 FR 279, as amended, are
modified as follows:
1. Paragraphs IV.D.(1) and (2) of the annual management measures
for POP are revised to read as follows:
``D.(1) Limited entry fishery. The cumulative trip limit for POP is
8,000 lb (3,629 kg) per vessel per 2-month period. The 60-percent
monthly limit is 4,800 lb (2,177 kg).
D.(2) Open access fishery. Within the limits at paragraph IV.I. for
the open access fishery, the 50-percent monthly limit for POP is 4,000
lb (1,814 kg).''
2. Paragraphs IV.E.(3)(b)(i), IV.E.(3)(b)(iii), and IV.E.(4) of the
annual management measures for the DTS complex are revised to read as
follows:
``E.(3)(b)(i). North of Cape Mendocino. The cumulative trip limit
for the DTS complex taken and retained north of Cape Mendocino is
70,000 lb (31,752 kg) per vessel per 2-month period. Within this
cumulative trip limit, no more than 12,000 lb (5,443 kg) may be
sablefish, no more than 38,000 lb (17,236 kg) may be Dover sole, and no
more than 20,000 lb (9,072 kg) may be thornyheads. No more than 4,000
lb (1,814 kg) of the thornyheads may be shortspine thornyheads.''
``E.(3)(b)(iii) The 60-percent monthly limits are: For the DTS
complex, 42,000 lb (19,051 kg) north of Cape Mendocino, and 60,000 lb
(27,216 kg) south of Cape Mendocino; for trawl-caught sablefish, 7,200
lb (3,266 kg); for Dover sole north of Cape Mendocino, 22,800 lb
(10,342 kg); for both species of thornyheads combined, 12,000 lb (5,443
kg); and for shortspine thornyheads 2,400 lb (1,089 kg).''
``E.(4) Open access fishery. Within the limits in paragraph IV.I.
of the annual management measures, a vessel using exempt trawl gear in
the open access fishery is subject to the 50-percent monthly limits
which are as follows: For the DTS complex, 35,000 lb (15,876 kg) north
of Cape Mendocino, and 50,000 lb (22, 680 kg) south of Cape Mendocino;
for trawl-caught sablefish, 6,000 lb (2,722 kg); for Dover sole north
of Cape Mendocino, 19,000 lb (8,618 kg); for both species of
thornyheads combined, 10,000 lb (4,536 kg); and for shortspine
thornyheads, 2,000 lb (907 kg).''
Classification
These actions are authorized by the regulations implementing the
FMP. The determination to take these actions is based on the most
recent data available. The aggregate data upon which the determinations
are based are available for public inspection at the office of the
Director, Northwest Region, NMFS (see ADDRESSES) during business hours.
Because of the need for immediate action to slow the rate of harvest of
Dover sole and POP, and because the public had an opportunity to
comment on the action at the June 1996 Council meeting, NMFS has
determined that good cause exists for this document to be published
without affording a prior opportunity for public comment or a 30-day
delayed effectiveness period. These actions are taken under the
authority of 50 CFR 660.323(b)(1)(i), and are exempt from review under
E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 28, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-17009 Filed 6-28-96; 4:20 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17006 Political Activities of Federal Employees
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35088-35102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17006]
=======================================================================
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 734
RIN 3206-AH33
Political Activities of Federal Employees
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations regarding the political activity of Federal employees.
These regulations will inform Federal employees of the political
activities which are permitted and prohibited under the Hatch Act
Reform Amendments of 1993. Covered employees also should refer to OPM's
interim regulations as part 733, published in the Federal Register in
the February 4, 1994 edition, which specifically address political
activities connected with local elections in designated communities.
EFFECTIVE DATE: August 5, 1996.
FOR FURTHER INFORMATION CONTACT:
Jo-Ann Chabot at (202) 606-1700.
SUPPLEMENTARY INFORMATION: On October 6, 1993, the President signed the
Hatch Act Reform Amendments of 1993. The Reform Amendments became
[[Page 35089]]
effective on February 3, 1994 and OPM has the authority to issue
regulations under the Reform Amendments. On September 23, 1994, OPM
issued interim regulations with a request for comments at part 734
concerning the political activities that generally are permitted and
prohibited to Federal employees. OPM received comments from nine
Federal agencies, two Federal employee labor organizations, and an
individual before the comment period closed on November 22, 1994. OPM's
observations about the comments follow the numerical order of the
regulations starting at subpart A and ending with subpart G.
Comment on Supplementary Information Preceding the OPM Interim
Regulations
One Federal agency commented that the supplementary information
preceding OPM's interim regulations requires clarification of the
language which makes it appear that Sec. 734.208 applies exclusively to
Federal employees who belong to a Federal employee labor organization.
The agency noted that the language of Sec. 734.208 clearly shows that
the requirement of belonging to a Federal employee labor organization,
or other Federal employee organization, applies only to the fundraising
activities described in Sec. 734.208(b)(4). OPM agrees. Every employee
who is covered under subparts B and C of part 734 may participate in
the activities described in Sec. 734.208 (a) and (b) (1) through (3).
The activities described in Sec. 734.208(b)(4) are limited to members
of the Federal employee labor organizations and Federal employee
organizations that meet the requirements of 5 U.S.C. 7323(a)(2) and 5
CFR 734.103. Sections 734.404(c)-(d) and 734.410 describe permitted and
prohibited fundraising activities for employees covered under subpart
D.
Subpart A--General Provisions
Section 734.101 of the interim regulations provides definitions for
certain terms used throughout the regulations. The regulations define
``accept'' and ``receive'' as the acts of accepting or receiving
something from a person officially on behalf of a candidate, a
campaign, a political party, or a partisan political group. One Federal
agency and one Federal employee labor organization commented that the
language from the supplementary material preceding the interim
regulations which noted that ``ministerial activities preceding or
following the official acceptance and receipt are not covered under the
definitions'' should be added to the definitions. OPM agrees that
adding such language to the definitions of ``accept'' and ``received''
clarifies the definitions and has made the suggested changes.
OPM also received two comments on the definition of ``on duty'' in
Sec. 734.101. A Federal agency commented that the definition should
contain language from the supplementary material preceding the interim
regulations noting that it is not appropriate to grant excused absence
(administrative leave) to participate in political activities. This
agency also noted that the definition should note that it is not
appropriate to request sick leave in order to participate in political
activity. While OPM has the authority to regulate a covered employee's
partisan political activity, the granting of excused absence is a
matter of agency discretion. However, an agency's decision to grant
excused absences for the purposes of engaging in partisan political
activities or partisan political management would not be appropriate.
Indeed, granting excused absences solely for the purposes of
participation in partisan political activities might be a violation of
the prohibitions against use of official authority or influence to
interfere with or affect the results of an election. In addition, 5
U.S.C. 6307 and OPM's regulations at 5 CFR 630.401 prescribe the
conditions under which an employee may use sick leave. It is not
appropriate to permit the use of sick leave to participate in partisan
political activities. Sick leave should be granted only under the
conditions prescribed by 5 U.S.C. 6307 and 5 CFR 630.401.
Citing Bureau of Alcohol, Tobacco and Firearms v. Federal Labor
Relations Authority, 464 U.S. 89, 105 (1983), a Federal employee labor
organization commented that the definition of ``on duty'' should
exclude ``official time'' given to employees who are labor
organizations officials because employees on ``official time'' are not
considered to be in duty status, except for purposes of being paid.
Thus, the labor organization noted that, as a matter of statutory
construction, official time is simply not time ``on duty.'' The Supreme
Court concluded in this decision that Federal employees who negotiate
on behalf of a labor organization are not conducting official business
on behalf of the Government. However, the Supreme Court reached this
conclusion for the limited purpose of determining whether Federal
employees who represent their labor unions in collective bargaining
with agencies are entitled to reimbursement from the Government for
travel and per diem expenses.
Citing National Federation of Federal Employees and U.S. Department
of Veterans Affairs, 47 FLRA 1118, 1124, (1993) (NFFE) and American
Federation of Government Employees and U.S. Department of Labor, 39
FLRA 546, 553 (1991), (AFGE), the labor organization also noted that
the Federal Labor Relations Authority (FLRA) has sanctioned the use of
official time for union representatives to lobby Congress concerning
working conditions. NFFE concerned a collective bargaining proposal to
authorize the use of a reasonable amount of time as official time under
5 U.S.C. 7131(d) to lobby members of Congress in support of or
opposition to pending or desired legislation which would affect the
working conditions of employees represented by the union. The FLRA
found that 5 U.S.C. 7102 contemplates that employees will express their
views to Congress through their exclusive representative, and
specifically grants employees functioning as labor representatives the
right to present the views of the labor organization to Congress. It
also found that the proposal concerned labor-management relations
activities for which official time is authorized under section 7131(d).
Although the FLRA concluded that the proposal was negotiable under
section 7131(d), the FLRA reached its decision within the context of
petitioning Congress regarding nonpartisan issues that generally affect
employees' working conditions. It did not determine whether these
statutory provisions also provide for official time to participate in
partisan political activities on behalf of individuals who are
candidates for partisan political office.
AFGE concerns an agency denial of an employee's request to use an
agency automobile and to use official time for travel to and from a
hearing regarding his claim for workers' compensation. The FLRA held
that 5 U.S.C. 7131(d) did not preclude the parties in the case from
agreeing to provide for official time in circumstances unrelated to
labor-management relations activities, provided that granting such
official time was consistent with the statute and other applicable laws
and regulations. The FLRA cited attendance at hearings before the Equal
Employment Opportunity Commission and responding to discovery requests
in cases before the Merit Systems Protection Board as examples of
circumstances unrelated to labor-management relations activities where
use of official time might be authorized. Thus, this decision clearly
was made
[[Page 35090]]
within the context of prehearing for and appearing at administrative
hearings on behalf of employees, and does not address the use of
official time to participate actively in partisan political activities.
The Federal Service Labor-Management Relations Statute (Labor
Statute), at 5 U.S.C. 7101(a)(1)(A) provides that statutory protection
of employee rights to organize, bargain collectively, and participate
through labor organizations in decisions which affect them safeguard
the public interest. It also provides at section 7102 that employees
who represent labor organizations are entitled to present labor
organization views to Congress in connection with matters regarding
conditions of employment. However, none of the provisions in chapter 71
of title 5, United States Code, concern participation in partisan
political activities.
The Hatch Act Reform Amendments of 1993, enacted subsequent to the
Labor Statute, specifically address participation in partisan political
activities and permit Federal employees to participate actively in most
of the partisan political activities that previously had been
prohibited to these employees under the original Hatch Act. In return
for the opportunity for wider political participation, the Reform
Amendments specifically prohibit Federal employees from engaging in any
partisan political activities basically while on duty or on Federal
premises.
The intent of Congress in enacting the Reform Amendments, a statute
specifically intended to govern the partisan political activities of
Federal employees, controls the previously enacted provisions on labor-
management, at 5 U.S.C. Chapter 71, which clearly do not permit Federal
employees to participate in partisan political activities while they
are on duty or on Federal premises, and do not even address
participation in partisan political activities. In contrast, the Reform
Amendments, at 5 U.S.C. 7324(a), specifically prohibit most Federal
employees from such participation and provide for only one exemption
from the prohibition. The Reform Amendments, at 5 U.S.C. 7324(b),
exempt employees whose official duties and responsibilities continue
outside normal duty hours and while away from the normal duty post, and
who are (1) paid from an appropriation for the Executive Office of the
President, or (2) appointed by the President, by and with the advice
and consent of the Senate, to positions that are located within the
United States and involve determinations of policy to be pursued by the
United States in relations with foreign powers or in the nationwide
administration of Federal laws. If Congress had intended to exempt
other employees from the prohibition, Congress clearly would have
provided for such exemptions in the statute itself.
In addressing the question of whether the Reform Amendments
prohibit Federal employees from making voluntary salary allotments to
political action committees, an opinion issued by the Office of Legal
Counsel at the Department of Justice to the Office of Personnel
Management on February 22, 1995, also discussed at length the
prohibitions against partisan political participation on duty or on
Federal premises, and Congressional intent in enacting it. The opinion
stated:
It is evident from the statements of the (Reform Amendments')
leading sponsors that Congress intended to create a bright-line
rule, with no exceptions: Section 7324(a) prohibits covered
employees from engaging in all on-duty and on-site political
activity. As the principal Senate sponsor of the bill states, on-
the-job political activity ``would be absolutely and unequivocally
prohibited.'' 139 Cong. Rec. S8605 (daily ed. July 13, 1993)
(statement of Senator Glenn). Thus, for example Congress intended to
prohibit the wearing of political buttons on duty. Nor can covered
employees stuff envelopes with political materials or send out
campaign materials while they are on the job or in a federal
building--such activities are permitted only off-site and ``off the
job.''
Thus, Congress clearly intended to prohibit partisan political
participation on duty, and on Federal premises, and exempted only one
category of employees from these prohibitions. Consequently, for the
purposes of the Reform Amendments, OPM cannot define ``on duty'' to
exclude ``official time,'' as that term is defined in the Labor
Statute.
In this connection, Example 5 in Sec. 734.306 of the interim
regulations, which issued September 23, 1994 (59 FR 48756, 48773-
48774), provides that employees who are not on duty may engage in
political activity in the office of their labor organization even if
the space is provided by an agency or instrumentality of the United
States Government. In view of the Office of Legal Counsel opinion of
February 22, 1995, a subsequent intervening event, OPM found it
necessary to revisit its initial review of the statutory scheme
established through the Reform Amendments. Based on this further
review, OPM has concluded that the Reform Amendments require it to
treat the questions of time and space consistently in considering the
activities which the Reform Amendments permit and prohibit. Moreover,
it is clear both from OPM's statutory review and the Office of Legal
Counsel opinion of February 22, 1995, that Congress intended to create
a bright line prohibition against partisan political activities when
conducted on duty or on Federal premises, or both. Consequently, OPM
must remove Example 5 from Sec. 734.306 of the interim regulations.
A Federal agency commented that the definition of ``political
purpose'' should include non-partisan political purposes because many
political purposes are non-partisan. In the interim regulations, the
definition of ``political activity'' is limited to partisan political
activity because OPM has interpreted the Reform Amendments as
restricting Federal employees' participation in partisan political
activities. The legislative history of the Reform Amendments shows that
Congress was well aware that the Hatch Act prohibited active
participation in partisan political activities and, in enacting the
Reform Amendments, Congress was referring to partisan purposes and
activities when referring to a political purpose or political activity.
S. Rep. No. 57, 103rd Cong. 1st Sess. 2-6, 13-14, 24-39 (1993); 139
Cong. Rec. S8605-8606 (daily ed. July 13, 1993) (statement of Senator
Glenn); id. at S8685-8686 (daily ed. July 14, 1993) (statement of
Senator Roth); id. at S8701-8703 (daily ed. July 14, 1993) (statement
of Senator Stevens); id. at S8946 (daily ed. July 20, 1993) (statement
of Senator Durenberger); id. at S8947-8948 (daily ed. July 20, 1993)
(statement of Senator Levin). See H.R. Rep. No. 16, 103rd Cong. 1st
Sess. 16 (1993) (to accompany H.R. 20). President Clinton's remarks on
signing the Reform Amendments, delivered October 6, 1993, the day on
which he signed the Reform Amendments, reflect his understanding that
the terms ``political purpose'' and ``political activity'' refer to
partisan political purposes and partisan political activities. He
stated:
The Federal Employees Political Activities Act, which I'm about
to sign, will permit Federal employees and postal workers on their
own time to manage campaigns, raise funds, to hold positions within
political parties. Still, there will be some reasonable
restrictions. They wouldn't be able to run for partisan political
office themselves, for example, and there will be some new
responsibilities, which I applaud the Federal employees' unions for
embracing and supporting.
While we restore political rights to these millions of citizens,
we also hold them to high standards. The Federal workplace, where
the business of our Nation is done will
[[Page 35091]]
still be strictly off limits to partisan political activity.
Therefore, defining ``political purpose'' as a partisan political
purpose is consistent with other definitions in the regulations,
Congressional intent as reflected in the legislative history of the
Reform Amendments, and President Clinton's understanding of the term
``political activities'' as reflected in his remark on signing the
Reform Amendments.
Two Federal agencies and one Federal labor union commented that the
interim regulations do not provide enough guidance concerning a ``room
or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency or instrumentality thereof.'' The Federal labor
organization noted that the regulations did not specify which areas in
a ``room or building * * * '' encompasses. Another Federal agency noted
that the regulations did not address use of areas such as recreational
space in leased space or cafeterias, hallways, restrooms and employee
lounges. In response to these comments, OPM has added a definition of
``room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or any agency or instrumentality thereof.''
The definition specifically excludes those rooms in the White House
which are part of the Residence area or which are not regularly used
solely in the discharge of official duties. This exclusion is based on
the January 17, 1979, opinion of the Office of the Legal Counsel of the
Department of Justice. The same principles that govern the White House
also would apply to the residence of the Vice President which,
historically, has been treated like the White House. Therefore, the
same analysis and conclusions that apply to the White House also apply
to the residence of the Vice President.
The Federal labor organization further commented that political
activities in areas defined as ``public areas'' in the General Services
Administration's (GSA's) Federal Property Management Regulations should
not be prohibited because GSA's regulations create a protected public
forum. OPM sought comment from GSA on the issue of ``public areas''.
GSA noted that ``public areas'' remain ``rooms or buildings'' even when
in use by the public for cultural, recreational, or educational
activities governed by the Cooperative Use Act of 1976, 40 U.S.C.
490(a)(17), as implemented in the Federal Property Management
Regulations at 41 CFR subpart 101-20.4. GSA provided that the
Cooperative Use Act and the Reform Amendments should be read together.
Accordingly, the definition of ``room or building'' incorporates the
definition of ``public area'' in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003.
OPM also sought comments on this issue from the United States
Office of Special Counsel (OSC), which noted that the GSA regulations
at 41 CFR 101-20.003 define ``public areas'' as any areas of a building
under the control and custody of GSA which ordinarily are open to the
public, such as lobbies, meeting rooms, auditoriums, and similar areas
not assigned to a lessee or occupant. OSC stated its belief that
permitting political activities ``in such generally defined areas could
lead to confusion and enforcement problems in trying to determine what
parts of buildings remain `off limits' for such activity.'' It noted
further that ``allowing political activity in a hallway and courtyard
but not a conference room, or in an auditorium but not a cafeteria,
could result in confusing and possibly unenforceable interpretations.''
Moreover, the Supreme Court noted in Cornelius v. NAACP Legal
Defense and Education Fund, Inc., 47 U.S. 788, 802-903 (1985), a
designated public forum is created in a Federal office building, or any
other government property, only when there is a ``clear intent to
dedicate the property for assembly, debate and speech.'' The
Cooperative Use Act does not dedicate every public building as a public
forum, but only authorizes the GSA Administrator to make certain spaces
available ``on occasion'' and ``on such other terms and conditions as
the Administrator deems to be in the public interest'' if such use
``will not disrupt the operation of the building.'' In Cornelius, the
Supreme Court held that it will not ``infer that the government
intended to create a public forum when the nature of the property is
inconsistent with expressive activity'' and is reluctant to find a
``designated public forum,'' if expressive activity would disrupt the
principal function of the property. Id. at 803-804. In addition, in
Greer v. Spock, 424 U.S. 828, 831-836 (1976) the Court held that
allowing some speech or expressive activity in a forum does not
dedicate the property as a ``public forum'' for free and uninhibited
expressive activity by the public. Accordingly, ``public areas'' are
not ``public fora'' and employees are prohibited from engaging in
partisan political activity in those areas. In view of this, OPM has
deleted Example 11 from Sec. 734.306 which provides that a Federal
employee may engage in political activity in the courtyard outside of a
Federal building when the employee is not on duty.
One Federal agency commented that the regulations did not specify
whether an area leased to contractors such as a cafeteria or fitness
facility is a ``room or building * * * .''. Pursuant to the discussion
above, we have added an example in Sec. 734.306 providing that
employees may not engage in partisan political activity in space leased
to contractors in Federal buildings.
Regarding Sec. 734.306 of the interim regulations, a Federal labor
organization commented that the regulations imply that the prohibition
on political activities in rooms or buildings occupied in the discharge
of official duties does not extend to areas not controlled by the
Government, such as union offices and the leased offices of candidates.
The labor organization suggested modifying Example 5 in Sec. 734.306 to
state that political activity is permitted in space, such as meeting
rooms or other facilities, temporarily under the control of labor
organizations or other non-government entities. In view of the Reform
Amendments' prohibition against partisan political participation on
Federal property, and the Office of Legal Counsel's interpretation of
that prohibition, as described in the discussion relating to the
definition of the item ``on duty'' in Sec. 734.101, OPM must remove
this example from Sec. 734.306.
A Federal employee labor organization commented that the definition
of ``subordinate'' in the interim regulations would suggest that it
includes more categories of employees than the definitions of the terms
``supervisor'' and ``management official'' in 5 U.S.C. 7103(10) and
(11). This organization suggested that, rather than defining the term
``subordinate,'' the regulations use the definition of ``supervisor''
in 5 U.S.C. 7103(10), because the definition of ``supervisor'' is
familiar to many Federal employees. The interim regulations define
``subordinate'' as ``the relationship between two employees when one
employee is under the supervisory authority, control or administrative
direction of the other employee.'' OPM believes that the definition of
``subordinate'' is clear and relects the intent of Congress to prevent
any coercion of subordinate employees by a supervisor or any other
employee who may otherwise direct, control or exercise authority over
an employee.
Section 734.102 outlines the authority of the Office of Personnel
Management, the Office of Special Counsel, and the
[[Page 35092]]
Merit Systems Protection Board under the Reform Amendments and the
implementing regulations. One Federal employee labor organization
commented that this section should cite to the Reform Amendments as the
underlying authority. OPM agrees and has added these citations.
One Federal agency and one Federal employee labor organization
commented that the regulations do not specify whether the Office of
Special Counsel and the Merit Systems Protection Board have exclusive
jurisdiction. OPM agrees that the regulations need clarification.
Individual agencies do not have authority to investigate suspected
political activity violations or to impose administrative remedies.
Therefore, OPM is changing the regulations to reflect that the Office
of Special Counsel and the Merit Systems Protection Board have
exclusive jurisdiction.
Section 734.104 prohibits further restriction on the political
activities of covered employees except for employees who are appointed
by the President by and with the advice and consent of the Senate,
employees who are appointed by the President, non-career Senior
Executive Service members, Schedule C employees (appointed pursuant to
5 CFR 213.3301, 213.3302) and any other employees who serve at the
pleasure of the President. A Federal agency suggested adding a new
subsection to cover United States Trustees appointed under 28 U.S.C.
581. The exceptions in Sec. 734.104 are based upon a September 20, 1994
opinion of the Office of Legal Counsel of the Department of Justice
issued to the Office of Personnel Management which provided that an
Administration could impose additional restrictions on the specific
groups of political appointees outlined in Sec. 734.104. Accordingly,
the President or his designee may further restrict the political
activities of the specific employees described in Sec. 734.104.
However, pursuant to 28 U.S.C. 581, United States Trustees serve at the
pleasure of the Attorney General, not the President, and do not fall
within the exceptions provided by the Office of legal counsel Opinion.
therefore, OPM does not have the authority to add the United States
Trustees to the list in Sec. 734.104.
Subpart B--Permitted Activities
Section 734.203 of the interim regulations permits employees under
subpart B (Permitted Activities) to participate in nonpartisan
political activities and describes various nonpartisan activities. A
Federal employee labor organization noted that Sec. 734.203 fails to
reflect that 5 U.S.C. 7211 provides Federal employees with a statutory
right to petition Congress. It further commented that this issue is
confusing to Federal employees, and suggested adding another example to
Sec. 734.203 which illustrates that the Reform Amendments do not
prohibit Federal employees from exercising their rights under 5 U.S.C.
7211. OPM agrees with this suggestion, and has added such an example to
Sec. 734.203.
Section 734.204 of the interim regulations concerns permitted
participation in political organizations. A Federal agency suggested
amending this section by adding another paragraph which specifies that
an employee may serve as a delegate, alternate, or proxy to a political
party convention. OPM agrees with this suggestion and has added such a
paragraph to Sec. 734.204.
Example 2 in Sec. 734.204 specifies that an employee may serve as
an officer of a partisan or nonpartisan political action committee, as
long as the employee does not personally solicit, accept, or receive
political contributions. A Federal employee labor organization
suggested clarifying the example by stating that ministerial activities
which precede or follow the official acceptance and receipt of
contributions are not covered under the regulatory definitions of
``accept'' and ``receive.'' OPM agrees with this suggestion and has
amended Example 2 accordingly. Example 2 also describes a political
action committee as partisan or nonpartisan. This description does not
accord with the definition of political action committee that OPM has
added to its political activity regulations at 5 CFR part 734. The
definition of this term does not distinguish between partisan and
nonpartisan political action committees. Therefore, OPM has further
amended Example 2 by removing the descriptive terms ``partisan'' and
``nonpartisan.''
Section 734.205 of subpart B (Permitted Activities) describes
permissible political activities connected with participation in
campaigns for partisan political office. Example 5 in this section
specifies that an independent contractor is not covered under subpart B
and may display a political button while performing his contractual
duties. A Federal employee labor organization submitted several
comments concerning the display of political buttons by employees who
are covered under subpart B. OPM has discussed those comments in
connection with its discussion of Sec. 734.306, infra, which prohibits
partisan political participation while on duty, in uniform, in any room
or building occupied in the discharge of official duties, or while
using a Government-owned or leased vehicle.
Section 734.207 concerns candidacy for public office and permits
employees to run as independent candidates in the local partisan
elections described in 5 CFR part 733, or as candidates in nonpartisan
elections. A Federal agency proposed that OPM add an example to this
provision specifying that employees may distribute campaign leaflets,
even though the leaflets include information on where to send
contributions. The Federal agency further noted that the example also
should specify that the employee should refer to another campaign
worker any questions concerning further information about
contributions. OPM agrees with this suggestion, but has provided in the
example that such questions should be referred to another campaign
worker who is not a Federal employee. OPM also believes that it would
be more appropriate to add the example to Sec. 734.205, which concerns
participation in campaigns for partisan political office, rather than
to Sec. 734.207.
Section 734.208 describes permissible activities connected with
participation in fundraising. Subsection (b)(2) permits employees to
accept and receive political contributions in a partisan election
described in 5 CFR part 733, which pertains to the political activities
of covered employees who reside in certain localities designated by
OPM. A Federal agency stated its belief that subsection (b)(2)
conflicts with the statutory definition of the term ``political
contribution'' included in section 2(a) of the Reform Amendments and
codified at 5 U.S.C. 7322(3), as amended, which does not refer to
contributions for ``partisan'' political purposes. Therefore, the
Federal agency suggested deleting subsection (b)(2) from Sec. 734.208
of the OPM regulations.
Section 2(a) of the Reform Amendments, codified at 5 U.S.C. 7325,
as amended, authorizes OPM to issue regulations permitting employees,
``without regard to the prohibitions in paragraphs (2) and (3) of
section 7323(a) (of title 5, United States Code),'' to take an active
part in certain local elections. Section 7323(a)(2) and (3),
respectively, prohibit employees from knowingly soliciting, accepting,
or receiving political contributions, and from running ``for the
nomination or as a candidate for election to a partisan political
office.'' Candidacy for partisan political office occurs within the
context of partisan political elections. Accordingly,
Sec. 734.208(b)(2) of the OPM regulations does not conflict with the
[[Page 35093]]
definition at 5 U.S.C. 7322(3), as amended. Therefore, OPM has not
deleted Sec. 734.208(b)(2) from the final version of its regulations.
Section 734.208(b)(4)(ii) of the regulations provides that, under
specified limited circumstances, an employee may solicit, accept, or
receive political contributions from another employee who is not a
subordinate employee. A Federal employers labor organization suggested
including in the regulations the definition of the term ``supervisor''
stated at 5 U.S.C. 7103(10). This suggestion already has been addressed
in the discussion of Sec. 734.101 of the Regulations.
Example 5 in Sec. 734.208 prohibits employees from making telephone
solicitations for political contributions, even anonymously. A Federal
employee labor organization noted that, if a telephone solicitation
truly was anonymous, there would be no way of finding the employee who
might have made the solicitation. The Federal employee labor
organization further noted that a reference to anonymous telephone
solicitations might even encourage employees to make such
solicitations. Consequently, it suggested that OPM delete the reference
to anonymous telephone solicitions in Example 5. OPM believes that this
reference makes it clear to Federal employees that, except for
solicitations made under the circumstances described in 5 U.S.C.
7323(a)(2), solicitations of political contributions, even anonymous
telephone solicitations, are prohibited under the Reform Amendments.
Therefore, OPM will retain the reference to anonymous telephone
solicitations in Example 5.
Example 11 in Sec. 734.208 provides that a Federal employee may
solicit, accept, or receive the uncompensated volunteer services of any
individual, except a subordinate employee, to work on behalf of a
partisan political candidate or organization. A Federal employee labor
organizations suggested deleting the phrase ``except a subordinate
employee'' from Example 11. The labor organization said that the
interim regulations clearly specify that a political contribution does
not include the uncompensated volunteer services of an individual.
Thus, the labor organization did not find any basis for the example
prohibiting any employee from soliciting the volunteer services of
another employee.
Although it is true that uncompensated volunteer service of an
individual is not a political contribution, OPM believes that
soliciting such services from subordinate employees is covered under
Sec. 734.302, which prohibits employees from using their official
authority or influence for the purpose of influencing or affecting the
results of an election. OPM further believes that removing the
reference to subordinate employees in Example 11 would mislead
employees into believing that part 734 permits employees to solicit,
accept ore receive such services from subordinate employees. Therefore,
OPM has retained the reference to subordinate employees in Example 11.
The labor organization also said that Example 11 is at odds with
Example 4 in Sec. 734.208, which permits employees to sign letters
soliciting the contribution of uncompensated services of individuals.
It noted that, in a mass mailing, an employee's subordinates might
receive these letters. OPM agrees that Example 4 is confusing and
requires clarification in this regard. Therefore, it has revised
Example 4 to specify that an employee may not knowingly send such a
letter to his or her subordinate employees. However, Example 4 also
will specify that it is permissible to sign such letters as part of a
general mass mailing, as long as the mailing is not specifically
targeted to one's subordinate employees.
Another Federal employee labor organization noted that employees
who are not members may contribute to the labor organization's
political action committee, but Federal employees associated with the
labor organization may not accept or receive the contribution. It
suggested that Sec. 734.208 might be clarified through an additional
example stating that a Federal employee labor organization can receive
contributions, independent of their receipt by Federally employed
members of the labor organization, and describing procedures for making
such contributions. OPM believes that the regulations clearly state
that any employee may contribute to the multicandidate political action
committee of a Federal labor or Federal employee organization, and that
the Federally employed members of such organizations may not accept
contributions from Federal employees who are not organization members.
Therefore, OPM believes that it is not necessary to add the suggested
example to Sec. 734.208.
Finally, the Reform Amendments include an exception to the general
prohibition on soliciting, accepting, or receiving political
contributions. This exception permits employees to solicit, accept, or
receive such contributions from other employees who are not subordinate
employees and who are members of the same Federal labor organization or
Federal employee organization for the multicandidate political
committees of their organizations. It may not be clear to employees
that this exception only extends to the general prohibition against
soliciting, receiving, or accepting political contributions. It does
not extend to the other prohibitions against engaging in partisan
political activities either while on duty, or while on Federal
premises, or both. Thus, employees may solicit, accept, and receive
political contributions for the multicandidate political committees of
their organizations from employees who are not subordinates and who
belong to the same Federal labor or employee organization. However,
they may not conduct such activities either while they are on duty, or
while on Federal premises, or both. Accordingly, OPM has added an
example to Sec. 734.208 to clarify this matter. In addition, OPM notes
that labor organizations certified by the National Labor Relations
Board pursuant to 29 U.S.C. 151 et seq. to represent Postal Service
employees are not covered under the definition of ``labor
organization'' in 5 U.S.C. 7103(4) and, therefore, are not Federal
labor organizations within the meaning of the Reform Amendments.
However, these Postal Service labor organizations clearly qualify as
Federal employee organizations for purposes of the Hatch Act Reform
Amendments.
Subpart C--Prohibited Activities
Section 734.302 prohibits employees from using their official
authority or influence in order to interfere with or affect the results
of an election. A Federal agency commented that this section does not
give adequate guidance and needs to be clarified. The agency noted that
if the section intended to prohibit misues or coercion that it did not
clearly do so. OPM agrees that the Reform Amendments intended to
prevent employees from misusing their official authority or influence
in order to interfere with or affect the result of an election. OPM is
revising its regulations to clarify that Sec. 734.302 not only
prohibits the misuse of official authority such as the use of an
official title, as distinguished from a general form of address such as
``The Honorable,'' while participating in partisan political
activities, but also bans coercive actions such as awarding contracts
on the basis of contributions to partisan political campaigns or
soliciting subordinates for any partisan political purpose. OPM notes
in this regard that the merit system principles, at 5 U.S.C.
2301(b)(8), provide that employees should be protected against
arbitrary
[[Page 35094]]
action, personal favoritism, and coercion for partisan political
purposes. Section 2301(b)(8) also provides that employees should be
prohibited from using their official authority to interfere with or
affect an election or a nomination for election. Moreover, 5 U.S.C.
2302(b)(3) makes it a prohibited personal practice to coerce the
political activity of any person (including the providing of any
political contribution or service), or to take action against an
employee for his or her refusal to participate in these political
activities. Thus, soliciting uncompensated volunteer services from a
subordinate for a political purpose clearly falls within the
prohibition against the use of official authority to interfere with or
affect an election.
Accepting or receiving uncompensated volunteer services from a
subordinate results in as great a potential for coercion, or the
appearance of coercion, as soliciting such services from a subordinate.
Although an employee might not directly solicit uncompensated volunteer
services from a subordinate, he still could make it clear to the
subordinate in more subtle ways that it would be in the subordinate's
best interest to provide such services. In view of a superior's
authority to promote, discipline, issue awards, or take other personnel
actions affecting an employee's career, or to make recommendations
regarding such actions to an official above him in the chain of
command, and the potential for coercion that exists under such
circumstances, accepting and receiving uncompensated volunteer services
from subordinates also falls within the prohibition against the use of
official authority to interfere with or affect the results of an
election. Accordingly, OPM will retain the prohibition against
accepting and receiving uncompensated volunteer services from
subordinates.
Section 734.303 describes prohibited activities connected with
fundraising. Subsection (d) prohibits employees from soliciting,
accepting, or receiving uncompensated volunteer services from
individuals who are subordinates. A Federal employee labor organization
commented that, because the definition of ``political contribution''
does not include uncompensated volunteer services, employees should not
be prohibited from soliciting, accepting, or receiving such services
from their subordinates. For the reasons stated in its discussion of
Sec. 734,302, supra, OPM is retaining these prohibition in its
political activity regulation at part 734.
A Federal agency noted that the regulations do not reflect
specifically that, as long as an employee is not coerced, the employee
may voluntarily donate uncompensated volunteer services to his
supervisor. While OPM's regulations do not specifically prohibit an
employee from voluntarily donating uncompensated volunteer services to
his supervisor, Sec. 734.303(d) of the regulations does prohibit a
supervisor from accepting such services. Therefore, the concern
expressed by this agency in its comment has been adequately addressed
in the regulation.
This prohibition clearly would not apply to requests for volunteer
services made by the President or the Vice-President to the employees
specified in 5 U.S.C. 7324(b)(2) whose duties and responsibilities
continue outside of normal duty hours and away from the normal duty
post, and who are (1) paid from an appropriation for the Executive
Office of the President, or (2) appointed by the President, by and with
the advice and consent of the Senate, whose positions are located
within the United States and who determine policies to be pursued by
the United States in relations with foreign powers or in the nationwide
administration of Federal laws. Congress recognized their special
status in specifically excluding them from the prohibitions against
political participation while on duty, in uniform, on Federal premises,
or using a Government vehicle. Moreover, the President and Vice-
President of the United States specifically are excluded from the
definition of employee in 5 U.S.C. 7322(1) and, therefore, they are not
subject to the prohibitions on political activity in Reform Amendments
or part 734.
The agency also asked whether a subordinate employee may speak at a
political event in place of his superior, a PAS employee, when the PAS
employee suddenly learns that she cannot attend the event. The
regulations generally permit covered employees to speak at partisan
political events, but prohibit an employee who does not qualify for
coverage under subpart E of the interim regulations from giving such a
speech while on duty.
However, the ultimate answer to such questions depend on the facts
and circumstances in each individual case, and also may involve issues
related to the standards of ethical conduct for employees of the
Executive Branch. Therefore, OPM has determined not to address in its
regulatory examples the issues raised in the agency's comments, because
such examples might be misleading. Individual detailed guidance on such
fact based issues should be sought through an advisory opinion from the
United States Office of Special Counsel and, if warranted, from the
designated agency ethics official at the employee's agency.
Example 2 in Sec. 734.303 states that an employee's name may not
appear on an invitation to a fundraiser as a sponsor or a point of
contact. A Federal employee labor organization commented that this
example appeared to be inconsistent with Example 3 in Sec. 734.208
which permits employees' names to appear on such invitations as guest
speakers. It also commented that a point of contract on an invitation
for a fundraiser would not necessarily be involved with soliciting,
accepting or receiving political contributions in an official manner.
Thus, it suggested amending Example 2 to provide that an employee's
name could appear on an invitation as a point of contact for general
information about a fundraiser.
OPM does not believe that these two examples are inconsistent. A
person who is identified as a point of contact on a fundraising
invitation clearly gives the appearance of being associated with
soliciting, accepting, or receiving political contributions. Such is
not the case with a person who is only identified on the invitation as
a guest speaker. Thus, OPM has decided not to amend Example 2 in
Sec. 734.303.
Example 3 in Sec. 734.303 provides that an employee may not ask a
subordinate to volunteer on behalf of a partisan political campaign.
Section 734.303 describes fundraising activities which are prohibited.
A Federal employee labor organization suggested that OPM remove this
example because individual uncompensated volunteer services are not
political contributions. OPM has addressed the question of requesting
subordinate employees to perform uncompensated volunteer services in
Sec. 734.302, supra.
Section 734.305 prohibits an employee from knowingly soliciting or
discouraging the political participation of anyone who has matters
pending before the employee's employing office or of anyone who is the
subject of investigation or enforcement carried out by the employee's
employing office. A Federal agency commented that the regulations
should address soliciting or discouraging participation in non-partisan
elections. As OPM stated above in response to comments on the
definition of ``political purpose,'' the pertinent legislative history
and the President's remarks on signing the Reform Amendments show that
the Reform Amendments concern participation in partisan political
activities. Consequently, the regulations do not address soliciting or
discouraging participation in non-partisan political activities.
[[Page 35095]]
This same Federal agency further requested that this section
address whether an employee may endorse a candidate for an elective
office, the duties of which require the incumbent of that office to
consistently transact business before the agency. In this instance, it
is impossible to provide an example that would accurately answer this
agency's inquiry because the answers to such questions depend on the
facts and circumstances of each individual case.
This agency also asked whether employees appointed by the President
by and with the advice and consent of the Senate (PAS) are prohibited
from making political speeches in their personal capacity addressing
issues related to agency business. The Reform Amendments and OPM
regulations at part 734 generally do not prohibit a PAS from making a
political speech in her personal capacity, providing that the President
or his designee has not placed further restrictions on her political
activities in accordance with Sec. 734.104, and the speech is not made
to solicit or discourage the political participation of certain persons
described in Sec. 734.305.
Depending on the facts and circumstances associated with the
speech, however, such activity also may be government by provisions
other than the Reform Amendments. Because determinations on whether
this activity is prohibited ultimately rest on the facts and
circumstances of each individual case, employees should consult the
Office of Special Counsel and, if warranted, the designated agency
ethics official for advice.
Section 734.305 requires that each agency or instrumentality of the
United States or District of Columbia Government must determine when
matters are pending and ongoing within the employing office of the
agency or instrumentality. This same Federal agency also commented that
the regulations should provide guidelines for agencies to follow in
determining when a matter is pending or ongoing. Since there are great
differences among agencies or instrumentalities, OPM disagrees with
this comment and believes each agency and instrumentality should make
its own determination.
Section 734.306 prohibits employees covered by subparts B and C
from participating in partisan political activities while they are on
duty, in uniform, in a room or building occupied in the discharge of
official duties by an individual employed or holding office in the
Government of the United States, using a Government-owned or leased
vehicle, or using a privately-owned vehicle in the discharge of
official duties. An individual commented that, if OPM intended through
its interim regulations to prohibit employees from wearing partisan
political buttons while on duty, OPM should add a provision to subpart
C, Prohibited Activities, explicitly stating that employees may not
wear partisan political buttons while on duty. Two Federal agencies
also suggested OPM might do this by adding an example to Sec. 734.036
specifically stating that employees may not wear partisan political
buttons while they are on duty or display partisan political materials
at their work stations. OPM agrees with these suggestions and, through
another example added to Sec. 734.306, has prohibited employees from
wearing partisan political buttons while on duty.
A Federal employee labor organization commented that the interim
regulations permit SES members to wear partisan political buttons while
they are on duty, but prohibit competitive service employees from
wearing partisan political buttons under the same circumstances. The
Reform Amendments' prohibition against partisan political participation
on duty extends to all covered employees except for the two employee
categories described in 5 U.S.C. 7324(b)(2) and covered under subpart E
(Special Provisions for Certain Presidential Appointees and Employees
Paid from the Appropriation for the Executive Office of the President).
All other employees, including SES members, are prohibited from wearing
partisan political buttons on duty.
One Federal agency asked whether the prohibition on employees
wearing political buttons while on duty extends to items worn on duty,
or displayed in the work place, relating to candidates in nonpartisan
elections or to nonpartisan issues. The interim regulations provide
that the prohibition against political participation on duty only
extends to partisan political participation. Thus, the prohibition
against wearing political buttons on duty or displaying political items
in the workplace does not extend to nonpartisan candidates or to
nonpartisan issue-oriented campaigns.
A Federal employee labor organization commented that wearing
political buttons is an expression of speech guaranteed by the
Constitution, as well as an expression of opinion about a political
candidate that clearly is permitted under the Hatch Act and should
continue to be permitted under the Reform Amendments. Citing American
Federation of Government Employees AFL-CIO v. Pierce, 586 F. Supp. 1559
(1984), the labor organization said that the prohibition against
wearing political buttons on duty and the illustrative examples are
overboard, and do not appear to have a specific purpose such as
protecting the efficient performance of official duties or preventing a
conflict, or apparent conflict, of interest.
The legislative history of the Reform Amendments shows Congress was
aware that, under the then-existing provisions of the Hatch Act,
Federal employees were permitted to wear partisan political buttons
while on duty. See 139 Cong. Rec. S8604-S8606 (daily ed. July 13, 1993)
(statement of Senator Glenn). It also shows that Congress clearly
intended to establish a bright-line rule prohibiting all political
participation on duty, and that this rule extends to wearing partisan
political buttons while on duty. S. Rep. No. 57, 103rd Cong. 1 st Sess.
14 (1993), reprinted in 1993 U.S.C.C.A.N. 1082, 1815; 139 Cong. Rec.
S8684 (daily ed. July 14, 1993) (statement of Senator Glenn); id. at
S8765, S8770, S8785-S8786 (daily ed. July 15, 1993) (statement of
Senator Glenn); id. at S8805, 8808 (daily ed. July 15, 1993)
(statements of Senators Boxer and Sarbanes); id. at S8929 (daily ed.
July 20, 1993) (statement of Senator Glenn). See H.R. Rep. No. 16,
103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).
The legislative history of the Reform Amendments further shows that
Congress focused on wearing partisan political buttons on duty because
this activity could result in subtle and unspoken coercion when done by
a supervisor, the appearance of a conflict of interest, and the
erroneous identification of the Government as a supporter of particular
partisan candidates, parties, or groups. 139 Cong. Rec. S8604-S8605
(daily ed. July 13, 1993) (statement of Senator Glenn); id. at S8785
(daily ed. July 15, 1993) (statement of Senator Glenn); id. at S8926
(daily ed. July 20, 1993) (statement of Senator Glenn). See H.R. Rep.
No. 16, 103rd Cong. 1st Sess. 16, 19-20 (1993) (to accompany H.R. 20).
Thus, the regulatory prohibition against employees wearing partisan
political buttons while on duty originates with the clear expression of
Congressional intent in enacting these Amendments.
American Federation of Government Employees v. Pierce concerned a
Veterans' Administration regulation prohibiting employees from wearing
political buttons while on duty. The United States District Court for
the District of Columbia struck down the prohibition as overboard,
finding that the prohibition did not protect the
[[Page 35096]]
efficient performance of official duties or prevent a conflict or
apparent conflict of interest.
Current circumstances differ from the circumstances which resulted
in the district court decision. At that time, the Hatch Act prohibited
Federal employees from participating actively in any partisan political
activities, and Federal employees clearly could not be associated with
partisan political candidates, parties, or groups. Now the Reform
Amendments permit most Federal employees to participate actively in
almost all partisan political activities and to become prominently
identified with partisan political candidates, parties, or groups. The
expansion of such opportunities for Federal employees to become
involved in, and identified with, partisan politics, increases the
danger of erroneous perceptions about coercion of Federal employees or
individual citizens having business with the Government, identification
of the Government with specific partisan candidates or groups,
favoritism in administering Government programs, and conflicts of
interest. A prohibition narrowly tailored to displays of partisan
political buttons, pictures, signs, stickers, or badges on duty or in
the workplace clearly promotes the efficient performance of official
duties and prevents a conflict or apparent conflict of interest under
current circumstances.
In a related matter, an individual, a Federal employee
organization, and five Federal agencies commented unfavorably on the
requirement to cover bumper stickers on personal vehicles, particularly
during occasional use for official travel, such as driving the vehicle
to the site of a training course. The labor organization commented that
there was no rational basis for requiring employees to cover bumper
stickers when they use their personal vehicles as incidental
transportation, for example, in lieu of taking a taxi to or from
another agency for a meeting. The labor organization stated that the
requirement was not realistic and suggested that it should apply only
when the private vehicle itself is used in the performance of official
duties, such as delivering mail on a rural route or inspecting crops.
The agencies and individual commented that the requirement to cover
bumper stickers when using a personal vehicle for official business was
excessive, unreasonable, unduly burdensome, and virtually
unenforceable.
OPM agrees that a requirement to cover bumper stickers in every
instance is not practical and would be difficult to enforce where
employees use their private vehicles only occasionally, such as in
driving to a meeting or training course. Imposing this requirement
within the context of such occasional use of private vehicles would
result in inadvertent violations by employees who easily may forget to
cover the bumper stickers on their vehicles, and would be very
difficult to enforce. Therefore, OPM has amended the examples in
Sec. 734.306 to reflect that the requirement to cover bumper stickers
on private vehicles only applies when the vehicle is used for official
business on a recurrent basis, or clearly is identified as being on
official business, and does not apply to the occasional use of such a
vehicle for official business. However, within this context, OPM also
desires to make it clear to covered employees that they are prohibited
from placing partisan political bumper stickers on any Government-owned
or leased vehicle.
OPM accordingly has defined the terms ``recurrent'' and
``occasional'' in Sec. 734.101. These definitions are based on common
usage. The Random House Dictionary of the English Language
(Unabridged), 2d Ed., 1987, defines ``occasional'' as ``occurring or
appearing at irregular or infrequent intervals; occurring now and then;
acting or serving for the occasion or only on particular occasions.''
Webster's Third New International Dictionary of the English Language
(Unabridged), 1966 Ed., defines ``occasional'' as ``occurring or
operating on a particular occasion; proceeding from the occasion; met
with, appearing, or occurring irregularly and accordingly to no fixed
or certain scheme; infrequent.''
The Random House Dictionary defines ``recurrent'' as ``occurring or
appearing again, esp. repeatedly or periodically.'' Webster's
Dictionary defines ``recurrent'' as ``returning from time to time;
appearing or coming periodically; happening again and again.'' Finally,
the Oxford English Dictionary (1933) defines ``recurrent'' as occurring
or coming again (esp. frequently or periodically); reappearing.'' The
regulatory definitions of ``occasional'' and ``recurrent'' incorporate
these concepts.
Example 6 of Sec. 734.306 of the interim regulations concerns
political activities in a commercial building where Government agencies
and instrumentalities lease office space, and where the headquarters of
a candidate for partisan political office also are situated. The
example provides that an employee of the Government agency or
instrumentality may do volunteer work at the candidate's headquarters
when the employee is not on duty.
OPM believes that this example is confusing because it suggests
that employees may participate in political activities only in the
candidate's headquarters, and not elsewhere in the building. Therefore,
OPM has revised the example to clarify that, when employees are not on
duty, the Reform Amendments do not prohibit them from participating in
political activities in the other areas of the building that are not
leased by the Government, including public areas that are shared by all
of the tenants, such as the main lobby. Although the Reform Amendments
would not prohibit employees from political participation in areas that
are shared by all of the tenants, OPM notes that political activities
in these areas may be restricted by the landlord.
For purposes of contrast and further clarification, OPM has
included an additional example specifying that, where a Government
agency or instrumentality leases all of the space in a commercial
building, employees may not participate in political activity in any
area of the building, including the public areas of the leased
building.
OPM believes this distinction is in accord with the February 22,
1995 opinion of the Office of Legal Counsel at the Department of
Justice to the Office of Personnel Management. That opinion stressed
that Congress intended to create a bright-line rule against
participating in partisan political activities while on Federal
premises. To apply this prohibition to all areas of a commercial
building, when the Government has leased only a part of the building,
would undermine the bright-line rule described in the Office of Legal
Counsel opinion. Accordingly, distinguishing between a commercial
building in which the Government has leased part of the space and a
commercial building in which the Government has leased all of the space
accords with the Congressional intent of establishing a bright-line
rule as described in the Office of Legal Counsel opinion.
Example 10 of Sec. 734.306 of the interim regulations provides that
Federal employees may participate in partisan political activities
while they are sitting in the park on their lunch break, if they are
not on duty during their lunch break. A Federal agency suggested that
the regulations specify when Federal employees would not be on duty
during their lunch breaks, and that individual agencies should
determine whether employees are on duty at that time. In general,
employees who are covered by title 5, United States Code, are not in a
pay status during a bona fide lunch break and, therefore, they are not
on duty. However, for the
[[Page 35097]]
purposes of these regulations, an employee still is considered to be on
duty during his lunch hour when he is representing an agency or
instrumentality of the United States in an official capacity during
that time.
Example 1 of Sec. 734.307 prohibits the Federally employed spouses
of candidates for partisan political office from soliciting, accepting,
or receiving contributions of money or personal services. A federal
employee labor organization suggested deleting personal services from
Example 1 because soliciting volunteer services is not prohibited.
Although personal services are different from the uncompensated
volunteer services of an individual, it is clear from the comment that
use of the term ``personal services'' in Example 1 is confusing. To
clarify the example, OPM has deleted the term ``personal services''
from Example 1, and substituted the phrase ``paid or unpaid services of
a business or corporation.''
Subpart D--Employees in Certain Agencies and Positions
Subpart D of the regulations concerns the political activities of
employees in the sensitive agencies and positions that are listed in
Sec. 734.401. Through section 501(k) of Pub. L. 103-359 (October 14,
1994), Congress added the Central Imagery Office to the sensitive
agencies and positions listed in 5 U.S.C. 7323 (b)(2)(B)(i).
Accordingly, OPM has added the Central Imagery Office to the agencies
and positions listed in Sec. 734.401(a) of the regulations.
Section 734.402 of subpart D describes permissible expressions of
individual opinion for these employees. Subsection (b) of Sec. 734.402
provides that they may display partisan political pictures, signs,
stickers, badges, or buttons, as long as these items are displayed off
duty and away from Federal premises in accordance with the provisions
of Sec. 734.408. Two Federal agencies suggested changing the cross-
reference in subsection (b) from Secs. 734.408 to 734.406. Section
734.408 generally prohibits active participation in partisan political
management and partisan political campaigns. Section 734.406 prohibits
political participation while on duty, in uniform, in any room or
building occupied in the discharge of official duties, or using a
Federal vehicle. We agree with the suggestions that a cross-reference
to Sec. 734.406 would be more appropriate, and have changed
Sec. 734.402(b) to reflect this. OPM also has amended Example 5 in
Sec. 734.402 to reflect when it is permissible for an employee who is
covered under subpart D to wear a partisan political button and, for
purposes of clarification, has added another example providing that an
employee may place partisan political signs on his or her private
property.
Section 734.404 describes permissible participation in political
organizations. Subsection (c) provides that employees may attend
political conventions, rallies, fund-raising functions, or other
political gatherings. A Federal agency noted that Example 1 appears to
contradict, rather than to illustrate, this principle by prohibiting
employees from participating in demonstrations or parades while they
are attending a convention or rally. The Federal agency suggested that
OPM should explain further exactly what activities are permissible, or
define what is meant by attending a convention, rally, or other
political gathering.
OPM agrees that Example 1 in Sec. 734.404 should be clarified.
Although employees may attend the conventions and rallies of political
parties or partisan political groups, joining in the parades and
demonstrations held at these functions is considered active
participation in partisan political activity. Therefore, Example 1 in
Sec. 734.404 has been amended to reflect that employees may attend
partisan political conventions or partisan political rallies solely as
spectators, but they may not participate in demonstrations or parades
at these partisan political functions.
Section 734.406 prohibits employees from participating in political
activities while they are on duty, in uniform, in any room or building
occupied in the discharge of official duties, or using a Federal
vehicle.
Another Federal agency asked whether Sec. 734.406 prohibits
displays in the workplace or while on duty of pictures, signs, badges,
or buttons for candidates in non-partisan elections or for ballot
issues not specifically identified with a political party. The interim
regulations provide that the prohibition against political
participation on duty only extends to partisan political participation.
Thus, the prohibition against wearing political buttons on duty or
displaying political items in the workplace does not extend to displays
for candidates in nonpartisan elections or to issues that are not
specifically identified with a political party.
The same Federal agency requested clarification on the restriction
in Sec. 734.406(a)(4) of participating in political activities while
using a privately owned vehicle in the discharge of official duties.
The agency noted that, since political participation includes displays
of partisan political bumper stickers, the restriction could be
interpreted as barring employees from having such bumper stickers on
their private vehicle if the employees use the vehicle for official
travel. The agency further noted that enforcement of such a restriction
would be impractical. We agree with this assessment, and have added
clarifying examples to Sec. 734.406 applying the restriction only to
privately owned vehicles that are used for official business on a
recurrent basis or clearly are identified as being on official
business. The restriction does not apply to the occasional use of such
a vehicle for official business. The terms ``occasional'' and
``recurrent'' are defined in Sec. 734.101.
In a related matter, an individual and two Federal agencies
generally commented in connection with subpart C that, if OPM intended
through its interim regulations to prohibit employees from wearing
partisan political buttons while on duty, OPM should add a provision
explicitly stating that employees may not wear partisan political
buttons while on duty. Two Federal agencies suggested OPM might do this
by adding an example specifically stating that employees may not wear
partisan political buttons while they are on duty or display partisan
political materials at their work stations. OPM believes that these
suggestions are instructive with regard to subpart D. Therefore, OPM
has added to Sec. 734.406 another example which specifies that wearing
partisan political buttons while on duty or displaying partisan
political items in the workplace is prohibited.
An agency commented that Secs. 734.408 and 734.411(a) prohibit the
same behavior, are duplicative and potentially confusing, and should be
combined. Section 734.408 generally prohibits active participation in
political management and campaigns, ``except as permitted by this
part.'' Section 734.411(a) prohibits active participation in managing
the political campaign of a candidate for partisan political or party
office. Section 734.408 covers a broader range of political activities
than Sec. 734.411(a), which prohibits active participation in managing
the political campaign of a candidate for partisan political office or
political party office. Section 734.408 also prohibits activities
described in Secs. 734.409 and 734.410, as well as in the remaining
subsections of Sec. 734.411. Although OPM has not combined
Secs. 734.408 and 734.411(a), OPM believes that the phrase ``except as
permitted by this part'' in Sec. 734.408 is confusing because employees
covered under this section are permitted to
[[Page 35098]]
participate only in the political activities described in subpart D.
Therefore, OPM revised this phrase to include a reference to ``subpart
D'' rather than to ``this part.''
Section 734.412(a) of the interim regulations provides that an
employee covered under subpart D may not be a candidate for partisan
political office except as described in Sec. 734.403 which permits
candidacy in nonpartisan elections. A Federal agency commented that the
exception in Sec. 734.412(a) should be eliminated because it is
meaningless and confusing. OPM agrees with this suggestion; a
nonpartisan election by definition cannot include any candidates for
partisan political office. Therefore, OPM has removed from
Sec. 734.412(a) the reference to Sec. 734.403.
Subpart E--Special Provisions for Certain Presidential Appointees and
Employees Paid From the Appropriation for the Executive Office of the
President
A Federal agency suggested that Sec. 734.502(a)(2)(ii) include
examples of, or a method for determining whether, an employee who is
appointed by the President, by and with the advice and consent of the
Senate, ``determines policies to be pursued by the United States in
relations with foreign powers or in the nationwide administration of
Federal laws.'' OPM cannot devise a precise procedure that would apply
to all positions that might be covered under Sec. 734.502(a)(2)(ii)
because each position has its own unique qualifications and duties. In
view of this, providing examples of covered positions based on
descriptions of their duties and responsibilities would not be of
assistance is deciding whether a position meets the criteria in
Sec. 734.502(a)(2)(ii). Thus, determinations concerning the coverage of
a specific position under Sec. 734.502 must be made on an individual
basis by the President or his appropriate designee.
Section 734.502(d) provides that an employee, to whom subpart E of
part 734 does not apply and who is not on duty, may participate in
political activities in rooms of the White House which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties. In its discussion of the Residence area of the
White House in connection with Sec. 734.101, OPM noted that the same
principles that govern the White House also should apply to the
residence of the Vice President which, historically, has been treated
like the White House. OPM also noted that the same analysis and
conclusions that apply to the White House also apply to the residence
of the Vice President. Therefore, OPM is amending Sec. 734.502(d) to
include the residence of the Vice President.
One Federal agency commented that all Inspectors General, including
those appointed by the heads of designated Federal entities pursuant to
the Inspector General Act of 1978, section 8G, should be prohibited
from taking an active part in political management or political
campaigns. We find no basis for this across-the-board restriction of
all such Inspectors General. Section 3(c) of the Inspector General Act,
which provides that for the purposes of section 7324 of title 5, United
States Code, an Inspector General is not considered to determine
policies to be pursued by the United States in the nationwide
administration of Federal laws, applies only to an Inspector General
who is appointed by the President by and with the advice and consent of
the Senate. Section 8G(c) provides that an Inspector General in a
designated Federal entity is appointed by the head of the designated
Federal entity according to the laws and regulations governing
appointments within that specific designated Federal entity. Therefore,
the treatment Inspectors General, other than those appointed by the
President by and with the advice and consent of the Senate, receive
under the regulations depends on their appointment and the entities in
wh
FR Doc. 96-17006 Political Activities of Federal Employees
ich they serve.
Use of Official Title, Noncareer Members of the Senior Executive
Service, Use of the Phrase ``in Concert With'' in the Final
Regulations, and Political Signs
Two Federal agencies commented that the treatment of the use of
official title in connection with political activities was not clear.
In response, we have amended Sec. 734.302 to include a prohibition on
the use of official title in connection with any partisan political
activity. However, a form of address, such as ``Honorable'' may be used
on letters, invitations, or when introducing a covered employee at
partisan political functions.
A Federal agency noted that although career Senior Executive
Service (SES) employees are specifically mentioned in Sec. 734.401,
noncareer SES employees are not mentioned in the regulations. Noncareer
SES employees who do not work in the agencies or positions described in
Sec. 734.401 are subject to the provisions of subparts B and C of part
734. OPM has added examples about these noncareer SES employees to the
provisions in subparts B and C to make it clear that they are subject
to the provisions of these subparts. Noncareer SES employees who work
in the agencies or positions described in Sec. 734.401 are subject to
the more restrictive provisions of subpart D of part 734. Examples
regarding noncareer SES employees also have been added to subpart D.
Finally, all career SES employees also are subject to the provisions of
subpart D.
A Federal agency noted that the phrases ``in concert with'' and
``in consultation or coordination with'' both appear in subpart D, and
questioned whether the difference in language signifies any difference
in meaning. Although these phrases were intended to express the same
concept, the use of the two phrases is a source of confusion.
Therefore, OPM has eliminated the phrase ``in consultation or
coordination with'' and exclusively used ``in concert with'' in the
final version of the regulations. OPM relies on the language in
Blaylock v. United States Merit Systems Protection Board, 851 F.2d 1348
(11th Cir. 1988) and Biller v. United States Merit Systems Protection
Board, 863 F.2d 1079 (2d Cir. 1988), which refers to political activity
done ``in concert with'' political parties, partisan groups, or
candidates for public office in partisan elections. See Blaylock v.
United States Merit Systems Protection Board, 851 F.2d at 1354; Biller
v. United States Merit Systems Protection Board, 863 F.2d at 1090-1091.
A Federal agency suggested that an example should be added to the
regulations that clearly permits employees to place partisan political
signs on their property. OPM has added such an example to Sec. 734.205.
In addition, another example in Sec. 734.402 reflects that employees
covered under subpart D also may display partisan political signs on
their property.
Contributions to Political Action Committees Through Voluntary Salary
Allotments
The final regulations also contain new provisions which result from
the issuance, on February 22, 1995, of an opinion by the Office of
Legal Counsel (OLC) at the Department of Justice to the Office of
Personnel Management. The OLC opinion addresses the question of whether
the Reform Amendments prohibit Federal employees from making voluntary
salary allotments to political action committees (PACs). The OLC
initially noted that ``PACs'' are not defined as such under Federal
law. OLC noted further that 26 U.S.C. 9002(9) defined the term
``political committee'' and stated that, for the purposes of its
opinion, ``PAC'' referred only to an organization that came within this
[[Page 35099]]
definition. OPM has incorporated into part 734 the definition of
``PAC'' that OLC used in its opinion. OPM notes that the definition
does not make a distinction between partisan and nonpartisan PACs
because, according to the OLC opinion, donating to a PAC that meets
this definition would be considered political activity within the
meaning of the Reform Amendments.
OLC noted in this regard that political activity includes actions
sufficient to effect the making of a political contribution, such as
taking steps to ensure that part of one's salary is contributed to a
political campaign or a PAC. OLC noted that the OPM interim regulations
on political activity confirmed its view that contributing to political
candidates constitutes political activity within the meaning of the OPM
interim regulations because it is directed toward the success or
failure of a political party, candidate for partisan political office,
or partisan political group. OPM has not revised this definition of
political activity.
Moreover, OLC noted that Congress intended that making
contributions to PACs would be considered political activity under the
terms of the Reform Amendments. It noted that Senator Glenn, the
leading Senate sponsor of the Reform Amendments, referred specifically
to PAC contributions in describing examples of the political activities
that the Reform Amendments would prohibit on duty. See 139 Cong. Rec.
S8929 (daily ed. July 20, 1993). In view of this, OMP believes that it
is not necessary to further refine the OLC definition of PAC. OPM has
added to Sec. 734.101, a definition of the term ``political action
committee'' which tracks the definition of ``political committee'' in
26 U.S.C. 9002(9).
OLC opined that most Federal employees are not barred from using
the salary allotment system to make contributions to PACs. Thus,
Federal employees who are subject to subparts B through D of part 734
are not prohibited from making a voluntary allotment to a PAC.
OLC opined in addition that 5 U.S.C. 7324(a)(1)(4) prohibits
Federal employees from taking steps sufficient to effect the making of
a PAC contribution while they are on duty or in a Federal building.
Thus, employees who are subject to subparts B through D of part 734 are
prohibited from filling out direct-deposit forms for salary allotments
to PACs while they are on duty or in a Federal building, and from
personally delivering such forms to payroll employees who would process
or administer these allotments. OPM has amended Secs. 734,208, 734.306,
734.404, and 734.406 of its regulations to reflect the conclusions
stated on the OLC opinion. OPM also has added to Sec. 734.101, a
definition of the term ``political action committee'' which tracks the
definition of ``political committee'' in 26 U.S.C. 9002(9).
OLC also opined that Federal employees who are identified in 5
U.S.C. 7324(b)(2) may not use the salary allotment system to contribute
money to PACs. Section 7324(b)(2) applies to employees whose duties and
responsibilities ``continue outside normal duty hours and while away
from the normal duty post'' and who are either employees (1) ``paid
from an appropriation for the Executive Office of the President'' or
(2) ``appointed by the President, by and with the advice and consent of
the Senate, whose position(s are) located within the United States in
relations with foreign powers or in the nationwide administration of
Federal laws.'' Such employees are covered under subpart E of OPM's
regulations. OLC opined that in the use of the salary allotment system,
the costs associated with the transfer of contributions to PACs would
be borne by the Federal Government, and 5 U.S.C. 7324(b)(1) of the
Reform Amendments prohibits these employees form engaging in political
activity using ``money derived from the Treasury of the United
States.'' OPM has added to subpart E a new provision that reflects this
prohibition.
Finally, the OLC opinion stressed that 5 U.S.C. 5525, the statutory
provision governing allotment and assignment of pay, as well as the OPM
allotment regulations at 5 CFR 550.311(b), provide that individual
agency heads have the discretion to determine whether eligible
employees of the agency may use the allotment system for particular
purposes, such as making contributions to PACs.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 734
Political activities (Government employees).
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, the Office of Personnel Management interim rule adding
5 CFR part 734, published at 59 FR 48765 on September 23, 1994, is
adopted as a final rule with the following changes:
PART 734--POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
1. The authority citation for part 734 continues to read as
follows:
Authority: 5 U.S.C. 1103, 1104, 7325; Reorganization Plan No. 2
of 1978, 92 Stat. 3783, 3 CFR 1978 Comp. p. 323; and E.O. 12107, 3
CFR 1978 Comp. p. 264.
2. In Sec. 734.101 the definitions of accept, and receive, are
revised, and the definitions of occasional, political action committee,
recurrent, and room or building occupied in the discharge of official
duties by an individual employed or holding office in the Government of
the United States or any agency thereof are added in alphabetical
order, to read as follows:
Sec. 734.101 Definitions.
* * * * *
Accept means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
* * * * *
Occasional means occurring infrequently, at irregular intervals,
and according to no fixed or certain scheme; acting or serving for the
occasion or only on particular occasions.
* * * * *
Political Action Committee means any committee, association, or
organization (whether or not incorporated) which accepts contributions
or makes expenditures for the purpose of influencing, or attempting to
influence, the nomination or election of one or more individuals to
Federal, State, or local elective public office.
* * * * *
Receive means to come into possession of something from a person
officially on behalf of a candidate, a campaign, a political party, or
a partisan political group, but does not include ministerial activities
which precede or follow this official act.
Recurrent means occurring frequently, or periodically on a regular
basis.
Room or building occupied in the discharge of official duties by an
individual employed or holding office in the Government of the United
States or
[[Page 35100]]
any agency thereof includes, but is not limited to:
(1) Any Federally owned space (including, but not limited to,
``public buildings'' as defined in 40 U.S.C. 612(1)) or Federally
leased space in which Federal employees perform official duties on a
regular basis;
(2) Public areas as defined in 40 U.S.C. 490(a)(17) and 41 CFR 101-
20.003 of buildings under the custody and control of the General
Services Administration.
(3) A room or building occupied in the discharge of official duties
by an individual employed or holding office in the Government of the
United States or any agency thereof does not include rooms in the White
House, or in the residence of the Vice President, which are part of the
Residence area or which are not regularly used solely in the discharge
of official duties.
3. In Sec. 734.102 paragraphs (a) introductory text and (b) are
revised to read as follows:
Sec. 734.102 Jurisdiction.
(a) The United States Office of Special Counsel has exclusive
authority to investigate allegations of political activity prohibited
by the Hatch Act Reform Amendments of 1993, as implemented by 5 CFR
part 734, prosecute alleged violations before the United States Merit
Systems Protection Board, and render advisory opinions concerning the
applicability of 5 CFR part 734 to the political activity of Federal
employees and employees of the District of Columbia government. (5
U.S.C. 1212 and 1216. Advice concerning the Hatch Act Reform Amendments
may be requested from the Office of Special Counsel:
* * * * *
(b) The Merit Systems Protection Board has exclusive authority to
determine whether a violation of the Hatch Act Reform Amendments of
1993, as implemented by 5 CFR part 734, has occurred and to impose a
minimum penalty of suspension for 30 days and a maximum penalty of
removal for violation of the political activity restrictions regulated
by this part. (5 U.S.C. 1204 and 7326).
* * * * *
4. In Sec. 734.203, Example 2 is added to read as follows:
Sec. 734.203 Participation in nonpartisan activities.
* * * * *
Example 2: An employee, individually or collectively with other
employees, may petition or provide information to Congress as
provided in 5 U.S.C. 7211.
5. In Sec. 734.204, paragraph (f) is added, and Example 2 is
revised, to read as follows:
Sec. 734.204 Participation in political organizations.
* * * * *
(f) Serve as a delegate, alternate, or proxy to a political party
convention.
* * * * *
Example 2: A noncareer member of the Senior Executive Service,
or other employee covered under this subpart, may serve as a vice-
president of a political action committee, as long as the duties of
the office do not involve personal solicitation, acceptance, or
receipt of political contributions. Ministerial activities which
precede or follow the official acceptance and receipt, such as
handling, disbursing, or accounting for contributions are not
covered under the definitions of accept and receive in Sec. 734.101.
Sections 734.208 and 734.303 describe in detail permitted and
prohibited activities which are related to fundraising.
* * * * *
6. In Sec. 734.205, Examples 8 and 9 are added to read as follows:
Sec. 734.205 Participation in political campaigns.
* * * * *
Example 8: While not on duty, a Federal employee may distribute
campaign leaflets by hand to homes or parked cars even though the
leaflet may contain information concerning where to send
contributions among other factual material about a partisan
political candidate. However, should a member of the public stop the
employee and request further information about contributions, the
employee should refer that request to another campaign worker who is
not a Federal employee.
Example 9: An employee may place in his or her front yard a sign
or banner supporting a partisan political candidate.
7. Sec. 734.208, paragraphs (c) and (d) are added, Examples 12 and
13 are added, and Example 4 is revised, to read as follows:
Sec. 734.208 Participation in fundraising.
* * * * *
(c) Subject to the provisions of Sec. 734.306, an employee may make
a financial contribution to a political action committee through a
voluntary allotment made under Sec. 550.311(b) of this chapter, if the
head of the employee's agency permits agency employees to make such
allotments to political action committees.
(d) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under section 550.311(b) of this title.
* * * * *
Example 4: When an employee of the Department of Transportation
is not on duty, he or she may engage in activities which do not
require personal solicitations of contributions, such as organizing
mail or phone solicitations for political contributions. Activities
such as stuffing envelopes with requests for political contributions
also are permitted. However, he or she may not sign the solicitation
letter unless the solicitation is for the contribution of
uncompensated volunteer services of individuals who are not
subordinate employees. An employee may not knowingly send to his or
her subordinate employees a letter soliciting the contribution of
their uncompensated services. However, he or she may sign a letter
that solicits contributions of uncompensated volunteer services as
part of a general mass mailing that might reach a subordinate
employee, as long as the mass mailing is not specifically targeted
to his or her subordinate employees.
* * * * *
Example 12: An employee who desires to make a financial
contribution to a political action committee through a voluntary
allotment personally may obtain blank direct deposit forms from his
or her payroll office. However, he or she may not complete the form
while he or she is on duty, on Federal property, or in a Federally
owned or leased vehicle. Moreover, he or she may not personally
deliver his or her completed form, or the completed form of another
employee, to the payroll office. However, the employee may mail his
or her direct deposit form to his or her agency payroll office.
Example 13: Employees who are permitted to solicit, accept, or
receive political contributions under the circumstances described in
Sec. 734.208(b)(4) may not solicit, accept, or receive such
contributions either while they are on duty, or while they are on
Federal premises, or both.
8. Section 734.302 is revised to read as follows:
Sec. 734.302 Use of official authority; prohibition.
(a) An employee may not use his or her official authority or
influence for the purpose of interfering with or affecting the result
of an election.
(b) Activities prohibited by paragraph (a) of this section include,
but are not limited to:
(1) Using his or her official title while participating in
political activity;
(2) Using his or her authority to coerce any person to participate
in political activity; and
(3) Soliciting, accepting, or receiving uncompensated individual
volunteer services from a subordinate for any political purpose.
Example 1: An employee who signs a letter seeking uncompensated
volunteer services from individuals may not identify himself or
[[Page 35101]]
herself by using his or her official title. However, the employee
may use a general form of address, such as ``The Honorable.''
Example 2: A noncareer member of the Senior Executive Service,
or another employee covered by this subpart, may not ask his or her
subordinate employees to provide uncompensated individual volunteer
services for a political party, partisan political group, or
candidate for partisan political office. Moreover, he or she may not
accept or receive such services from a subordinate employee who
offers to donate them.
Example 3: An employee may not require any person to contribute
to a partisan political campaign in order to win a Federal contract:
9. In Sec. 734.306, Example 3 through 13 are revised and 14 through
19 are added to read as follows:
734.306 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
* * * * *
Example 3: An employee who uses his or her privately owned
vehicle on a recurrent basis for official business may place a
partisan political bumper sticker on the vehicle, as long as he or
she covers the bumper sticker while the vehicle is being used for
official duties.
Example 4: An employee who uses his or her privately owned
vehicle on official business, must cover any partisan political
bumper sticker while the vehicle is being used for official duties,
if the vehicle is clearly identified as being on official business.
Example 5: A noncareer member of the Senior Executive Service,
or any other employee covered by this subpart, who uses his or her
privately owned vehicle only on an occasional basis to drive to
another Federal agency for a meeting, or to take a training course,
is not required to cover a partisan political bumper sticker on his
or her vehicle.
Example 6: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 7: An employee may place a bumper sticker on his or her
privately owned vehicle and park his or her vehicle in a parking lot
of an agency or instrumentality of the United States Government or
in a non-Federal facility for which the employee receives a subsidy
from his or her employing agency or instrumentality.
Example 8: When an agency or instrumentality of the United
States Government leases offices in a commercial building and that
building includes the headquarters of a candidate for partisan
political office, an employee of that agency or instrumentality may
do volunteer work, when he or she is not on duty, at the candidate's
headquarters and in other areas of the building that have not been
leased by the Government.
Example 9: A Government agency or instrumentality leases all of
the space in a commercial building; employees may not participate in
political activity in the public areas of the leased building.
Example 10: An employee of the National Aeronautics and Space
Administration (NASA) may not engage in political activities while
wearing a NASA flight patch, NASA twenty-year pin or anything with
an official NASA insignia.
Example 11: If a political event begins while an employee is on
duty and continues into the time when he or she is not on duty, the
employee must wait until he or she is not on duty to attend the
event. Alternatively, an employee may request annual leave to attend
the political event when it begins.
Example 12: Officials of labor organizations who have been given
official time to perform representational duties are on duty.
Example 13: An employee may stuff envelopes for a mailing on
behalf of a candidate for partisan political office while the
employee is sitting in the park during his or her lunch period if he
or she is not considered to be on duty during his or her lunch
period.
Example 14: An employee who works at home may engage in
political activities at home when he or she is not in a pay status
or representing the Government in an official capacity.
Example 15: An employee who is appointed by the President by and
with the advice and consent of the Senate (PAS) may attend a
political event with an non-PAS employee whose official duties do
not require accompanying the PAS as long as the non-PAS employee is
not on duty.
Example 16: A noncareer member of the Senior Executive Service,
or any other employee covered by this subpart, may not wear partisan
political buttons or display partisan political pictures, signs,
stickers, or badges while he or she is on duty or at his or her
place of work.
Example 17: An employee may not engage in political activity in
the cafeteria of a Federal building, even if the cafeteria is in
space leased by a contractor.
Example 18: An employee who contributes financially to a
political action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit
forms while he or she is on duty, in a ``room or building'' defined
in Sec. 734.101 or in a Federally owned or leased vehicle.
Example 19: An employee who contributes financially to a
political action committee through a voluntary allotment may not
personally deliver his or her completed direct deposit form, or the
completed direct deposit form of another employee, to the payroll
employees who would process or administer such forms. However, the
employee may mail his or her direct deposit form to his or her
agency payroll office.
10. In Sec. 734.307, Example 1 is revised to read as follows:
Sec. 734.307 Campaigning for a spouse or family member.
* * * * *
Example 1: An employee who is married to a candidate for
partisan political office may attend a fundraiser for his or her
spouse, stand in the receiving line, sit at the head table, and urge
others to vote for his or her spouse. However, the employee may not
personally solicit, accept, or receive contributions of money or the
paid or unpaid services of a business or corporation, or sell or
collect money for tickets to the fundraiser.
* * * * *
11. In Sec. 734.401, paragraphs (a)(14) through (a)(16) are revised
and paragraph (a)(17) is added to read as follows:
Sec. 734.401 Coverage.
(a) * * *
(14) The Central Imagery Office;
(15) Career Senior Executive Service positions described in 5
U.S.C. 3132(a)(4);
(16) Administrative Law Judge positions described in 5 U.S.C. 5372;
(17) Contract Appeals Board Member positions described in 5 U.S.C.
5372a.
* * * * *
12. In Sec. 734.402, paragraph (b) is revised, Examples 4 and 5 are
redesignated as Examples 5 and 6 respectively, newly redesignated
Examples 5 and 6 are revised, and Example 4 is added, to read as
follows:
Sec. 734.402 Expression of an employee's individual opinion.
* * * * *
(b) Display a political picture, sign, sticker, badge, or button,
as long as these items are displayed in accordance with the provisions
of Sec. 734.406;
* * * * *
Example 4: An employee may place in his or her yard a sign
supporting a candidate for partisan political office.
Example 5: An employee may stand outside of a political party
convention with a homemade sign which states his or her individual
opinion that one of the candidates for nomination is the best
qualified candidate.
Example 6: An employee, including a career SES employee, may
wear a button with a partisan political theme when the employee is
not on duty or at his or her place of work.
13. Section 734.404 is revised to read as follows:
Sec. 734.404 Participation in political organizations.
(a) Each employee covered under this subpart retains the right to:
(1) Participate in the nonpartisan activities of a civic,
community, social, labor, or professional organization, or of a similar
organization;
(2) Be a member of a political party or other partisan political
group and participate in its activities to the extent consistent with
other Federal law;
(3) Attend a political convention, rally, fund-raising function, or
other political gathering; and
[[Page 35102]]
(4) Make a financial contribution to a political party, partisan
political group, or to the campaign committee of a candidate for
partisan political office.
(b) Subject to the provisions in Sec. 734.406, an employee covered
under this subpart may make a financial contribution to a political
action committee through a voluntary allotment made under
Sec. 550.311(b) of this chapter if the head of the employee's agency
permits agency employees to make such allotments to political action
committees.
(c) An employee who is covered under this subpart and is a payroll
official in an agency where employees are permitted to make allotments
to political action committees may process the completed direct deposit
forms for voluntary allotments which have been made to such committees
under Sec. 550.311(b) of this chapter.
Example 1: An employee, or a noncareer SES employee who is
subject to subpart D of part 734, may attend a political convention
or rally solely as a spectator. However, the employee and noncareer
SES employee may not participate in demonstrations or parades which
are sponsored by a political party, a partisan political group, or
an individual who is running for nomination to be a candidate for
partisan political office.
Example 2: An employee may attend a political party's annual
barbecue, but he or she may not organize, distribute invitations to,
or sell tickets to the barbecue.
Example 3: An employee who desires to contribute to a political
action committee through an allotment personally may obtain blank
direct deposit forms from his or her payroll office. The employee
may not complete the direct deposit form while he or she is on duty,
on Federal property, or in a Federally owned or leased vehicle. The
employee also may not personally deliver his or her completed direct
deposit form, or the completed direct deposit form of another
employee, to his or her payroll office. However, the employee may
mail the completed form to his or her agency payroll office.
14. In Sec. 734.406, Examples 1 through 8 are added to read as
follows:
Sec. 734.406 Participation in political activities while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle; prohibition.
* * * * *
Example 1: An employee who uses his or her privately owned
vehicle on a recurrent basis for official business may place a
bumper sticker on the vehicle, as long as he or she covers the
bumper sticker while the vehicle is being used for official duties.
Example 2: An employee who uses his or her privately owned
vehicle on official business, must cover any partisan political
bumper sticker while the vehicle is being used for official duties,
if the vehicle is clearly identified as being on official business.
Example 3: An employee or career SES employee who uses his or
her privately owned vehicle only on an occasional basis to drive to
another Federal agency for a meeting, or to take a training course,
if not required to cover a partisan political bumper sticker on his
or her vehicle.
Example 4: An employee may not place a partisan political bumper
sticker on any Government owned or Government leased vehicle.
Example 5: An employee may place a bumper sticker on his or her
privately owned vehicle and park the vehicle in a parking lot of an
agency or instrumentality of the United States Government or in a
non-Federal facility for which the employee receives a subsidy from
his or her employing agency or instrumentality.
Example 6: An employee, or noncareer SES employee who is subject
to subpart D of this part 734, may not wear partisan political
buttons or display partisan political pictures, signs, stickers, or
badges while he or she is on duty or at his or her place of work.
Example 7: An employee who contributes financially to a
political action committee through a voluntary allotment made under
Sec. 550.311(b) of this title may not complete the direct deposit
forms while he or she is on duty, in a ``room or building'' defined
in Sec. 734.101, or in a Federally owned or leased vehicle.
Example 8: An employee who contributes financially to a
political action committee may not personally deliver his or her
completed direct deposit form, or the completed direct deposit form
of another employee, to the payroll employees who would process or
administer such forms. However, the employee may mail his or her
direct deposit form to his or her agency payroll office.
15. Section 734.408 is revised to read as follows:
Sec. 734.408 Participation in political management and political
campaigning; prohibitions.
An employee covered under this subpart may not take an active part
in political management or in a political campaign, except as permitted
by subpart D of this part.
16. In Sec. 734.412, paragraphs (a), (b), and (c) are revised to
read as follows:
Sec. 734.412 Participation in elections; prohibitions.
(a) Be a candidate for partisan political office;
(b) Act as recorder, watcher, challenger, or similar officer at
polling places in concert with a political party, partisan political
group, or a candidate for partisan political office;
(c) Drive voters to polling places in concert with a political
party, partisan political group, or a candidate for partisan political
office;
17. In Sec. 734.502 paragraph (d) is revised to read as follows:
Sec. 734.502 Participation in political activity while on duty, in
uniform, in any room or building occupied in the discharge of official
duties, or using a Federal vehicle.
* * * * *
(d) An employee, to whom subpart E of this part does not apply, who
is not on duty may participate in political activities in rooms of the
White House or the Residence of the Vice President which are part of
the Residence area or which are not regularly used solely in the
discharge of official duties.
* * * * *
18. Section 734.504 is added to read as follows:
* * * * *
Sec. 734.504 Contributions to political action committees through
voluntary payroll allotments prohibited.
An employee described in Sec. 734.502(a) may not financially
contribute to a political action committee through a voluntary
allotment made under Sec. 550.311(b) of this title.
[FR Doc. 96-17006 Filed 7-3-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-17003 Adoption of Industry Standards; Correction
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Page 35138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17003]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Parts 76 and 167
[CGD 95-027]
RIN 2115-AF09
Adoption of Industry Standards; Correction
AGENCY: Coast Guard, DOT.
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final rule in CGD
95-027, published Thursday, May 23, 1996, at 61 FR 25984. The
regulations affect both inspected and uninspected vessels and relate to
removal or revision of obsolete, unnecessary or excessive regulations
and the adoption of industry consensus standards in place of detailed
regulations.
EFFECTIVE DATE: These amendments are effective on July 5, 1996.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander R. K. Butturini, Marine Safety and Environmental
Protection (G-MSE-3), Room 1300, U.S. Coast Guard Headquarters, 2100
Second Street, SW, Washington, DC 20593-0001, (202) 267-2206 or fax
(202) 267-4816.
SUPPLEMENTARY INFORMATION: The final rules that are the subject of
these corrections were published as part of the ongoing Presidential
Regulatory Reform Initiative and affects both inspected and uninspected
commercial vessels. The final rule removes obsolete, unnecessary and
excessive regulations and adopts industry consensus standards in place
of detailed regulations.
Need for Correction
As published, the final rule contains typographical errors that may
prove to be misleading and need correcting.
Correction of Publication
Accordingly, the final rule published on Thursday, May 23, 1996,
[CGD 95-027], at 61 FR 25984 is corrected as follows:
Sec. 56.30-25 [Corrected]
1. On page 26000, in Sec. 56.30-25, paragraph (e) is corrected to
read as follows:
Sec. 56.30-25 Flared, flareless and compression fittings.
* * * * *
(e) For fluid services, other than hydraulic systems, using a
combustible fluid as defined in Sec. 30.10-15 of this chapter and for
fluid services using a flammable fluid as defined in Sec. 30.10-22 of
this chapter, flared fittings must be used; except that flareless
fittings of the nonbite type may be used when the tubing system is of
steel, nickel copper or copper nickel alloy. When using copper or
copper zinc alloy, flared fittings are required. (See also Sec. 56.50-
70 for gasoline fuel systems, Sec. 56.60-75 for diesel fuel systems,
and Sec. 58.25-20 for hydraulic systems for steering gear.)
Sec. 76.05-20 [Corrected]
2. On page 26003, Sec. 76.05-20 is corrected to read as follows:
Sec. 76.05-20 Fixed fire extinguishing systems.
Approved fire extinguishing systems must be installed, as required
by table 76.05-1(a) on all self-propelled vessels and on all barges
with sleeping accommodations for more than six persons. Previously
approved installations may be retained as long as they are maintained
in good condition to the satisfaction of the Officer in Charge, Marine
Inspection.
Sec. 76.20-90 [Corrected]
3. On page 26003, in Sec. 72.20-90, the paragraph designation
``(d)'' is corrected to read ``(c)''.
Sec. 168.15-15 [Corrected]
4. On page 26010, in Sec. 168.15-15, paragraph (a) is corrected to
read as follows:
Sec. 168.15-15 Size.
(a) Sleeping accommodations must be divided into rooms, no one of
which may berth more than six persons. The purpose for which each space
is to be used and the number of persons it may accommodate, must be
marked outside the space.
* * * * *
Sec. 168.15-25 [Corrected]
5. On page 26010, in Sec. 168.15-25, paragraph (a) is corrected to
read as follows:
Sec. 168.15-25 Washrooms.
(a) There must be provided 1 shower for each 10 persons or fraction
thereof and 1 wash basin for each 6 persons or fraction thereof for all
persons who do not occupy rooms to which private or semi-private
facilities are attached.
* * * * *
Dated: June 27, 1996.
Joseph J. Angelo,
Director of Standards, Marine Safety and Environmental Protection.
[FR Doc. 96-17003 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-16999 Karnal Bunt; Compensation
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35102-35107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16999]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 96-016-7]
Karnal Bunt; Compensation
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the regulations to provide compensation for
certain growers and handlers, owners of grain storage facilities, and
flour millers in order to mitigate losses and expenses incurred because
of Karnal bunt. The payment of compensation is necessary in order to
reduce the economic impact of the Karnal bunt quarantine on affected
wheat growers and other individuals, and to help obtain cooperation
from affected individuals in Karnal bunt eradication efforts.
DATES: Interim rule effective June 27, 1996. Consideration will be
given only to comments received on or before September 3, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-016-7, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road
[[Page 35103]]
Unit 118, Riverdale, MD 20737-1238. Please state that your comments
refer to Docket No. 96-016-7. Comments received may be inspected at
USDA, room 1141, South Building, 14th Street and Independence Avenue
SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through
Friday, except holidays. Persons wishing to inspect comments are
requested to call ahead on (202) 690-2817 to facilitate entry into the
comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Mike Stefan, Operations Officer,
Domestic and Emergency Operations, PPQ, APHIS, 4700 River Road Unit
134, Riverdale, MD 20737-1236, (301) 734-8247.
SUPPLEMENTARY INFORMATION:
Background
Karnal bunt is a serious fungal disease of wheat (Triticum
aestivum), durum wheat (Triticum durum), and triticale (Triticum
aestivum X Secale cereale), a hybrid of wheat and rye. Karnal bunt is
caused by the smut fungus Tilletia indica (Mitra) Mundkur and is spread
by spores. The spores can be carried on a variety of surfaces,
including plants and plant parts, seeds, soil, elevators, buildings,
farm equipment, tools, and even vehicles. Spores and the sporidia they
produce also can be windborne. Although the sporidia are fragile and
may be able to move only short distances, Teliospores are thought to
move longer distances.
Karnal bunt is a serious disease that can affect both yield and
grain quality when present at levels over 3 to 5 percent. It adversely
affects the color, odor, and palatability of flour and other foodstuffs
made from heavily infested wheat. Wheat containing a significant amount
of bunted kernels is reduced in quality. Karnal bunt does not present a
risk to human or animal health.
On March 8, 1996, Karnal bunt was detected in Arizona during a seed
certification inspection done by the Arizona Department of Agriculture.
On March 20, 1996, the Secretary of Agriculture signed a ``Declaration
of Extraordinary Emergency'' authorizing the Secretary to take
emergency action under 7 U.S.C. 150dd with regard to Karnal bunt within
the States of Arizona, New Mexico, and Texas. In an interim rule
effective on March 25, 1996, and published in the Federal Register on
March 28, 1996 (61 FR 13649-13655, Docket No. 96-016-3), the Animal and
Plant Health Inspection Service (APHIS) established the Karnal bunt
regulations (7 CFR 301.89-1 through 301.89-11), and quarantined all of
Arizona and portions of New Mexico and Texas because of Karnal bunt.
The regulations define regulated articles and restrict the interstate
movement of these regulated articles from the quarantined areas.
After the establishment of the regulations, Karnal bunt was
detected in lots of seed that were either planted or stored in certain
areas in California. On April 12, 1996, the Secretary of Agriculture
signed a ``Declaration of Extraordinary Emergency'' authorizing the
Secretary to take emergency action under 7 U.S.C. 150dd with regard to
Karnal bunt within California. In an interim rule effective on April
19, 1996, and published in the Federal Register on April 25, 1996,
APHIS also quarantined portions of California because of Karnal bunt
(61 FR 18233-18235, Docket No. 96-016-5).
Under an extraordinary emergency, the Secretary is authorized, but
not obligated, to compensate growers and other persons for economic
losses incurred by them as a result of the quarantine or emergency
action. This interim rule amends the Karnal bunt regulations to provide
compensation for certain growers and handlers, owners of grain storage
facilities, and flour millers in order to mitigate losses and expenses
incurred because of actions taken by the Department regarding Karnal
bunt. We are adding a new Sec. 301.89-12 that lists classes of
individuals who are eligible to receive compensation for actions taken
or losses experienced because of actions taken by the Department
regarding Karnal bunt. This section also sets forth the rates of
compensation and explains how to make a claim for compensation,
including what forms need to be filed and what documents need to be
provided by the claimant to the United States Department of Agriculture
(USDA).
Compensation for Destroyed Crops in New Mexico and Texas
Approximately 4,000 acres of planted wheat in New Mexico and Texas
were traced back to seed produced in Arizona and known to be
contaminated with Karnal bunt. Under an extraordinary emergency, the
Secretary of Agriculture has the authority to order the destruction of
crops (see 7 U.S.C. 150dd(b)). On April 1, 1996, the Secretary signed a
memorandum authorizing APHIS to issue orders for the destruction by
plowing of all wheat crops in New Mexico and Texas that were planted
with seed known to be contaminated with Karnal bunt. Destruction of
these crops was determined to be beneficial in preventing the spread of
Karnal bunt because the crops in New Mexico and Texas were at an early
stage of growth, before Karnal bunt infection of the current crop could
occur.
The vehicle for issuing destruction orders is an Emergency Action
Notification (PPQ Form 523) given by an APHIS inspector to the owner of
the wheat crop that is to be destroyed. Pursuant to the Secretary's
authorization, APHIS began issuing Emergency Action Notifications for
the destruction of contaminated wheat fields in New Mexico and Texas on
April 1, 1996.
Consequently, we are listing as eligible for compensation growers
in New Mexico and Texas who have destroyed crops of wheat pursuant to
an Emergency Action Notification (PPQ Form 523) issued by an inspector.
Compensation for these individuals has been set at the rate of $300 per
acre of destroyed crop. The rate of $300 per acre includes a payment of
$275 per acre compensation for expenses incurred by the owner of the
wheat crop in planting and cultivating the contaminated wheat (this is
based on the average cost of expenses such as seed, fertilizer,
irrigation, and employee expenses) plus $25 per acre to pay for crop
destruction and soil preparation for replanting the plowed acres with a
new crop.
To receive compensation, the growers must complete and submit to an
inspector whichever of the following three forms are applicable, as
determined by the inspector: ASCS Form 574, ASCS Form 578, and FCI Form
73. The forms will be furnished by USDA. ASCS Form 574 is a form used
to request acreage or disaster credit, and will document a record of
management practices for the crop and the reason for its destruction.
ASCS Form 578 is a form used to document a farmer's total acreage and
how the farmer uses that acreage. Most affected farmers will already
have a copy of ASCS Form 578 on file with the USDA in connection with
their enrollment in federal crop insurance or other USDA programs, but
will have to revise this form to reflect that the crop on some or all
of the acreage listed on the form has been ordered destroyed by an
inspector because of Karnal bunt. FCI Form 73 will be used to certify
the number of destroyed acres of wheat and the reason for their
destruction.
Compensation for Lost Value of Wheat in the Quarantined Area
Most other wheat grown in the quarantined areas, especially in the
quarantined areas outside of New Mexico and Texas, was past the early
stage of growth at which plowing the
[[Page 35104]]
crop under would prevent infection of the current crop with Karnal
bunt. Much of the wheat grown in the quarantined area is under contract
with millers or grain handlers for processing or for use as seed. Under
the Karnal bunt regulations, growers and handlers in the quarantined
area are restricted from selling wheat for propagative purposes (seed)
and from moving wheat outside of the quarantined area. This means that,
in most cases, growers and handlers in the quarantined area cannot move
their wheat to the market for which it was contracted.
Growers and handlers may export their wheat to another country or
may market the wheat within the quarantined area, where it will most
likely be processed as animal feed. The value for wheat to be used as
animal feed is typically lower than the value for wheat used for
propagative purposes or for use in products for human consumption.
Further, many growers and handlers are finding it difficult to market
wheat from the quarantined area, whether or not it has tested positive
for Karnal bunt infection, because wheat from the quarantined area may
incur additional costs for handling and treatment. This may force some
growers and handlers to accept a lower price for their wheat than they
would have received if the area had not been quarantined for Karnal
bunt.
Therefore, we are listing as eligible for compensation growers and
handlers of wheat grown in the quarantined area for the loss in value
of their wheat due to the quarantine for Karnal bunt. We will
compensate for the loss in value of wheat testing negative and wheat
testing positive from the quarantined area. Compensation calculations
will be different depending on the purpose for which the wheat was
grown and the purpose for which the wheat is eventually sold.
Compensation calculations will also be different for growers and for
handlers.
This rule only includes calculations for compensation of wheat
grown for nonpropagative purposes (meaning it was not grown for use as
seed). We do intend to compensate seed producers for the loss in value
of their seed. However, we are still developing protocols for seed
movement and disposition, and those protocols will affect how that
compensation will be calculated. A rule providing for compensation for
seed producers will be published at a later date. The calculations for
nonpropagative wheat compensation are discussed below.
Growers of Nonpropagative Wheat
For growers of wheat grown under contract for nonpropagative
purposes in the quarantined area, the amount of compensation will be
based on the difference between the contracted price and the salvage
value (described below). Salvage value for wheat grown under contract
will be as follows:
If the contracted wheat is tested by APHIS and found positive for
Karnal bunt, and the positive wheat is sold for use as animal feed,
salvage value equals $6 per hundred weight or $3.60 per bushel for all
classes of wheat. This value is based on the feeding value of wheat
relative to other feed grains, in addition to considering the costs of
required treatment of positive wheat for use in livestock feed and the
costs of transporting wheat to processing centers and to feeding
locations. If the positive wheat is sold for uses other than animal
feed (e.g., milling or export), salvage value equals whichever price is
higher of the following: the average price paid in the region of the
quarantined area where the wheat is sold for the relevant class of
wheat for the period between May 1 and June 30, 1996; or, $3.60 per
bushel. (Relevant class of wheat means the type of wheat, for example,
Durum or Hard red winter wheat. Because these classes of wheat are
suitable for different products, they command different market prices.)
If contracted wheat is tested by APHIS and found negative for Karnal
bunt, regardless of the eventual use of the wheat, salvage value equals
the same as for positive contracted wheat sold for uses other than
animal feed.
For growers of nonpropagative wheat not grown under contract,
compensation will be based on the difference between the estimated
market price for the relevant class of wheat and the salvage value.
Salvage values will be the same as described above for contracted
wheat. The estimated market price is intended to represent what the
market price would have been if there were no quarantine for Karnal
bunt, and will be calculated by APHIS for each class of wheat, taking
into account the prices offered by relevant terminal markets (animal
feed, milling, or export) for the period between May 1 and June 30,
1996, with adjustments for transportation and other handling costs.
For nonpropagative wheat, whether grown under contract or not,
whether positive or negative, compensation will not exceed $2.50 per
bushel.
To receive compensation, the grower must complete and submit to an
inspector whichever of the following three forms are applicable, as
determined by the inspector: ASCS Form 574, ASCS Form 578, and FCI Form
73. These are the same forms described above for claims for destroyed
crops, and will be furnished by USDA. In addition, the grower must
submit a copy of the contract the grower has for the wheat, if the
wheat was under contract, and a copy of the receipt for the final sale
of the wheat, showing the intended use for which the wheat was sold.
Handlers of Nonpropagative Wheat
There are two circumstances under which handlers will be eligible
for compensation: (1) Handlers who honor contracts by paying the grower
full contract price on wheat grown for nonpropagative purposes in the
quarantined area that was tested by APHIS and found positive for Karnal
bunt; and (2) handlers who purchase contracted or noncontracted wheat
grown for nonpropagative purposes in the quarantined area that was
tested by APHIS and found negative for Karnal bunt prior to purchase,
but which is tested by APHIS and found positive for Karnal bunt after
purchase. The amount of compensation for both these circumstances will
be based on the difference between the estimated market price (as
described previously in this document) and the salvage value. Salvage
value will be the same as for grower compensation (described previously
in this document). However, compensation will not exceed $2.50 per
bushel under any circumstances.
The calculations described above do not provide for compensation
for handlers who purchase positive wheat not grown under contract, or
who purchase negative wheat that does not later test positive. Handlers
who purchase positive wheat not grown under contract, or for less than
contract price, will likely pay a very low price for the wheat, so that
compensation for loss in value will not be necessary. Handlers who
purchase negative wheat that continues to test negative after purchase
will likewise not experience a loss in value for the wheat compared to
the price they paid for it. Handlers who purchase negative wheat that
later tests positive would, however, experience a loss in expected
value because positive wheat is worth less than negative wheat.
To receive compensation, the handler must complete and submit to an
inspector whichever of the following three forms are applicable, as
determined by the inspector: ASCS Form 574, ASCS Form 578, and FCI Form
73. The forms will be furnished by USDA. In addition, the handler must
submit a copy of the contract the
[[Page 35105]]
handler had with the grower for the wheat, if the wheat was under
contract, to verify that the contract was honored. If the wheat was not
purchased under contract, the handler must submit a copy of the receipt
for the final sale of the wheat, showing the intended use for which the
wheat was sold.
If a grower or handler of nonpropagative wheat in the quarantined
area is not able to or elects not to sell their wheat, they will be
eligible to receive compensation at the rate of $2.50 per bushel.
However, compensation will only be paid if the grower or handler has
destroyed the wheat by burying it in a sanitary landfill. To receive
compensation, the grower or handler must complete and submit to an
inspector whichever of the following three forms are applicable, as
determined by an inspector: ASCS Form 574, ASCS Form 578, and FCI Form
73. The forms will be furnished by USDA. The grower or handler must
also submit a receipt from a sanitary landfill verifying how much wheat
was buried.
Compensation for Decontamination of Grain Storage Facilities
Owners of grain storage facilities that have been decontaminated
pursuant to an Emergency Action Notification (PPQ Form 523) issued by
an inspector are eligible for compensation. These grain storage
facilities have been determined by APHIS to be contaminated with Karnal
bunt. We estimate that the cost of decontamination, which consists of
treatment with a chlorine solution and water, detergent and water,
steam, or fumigation with methyl bromide in accordance with
Sec. 301.89-11 of the regulations, can range between $30,000 to $50,000
per facility.
We will compensate owners of contaminated grain storage facilities
on a one time only basis for up to 50 percent of the cost of
decontamination. However, compensation will not exceed $20,000 per
premise. We will add a definition for ``premise'' to Sec. 301.89-1 to
mean ``all structures, conveyances, or materials associated with a
grain storage facility at a single location.'' Compensation is limited
to the direct costs of decontaminating facilities. General clean-up,
repair, and refurbishment costs are excluded from compensation.
To receive compensation, owners of grain storage facilities must
submit to the inspector records demonstrating that decontamination was
performed on all structures, conveyances, or materials ordered to be
decontaminated by the Emergency Action Notification on the facility
premise. The records must include a copy of the Emergency Action
Notification, contracts with individuals or companies hired to perform
the decontamination, receipts for equipment and materials purchased to
perform the decontamination, time sheets for employees of the grain
storage facility who perform actions related to the decontamination,
and any other documentation that helps show decontamination has been
completed and its cost.
Compensation for Treating Millfeed
In accordance with compliance agreements established between APHIS
and flour millers located in high-risk areas (areas where there is a
high risk of spreading Karnal bunt into surrounding areas), millfeed (a
byproduct of milling wheat into flour) produced from wheat from the
quarantined area must be treated using a heat process. This treatment
adds approximately $35 per short ton to the cost of producing millfeed
products, such as animal feed. It is unlikely that millers would
purchase wheat from the quarantined area without compensation for the
cost of millfeed treatment. Loss of these markets would further lower
the value of wheat in the quarantined area.
Flour millers who heat-treat millfeed made from wheat produced in
the quarantined area are eligible to receive compensation at the rate
of $35.00 per short ton of millfeed. The amount of millfeed compensated
will be calculated by multiplying the weight of wheat that is milled
from the quarantined area by 25 percent (the average percent of
millfeed derived from a short ton of grain). We will calculate the
amount of millfeed to be compensated in this manner because many
millers routinely mix together different types of wheat from different
areas. The resulting millfeed would be a product of wheat from
quarantined and nonquarantined areas. However, we will only compensate
for the cost of treating millfeed made from wheat produced in the
quarantined area. Therefore, the amount compensated cannot be
determined by simply weighing the total amount of millfeed at the end
of the milling process.
To claim compensation, flour millers must submit to an inspector a
copy of the limited permit under which the wheat was moved to the mill,
in order to show that the wheat was produced in a quarantined area, and
a copy of the bill of lading for the wheat, showing the weight of the
wheat in short tons. Flour millers must also submit verification that
the millfeed produced from wheat from the quarantined area was properly
heat treated.
We believe the compensations described above will help ensure
cooperation from affected individuals in APHIS' efforts to eliminate
the spread of Karnal bunt and will help mitigate the economic impact of
the Karnal bunt quarantine and emergency actions on affected wheat
growers and others within the industry.
Miscellaneous
We are also making a miscellaneous change to the Karnal bunt
regulations. Section 301.89-2(d) lists plants and plant parts of the
species Triticum aestivum X Seale cereals as regulated articles.
However, the correct scientific name for this species is Triticum
aestivum X Secale cereale. We are amending Sec. 301.89-2(d) to correct
this error.
Emergency Action
In accordance with 7 U.S.C. 150dd(b)(2), the amount of
compensation, if any, which the Secretary determines may be paid to
individuals for economic losses incurred because of the declaration of
an extraordinary emergency shall be final.
The Administrator of the Animal and Plant Health Inspection Service
has determined that an emergency exists that warrants publication of
this interim rule without prior opportunity for public comment.
Immediate action is necessary to provide compensation for those persons
who were and are required to take emergency actions to eliminate the
spread of Karnal bunt or who experience economic losses because of the
quarantine for Karnal bunt.
Because prior notice and other public procedures with respect to
this action are impracticable and contrary to the public interest under
these conditions, we find good cause under 5 U.S.C. 553 to make it
effective upon signature. We will consider comments that are received
within 60 days of publication of this rule in the Federal Register.
After the comment period closes, we will publish another document in
the Federal Register. It will include a discussion of any comments we
receive and any amendments we are making to the rule as a result of the
comments.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
This action amends the regulations to provide compensation for
certain
[[Page 35106]]
growers and handlers, owners of grain storage facilities, and flour
millers in order to mitigate losses and expenses incurred because of
the Karnal bunt quarantine and emergency actions. This emergency
situation makes compliance with section 603 and timely compliance with
section 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604)
impracticable. This rule may have a significant economic impact on a
substantial number of small entities. If we determine this is so, then
we will discuss the issues raised by section 604 of the Regulatory
Flexibility Act in our Final Regulatory Flexibility Analysis.
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
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this interim rule have been
approved by the Office of Management and Budget (OMB). The assigned OMB
control numbers are as follows: for PPQ Form 523 the number is 0579-
0121; for ASCS Form 574 the number is 0563-0003; for ASCS Form 578 the
number is 0560-0004; and for FCI Form 73 the number is 0563-0033.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C 150bb, 150dd, 150ee, 150ff, 161, 162, and
164-167; 7 CFR 2.22, 2.80, and 371.2(c).
Sec. 301.89-2 [Amended]
2. In Sec. 301.89-1, a definition for Premise is added in
alphabetical order to read as follows:
Sec. 301.89-1 Definitions.
* * * * *
Premise. All structures, conveyances, or materials associated with
a grain storage facility at a single location.
* * * * *
3. In Sec. 301.89-2, in paragraph (d), the entry for Triticale is
amended by removing the words ``Seale cereals'' and adding the words
``Secale cereale'' in their place.
4. A new Sec. 301.89-12 is added to read as follows:
Sec. 301.89-12 Compensation.
The following individuals are eligible to receive compensation from
the United States Department of Agriculture (USDA) for losses or
expenses incurred because of the Karnal bunt quarantine and emergency
actions, as follows:
(a) Growers who have destroyed crops. Growers in New Mexico and
Texas who have destroyed crops of wheat pursuant to an Emergency Action
Notification (PPQ Form 523) issued by an inspector are eligible to be
compensated at the rate of $300 per acre of destroyed crop. To claim
compensation, the grower must complete and submit to an inspector
whichever of the following three forms are applicable, as determined by
the inspector: ASCS Form 574, ASCS Form 578, and FCI Form 73. The forms
will be furnished by USDA.
(b) Growers and handlers who sell nonpropagative wheat grown in the
quarantined area. Growers and handlers who sell nonpropagative wheat
grown in the quarantined area are eligible to be compensated for the
loss in value of their wheat due to the quarantine for Karnal bunt, as
follows:
(1) Growers who sell nonpropagative wheat. For growers who sell
wheat grown for nonpropagative purposes, compensation will be as
described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section.
However, compensation will not exceed $2.50 per bushel under any
circumstances.
(i) If the wheat was grown under contract, compensation will equal
the contracted price minus the salvage value, as described in paragraph
(b)(3) of this section.
(ii) If the wheat was not grown under contract, compensation will
equal the estimated market price for the relevant class of wheat
(meaning type of wheat, such as Durum or Hard red winter) minus the
salvage value, as described in paragraph (b)(3) of this section. The
estimated market price will be calculated by APHIS for each class of
wheat, taking into account the prices offered by relevant terminal
markets (animal feed, milling, or export) for the period between May 1
and June 30, 1996, with adjustments for transportation and other
handling costs.
(2) Handlers who sell nonpropagative wheat. Handlers are eligible
to be compensated only under the circumstances described in paragraphs
(b)(2)(i) and (b)(2)(ii) of this section. Compensation for both
circumstances will equal the estimated market price for the relevant
class of wheat (meaning type of wheat, such as Durum or Hard red
winter) minus the salvage value, as described in paragraph (b)(3) of
this section. The estimated market price will be calculated by APHIS
for each class of wheat, taking into account the prices offered by
relevant terminal markets (animal feed, milling, or export) for the
period between May 1 and June 30, 1996, with adjustments for
transportation and other handling costs. However, compensation will not
exceed $2.50 per bushel under any circumstances.
(i) Handlers who honor contracts by paying the grower full contract
price on wheat grown for nonpropagative purposes in the quarantined
area that was tested by APHIS and found positive for Karnal bunt; or
(ii) Handlers who purchase contracted or noncontracted wheat grown
for nonpropagative purposes in the quarantined area that was tested by
APHIS and found negative for Karnal bunt prior to purchase but that was
tested by APHIS and found positive for Karnal bunt after purchase.
(3) Salvage value. Salvage values will be as follows:
(i) If the wheat is positive for Karnal bunt and is sold for use as
animal feed, salvage value equals $6.00 per hundredweight or $3.60 per
bushel for all classes of wheat.
(ii) If the wheat is positive for Karnal bunt and is sold for a use
other than animal feed, salvage value equals whichever is higher of the
following: the average price paid in the region of the quarantined area
where the wheat is sold for the relevant class of wheat (meaning type
of wheat, such as Durum or Hard red winter) for the period between May
1 and June 30, 1996; or, $3.60 per bushel.
(iii) If the wheat is negative for Karnal bunt and is sold for any
use, salvage value equals whichever is higher of the following: the
average price paid in the region of the quarantined area where the
wheat is sold for the relevant class of wheat (meaning type of wheat,
such as
[[Page 35107]]
Durum or Hard red winter) for the period between May 1 and June 30,
1996; or, $3.60 per bushel.
(4) To claim compensation. To claim compensation, a grower or
handler must complete and submit to an inspector whichever of the
following three forms are applicable, as determined by the inspector:
ASCS Form 574, ASCS Form 578, and FCI Form 73. The forms will be
furnished by USDA. Growers must also submit a copy of the contract the
grower has for the wheat, if the wheat was under contract; handlers
must also submit a copy of the contract the handler had with the grower
for the wheat, if the wheat was under contract. Finally, a grower or
handler must submit a copy of the receipt for the final sale of the
wheat, showing the intended use for which the wheat was sold.
(c) Nonpropagative wheat that is not sold. If a grower or handler
of nonpropagative wheat in the quarantined area is not able to or
elects not to sell their wheat, they will be eligible to receive
compensation at the rate of $2.50 per bushel. Compensation will only be
paid if the grower or handler has destroyed the wheat by burying it in
a sanitary landfill. To claim compensation, the grower or handler must
complete and submit to an inspector whichever of the following three
forms are applicable, as determined by the inspector: ASCS Form 574,
ASCS From 578, and FCI Form 73. The forms will be furnished by USDA. In
addition, the grower or handler must submit a receipt from the sanitary
landfill verifying how much wheat was buried.
(d) Decontamination of grain storage facilities. Owners of grain
storage facilities that have been decontaminated pursuant to an
Emergency Action Notification (PPQ Form 523) issued by an inspector are
eligible to be compensated, on a one time only basis, for up to 50
percent of the cost of decontamination. However, compensation will not
exceed $20,000 per premise (as defined in Sec. 301.89-1). Compensation
is limited to the direct costs of decontaminating facilities. General
clean-up, repair, and refurbishment costs are excluded from
compensation. To claim compensation, the owner of the grain storage
facility must submit to an inspector records demonstrating that
decontamination was performed on all structures, conveyances, or
materials ordered to be decontaminated by the Emergency Action
Notification on the facility premise. The records must include a copy
of the Emergency Action Notification, contracts with individuals or
companies hired to perform the decontamination, receipts for equipment
and materials purchased to perform the decontamination, time sheets for
employees of the grain storage facility who performed activities
connected to the decontamination, and any other documentation that
helps show decontamination has been completed.
(e) Flour millers. Flour millers who, in accordance with a
compliance agreement with APHIS, heat-treat millfeed made from wheat
produced in the quarantined area are eligible to be compensated at the
rate of $35.00 per short ton of millfeed. The amount of millfeed
compensated will be calculated by multiplying the weight of wheat from
the quarantined area received by the miller by 25 percent (the average
percent of millfeed derived from a short ton of grain). To claim
compensation, the miller must submit to an inspector a copy of the
limited permit under which the wheat was moved to the mill and a copy
of the bill of lading for the wheat (showing the weight of the wheat in
short tons). Flour millers must also submit verification that the
millfeed was heat treated, in the form of a copy of the limited permit
under which the wheat was moved to a treatment facility and a copy of
the bill of lading accompanying that movement.
Done in Washington, DC, this 27th day of June 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-16999 Filed 7-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-16998 Karnal Bunt; Removal of Quarantined Areas
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35107-35109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16998]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 301
[Docket No. 96-016-6]
Karnal Bunt; Removal of Quarantined Areas
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the Karnal bunt regulations by removing areas
in Arizona, New Mexico, and Texas from the list of areas quarantined
because of infestations of Karnal bunt. This action is necessary to
relieve restrictions on the areas of Arizona, New Mexico, and Texas
that do not produce wheat, durum wheat, or triticale or that do produce
wheat but we have been able to determine that they have no association
with Karnal bunt contaminated seed. The interstate movement of
regulated articles from these areas does not present a risk of
spreading Karnal bunt.
DATES: Interim rule effective June 27, 1996. Consideration will be
given only to comments received on or before September 3, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-016-6, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale MD 20737-1238. Please
state that your comments refer to Docket No. 96-016-6. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Michael B. Stefan, Operations
Officer, Domestic and Emergency Operations, PPQ, APHIS, 4700 River
Road, Unit 134, Riverdale, MD 20737-1236, (301) 734-8247; or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Karnal bunt is a serious fungal disease of wheat (Triticum
aestivum), durum wheat (Triticum durum), and triticale (Triticum
aestivum X Seale cereals), a hybrid of wheat and rye. The disease is
caused by the smut fungus Tilletia indica (Mitra) Mundkur and is spread
by spores. Karnal bunt is a serious disease that affects both yield and
grain quality. It adversely affects the color, odor, and palatability
of flour and other foodstuffs made from affected grain. Grain
containing any amount of bunted kernels is reduced in quality. Karnal
bunt does not present a risk to human health.
On March 20, 1996, the Secretary of Agriculture signed a
``Declaration of Extraordinary Emergency'' authorizing the Secretary to
take emergency action under 7 U.S.C. 150dd with regard to Karnal bunt
within the States of Arizona, New Mexico, and Texas. The ``Declaration
of Extraordinary Emergency'' was published in the Federal Register on
March 25, 1996 (61 FR 12058, Docket No. 96-016-1). On March 26, 1996,
the Secretary of Agriculture signed a ``Declaration of Emergency''
authorizing the transfer and use of funds within the Department for a
program to control Karnal bunt wherever it may be found in the United
States. The ``Declaration of Emergency'' was published in the Federal
Register on March 29, 1996 (61 FR 14046, Docket No. 96-016-2).
[[Page 35108]]
In an interim rule effective March 25, 1996, and published in the
Federal Register March 28, 1996 (61 FR 13649-13655, Docket No. 96-016-
3), we established the Karnal bunt regulations (7 CFR 301.89-1 through
301.89-11) and quarantined the State of Arizona and a total of six
counties in the States of New Mexico and Texas. The regulations impose
restrictions on the interstate movement of regulated articles from
quarantined areas in order to prevent the artificial spread of Karnal
bunt to noninfested areas of the United States.
On April 12, 1996, the Secretary of Agriculture signed a
``Declaration of Extraordinary Emergency'' authorizing the Secretary to
take emergency action under 7 U.S.C. 150dd with regard to Karnal bunt
within the State of California. The ``Declaration of Extraordinary
Emergency'' was published in the Federal Register on April 18, 1996 (61
FR 16895-16896, Docket No. 96-016-4).
In an interim rule effective April 19, 1996, and published in the
Federal Register on April 25, 1996 (61 FR 18233-18235, Docket No. 93-
016-5) we amended the regulations by adding Imperial County, CA, and a
portion of Riverside County, CA, to the list of areas quarantined
because of infestations of Karnal bunt. We also added Tilletia indica
(Mitra) Mundkur, the organism that causes Karnal bunt, to the list of
restricted articles.
Removal of Quarantined Areas
Section 301.89-3(e) of the regulations lists those States or
portions of States that are quarantined because of Karnal bunt. We are
amending Sec. 301.89-3(e) by removing the following portions of the
States of Arizona, New Mexico, and Texas from the list of quarantined
areas: Yavapai County, Coconino County, Navajo County, Apache County,
Gila County, Greenlee County, and Santa Cruz County, AZ; portions of
Mohave County and Pima County, AZ; portions of Hidalgo County, Luna
County, and Sierra County, NM; and a portion of Hudspeth County, TX.
These areas do not produce wheat, durum wheat, or triticale, or do
produce wheat but we have been able to determine that they have no
association with Karnal bunt contaminated seed, and, therefore, do not
present a risk of being, or becoming, infested with Karnal bunt. The
remainder of the counties in the State of Arizona, Dona Ana County, NM,
and El Paso County, TX, will remain under quarantine because of
infestations of Karnal bunt.
The area of Mohave County, AZ, that will remain under quarantine is
that portion of the county bounded as follows: Beginning at the
intersection of Arizona/Nevada State line and State Route 68; then east
along State Route 68 to U.S. Highway 93; then southeast along U.S.
Highway 93 to Interstate 40; then south along Interstate 40 to the
Arizona/California State line; then north along the State line to the
point of beginning.
The area of Pima County, AZ, that will remain under quarantine is
that portion of the county bounded as follows: Beginning at the
intersection of the Pima County line, the Pinal County line, and the
Papago Indian Reservation boundary; then east along the Pima County
line to its easternmost point; then south along the Pima County line to
the Cochise and Santa Cruz County lines; then west along the Pima
County line to the United States/Mexico boundary; then west along the
United States/Mexico boundary to the Papago Indian Reservation
boundary; then north along the Papago Indian Reservation boundary to
the point of beginning.
The area of Hidalgo County, NM, that will remain under quarantine
is that portion of the county bounded as follows: Beginning at the
intersection of the Arizona/New Mexico State line and Interstate 10;
then east along Interstate 10 to the Hidalgo/Grant County line; then
south and east along the Hidalgo County line to the Luna County line;
then south along the Hidalgo County line to its southernmost point;
then west and north along the Hidalgo county line to point of
beginning.
The area of Luna County, NM, that will remain under quarantine is
that portion of the county bounded as follows: Beginning at the
intersection of the Grant/Luna County line and Interstate 10; then east
along Interstate 10 to U.S. Highway 180; then north along U.S. Highway
180 to State Route 26; then north along State Route 26 to State Route
27; then northeast along State Route 27 to the Luna/Sierra County line;
then east along the Luna County line to the Dona County line; then
south along the Luna County line to the United States/Mexico boundary;
then west along the United States/Mexico boundary to the Hidalgo County
line; then north along the Luna County line to the point of beginning.
The area of Sierra County, NM, that will remain under quarantine is
that portion of the county bounded as follows: Beginning at
intersection of the Luna/Sierra County line and State Route 27; then
north along State Route 27 to State Route 152; then east along State
Route 152 to Interstate 25; then north along Interstate 25 to State
Route 52; then northwest along State Route 52 to the Sierra/Socorro
County line; then east along the Sierra County line to the Lincoln
County line; then south along the Sierra County line to the Dona Ana
County line; then west along the Sierra County line to the point of
beginning.
The area of Hudspeth County, TX, that will remain under quarantine
is that portion of the county bounded as follows: Beginning at the
intersection of the El Paso/Hudspeth County line and U.S. Highway 62/
U.S. Highway 180; then east along U.S. Highway 62/U.S. Highway 180 to
County Road 1111; then south along County Road 1111 to its terminus;
then west along an imaginary line to the United States/Mexico boundary;
then northwest along the United States/Mexico boundary to the El Paso/
Hudspeth County line; then north along the El Paso/Hudspeth County line
to the point of beginning.
This action relieves unnecessary regulatory restrictions on the
public while continuing to prevent the artificial spread of Karnal bunt
into noninfested areas of the United States.
Immediate Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that there is good cause for publishing this interim
rule without prior opportunity for public comment. The areas affected
by this document were quarantined to prevent Karnal bunt from spreading
to noninfested areas of the United States. Because wheat, durum wheat,
and triticale are not grown in these areas or these areas have no
association with Karnal bunt contaminated seed and because the
continued quarantined status of these areas would impose unnecessary
regulatory restrictions on the public, immediate action is warranted to
relieve restrictions.
Because prior notice and other public procedures with respect to
this action are impracticable and contrary to the public interest under
these conditions, we find good cause under 5 U.S.C. 553 to make it
effective upon signature. We will consider comments that are received
within 60 days of publication of this rule in the Federal Register.
After the comment period closes, we will publish another document in
the Federal Register. It will include a discussion of any comments we
receive and any amendments we are making to the rule as a result of the
comments.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget
[[Page 35109]]
has waived its review process required by Executive Order 12866.
This action removes seven entire counties in Arizona and portions
of six counties in Arizona, New Mexico, and Texas from the list of
areas quarantined because of Karnal bunt. This situation makes
compliance with section 603 and timely compliance with section 604 of
the Regulatory Flexibility Act (5 U.S.C. 603 and 604) impracticable.
This rule may have a significant economic impact on a substantial
number of small entities. If we determine this is so, then we will
discuss the issues raised by section 604 of the Regulatory Flexibility
Act in our Final Regulatory Flexibility Act Analysis.
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 required 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 new information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301--DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, and
164-167; 7 CFR 2.22, 2.80, and 371.2(c).
2. In section 301.89-3, paragraph (e) is amended by revising the
entries for Arizona, New Mexico, and Texas to read as follows:
Sec. 301.89-3 Quarantined areas.
* * * * *
(e) * * *
Arizona
Cochise County. The entire county.
Graham County. The entire county.
LaPaz County. The entire county.
Maricopa County. The entire county.
Mohave County. Beginning at the intersection of Arizona/Nevada
State line and State Route 68; then east along State Route 68 to U.S.
Highway 93; then southeast along U.S. Highway 93 to Interstate 40; then
south along Interstate 40 to the Arizona/California State line; then
north along the State line to the point of beginning.
Pima County. Beginning at the intersection of the Pima County line,
the Pinal County line, and the Papago Indian Reservation boundary; then
east along the Pima County line to its easternmost point; then south
along the Pima County line to the Cochise and Santa Cruz County lines;
then west along the Pima County line to the United States/Mexico
boundary; then west along the United States/Mexico boundary to the
Papago Indian Reservation boundary; then north along the Papago Indian
Reservation boundary to the point of beginning.
Pinal County. The entire county.
Yuma County. The entire county.
* * * * *
New Mexico
Dona Ana County. The entire county.
Hidalgo County. Beginning at the intersection of the Arizona/New
Mexico State line and Interstate 10; then east along Interstate 10 to
the Hidalgo/Grant County line; then south and east along the Hidalgo
County line to the Luna County line; then south along the Hidalgo
County line to its southernmost point; then west and north along the
Hidalgo County line to point of beginning.
Luna County. Beginning at the intersection of the Grant/Luna County
line and Interstate 10; then east along Interstate 10 to U.S. Highway
180; then north along U.S. Highway 180 to State Route 26; then north
along State Route 26 to State Route 27; then northeast along State
Route 27 to the Luna/Sierra County line; then east along the Luna
County line to the Dona County line; then south along the Luna County
line to the United States/Mexico boundary; then west along the United
States/Mexico boundary to the Hidalgo County line; then north along the
Luna County line to the point of beginning.
Sierra County. Beginning at intersection of the Luna/Sierra County
line and State Route 27; then north along State Route 27 to State Route
152; then east along State Route 152 to Interstate 25; then north along
Interstate 25 to State Route 52; then northwest along State Route 52 to
the Sierra/Socorro County line; then east along the Sierra County line
to the Lincoln County line; then south along the Sierra County line to
the Dona County line; then west along the Sierra County line to the
point of beginning.
Texas
El Paso County. The entire county.
Hudspeth County. Beginning at the intersection of the El Paso/
Hudspeth County line and U.S. Highway 62/U.S. Highway 180; then east
along U.S. Highway 62/U.S. Highway 180 to County Road 1111; then south
along County Road 1111 to its terminus; then west along an imaginary
line to the United States/Mexico boundary; then northwest along the
United States/Mexico boundary to the El Paso/Hudspeth County line; then
north along the El Paso/Hudspeth County line to the point of beginning.
* * * * *
Done in Washington, DC, this 27th day of June 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-16998 Filed 7-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-16990 Disclosure and Notice of Change of Rates and Other Service Terms for Pipeline Common Carriage
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35141-35142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16990]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Part 1305
[STB Ex Parte No. 538]
Disclosure and Notice of Change of Rates and Other Service Terms
for Pipeline Common Carriage
AGENCY: Surface Transportation Board
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: The ICC Termination Act of 1995 (ICCTA) eliminated the tariff
requirements formerly applicable to pipeline carriers transporting
commodities other than water, gas or oil. Instead, the ICCTA imposed
certain obligations to disclose rates and service terms, as well as a
requirement for advance notice of an increase in such rates or a change
in service terms. The ICCTA requires the Board to promulgate
regulations to administer these new obligations by June 29, 1996. The
Board adds a new part 1305 to its regulations for that purpose.
EFFECTIVE DATE: These rules are effective August 4, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5660. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: The Board's decision adopting these
regulations is available to all persons for a charge by phoning DC NEWS
& DATA, INC., at (202) 289-4357.
A notice of proposed rulemaking was published in the Federal
Register on May 15, 1996 at 61 FR 24474.
Small Entities
The Board certifies that this rule will not have a significant
economic effect on a substantial number of small entities. The rules
should result in easier access to pipeline rate and service
information, and, to that extent, our action should benefit small
entities.
Environment
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1305
Pipelines, Reporting and recordkeeping requirements,
Transportation.
Decided: June 27, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, the Board adds a new
part 1305 to title 49, chapter X, of the Code of Federal Regulations,
to read as follows:
PART 1305--DISCLOSURE AND NOTICE OF CHANGE OF RATES AND OTHER
SERVICE TERMS FOR PIPELINE COMMON CARRIAGE
Sec.
1305.1 Scope; definitions.
1305.2 Disclosure requirement for existing rates.
1305.3 Response to request for establishment of a new rate.
1305.4 Notice requirement.
Authority: 49 U.S.C. 721(a) and 15701(e).
Sec. 1305.1 Scope; definitions.
(a) The provisions of this part address the requirements imposed on
pipeline carriers by 49 U.S.C. 15701(b) and 15701(c). Such requirements
apply to pipeline carriers only with respect to the transportation of
commodities other than water, gas, or oil.
(b) Except as otherwise provided in paragraph (c) of this section,
the provisions of this part apply to any transportation or service
provided by a pipeline carrier subject to the jurisdiction of the
Surface Transportation Board under 49 U.S.C. 15301.
(c) The provisions of this part do not apply to any transportation
or service provided by a pipeline carrier to the extent that such
transportation or service is exempted from rate notice and disclosure
requirements pursuant to 49 U.S.C. 15302.
(d) For the purposes of this part, service terms means all
classifications, rules, and practices that affect the rates, charges,
or level of service for pipeline transportation.
Sec. 1305.2 Disclosure requirement for existing rates.
(a) A pipeline carrier must disclose to any person, on request, the
specific rate(s) requested (or the basis for calculating the specific
rate(s)), as well as all charges and service terms that may be
applicable to transportation covered by those rate(s).
(b) The information provided by a pipeline carrier under this
section must be provided immediately. (It is expected that the response
will be sent within hours, or at the latest by the next business day,
in most situations.) Such information may be provided either in writing
or in electronic form, as agreed to by the parties. If the parties
cannot agree, such information is to be provided in electronic form
where both parties have the requisite capabilities; otherwise, it is to
be provided in writing.
(c) A pipeline carrier may, at its option, require that all
requests
[[Page 35142]]
submitted under this section be in writing or electronic form, or the
carrier may permit oral requests.
Sec. 1305.3 Response to request for establishment of a new rate.
Where a shipper or a prospective shipper, or a person acting on
behalf of a shipper or a prospective shipper, requests that the carrier
establish a rate in the absence of an existing rate for particular
transportation, the carrier must promptly establish and provide to the
requester a rate and applicable service terms. The information may be
provided either in writing or in electronic form, as agreed to by the
parties. If the parties cannot agree, such information is to be
provided in electronic form where both parties have the requisite
capabilities; otherwise, it is to be provided in writing. The response
should be provided as soon as reasonably possible, but no later than 10
business days from receipt of the request. If a carrier determines that
additional information is required from the requester before a rate or
term can be established, the carrier must so notify the requester as
soon as possible, but no later than 10 business days after receipt of
the request. Once the additional information is received, the carrier
must set the rate and related service terms, and relay them to the
requester, as soon as possible, but no later than 10 business days. The
time period for response set forth in this section will not apply when
the parties agree to a different time period. A pipeline carrier may,
at its option, require that requests submitted under this section be in
writing or electronic form, or the carrier may permit oral requests.
Sec. 1305.4 Notice requirement.
(a) A pipeline carrier may not increase any rates or charges, or
change any service terms (except for changes that are equivalent to
rate reductions) unless 20 days have expired after written or
electronic notice has been provided to all persons who, within the
previous 12 months:
(1) Have requested, under Sec. 1305.2 or Sec. 1305.3, the affected
rates or service terms; or
(2) Have made arrangements with the carrier for a shipment that
would be subject to the increased rates or changed service terms.
(b) The notice required by this section may be provided either in
writing or in electronic form, as agreed to by the parties. If the
parties cannot agree, the information is to be provided in electronic
form where both parties have the requisite capabilities; otherwise, it
is to be provided in writing.
(c) For purposes of this section, a mailed notice is deemed
``provided'' on the date such notice is postmarked.
(d) The notice required by this section must clearly identify the
increase in rates or charges or the change in service terms.
[FR Doc. 96-16990 Filed 7-3-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-16989 Disclosure, Publication, and Notice of Change of Rates and Other Service Terms for Rail Common Carriage
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35139-35141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16989]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1300
[STB Ex Parte No. 528]
Disclosure, Publication, and Notice of Change of Rates and Other
Service Terms for Rail Common Carriage
AGENCY: Surface Transportation Board.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: The ICC Termination Act of 1995 (ICCTA) eliminated the tariff
requirements formerly applicable to rail carriers, but imposed instead
certain obligations to disclose common carriage rates and service terms
as well as a requirement for advance notice of increases in such rates
or a change in service terms. The ICCTA requires the Board to
promulgate regulations to administer these new obligations by June 29,
1996. The Board adds a new part 1300 to its regulations for that
purpose.
EFFECTIVE DATE: These rules are effective August 4, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5660. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: The Board's decision adopting these
[[Page 35140]]
regulations is available to all persons for a charge by phoning DC NEWS
& DATA, INC. at (202) 289-4357.
Small Entities
The Board certifies that these rules will not have a significant
economic impact on a substantial number of small entities. Although
many railroads and shippers are small entities, we believe that the
costs of compliance and other impacts would be minimal. We note that
the rules should result in easier access to rail rate and service
information, and to that extent, our action should benefit small
entities.
Environment
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1300
Administrative practice and procedure, Agricultural commodities,
Railroads, Reporting and recordkeeping requirements.
Decided: June 27, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, Chapter X of the Code of Federal
Regulations is amended as follows:
SUBCHAPTER D--CARRIER RATES AND SERVICE TERMS
1. The heading for Subchapter D is revised as set forth above.
2. The undesignated center headings for parts 1300-1319, parts
1320-1329, and parts 1330-1339 are removed.
3. A new part 1300 is added to read as follows:
PART 1300--DISCLOSURE, PUBLICATION, AND NOTICE OF CHANGE OF RATES
AND OTHER SERVICE TERMS FOR RAIL COMMON CARRIAGE
Sec.
1300.1 Scope; definitions.
1300.2 Disclosure requirement for existing rates.
1300.3 Response to request for establishment of a new rate.
1300.4 Notice requirement.
1300.5 Additional publication requirement for agricultural products
and fertilizer.
Authority: 49 U.S.C. 721(a) and 11101(f).
Sec. 1300.1 Scope; definitions.
(a) The provisions of this part address the requirements imposed on
rail carriers by 49 U.S.C. 11101(b), 11101(c), 11101(d) and 11101(f).
(b) Except as otherwise provided in this section, the provisions of
this part apply to any common carriage transportation or service
provided by a rail carrier subject to the jurisdiction of the Surface
Transportation Board under 49 U.S.C. 10501.
(c) The provisions of this part do not apply to any transportation
or service provided by a rail carrier under a contract authorized under
49 U.S.C. 10709 or former 49 U.S.C. 10713 (repealed effective January
1, 1996).
(d) The provisions of this part do not apply to any transportation
or service provided by a rail carrier to the extent that such
transportation or service is exempted from rate notice and disclosure
requirements pursuant to an exemption issued under 49 U.S.C. 10502 or
former 49 U.S.C. 10505 (repealed effective January 1, 1996).
(e) For the purposes of this part, ``service terms'' means all
classifications, rules, and practices that affect the rates, charges,
or level of service for rail transportation.
Sec. 1300.2 Disclosure requirement for existing rates.
(a) A rail carrier must disclose to any person, upon formal
request, the specific rate(s) requested (or the basis for calculating
the specific rate(s)), as well as all charges and service terms that
may be applicable to transportation covered by the rate(s). For
purposes of Sec. 1300.4(a)(1) of this part, a formal request under this
part is one that clearly notifies the railroad that the requester seeks
not only immediate information but also notification of any future
increases in the rate(s) involved or changes in pertinent service
terms.
(b) The information provided by a rail carrier under this section
must be provided immediately. (It is expected that the response will be
sent within hours, or at least by the next business day, in most
situations.) Such information may be provided either in written or
electronic form as agreed to by the parties. If the parties cannot
agree, such information is to be provided in electronic (non-passive)
form where both parties have the requisite capabilities; otherwise, it
is to be provided in writing.
(c) A rail carrier may, at its option, require that all requests
submitted under this section be in written or electronic form, although
the carrier may permit oral requests.
Sec. 1300.3 Response to request for establishment of a new rate.
Where a shipper or a prospective shipper or person acting on behalf
of a shipper or a prospective shipper requests that the carrier
establish a rate in the absence of an existing rate for particular
transportation, the carrier must promptly establish and provide to the
requester a rate and applicable service terms. The information may be
provided either in written or electronic form, as agreed to by the
parties. If the parties cannot agree, such information is to be
provided in electronic (non-passive) form where both parties have the
requisite capabilities; otherwise, it is to be provided in writing. The
response should be provided as soon as reasonably possible, but no
later than 10 business days from receipt of the request. If a carrier
determines that additional information is required from the requester
before a rate or term can be established, the carrier must so notify
the requester as soon as possible, but no later than 10 business days
after receipt of the request. Once the additional information is
received, the carrier must set the rate and related service terms, and
relay them to the requester, as soon as reasonably possible, but no
later than 10 business days from the receipt of the additional
information. (However, the parties may agree to a different time
period, in which case these time periods would not apply.) A rail
carrier may, at its option, require that requests submitted under this
section be in written or electronic form, although the carrier may
permit oral requests.
Sec. 1300.4 Notice requirement.
(a) A rail carrier may not increase any rates or charges, or change
any service terms (except for changes that are equivalent to rate
reductions), unless 20 days have expired after written or electronic
notice has been provided to all persons who, within the previous 12
months:
(1) Have formally requested under Secs. 1300.2 or 1300.3 of this
part the affected rates or service terms; or
(2) Have made arrangements with the carrier for a future shipment
that would be subject to the increased rates or changed service terms.
(b) The notice required by this section may be in written or
electronic form, as agreed to by the parties. If the parties cannot
agree, the information is to be provided in electronic (non-passive)
form where both parties have the requisite capabilities; otherwise, it
is to be provided in writing.
(c) For purposes of this section, a mailed notice is deemed
``provided'' on the date such notice is postmarked.
(d) The notice required by this section must clearly identify the
increases in rates or charges or the changes in service terms.
[[Page 35141]]
Sec. 1300.5 Additional publication requirement for agricultural
products and fertilizer.
(a) With respect to transportation of agricultural products
(including grain, as defined in 7 U.S.C. 75, and all products thereof)
and fertilizer, a rail carrier shall publish, make available, and
retain for public inspection its currently effective rates, schedules
of rates, charges, and other service terms, and any scheduled changes
to such rates, charges, and service terms. This requirement is in
addition to the requirements imposed by Secs. 1300.2, 1300.3, and
1300.4 of this part.
(b) The information published under this section must include an
accurate description of the services offered to the public; must
provide the specific applicable rates (or the basis for calculating the
specific applicable rates), charges, and service terms; and must be
arranged in a way that allows for the determination of the exact rate,
charges, and service terms applicable to any given shipment (or to any
given group of shipments). Increases, reductions and other changes must
be symbolized or highlighted in some way to facilitate ready
identification of the changes, the nature of those changes and their
effective dates.
(c) A rail carrier must make the information available at offices
where it normally keeps rate information. Access to the information at
such offices must be provided to any person, without charge, during
normal business hours.
(d) A rail carrier must also make the required publications
available to all persons (hereinafter referred to as subscribers) who
have subscribed to a publication service operated either by the rail
carrier itself or by an agent acting at the rail carrier's direction.
Such publications may be made available either in printed or in
electronic form as agreed to by the parties. Any scheduled changes must
be published in a manner that provides timely notice to subscribers. A
rail carrier may impose reasonable charges for such publications.
Publications may be limited to the specific information requested by
the subscriber, and charges for such limited publications should be set
accordingly.
[FR Doc. 96-16989 Filed 7-3-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-16894 Safety Zone: Macy's 1996 Fourth of July Fireworks, East River, New York
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35130-35132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16894]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD01-96-041]
RIN 2115-AA97
Safety Zone: Macy's 1996 Fourth of July Fireworks, East River,
New York
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for
the annual Macy's Fourth of July Fireworks program in New York Harbor.
The event will take place on Thursday, July 4, 1996, from 7:30 p.m.
until 11 p.m. on the East River. This safety zone temporarily closes a
major portion of the East River to vessel transits.
EFFECTIVE DATE: This rule is effective from 7:30 p.m. until 11 p.m. on
July 4, 1996, unless extended or terminated sooner by the Captain of
the Port New York.
FOR FURTHER INFORMATION CONTACT: Lieutenant J. W. Green, Chief,
Waterways Oversight Branch, Waterways Management Division, Coast Guard
Activities New York (212) 668-7906.
SUPPLEMENTARY INFORMATION:
Regulatory History
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation. Good cause exists for not
publishing an NPRM and for making this regulation effective less than
30 days after Federal Register publication. Due to the date complete
information regarding this event was received, there was insufficient
time to draft and publish an NPRM. Any delay encountered in this
regulation's effective date would be contrary to public interest since
immediate action is needed protect the maritime public from the hazards
associated with large amounts of fireworks exploding from four separate
barge locations in the waters of the East River.
Background and Purpose
Macy's has submitted an Application for Approval of Marine Event to
hold a fireworks program on the waters of the East River. This
regulation establishes a temporary safety zone in the waters of the
East River. The safety zone includes all waters of the East River,
shore to shore, north of a line drawn from the foot of East 10th
Street, Manhattan, east through the chartered position of Buoy 18 (LLNR
27335) to the foot of North 8th Street, Brooklyn, New York, and south
of a line drawn from Lawrence Point (40 deg.47'27''N latitude
073 deg.54'35''W longitude) to Stony Point (40 deg.47'48''N latitude
073 deg.54'42''W longitude), and south of the Harlem River Foot Bridge,
New York. This safety zone area also includes all waters of Newtown
Creek west of the 073 deg.57'37''W line of longitude and all waters
inward of the pierheads and bulkheads between the Queensboro Bridge,
Roosevelt Island, and the southern boundary of this safety zone. No
vessel may enter the safety zone without permission of the Captain of
the Port New York. Certain designated vessels will be allowed to take
position within the zone as follows: (1) vessels less than 20 meters
(65.6 feet) in length, carrying persons for the sole purpose of viewing
the fireworks may take position north of the southern tip of Roosevelt
Island; and (2) vessels equal to or greater than 20 meters (65.6 feet)
in length, carrying persons for the sole purpose of viewing the
fireworks display, may take position in an area at least 300 yards off
the bulkhead on the west bank and just off the pierhead faces on the
east bank of the East River
[[Page 35131]]
between a line drawn from East 15th Street, Manhattan, to a point due
east on the Brooklyn shore north of the entrance to Bushwick Inlet and
a line drawn from the foot of East 10th Street, Manhattan, east through
the chartered position of Buoy 18 (LLNR 27335) to the foot of North 8th
Street, Brooklyn.
All vessels must be in their respective viewing areas not later
than 7:30 p.m. These vessels once in position within the zone must
remain in position until released by the Captain of the Port New York.
On scene patrol personnel will monitor the number of designated vessels
taking position in the viewing areas of the zone. If it becomes
apparent that any additional spectator vessels in a specific viewing
area will create a safety hazard, the patrol commander may prevent
additional vessels from entering into that viewing area.
Vessels not complying with this criteria have a significant
potential to create a hazardous condition in this area of the East
River, due in great part, to the extremely strong currents.
This safety zone covers the minimum area needed and imposes the
minimum restrictions necessary to ensure the protection of all vessels
and the fireworks handlers aboard the barges.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. 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
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10(e) of the regulatory policies and procedures of DOT is
unnecessary. This proposed safety zone temporarily closes a major
portion of the East River to vessel traffic. There is a regular flow of
traffic through this area; however, due to the limited duration of the
event; the extensive, advance advisories that will be made to allow the
maritime community to schedule transits before and after the event; the
fact that the event is taking place at a late hour on a Federal
holiday, and that vessel traffic is expected to be somewhat reduced due
to this Federal holiday falling on a weekday not immediately proceeding
or following a weekend, the impact of this regulation is expected to be
minimal.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal 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).
For reasons set forth in the above Regulatory Evaluation, the Coast
Guard expects the impact of this proposal to be minimal. The Coast
Guard certifies under 5 U.S.C. 605(b) that this proposal will not have
a significant economic impact on a substantial number of small
entities.
Therefore, the Coast Guard finds that this rule will not have a
significant economic impact on a substantial number of small entities.
If, however, you think that your business or organization qualifies as
a small entity and that this rule will have significant economic impact
on your business or organization, please submit a comment explaining
why you think it qualifies and in what way and to what degree this rule
will economically affect it.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501).
Federalism
The Coast Guard has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that this proposal does not raise sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
regulation and concluded that under section 2.B.2.e. of Commandant
Instruction M16475.1B, revised 59 FR 38654, July 29, 1994, the
promulgation of this regulation is categorically excluded from further
environmental documentation. A Categorical Exclusion Determination and
Environmental Analysis Checklist are included in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
Part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A temporary section, 165.T01-041 is added to read as follows:
Sec. 165.T01-041 Safety Zone: Macy's 1996 Fourth of July Fireworks,
East River, New York.
(a) Location. The safety zone includes all waters of the East
River, shore to shore, north of a line drawn from the foot of East 10th
Street, Manhattan, east through the charted position of Buoy 18 (LLNR
27335) to the foot of North 8th Street, Brooklyn, and south of a line
drawn from Lawrence Point (40 deg.47'27''N latitude 073 deg.54'35''W
longitude) to Stony Point (40 deg.47'48''N latitude 073 deg.54'42''W
longitude), and south of the Harlem River Foot Bridge, New York. This
safety zone area also includes all waters of Newtown Creek west of the
073 deg.57'37''W line of longitude and all waters inward of the
pierheads and bulkheads between the Queensboro Bridge, Roosevelt Island
and the southern boundaries of this safety zone.
(b) Effective period. This section is effective from 7:30 p.m.
until 11 p.m. on July 4, 1996, unless extended or terminated sooner by
the Captain of the Port New York.
(c) Regulations. (1) The general regulations contained in 33 CFR
165.23 apply to this safety zone.
(2) No vessels will be allowed to enter the safety zone without
permission of the Captain of the Port New York.
(3) The following vessels may remain within the safety zone:
(i) Vessels less than 20 meters (65.6 feet) in length, carrying
persons for the sole purpose of viewing the fireworks display may take
position within the zone north of the southern tip of Roosevelt Island.
(ii) Vessels greater than 20 meters (65.6 feet) in length, carrying
persons for the sole purpose of viewing the fireworks display may take
position within an area at least 300 yards off the bulkhead on the west
bank and just off the pierhead faces on the east bank of the East River
between a line drawn from the foot of 15th Street, Manhattan, to a
point due east on the Brooklyn shore north of the entrance to Bushwick
Inlet and a line drawn from the foot of
[[Page 35132]]
East 10th Street, Manhattan, east through the charter position of Buoy
18 (LLNR 27335) to the foot of North 8th Street, Brooklyn.
(iii) Vessels taking position within the safety zone in either of
these viewing areas must be in their respective viewing area not later
than 7:30 p.m.
(4) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on scene patrol
personnel. U.S. Coast Guard patrol personnel include commissioned,
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel via siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
Dated: June 20, 1996.
T.H. Gilmour,
Captain, U.S. Coast Guard, Captain of the Port of New York.
[FR Doc. 96-16894 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-16893 Safety Zone Regulations: Delaware Bay, Delaware River
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35132-35133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16893]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD 05-96-045]
RIN 2115-AA97
Safety Zone Regulations: Delaware Bay, Delaware River
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
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SUMMARY: The Coast Guard is establishing a safety zone on the Delaware
Bay and Delaware River from Marcus Hook, Pennsylvania, to the Delaware
Breakwater. This safety zone is needed to protect vessels, the port
community and the environment from potential safety and environmental
hazards associated with the loading and outbound transit of the T/V
EMSGAS.
EFFECTIVE DATES: This rule is effective from 11:59 p.m. June 23, 1996,
and terminates at 11:59 p.m. July 5, 1996. The Captain of the Port,
Philadelphia, may, at an earlier date, advise mariners by Broadcast
Notice to Mariners that the safety zone will not be enforced.
FOR FURTHER INFORMATION CONTACT: LTJG S.J. Kelly, Project Officer at
the Captain of the Port, Philadelphia, (215) 271-4909.
SUPPLEMENTARY INFORMATION: In accordance with 5 U.S.C. 553, a notice of
proposed rulemaking (NPRM) was not published for this regulation and
good cause exists for making it effective in less than 30 days after
Federal Register publication. The Coast Guard was informed by the
owner/operator of the T/V EMSGAS on June 19, 1996 of the intended
transit of the T/V EMSGAS along the Delaware River. Publishing a NPRM
and delaying its effective date would be contrary to the public
interest, since immediate action is needed to respond to protect the
environment and vessel traffic against potential hazards associated
with the transit of the T/V EMSGAS while it is loaded with liquefied
petroleum gas.
Drafting Information
The drafters of this regulation are LTJG Scott J. Kelly, project
officer for the Captain of the Port, Philadelphia, and CDR T. Cahill,
project Attorney, Maintenance and Logistics Command Atlantic, Legal
Division.
Discussion of the Regulation
This safety zone includes a specified area around the vessel during
cargo operations and while underway outbound. It will be in effect
during the T/V EMSGAS's transit of the Delaware River and Delaware Bay
and during cargo operations at the Sun Refining and Marketing Refinery
terminal on the Delaware River, at Marcus Hook, Pennsylvania. The
circumstances requiring this regulation are the potential hazards
associated with the transportation of liquefied petroleum gas by a
large tankship in heavily trafficked areas of the Delaware River and
Delaware Bay as well as in the Ports of Philadelphia. The transit
consists of T/V EMSGAS's outbound transit on the Delaware River and the
Delaware Bay between the vessel's berth at the Sun Refining and
Marketing Refinery terminal on the Delaware River, at Marcus Hook,
Pennsylvania and the Delaware Breakwater. Coast Guard Captain of the
Port Philadelphia may impose transit restrictions on vessels operating
within the safety zone while the T/V EMSGAS is loaded with LPG that
exceeds 2% of the vessel's cargo carrying capacity.
Regulatory Evaluation
This temporary rule is not a significant regulatory action under
section3(f) of Executive Order 12866 and does not require an assessment
of potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
temporary rule to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary.
Environment
The Coast Guard considered the environmental impact of this
temporary rule and concluded that under section 2.B.2.e (34) of
Commandant Instruction M16475.1B (as revised by 49 FR 38654; July 29,
1994), this rule is categorically excluded from further environmental
documentation.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism Assessment
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that it does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation (water), Reporting and Record
Keeping Requirements, Security measures, Waterways.
Regulation
In consideration of the foregoing, Subpart C of Part 165 of Title
33, Code of Federal Regulations, is amended as follows:
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. Section 165.T05-045 is added to read as follows:
Sec. 165.T05-045 Safety Zone: Delaware Bay, Delaware River
(a) Location. A safety zone is established for:
(1) All waters within an area which extends 500 yards on either
side and 1,000 yards ahead and astern of the T/V EMSGAS while the
vessel is in the loaded condition and underway in the area bounded by
the Delaware Breakwater and the Sun Refining and Marketing Refinery
terminal on the Delaware River, at Marcus Hook, Pennsylvania.
(2) All waters within a 200 yard radius of the T/V EMSGAS while it
is moored at the Sun Refining and Marketing Refinery terminal.
(b) No vessel may enter the safety zone unless its operator obtains
permission of the Captain of the Port or his designated representative.
[[Page 35133]]
(c) As a condition of entry, the COTP may order that each vessel:
(1) Maintain a continuous radio guard on channels 13 and 16 VHF-FM
while underway;
(2) Not overtake the T/V EMSGAS unless the overtaking is to be
completed before any bends in the channel, and the pilots, masters and
operators of both vessels clearly agree on all action including speeds,
time and location of overtaking.
(3) Operate at a minimum no wake speed sufficient to maintain
steerage while T/V EMSGAS is moored at the Sun Refining and Marketing
Refinery terminal on the Delaware River, at Marcus Hook, Pennsylvania;
(4) Proceed as directed by the Captain of the Port or by his
designated representative.
(d) The COTP may be contacted on VHF channels 13 & 16. The Captain
of the Port of Philadelphia and the Command Duty Officer at the Marine
Safety Office, Philadelphia, may be contacted at telephone number (215)
271-4940.
(e) Definitions:
Captain of the Port or COTP means the Captain of the Port
Philadelphia or any Coast Guard commissioned, warrant or petty officer
authorized to act on his behalf.
Loaded Condition means loaded with LPG that exceeds 2 percent of
the vessel's cargo carrying capacity.
Dated: June 20, 1996.
John E. Veentjer,
Captain, U.S. Coast Guard, Captain of the Port, Philadelphia, PA.
[FR Doc. 96-16893 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-16852 Irish Potatoes Grown in Washington; Assessment Rate
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35109-35111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16852]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 946
[Docket No. FV96-946-2FIR]
Irish Potatoes Grown in Washington; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an interim final rule
that established an assessment rate of the State of Washington Potato
Committee (Committee) under Marketing Order 946 for the 1996-97 and
subsequent fiscal periods. The Committee is responsible for local
administration of the marketing order which regulates the handling of
Irish potatoes grown in Washington. Authorization to assess potato
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program.
EFFECTIVE DATE: Effective on July 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Martha Sue Clark, Program Assistant, Marketing Order Administration
[[Page 35110]]
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, telephone 202-720-9918, FAX 202-720-
5698, or Daniel L. West, Marketing Specialist, Northwest Marketing
Field Office, Fruit and Vegetable Division, AMS, USDA, Green-Wyatt
Federal Building, room 369, 1220 Southwest Third Avenue, Portland, OR
97204, telephone 503-326-2724, FAX 503-326-7440.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 113 and Order No. 946, both as amended (7 CFR part 946)
regulating the handling of Irish potatoes grown in Washington,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, Washington
potato handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
potatoes beginning July 1, 1996, and continuing until amended, or
terminated. 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. Such 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 rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 450 producers of Washington potatoes in the
production area and approximately 40 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of Washington potato producers and handlers
may be classified as small entities.
The Washington potato marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Washington potatoes. They are familiar with the Committee's needs and
with the costs for goods and services in their local area and are thus
in a position to formulate an appropriate budget and assessment rate.
The assessment rate is formulated and discussed in a public meeting.
Thus, all directly affected persons have an opportunity to participate
and provide input.
The Committee met on February 15, 1996, and unanimously recommended
1996-97 expenditures of $42,500 and an assessment rate of $0.003 per
hundredweight of potatoes. In comparison, last year's budgeted
expenditures were $42,300. The assessment rate of $0.003 is the same as
last year's established rate. Major expenditures recommended by the
Committee for the 1996-97 year include $17,400 for an agreement with
the Washington State Potato Commission to provide miscellaneous
services to the Committee and $6,000 for compliance audits, the same as
the budgeted amounts for these items in 1995-96.
The assessment rate recommended by the committee was derived by
dividing anticipated expenses by expected shipments of Washington
potatoes. Potato shipments for the year are estimated at 9,000,000
hundredweight which should provide $27,000 in assessment income. Income
derived from handler assessments, along with funds from the Committee's
authorized reserve, will be adequate to cover budgeted expenses. Funds
in the reserve will be kept within the maximum permitted by the order.
An interim final rule regarding this action was published in the
May 6, 1996, issue of the Federal Register (61 FR 20119). That interim
final rule added Sec. 946.248 to establish an assessment rate for the
Committee. That rule provided that interested persons could file
comments through June 5, 1996. No comments were received.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
This final rule also corrects an error in the interim final rule
published May 6, 1996, (61 FR 20119). The note
[[Page 35111]]
appearing before the amendatory instruction 2 incorrectly states that
Sec. 946.248 will not appear in the Code of Federal Regulations.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) The
Committee needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the 1996-97 fiscal period begins on
July 1, 1996, and the marketing order requires that the rate of
assessment for each fiscal period apply to all assessable potatoes
handled during such fiscal period; (3) handlers are aware of this
action which was unanimously recommended by the Committee at a public
meeting and is similar to other assessment rate actions issued in past
years; and (4) an interim final rule was published on this action and
provided for a 30-day comment period, and no comments were received.
List of Subjects in 7 CFR Part 946
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
PART 946--IRISH POTATOES GROWN IN WASHINGTON
Accordingly, the interim final rule amending 7 CFR part 946 which
was published at 61 FR 20119 on May 6, 1996, is adopted with the
following correction to the note immediately following amendatory
instruction 2. The note should read:
Note: This section will appear in the annual Code of Federal
Regulations.
Dated: June 26, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-16852 Filed 7-3-96; 8:45 am]
BILLING CODE 3410-02-M
Complete official Federal Register PDF
FR Doc. 96-16723 International Fisheries; Consolidation of Regulations; Technical Amendment; OMB Control Numbers
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35548-35579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16723]
[[Page 35547]]
_______________________________________________________________________
Part V
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Parts 246, et al.
International Fisheries; Consolidation of Regulations; Technical
Amendment; OMB Control Numbers; Final Rule
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules
and Regulations
[[Page 35548]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 246, 280, 281, 282, 298, 299, 679, 695, and Chapter
III
[Docket No. 960419115-6178-02; I.D. 032196A]
RIN 0648-AI22
International Fisheries; Consolidation of Regulations; Technical
Amendment; OMB Control Numbers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is consolidating 10 CFR parts into one part that contains
regulations governing international fisheries in the U.S. Exclusive
Economic Zone (EEZ) and on the high seas. All but one of the
consolidated parts implement an international agreement, convention, or
treaty to which the United States is a party. The consolidated text is
reorganized into a more logical and cohesive order, duplicative and
outdated provisions are eliminated, and editorial changes are made for
readability, clarity, and uniformity. Framework procedures are added
for the specifications of annual management measures under two parts.
In addition, an obsolete CFR part is removed. This final rule amends
references to Paperwork Reduction Act (PRA) information-collection
requirements to reflect the consolidation. This final rule also
contains a technical amendment to 50 CFR part 679, Fisheries of the EEZ
off Alaska, to bring cross references into conformance. The purpose of
this final rule is to make the regulations more concise, better
organized and, therefore, easier for the public to use. This action is
part of the President's Regulatory Reinvention Initiative.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Gorrell, Team Leader, West
Coast & Western Pacific Team, Office of Fisheries Conservation and
Management, NMFS, 301-713-2343.
SUPPLEMENTARY INFORMATION: The Regulatory Reinvention Initiative is
part of the National Performance Review calling for comprehensive
regulatory reform with an emphasis on eliminating or modifying
regulations that are obsolete, duplicative, or otherwise in need of
reform.
Currently, regulations governing international fisheries, other
than whaling and Atlantic highly migratory species, are contained in 11
separate parts of title 50 of the CFR. NMFS is removing nine of the
parts (parts 246 (Marking of Containers or Packages), 280 (Pacific Tuna
Fisheries), 282 (South Pacific Tuna Fisheries), 298 (United States-
Canada Fisheries Enforcement Agreement), 299 (U.S. Nationals Fishing in
the Russian Fisheries), 301 (Pacific Halibut Fisheries), 371 (Fraser
River Sockeye and Pink Salmon Fisheries), 380 (Antarctic Marine Living
Resources Convention Act of 1984), and 695 (Vessels of the United
States Fishing in Columbian Treaty Waters)) to consolidate the
regulations contained therein with the existing regulations in part 300
(High Seas Fisheries). NMFS also is eliminating part 281 (Restrictions
on Tuna Imports) as no longer necessary. The consolidated regulations
provide the public with a single reference source for the regulations
applying to international fisheries. Consolidation results in one set
of regulations that is more concise, clearer, and easier to use than
the existing regulations found in 11 separate parts.
NMFS is also simplifying and shortening provisions of the new part
300, including the removal of duplicative, nonessential, and obsolete
provisions. Five types of substantive revisions are made by this rule:
(1) Subpart A--General includes a definitions section (Sec. 300.2) with
general applicability throughout the part; (2) subpart A--General
includes both a general prohibitions section (Sec. 300.4) and a
facilitation of enforcement section (Sec. 300.5) containing provisions
that are applicable to many situations; (3) subpart E--Pacific Halibut
Fisheries greatly reduces the existing Pacific halibut regulations by
eliminating from the code all but one (fishing by U.S. treaty Indian
tribes (Sec. 300.64)) of the existing sections containing management
measures and substituting a new International Pacific Halibut
Commission (IPHC) annual management measures section (for publishing
the IPHC regulations by single notice in the Federal Register)
(Sec. 300.62) and a new catch sharing plan and domestic management
section (for the Assistant Administrator and the appropriate Regional
Fishery Management Council to develop plans to apportion catch limits
adopted by the IPHC and implement domestic management measures by
preliminary and final notices in the Federal Register) (Sec. 300.63);
(4) subpart H--Antarctic Marine Living Resources would establish a
framework procedure by which NMFS would publish annual management
measures by single notice in the Federal Register, rather than by
codified rules; and (5) part 281--Restrictions on Tuna Imports is
eliminated because there have not been yellowfin quotas under the
Convention for the Establishment of an Inter-American Tropical Tuna
Commission for approximately 2 decades.
All management measures adopted by the IPHC and NMFS and currently
in effect (50 CFR part 301 recodified as 50 CFR part 300 subpart E by
this rule with 1996 revisions published at 61 FR 11337, March 20, 1996)
will continue in effect until replaced by management measures in 1997
to be published in the Federal Register pursuant to Secs. 300.62 and
300.63 of this rule. All management measures adopted by the Commission
for the Conservation of Antarctic Marine Living Resources (Commission)
and published on March 5, 1996 (61 FR 8483), as well as other
Commission measures still in effect, will continue in effect until
replaced in 1997 by management measures to be published in the Federal
Register under the framework procedures at Sec. 300.111.
NMFS published a proposed rule at 61 FR 25443 (May 21, 1996),
requesting comments through June 14, 1996. No comments were received.
Additional background and rationale for this rule appear in the
proposed rule, with expanded discussion of substantive changes,
especially the decodification of the IPHC's regulations and NMFS' catch
sharing regulations as well as the establishment of broad framework
procedures for future Antarctic regulatory changes. This final rule is
the same as the proposed rule except for a technical amendment to 50
CFR part 679 and for the amendment of references to previously approved
collections of information.
References to Other Rules
NMFS, in another rulemaking published June 24, 1996, at 61 FR
32538, consolidated general provisions of the Magnuson Fishery
Conservation and Management Act into 50 CFR part 600. Because some of
the general provisions to be consolidated into part 600 apply to
several international fisheries regulations being consolidated in this
rule, the regulatory text in this rule includes references to the
consolidated part 600, rather than to existing codified text.
[[Page 35549]]
Changes From the Proposed Rule
(1) Technical Amendment to 50 CFR Part 679
This final rule contains a technical amendment to 50 CFR part 679.
As part of the President's Regulatory Reform Initiative, NMFS issued a
final rule (61 FR 31228, June 19, 1996) removing six parts in title 50
of the CFR (50 CFR parts 671, 672, 673, 675, 676, and 677) and
consolidating the regulations contained therein into one new part (50
CFR part 679). No substantive changes were made to the regulations by
the consolidation of the six parts. The new part 679 reference 50 CFR
part 301 in several places. However, under this final rule, part 301 is
removed and the regulations contained therein have been consolidated
under subpart E of part 300. Therefore, references to part 301 in the
new Sec. 679.2(1) under the definition of ``IFQ regulatory area'' and
the definition for ``IPHC'', Sec. 679.3(c), Sec. 679.4(d)(1)
introductory text and (f)(1)(i), Sec. 679.5(l) introductory text,
Sec. 679.7(a)(6)(i), (b)(3), (f)(4), and (f)(11)(i), Sec. 679.21(b)(1),
Sec. 679.23(e)(4)(i) and (f), Sec. 679.24 introductory paragraph,
Sec. 679.30(b)(1)(ii), and Sec. 679.40 introductory paragraph, are
revised to reference subpart E of part 300. Section 679.3, paragraph
(a) references regulations governing U.S. nationals fishing in Russian
fisheries as set forth in 50 CFR part 299. This final rule removes part
299 and consolidates the measures contained therein under subpart J of
part 300. Therefore, Sec. 679.3(a) is revised to reference part 300.
(2) References to Collections of Information
Section 3506(c)(B)(i) of the PRA requires that agencies inventory
and display a current control assigned by the Director, Office of
Management and Budget (OMB), for each agency information collection.
Section 902.1(b) identifies the location of NOAA regulations for which
OMB approval numbers have been issued. This final rule amends
references to previously approved collections of information in the
table in Sec. 902.1(b).
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated, to
the Assistant Administrator, the authority to sign material for
publication in the Federal Register.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this final rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published in the proposed rule (61 FR 25443, May 21,
1996). As a result, a regulatory flexibility analysis was not prepared.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject
to the PRA that were previously approved by OMB under the following
approval numbers:
a. Approved under 0648-0304--High seas fisheries, vessel permits
(Sec. 300.13), estimated at .5 hours per response.
b. Approved under 0648-0148--Pacific tuna fisheries, yellowfin tuna
recordkeeping and written reports (Sec. 300.22), estimated at .1 hours
per response.
c. Approved under 0648-0202--Pacific bluefin tuna dealer permits
(Sec. 300.24), estimated at .083 hours per response.
d. Approved under 0648-0239--Pacific bluefin tuna dealer
recordkeeping and reporting (Sec. 300.25), estimated at .25 hours per
response.
e. Approved under 0648-0239--Pacific tuna fisheries, Pacific
bluefin tuna affixing of tags (Sec. 300.26(c)), estimated at .017 hours
per response.
f. Approved under 0648-0239--Pacific tuna fisheries, Pacific
bluefin tuna removal of tags (Sec. 300.26(d)), estimated at .017 hours
per response.
g. Approved under 0648-0218--South Pacific tuna fisheries, vessel
licenses (Sec. 300.32), estimated at .25 hours per response.
h. Approved under 0648-0306--South Pacific tuna fisheries,
reporting requirements (Sec. 300.34), estimated at .25 hours per
marking.
i. Approved under 0648-0306--South Pacific tuna fisheries, vessel
and gear identification (Sec. 300.35), estimated at .25 hours per
marking.
j. Approved under 0648-0194--Antarctic marine living resources,
procedure for according protection to CCAMLR ecosystem monitoring
program sites, general (Sec. 300.103(a)), estimated at 1 hour per
response.
k. Approved under 0648-0194--Antarctic marine living resources,
scientific research (Sec. 300.104(d)), estimated at 80 hours per
response.
l. Approved under 0648-0194--Antarctic marine living resources,
scientific research (Sec. 300.104(e)), estimated at .25 hours per
response.
m. Approved under 0648-0194--Antarctic marine living resources,
initiating a new fishery (Sec. 300.105(c)), estimated at 16 hours per
response.
n. Approved under 0648-0194--Antarctic marine living resources,
exploratory fishing (Sec. 300.106(e)), estimated at 40 hours per
response.
o. Approved under 0648-0306--Antarctic marine living resources,
vessel identification (Sec. 300.108(a)), estimated at .25 hours per
marking.
p. Approved under 0648-0305--Antarctic marine living resources,
gear identification (Sec. 300.108(c)), estimated at .25 hours per
marking.
q. Approved under 0648-0194--Antarctic marine living resources,
harvesting permits (Sec. 300.112), estimated at .5 hours per response.
r. Approved under 0648-0194--Antarctic marine living resources,
import permits (Sec. 300.113), estimated at .5 hours per response.
s. Approved under 0648-0205--Vessels of the United States fishing
in Colombian Treaty waters, certificates and permits (Sec. 300.123),
estimated at .33 hours per response.
t. Approved under 0648-0016--Vessels of the United States fishing
in Colombian Treaty waters, recordkeeping and reporting
(Sec. 300.124(b)), estimated at .22 hours per response.
u. Approved under 0648-0306--Vessels of the United States fishing
in Colombian Treaty waters, vessel identification (Sec. 300.125),
estimated at .25 hours per marking.
v. Approved under 0648-0228--U.S. nationals fishing in Russian
fisheries, permit procedures (Sec. 300.152), estimated at .5 hours per
response.
w. Approved under 0648-0228--U.S. nationals fishing in Russian
fisheries, permit issuance, copies (Sec. 300.153(b)), estimated at .167
hours per response.
x. Approved under 0648-0228--U.S. nationals fishing in Russian
fisheries, recordkeeping and reporting, vessel permit abstract report
(Sec. 300.154(b)), estimated at .5 hours per response.
y. Approved under 0648-0228--U.S. nationals fishing in Russian
fisheries, recordkeeping and reporting, activity reports
(Sec. 300.154(c)), estimated at .5 hours per response.
z. Approved under 0648-0228--U.S. nationals fishing in Russian
fisheries, recordkeeping and reporting, recordkeeping
(Sec. 300.154(d)), estimated at .083 hours per response.
The estimated response times shown include the time for reviewing
[[Page 35550]]
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 246
Exports, Fish, Imports, Labeling, Reporting and recordkeeping
requirements, Transportation, Wildlife.
50 CFR Parts 280 and 282
Fisheries, Reporting and recordkeeping requirements, Treaties.
50 CFR Part 281
Fisheries, Imports, Treaties.
50 CFR Part 298
Canada, Fisheries, Treaties.
50 CFR Part 299
Fisheries, Reporting and recordkeeping requirements, Russian
Federation, Treaties.
50 CFR Part 300
Fisheries, High seas fishing, International agreements, Reporting
and recordkeeping requirements, Permits.
50 CFR Parts 301 and 695
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
50 CFR Part 371
Canada, Fisheries, Fishing, Indians, Treaties.
50 CFR Part 380
Administrative practice and procedure, Antarctica, Fish, Imports,
Marine resources, Reporting and recordkeeping requirements, Treaties,
Wildlife.
50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: June 26, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and 50
CFR chapters II, III, and VI are amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b), the table is amended by removing
in the left column under 50 CFR, the entries ``280.10'', ``280.50'',
``280.51'', ``280.53'', ``282.3'', ``282.5'', ``282.6'', ``299.3'',
``299.4'', ``299.5'', ``300.4'', ``380.4'', ``380.5'', ``380.6'',
``380.8'', ``380.20'', ``380.24'', ``380.28'', ``695.4'', ``695.5'',
and ``696.6'', and by removing in the right column the control numbers
in corresponding positions; and by adding, in numerical order, the
following entries to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
300.13..................................................... -0304
300.22..................................................... -0148
300.24..................................................... -0202
300.25..................................................... -0239
300.26(c).................................................. -0239
300.26(d).................................................. -0239
300.32..................................................... -0218
300.34..................................................... -0306
300.35..................................................... -0306
300.103(a)................................................. -0194
300.104(d)................................................. -0194
300.104(e)................................................. -0194
300.105(c)................................................. -0194
300.106(e)................................................. -0194
300.108(a)................................................. -0306
300.108(c)................................................. -0305
300.112.................................................... -0194
300.113.................................................... -0194
300.123.................................................... -0205
300.124(b)................................................. -0016
300.125.................................................... -0306
300.152.................................................... -0228
300.153(b)................................................. -0228
300.154(b)................................................. -0228
300.154(c)................................................. -0228
300.154(d)................................................. -0228
* * * * *
------------------------------------------------------------------------
50 CFR Chapter II
PARTS 246, 280, 281, 282, 298, and 299 [REMOVED]
3. Under the authority of 16 U.S.C. 3371-3378, 16 U.S.C. 951-961
and 971 et seq., 16 U.S.C. 973-973r, and 16 U.S.C. 1801 et seq., 50 CFR
parts 246, 280, 281, 282, 298, and 299 are removed and subchapter L is
vacated.
50 CFR Chapter III
4. Chapter III is revised to read as follows:
Chapter III--International Fishing and Related Activities
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart A--General
Sec.
300.1 Purpose and scope.
300.2 Definitions.
300.3 Relation to other laws.
300.4 General prohibitions.
300.5 Facilitation of enforcement.
Subpart B--High Seas Fisheries
300.10 Purpose.
300.11 Definitions.
300.12 Issuing offices.
300.13 Vessel permits.
300.14 Vessel and gear identification. [Reserved]
300.15 Prohibitions.
300.16 Penalties.
300.17 Reporting and recordkeeping. [Reserved]
Subpart C--Pacific Tuna Fisheries
300.20 Purpose and scope.
300.21 Definitions.
300.22 Yellowfin Tuna--Recordkeeping and written reports.
300.23 Yellowfin Tuna--Persons and vessels exempted.
300.24 Pacific Bluefin Tuna--Dealer permits.
300.25 Pacific Bluefin Tuna--Dealer recordkeeping and reporting.
300.26 Pacific Bluefin Tuna--Tags.
300.27 Pacific Bluefin Tuna--Documentation requirements.
300.28 Pacific Bluefin Tuna--Prohibitions.
Subpart D--South Pacific Tuna Fisheries
300.30 Purpose and scope.
300.31 Definitions.
300.32 Vessel licenses.
300.33 Compliance with applicable national laws.
300.34 Reporting requirements.
300.35 Vessel and gear identification.
300.36 Closed area stowage requirements.
300.37 Radio monitoring.
300.38 Prohibitions.
300.39 Exceptions.
300.40 Civil penalties.
300.41 Investigation notification.
300.42 Findings leading to removal from fishing area.
[[Page 35551]]
300.43 Observers.
300.44 Other inspections.
Subpart E--Pacific Halibut Fisheries
300.60 Purpose and scope.
300.61 Definitions.
300.62 Annual management measures.
300.63 Catch sharing plans and domestic management measures.
300.64 Fishing by U.S. treaty Indian tribes.
300.65 Prohibitions.
Subpart F--Fraser River Sockeye and Pink Salmon Fisheries
300.90 Purpose and scope.
300.91 Definitions.
300.92 Relation to other laws.
300.93 Reporting requirements.
300.94 Prohibitions and restrictions.
300.95 Treaty Indian fisheries.
300.96 Penalties.
300.97 Inseason orders.
Subpart G--Antarctic Marine Living Resources
300.100 Purpose and scope.
300.101 Definitions.
300.102 Relationship to other treaties, conventions, laws, and
regulations.
300.103 Procedure for according protection to CCAMLR Ecosystem
Monitoring Program Sites.
300.104 Scientific research.
300.105 Initiating a new fishery.
300.106 Exploratory fisheries.
300.107 Reporting and recordkeeping requirements.
300.108 Vessel and gear identification.
300.109 Gear disposal.
300.110 Mesh size.
300.111 Framework for annual management measures.
300.112 Harvesting permits.
300.113 Import permits.
300.114 Appointment of a designated representative.
300.115 Prohibitions.
300.116 Facilitation of enforcement and inspection.
300.117 Penalties.
Figure 1 to Subpart G--Boundaries of the Statistical Reporting Area
in the Southern Ocean
Figure 2 to Subpart G--The Use of Streamer Lines to Minimize the
Incidental Mortality of Seabirds in the Course of Longline Fishing
or Longline Fishing Research Operations in the Convention Area
Subpart H--Vessels of the United States Fishing in Colombian Treaty
Waters
300.120 Purpose.
300.121 Definitions.
300.122 Relation to other laws.
300.123 Certificates and permits.
300.124 Recordkeeping and reporting.
300.125 Vessel identification.
300.126 Prohibitions.
300.127 Facilitation of enforcement.
300.128 Penalties.
300.129 Fishing year.
300.130 Vessel and gear restrictions.
300.131 Conch harvest limitations.
300.132 Lobster harvest limitations.
Subpart I--United States-Canada Fisheries Enforcement
300.140 Purpose and scope.
300.141 Definitions.
300.142 Prohibitions.
300.143 Facilitation of enforcement.
300.144 Penalties and sanctions.
Subpart J--U.S. Nationals Fishing in Russian Fisheries
300.150 Purpose.
300.151 Definitions.
300.152 Procedures.
300.153 Permit issuance.
300.154 Recordkeeping and reporting.
300.155 Requirements.
300.156 Prohibited acts.
300.157 Penalties.
Subpart K--Transportation and Labeling of Fish or Wildlife
300.160 Requirement for marking of containers or packages.
300.161 Alternatives and exceptions.
Subpart A--General
Authority: 16 U.S.C. 773 et seq.; 16 U.S.C. 951-961 and 971 et
seq.; 16 U.S.C. 973-973r; 16 U.S.C. 2431 et seq.; 16 U.S.C. 3371-
3378; 16 U.S.C. 3636(b); 16 U.S.C. 5501 et seq.; and 16 U.S.C. 1801
et seq.
Sec. 300.1 Purpose and scope.
The purpose of this part is to implement the fishery conservation
and management measures provided for in the international treaties,
conventions, or agreements specified in each subpart, as well as
certain provisions of the Lacey Act Amendments of 1981. The regulations
in this part apply, except where otherwise specified in this part, to
all persons and all places subject to the jurisdiction of the United
States under the acts implemented under each subpart.
Sec. 300.2 Definitions.
In addition to the definitions in each act, agreement, convention,
or treaty specified in subparts B through K of this part, the terms
used in this part have the following meanings:
Assistant Administrator means the Assistant Administrator for
Fisheries, National Oceanic and Atmospheric Administration, Department
of Commerce, or a designee. Address: Room 14555, 1315 East-West
Highway, Silver Spring, MD 20910.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the U.S. Coast
Guard; or any U.S. Coast Guard personnel accompanying and acting under
the direction of a commissioned, warrant, or petty officer of the U.S.
Coast Guard;
(2) Any special agent or fisheries enforcement officer of NMFS; or
(3) Any person designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary of
Commerce or the Commandant of the U.S. Coast Guard to enforce the
provisions of any statute administered by the Secretary.
CCAMLR inspector means a person designated by a member of the
Commission for the Conservation of Antarctic Marine Living Resources as
an inspector under Article XXIV of the Convention on the Conservation
of Antarctic Marine Living Resources to verify compliance with measures
in effect under the Convention.
Director, Alaska Region, means Director, Alaska Region, NMFS, 709
West Ninth Street, Suite 401, P.O. Box 21668, Juneau, AK 99802, or a
designee.
Director, Northeast Region, means Director, Northeast Region, NMFS,
One Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
Director, Northwest Region, means Director, Northwest Region, NMFS,
7600 Sand Point Way, N.E., BIN C15700, Bldg. 1, Seattle, WA 98115, or a
designee.
Director, Southeast Fisheries Science Center, means Director,
Science and Research, Southeast Fisheries Science Center, NMFS, 75
Virginia Beach Drive, Miami, FL 33149, or a designee.
Director, Southeast Region, means Director, Southeast Region, NMFS,
9721 Executive Center Drive, N., St. Petersburg, FL 33702, or a
designee.
Director, Southwest Region, means Director, Southwest Region, NMFS,
501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802-4213, or a
designee.
Exclusive Economic Zone or EEZ means the zone established by
Presidential Proclamation 5030, dated March 10, 1983, as defined in 16
U.S.C. 1802(6).
Fishing or to fish means:
(1) The catching or taking of fish;
(2) The attempted catching or taking of fish;
(3) Any other activity that can reasonably be expected to result in
the catching or taking of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1) through (3) of this definition.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type normally used for
fishing.
IATTC means the Inter-American Tropical Tuna Commission,
established pursuant to the Convention for the Establishment of an
Inter-American Tropical Tuna Commission.
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into, any place
[[Page 35552]]
subject to the jurisdiction of the United States, whether or not such
landing, bringing, or introduction, constitutes an importation within
the meaning of the customs laws of the United States.
IRCS means International Radio Call Sign.
Magnuson Act means the Magnuson Fishery Conservation and Management
Act, 16 U.S.C. 1801 et seq.
National of the United States or U.S. national means any person
subject to the jurisdiction of the United States, including, but not
limited to, a citizen or resident of the United States, or a person
employed on a vessel of the United States. In the case of a
corporation, partnership or other non- natural person, this includes,
but is not limited to, any entity that is the owner of a vessel of the
United States.
NMFS means the National Marine Fisheries Service, NOAA, Department
of Commerce.
NMFS Headquarters means NMFS, 1315 East-West Highway, Silver
Spring, MD 20910. Attention: Office of Fisheries Conservation and
Management.
Official number means the documentation number issued by the USCG
or the certificate number issued by a state or the USCG for an
undocumented vessel, or any equivalent number if the vessel is
registered in a foreign nation.
Operator means, with respect to any vessel, the master or other
individual aboard and in charge of that vessel.
Owner means, with respect to any vessel:
(1) Any person who owns that vessel in whole or part (whether or
not the vessel is leased or chartered);
(2) Any charterer of the vessel, whether bareboat, time, or voyage;
(3) Any person who acts in the capacity of a charterer, including
but not limited to parties to a management agreement, operating
agreement, or any similar agreement that bestows control over the
destination, function, or operation of the vessel; or
(4) Any agent designated as such by a person described in this
definition.
Person means any individual (whether or not a citizen or national
of the United States), any corporation, partnership, association, or
other entity (whether or not organized, or existing under the laws of
any state), and any Federal, state, local, or foreign government or any
entity of any such government.
Secretary means the Secretary of Commerce or a designee.
USCG means the United States Coast Guard.
Yellowfin tuna means any fish of the species Thunnus albacares
(synonomy: Neothunnus macropterus).
Sec. 300.3 Relation to other laws.
Other laws that may apply to fishing activities addressed herein
are set forth in Sec. 600.705 of chapter VI of this title.
Sec. 300.4 General prohibitions.
It is unlawful for any person subject to the jurisdiction of the
United States to:
(a) Violate the conditions or restrictions of a permit issued under
this part.
(b) Fail to submit information, fail to submit information in a
timely manner, or submit false or inaccurate information, with respect
to any information required to be submitted, reported, communicated, or
recorded pursuant to this part.
(c) Make any false statement, oral or written, to an authorized
officer concerning the catching, taking, harvesting, possession,
landing, purchase, sale, or transfer of fish, or concerning any other
matter subject to investigation by that officer under this part.
(d) Conceal any material fact (including by omission), concerning
any matter subject to investigation by an authorized officer under this
part.
(e) Refuse to allow an authorized officer to inspect any report or
record required to be made or kept under this part.
(f) Falsify, cover, or otherwise obscure, the name, home port,
official number (if any), or any other similar marking or
identification of any fishing vessel subject to this part such that the
vessel cannot be readily identified from an enforcement vessel or
aircraft.
(g) Fail to comply immediately with any of the enforcement and
boarding procedures specified in this part.
(h) Refuse to allow an authorized officer to board a fishing
vessel, or enter any other area of custody (i.e., any vessel, building,
vehicle, live car, pound, pier, or dock facility where fish might be
found) subject to such person's control, for the purpose of conducting
any inspection, search, seizure, investigation, or arrest in connection
with the enforcement of this part or any other applicable law.
(i) Destroy, stave, or dispose of in any manner, any fish, gear,
cargo, or other matter, upon any communication or signal from an
authorized officer of the United States, or upon the approach of such
an officer, enforcement vessel, or aircraft, before the officer has had
the opportunity to inspect same, or in contravention of directions from
such an officer.
(j) Intentionally destroy evidence that could be used to determine
if a violation of this part has occurred.
(k) Assault, resist, oppose, impede, intimidate, threaten,
obstruct, delay, prevent, or interfere, in any manner, with an
authorized officer in the conduct of any boarding, inspection, search,
seizure, investigation, or arrest in connection with enforcement of
this part.
(l) Resist a lawful arrest or detention for any act prohibited by
this part.
(m) Interfere with, delay, or prevent, by any means, the
apprehension, arrest, or detection of another person, knowing that such
person has committed any act prohibited by this part.
(n) Interfere with, obstruct, delay, or prevent, by any means, an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of this part.
(o) Ship, transport, offer for sale, sell, purchase, import,
export, or have custody, control, or possession of, any living marine
resource taken or retained in violation of this part.
(p) Violate any provision of any statute implemented by this part.
(q) Attempt to do any of the foregoing.
Sec. 300.5 Facilitation of enforcement.
(a) Compliance. The operator of, or any other person aboard, any
fishing vessel subject to this part must immediately comply with
instructions and signals issued by an authorized officer or CCAMLR
inspector to stop the vessel, and with instructions to facilitate safe
boarding and inspection of the vessel, its gear, equipment, fishing
record (where applicable), and catch for purposes of enforcing this
part.
(b) Communications. (1) Upon being approached by a USCG vessel or
aircraft, or other vessel or aircraft with an authorized officer or
CCAMLR inspector aboard, the operator of a fishing vessel must be alert
for communications conveying enforcement instructions.
(2) VHF-FM radiotelephone is the preferred method of communicating
between vessels. If the size of the vessel and the wind, sea, and
visibility conditions allow, a loudhailer may be used instead of the
radio. Hand signals, placards, high frequency radiotelephone, voice,
flags, whistle or horn may be employed by an authorized officer or
CCAMLR inspector, and message blocks may be dropped from an aircraft.
(3) If other communications are not practicable, visual signals may
be transmitted by flashing light directed at the vessel signaled. USCG
units will normally use the flashing light signal ``L'' which, in the
International Code of Signals, means ``you should stop your vessel
instantly.''
[[Page 35553]]
(4) Failure of a vessel's operator promptly to stop the vessel when
directed to do so by an authorized officer or CCAMLR inspector, or by
an enforcement vessel or aircraft, using loudhailer, radiotelephone,
flashing light, flags, whistle, horn or other means constitutes prima
facie evidence of the offense of refusal to allow an authorized officer
or CCAMLR inspector to board.
(5) A person aboard a vessel who does not understand a signal from
an enforcement unit and who is unable to obtain clarification by
loudhailer or radiotelephone must consider the signal to be a command
to stop the vessel immediately.
(c) Boarding. The operator of a vessel directed to stop must:
(1) Monitor Channel 16, VHF-FM, if so equipped.
(2) Stop immediately and lay to or, if appropriate and/or directed
to do so by the authorized officer or CCAMLR inspector, maneuver in
such a way as to allow the safe boarding of the vessel by the
authorized officer or CCAMLR inspector and the boarding party.
(3) Except for those vessels with a freeboard of 4 ft (1.25 m) or
less, provide a safe ladder, if needed, for the authorized officer or
CCAMLR inspector and boarding party to come aboard.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or CCAMLR inspector, provide a manrope or safety
line, and illumination for the ladder.
(5) Take such other actions as necessary to facilitate boarding and
to ensure the safety of the authorized officer or CCAMLR inspector and
the boarding party.
(d) Signals. The following signals, extracted from the
International Code of Signals, may be sent by flashing light by an
enforcement unit when conditions do not allow communications by
loudhailer or radiotelephone. Knowledge of these signals by vessel
operators is not required. However, knowledge of these signals and
appropriate action by a vessel operator may preclude the necessity of
sending the signal ``L'' and the necessity for the vessel to stop
instantly.
(1) ``AA'' repeated (.- .-) is the call to an unknown station. The
operator of the signaled vessel should respond by identifying the
vessel by radiotelephone or by illuminating the vessel's
identification.
(2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at
slow speed, a boat is coming to you.'' This signal is normally employed
when conditions allow an enforcement boarding without the necessity of
the vessel being boarded coming to a complete stop, or, in some cases,
without retrieval of fishing gear that may be in the water.
(3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I
am going to board you.''
Subpart B--High Seas Fisheries
Authority: 16 U.S.C. 5501 et seq.
Sec. 300.10 Purpose.
This subpart implements the High Seas Fishing Compliance Act of
1995 (Act), which requires the Secretary to license U.S. vessels
fishing on the high seas.
Sec. 300.11 Definitions.
In addition to the terms defined in section 300.2 and those in the
Act and the Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High
Seas, adopted by the Conference of the Food and Agriculture
Organization of the United Nations on November 24, 1993 (Agreement),
the terms used in this subpart have the following meanings. If a term
is defined differently in Sec. 300.2, the Act, or the Agreement, the
definition in this section shall apply.
High seas means the waters beyond the territorial sea or exclusive
economic zone (or the equivalent) of any Nation, to the extent that
such territorial sea or exclusive economic zone (or the equivalent) is
recognized by the United States.
High seas fishing vessel means any vessel of the United States used
or intended for use on the high seas for the purpose of the commercial
exploitation of living marine resources as a harvesting vessel,
mothership, or any other support vessel directly engaged in a fishing
operation.
International conservation and management measures means measures
to conserve or manage one or more species of living marine resources
that are adopted and applied in accordance with the relevant rules of
international law, as reflected in the 1982 United Nations Convention
on the Law of the Sea, and that are recognized by the United States.
Regional Director means any one of the Directors of the five NMFS
regional offices, defined under Sec. 300.2, serving as the issuing
office.
Sec. 300.12 Issuing offices.
Any Regional Director may issue permits required under this
subpart. While applicants for permits may submit an application to any
Regional Director, applicants are encouraged to submit their
applications (with envelopes marked ``Attn: HSFCA Permits'') to the
Regional Director with whom they normally interact on fisheries
matters.
Sec. 300.13 Vessel permits.
(a) Eligibility. (1) Except for vessels having unpaid or overdue
civil penalties, criminal fines, or other liabilities incurred in a
judicial proceeding under any statute administered by NOAA, any high
seas fishing vessel of the United States is eligible to receive a
permit under this subpart, unless the vessel was previously authorized
to be used for fishing on the high seas by a foreign nation, and--
(i) The foreign nation suspended such authorization, because the
vessel undermined the effectiveness of international conservation and
management measures, and the suspension has not expired; or
(ii) The foreign nation, within the 3 years preceding application
for a permit under this section, withdrew such authorization, because
the vessel undermined the effectiveness of international conservation
and management measures.
(2) The restrictions in paragraphs (a)(1) (i) and (ii) of this
section do not apply if ownership of the vessel has changed since the
vessel undermined the effectiveness of international conservation and
management measures, and the new owner has provided sufficient evidence
to the Regional Director demonstrating that the owner and operator at
the time the vessel undermined the effectiveness of such measures has
no further legal, beneficial, or financial interest in, or control of,
the vessel.
(3) The restrictions in paragraphs (a)(1) (i) and (ii) of this
section do not apply if it is determined by the Regional Director that
issuing a permit would not subvert the purposes of the Agreement.
(b) Application forms. The owner or operator of a high seas fishing
vessel may apply for a permit under this subpart by completing an
application form. Applicants may obtain an application form from a
Regional Director.
(c) Application information. An applicant must submit a complete
and accurate permit application, signed by the owner or operator, to
the appropriate Regional Director.
(d) Fees. NMFS will charge a fee to recover the administrative
expenses of permit issuance. The amount of the fee will be determined
in accordance with the procedures of the NOAA Finance Handbook,
available from a Regional Director, for determining administrative
costs of each special product or service.
[[Page 35554]]
The fee is specified with the application form. The appropriate fee
must accompany each application. Failure to pay the fee will preclude
issuance of the permit. Payment by a commercial instrument later
determined to be insufficiently funded will invalidate any permit.
(e) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the Regional Director will issue a permit, which will include
appropriate conditions or restrictions, within 30 days of receipt of a
completed application and payment of the appropriate fee.
(2) The Regional Director will notify the applicant of any
deficiency in the application.
(f) Validity. Permits issued under this subpart are valid for 5
years from the date of issuance. Renewal of a permit prior to its
expiration is the responsibility of the permit holder. For a permit to
remain valid to its expiration date, the vessel's USCG documentation or
state registration must be kept current. A permit issued under this
subpart is void when the name of the owner or vessel changes, or in the
event the vessel is no longer eligible for U.S. documentation, such
documentation is revoked or denied, or the vessel is removed from such
documentation.
(g) Change in application information. Any changes in vessel
documentation status or other permit application information must be
reported to the Regional Director in writing within 15 days of such
changes.
(h) Transfer. A permit issued under this subpart is not
transferable or assignable to another vessel or owner; it is valid only
for the vessel and owner to which it is issued.
(i) Display. A valid permit, or a copy thereof, issued under this
subpart must be on board the vessel while operating on the high seas
and available for inspection by an authorized officer. Faxed copies of
permits are acceptable.
Sec. 300.14 Vessel and gear identification. [Reserved]
Sec. 300.15 Prohibitions.
In addition to the prohibitions in section 300.4, it is unlawful
for any person to:
(a) Use a high seas fishing vessel on the high seas in
contravention of international conservation and management measures.
(b) Use a high seas fishing vessel on the high seas, unless the
vessel has on board a valid permit issued under section 300.13.
Sec. 300.16 Penalties.
Any person or high seas fishing vessel found to be in violation of
the Act, this subpart, or any permit issued under this subpart will be
subject to the civil and criminal penalty provisions, permit sanctions,
and forfeiture provisions prescribed in the Act, 15 CFR part 904 (Civil
Procedures), and other applicable laws.
Sec. 300.17 Reporting and recordkeeping. [Reserved]
Subpart C--Pacific Tuna Fisheries
Authority: 16 U.S.C. 951-961 and 971 et seq.
Sec. 300.20 Purpose and scope.
The regulations in this subpart implement the Tuna Conventions Act
of 1950 (Act), the Atlantic Tunas Convention Act of 1975, and the IATTC
recommendations for the conservation of yellowfin tuna and the
recommendations of the International Commission for the Conservation of
Atlantic Tunas for the conservation of bluefin tuna, so far as they
affect vessels and persons subject to the jurisdiction of the United
States.
Sec. 300.21 Definitions.
In addition to the terms defined in Sec. 300.2, in the Act, the
Convention for the Establishment of an Inter-American Tropical Tuna
Commission, and the International Convention for the Conservation of
Atlantic Tunas, the terms used in this subpart have the following
meanings. If a term is defined differently in Sec. 300.2, the Act, or
the Conventions, the definition in this section shall apply.
Bluefin tuna means the fish species Thunnus thynnus that is found
in any ocean area.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type that is normally used
for fishing or for assisting or supporting a vessel engaged in fishing,
except purse seine skiffs.
Pacific bluefin tuna means the subspecies of bluefin tuna Thunnus
thynnus orientalis that is found in the Pacific Ocean.
Regional Director means the Director, Southwest Region.
Tag means the flexible, self-locking ribbon issued by the NMFS for
the identification of bluefin tuna under Sec. 300.26 or 285.30 of
chapter II of this title.
Sec. 300.22 Yellowfin tuna--Recordkeeping and written reports.
The master or other person in charge of a fishing vessel, or a
person authorized in writing to serve as the agent for either person,
must keep an accurate log of all operations conducted from the fishing
vessel, entering for each day the date, noon position (stated in
latitude and longitude or in relation to known physical features), and
the tonnage of fish on board, by species. The record and bridge log
maintained at the request of the IATTC shall be sufficient to comply
with this paragraph, provided the items of information specified are
accurately entered in the log.
Sec. 300.23 Yellowfin tuna--Persons and vessels exempted.
This subpart does not apply to:
(a) Any person or vessel authorized by the IATTC, the Assistant
Administrator, or any state of the United States to engage in fishing
for research purposes.
(b) Any person or vessel engaged in sport fishing for personal use.
Sec. 300.24 Pacific bluefin tuna--Dealer permits.
(a) General. A dealer importing Pacific bluefin tuna, or purchasing
or receiving for export Pacific bluefin tuna first landed in the United
States, must have a valid permit issued under this section.
(b) Application. A dealer must apply for a permit in writing on an
appropriate form obtained from the Regional Director. The application
must be signed by the dealer and be submitted to the Regional Director
at least 30 days before the date upon which the dealer desires to have
the permit made effective. The application must contain the following
information: Company name, principal place of business, owner's or
owners' names, applicant's name (if different from owner or owners) and
mailing address and telephone number, and any other information
required by the Regional Director.
(c) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the Regional Director will issue a permit within 30 days of
receipt of a completed application.
(2) The Regional Director will notify the applicant of any
deficiency in the application. If the applicant fails to correct the
deficiency within 15 days following the date of notification, the
application will be considered abandoned.
(d) Duration. Any permit issued under this section is valid until
December 31 of the year for which it is issued, unless suspended or
revoked.
(e) Alteration. Any permit that is substantially altered, erased,
or mutilated is invalid.
[[Page 35555]]
(f) Replacement. The Regional Director may issue replacement
permits. An application for a replacement permit is not considered a
new application.
(g) Transfer. A permit issued under this section is not
transferable or assignable; it is valid only for the dealer to whom it
is issued.
(h) Inspection. The dealer must keep the permit issued under this
section at his/her principal place of business. The permit must be
displayed for inspection upon request of any authorized officer, or any
employee of NMFS designated by the Regional Director for such purpose.
(i) Sanctions. The Assistant Administrator may suspend, revoke,
modify, or deny a permit issued or sought under this section.
Procedures governing permit sanctions and denials are found at subpart
D of 15 CFR part 904.
(j) Fees. The Regional Director may charge a fee to recover the
administrative expenses of permit issuance. The amount of the fee is
calculated, at least annually, in accordance with the procedures of the
NOAA Finance Handbook, available from the Regional Director, for
determining administrative costs of each special product or service.
The fee may not exceed such costs and is specified on each application
form. The appropriate fee must accompany each application. Failure to
pay the fee will preclude issuance of the permit. Payment by a
commercial instrument later determined to be insufficiently funded
shall invalidate any permit.
(k) Change in application information. Within 15 days after any
change in the information contained in an application submitted under
this section, the dealer issued a permit must report the change to the
Regional Director in writing. The permit is void if any change in
information is not reported within 15 days.
Sec. 300.25 Pacific bluefin tuna--Dealer recordkeeping and reporting.
Any person issued a dealer permit under Sec. 300.24:
(a) Must submit to the Regional Director a biweekly report on
bluefin imports and exports on forms supplied by NMFS.
(1) The report required by this paragraph (a) must be postmarked
and mailed at the dealer's expense within 10 days after the end of each
2-week reporting period in which Pacific bluefin tuna were exported.
The biweekly reporting periods are defined as the first day to the 14th
day of each month and the 15th day to the last day of the month.
(2) Each report must specify accurately and completely for each
tuna or each shipment of bulk-frozen tuna exported: Date of landing or
import; any tag number (if so tagged); weight in kilograms (specify if
round or dressed); and any other information required by the Regional
Director. At the top of each form, the company's name, license number,
and the name of the person filling out the report must be specified. In
addition, the beginning and ending dates of the 2-week reporting period
must be specified by the dealer and noted at the top of the form.
(b) Must allow an authorized officer, or any employee of NMFS
designated by the Regional Director for this purpose, to inspect and
copy any records of transfers, purchases, or receipts of Pacific
bluefin tuna.
(c) Must retain at his/her principal place of business a copy of
each biweekly report for a period of 2 years from the date on which it
was submitted to the Regional Director.
Sec. 300.26 Pacific bluefin tuna--Tags.
(a) Issuance. The Regional Director will issue numbered tags to
each person receiving a dealer's permit under Sec. 300.24.
(b) Transfer. Tail tags issued under this section are not
transferable and are usable only by the permitted dealer to whom they
are issued.
(c) Affixing tags. At the discretion of dealers permitted under
Sec. 300.24, a tag issued under paragraph (a) of this section may be
affixed to each Pacific bluefin tuna purchased or received by the
dealer. If so tagged, the tag must be affixed to the tuna between the
fifth dorsal finlet and the keel and tag numbers must be recorded on
NMFS reports required by Sec. 300.25(a) and any documents accompanying
the shipment of Pacific bluefin tuna for domestic commercial use or
export.
(d) Removal. A NMFS-issued tag affixed to any Pacific bluefin tuna
at the option of any permitted dealer under paragraph (c) of this
section or any tag affixed to any Pacific bluefin tuna to meet the
requirements of Sec. 285.202(a)(6)(v) of this chapter must remain on
the tuna until the tuna is cut into portions. If the tuna or tuna parts
subsequently are packaged for transport for domestic commercial use or
for export, the tag number must be written legibly and indelibly on the
outside of any package or container.
(e) Reuse. Tags issued under this section are separately numbered
and may be used only once, one tail tag per fish, to distinguish the
purchase of one Pacific bluefin tuna. Once affixed to a tuna or
recorded on any package, container or report, a tail tag and associated
number may not be reused.
Sec. 300.27 Pacific bluefin tuna--Documentation requirements.
Bluefin tuna imported into, or exported or re-exported from the
customs territory of the United States is subject to the documentation
requirements specified in part 285 of this chapter (Secs. 285.200-
285.203).
Sec. 300.28 Pacific bluefin tuna--Prohibitions.
In addition to the prohibitions in Sec. 300.4, it is unlawful for
any person or vessel subject to the jurisdiction of the United States
to:
(a) Import Pacific bluefin tuna or purchase or receive for export
Pacific bluefin tuna first landed in the United States without a valid
dealer permit issued under Sec. 300.24.
(b) Remove any NMFS-issued tag affixed to any Pacific bluefin tuna
at the option of any permitted dealer or any tag affixed to a Pacific
bluefin tuna to meet the requirements of Sec. 285.202(a)(6)(v) of this
chapter, before removal is allowed under Sec. 300.26, or fail to write
the tag number on the shipping package or container as specified in
Sec. 300.26.
(c) Reuse any NMFS-issued tag affixed to a Pacific bluefin tuna at
the option of a permitted dealer or any tag affixed to a Pacific
bluefin tuna to meet the requirements of Sec. 285.202(a)(6)(v) of this
chapter or reuse any tag number previously written on a shipping
package or container as prescribed by Sec. 300.26.
Subpart D--South Pacific Tuna Fisheries
Authority: 16 U.S.C. 973-973r.
Sec. 300.30 Purpose and scope.
This subpart implements the South Pacific Tuna Act of 1988 (Act)
and the Treaty on Fisheries Between the Governments of Certain Pacific
Island States and the Government of the United States of America
(Treaty) and applies to persons and vessels subject to the jurisdiction
of the United States.
Sec. 300.31 Definitions.
In addition to the terms defined in Sec. 300.2, in the Act, and in
the Treaty, and unless the context requires otherwise, the terms used
in this subpart have the following meanings. If a term is defined
differently in Sec. 300.2, the Act, or the Treaty, the definition in
this section shall apply.
Administrator means the individual or organization designated by
the Pacific Island Parties to act on their behalf
[[Page 35556]]
under the Treaty and notified to the United States.
Applicable national law means any provision of law of a Pacific
Island Party that is described in paragraph 1(a) of Annex I of the
Treaty.
Authorized inspector means any individual authorized by a Pacific
Island Party or the Secretary to conduct inspections, to remove samples
of fish, and to gather any other information relating to fisheries in
the Licensing Area.
Authorized officer means any officer who is authorized by the
Secretary, or the Secretary of Transportation, or the head of any
Federal or state agency that has entered into an enforcement agreement
with the Secretary under section 10(a) of the Act.
Authorized party officer means any officer authorized by a Pacific
Island Party to enforce the provisions of the Treaty.
Closed area means any of the closed areas identified in Schedule 2
of Annex I of the Treaty.
Fishing means searching for, catching, taking, or harvesting fish;
attempting to search for, catch, take, or harvest fish; engaging in any
other activity that can reasonably be expected to result in the
locating, catching, taking, or harvesting of fish; placing, searching
for, or recovering fish aggregating devices or associated electronic
equipment such as radio beacons; any operations at sea directly in
support of, or in preparation for, any activity described in this
paragraph; or aircraft use, relating to the activities described in
this definition, except for flights in emergencies involving the health
or safety of crew members or the safety of a vessel.
Fishing arrangement means an arrangement between a Pacific Island
Party and the owner of a U.S. fishing vessel that complies with section
6(b) of the Act.
Fishing vessel or vessel means any boat, ship, or other craft that
is used for, equipped to be used for, or of a type normally used for
commercial fishing, and that is documented under the laws of the United
States.
Licensing Area means all waters in the Treaty Area except for:
(1) Those waters subject to the jurisdiction of the United States
in accordance with international law.
(2) Those waters within closed areas.
(3) Those waters within limited areas closed to fishing.
Licensing period means the period of validity of licenses issued in
accordance with the Treaty.
Limited area(s) means those areas so identified in Schedule 3 of
Annex I of the Treaty.
Operator means any person who is in charge of, directs or controls
a vessel, including the owner, charterer and master.
Pacific Island Party means a Pacific island nation that is a party
to the Treaty.
Regional Director means the Director, Southwest Region, or a
designee.
Transship means to unload any or all of the fish on board a
licensed vessel either ashore or onto another vessel.
Treaty Area means the area described in paragraph 1(k) of Article I
of the Treaty.
Sec. 300.32 Vessel licenses.
(a) Each vessel fishing in the Licensing Area must have a license
issued by the Administrator for the licensing period being fished,
unless excepted by Sec. 300.39. Each licensing period begins on June 15
and ends on June 14 of the following year.
(b) Upon receipt, the license or a duly certified copy, facsimile
or telex confirmation must be carried on board the vessel when in the
Licensing Area or Closed Areas and must be produced at the request of
authorized officers, authorized party officers, or authorized
inspectors. Prior to receipt of the license, but after issuance, a
vessel may be used to fish, provided the number of the issued license
is available on board.
(c) Application forms for licenses to use a vessel to fish in the
Licensing Area may be requested from, and upon completion, must be
returned to, the Regional Director. All of the information requested on
the form and the following must be supplied before the application will
be considered complete:
(1) The licensing period for which the license is requested.
(2) The name of an agent, located in Port Moresby, Papua New
Guinea, who, on behalf of the license holder, will receive and respond
to any legal process issued in accordance with the Treaty.
(3) Documentation from an insurance company showing that the vessel
will be fully insured for the licensing period against all risks and
liabilities normally covered by maritime liability insurance.
(4) If the owner or charterer is the subject of proceedings under
the bankruptcy laws of the United States, reasonable assurances that
the owner of charterer will be financially able to fulfill any and all
responsibilities under the Treaty, Act, and regulations, including the
payment of any penalties or fines.
(5) A copy of the vessel's USCG Certificate of Documentation.
(d) The number of available licenses are set forth in Schedule 2 of
Annex II of the Treaty.
(e) Applications for vessels may be submitted at any time; complete
applications will be forwarded to the Secretary of State for
transmittal to the Administrator.
(f) The Secretary, in consultation with the Secretary of State, may
determine that a license application for a vessel should not be
forwarded to the Administrator if:
(1) The application is not in accord with the Treaty, Act, or
regulations;
(2) The owner or charterer is the subject of proceedings under the
bankruptcy laws of the United States, and reasonable financial
assurances have not been provided to the Secretary that the owner or
charterer will be financially able to fulfill any and all
responsibilities under the Treaty, Act, and regulations, including the
payment of any penalties or fines;
(3) The owner or charterer has not established to the satisfaction
of the Secretary that the vessel will be fully insured for the
licensing period against all risks and liabilities normally covered by
maritime liability insurance; or
(4) The owner or charterer has not paid any final penalty assessed
by the Secretary in accordance with the Act.
(g) An applicant will be promptly notified if that applicant's
license application will not be forwarded to the Administrator, and of
the reasons therefor. Within 15 days of notification by the Regional
Director that the application will not be forwarded, an applicant may
request reconsideration by providing a petition for reconsideration
accompanied by new or additional information.
Sec. 300.33 Compliance with applicable national laws.
The operator of the vessel shall comply with each of the applicable
national laws, and the operator of the vessel shall be responsible for
the compliance by the vessel and its crew with each of the applicable
national laws, and the vessel shall be operated in accordance with
those laws.
Sec. 300.34 Reporting requirements.
(a) License holders shall comply with the reporting requirements of
parts 4 and 5 of Annex I to the Treaty.
(b) Information provided by license holders under Schedule 5 of
Annex I of the Treaty shall be provided on the designated Forum
Fisheries Agency form(s) to the Regional Director within 2 days of
reaching port.
(c) Information provided by license holders under Schedule 6 of
Annex I of the Treaty shall be provided on the designated Forum
Fisheries Agency form(s) to the Regional Director within 2 days of
completing unloading.
[[Page 35557]]
(d) Any information required to be recorded, or to be notified,
communicated or reported pursuant to a requirement of these
regulations, the Act, or the Treaty shall be true, complete and
correct. Any change in circumstances that has the effect of rendering
any of the information provided false, incomplete or misleading shall
be communicated immediately to the Regional Director.
Sec. 300.35 Vessel and gear identification.
While a vessel is in the Licensing Area, a Limited Area closed to
fishing, or a Closed Area, a recent and up-to-date copy of the
International Code of Signals (INTERCO) shall be on board and
accessible at all times. The operator shall comply with the 1989 Food
and Agricultural Organization standard specifications for the marking
and identification of fishing vessels. The international radio call
sign of the vessel shall be painted in white on a black background, or
in black on a white background, and be clear, distinct, and uncovered,
in the following manner:
(a) On both sides of the vessel's hull or superstructure, with each
letter and number being at least 1 m high and having a stroke width of
16.7 cm, with the background extending to provide a border around the
mark of not less than 16.7 cm.
(b) On the vessel's deck, on the body of any helicopter and on the
hull of any skiff, with each letter and number being at least 30 cm
high, and having a stroke width of 5 cm with the background extending
to provide a border around the mark of not less than 5 cm.
(c) On any other equipment being carried by and intended to be
separated from the vessel during normal fishing operations, with each
letter and number being at least 10 cm high and having a stroke width
of 1.7 cm, with the background extending to provide a border around the
mark of not less than 1.7 cm.
Sec. 300.36 Closed area stowage requirements.
At all times while a vessel is in a Closed Area, the fishing gear
of the vessel shall be stowed in a manner as not to be readily
available for fishing. In particular, the boom shall be lowered as far
as possible so that the vessel cannot be used for fishing, but so that
the skiff is accessible for use in emergency situations; the
helicopter, if any shall be tied down; and launches shall be secured.
Sec. 300.37 Radio monitoring.
The international distress frequency, 2.182 mHz, and 156.8 mHz
(Channel 16, VHF) shall be monitored continuously from the vessel for
the purpose of facilitating communication with the fisheries
management, surveillance and enforcement authorities of the Parties.
Sec. 300.38 Prohibitions.
(a) Except as provided for in Sec. 300.39, in addition to the
prohibitions in Sec. 300.4, it is unlawful for any person subject to
the jurisdiction of the United States to do any of the following:
(1) To violate the Act or any provision of any regulation or order
issued pursuant to Act.
(2) To use a vessel for fishing in violation of an applicable
national law.
(3) To violate the terms and conditions of any fishing arrangement
to which that person is a party.
(4) To use a vessel for fishing in a Limited Area in violation of
the requirements set forth in Schedule 3 of Annex I of the Treaty on
``Limited Areas''.
(5) To use a vessel for fishing in any Closed Area.
(6) To refuse to permit any authorized officer or authorized party
officer to board a fishing vessel for purpose of conducting a search or
inspection in connection with the enforcement of the Act or the Treaty.
(7) To refuse to comply with the instructions of an authorized
officer or authorized party officer relating to fishing activities
under the Treaty.
(8) To refuse to permit an authorized inspector full access to any
place where fish taken in the Licensing Area is unloaded.
(9) To refuse to allow an authorized inspector to remove samples of
fish from a vessel that fished in the Licensing Area.
(10) To forcibly assault, resist, oppose, impede, intimidate, or
interfere with:
(i) Any authorized officer, authorized party officer or authorized
inspector in the conduct of a search or inspection in connection with
the enforcement of these regulations, the Act or the Treaty; or
(ii) An observer in the conduct of observer duties under the
Treaty.
(11) To transship fish on board a vessel that fished in the
Licensing Area, except in accordance with the conditions set out in
parts 3 and 4 of Annex I to the Treaty.
(b) Except as provided for in Sec. 300.39, it is unlawful for any
person subject to the jurisdiction of the United States when in the
Licensing Area:
(1) To use a vessel to fish unless validly licensed as required by
the Administrator.
(2) To use a vessel for directed fishing for southern bluefin tuna
or for fishing for any kinds of fish other than tunas, except that fish
may be caught as a incidental bycatch.
(3) To use a vessel for fishing by any method, except the purse-
seine method.
(4) To use any vessel to engage in fishing after the revocation of
its license, or during the period of suspension of an applicable
license.
(5) To operate a vessel in such a way as to disrupt or in any other
way adversely affect the activities of traditional and locally based
fishermen and fishing vessels.
(6) To use a vessel to fish in a manner inconsistent with an order
issued by the Secretary under Sec. 300.42 (section 11 of the Act).
(7) Except for circumstances involving force majeure and other
emergencies involving the health or safety of crew members or the
safety of the vessel, to use aircraft in association with fishing
activities of a vessel, unless it is identified on the license
application for the vessel, or any amendment thereto.
Sec. 300.39 Exceptions.
(a) The prohibitions of Sec. 300.38 and the licensing requirements
of Sec. 300.32 do not apply to fishing for albacore tuna by vessels
using the trolling method outside of the 200 nautical mile fisheries
zones of the Pacific Island Parties.
(b) The prohibitions of Sec. 300.38(a)(4), (a)(5), and (b)(3) do
not apply to fishing under the terms and conditions of a fishing
arrangement.
Sec. 300.40 Civil penalties.
The procedures of 15 CFR part 904 apply to the assessment of civil
penalties, except as modified by the requirements of section 8 of the
Act.
Sec. 300.41 Investigation notification.
Upon commencement of an investigation under section 10(b)(1) of the
Act, the operator of any vessel concerned shall have 30 days after
receipt of notification of the investigation and the operator's rights
under section 10(b)(1) to submit comments, information, or evidence
bearing on the investigation, and to request in writing that the
Secretary provide the operator an opportunity to present the comments,
information, or evidence orally to the Secretary or the Secretary's
representative.
Sec. 300.42 Findings leading to removal from fishing area.
(a) Following an investigation conducted under section 10(b) of the
Act, the Secretary, with the concurrence of the Secretary of State, and
upon the request of the Pacific Island Party concerned, may order a
fishing vessel
[[Page 35558]]
that has not submitted to the jurisdiction of that Pacific Island Party
to leave immediately the Licensing Area, all Limited Areas, and all
Closed Areas upon making a finding that:
(1) The fishing vessel--
(i) While fishing in the Licensing Area did not have a license
under the Treaty to fish in the Licensing Area, and that under
paragraph 2 of Article 3 of the Treaty, the fishing is not authorized
to be conducted in the Licensing Area without a license;
(ii) Was involved in any incident in which an authorized officer,
authorized party officer, or observer was allegedly assaulted with
resultant bodily harm, physically threatened, forcibly resisted,
refused boarding or subjected to physical intimidation or physical
interference in the performance of duties as authorized by the Act or
the Treaty;
(iii) Has not made full payment within 60 days of any amount due as
a result of a final judgement or other final determination deriving
from a violation in waters within the Treaty Area of a Pacific Island
Party; or
(iv) Was not represented by an agent for service of process in
accordance with the Treaty; or
(2) There is probable cause to believe that the fishing vessel--
(i) Was used in violation of section 5(a)(4), (a)(5), (b)(2), or
(b)(3) of the Act;
(ii) Used an aircraft in violation of section 5(b)(7) of the Act;
or
(iii) Was involved in an incident in which section 5(a)(7) of the
Act was violated.
(b) Upon being advised by the Secretary of State that proper
notification to Parties has been made under paragraph 7 of Article 5 of
the Treaty that a Pacific Island Party is investigating an alleged
infringement of the Treaty by a vessel in waters under the jurisdiction
of that Pacific Island Party, the Secretary shall order the vessel to
leave those waters until the Secretary of State notifies the Secretary
that the order is no longer necessary.
(c) The Secretary shall rescind any order issued on the basis of a
finding under paragraphs (a)(1) (iii) or (iv) of this section
(subsections 11(a)(1) (C) or (D) of the Act) as soon as the Secretary
determines that the facts underlying the finding do not apply.
(d) An order issued in accordance with this section is not subject
to judicial review.
Sec. 300.43 Observers.
(a) The operator and each member of the
FR Doc. 96-16723 International Fisheries; Consolidation of Regulations; Technical Amendment; OMB Control Numbers
crew of a vessel shall
allow and assist any person identified as an observer under the Treaty
by the Pacific Island Parties:
(1) To board the vessel for scientific, compliance, monitoring and
other functions at the point and time notified by the Pacific Island
Parties to the Secretary.
(2) Without interfering unduly with the lawful operation of the
vessel, to have full access to and use of facilities and equipment on
board the vessel that the observer may determine are necessary to carry
out observer duties; have full access to the bridge, fish on board, and
areas that may be used to hold, process, weigh and store fish; remove
samples; have full access to vessel's records, including its log and
documentation for the purpose of inspection and copying; have
reasonable access to navigation equipment, charts, and radios, and
gather any other information relating to fisheries in the Licensing
Area.
(3) To disembark at the point and time notified by the Pacific
Island Parties to the Secretary.
(4) To carry out observer duties safely.
(b) The operator shall provide the observer, while on board the
vessel, at no expense to the Pacific Island Parties, with food,
accommodation and medical facilities of reasonable standard as may be
acceptable to the Pacific Island Party whose representative is serving
as the observer.
Sec. 300.44 Other inspections.
The operator and each member of the crew of any vessel from which
any fish taken in the Licensing Area is unloaded or transshipped shall
allow, or arrange for, and assist any authorized inspector, authorized
party officer, or authorized officer to have full access to any place
where the fish is unloaded or transshipped, to remove samples, to have
full access to the vessel's records, including its log and
documentation for the purpose of inspection and photocopying, and to
gather any other information relating to fisheries in the Licensing
Area without interfering unduly with the lawful operation of the
vessel.
Subpart E--Pacific Halibut Fisheries
Authority: 16 U.S.C. 773-773k.
Sec. 300.60 Purpose and scope.
This subpart implements the North Pacific Halibut Act of 1982 (Act)
and is intended to supplement, not conflict with, the annual fishery
management measures adopted by the International Pacific Halibut
Commission (Commission) under the Convention between the United States
and Canada for the Preservation of the Halibut Fishery of the Northern
Pacific Ocean and Bering Sea (Convention).
Sec. 300.61 Definitions.
In addition to the terms defined in Sec. 300.2 and those in the Act
and the Convention, the terms used in this subpart have the following
meanings. If a term is defined differently in Sec. 300.2, the Act, or
the Convention, the definition in this section shall apply.
Area 2A includes all waters off the States of California, Oregon,
and Washington.
Commercial fishing means fishing, the resulting catch of which
either is, or is intended to be, sold or bartered.
Person includes an individual, corporation, firm, or association.
Subarea 2A-1 includes all U.S. waters off the coast of Washington
that are north of 46 deg.53'18'' N. lat. and east of 125 deg.44'00'' W.
long., and all inland marine waters of Washington.
Treaty Indian tribes means the Hoh, Jamestown S'Klallam, Lower
Elwha S'Klallam, Lummi, Makah, Port Gamble S'Klallam, Quileute,
Quinault, Skokomish, Suquamish, Swinomish, and Tulalip tribes.
Sec. 300.62 Annual management measures.
Annual management measures may be added and modified through
adoption by the Commission and publication in the Federal Register by
the Assistant Administrator, with immediate regulatory effect. Such
measures may include, inter alia, provisions governing: Licensing of
vessels, inseason actions, regulatory areas, fishing periods, closed
periods, closed areas, catch limits (quotas), fishing period limits,
size limits, careful release of halibut, vessel clearances, logs,
receipt and possession of halibut, fishing gear, retention of tagged
halibut, supervision of unloading and weighing, and sport fishing for
halibut. The Assistant Administrator will publish the Commission's
regulations setting forth annual management measures in the Federal
Register by March 15 each year. Annual management measures may be
adjusted inseason by the Commission.
Sec. 300.63 Catch sharing plans and domestic management measures.
Catch sharing plans (CSP) may be developed by the appropriate
regional fishery management council, and approved by NMFS, for portions
of the fishery. Any approved catch sharing plan may be obtained from
the Director, Northwest Region, or the Director, Alaska Region.
(a) The catch sharing plan for area 2A provides a framework that
shall be applied to the annual Area 2A total allowable catch (TAC)
adopted by the Commission, and shall be implemented through domestic
and Commission
[[Page 35559]]
regulations, which will be published in the Federal Register each year
before March 15. The Area 2A CSP allocates halibut among the treaty
Indian fishery, segments of the non-Indian commercial fishery, and
segments of the recreational fishery.
(1) Each year, before January 1, NMFS will publish a proposal to
govern the recreational fishery under the CSP for the following year
and will seek public comment. The comment period will extend until
after the Commission's annual meeting, so the public will have the
opportunity to consider the final area 2A total allowable catch (TAC)
before submitting comments. After the Commission's annual meeting and
review of public comments, NMFS will publish in the Federal Register
the final rule governing sport fishing in area 2A. Annual management
measures may be adjusted inseason by NMFS.
(2) A portion of the commercial TAC is allocated as incidental
catch in the salmon troll fishery in Area 2A. Each year the landing
restrictions necessary to keep the fishery within its allocation will
be recommended by the Pacific Fishery Management Council at its spring
meetings, and will be published in the Federal Register along with the
annual salmon management measures.
(3) The commercial longline fishery in area 2A is governed by the
annual management measures published pursuant to Secs. 300.62 and
300.63.
(4) The treaty Indian fishery is governed by Sec. 300.64 and tribal
regulations. The annual quota for the fishery will be announced with
the Commission regulations under Sec. 300.62
(b) The catch sharing plan for area 4 allocates the annual TAC
among area 4 subarea, and will be implemented by the Commission in
management measures published pursuant to Sec. 300.62.
Sec. 300.64 Fishing by U.S. treaty Indian tribes.
(a) Halibut fishing in subarea 2A-1 by members of U.S. treaty
Indian tribes located in the State of Washington is governed by this
section.
(b) Commercial fishing for halibut by treaty Indians is permitted
only in subarea 2A-1 with hook-and-line gear in conformance with the
season and quota established annually by the Commission.
(c) Commercial fishing periods and management measures to implement
paragraph (b) of this section will be established by treaty Indian
tribal regulations.
(d) Commercial fishing for halibut by treaty Indians shall comply
with the Commission's management measures governing size limits,
careful release of halibut, logs, and fishing gear (published pursuant
to Sec. 300.62), except that the 72-hour fishing restriction preceding
the opening of a halibut fishing period shall not apply to treaty
Indian fishing.
(e) Ceremonial and subsistence fishing for halibut by treaty
Indians in subarea 2A-1 is permitted with hook-and-line gear from
January 1 to December 31.
(f) No size or bag limits shall apply to the ceremonial and
subsistence fishery, except that when commercial halibut fishing is
prohibited pursuant to paragraph (b) of this section, treaty Indians
may take and retain not more than two halibut per person per day.
(g) Halibut taken for ceremonial and subsistence purposes shall not
be offered for sale or sold.
(h) Any member of a U.S. treaty Indian tribe who is engaged in
commercial or ceremonial and subsistence fishing under this section
must have on his or her person a valid treaty Indian identification
card issued pursuant to 25 CFR part 249, subpart A, and must comply
with the treaty Indian vessel and gear identification requirements of
Final Decision No. 1 and subsequent orders in United States v.
Washington 384 F. Supp. 312 (W.D. Wash., 1974).
(i) The following table sets forth the fishing areas of each of the
12 treaty Indian tribes fishing pursuant to this section. Within
subarea 2A-1, boundaries of a tribe's fishing area may be revised as
ordered by a Federal Court.
------------------------------------------------------------------------
Tribe Boundaries
------------------------------------------------------------------------
HOH....................................... Between 47 deg.54'18'' N.
lat. (Quillayute River) and
47 deg.21'00'' N. lat.
(Quinault River), and east
of 125 deg.44'00'' W. long.
JAMESTOWN S'KLALLAM....................... Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
626 F. Supp. 1486, to be
places at which the
Jamestown S'Klallam Tribe
may fish under rights
secured by treaties with
the United States.
LOWER ELWHA S'KLALLAM..................... Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
459 F. Supp. 1049 and 1066
and 626 F. Supp. 1443, to
be places at which the
Lower Elwha S'Klallam Tribe
may fish under rights
secured by treaties with
the United States.
LUMMI..................................... Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
384 F. Supp. 360, as
modified in Subproceeding
No. 89-08 (W.D. Wash.,
February 13, 1990)
(decision and order re:
cross-motions for summary
judgement), to be places at
which the Lummi Tribe may
fish under rights secured
by treaties with the United
States.
MAKAH..................................... North of 48 deg.02'15'' N.
lat. (Norwegian Memorial),
west of 123 deg.42'30'' W.
long., and east of 125
deg.44'00'' W. long.
PORT GAMBLE S'KLALLAM..................... Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
626 F. Supp. 1442, to be
places at which the Port
Gamble S'Klallam Tribe may
fish under rights secured
by treaties with the United
States.
QUILEUTE.................................. Between 48 deg.07'36'' N.
lat. (Sand Point) and 47
deg.31'42'' N. lat. (Queets
River), and east of 125
deg.44'00'' W. long.
QUINAULT.................................. Between 47 deg.40'06'' N.
lat. (Destruction Island)
and 46 deg.53'18'' N. lat.
(Point Chehalis), and east
of 125 deg.44'00'' W. long.
SKOKOMISH................................. Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
384 F. Supp. 377, to be
places at which the
Skokomish Tribe may fish
under rights secured by
treaties with the United
States.
SUQUAMISH................................. Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
459 F. Supp. 1049, to be
places at which the
Suquamish Tribe may fish
under rights secured by
treaties with the United
States.
[[Page 35560]]
SWINOMISH................................. Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
459 F. Supp. 1049, to be
places at which the
Swinomish Tribe may fish
under rights secured by
treaties with the United
States.
TULALIP................................... Those locations in the
Strait of Juan de Fuca and
Puget Sound as determined
in or in accordance with
Final Decision No. 1 and
subsequent orders in United
States v. Washington, 384
F. Supp. 312 (W.D. Wash.,
1974), and particularly at
626 F. Supp. 1531-1532, to
be places at which the
Tulalip Tribe may fish
under rights secured by
treaties with the United
States.
------------------------------------------------------------------------
Sec. 300.65 Prohibitions.
In addition to the prohibitions in Sec. 300.4, the following
prohibitions apply within this subpart. It is unlawful for any person
to fish for halibut except in accordance with:
(a) The management measures published under Sec. 300.62.
(b) The catch sharing plans and management measures implemented
under Sec. 300.63.
Subpart F--Fraser River Sockeye and Pink Salmon Fisheries
Authority: Pacific Salmon Treaty Act, 16 U.S.C. 3636(b).
Sec. 300.90 Purpose and scope.
This subpart implements the Pacific Salmon Treaty Act of 1985 (16
U.S.C. 3631-3644) (Act) and is intended to supplement, not conflict
with, the fishery regimes and Fraser River Panel regulations adopted
under the Treaty between the Government of the United States of America
and the Government of Canada Concerning Pacific Salmon, signed at
Ottawa, January 28, 1985 (Treaty).
Sec. 300.91 Definitions.
In addition to the terms defined in Sec. 300.2 and those in the Act
and the Treaty, the terms used in this subpart have the following
meanings. If a term is defined differently in Sec. 300.2, the Act, or
the Treaty, the definition in this section shall apply.
All-citizen means any person who is not a treaty Indian fishing in
that treaty Indian's tribal treaty fishing places pursuant to treaty
Indian tribal fishing regulations (whether in compliance with such
regulations or not).
Authorized officer means, in addition to those individuals
identified under authorized officer at Sec. 300.2, any state, Federal,
or other officer as may be authorized by the Secretary in writing,
including any treaty Indian tribal enforcement officer authorized to
enforce tribal fishing regulations.
Commission means the Pacific Salmon Commission established by the
Pacific Salmon Treaty.
Consistent regulation or consistent order means any Federal, state,
or treaty Indian tribal regulation or order that is in addition to and
not in conflict with (at least as restrictive as) any regime of the
Commission, Fraser River Panel regulation, inseason order of the
Secretary, or these regulations.
Fishing gear--
(1) Gill net means a fishing net of single web construction, not
anchored, tied, staked, placed, or weighted in such a manner that it
cannot drift.
(2) Purse seine means all types of fishing gear consisting of a
lead line, cork line, auxiliary lines, purse line and purse rings and
of mesh net webbing fashioned in such a manner that it is used to
encircle fish, and in addition prevent their escape under the bottom or
lead line of the net by drawing in the bottom of the net by means of
the purse line so that it forms a closed bag.
(3) Reef net means a non-self-fishing open bunt square or
rectangular section of mesh netting suspended between two anchored
boats fashioned in such a manner that to impound salmon passing over
the net, the net must be raised to the surface.
(4) Troll fishing gear means one or more lines that drag hooks with
bait or lures behind a moving fishing vessel.
(5) Treaty Indian fishing gear means fishing gear defined
authorized, and identified under treaty Indian tribal laws and
regulations in accordance with the requirements of Final Decision No. 1
and subsequent orders in United States v. Washington, 384 F. Supp. 312
(W.D. Wash., 1974).
Fraser River Panel means the Fraser River Panel established by the
Pacific Salmon Treaty.
Fraser River Panel Area (U.S.) means the United States' portion of
the Fraser River Panel Area specified in Annex II of the Treaty as
follows:
(1) The territorial water and the high seas westward from the
western coast of Canada and the United States of America and from a
direct line drawn from Bonilla Point, Vancouver Island, to the
lighthouse of Tatoosh Island, Washington--which line marks the entrance
of Juan de Fuca Strait--and embraced between 48 deg. and 49 deg. N.
lat., excepting therefrom, however, all the waters of Barkley Sound,
eastward of a straight line drawn from Amphitrite Point to Cape Beale
and all the waters of Nitinat Lake and the entrance thereto.
(2) The waters included within the following boundaries: Beginning
at Bonilla Point, Vancouver Island, thence along the aforesaid direct
line drawn from Bonilla Point to Tatoosh Lighthouse, Washington,
described in paragraph (1) of this definition, thence to the nearest
point of Cape Flattery, thence following the southerly shore of Juan de
Fuca Strait to Point Wilson, on Whidbey Island, thence following the
western shore of the said Whidbey Island, to the entrance to Deception
Pass, thence across said entrance to the southern side of Reservation
Bay, on Fidalgo Island, thence following the western and northern shore
line of the said Fidalgo Island to Swinomish Slough, crossing the said
Swinomish Slough, in line with the track of the Great Northern Railway
(Burlington Northern Railroad), thence northerly following the
shoreline of the mainland to Atkinson Point at the northerly entrance
to Burrard Inlet, British Columbia, thence in a straight line to the
southern end of Bowen Island, then westerly following the southern
shore of Bowen Island to Cape Roger Curtis, thence in a straight line
to Gower Point, thence westerly following the shoreline to Welcome
Point on Sechelt Peninsula, thence in a straight line to Point Young on
Lasqueti Island, thence in a straight line to Dorcas Point on Vancouver
Island, thence following the eastern and southern shores of the said
Vancouver Island, to the starting point at Bonilla Point, as shown on
the British Admiralty Chart Number 579, and on the U.S. Coast and
Geodetic Survey Chart Number 6300, as corrected to March 14, 1930,
copies of which are annexed to the 1930 Convention between Canada and
the United States of America for Protection, Preservation, and
Extension of the Sockeye Salmon Fishery in the Fraser River System as
amended, signed May 26, 1930. [Note: U.S. Coast and Geodetic Survey
Chart Number 6300 has been replaced and updated by NOAA Chart Number
18400.]
[[Page 35561]]
(3) The Fraser River and the streams and lakes tributary thereto.
(4) The Fraser River Panel Area (U.S.) includes Puget Sound
Management and Catch Reporting Areas 4B, 5, 6, 6A, 6B, 6C, 6D, 7, 7A,
7B, 7C, 7D, and 7E as defined in the Washington State Administrative
Code at Chapter 220-22 as of June 27, 1986.
Fraser River Panel regulations means regulations applicable to the
Fraser River Panel Area that are recommended by the Commission (on the
basis of proposals made by the Fraser River Panel) and approved by the
Secretary of State.
Mesh size means the distance between the inside of one knot to the
outside of the opposite (vertical) knot in one mesh of a net.
Pink salmon means Oncorhynchus gorbuscha.
Sockeye salmon means the anadromous form of Oncorhynchus nerka.
Treaty fishing places (of an Indian tribe) means locations within
the Fraser River Panel Area (U.S.) as determined in or in accordance
with Final Decision No. 1 and subsequent orders in United States v.
Washington, 384 F. Supp. 312 (W.D. Wash. 1974), to be places at which
that treaty Indian tribe may take fish under rights secured by treaty
with the United States.
Treaty Indian means any member of a treaty Indian tribe whose
treaty fishing place is in the Fraser River Panel Area (U.S.) or any
assistant to a treaty Indian authorized to assist in accordance with
Sec. 300.95(d).
Treaty Indian tribe means any of the federally recognized Indian
tribes of the State of Washington having fishing rights secured by
treaty with the United States to fish for salmon stocks subject to the
Pacific Salmon Treaty in treaty fishing places within the Fraser River
Panel Area (U.S.). Currently these tribes are the Makah, Tribe, Lower
Elwha Klallam Tribe, Port Gamble Klallam Tribe, Jamestown Klallam
Tribe, Suquamish Tribe, Lummi Tribe, Nooksack Tribe, the Swinomish
Indian Tribal Community, and the Tulalip Tribe.
Sec. 300.92 Relation to other laws.
(a) Insofar as they are consistent with this part, any other
applicable Federal law or regulation, or any applicable law and
regulations of the State of Washington or of a treaty Indian tribe with
treaty fishing rights in the Fraser River Panel Area (U.S.) will
continue to have force and effect in the Fraser River Panel Area (U.S.)
with respect to fishing activities addressed herein.
(b) Any person fishing subject to this subpart is bound by the
international boundaries now recognized by the United States within the
Fraser River Panel Area (U.S.) described in Sec. 300.91,
notwithstanding any dispute or negotiation between the United States
and Canada regarding their respective jurisdictions, until such time as
different boundaries are published by the United States.
(c) Any person fishing in the Fraser River Panel Area (U.S.) who
also fishes for groundfish in the EEZ should consult Federal
regulations at part 663 of this title for applicable requirements,
including the requirement that vessels engaged in commercial fishing
for groundfish (except commercial passenger vessels) have vessel
identification in accordance with Sec. 663.6. Federal regulations
governing salmon fishing in the EEZ, which includes a portion of the
Fraser River Panel Area (U.S.), are at part 661 of this title. Annual
regulatory modifications are published in the Federal Register.
(d) Except as otherwise provided in this subpart, general
provisions governing off-reservation fishing by treaty Indians are
found at 25 CFR part 249, subpart A. Additional general and specific
provisions governing treaty Indian fisheries are found in regulations
and laws promulgated by each treaty Indian tribe for fishermen fishing
pursuant to tribal authorization.
(e) Nothing in this subpart relieves a person from any other
applicable requirements lawfully imposed by the United States, the
State of Washington, or a treaty Indian tribe.
Sec. 300.93 Reporting requirements.
Any person fishing for sockeye or pink salmon within the Fraser
River Panel Area (U.S.) and any person receiving or purchasing fish
caught by such persons are subject to State of Washington reporting
requirements at Washington Administrative Code, Chapter 220-69. Treaty
Indian fishermen are subject also to tribal reporting requirements. No
separate Federal reports are required.
Sec. 300.94 Prohibitions and restrictions.
In addition to the prohibitions in Sec. 300.4, the following
prohibitions and restrictions apply.
(a) In addition to the prohibited acts set forth in the Act at 16
U.S.C. 3637(a), the following restrictions apply to sockeye and pink
salmon fishing in the Fraser River Panel Area (U.S.):
(1) The Fraser River Panel Area (U.S.) is closed to sockeye and
pink salmon fishing, unless opened by Fraser River Panel regulations or
by inseason orders of the Secretary issued under Sec. 300.97 that give
effect to orders of the Fraser River Panel, unless such orders are
determined not to be consistent with domestic legal obligations. Such
regulations and inseason orders may be further implemented by
regulations promulgated by the United States, the State of Washington,
or any treaty Indian tribe, which are also consistent with domestic
legal obligations.
(2) It is unlawful for any person or fishing vessel subject to the
jurisdiction of the United States to fish for, or take and retain, any
sockeye or pink salmon:
(i) Except during times or in areas that are opened by Fraser River
Panel regulations or by inseason order, except that this provision will
not prohibit the direct transport of legally caught sockeye or pink
salmon to offloading areas.
(ii) By means of gear or methods not authorized by Fraser River
Panel regulations, inseason orders, or other applicable Federal, state,
or treaty Indian tribal law.
(iii) In violation of any applicable area, season, species, zone,
gear, or mesh size restriction.
(b) It is unlawful for any person or fishing vessel subject to the
jurisdiction of the United States to--
(1) Remove the head of any sockeye or pink salmon caught in the
Fraser River Panel Area (U.S.), or possess a salmon with the head
removed, if that salmon has been marked by removal of the adipose fin
to indicate that a coded wire tag has been implanted in the head of the
fish.
(2) Fail to permit an authorized officer to inspect a record or
report required by the State of Washington or treaty Indian tribal
authority.
(c) Notwithstanding paragraph (a) of this section, nothing in this
subpart will be construed to prohibit the retention of sockeye or pink
salmon caught by any person while lawfully engaged in a fishery for
subsistence or ceremonial purposes pursuant to treaty Indian tribal
regulations, for recreational purposes pursuant to recreational fishing
regulations promulgated by the State of Washington, or as otherwise
authorized by treaty Indian tribal or State of Washington law or
regulation, provided that such treaty Indian tribal or State regulation
is consistent with U.S.-approved Commission fishery regimes, Fraser
River Panel regulations, or inseason orders of the Secretary applicable
to fishing in the Fraser River Panel Area (U.S.).
(d) The following types of fishing gear are authorized, subject to
the restrictions set forth in this subpart and according to the times
and areas
[[Page 35562]]
established by Fraser River Panel regulations or inseason orders of the
Secretary:
(1) All citizens: Gill net, purse seine, reef net, and troll
fishing gear. Specific restrictions on all citizens gear are contained
in the Washington State Administrative Code of Chapter 220-47.
(2) Treaty Indians: Treaty Indian fishing gear.
(e) Geographic descriptions of Puget Sound Salmon Management and
Catch Reporting Areas, which are referenced in the Commission's
regimes, Fraser River Panel regulations, and in inseason orders of the
Secretary, are found in the Washington State Administrative Code at
Chapter 220-22.
Sec. 300.95 Treaty Indian fisheries.
(a) Any treaty Indian must comply with this section when fishing
for sockeye and pink salmon at the treaty Indian tribe's treaty fishing
places in the Fraser River Panel Area (U.S.) during the time the
Commission or the Secretary exercises jurisdiction over these
fisheries. Fishing by a treaty Indian outside the applicable Indian
tribe's treaty fishing places will be subject to the Fraser River Panel
regulations and inseason orders applicable to all citizens, as well as
to the restrictions set forth in this section.
(b) Nothing in this section will relieve a treaty Indian from any
applicable law or regulation imposed by a treaty Indian tribe, or from
requirements lawfully imposed by the United States or the State of
Washington in accordance with the requirements of Final Decision No. 1
and subsequent orders in United States v. Washington, 384 F. Supp. 312
(W.D. Wash., 1974).
(c) Identification. (1) Any treaty Indian fishing under the
authority of this subpart must have in his or her possession at all
times while fishing or engaged in any activity related to fishing the
treaty Indian identification required by 25 CFR 249.3 or by applicable
tribal law.
(2) Any person assisting a treaty Indian under the authority of
paragraph (d) of this section must have in his or her possession at all
such times a valid identification card issued by the Bureau of Indian
Affairs or by a treaty Indian tribe, identifying the holder as a person
qualified to assist a treaty Indian. The identification card must
include the name of the issuing tribe, the name, address, date of
birth, and photograph of the assistant, and the name and identification
number of the treaty Indian whom the assistant is authorized to assist.
(3) Identification described in paragraph (c) (1) or (2) of this
section must be shown on demand to an authorized officer by the treaty
Indian or authorized assistant.
(4) Any treaty Indian fishing under this subpart must comply with
the treaty Indian vessel and gear identification requirements of Final
Decision No. 1 and subsequent orders in United States v. Washington,
384 F. Supp. 312 (W.D. Wash., 1974).
(d) Fishing assistance. (1) Any member of a treaty Indian tribe
fishing under this subpart may, if authorized by the treaty Indian's
tribe, receive fishing assistance from, and only from, the treaty
Indian tribal member's spouse, forebears, children, grandchildren, and
siblings, as authorized by the U.S. District Court for the Western
District of Washington in United States v. Washington, 384 F. Supp. 312
(W.D. Wash., 1974). For purposes of this section, the treaty Indian
tribal member whom the assistant is authorized to assist must be
present aboard the fishing vessel at all times while engaged in the
exercise of treaty Indian fishing rights subject to this subpart.
(2) No treaty Indian may, while fishing at a treaty fishing place
in accordance with treaty-secured fishing rights, permit any person 16
years of age or older other than the authorized holder of a currently
valid identification card issued in accordance with the requirements of
paragraphs (c) (1) and (2) of this section to fish for said treaty
Indian, assist said treaty Indian in fishing, or use any gear or
fishing location identified as said treaty Indian's gear or location.
(3) Treaty Indians are prohibited from participating in a treaty
Indian fishery under this section at any time persons who are not
treaty Indians are aboard the fishing vessel or in contact with fishing
gear operated from the fishing vessel, unless such persons are
authorized employees or officers of a treaty Indian tribe or tribal
fisheries management organization, the Northwest Indian Fisheries
Commission, the Commission, or a fisheries management agency of the
United States or the State of Washington.
Sec. 300.96 Penalties.
Any treaty Indian who commits any act that is unlawful under this
subpart normally will be referred to the applicable tribe for
prosecution and punishment. If such tribe fails to prosecute such
persons in a diligent manner for the offense(s) referred to the tribe,
or if other good cause exists, such treaty Indian may be subject to the
penalties and procedures described in the Magnuson Act.
Sec. 300.97 Inseason orders.
(a) During the fishing season, the Secretary may issue orders that
establish fishing times and areas consistent with the annual Commission
regime and inseason orders of the Fraser River Panel. Inseason orders
will be consistent with domestic legal obligations. Violation of such
inseason orders is violation of this subpart.
(b) Notice of inseason orders. (1) Official notice of such inseason
orders is available from NMFS (for orders applicable to all-citizen
fisheries) and from the Northwest Indian Fisheries Commission (for
orders applicable to treaty Indian fisheries) through the following
Area Code 206 toll-free telephone hotlines: All-citizen fisheries: 1-
800-562-6513; Treaty Indian fisheries: 1-800-562-6142.
(2) Notice of inseason orders of the Secretary and other applicable
tribal regulations may be published and released according to tribal
procedures in accordance with Final Decision No. 1 and subsequent
orders in United States v. Washington, 384 F. Supp. 312 (W.D. Wash.,
1974).
(3) Inseason orders may also be communicated through news releases
to radio and television stations and newspapers in the Fraser River
Panel Area (U.S.).
(4) Inseason orders of the Secretary will also be published in the
Federal Register as soon as practicable after they are issued.
Subpart G--Antarctic Marine Living Resources
Authority: 16 U.S.C. 2431 et seq.
Sec. 300.100 Purpose and scope.
(a) This subpart implements the Antarctic Marine Living Resources
Convention Act of 1984 (Act).
(b) This subpart regulates--
(1) The harvesting of Antarctic marine living resources or other
associated activities by any person subject to the jurisdiction of the
United States or by any vessel of the United States.
(2) The importation into the United States of any Antarctic marine
living resource.
Sec. 300.101 Definitions.
In addition to the terms defined in Sec. 300.2, in the Act, and in
the Convention on the Conservation of Antarctic Marine Living
Resources, done at Canberra, Australia, May 7, 1980 (Convention).
Convention, the terms used in this subpart have the following meanings.
If a term is defined differently in Sec. 300.2, such Act, or such
Convention, the definition in this section shall apply.
[[Page 35563]]
ACA means the Antarctic Conservation Act of 1978 (16 U.S.C. 2401 et
seq.).
Antarctic convergence means a line joining the following points
along the parallels of latitude and meridians of longitude:
Lat. Long.
50 deg. S. 0.
50 deg. S. 30 deg. E.
45 deg. S. 30 deg. E.
45 deg. S. 80 deg. E.
55 deg. S. 80 deg. E.
55 deg. S. 150 deg. E.
60 deg. S. 150 deg. E.
60 deg. S. 50 deg. W.
50 deg. S. 50 deg. W.
50 deg. S. 0.
Antarctic finfishes include the following:
------------------------------------------------------------------------
Scientific name Common name
------------------------------------------------------------------------
Gobionotothen gibberifrons................ Humped rockcod.
Notothenia rossii......................... Marbled rockcod.
Lepidorhirus squamifrons.................. Grey rockcod.
Dissostichus eleginoides.................. Patagonian toothfish.
Patagonothen brevicauda guntheri.......... Patagonian rockcod.
Pleuragramma antarcticum.................. Antarctic silverfish.
Trematomus spp............................ Antarctic cods.
Chaenocephalus aceratus................... Blackfin icefish.
Chaenodraco wilsoni....................... Spiny icefish.
Champsocephalus gunnari................... Mackerel icefish.
Chionodraco rastrospinosus................ Ocellated icefish.
Pseudochaenichthys georgianus............. South Georgia icefish.
------------------------------------------------------------------------
Antarctic marine living resources or AMLR(s) means the populations
of finfish, mollusks, crustaceans, and all other species of living
organisms, including birds, found south of the Antarctic Convergence,
and their parts or products.
Commission means the Commission for the Conservation of Antarctic
Marine Living Resources established under Article VII of the
Convention.
Convention waters means all waters south of the Antarctic
Convergence.
Directed fishing, with respect to any species or stock of fish,
means any fishing that results in such fish comprising more than 1
percent by weight, at any time, of the catch on board the vessel.
Fish means finfish, mollusks, and crustaceans.
Fishery means:
(1) One or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the
basis of geographical, scientific, technical, recreational, and
economic characteristics.
(2) Any fishing for such stocks.
Harvesting vessel means any vessel of the United States (this
includes any boat, ship, or other craft), that is used for, equipped to
be used for, or of a type that is normally used for harvesting.
Individual permit means an NSF permit issued under 45 CFR part 670;
or an NSF award letter (demonstrating that the individual has received
an award from NSF to do research in the Antarctic); or a marine mammal
permit issued under Sec. 216.31 of this chapter; or an endangered
species permit issued under Sec. 222.21 of this chapter.
Inspection vessel means a vessel carrying a CCAMLR inspector and
displaying the pennant approved by the Commission to identify such
vessel.
Land or landing means to begin offloading any fish, to arrive in
port with the intention of offloading any fish, or to cause any fish to
be offloaded.
NSF means National Science Foundation, 4201 Wilson Boulevard,
Arlington, VA 22230.
Recreational fishing means fishing with hook and line for personal
use and not for sale.
Scientific research activity means any activity for which a person
has a permit from NMFS under Sec. 216.31 of this title or an award
letter from NSF or a permit from the NSF under 45 CFR part 670.
Scientific research activities may also include harvesting or other
associated activities if such activities are designated as scientific
research activities by the Assistant Administrator.
Sec. 300.102 Relationship to other treaties, conventions, laws, and
regulations.
(a) Other conventions and treaties to which the United States is a
party and other Federal statutes and implementing regulations may
impose additional restrictions on the harvesting and importation into
the United States of AMLRs.
(b) The ACA implements the Antarctic Treaty Agreed Measures for the
Conservation of Antarctic Fauna and Flora (12 U.S.T. 794). The ACA and
its implementing regulations (45 CFR part 670) apply to certain defined
activities of U.S. citizens south of 60 deg. S. lat.
(c) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et
seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the
Migratory Bird Treaty Act (16 U.S.C. 701 et seq.), and their
implementing regulations also apply to the harvesting and importation
of AMLRs.
Sec. 300.103 Procedure for according protection to CCAMLR Ecosystem
Monitoring Program Sites.
(a) General. (1) Any person subject to the jurisdiction of the
United States must apply for and be granted an entry permit authorizing
specific activities prior to entering a CCAMLR Ecosystem Monitoring
Program (CEMP) Protected Site designated in accordance with the CCAMLR
Conservation Measure describing the Procedures for According Protection
for CEMP Sites.
(2) If a CEMP Protected Site is also a site specially protected
under the Antarctic Treaty (or the Protocol on Environmental Protection
to the Antarctic Treaty and its Annexes, when it enters into force), an
applicant seeking to enter such a Protected Site must apply to the
Director of the NSF for a permit under applicable provisions of the ACA
or any superseding legislation. The permit granted by NSF shall
constitute a joint CEMP/ACA Protected Site permit and any person
holding such a permit must comply with the appropriate CEMP Protected
Site Management Plan. In all other cases, an applicant seeking a permit
to enter a CEMP Protected Site must apply to the Assistant
Administrator for a CEMP permit in accordance with the provisions of
this section.
(b) Responsibility of CEMP permit holders and persons designated as
agents under a CEMP permit. (1) The CEMP permit holder and person
designated as agents under a CEMP permit are jointly and severally
responsible for compliance with the Act, this subpart, and any permit
issued under this subpart.
(2) The CEMP permit holder and agents designated under a CEMP
permit are responsible for the acts of their employees and agents
constituting violations, regardless of whether the specific acts were
authorized or forbidden by the CEMP permit holder or agents, and
regardless of knowledge concerning their occurrence.
(c) Prohibitions regarding the Antarctic Treaty System and other
applicable treaties and statutes. Holders of permits to enter CEMP
Protected Sites are not permitted to undertake any activities within a
CEMP Protected Site that are not in compliance with the provisions of:
(1) The Antarctic Treaty, including the Agreed Measures for the
Conservation of Antarctic Fauna and Flora (including the Protocol on
the Environmental Protection to the Antarctic Treaty and its Annexes
when it enters into force), as implemented under by the ACA and any
superseding legislation. (Persons interested in
[[Page 35564]]
conducting activities subject to the Antarctic Treaty or the Protocol
should contact the Office of Polar Programs, NSF).
(2) The Convention for the Conservation of Antarctic Seals.
(3) The Convention and its Conservation Measures in force,
implemented under the Act.
(d) Prohibitions on takings. Permits issued under this section do
not authorize any takings as defined in the applicable statutes and
implementing regulations governing the activities of persons in
Antarctica.
(e) Issuance criteria. Permits designated in this section may be
issued by the Assistant Administrator upon a determination that:
(1) The specific activities meet the requirements of the Act.
(2) There is sufficient reason, established in the permit
application, that the scientific purpose for the intended entry cannot
be served elsewhere.
(3) The actions permitted will not violate any provisions or
prohibitions of the Protected Site's Management Plan submitted in
compliance with the CCAMLR Conservation Measure describing the
Procedures for According Protection to CEMP Sites.
(f) Application process. An applicant seeking a CEMP permit from
the Assistant Administrator to enter a CEMP Protected Site shall
include the following in the application.
(1) A detailed justification that the scientific objectives of the
applicant cannot be accomplished elsewhere and a description of how
said objectives will be accomplished within the terms of the Protected
Site's Management Plan.
(2) A statement signed by the applicant that the applicant has read
and fully understands the provisions and prohibitions of the Protected
Site's Management Plan. Prospective applicants may obtain copies of the
relevant Management Plans and the CCAMLR Conservation Measure
describing the Procedures for According Protection to CEMP Sites by
requesting them from the Assistant Administrator.
(g) Conditions. CEMP permits issued under this section will contain
special and general conditions including a condition that the permit
holder shall submit a report describing the activities conducted under
the permit within 30 days of the expiration of the CEMP permit.
(h) Duration. Permits issued under this section are valid for a
period of 1 year. Applicants requesting a permit to reenter a Protected
Site must include the report required by the general condition in the
previously issued CEMP permit describing the activities conducted under
authority of that permit.
(i) Transfer. CEMP permits are not transferable or assignable. A
CEMP permit is valid only for the person to whom it is issued.
(j) Modification. (1) CEMP permits can be modified by submitting a
request to the Assistant Administrator. Such requests shall specify:
(i) The action proposed to be taken along with a summary of the
reasons therefore.
(ii) The steps that the permit holder may take to demonstrate or
achieve compliance with all lawful requirements.
(2) If a requested modification is not in compliance with the terms
of the Protected Site's Management Plan, the Assistant Administrator
will treat the requested modification as an application for a new CEMP
permit and so notify the holder. Modifications will be acted upon
within 30 days of receipt. The CEMP permit holder must report to the
Assistant Administrator any change in previously submitted information
within 10 days of the change.
(3) Additional conditions and restrictions. The Assistant
Administrator may revise the CEMP permit effective upon notification of
the permit holder, to impose additional conditions and restrictions as
necessary to achieve the purposes of the Convention, the Act and the
CEMP Management Plan. The CEMP permit holder must, as soon as possible,
notify any and all agents operating under the permit of any and all
revisions or modifications to the permit.
(k) Revocation or suspension. CEMP permits may be revoked or
suspended based upon information received by the Assistant
Administrator and such revocation or suspension shall be effective upon
notification to the permit holder.
(1) A CEMP permit may be revoked or suspended based on a violation
of the permit, the Act, or this subpart.
(2) Failure to report a change in the information submitted in a
CEMP permit application within 10 days of the change is a violation of
this subpart and voids the application or permit, as applicable. Title
15 CFR part 904 governs permit sanctions under this subpart.
(l) Exceptions. Entry into a Protected Site described in this
section is lawful if committed under emergency conditions to prevent
the loss of human life, compromise human safety, prevent the loss of
vessels or aircraft, or to prevent environmental damage.
(m) Protected sites. (1) Sites protected by the Antarctic Treaty
and regulated under the ACA are listed at 45 CFR part 670 subparts G
and H.
(2) The following sites have been identified as CEMP Protected
Sites subject to the regulatory authority of the Act:
(i) Seal Islands, South Shetland Islands--The Seal Islands are
composed of islands and skerries located approximately 7 km north of
the northwest corner of Elephant Island, South Shetland Islands. The
Seal Islands CEMP Protected Site includes the entire Seal Islands
group, which is defined as Seal Island plus any land or rocks exposed
at mean low tide within a distance of 5.5 km of the point of highest
elevation on Seal Island. Seal Island is situated at 60 deg.59'14'' S.
lat., 55 deg.23'04'' W. long.
(ii) Cape Shirreff and the San Telmo Islands. This designation
takes effect on May 1, 1995. Cape Shirreff is a low, ice-free peninsula
towards the western end of the north coast of Livingston Island, South
Shetland Islands, situated at 62 deg.29' S. lat., 60 deg.47' W. long.,
between Barclay Bay and Hero Bay. San Telmo Island is the largest of a
small group of ice-free rock islets, approximately 2 km west of Cape
Shirreff. The boundaries of the Cape Shirreff CEMP Protected Site are
identical to the boundaries of the Site of Special Scientific Interest
No. 32, as specified by ATCM Recommendation XV-7. No manmade boundary
markers indicate the limits of the SSSI or protected site. The
boundaries are defined by natural features and include the entire area
of the Cape Shirreff peninsula north of the glacier ice tongue margin,
and most of the San Telmo Island group. For the purposes of the
protected site, the entire area of Cape Shirreff and the San Telmo
Island group is defined as any land or rocks exposed at mean low tide
within the area delimited by the map of SSSI No. 32 and available from
the Assistant Administrator.
Sec. 300.104 Scientific research.
(a) The management measures issued pursuant to the procedures at
Sec. 300.111 do not apply to catches of less than 5 tons taken by any
vessel for research purposes, unless otherwise indicated.
(b) Catches taken by any vessel for research purposes will be
considered as part of any catch limit.
(c) The catch reporting procedure identified in management measures
issued pursuant to the procedures at Sec. 300.111 applies whenever the
catch within any 5-day reporting period exceeds 5 tons, unless more
specific
[[Page 35565]]
reporting requirements apply to the species being fished.
(d) Any person, organization or institution planning to use a
vessel for research purposes, when the estimated catch is expected to
be less than 50 tons, must provide the following vessel and research
notification to the Assistant Administrator at least 2 months in
advance of the planned research:
(1) Name and registration number of vessel.
(2) Division and subarea in which research is to be carried out.
(3) Estimated dates of entering and leaving CCAMLR Convention Area.
(4) Purposes of research.
(5) Fishing equipment to be used (bottom trawl, midwater trawl,
longline, crab pots, other).
(e) The following measures apply to any person planning to use any
vessel for research purposes, when the estimated catch is expected to
be more than 50 tons:
(1) The person must use the CCAMLR Format for Reporting Plans for
Finfish Surveys in the Convention Area when the Total Catch is Expected
to be More Than 50 Tons to report the details of the research plan to
the Assistant Administrator at least 7 months in advance of the planned
starting date for the research. A copy of the format is available from
the Assistant Administrator.
(2) The format requires:
(i) The name of the CCAMLR Member.
(ii) Survey details.
(iii) Description of the vessel.
(iv) Description of the fishing gear to be used.
(v) Description of acoustic gear to be used.
(vi) Survey design and methods of data analyses.
(vii) Data to be collected.
(3) A summary of the results of any research fishing subject to
these provisions must be provided to the Assistant Administrator within
150 days of the completion of the research fishing and a full report
must be provided within 11 months.
(4) Catch and effort data resulting from the research fishing must
be reported to the Assistant Administrator using the CCAMLR C4 haul-by-
haul reporting format for research vessels.
Sec. 300.105 Initiating a new fishery.
(a) A new fishery, for purposes of this section, is a fishery on a
species using a particular method in a statistical subarea for which:
(1) Information on distribution, abundance, demography, potential
yield and stock identity from comprehensive research/surveys or
exploratory fishing has not been submitted to CCAMLR;
(2) Catch and effort data have never been submitted to CCAMLR; or
(3) Catch and effort data from the two most recent seasons in which
fishing occurred have not been submitted to CCAMLR.
(b) An individual subject to these regulations intending to develop
a new fishery shall notify the Assistant Administrator no later than
July 1 of the year in which he or she intends to initiate the fishery
and shall not initiate the fishery pending CCAMLR review.
(c) The notification shall be accompanied by information on:
(1) The nature of the proposed fishery, including target species,
methods of fishing, proposed region and any minimum level of catches
that would be required to develop a viable fishery.
(2) Biological information from comprehensive research/survey
cruises, such as distribution, abundance, demographic data and
information on stock identity.
(3) Details of dependent and associated species and the likelihood
of them being affected by the proposed fishery.
(4) Information from other fisheries in the region or similar
fisheries elsewhere that may assist in the valuation of potential
yield.
Sec. 300.106 Exploratory fisheries.
(a) An exploratory fishery, for purposes of this section, is a
fishery that was previously defined as a new fishery under
Sec. 300.105.
(b) A fishery will continue to be classified as an exploratory
fishery until sufficient information is available to:
(1) Evaluate the distribution, abundance, and demography of the
target species, leading to an estimate of the fishery's potential
yield.
(2) Review the fishery's potential impacts on dependent and related
species.
(3) Allow the CCAMLR Scientific Committee to formulate and provide
advice to the Commission on appropriate harvest catch levels and
fishing gear.
(c) Each vessel participating in an exploratory fishery must carry
a scientific observer.
(d) The operator of any vessel engaging in an exploratory fishery
must submit, by the date specified in the operator's harvesting permit,
catch, effort, and related biological, ecological, and environmental
data as required by a data collection plan for the fishery formulated
by the CCAMLR Scientific Committee.
(e) In addition to the requirements in Sec. 300.112, any individual
planning to enter an exploratory fishery must notify the Assistant
Administrator no later than 4 months in advance of the annual meeting
of CCAMLR. The Assistant Administrator will not issue a permit to enter
an exploratory fishery until after the requirements of Sec. 300.112
have been met and the meeting of CCAMLR, which receives and considers
the notice made to the Assistant Administrator, has been concluded.
Sec. 300.107 Reporting and recordkeeping requirements.
The operator of any vessel required to have a permit under this
subpart must:
(a) Accurately maintain on board the vessel a fishing logbook and
all other reports and records required by its permit.
(b) Make such reports and records available for inspection upon the
request of an authorized officer or CCAMLR inspector.
(c) Within the time specified in the permit, submit a copy of such
reports and records to the Assistant Administrator.
Sec. 300.108 Vessel and gear identification.
(a) Vessel identification. (1) The operator of each harvesting
vessel assigned an IRCS must display that call sign amidships on both
the port and starboard sides of the deckhouse or hull, so that it is
visible from an enforcement or inspection vessel, and on an appropriate
weather deck so that it is visible from the air.
(2) The operator of each harvesting vessel not assigned an IRCS,
such as a small trawler associated with a mothership or one of a pair
of trawlers, must display the IRCS of the associated vessel, followed
by a numerical suffix specific for the non-assigned vessel.
(3) The vessel identification must be in a color in contrast to the
background and must be permanently affixed to the harvesting vessel in
block roman alphabet letters and arabic numerals at least 1 m in height
for harvesting vessels over 20 m in length, and at least 0.5 m in
height for all other harvesting vessels.
(b) Navigational lights and shapes. Each harvesting vessel must
display the lights and shapes prescribed by the International
Regulations for Preventing Collisions at Sea, 1972 (TIAS 8587, and 1981
amendment TIAS 10672), for the activity in which the harvesting vessel
is engaged (as described at 33 CFR part 81).
(c) Gear identification. (1) The operator of each harvesting vessel
must ensure that all deployed fishing gear that is not physically and
continuously attached to a harvesting vessel is clearly marked at the
surface with a buoy displaying the vessel identification of
[[Page 35566]]
the harvesting vessel (see paragraph (a) of this section) to which the
gear belongs, a light visible for 2 miles at night in good visibility,
and a radio buoy. Trawl codends passed from one vessel to another are
considered continuously attached gear and do not have to be marked.
(2) The operator of each harvesting vessel must ensure that
deployed longlines, strings of traps or pots, and gillnets are marked
at the surface at each terminal end with a buoy displaying the vessel
identification of the harvesting vessel to which the gear belongs (see
paragraph (a) of this section), a light visible for 2 miles at night in
good visibility, and a radio buoy.
(3) Unmarked or incorrectly identified fishing gear may be
considered abandoned and may be disposed of in accordance with
applicable Federal regulations by any authorized officer or CCAMLR
inspector.
(d) Maintenance. The operator of each harvesting vessel must:
(1) Keep the vessel and gear identification clearly legible and in
good repair.
(2) Ensure that nothing on the harvesting vessel obstructs the view
of the markings from an enforcement or inspection vessel or aircraft.
(3) Ensure that the proper navigational lights and shapes are
displayed for the harvesting vessel's activity and are properly
functioning.
Sec. 300.109 Gear disposal.
(a) The operator of a harvesting vessel may not dump overboard,
jettison or otherwise discard any article or substance that may
interfere with other fishing vessels or gear, or that may catch fish or
cause damage to any marine resource, including marine mammals and
birds, except in cases of emergency involving the safety of the ship or
crew, or as specifically authorized by communication from the
appropriate USCG commander or authorized officer. These articles and
substances include, but are not limited to, fishing gear, net scraps,
bale straps, plastic bags, oil drums, petroleum containers, oil, toxic
chemicals or any manmade items retrieved in a harvesting vessel's gear.
(b) The operator of a harvesting vessel may not abandon fishing
gear in Convention waters.
(c) The operator of a harvesting vessel must provide a copy of the
CCAMLR information brochure ``Marine Debris--A Potential Threat to
Antarctic Marine Mammals'' to each member of the crew of the harvesting
vessel and must display copies of the CCAMLR placard ``Avoidance of
Incidental Mortality of Antarctic Marine Mammals'' in the wheelhouse
and crew quarters of the harvesting vessels. Copies of the brochure and
placard will be provided to each holder of a harvesting permit by NMFS
when issuing the permit.
Sec. 300.110 Mesh size.
(a) The use of pelagic and bottom trawls having the mesh size in
any part of a trawl less than indicated is prohibited for any directed
fishing for the following Antarctic finfishes:
(1) Notothenia rossii and Dissostichus eleginoides--120 mm.
(2) Champsocephalus gunnari--90 mm.
(3) Gobionotothen gibberifrons, Notothenia kempi and Lepidorhirus
squamifrons--80 mm.
(b) Any means or device that would reduce the size or obstruct the
opening of the meshes is prohibited.
(c) The following procedure will be used for determining compliance
with mesh size requirements.
(1) Description of gauges. (i) Gauges for determining mesh sizes
will be 2 mm thick, flat, of durable material and capable of retaining
their shape. They may have either a series of parallel-edged sides
connected by intermediate tapering edges with a taper of one to eight
on each side, or only tapering edges with the taper defined above. They
will have a hole at the narrowest extremity.
(ii) Each gauge will be inscribed on its face with the width in
millimeters both on the parallel-sided section, if any, and on the
tapering section. In the case of the latter, the width will be
inscribed every 1 mm interval, but the indication of the width may
appear at regular intervals other than 1 mm.
(2) Use of the gauge. (i) The net will be stretched in the
direction of the long diagonal of the meshes.
(ii) A gauge as described in paragraph (c)(1) of this section will
be inserted by its narrowest extremity into the mesh opening in a
direction perpendicular to the plane of the net.
(iii) The gauge may be inserted into the mesh opening either with a
manual force or using a weight or dynamometer, until it is stopped at
the tapering edges by the resistance of the mesh.
(3) Selection of meshes to be measured. (i) Meshes to be measured
will form a series of 20 consecutive meshes chosen in the direction of
the long axis of the net, except that the meshes to be measured need
not be consecutive if the application of paragraph (c)(3)(ii) of this
section prevents it.
(ii) Meshes less than 50 cm from lacings, ropes, or codline will
not be measured. This distance will be measured perpendicular to the
lacings, ropes or codline with the net stretched in the direction of
that measurement. No mesh will be measured which has been mended or
broken or has attachments to the net fixed at that mesh.
(iii) Nets will be measured only when wet and unfrozen.
(4) The measurement of each mesh will be the width of the gauge at
the point where the gauge is stopped, when using this gauge in
accordance with paragraph (c)(2) of this section.
(5) Determination of the mesh size of the net will be the
arithmetical mean in millimeters of the measurements of the total
number of meshes selected and measured as provided for in paragraphs
(c) (3) and (4) of this section, the arithmetical mean being rounded up
to the next millimeter.
(6) Inspection procedure. (i) One series of 20 meshes, selected in
accordance with paragraph (c)(3) of this section, will be measured by
inserting the gauge manually without using a weight or dynamometer. The
mesh size of the net will then be determined in accordance with
paragraph (c)(5) of this section. If the calculation of the mesh size
shows that the mesh size does not appear to comply with the rules in
force, then two additional series of 20 meshes selected in accordance
with paragraph (c)(3) of this section will be measured. The mesh size
will then be recalculated in accordance with paragraph (c)(5) of this
section, taking into account the 60 meshes already measured; this
recalculation will be the mesh size of the net.
(ii) If the captain of the vessel contests the mesh size determined
in accordance with paragraph (c)(6)(i) of this section, such
measurement will not be considered for the determination of the mesh
size and the net will be remeasured.
(A) A weight or dynamometer attached to the gauge will be used for
remeasurement. The choice of weight or dynamometer is at the discretion
of the inspectors. The weight will be fixed to the hole in the
narrowest extremity of the gauge using a hook. The dynamometer may
either be fixed to the hole in the narrowest extremity of the gauge or
be applied at the largest extremity of the gauge.
(B) The accuracy of the weight or dynamometer must be certified by
the appropriate national authority.
(C) For nets of a mesh size of 35 mm or less as determined in
accordance with paragraph (c)(6)(i) of this section, a force of 19.61
newtons (equivalent to a mass of 2 kg) will be applied, and for other
nets, a force of 49.03 newtons (equivalent to a mass of 5 kg).
[[Page 35567]]
(D) For the purposes of determining the mesh size in accordance
with paragraph (c)(5) of this section, when using a weight or
dynamometer, one series of 20 meshes only will be measured.
Sec. 300.111 Framework for annual management measures.
(a) Introduction. New management measures may be added and others
modified through publication of a regulatory action in the Federal
Register. The following framework process authorizes the implementation
of measures that may affect the operation of the commercial or
exploratory fisheries, gear, area restrictions, or changes in catch
and/or effort.
(b) Preliminary notice. The Secretary of State shall publish
preliminary notice in the Federal Register of the management measures
adopted by the parties to the Convention.
(c) Procedure. At its annual meeting, usually in October or
November, the Commission may recommend new measures and that
established measures be modified, removed, or re-instituted. After
public notice of those recommendations by the Secretary of State and
opportunity for public comment, and after considering the impact of
instituting the measures and any public comment received by the
Secretary of State, the Assistant Administrator may implement the
management measures by notice in the Federal Register, with immediate
force and effect. The notification in the Federal Register will
summarize new management measures, and respond to any public comments
received by the Secretary of State on the preliminary notice.
(d) Types of management measures to be frameworked. Management
measures that may be implemented by regulatory notice rather than by
codified regulation are those that generally will not remain in effect
for more than 12 months and include catch restrictions, time and area
closures, and gear restrictions.
Sec. 300.112 Harvesting permits.
(a) General. (1) Every vessel subject to the jurisdiction of the
United States that attempts to reduce or reduces any AMLR to possession
must have a harvesting permit authorizing the attempt or reduction,
unless the attempt or reduction occurs during recreational fishing or
is covered by an individual permit. Boats launched from a vessel issued
a harvesting permit do not require a separate permit, but are covered
by the permit issued the launching vessel. Any enforcement action that
results from the activities of a launched boat will be taken against
the launching vessel.
(2) Permits issued under this section do not authorize vessels or
persons subject to the jurisdiction of the United States to harass,
capture, harm, kill, harvest, or import marine mammals. No marine
mammals may be taken in the course of commercial fishing operations
unless the taking is allowed under the Marine Mammal Protection Act
and/or the Endangered Species Act pursuant to an exemption or permit
granted by the appropriate agency.
(b) Responsibility of owners and operators. (1) The owners and
operators of each harvesting vessel are jointly and severally
responsible for compliance with the Act, this subpart, and any permit
issued under the Act and this subpart.
(2) The owners and operators of each such vessel are responsible
for the acts of their employees and agents constituting violations,
regardless of whether the specific acts were authorized or forbidden by
the owners or operators, and regardless of knowledge concerning their
occurrence.
(3) The owner of such vessel must report any sale, change in
ownership, or other disposition of the vessel to the Assistant
Administrator within 15 days of the occurrence.
(c) Application. Application forms for harvesting permits are
available from the Assistant Administrator (Attn: CCAMLR permits). A
separate fully completed and accurate application must be submitted for
each vessel for which a harvesting permit is requested at least 90 days
before the date anticipated for the beginning of harvesting.
(d) Issuance. The Assistant Administrator may i
FR Doc. 96-16723 International Fisheries; Consolidation of Regulations; Technical Amendment; OMB Control Numbers
ssue a harvesting
permit to a vessel if the Assistant Administrator determines that the
harvesting described in the application will meet the requirements of
the Act and will not:
(1) Decrease the size of any harvested population to levels below
those that ensure its stable recruitment. For this purpose, the
Convention recommends that its size not be allowed to fall below a
level close to that which ensures the greatest net annual increment.
(2) Upset the ecological relationships between harvested,
dependent, and related populations of AMLRs and the restoration of
depleted populations to levels that will ensure stable recruitment.
(3) Cause changes or increase the risk of changes in the marine
ecosystem that are not potentially reversible over 2 or 3 decades,
taking into account the state of available knowledge of the direct and
indirect impact of harvesting, the effect of the introduction of alien
species, the effects of associated activities on the marine ecosystem
and of the effects of environmental changes, with the aim of making
possible the sustained conservation of AMLRs.
(4) Violate the management measures issued pursuant to Sec. 300.111
of this subpart.
(5) Violate any other conservation measures in force with respect
to the United States under the Convention or the Act.
(e) Duration. A harvesting permit is valid from its date of
issuance to its date of expiration unless it is revoked or suspended.
(f) Transfer. Permits are not transferable or assignable. A permit
is valid only for the vessel to which it is issued.
(g) Display. Each harvesting vessel when engaged in harvesting must
either have on board an up-to-date copy of its harvesting permit or a
fully completed and up-to-date harvesting vessel certificate and the
vessel operator must produce it for inspection upon the request of an
authorized officer or CCAMLR inspector. In order for the certificate to
be considered complete, the vessel owner or operator must enter on it
the name and IRCS of the vessel issued the harvesting permit, the
number of the harvesting permit and its date of issuance and
expiration, the harvesting authorized by the permit, and all conditions
and restrictions contained in the permit. Blank certificates are
available from the Assistant Administrator.
(h) Changes in information submitted by permit applicants or
holders--(1) Changes in pending applications. Applicants for a
harvesting permit must report to the Assistant Administrator in writing
any change in the information contained in the application. The
processing period for the application will be extended as necessary to
review the change.
(2) Changes occurring after permit issuance--(i) Changes other than
in the manner and amount of harvesting. The owner or operator of a
vessel that has been issued a harvesting permit must report to the
Assistant Administrator in writing any change in previously submitted
information other than a proposed change in the location, manner, or
amount of harvesting within 15 days of the change. Based on such
reported information, the Assistant Administrator may revise the permit
effective upon notification to the permit holder. As soon as possible,
the vessel owner or operator must revise any
[[Page 35568]]
harvesting vessel certificate evidencing the permit, accordingly.
(ii) Requested changes in the location, manner, or amount of
harvesting. Any changes in the manner or amount of harvesting must be
proposed in writing to the Assistant Administrator and may not be
undertaken unless authorized by the Assistant Administrator through a
permit revision or issuance of a new permit. If a requested change in
the location, manner, or amount of harvesting could significantly
affect the status of any Antarctic marine living resource, the
Assistant Administrator will treat the requested change as an
application for a new permit and so notify the holder.
(i) Additional conditions and restrictions. The Assistant
Administrator may revise the harvesting permit, effective upon
notification to the permit holder, to impose additional conditions and
restrictions on the harvesting vessel as necessary to achieve the
purposes of the Convention or the Act. The permit holder must, as soon
as possible, direct the vessel operator to revise the harvesting vessel
certificate, if any, accordingly.
(j) Revision, suspension, or revocation for violations. A
harvesting permit may be revised, suspended, or revoked if the
harvesting vessel is involved in the commission of any violation of its
permit, the Act, or this subpart. Failure to report a change in the
information contained in an application within 15 days of the change is
a violation of this subpart and voids the application or permit, as
applicable. If a change in vessel ownership is not reported, the
violation is chargeable to the previous owner. Title 15 CFR part 904
governs permit sanctions under this subpart.
Sec. 300.113 Import permits.
(a) General. (1) Any AMLR may be imported into the United States if
its harvest is authorized by an individual permit or a harvesting
permit. The harvesting permit, the harvesting vessel certificate, or
the individual permit, or a copy of any thereof, must accompany the
import. AMLRs harvested by entities not subject to U.S. jurisdiction
and, thus, not harvested under a U.S. issued permit (i.e., a harvesting
permit or an individual permit), also may be imported into the United
States if such harvesting will meet or met the requirements of the Act
and will not or did not violate any conservation measure in force with
respect to the United States under the Convention or the Act or violate
any of the regulations in this subpart, including resource management
measures contained therein. A NMFS issued import permit or copy thereof
must accompany such an import as proof that the foreign harvested
resources met such requirements. Further, the importer is required to
complete and return to the Assistant Administrator, no later than 10
days after the date of the importation, an import ticket reporting the
importation. However, in no event may a marine mammal be imported into
the United States unless authorized and accompanied by an import permit
issued under the Marine Mammal Protection Act and/or the Endangered
Species Act.
(2) A permit issued under this section does not authorize the
harvest of any AMLRs.
(b) Application. Application forms for import permits are available
from the Assistant Administrator (Attn: CCAMLR permits). A fully
completed and accurate application must be submitted for each import
permit requested at least 30 days before the anticipated date of the
importation.
(c) Issuance. The Assistant Administrator may issue an import
permit if the Assistant Administrator determines that the importation
meets the requirements of the Act and that the resources were not or
will not be harvested in violation of any conservation measure in force
with respect to the United States or in violation of any regulation in
this subpart. Blank import tickets will be attached to the permit.
Additional blank import tickets are available from the Assistant
Administrator.
(d) Duration. An import permit is valid from its date of issuance
to its date of expiration unless it is revoked or suspended.
(e) Transfer. An import permit is not transferable or assignable.
(f) Changes in information submitted by permit applicants or
holders--(1) Changes in pending applications. Applicants for an import
permit must report in writing to the Assistant Administrator any change
in the information submitted in their import permit application. The
processing period for the application will be extended as necessary to
review the change.
(2) Changes occurring after permit issuance. Any entity issued an
import permit must report in writing to the Assistant Administrator any
changes in previously submitted information. Any changes that would not
result in a change in the importation authorized by the permit must be
reported on the import ticket required to be submitted to the Assistant
Administrator no later than 10 days after the date of importation. Any
changes that would result in a change in the importation authorized by
the permit, such as country of origin, type and quantity of the
resource to be imported, and Convention statistical subarea from which
the resource was harvested, must be proposed in writing to the
Assistant Administrator and may not be undertaken unless authorized by
the Assistant Administrator by a permit revision or new permit.
(g) Revision, suspension, or revocation. An import permit may be
revised, suspended, or revoked based upon information subsequently
reported, effective upon notification to the permit holder. An import
permit may be revised, suspended, or revoked, based upon a violation of
the permit, the Act, or this subpart. Failure to report a change in the
information contained in an import permit application is a violation of
this subpart and voids the application or permit, as applicable. Title
15 CFR part 904 governs permit sanctions under this subpart.
(h) Disposition of resources not accompanied by required
documentation. (1) When AMLRs are imported into the United States
unaccompanied by a permit authorizing import, the importer must either:
(i) Abandon the resources;
(ii) Waive claim to the resources; or
(iii) Place the resources into a bonded warehouse and attempt to
obtain a permit authorizing their importation.
(2) If, within 60 days of such resources being placed into a bonded
warehouse, the District Director of the U.S. Customs Service receives
documentation that import of the resources into the United States is
authorized by a permit, the resources will be allowed entry. If
documentation of a permit is not presented within 60 days, the
importer's claim to the resources will be deemed waived.
(3) When resources are abandoned or claim to them waived, the
resources will be delivered to the Administrator of NOAA, or a
designee, for storage or disposal as authorized by law.
Sec. 300.114 Appointment of a designated representative.
(a) All holders of permits authorizing fishing in subarea 48.3 must
appoint a designated representative in the United States.
(b) The designated representative will be notified of closures
under Sec. 300.111 and must transmit this information to the vessel on
the grounds.
(c) The designated representative may receive catch reports from
the vessel and transmit the reports to NMFS in writing.
[[Page 35569]]
Sec. 300.115 Prohibitions.
In addition to the prohibitions in Sec. 300.4, it is unlawful for
any person to:
(a) Reduce to possession or attempt to reduce to possession any
AMLRs without a permit for such activity as required by Sec. 300.112.
(b) Import into the United States any AMLRs without either a permit
to import those resources as required by Sec. 300.113 or a permit to
harvest those resources as required by Sec. 300.112.
(c) Engage in harvesting or other associated activities in
violation of the provisions of the Convention or in violation of a
conservation measure in force with respect to the United States under
Article IX of the Convention.
(d) Ship, transport, offer for sale, sell, purchase, import, export
or have custody, control or possession of, any AMLR that he or she
knows, or reasonably should have known, was harvested in violation of a
conservation measure in force with respect to the United States under
article IX of the Convention or in violation of any regulation
promulgated under this subpart, without regard to the citizenship of
the person that harvested, or vessel that was used in the harvesting
of, the AMLR.
(e) Refuse to allow any CCAMLR inspector to board a vessel of the
United States or a vessel subject to the jurisdiction of the United
States for the purpose of conducting an inspection authorized by the
Act, this subpart, or any permit issued under the Act.
(f) Refuse to provide appropriate assistance, including access as
necessary to communications equipment, to CCAMLR inspectors.
(g) Refuse to sign a written notification of alleged violations of
Commission measures in effect prepared by a CCAMLR inspector.
(h) Assault, resist, oppose, impede, intimidate, or interfere with
a CCAMLR inspector in the conduct of any boarding or inspection
authorized by the Act, this subpart, or any permit issued under the
Act.
(i) Use any vessel to engage in harvesting after the revocation, or
during the period of suspension, of an applicable permit issued under
the Act.
(j) Fail to identify, falsely identify, fail to properly maintain,
or obscure the identification of a harvesting vessel or its gear as
required by this subpart.
(k) Fish in a closed area.
(l) Trawl with a mesh size in any part of the trawl net smaller
than that allowed for any directed fishing for Antarctic finfishes as
specified in management measures issued pursuant to Sec. 300.111.
(m) Use any means or device that would reduce the size or obstruct
the opening of the trawl meshes specified in management measures issued
pursuant to Sec. 300.111.
(n) Possess fish in violation of the catch limit specified in
management measures issued pursuant to Sec. 300.111.
(o) Discard netting or other substances in the Convention Area in
violation of Sec. 300.109.
(p) Violate or attempt to violate any provision of this subpart,
the Act, any other regulation promulgated under the Act or any permit
issued under the Act.
Sec. 300.116 Facilitation of enforcement and inspection.
In addition to the facilitation of enforcement provisions of
Sec. 300.5, the following requirements apply to this subpart.
(a) Access and records. (1) The owners and operator of each
harvesting vessel must provide authorized officers and CCAMLR
inspectors access to all spaces where work is conducted or business
papers and records are prepared or stored, including but not limited to
personal quarters and areas within personal quarters. If inspection of
a particular area would interfere with specific on-going scientific
research, and if the operator of the harvesting vessel makes such
assertion and produces an individual permit that covers that specific
research, the authorized officer or CCAMLR inspector will not disturb
the area, but will record the information pertaining to the denial of
access.
(2) The owner and operator of each harvesting vessel must provide
to authorized officers and CCAMLR inspectors all records and documents
pertaining to the harvesting activities of the vessel, including but
not limited to production records, fishing logs, navigation logs,
transfer records, product receipts, cargo stowage plans or records,
draft or displacement calculations, customs documents or records, and
an accurate hold plan reflecting the current structure of the vessel's
storage and factory spaces.
(3) Before leaving vessels that have been inspected, the CCAMLR
inspector will give the master of the vessel a Certificate of
Inspection and a written notification of any alleged violations of
Commission measures in effect and will afford the master the
opportunity to comment on it. The ship's master must sign the
notification to acknowledge receipt and the opportunity to comment on
it.
(b) Reports by non-inspectors. All scientists, fishermen, and other
non-inspectors present in the Convention area and subject to the
jurisdiction of the United States are encouraged to report any
violation of Commission conservation and management measures observed
in the Convention area to the Office of Ocean Affairs (CCAMLR
Violations), Department of State, Room 5801, Washington, DC 20520.
(c) Storage of AMLRs. The operator of each harvesting vessel
storing AMLRs in a storage space on board the vessel must ensure that
non-resource items are neither stowed beneath nor covered by resource
items, unless required to maintain the stability and safety of the
vessel. Non-resource items include, but are not limited to, portable
conveyors, exhaust fans, ladders, nets, fuel bladders, extra bin
boards, or other moveable non-resource items. These non-resource items
may be in a resource storage space when necessary for the safety of the
vessel or crew or for the storage of the items. Lumber, bin boards, or
other dunnage may be used for shoring or bracing of product to ensure
the safety of crew and to prevent shifting of cargo within the space.
Sec. 300.117 Penalties.
Any person or harvesting vessel found to be in violation of the
Act, this subpart, or any permit issued under this subpart will be
subject to the civil and criminal penalty provisions and forfeiture
provisions prescribed in the Act, 15 CFR part 904, and other applicable
laws.
BILLING CODE 3510-225571-P
[[Page 35570]]
Figure 1 to Subpart G--Boundaries of the Statistical Reporting Area
in the Southern Ocean
[GRAPHIC] [TIFF OMITTED] TR05JY96.006
[[Page 35571]]
Figure 2 to Subpart G--The Use of Streamer Lines to Minimize the
Incidental Mortality of Seabirds in the Course of Longline Fishing
or Longline Fishing Research Operations in the Convention Area
[GRAPHIC] [TIFF OMITTED] TR05JY96.007
BILLING CODE 3510-22-C
[[Page 35572]]
Subpart H--Vessels of the United States Fishing in Colombian Treaty
Waters
Authority: 16 U.S.C. 1801 et seq.
Sec. 300.120 Purpose.
This subpart implements fishery conservation and management
measures as provided in fishery agreements pursuant to the Treaty
Between the Government of the United States of America and the
Government of the Republic of Colombia Concerning the Status of Quita
Sueno, Roncador and Serrana (TIAS 10120) (Treaty).
Sec. 300.121 Definitions.
In addition to the terms defined in Sec. 300.2, the Magnuson Act,
and Sec. 600.10 of this title, and in the Treaty, the terms used in
this subpart have the following meanings. If a term is defined
differently in Sec. 300.2, the Magnuson Act, or the Treaty, the
definition in this section shall apply.
Conch means Strombus gigas.
Factory vessel means a vessel that processes, transforms, or
packages aquatic biological resources on board.
Lobster means one or both of the following:
(1) Smoothtail lobster, Panulirus laevicauda.
(2) Spiny lobster, Panulirus argus.
Regional Director means the Director, Southeast Region, or a
designee.
Science and Research Director means the Director, Southeast
Fisheries Science Center.
Treaty waters means the waters of one or more of the following:
(1) Quita Sueno, enclosed by latitudes 13 deg.55'N. and
14 deg.43'N. between longitudes 80 deg.55'W. and 81 deg.28'W.
(2) Serrana, enclosed by arcs 12 nautical miles from the low water
line of the cays and islands in the general area of 14 deg.22'N. lat.,
80 deg.20'W. long.
(3) Roncador, enclosed by arcs 12 nautical miles from the low water
line of Roncador Cay, in approximate position 13 deg.35'N. lat.,
80 deg.05'W. long.
Sec. 300.122 Relation to other laws.
(a) The relation of this subpart to other laws is set forth in
Sec. 600.705 of this title and paragraph (b) of this section.
Particular note should be made to the reference in Sec. 600.705 to the
applicability of title 46 U.S.C., under which a Certificate of
Documentation is invalid when the vessel is placed under the command of
a person who is not a citizen of the United States.
(b) Minimum size limitations for certain species, such as reef fish
in the Gulf of Mexico, may apply to vessels transiting the EEZ with
such species aboard.
Sec. 300.123 Certificates and permits.
(a) Applicability. An owner of a vessel of the United States that
fishes in treaty waters is required to obtain an annual certificate
issued by the Republic of Colombia and an annual vessel permit issued
by the Regional Director.
(b) Application for certificate/permit. (1) An application for a
permit must be submitted and signed by the vessel's owner. An
application may be submitted at any time, but should be submitted to
the Regional Director not less than 90 days in advance of its need.
Applications for the ensuing calendar year should be submitted to the
Regional Director by October 1.
(2) An applicant must provide the following:
(i) A copy of the vessel's valid USCG certificate of documentation
or, if not documented, a copy of its valid state registration
certificate.
(ii) Vessel name and official number.
(iii) Name, address, telephone number, and other identifying
information of the vessel owner or, if the owner is a corporation or
partnership, of the responsible corporate officer or general partner.
(iv) Principal port of landing of fish taken from treaty waters.
(v) Type of fishing to be conducted in treaty waters.
(vi) Any other information concerning the vessel, gear
characteristics, principal fisheries engaged in, or fishing areas, as
specified on the application form.
(vii) Any other information that may be necessary for the issuance
or administration of the permit, as specified on the application form.
(c) Issuance. (1) The Regional Director will request a certificate
from the Republic of Colombia if:
(i) The application is complete.
(ii) The applicant has complied with all applicable reporting
requirements of Sec. 300.124 during the year immediately preceding the
application.
(2) Upon receipt of an incomplete application, or an application
from a person who has not complied with all applicable reporting
requirements of Sec. 300.124 during the year immediately preceding the
application, the Regional Director will notify the applicant of the
deficiency. If the applicant fails to correct the deficiency within 30
days of the Regional Director's notification, the application will be
considered abandoned.
(3) The Regional Director will issue a permit as soon as the
certificate is received from the Republic of Colombia.
(d) Duration. A certificate and permit are valid for the calendar
year for which they are issued, unless the permit is revoked,
suspended, or modified under subpart D of 15 CFR part 904.
(e) Transfer. A certificate and permit issued under this section
are not transferable or assignable. They are valid only for the fishing
vessel and owner for which they are issued.
(f) Display. A certificate and permit issued under this section
must be carried aboard the fishing vessel while it is in treaty waters.
The operator of a fishing vessel must present the certificate and
permit for inspection upon request of an authorized officer or an
enforcement officer of the Republic of Colombia.
(g) Sanctions and denials. Procedures governing enforcement-related
permit sanctions and denials are found at subpart D of 15 CFR part 904.
(h) Alteration. A certificate or permit that is altered, erased, or
mutilated is invalid.
(i) Replacement. A replacement certificate or permit may be issued
upon request. Such request must clearly state the reason for a
replacement certificate or permit.
(j) Change in application information. The owner of a vessel with a
permit must notify the Regional Director within 30 days after any
change in the application information required by paragraph (b)(2) of
this section. The permit is void if any change in the information is
not reported within 30 days.
Sec. 300.124 Recordkeeping and reporting.
(a) Arrival and departure reports. The operator of each vessel of
the United States for which a certificate and permit have been issued
under Sec. 300.123 must report by radio to the Port Captain, San Andres
Island, voice radio call sign ``Capitania de San Andres,'' the vessel's
arrival in and departure from treaty waters. Radio reports must be made
on 8222.0 kHz or 8276.5 kHz between 8:00 a.m. and 12 noon, local time
(1300-1700, Greenwich mean time) Monday through Friday.
(b) Catch and effort reports. Each vessel of the United States must
report its catch and effort on each trip into treaty waters to the
Science and Research Director on a form available from the Science and
Research Director. These forms must be submitted to the Science and
Research Director so as to be received no later than 7 days after the
end of each fishing trip.
Sec. 300.125 Vessel identification.
(a) Official number. A vessel with a permit issued pursuant to
Sec. 300.123, when in treaty waters, must display its official number
on the port and starboard sides of the deckhouse or hull,
[[Page 35573]]
and on an appropriate weather deck, so as to be clearly visible from an
enforcement vessel or aircraft. The official number must be permanently
affixed to or painted on the vessel and must be in block arabic
numerals in contrasting color to the background at least 18 inches
(45.7 cm) in height for fishing vessels over 65 ft (19.8 m) in length,
and at least 10 inches (25.4 cm) in height for all other vessel.
(b) Duties of operator. The operator of each fishing vessel must--
(1) Keep the official number clearly legible and in good repair.
(2) Ensure that no part of the fishing vessel, its rigging, fishing
gear, or any other material aboard obstructs the view of the official
number from an enforcement vessel or aircraft.
Sec. 300.126 Prohibitions.
In addition to the general prohibitions specified in Sec. 600.725
of this title and the prohibited acts specified in Sec. 300.4, it is
unlawful for any person to do any of the following:
(a) Fish in treaty waters without the certificate and permit
aboard, or fail to display the certificate and permit, as specified in
Sec. 300.123(a) and (f).
(b) Fail to notify the Regional Director of a change in application
information, as specified in Sec. 300.123(j).
(c) Fail to report a vessel's arrival in and departure from treaty
waters, as required by Sec. 300.124(a).
(d) Falsify or fail to display and maintain vessel identification,
as required by Sec. 300.125.
(e) Fail to comply immediately with instructions and signals issued
by an enforcement officer of the Republic of Colombia, as specified in
Sec. 300.127.
(f) Operate a factory vessel in treaty waters, as specified in
Sec. 300.130(a).
(g) Use a monofilament gillnet in treaty waters, as specified in
Sec. 300.130(b).
(h) Use autonomous or semi-autonomous diving equipment in treaty
waters, as specified in Sec. 300.130(c).
(i) Use or possess in treaty waters a lobster trap or fish trap
without a degradable panel, as specified in Sec. 300.130(d).
(j) Possess conch smaller than the minimum size limit, as specified
in Sec. 300.131(a).
(k) Fish for or possess conch in the closed area or during the
closed season, as specified in Sec. 300.131(b) and (c).
(l) Retain on board a berried lobster or strip eggs from or
otherwise molest a berried lobster, as specified in Sec. 300.132(a).
(m) Possess a lobster smaller than the minimum size, as specified
in Sec. 300.132(b).
(n) Fail to return immediately to the water unharmed a berried or
undersized lobster, as specified in Sec. 300.132(a) and (b).
Sec. 300.127 Facilitation of enforcement.
(a) The provisions of Sec. 600.730 of this title and paragraph (b)
of this section apply to vessels of the United States fishing in treaty
waters.
(b) The operator of, or any other person aboard, any vessel of the
United States fishing in treaty waters must immediately comply with
instructions and signals issued by an enforcement officer of the
Republic of Colombia to stop the vessel and with instructions to
facilitate safe boarding and inspection of the vessel, its gear,
equipment, fishing record, and catch for purposes of enforcing this
subpart.
Sec. 300.128 Penalties.
Any person committing or fishing vessel used in the commission of a
violation of the Magnuson Act or any regulation issued under the
Magnuson Act, is subject to the civil and criminal penalty provisions
and civil forfeiture provisions of the Magnuson Act, to part 600 of
this title, to 15 CFR part 904, and to other applicable law. In
addition, Colombian authorities may require a vessel involved in a
violation of this subpart to leave treaty waters.
Sec. 300.129 Fishing year.
The fishing year for fishing in treaty waters begins on January 1
and ends on December 31.
Sec. 300.130 Vessel and gear restrictions.
(a) Factory vessels. Factory vessels are prohibited from operating
in treaty waters.
(b) Monofilament gillnets. A monofilament gillnet made from nylon
or similar synthetic material are prohibited from being used in treaty
waters.
(c) Tanks and air hoses. Autonomous or semiautonomous diving
equipment (tanks or air hoses) are prohibited from being used to take
aquatic biological resources in treaty waters.
(d) Trap requirements. A lobster trap or fish trap used or
possessed in treaty waters that is constructed of material other than
wood must have an escape panel located in the upper half of the sides
or on top of the trap that, when removed, will leave an opening no
smaller than the throat or entrance of the trap. Such escape panel must
be constructed of or attached to the trap with wood, cotton, or other
degradable material.
(e) Poisons and explosives. [Reserved]
Sec. 300.131 Conch harvest limitations.
(a) Size limit. The minimum size limit for possession of conch in
or from treaty waters is 7.94 oz (225 g) for an uncleaned meat and 3.53
oz (100 g) for a cleaned meat.
(b) Closed area. The treaty waters of Quita Sueno are closed to the
harvest or possession of conch.
(c) Closed season. During the period July 1 through September 30 of
each year, the treaty waters of Serrana and Roncador are closed to the
harvest or possession of conch.
Sec. 300.132 Lobster harvest limitations.
(a) Berried lobsters. A berried (egg-bearing) lobster in treaty
waters may not be retained on board. A berried lobster must be returned
immediately to the water unharmed. A berried lobster may not be
stripped, scraped, shaved, clipped, or in any other manner molested to
remove the eggs.
(b) Size limit. The minimum size limit for possession of lobster in
or from treaty waters is 5.5 inches (13.97 cm), tail length. Tail
length means the measurement, with the tail in a straight, flat
position, from the anterior upper edge of the first abdominal (tail)
segment to the tip of the closed tail. A lobster smaller than the
minimum size limit must be returned immediately to the water unharmed.
Subpart I--United States-Canada Fisheries Enforcement
Authority: 16 U.S.C. 1801 et seq.
Sec. 300.140 Purpose and scope.
This subpart implements the Agreement Between the Government of the
United States of America and the Government of Canada on Fisheries
Enforcement executed at Ottawa, Canada, on September 26, 1990
(Agreement), allowing each party to the Agreement to take appropriate
measures, consistent with international law, to prevent its nationals,
residents and vessels from violating those national fisheries laws and
regulations of the other party. This subpart applies, except where
otherwise specified in this subpart, to all persons and all places (on
water and on land) subject to the jurisdiction of the United States
under the Magnuson Act. This includes, but is not limited to,
activities of nationals, residents and vessels of the United States
(including the owners and operators of such vessels) within waters
subject to the fisheries jurisdiction of Canada as defined in this
subpart, as well as on the high seas and in waters subject to the
fisheries jurisdiction of the United States.
[[Page 35574]]
Sec. 300.141 Definitions.
In addition to the terms defined in Sec. 300.2 and those in the
Magnuson Act and the Agreement, the terms used in this subpart have the
following meanings. If a term is defined differently in Sec. 300.2, the
Magnuson Act, or the Agreement, the definition in this section applies.
Applicable Canadian fisheries law means any Canadian law,
regulation or similar provision relating in any manner to fishing by
any fishing vessel other than a Canadian fishing vessel in waters
subject to the fisheries jurisdiction of Canada, including, but not
limited to, any provision relating to stowage of fishing gear by
vessels passing through such waters, and to obstruction or interference
with enforcement of any such law or regulation.
Authorized officer of Canada means any fishery officer, protection
officer, officer of the Royal Canadian Mounted Police, or other
employee authorized by the appropriate authority of any national or
provincial agency of Canada to enforce any applicable Canadian
fisheries law.
Canadian fishing vessel means a fishing vessel:
(1) That is registered or licensed in Canada under the Canada
Shipping Act and is owned by one or more persons each of whom is a
Canadian citizen, a person resident and domiciled in Canada, or a
corporation incorporated under the laws of Canada or of a province,
having its principal place of business in Canada; or
(2) That is not required by the Canada Shipping Act to be
registered or licensed in Canada and is not registered or licensed
elsewhere but is owned as described in paragraph (1) of this
definition.
Waters subject to the fisheries jurisdiction of Canada means the
internal waters, territorial sea, and the zone that Canada has
established, extending 200 nautical miles from its coasts, in which it
exercises sovereign rights for the purpose of exploration,
exploitation, conservation and management of living marine resources,
to the extent recognized by the United States.
Sec. 300.142 Prohibitions.
The prohibitions in this section apply within waters subject to the
fisheries jurisdiction of Canada and during hot pursuit therefrom by an
authorized officer of Canada. It is unlawful for any national or
resident of the United States, or any person on board a vessel of the
United States, or the owner or operator of any such vessel, to do any
of the following:
(a) Engage in fishing in waters subject to the fisheries
jurisdiction of Canada without the express authorization of the
Government of Canada.
(b) Take or retain fish in waters subject to the fisheries
jurisdiction of Canada without the express authorization of the
Government of Canada.
(c) Be on board a fishing vessel in waters subject to the fisheries
jurisdiction of Canada, without stowing all fishing gear on board
either:
(1) Below deck, or in an area where it is not normally used, such
that the gear is not readily available for fishing; or
(2) If the gear cannot readily be moved, in a secured and covered
manner, detached from all towing lines, so that it is rendered unusable
for fishing; unless the vessel has been authorized by the Government of
Canada to fish in the particular location within waters subject to the
fisheries jurisdiction of Canada in which it is operating.
(d) While on board a fishing vessel in waters subject to the
fisheries jurisdiction of Canada, fail to respond to any inquiry from
an authorized officer of Canada regarding the vessel's name, flag
state, location, route or destination, and/or the circumstances under
which the vessel entered such waters.
(e) Violate the Agreement, any applicable Canadian fisheries law,
or the terms or conditions of any permit, license or any other
authorization granted by Canada under any such law.
(f) Fail to comply immediately with any of the enforcement and
boarding procedures specified in Sec. 300.143.
(g) Destroy, stave, or dispose of in any manner, any fish, gear,
cargo or other matter, upon any communication or signal from an
authorized officer of Canada, or upon the approach of such an officer,
enforcement vessel or aircraft, before the officer has had the
opportunity to inspect same, or in contravention of directions from
such an officer.
(h) Refuse to allow an authorized officer of Canada to board a
vessel for the purpose of conducting any inspection, search, seizure,
investigation or arrest in connection with the enforcement of any
applicable Canadian fisheries law.
(i) Assault, resist, oppose, impede, intimidate, threaten,
obstruct, delay, prevent, or interfere, in any manner, with an
authorized officer of Canada in the conduct of any boarding,
inspection, search, seizure, investigation or arrest in connection with
the enforcement of any applicable Canadian fisheries law.
(j) Make any false statement, oral or written, to an authorized
officer of Canada in response to any inquiry by that officer in
connection with enforcement of any applicable Canadian fisheries law.
(k) Falsify, cover, or otherwise obscure, the name, home port,
official number (if any), or any other similar marking or
identification of any fishing vessel subject to this subpart such that
the vessel cannot be readily identified from an enforcement vessel or
aircraft.
(l) Attempt to do any of the foregoing.
Sec. 300.143 Facilitation of enforcement.
(a) General. Persons aboard fishing vessels subject to this subpart
must immediately comply with instructions and/or signals issued by an
authorized officer of the United States or Canada, or by an enforcement
vessel or aircraft, to stop the vessel, and with instructions to
facilitate safe boarding and inspection for the purpose of enforcing
any applicable Canadian fisheries law, the Agreement, or this subpart.
All of the provisions of Sec. 300.5 regarding communications, boarding,
and signals apply to this subpart. For purposes of this subpart,
authorized officer in Sec. 305 means an authorized officer of the
United States or Canada. (See paragraph (b) of this section for
specific requirements for complying with signals and instructions
issued by an authorized officer of Canada.)
(b) Canadian signals. In addition to signals set forth in
Sec. 300.5, persons aboard fishing vessels subject to this subpart must
immediately comply with the following signals by an authorized officer
of Canada.
(1) Authorized officers of Canada use the following signals to
require fishing vessels to stop or heave to:
(i) The hoisting of a rectangular flag, known as the International
Code Flag ``L'', which is divided vertically and horizontally into
quarters and colored so that:
(A) The upper quarter next to the staff and the lower quarter next
to the fly are yellow; and
(B) The lower quarter next to the staff and the upper quarter next
to the fly are black;
(ii) The flashing of a light to indicate the International Morse
Code letter ``L'', consisting of one short flash, followed by one long
flash, followed by two short flashes (. -- . .); or
(iii) The sounding of a horn or whistle to indicate the
International Morse Code letter ``L'', consisting of one short blast,
followed by one long blast, followed by two short blasts (. -- . .).
[[Page 35575]]
(2) Authorized officers of Canada use the following signals to
require a fishing vessel to prepare to be boarded:
(i) The hoisting of flags representing the International Code Flag
``SQ3''; or
(ii) The flashing of a light, or the sounding of a horn or whistle,
to indicate the International Morse Code Signal ``SQ3'' (. . . -- -- .
-- . . . -- --).
Sec. 300.144 Penalties and sanctions.
Any person, any fishing vessel, or the owner or operator of any
such vessel, who violates any provision of the Agreement or this
subpart, is subject to the civil and criminal fines, penalties,
forfeitures, permit sanctions, or other sanctions provided in the
Magnuson Act, part 600 of this title, 15 CFR part 904 (Civil
Procedures), and any other applicable law or regulation.
Subpart J--U.S. Nationals Fishing in Russian Fisheries
Authority: 16 U.S.C. 1801 et seq.
Sec. 300.150 Purpose.
This subpart regulates U.S. nationals fishing in the Russian
fisheries and implements the Agreement between the Government of the
United States of America and the Government of the Union of Soviet
Socialist Republics on Mutual Fisheries Relations, signed May 31, 1988.
Sec. 300.151 Definitions.
In addition to the terms defined in Sec. 300.2 and those in the
Magnuson Act, the terms used in this subpart have the following
meanings. If a term is defined differently in Sec. 300.2 or the
Magnuson Act, the definition in this section shall apply.
Affiliates means two persons (including individuals and entities)
related in such a way that--
(1) One indirectly or directly controls or has power to control the
other; or
(2) A third party controls or has power to control both. Indicia of
control include, but are not limited to, interlocking management or
ownership, identity of interests among family members, shared
facilities and equipment, common use of employees, or a reorganized
entity having the same or similar management, ownership, or employees
as a former entity.
Agreement means the Agreement Between the Government of the United
States of America and the Government of the Union of Soviet Socialist
Republics on Mutual Fisheries Relations, signed May 31, 1988.
Embassy of the Russian Federation means the Fisheries Attache of
the embassy located in Washington, D.C.
Fishery resource means any fish, any stock of fish, any species of
fish, and any habitat of fish.
Fishing or to fish means any activity that does, is intended to, or
can reasonably be expected to result in catching or removing from the
water fishery resources. Fishing also includes the acts of scouting,
processing, and support.
Operator, with respect to any vessel, means the master or other
individual on board and in charge of either the vessel, the vessel's
fishing operation, or both.
Owner, with respect to any vessel, means any person who owns that
vessel in whole or in part, whether or not it is leased or chartered to
or managed by another person, or any charterer, whether bareboat, time,
or voyage, and any person who acts in the capacity of a charterer, or
manager, including but not limited to parties to a management
agreement, operating agreement, or any similar agreement that bestows
control over the destination, function, or operation of the vessel, any
officer, director, manager, controlling shareholder of any entity
described in this definition, any agent designated as such by any
person described in this definition, and any affiliate of any person
described in this definition.
Processing means any operation by a vessel to receive fish from a
fishing vessel and/or the preparation of fish, including but not
limited to cleaning, cooking, canning, smoking, salting, drying, or
freezing, either on the vessel's behalf or to assist another vessel.
Regional Director means Director, Alaska Region, or a designee.
Relevant laws and regulations of the Russian Federation means those
Russian laws and regulations that concern fishing for fishery resources
over which Russia exercises sovereign rights or fishery management
authority.
Russian and Federation mean the Russian Federation, its government,
or any organ or entity of its government.
Russian continental shelf or continental shelf of Russia means the
seabed and subsoil of the submarine areas over which, consistent with
international law, Russia exercises sovereign rights.
Russian Economic Zone or Russian EZ means a zone of waters off the
coast of Russia beyond and adjacent to the Russian territorial sea
extending a distance of up to 200 nautical miles from the baseline from
which the territorial sea is measured, within which, consistent with
international law, Russia has sovereign rights over the fishery
resources.
Russian Federation or Russia means the governing entity that
succeeded the Union of Soviet Socialist Republics, and that is the
successor party to the Agreement of May 31, 1988.
Russian fisheries, Russian fishery resources, or fishery resources
over which Russia exercises sovereign rights or fishery management
authority means fishery resources within the Russian EZ, fishery
resources of the Russian continental shelf, and anadromous species that
originate in the waters of Russia, whether found in the Russian EZ or
beyond any exclusive economic zone or its equivalent.
Scouting means any operation by a vessel exploring (on behalf of
the vessel or another vessel) for the presence of fish by any means
that do not involve the catching of fish.
Support means any operation by a vessel assisting fishing by
another vessel, including--
(1) Transferring or transporting fish or fish products; or
(2) Supplying a fishing vessel with water, fuel, provisions,
fishing equipment, fish processing equipment, or other supplies.
Sec. 300.152 Procedures.
(a) Application for annual permits. U.S. vessel owners and
operators must have a valid permit issued by the Russian Federation
obtained pursuant to a complete application submitted through NMFS
before fishing in the Russian EZ or for Russian fishery resources.
Application forms and copies of applicable laws and regulations of the
Russian Federation may be obtained from NMFS Headquarters.
(b) Other application information. Applications for motherships,
processing or transport vessels must identify the type of fishing gear
to be employed or the fishing quotas if the vessel has received or is
requesting a quota. To facilitate processing, NMFS requests that permit
applications for more than 10 vessels be grouped by type and fishing
area, and provide the name, address, telephone, and FAX number(s) of an
individual who will be the official point of contact for an
application.
(c) Review of Applications. NMFS will review each application, and,
if it is complete, forward it to the Department of State for submission
to the competent authorities of the Russian Federation. NMFS will
notify the permit applicant when the permit is submitted to the Russian
Federation. NMFS will return incomplete applications to the applicant.
(d) Direct Communication. U.S. applicants may communicate directly
with the Russian Federation with regard to the status of their
applications or permits and are encouraged to do so.
[[Page 35576]]
Owners and operators should make direct contact and work with Russian
industry and government authorities.
Sec. 300.153 Permit issuance.
(a) Acceptance. Once the Department of State has accepted the
conditions and restrictions proposed by the Russian Federation and all
fees have been paid, the competent authorities of the Russian
Federation will approve the application. The Russian Federation will
issue a permit to the vessel owner for each fishing vessel for which it
has approved an application. That vessel will thereupon be authorized
by the Russian Federation to fish in accordance with the Agreement and
the terms and conditions set forth in the permit. The vessel owner is
prohibited from transferring the permit to any other vessel or person.
Any such transfer, or the sale or other transfer of the vessel, will
immediately invalidate the permit. The vessel owner must notify NMFS of
any change in the permit application information submitted to NMFS
Headquarters under Sec. 300.152 within 7 calendar days of the change.
(b) Copies. The vessel owner and operator must mail a copy of each
permit and any conditions and restrictions issued for that vessel by
the Russian Federation within 7 calendar days of its receipt to NMFS
Headquarters.
(c) Validity. Any permit issued by the Russian Federation with
respect to a vessel subject to this subpart will be deemed to be a
valid permit only if:
(1) A completed permit application has been forwarded to the
competent authorities of the Russian Federation as provided in
Sec. 300.152(b)(1).
(2) Such application has been approved and a permit issued by the
competent authorities of the Russian Federation as provided in
paragraph (a) of this section.
(3) The U.S. Department of State has notified the competent
authorities of the Russian Federation that it has accepted the
conditions and restrictions as provided in paragraph (a) of this
section. The permit will be rendered invalid by: The transfer or sale
of the permit specified in paragraph (a) of this section; the failure
to submit to NMFS any changes in permit application information as
required by paragraph (a) of this section; failure to submit to NMFS
any permit copy required by paragraph (b) of this section or any other
information or report required by any other provision of this subpart;
or the failure to pay required permit fees.
(d) Russian-imposed sanctions. (1) The Russian Federation will
impose appropriate fines, penalties, or forfeitures in accordance with
its laws, for violations of its relevant laws or regulations.
(2) In the case of arrest and seizure of a U.S. vessel by Russian
authorities, notification will be given promptly through diplomatic
channels informing the United States of the facts and actions taken.
(3) The Russian Federation will release U.S. vessels and their
crews promptly, subject to the posting of reasonable bond or other
security.
(4) The sanctions for violations of limitations or restrictions on
fishing operations will be appropriate fines, penalties, forfeitures,
or revocations or suspensions of fishing privileges.
Sec. 300.154 Recordkeeping and reporting.
(a) General. The owner and operator of a vessel subject to this
subpart are responsible for complying with all recordkeeping and
reporting requirements in this part in a timely and accurate manner.
Reports and records required by this subpart must be in English, in the
formats specified, and unless otherwise specified, based on Greenwich
mean time (GMT).
(b) Vessel permit abstract report. (1) The owner and operator of a
vessel subject to this subpart must submit to NMFS Headquarters a
permit abstract report containing the following information:
(i) Vessel name.
(ii) Russian Federation permit number.
(iii) Duration of permit (e.g., 1/1/91-12/31/91).
(iv) Authorized areas of fishing operations in geographic
coordinates.
(v) Authorized catch quota in tons.
(vi) Authorized fishing gear.
(vii) Type of permit (e.g., catcher).
(2) The report must be telefaxed to (301) 713-0596 within 5
calendar days of receipt of the Russian permit.
(c) Activity reports. The owner and operator of a vessel subject to
this subpart must submit to the Regional Director by telefax to (907)
586-7313, the following reports:
(1) Depart Report (Action code DEPART). At least 24 hours before
the vessel departs from the EEZ for the Russian EZ, NMFS must receive
the following information:
(i) The date (month and day), and time (hour and minute GMT), and
position (latitude and longitude to the nearest degree and minute), at
which the vessel will depart the EEZ for the Russian EZ.
(ii) The weight in metric tons (to the nearest hundredth of a
metric ton) of all fish and fish product (listed by species and product
codes) on board the vessel at the time it will depart the EEZ.
(2) Return Report (Action code RETURN). At least 24 hours before a
vessel that has been in the Russian EZ enters the EEZ, NMFS must
receive the following information:
(i) The date (month and day), time (hour and minute GMT), and
position (latitude and longitude to the nearest degree and minute), at
which the vessel will enter the EEZ.
(ii) The weight in metric tons (to the nearest hundredth of a
metric ton) of all fish and fish products (listed by species and
product codes) on board the vessel at the time it will enter the EEZ,
and the areas (Russian EZ, U.S. EEZ, or other) in which such fish
products were harvested or received.
(3) All reports must specify: The appropriate action code
(``DEPART'' or ``RETURN''); the vessel's name and international radio
call sign (IRCS); the sender's name and telephone number, and FAX,
TELEX, and COMSAT numbers; the date (month and day) and time (hour and
minute GMT) that the report is submitted to NMFS; and the intended date
and U.S. port of landing. A list of species and product codes may be
obtained from the Regional Director.
(d) Recordkeeping. The owner and operator of a vessel subject to
this subpart must retain all copies of all reports required by this
subpart on board the vessel for 1 year after the end of the calendar
year in which the report was generated. The owner and operator must
retain and make such records available for inspection upon the request
of an authorized officer at any time for 3 years after the end of the
calendar year in which the report was generated, whether or not such
records on board the vessel.
Sec. 300.155 Requirements.
(a) Compliance with permit requirements. (1) U.S. nationals and
vessels subject to this subpart must have a valid permit, as specified
in Sec. 300.153(c) in order to fish for Russian fishery resources.
(2) U.S. nationals and vessels subject to this subpart that are
fishing for Russian fishery resources must comply with all provisions,
conditions, and restrictions of any applicable permit.
(b) Compliance with Russian law. U.S. nationals and vessels fishing
for Russian fishery resources must comply with the relevant laws and
regulations of the Russian Federation.
(c) Protection of marine mammals. U.S. nationals and vessels
fishing for Russian fishery resources may not harass, hunt, capture, or
kill any marine mammal within the Russian EZ, attempt to do so, except
as may be provided for by an international agreement to which
[[Page 35577]]
both the United States and Russia are parties, or in accordance with
specific authorization and controls established by the Russian
Federation. The provisions of the Marine Mammal Protection Act (MMPA),
16 U.S.C. 1361 et seq. also apply to any person or vessel subject to
the jurisdiction of the United States while in the Russian EZ, and it
shall not be a defense to any violation of the MMPA that the person or
vessel was acting in accordance with any permit or authorization issued
by the Russian Federation.
(d) Cooperation with enforcement procedures. (1) The operator of,
or any person aboard, any U.S. vessel subject to this subpart must
immediately comply with instructions and signals issued by an
authorized officer of the Russian Federation to stop the vessel and
with instructions to facilitate safe boarding and inspection of the
vessel, its gear, equipment, fishing record, and catch for purposes of
enforcing the relevant laws and regulations of Russia.
(2) The operator of, and any person aboard, any U.S. vessel subject
to this subpart, must comply with directions issued by authorized
officers of the Russian Federation in connection with the seizure of
the vessel for violation of the relevant laws or regulations of the
Russian Federation.
(3) U.S. nationals and vessels subject to this subpart must pay all
fines and penalties and comply with forfeiture sanctions imposed by the
Russian Federation for violations of its relevant laws and regulations.
(4) The operator of, and any person aboard, any U.S. vessel subject
to this subpart must immediately comply with instructions and signals
issued by an authorized officer of the United States to stop the vessel
and with instructions to facilitate safe boarding and inspection of the
vessel, its gear, equipment, fishing records, and catch for purposes of
enforcing the Magnuson Act, the Agreement, and this subpart.
(e) Compliance with observer requirements. The owner of, operator
of, and any person aboard, any U.S. vessel fishing in the Russian EZ or
for Russian fishery resources to which a Russian observer is assigned
must--
(1) Allow and facilitate, on request, boarding of a U.S. vessel by
the observer.
(2) Provide to the observer, at no cost to the observer or the
Russian Federation, the courtesies and accommodations provided to
ship's officers.
(3) Cooperate with the observer in the conduct of his or her
official duties.
(4) Reimburse the Russian Federation for the costs of providing an
observer aboard the vessel.
Sec. 300.156 Prohibited acts.
In addition to the prohibited acts specified at Sec. 300.4, it
shall be unlawful for any U.S. national or vessel, or the owner or
operator of any such vessel:
(a) To fish for Russian fishery resources without a valid permit
issued by the competent authorities of the Russian Federation.
(b) To violate the provisions, conditions, and restrictions of an
applicable permit.
(c) To violate the relevant laws and regulations of Russia.
(d) To harass, hunt, capture, or kill any marine mammal within the
Russian EZ, or while fishing for Russian fishery resources, except as
provided in Sec. 300.155 (c).
(e) To fail to comply immediately with enforcement and boarding
procedures specified in Sec. 300.155 (d).
(f) To refuse to allow an authorized officer of the Russian
Federation to board and inspect a vessel subject to this subpart for
purposes of conducting any search, inspection, arrest, or seizure in
connection with the enforcement of the relevant laws and regulations of
the Russian Federation.
(g) To assault, resist, oppose, impede, intimidate, threaten, or
interfere with, in any manner, any authorized officer of the Russian
Federation in the conduct of any search, inspection, seizure, or arrest
in connection with enforcement of the relevant laws and regulations of
the Russian Federation.
(h) To fail to pay fines or penalties or comply with forfeitures
imposed for a violation of the relevant laws and regulations of the
Russian Federation.
(i) To refuse or fail to allow a Russian observer to board a vessel
subject to this subpart while fishing in the Russian EZ, or for Russian
fishery resources.
(j) To fail to provide to a Russian observer aboard a vessel
fishing in the Russian EZ or for Russian fishery resources, the
courtesies and accommodations provided to ship's officers.
(k) To assault, resist, oppose, impede, intimidate, threaten,
interfere with, harass, or fail to cooperate, in any manner, with a
Russian observer placed aboard a vessel subject to this subpart.
(l) To fail to reimburse the Russian Federation for the costs
incurred in the utilization of Russian observers placed aboard such
vessel.
(m) To possess, have custody or control of, ship, transport, offer
for sale, sell, purchase, transship, import, export, or traffic in any
manner, any fish or parts thereof taken or retained, landed, purchased,
sold, traded, acquired, or possessed, in any manner, in violation of
the relevant laws and regulations of the Russian Federation, the
Magnuson Act, or this subpart.
(n) To enter the Russian EZ to fish unless a permit application has
been submitted through NMFS to the competent authorities of the Russian
Federation by the U.S. Department of State for such vessel as provided
in this subpart.
(o) To fish for Russian fisheries or to possess fish taken in
Russian fisheries on board a vessel subject to this subpart without a
valid permit or other valid form of authorization issued by the
competent authorities of the Russian Federation on board the vessel.
(p) To falsify, or fail to report to NMFS, any change in the
information contained in a permit application subject to this subpart
within 7 calendar days of such change.
(q) To attempt to do, cause to be done, or aid and abet in doing,
any of the foregoing.
(r) To violate any other provision of this subpart.
Sec. 300.157 Penalties.
In addition to any fine, penalty, or forfeiture imposed by the
Russian Federation, nationals and vessels of the United States
violating the prohibitions of Sec. 300.156 are subject to the fines,
penalties, and forfeitures and the adjudicative procedures provided in
the Magnuson Act, 16 U.S.C. 1858, 1860, 1861, and any other applicable
laws and regulations of the United States.
Subpart K--Transportation and Labeling of Fish or Wildlife
Authority: 16 U.S.C. 3371-3378.
Sec. 300.160 Requirement for marking of containers or packages.
Except as otherwise provided in this subpart, all persons are
prohibited from importing, exporting, or transporting in interstate
commerce any container or package containing any fish or wildlife
(including shellfish) unless each container or package is conspicuously
marked on the outside with both the name and address of the shipper and
consignee and an accurate list of its contents by species and number of
each species.
Sec. 300.161 Alternatives and exceptions.
(a) The requirements of Sec. 300.160 may be met by complying with
one of the following alternatives to the marking requirement:
(1)(i) Conspicuously marking the outside of each container or
package
[[Page 35578]]
containing fish or wildlife with the word ``fish'' or ``wildlife'' as
appropriate for its contents, or with the common name of its contents
by species, and
(ii) Including an invoice, packing list, bill of lading, or similar
document to accompany the shipment that accurately states the name and
address of the shipper and consignee, states the total number of
packages or containers in the shipment, and for each species in the
shipment specifies: The common name that identifies the species
(examples include: chinook (or king) salmon; bluefin tuna; and
whitetail deer); and the number of that species (or other appropriate
measure of quantity such as gross or net weight). The invoice, packing
list, bill of lading, or equivalent document must be securely attached
to the outside of one container or package in the shipment or otherwise
physically accompany the shipment in a manner that makes it readily
accessible for inspection; or
(2) Affixing the shipper's wildlife import/export license number
preceded by ``FWS'' on the outside of each container or package
containing fish or wildlife if the shipper has a valid wildlife import/
export license issued under authority of part 14 of this title. For
each shipment marked in accordance with this paragraph (a)(2), the
records maintained under Sec. 14.93(d) of this title must include a
copy of the invoice, packing list, bill of lading, or other similar
document that accurately states the information required by paragraph
(a)(1)(ii) of this section.
(3) In the case of subcontainers or packages within a larger
packing container, only the outermost container must be marked in
accordance with this section, provided, that for live fish or wildlife
that are packed in subcontainers within a larger packing container, if
the subcontainers are numbered or labeled, the packing list, invoice,
bill of lading, or other similar document, must reflect that number or
label.
(4) A conveyance (truck, plane, boat, etc.) is not considered a
container for purposes of requiring specific marking of the conveyance
itself, provided that:
(i) The fish or wildlife within the conveyance is carried loosely
or is readily identifiable, and is accompanied by the document required
by paragraph (a)(1)(ii) of this section; or
(ii) The fish or wildlife is otherwise packaged and marked in
accordance with this subpart.
(b) The requirements of Sec. 300.160 of chapter III of this title
do not apply to containers or packages containing--
(1) Fox, nutria, rabbit, mink, chinchilla, marten, fisher, muskrat,
and karakul that have been bred and born in captivity, or their
products, if a signed statement certifying that the animals were bred
and born in captivity accompanies the shipping documents;
(2) Fish or shellfish contained in retail consumer packages labeled
pursuant to the Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.; or
(3) Fish or shellfish that are landed by, and offloaded from, a
fishing vessel (whether or not the catch has been carried by the
fishing vessel interstate), as long as the fish or shellfish remain at
the place where first offloaded.
50 CFR Chapter VI
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
5. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 16 U.S.C. 1801 et seq.
6. In Sec. 679.2, paragraph (1) under the definition of ``IFQ
regulatory area'' and the definition for ``IPHC'' are revised to read
as follows:
Sec. 679.2 Definitions.
* * * * *
IFQ regulatory area means:
(1) With respect to IFQ halibut, areas 2C, 3A, 3B, 4A, 4B, 4C, 4D,
or 4E as prescribed in the annual management measures published in the
Federal Register pursuant to Sec. 300.62 of chapter III of this title.
* * * * *
IPHC means International Pacific Halibut Commission (see part 300
of chapter III of this title).
* * * * *
7. In Sec. 679.3, paragraphs (a) and (c) are revised to read as
follows:
Sec. 679.3 Relation to other laws.
(a) Foreign fishing for groundfish. Regulations governing U.S.
nationals fishing in the Russian fisheries are set forth in part 300 of
chapter III of this title.
* * * * *
(c) Halibut. Additional regulations governing the conservation and
management of halibut are set forth in subpart E of part 300 of chapter
III of this title.
* * * * *
8. In Sec. 679.4, paragraph (d)(1) introductory text and (f)(1)(i)
are revised to read as follows:
Sec. 679.4 Permits.
* * * * *
(d) * * * (1) General. In addition to the permit and licensing
requirements prescribed in the annual management measures published in
the Federal Register pursuant to Sec. 300.62 of chapter III of this
title and in the permit requirements of this section, all fishing
vessels that harvest IFQ halibut or IFQ sablefish must have on board:
* * * * *
(f) * * * (1) * * * (i) Applicability. In addition to the permit
and licensing requirements prescribed in the annual management measures
published in the Federal Register pursuant to Sec. 300.62 of chapter
III of this title and paragraphs (b) and (d) of this section, and
except as provided in paragraph (f)(1)(ii) of this section, a processor
of fish from a Research Plan fishery must have a Federal processor
permit issued by the Regional Director.
* * * * *
9. In Sec. 679.5, paragraph (l) introductory text is revised to
read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(l) IFQ recordkeeping and reporting requirements. In addition to
the recordkeeping and reporting requirements in this section and as
prescribed in the annual management measures published in the Federal
Register pursuant to Sec. 300.62 of chapter III of this title, the
following reports are required.
* * * * *
10. In Sec. 679.7, paragraphs (a)(6)(i), (b)(3), (f)(4), and
(f)(11)(i) are revised to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(a) * * *
(6) * * *
(i) Deployment of hook-and-line gear by operators of vessels
fishing for halibut during seasons prescribed in the annual management
measures published in the Federal Register pursuant to Sec. 300.62 of
chapter III of this title.
* * * * *
(b) * * *
(3) Halibut. With respect to halibut caught with hook-and-line gear
deployed from a vessel fishing for groundfish, except for vessels
fishing for halibut as prescribed in the annual management measures
published in the Federal Register pursuant to Sec. 300.62 of chapter
III of this title:
* * * * *
(f) * * *
(4) Except as provided in Sec. 679.5(l)(3), retain IFQ halibut or
IFQ sablefish on a vessel in excess of the total amount of unharvested
IFQ, applicable to the
[[Page 35579]]
vessel category and IFQ regulatory area in which the vessel is
deploying fixed gear, and that is currently held by all IFQ card
holders aboard the vessel, unless the vessel has an observer aboard
under subpart E of this part and maintains the applicable daily fishing
log prescribed in the annual management measures published in the
Federal Register pursuant to Sec. 300.62 of chapter III of this title
and Sec. 679.5.
* * * * *
(11) * * *
(i) Discard of halibut is required as prescribed in the annual
management measures published in the Federal Register pursuant to
Sec. 300.62 of chapter III of this title;
* * * * *
11. In Sec. 679.21, paragraph (b)(1) is revised to read as follows:
Sec. 679.21 Prohibited species bycatch management.
* * * * *
(b) * * * (1) Definition. Prohibited species, for the purpose of
this part, means any of the species of Pacific salmon (Oncorhynchus
spp.), steelhead trout (Oncorhynchus mykiss), halibut, Pacific herring
(Clupea harengus pallasi), king crab, and Tanner crab caught by a
vessel regulated under this part while fishing for groundfish in the
BSAI or GOA, unless retention is authorized by other applicable laws,
including the annual management measures published in the Federal
Register pursuant to Sec. 300.62 of this title.
* * * * *
12. In Sec. 679.23, paragraphs (e)(4)(i) and (f) are revised to
read as follows:
Sec. 679.23 Seasons.
* * * * *
(e) * * *
(4) * * * (i) CDQ halibut. Fishing for CDQ halibut with fixed gear
under an approved CDQ allocation may begin on the effective date of the
allocation, except that CDQ fishing may occur only during the fishing
periods specified in the annual management measures published in the
Federal Register pursuant to Sec. 300.62 of chapter III of this title.
* * * * *
(f) IFQ halibut. The fishing period(s) for IFQ halibut are
established by the IPHC and are specified in the annual management
measures published in the Federal Register pursuant to Sec. 300.62 of
chapter III of this title. Catches of halibut by fixed gear at times
other than during the specified fishing periods must be treated as
prohibited species as prescribed at Sec. 679.21(b).
* * * * * *
13. In Sec. 679.24, the introductory paragraph is revised to read
as follows:
Sec. 679.24 Gear limitations.
Regulations pertaining to vessel and gear markings are set forth in
this section and as prescribed in the annual management measures
published in the Federal Register pursuant to Sec. 300.62 of chapter
III of this title.
* * * * *
14. In Sec. 679.30, paragraph (b)(1)(ii) is revised to read as
follows:
Sec. 679.30 General CDQ regulations.
* * * * *
(b) * * *
(1) * * *
(ii) Allocation request. The allocation of each CDQ species
requested for each subarea or district of the BSAI, as defined at
Sec. 679.2 and for each IPHC regulatory area, as prescribed in the
annual management measures published in the Federal Register pursuant
to Sec. 300.62 of chapter III of this title.
* * * * *
15. In Sec. 679.40, the introductory paragraph is revised to read
as follows:
Sec. 679.40 Sablefish and halibut QS.
The Regional Director shall annually divide the TAC of halibut and
sablefish that is apportioned to the fixed gear fishery pursuant to the
annual management measures published in the Federal Register pursuant
to Sec. 300.62 of chapter III of this title and Sec. 679.20, minus the
CDQ reserve, among qualified halibut and sablefish quota share holders,
respectively.
* * * * *
PART 695--[REMOVED]
16. Under the authority of 16 U.S.C. 1801 et seq., 50 CFR part 695
is removed.
[FR Doc. 96-16723 Filed 7-1-96; 8:45 am]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35310-35381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16666]
[[Page 35309]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 80
Regulation of Fuels and Fuel Additives: Certification Standards for
Deposit Control Gasoline Additives; Final Rule
Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Rules
and Regulations
[[Page 35310]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[AMS-FRL-5528-5]
RIN 2060-AG06
Regulation of Fuels and Fuel Additives: Certification Standards
for Deposit Control Gasoline Additives
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action establishes a certification program for detergent
additives used to control the formation of port fuel injector deposits
(PFID) and intake valve deposits (IVD) in gasoline engines. In
accordance with Clean Air Act section 211(l), an interim detergent
program has been in effect since January 1, 1995, requiring the use of
detergents in virtually all gasoline used in the U.S. This final rule
contains standardized test procedures and performance standards to
ensure that such detergent gasoline will provide an effective level of
protection against PFID and IVD. The regulations include a variety of
certification options and compliance alternatives, affording cost-
effective flexibility to regulated parties.
The effective control of deposits in gasoline engine and fuel
supply systems has been shown to reduce the emission of nitrogen
oxides, hydrocarbons, and carbon monoxide in engine exhaust, while
enhancing fuel economy. Accordingly, the intent of the detergent
certification program is to help achieve the primary public health and
environmental protection goals of the Clean Air Act.
DATES: Effective Date: This rule is effective September 3, 1996.
The information collection requirements in 40 CFR 80.157(f)(5),
80.160(b)(2), 80.164(b)(3), 80.170(f)(5), and 80.173(b)(2) have not
been approved by the Office of Management and Budget (OMB) and will not
be effective until OMB has approved them, and EPA publishes a document
announcing their approval.
The incorporation by reference of certain publications listed in
the regulations are approved by the Director of the Federal Register as
of September 3, 1996.
Compliance Dates: Compliance with the requirements of the detergent
certification program is mandatory for detergent manufacturers,
detergent blenders, and gasoline distributors on July 1, 1997, and on
August 1, 1997 for gasoline retailers and wholesale purchaser-
consumers, and any other party selling or transferring gasoline to the
ultimate consumer.
ADDRESSES: Materials relevant to this final rule are contained in
Public Docket No. A-91-77 at the following address: Air Docket Section
(LE-131), room M-1500, 401 M Street SW., Washington, DC 20460; phone
(202) 260-7548; fax (202) 260-4000. The docket is open for public
inspection from 8:00 a.m. until 5:30 p.m., except on government
holidays. As provided in 40 CFR Part 2, a reasonable fee may be charged
for copying docket materials. Electronic copies of major documents
associated with this rulemaking are available from the EPA internet
site and via dial-up modem on the Office of Air Quality Planning and
Standards (OAQPS) Technology Transfer Network Bulletin Board System
(TTNBBS). Details on how to access these sources are included in
Section X of this preamble.
FOR FURTHER INFORMATION CONTACT: For information related to
qualification of detergent additives for use in complying with gasoline
detergency requirements contact: Jeffrey A. Herzog, U.S. EPA (FED),
Fuels and Energy Division, 2565 Plymouth Road, Ann Arbor, MI 48105;
Telephone: (313) 668-4227, Fax: (313) 741-7869. For information related
to the registration of fuels and fuel additives under 40 CFR Part 79
contact: James W. Caldwell, U.S. EPA (6406J), Fuels and Energy
Division, 401 M Street SW., Washington, DC 20460; Telephone: (202) 233-
9303, Fax: (202) 233-9556. For information related to enforcement
contact: Judith Lubow, U.S. EPA, Office of Enforcement and Compliance
Assurance, Western Field Office, 12345 West Alameda Parkway Suite 214,
Lakewood, CO 80228; Telephone: (303) 969-6483, FAX: (303) 969-6490.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are those involved
with the production, distribution, and sale of gasoline and gasoline
detergent additives. Regulated categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.................... Detergent manufacturers, Detergent
transporters, Gasoline refiners and
importers, Gasoline terminals, Detergent
blenders, Gasoline truckers, and Gasoline
retailers and wholesale purchaser-
consumers.
------------------------------------------------------------------------
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 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 your
organization is regulated by this action, you should carefully examine
the applicability requirements in Sec. 80.161(a), the detergent
certification requirements in Sec. 80.161(b), the program controls and
prohibitions in Sec. 80.168, and other related program requirements in
subpart G, title 40, of the Code of Federal Regulations (CFR). If you
have any questions regarding the applicability of this action to a
particular entity, consult the persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Table of Contents
I. Background
A. Rulemaking History
B. Statutory Provisions and Legal Authority
C. Overview of this Action
D. Applicability
E. Program Start-Up and Compliance Dates
II. Combustion Chamber Deposit Control
A. CCD Impacts on Vehicle Emissions
B. CCD Energy Impacts
C. CCD Interference
D. Unwashed Gum Levels and CCD
E. Other Potential Adverse Side Effects of Detergent Overuse
III. Basic Information Requirements
A. Detergent Additive Information Requirements
1. Compositional Data
2. Minimum Effective Concentration
3. Certification Letter
B. Information Requirements for Fuel Manufacturers
IV. Certification Options
A. Background
B. Single-Tier Certification System
C. Geographic Certification Options
1. National Certification
2. PADD Certification
3. U.S. Territories
4. Certification Sub-Options
a. Nonoxygenated Gasoline Certification Option
b. Oxygenate-Specific Certification Option
c. Premium Grade Certification Option
d. Reformulated Gasoline Certification Option
5. Recertification Requirements
D. Fuel-specific Certification Option
1. General Description
2. Variants
[[Page 35311]]
3. Monitoring and Recertification Requirements
V. CARB Certifications
A. Background
B. Applicability of CARB Equivalent Certification
VI. Certification Test Fuels
A. National and PADD Certification Test Fuels
1. Proposed Test Fuel Requirements
2. Final Test Fuel Requirements
a. Test Fuel Source and Screening Requirements
b. Test Fuel Severity Factors
c. Number and Severity of Test Fuels
d. Other Issues
B. Fuel-Specific Certification Test Fuels
C. Summary of Test Fuel Requirements
D. Test Fuels for Leaded Gasoline Certification
E. Measurement of Gasoline Fuel Parameters
VII. Certification Tests and Performance Requirements.
A. Certification Test Procedures
B. Deposit Control Test Standards
1. PFID-Control Test Standard
2. IVD-Control Test Standard
C. Alternate Performance Requirements for Leaded Gasoline
D. Confirmatory Testing By EPA
VIII. Enforcement Provisions
A. Overview
1. Certification Conformity
2. Compliance with Volumetric Additive Reconciliation (VAR)
Requirements
3. Equipment Calibration
4. Product Transfer Documents (PTDs)
5. Liability and Defenses
6. Exemptions
B. Enforcement Aspects of the Certification Program, Including
Clarifications of, and Changes to, the Interim Program
1. VAR Requirements
a. Automated Detergent Blender Compliance Periods
b. VAR Formula Records per Detergent Storage System
c. Brands and Grades of Gasoline on VAR Records
d. Recording of Detergent LAC and Actual Concentration
e. VAR Recording of Use-Restricted LACs
f. Diluted Detergent
g. VAR Recording of Gasoline Which is Overadditized for the
Anticipated Addition of Ethanol or Other PRC
h. VAR Recording of Transfers of Unadditized Gasoline
i. Supporting Documentation of VAR Volumes for Hand-Blending
Facilities
j. Electronic VAR Formula and Supporting Records
k. Detergent Tank Transitioning
l. Automated Additization Equipment Calibration
m. Detergent Blender Record Retention
2. Affirmative Defense and Liability Issues
a. Detergent Manufacturer Affirmative Defense Modification
b. Extension of Liability for VAR Violations
c. Defense Against Liability Where More Than One Party May Be
Liable for VAR Violations
d. Defense to Liability for Gasoline Nonconformity Violations
Based Solely on the Addition of Misadditized Ethanol or Other PRC to
Gasoline
e. Liability for the Sale of Nonconforming Gasoline or PRC when
the Gasoline or PRC Also Violates VAR Requirements
f. Detergent Blender Affirmative Defense Clarification, and
Clarification of Presumptive Liability Arising from Detergent
Blending
g. Liability Clarification
3. Inclusion of Importers of Additized Gasoline Within the
Definition of Detergent Blender
4. Certification Use Restrictions
5. PTD Changes
a. Elimination of PTD Retention Requirement for Additized
Gasoline for Wholesale Purchaser-Consumers (WPCs)
b. Elimination of PTD Requirements for Transfer of Small Loads
of Additized Gasoline to Ultimate Consumers
c. Address of the Transferee/Transferor
d. PTD Identification of Oxygenates and PRC Added to Gasoline
e. Detergent Package Use Restriction Designations
f. Fuel-Specific Gasoline Designations
g. PADD Designation on PTDs for Additized Gasoline or PRC
h. Identification of Oxygenate and PRC Use Restrictions on PTDs
for Additized Gasoline
i. Base Gasoline Identification
j. Use of Product Codes on PTDs
k. PTD Requirements for Gasoline Overadditized for the Later
Addition of Ethanol or Other PRC
6. Extension of the Agency's Right of Entry into Facilities of
Detergent Manufacturers, Distributors, and Carriers
7. Exemptions
a. Research, Development, and Testing Exemption
b. Racing and Aviation Fuel Exemptions
c. California Gasoline Exemptions
C. Proposed Changes not Incorporated in the Certification Rule
IX. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
X. Electronic Copies of Rulemaking Documents
A. Technology Transfer Network Bulletin Board System (TTNBBS)
B. Internet
I. Background
A. Rulemaking History
Section 211(l) of the Clean Air Act (CAA) specifies that, beginning
January 1, 1995, all gasoline sold or transferred to the consumer must
contain additives to prevent the accumulation of deposits in engines or
fuel supply systems. The CAA charged EPA with the task of establishing
specifications for such deposit control (detergent) additives.1 As
described below, today's final rule is the fourth in a series of
rulemaking actions which EPA has taken to develop a gasoline detergent
program that is both effective and reasonable, and to ensure ample
opportunity for public participation in the regulation development
process.
---------------------------------------------------------------------------
\1\ EPA uses the term ``detergent'' to refer broadly to the
additives required to meet the deposit control requirements
established in this program. It is not meant to specify a design
standard or to limit the kind of engine or fuel supply system
deposits that are, or would properly be, the subject of regulation
under sections 211(l) or 211(c).
---------------------------------------------------------------------------
On December 6, 1993, EPA published a Notice of Proposed Rulemaking
(NPRM, 58 FR 64213) which proposed that all gasoline, with limited
exceptions, must contain additives to control port fuel injector
deposits (PFID) and intake valve deposits (IVD). When fully
implemented, the proposed program would establish a detergent additive
certification program, including vehicle-based test procedures,
specified test fuels, deposit control performance standards, and
related enforcement provisions. However, recognizing that the regulated
industry would need adequate lead time to complete such certification
requirements, simpler interim requirements were proposed for use at the
start of the program. While gasoline would be required to contain
properly registered detergent additives beginning January 1, 1995, the
procedures and criteria established to qualify a detergent additive for
use in the interim program would be less rigorous than the standardized
performance requirements envisioned for the full detergent
certification program.
Rules governing the two phases of the program were not finalized at
the same time. The rules for the Interim Detergent Program were
published on October 14, 1994 (59 FR 54678), while today's rule
establishes the final detergent certification program. EPA took these
actions in two separate rulemaking steps for two main reasons. First,
the effective date for the CAA's mandate to use deposit control
additives was January 1, 1995. This required rapid promulgation of the
interim program rule after close of the NPRM comment period, to give
the regulated parties as much lead time as possible. However, to ensure
consistency with industry practices, EPA wished to incorporate
standardized test procedures in the detergent certification rule. At
the time the interim program was promulgated, the American Society for
Testing and Materials (ASTM) had just completed its IVD control test
procedure (ASTM D 5500), but anticipated several more months' delay
before completing development of its PFID control test
[[Page 35312]]
procedure (later published as ASTM D-5598). EPA judged that a delay in
finalization of the detergent certification program would be
appropriate to permit adoption of both ASTM procedures.
The second reason for delaying promulgation of the certification
program was to provide additional opportunity for public discussion and
evaluation of potential regulatory requirements for control of
combustion chamber deposits (CCD). Following publication of the NPRM, a
public hearing was held (in Ann Arbor, Michigan on January 11, 1994)
and written comments were accepted until March 11, 1994. Much of this
public commentary pertained to the CCD issue. The comments were split
between those who believed CCD controls were unneeded and infeasible
and those who maintained that CCD problems were already significant and
could be expected to grow worse with increased use of PFID and IVD
detergents, and that CCD controls were both needed and feasible.
To further the resolution of this important issue, EPA published a
Notice of Reopening of the Comment Period (59 FR 66860, December 28,
1994). The Reopening Notice requested additional information regarding
the potential impacts of CCD on emissions, fuel economy, and
driveability; the possible relationship(s) between IVD and PFID
detergent additive levels, unwashed gum levels, and CCD formation; and
possible CCD control approaches. The notice also sought additional
public input on other key concerns raised during the initial comment
period, including certification test fuel issues and various
implementation and enforcement provisions proposed for the
certification program.
EPA's summary and analysis of public comments on issues relevant to
the interim provisions of the detergent program were published in a
section of the preamble to the interim program final rule. Public
comments on general provisions of the detergent certification program,
including those received following the NPRM as well as those sent to
EPA in response to the Reopening Notice, are extensively reviewed and
analyzed in a separate document accompanying this rule.2 A
synopsis of EPA's evaluation of the CCD issue is provided below in
Section II, and comments on other key topics are briefly described in
the relevant sections of this notice. However, the reader is directed
to the separate Summary and Analysis of Comments for detailed
presentation and evaluation of these issues.
---------------------------------------------------------------------------
\2\ See ``Summary and Analysis of Comments on General Provisions
of the Detergent Certification Program'', Docket item V-B-02.
---------------------------------------------------------------------------
Public comments concerning the detergent program's enforcement
issues have been handled in a somewhat different manner. Following
promulgation of the interim detergent program, the regulated industry
submitted a number of questions about the practical implementation of
some of the enforcement provisions of the rule. In response, EPA
provided guidance on various enforcement provisions, in a series of
four Detergent Rule Question and Answer Documents (``Q&A
Documents'').3 Today's rule incorporates a variety of regulatory
changes that are being made to codify the guidance. Section VIII of
this preamble contains a synopsis of the key issues related to these
regulatory changes, along with EPA's analysis of other enforcement-
related comments not discussed in previously published documents.
---------------------------------------------------------------------------
\3\ Docket numbers IV-C-08, IV-C-09, IV-C-10, and IV-C-11.
---------------------------------------------------------------------------
B. Statutory Provisions and Legal Authority
Recognizing that deposits in gasoline engines and fuel supply
systems can increase harmful exhaust emissions and adversely affect
vehicle fuel economy and driveability, Congress specified in section
211(l) of the Clean Air Act that: ``Effective beginning January 1,
1995, no person may sell or dispense to an ultimate consumer in the
United States, and no refiner or marketer may directly or indirectly
sell or dispense to persons who sell or dispense to ultimate consumers
in the United States, any gasoline which does not contain additives to
prevent the accumulation of deposits in engines or fuel supply systems
* * *'' Section 211(l) further provides that ``the Administrator shall
promulgate a rule establishing specifications for such additives.''
In section 211(l), Congress delegated to EPA rulemaking authority
to set specifications for detergent additives to prevent the
accumulation of deposits in engines or fuel supply systems. To
implement this grant of authority, EPA has reasonably interpreted the
several ambiguous elements of this provision. EPA believes that its
interpretations will promote the intent of Congress in adopting this
provision. First, the statute states that the additives must ``prevent
the accumulation of deposits.'' This term is ambiguous; it could be
interpreted to mean that the specifications must ensure that an
additive will not allow any deposits whatsoever to form, or that an
additive must be able to prevent all deposits and eliminate existing
deposits, or that an additive could be acceptable if it would provide a
reasonable level of protection against accumulation of new deposits but
would not make a great impact on any existing deposits. In addition,
section 211(l) refers to ``deposits in engines or fuel supply
systems.'' Deposits can form in almost any part of an engine or its
fuel supply system, e.g. the intake valves, the port fuel injectors,
the combustion chamber, the carburetor, the exhaust valves, and so on.
Congress, however, did not specify which particular deposits must be
controlled by the additives mandated by section 211(l), nor did it
state that EPA must set specifications such that additives would
prevent all possible deposits which could possibly form anywhere in an
engine or fuel supply system. Finally, Congress did not define the term
``specifications'' in any way. This term could be interpreted to mean
the additives' specific chemical composition, or performance
characteristics, or the general type or amount of additive which must
be added to gasoline. Therefore, the Agency believes that Congress left
EPA with broad discretion and authority to implement those provisions
in an appropriate regulatory framework that achieves the general goals
of Congress in adopting section 211(l).
Looking at the Act's legislative history, EPA believes that the
primary purpose of section 211(l) is to reduce emissions from gasoline-
fueled vehicles and engines and to prevent engine wear or damage which
could lead to increased emissions. Section 211(l) was added to the 1990
Clean Air Act Amendments during conference. Prior to the conference
sessions, detergent additive provisions were included in the bills
passed by each house of Congress only as items in different provisions
for reformulated gasoline (RFG).
The bill passed by the House of Representatives contained a
requirement that cleaner gasolines ``shall contain additives to prevent
the accumulation of deposits in engine fuel supply systems.'' S. 1630,
101st Cong., 2d Sess., (1990). The Report of the House Committee on
Energy and Commerce described the purpose of the RFG provision, stating
that ``(s)uch cleaner gasoline must achieve the greatest reduction in
ozone-forming VOC and air toxic emissions achievable through
reformulation of conventional gasoline, taking into consideration the
cost of achieving such emissions reductions and health, environmental
[[Page 35313]]
and energy impacts.'' H.R. Rep. 490, 101st Cong. 2d sess., 297 (1990).
Given the stated purpose of the RFG provision to reduce vehicle
emissions, and the express requirement that RFG contain detergent
additives, EPA believes that the House intended that EPA would require
additives in RFG for the purpose of reducing emissions.
The bill passed by the Senate included detergents as an alternative
to RFG regulations, as follows:
In the event that the Administrator does not promulgate the
[fuel quality] regulations required by this paragraph, effective
January 1, 1994, it shall be unlawful to sell, offer for sale,
supply, offer for supply, dispense, transport, or introduce into
commerce any fuel for use in a gasoline-powered vehicle unless such
fuel contains additives effective in preventing the accumulation of
deposits in fuel-injected engines.
S. 1630, 101st Cong. 2d sess., (1990). The Report of the Senate
Committee on Environment and Public Works expressed the purpose of the
RFG regulations as follows:
Subsection (k)(1) requires the Administrator to establish fuel
quality standards to maximize engine performance and to minimize
emissions from the combustion of fuels in vehicles and engines.
Engines may prematurely wear out due to impurities in the fuel. Such
fuel can clog fuel injectors, cause additional corrosion and
otherwise affect engine performance, and cause an increase in air
pollution emissions from the engine. In addition, fuel additives,
such as detergents, are available to maximize the performance of
engines and minimize emissions.
S. Rep. No. 228, 101st Cong. 1st Sess., 116 (1989) (emphasis added).
Thus, EPA believes that the primary legislative intent behind the
precursors of section 211(l) was to prevent or reduce vehicle
emissions.
The bill reported by the conference committee adopted an RFG
provision which was similar to the House provision, although it no
longer expressly required detergent additives in RFG. This provision
required the Administrator to promulgate regulations imposing the more
stringent of two options, either a formula, which would require
detergent additives, or a performance standard for VOC emissions. In
addition, this bill included the current section 211(l), which requires
detergent additives in all gasoline sold after January 1, 1995. There
is no further explanation anywhere in the legislative history of the
addition of section 211(l) to the bill. H.R. Conf. Rep. No. 952, 101st
Cong., 2d Sess., (1990).
EPA believes that it is reasonable to assume that the intent of
Congress with respect to section 211(l) was essentially the same as its
intent with respect to the prior iterations of the similar provisions
in the RFG arena, i.e. to reduce vehicle and engine emissions, and to
prevent engine wear which may contribute to such emissions. Section
211(l) provides EPA with broad authority to implement its provisions
within an appropriate regulatory scheme that furthers the goals of
Congress in adopting this provision.
In accordance with this interpretation, the certification program
specifies the engine and fuel supply system deposits that must be
controlled, the level of control that is required, and the
responsibilities of various persons in the manufacturing, refining, and
distribution systems to see that gasoline used by the ultimate consumer
is properly additized. The certification program also establishes
specifications for detergents for different gasoline pools depending on
their deposit-forming tendency, and a specification for ``zero
additive'' if a particular segregated gasoline pool is shown to have
very little deposit-forming tendency. Like the existing interim
detergent program, the certification program specifies that all parties
involved in the chain of gasoline production, distribution and sale are
responsible for compliance with the gasoline detergency requirements.
The certification program also continues the interim program's
precedent of applying certain requirements of the detergent program
directly to manufacturers, distributors, and carriers of detergent
additives, prior to, and after the blending of such additives into
gasoline.
As discussed in the preamble to the interim rule, EPA is issuing
today's final rule under the authority of sections 211 (a), (b), and
(c) as well as section 211(l). These sections of the CAA underscore
EPA's authority to require the submittal of compositional information
and test data directly from manufacturers of gasoline detergent
additives. Section 211(b)(1) authorizes EPA to require manufacturers to
submit information on the composition and use of fuels and fuel
additives designated under section 211(a). In 40 CFR part 79, gasoline
fuels and any additives intended for use in gasoline fuels have been so
designated. Furthermore, 211(b)(2)(B) specifically calls for fuel
additive registrants to ``furnish the description of any analytical
technique that can be used to detect and measure any additive in such
fuel * * *'' EPA's authority to require the submittal of data from the
detergent additive manufacturer is also supported by the provisions of
Section 114 of the CAA, which authorizes the Administrator to collect
any information which may reasonably be required to carry out the
purposes of the Act from any person subject to the provisions of the
Act.
Section 211(c)(1) provides EPA broad authority to regulate the
introduction into commerce, production, distribution, and sale of fuels
and fuel additives to protect the public health and welfare. Since the
interim and certification program rules have been adopted pursuant to
section 211(c) as well as section 211(l), the preemption provisions of
section 211(c)(4)(A) act to prohibit certain state fuel controls. A
specific exception to the Federal preemption is applicable in the case
of California, which has established its own detergent program as
permitted under section 211(4)(B). Also, pursuant to section
211(c)(4)(C), a state could adopt a detergent program as part of its
State Implementation Plan if it were necessary to achieve a national
primary or secondary ambient air quality standard. The relationship
between the Federal and California detergent gasoline programs is
discussed further in Section V below.
Section 211(c)(1) requires a finding that either (A) any emission
product of a fuel or fuel additive causes, or contributes, to air
pollution which may reasonably be anticipated to endanger the public
health or welfare, or (B) emission products of a fuel or fuel additive
will impair to a significant degree the performance of any emission
control device or system. EPA has determined that emissions from
gasoline use cause or contribute to such harmful air pollution (58 FR
64213, 64215). This rule is the second phase in EPA's attempt to
control such emissions through restrictions on the production and sale
of gasoline and gasoline detergent additives. This rule requires that
detergent additives manufactured for use in gasoline meet certain
standards, and requires that gasoline be blended with such additives at
the proper rate. This will reduce emissions from gasoline use that
cause or contribute to harmful air pollution.
Before EPA can regulate under its section 211(c)(1)(A) authority,
section 211(c)(2)(A) requires the Agency to consider ``other
technologically or economically feasible means of achieving emission
standards under section (202).'' This has been interpreted as requiring
consideration of regulation through motor vehicle standards under
section 202 prior to regulation of fuels or fuel additives under
section 211(c)(1)(A). Ethyl Corp. v. Environmental Prot. Agcy., 541
F.2d 1, 32 (D.C.Cir. 1976). This does not establish a mandatory
preference for
[[Page 35314]]
vehicle controls over fuel controls, but instead calls for the good
faith consideration of motor vehicle standards before imposition of
fuel controls (541 F.2d at 32, n. 66). This merely reflects Congress'
recognition that fuel controls under section 211(c)(1)(A) might
logically involve controls on fuel composition itself, while vehicle
standards under section 202 are generally performance standards
regulating vehicle emissions and not the design or structure of the
vehicle. Fuel controls might therefore lead to greater government
involvement in the regulation of the manufacturing process than would
be expected from vehicle controls (541 F.2d at 11, n. 13). Congress
addressed this concern by requiring Agency ``consideration'' of vehicle
standards under section 202 before imposition of fuel controls under
section 211(c)(1)(A). It is important to note that the Administrator
must in good faith consider such vehicle controls, but retains full
discretion in deciding whether to adopt either fuel or vehicle
controls, or both (541 F.2d at 32, n. 66).
In evaluating motor vehicle controls under section 202 in this
context, EPA has found that vehicle manufacturers already have an
incentive to design vehicles to reduce deposit formation. Deposits in
fuel injectors and intake valves affect a vehicle's driveability as
well as its emissions. Because consumers often look to a vehicle's
manufacturer to resolve driveability problems, manufacturers who
address such issues proactively through design modifications have a
market advantage over those who do not.
Another issue that EPA considered with respect to motor vehicle
controls is that deposits affect vehicles currently in use. Any motor
vehicle standard which EPA might impose to prevent accumulation of
deposits therefore would not have an impact until new model vehicles
replaced a significant portion of the existing vehicle fleet. In
addition, EPA is barred by section 202(i)(3)(C) from imposing new
standards on light duty vehicles until after model year 2003; thus any
emissions or other standard for such vehicles would not even be
introduced into the U.S. vehicle market for almost a decade. A fuel
control related to the gasoline, however, will help reduce emissions
from the entire in-use fleet of motor vehicles, as well as from non-
road engines and vehicles that use gasoline.
Finally, 211(l) requires that all gasoline sold to the ultimate
consumer after January 1, 1995 contain detergent additives to prevent
accumulation of deposits, and requires the Administrator to establish
specifications for such additives. Therefore, whether or not it was
appropriate to establish vehicle standards, it would not be possible
for EPA to set vehicle standards alone.
Given these circumstances, EPA has determined that it is
appropriate to promulgate this additive regulation now, regardless of
whether motor vehicle controls are adopted later under section 202.
This decision is based on the following facts. First, motor vehicle
manufacturers are already designing engines to prevent susceptibility
to deposit formation due to market incentives. Second, the requirement
to sell additized gasoline will have immediate impacts on emissions
from gasoline combustion from both motor vehicles and non-road engines
and vehicles, as the detergents will begin preventing deposit formation
as soon as the fuel is used. There also may be some additional clean-up
benefit of using detergent additized gasoline in engines which already
have deposits. Finally, EPA is required by law to promulgate this
regulation under the separate authority of section 211(l).
C. Overview of This Action
With this final rule, EPA is establishing a detergent additive
certification program which modifies many of the provisions of the
existing interim detergent additive program. As mentioned above, the
interim program requires compliance with the CAA mandate that all U.S.
gasoline be treated with deposit control additive prior to its use by
the consumer. To qualify for use as a detergent under the interim
program, an additive must be properly registered (under 40 CFR part 79)
and must have undergone some testing to demonstrate its ability to
control deposit formation when used at the concentration (treat rate)
recommended by its manufacturer. However, the interim program does not
require specific test procedures and test fuels to be used for this
purpose, nor does it include specific deposit control performance
standards which must be met. Today's rule establishes these specific
requirements for detergent certification, along with changes to the
regulations regarding enforcement of the certification program. Further
discussion of the enforcement provisions is presented below in Section
VIII.
Broadly speaking, the detergent additive certification program
follows the overall performance-based approach proposed in the NPRM. To
be certified for use in compliance with gasoline detergency
requirements, an additive must demonstrate the ability to meet
specified standards of IVD and PFID control in the context of
prescribed test fuels and standardized, vehicle-based test procedures.
The practical result of this testing is to ascertain an additive treat
rate that can meet the required standards of performance. The
certification treat rate constitutes the lowest concentration at which
the additive may be used by detergent blenders in formulating gasoline
for sale to or use by the consumer.
As proposed in the NPRM, the certification program includes a
number of voluntary certification options. These options permit a
detergent additive to be tested in one or more test fuels, resulting in
different minimum treat rate requirements for different types of
gasoline (e.g., oxygenated or nonoxygenated, premium or regular) and/or
different gasoline pools (e.g., national, PADD, or segregated
supplies). The flexibility provided by these options is described in
more detail in Section IV of this preamble.
While generally similar to the proposed approach, the detergent
certification program finalized today differs somewhat from the NPRM in
certain key areas. Most of these changes are the result of efforts by
EPA to streamline and simplify the requirements of the program. For
example, the NPRM proposed an approach based on a two-tier
certification structure, such that gasolines of very high severity
(i.e., tendency to produce IVD and PFID), would be required to be
additized only with detergents that had undergone testing in specified
high-severity test fuels. Implementation of this provision would not
only require separate detergent certification for use in generic and
high-severity gasolines, but would also require ongoing evaluations of
the severity of gasoline supplied to the distribution terminals to
determine if detergent certified for severe gasoline would be needed or
if generic detergent would suffice. As described further in Section
IV.B, EPA now believes that the potential benefit of the two-tier
certification approach is far outweighed by the associated
implementation burdens. Thus, today's rule finalizes a single-tier
certification approach and does not contain special requirements for
gasoline of very high severity.
Another departure from the proposed approach pertains to the number
and composition of test fuels required for each certification option.
Under the proposed rule, to qualify for national certification or for
any certification option, a detergent additive would be required to
undergo testing in a matrix of up to four test fuels. Each test fuel
[[Page 35315]]
was to contain a different combination of relatively high levels of
specified fuel parameters (i.e., ``severity factors'') and oxygenate
components. In addition, test fuels meeting the required specifications
would have been required to be located among commercial fuel supplies,
not specially formulated to specification from refinery blend stocks.
For reasons explained at length in the Summary and Analysis of
Comments, and summarized below in Section VI, the test fuel
requirements adopted today are considerably simpler than the proposed
requirements. The final regulations require testing of a detergent
additive in only one specified test fuel for any given certification
option, and permit test fuels to be formulated to specification from
refinery blend stocks rather than requiring them to be taken from
finished gasoline stock located by sampling among commercial gasoline
supplies. However, to ensure that test fuels resulting from this
simplified process will adequately challenge the detergent additive,
the regulations require certifiers to test the unadditized test fuels
to demonstrate their deposit-forming tendency, prior to their use in
additive certification testing.
A third set of provisions which reflect change from the proposed
provisions is in the important area of basic information requirements.
For example, the information which additive manufacturers must submit
regarding the composition of their detergent additives has been changed
to be more consistent with typical additive manufacturing practices
(see Section III.A). Moreover, the proposed registration requirements
for fuel blenders that relate specifically to the usage of detergent
additives are not retained in this final rule (see Section III.B).
Subsequent sections of this preamble describe the major provisions
of the detergent certification program in more detail, including
further discussion of the way in which the requirements differ from
those proposed in the NPRM.
D. Applicability
The applicability of detergency requirements to various categories
of gasoline is based on the statutory language of Sec. 211(l), which
explicitly includes ``any gasoline'' in its mandate. EPA has
interpreted this to include fuel commonly or commercially known as
gasoline, that is produced for use in motor vehicles or engines or
nonroad vehicles or engines. Thus, the applicability of this program is
essentially the same as under the interim detergent program. The
regulations apply to all gasoline, including conventional, reformulated
(RFG), oxygenated, and leaded 4 gasoline, whether intended for or
used by highway or nonroad vehicles or engines. Marine fuel, gasoline
used for military purposes, gasoline service accumulation fuel under
the Federal motor vehicle control program (for emissions control system
deterioration testing purposes), and factory fill fuels are also
required to comply with detergency requirements.
---------------------------------------------------------------------------
\4\ Leaded gasoline was banned from use in highway vehicles as
of January 1, 1996, and the EPA regulations no longer contain a
generally applicable definition of leaded gasoline. However leaded
fuel is still permitted to be used in nonroad engines, and leaded
gasoline is subject to gasoline detergency requirements. In this
final rule, therefore, EPA has included a definition of leaded
gasoline (at Sec. 80.140) that is applicable only to 40 CFR subpart
G. This definition is effectively the same as the previous,
generally applicable definition.
---------------------------------------------------------------------------
In the Reopening Notice, EPA requested comment on whether
detergent-additized gasoline should continue to be required for the
gasoline portion of E85 or M85 alcohol-based fuels, in view of comment
from the automobile industry that some detergent additives might be
incompatible with such fuels. In response, the American Petroleum
Institute (API) commented that EPA should allow industry to resolve
compatibility issues through the marketplace. API pointed out that E85
and M85 fuels are used in flexible-fuel vehicles, which are expected to
be operated at times on ``ordinary'' detergent gasoline. Thus, due to
mixing in the fuel tank, alcohol-based incompatibility problems which
might arise between some detergents and alcohol-based fuels would need
to be addressed even if the gasoline portion of the alcohol blends were
exempt from detergency requirements. EPA agrees with API and, in this
rule, has not changed the detergent applicability requirements of the
interim program as they relate to the gasoline portion of alcohol-based
fuels.
As in the interim program, the only categories of gasoline which
EPA is exempting from detergency requirements are racing fuel, aviation
fuel, emissions certification fuel, and fuel used for research and
development purposes. In the case of the racing fuel exemption, this
final rule removes the interim program's restriction that only gasoline
sold or dispensed on the premises of a racing facility can qualify. In
response to comments stating that the interim rule's restriction is
inconsistent with the actual handling and use of racing fuel, EPA
decided to permit racing fuel to qualify for the detergency exemption
regardless of location, provided that the fuel is distributed only to
racing vehicles that are restricted to nonhighway use, and dispensed
only from retail pumps clearly labeled as containing racing gasoline
(see Section VIII.B.7).
E. Program Start-Up and Compliance Dates
Full compliance with the provisions of the detergent certification
program is not mandatory for approximately a year's time. This one-year
start-up period is provided to allow certifiers sufficient lead time to
complete their testing and reporting requirements, for detergent
blenders to obtain supplies of certified additives and establish
associated administrative and quality control support procedures, and
for gasoline retailers to obtain sufficient quantities of properly
additized gasoline. Since the interim program is to continue in effect
until the certification program becomes mandatory, today's rule also
revises enforcement provisions of the interim program to make these
provisions more efficient and commensurate with those in the parallel
certification program. The revisions to the interim program in today's
rule become effective September 3, 1996.
Mandatory compliance with the requirements of the detergent
certification program is required for different parties in the gasoline
and detergent distribution system at different times, based on their
position in the distribution chain. As of July 1, 1997, detergent
manufacturers must sell only properly certified detergents to their
detergent blending customers. Also as of July 1, 1997, detergent
blenders must blend certified detergent at the prescribed concentration
into all gasoline they distribute, and distributors must sell or
transfer only gasoline and PRC properly additized with certified
detergents. To facilitate the proper disposal of residual non-certified
detergent additive, EPA will allow such detergent to be blended into
gasoline in combination with certified detergent until January 1, 1998,
provided that the noncertified detergent was in the detergent blender's
possession prior to July 1, 1997 and that it accounts for less than 10
percent of a detergent storage tank's delivered capacity (i.e. no more
than 10 percent of the detergent blended into a batch of gasoline). In
addition, the total detergent blended into a batch of gasoline must be
sufficient to attain the minimum concentration recommended by the
additive manufacturer for the certified detergent.
Effective August 1, 1997, all gasoline sold or transferred to the
ultimate
[[Page 35316]]
consumer must be additized with certified detergents in conformity with
any applicable detergent use restrictions. An extra month is allowed
from the time detergent blenders are required to begin blending
certified detergent to the time gasoline retailers are required to sell
gasoline containing certified detergent, to provide adequate time for
gasoline containing noncertified detergent in the retailer's storage
tanks to be replaced with properly additized gasoline. This approach is
consistent with that used successfully in other EPA fuels programs,
such as in the regulation of gasoline volatility (54 FR 11869, March
22, 1989), and the reformulated gasoline program (59 FR 7841, February
16, 1994).
Prior to July 1, 1997, additive manufacturers and detergent
blenders may comply either with the interim detergent program
regulations or the detergent certification program regulations
finalized today. EPA anticipates that, many detergent additives will be
certified prior to the final deadline,5 and certified additives
will inevitably be delivered to fuel terminals and blended into
gasoline before the deadline. If a detergent is certified prior to July
1, 1997, the requirements of the certification program will apply to
the use of that detergent as of the effective certification date. In
most instances, the use of a certified additive prior to the required
date will not significantly change the detergent blender's requirements
under the interim rule. The provisions of both programs require the
detergent blender to add detergent to gasoline at a treat rate no less
than the minimum concentration recommended by the additive manufacturer
(also called the lowest additive concentration or LAC),6 and
require the additive manufacturer to provide adequate blending
instructions to the detergent blender, including the minimum
recommended concentration reported to EPA in accordance with the
applicable detergent certification requirements. Thus, while the
specified minimum amount of detergent may well change after
certification, the nature of the additization and record-keeping
activities of the detergent blender will usually not be greatly
affected.
---------------------------------------------------------------------------
\5\ The certification date will be the earlier of the receipt by
the certifier of acknowledgement by EPA of its receipt of the
certification letter, or 60 days after the certifying party receives
the return receipt from the postal carrier acknowledging that the
letter was delivered to EPA.
\6\ However, both the interim and certification programs contain
a special provision allowing the detergent blender to use a
detergent at a lower concentration than that recommended by the
additive manufacturer, provided that the detergent blender informs
EPA of this intent and can provide supporting data to substantiate
the deposit control effectiveness of the detergent at the specified
lower concentration.
---------------------------------------------------------------------------
Exceptions will occur in the case of detergent additives which have
been certified under options that place restrictions on the type of
gasoline in which the additive may be used (see Section IV). For
example, a detergent may be certified with two different treat rates,
one for use in all gasoline, and one for use only in nonoxygenated
gasoline. In such an instance, if the detergent blender chooses to use
the detergent at the treat rate certified for use in nonoxygenated
gasoline, then the blender is required to conform to the certification
program provisions which govern the handling of use-restricted
certified detergents, even if this occurs before July 1, 1997. In the
cited example, where the treat rate certified for nonoxygenated
gasoline is to be used, the blender must use the detergent only to
additize nonoxygenated gasoline. In addition, the blender must indicate
on the outgoing product transfer document that the gasoline has been
additized with detergent restricted only to nonoxygenated gasoline,
thus informing downstream parties of the existing restrictions. In
essence, each party in the distribution chain that handles gasoline
additized with a detergent under a use-restricted certification must
observe the product transfer document and all other applicable
requirements of the certification program. Further discussion on
additive manufacturer and detergent blender responsibilities in regard
to the handling of use-restricted detergents can be found in Section
VIII.
II. Combustion Chamber Deposit Control
In the NPRM, EPA did not propose any requirements for combustion
chamber deposit (CCD) control because of uncertainty regarding the
scope of the problem and the lack of suitable performance test
procedures and performance standards. Subsequently, some commenters
expressed concern that a Federal requirement for PFID and IVD control
might encourage detergent overuse, which could potentially exacerbate
CCD concerns. Other commenters, however, agreed that regulatory control
of CCD was not appropriate due to the lack of data and adequate
standardized performance test procedures and standards. As a result,
EPA requested additional input from affected industries (see Docket
item IV-E-35, ``Summary of Additional Comments on Combustion Chamber
Deposits''), and published a notice formally reopening the comment
period on the issue of CCD control. A detailed discussion of the
comments and EPA's response may be found in the Summary and Analysis of
Comments document located in the docket for this rulemaking. A brief
synopsis of this discussion appears below.
After carefully reviewing all of the public comment and currently
available information, EPA is not able to determine that a CCD control
requirement is warranted. Available information on the impacts of CCD
on emissions, fuel economy, and driveability are inadequate to draw
conclusions regarding the costs and benefits of requiring additives for
CCD control. In addition, no appropriate performance test procedures
and standards or effective surrogate parameters for measuring CCD have
yet been developed. Further study may indeed provide more information
on which EPA could base a CCD control requirement. Thus, EPA will
continue to evaluate CCD issues and will reconsider adopting a CCD
control requirement at a later date if appropriate.
For these reasons, EPA is very pleased that, under the auspices of
the Coordinating Research Council (CRC), members of the automotive and
petroleum industries have embarked on a joint research program to
investigate some of the controversial issues which still remain about
the causes, effects, and accurate evaluation of CCD. The work of the
CRC is expected to help elucidate the potential need for and
environmental benefits of CCD control, and to investigate vehicle
parameters that influence vehicle response to CCD in preparation for
potential development of standard test procedures for measuring CCD and
evaluating a detergent's ability to effectively control CCD. EPA
believes that the products of CRC's work will greatly facilitate EPA's
investigation of whether CCD control is necessary and feasible.
A. CCD Impacts on Vehicle Emissions
Most members of the petroleum and detergent additives industry
commented that uncertainties persist regarding the scope of a CCD-
related emission problem and that test procedures and standards are
lacking. They stated that EPA should defer action until research
planned by the CRC has been completed.
Automotive industry commenters stated that the CCD-related
emissions impact is sufficiently well demonstrated to compel EPA to
implement a CCD control requirement; this statement was supported by
limited data and literature
[[Page 35317]]
references. Others stated that EPA should implement a requirement to
ensure that detergent additives are used that can remove existing CCD
and prevent the formation of CCD, because the vehicle octane
requirement increase (ORI) caused by CCD results in higher emissions.
While EPA agrees that there is sufficient data to demonstrate a
probable link between CCD formation and increased NOX emissions,
the magnitude of the NOX emissions impact has not been
sufficiently defined to allow EPA to determine how substantial an
impact it is. The impact of CCD on hydrocarbon and carbon monoxide
emissions is even more uncertain. Characterization of the magnitude of
the CCD emissions impact is important so that EPA can evaluate the
costs and effectiveness of potential CCD control measures. At this
time, EPA is not in a position to determine that CCD, and particularly
any detergent additive contribution to CCD, causes vehicle emission and
performance problems warranting regulatory control. The weight of the
public comment indicates that, for major marketers, representing 60-70
percent of gasoline sold in the U.S., EPA's IVD and PFID performance
mandate will not cause a change in the types of detergent additives
used or result in appreciably increased concentrations of these
detergents. As for the rest of the market, EPA's IVD and PFID
performance requirements are expected to bring the entire industry up
to the levels of deposit control protection provided by major marketers
prior to implementation of regulatory controls. Because EPA's IVD and
PFID performance requirements are expected to bring the entire market
up to a level of deposit control protection previously achieved by
major marketers, EPA believes that these requirements will not create
or exacerbate CCD problems. Thus, in the absence of sufficient data to
support the need for a requirement to control the contribution of
detergent additives to CCD, EPA disagrees with automobile industry
comments that EPA is obligated to take immediate action in implementing
such a requirement.
B. CCD Energy Impacts
As mentioned above, several commenters stated that CCD contributes
to vehicle octane requirement increase (ORI), i.e., the need for higher
octane fuels to prevent engine knock as the engine ages. Higher octane
fuels require more crude oil to produce, thus causing an increase in
total refinery and vehicle energy use. Several commenters also stated
that if ORI were reduced, engine design might be further optimized for
improved fuel economy using gasoline of the octane quality currently on
the market.
The Department of Energy (DOE) conducted an evaluation of CCD
control additive technologies that also have ORI claims, and of the
potential energy and vehicle and refinery emissions implications of ORI
control.7 DOE concluded that a correlation exists between CCD and
ORI. However, DOE also stated that automobile manufacturers generally
design their vehicles to accommodate a worst case ORI condition, and
provide a built-in margin to ensure that the vehicle can continue to
operate on the fuel specified after the octane requirement stabilizes
at about 15,000 miles. DOE stated that most automobiles do not require
a higher octane fuel than recommended by the manufacturer. It is true
that exceeding the octane specification of the fuel recommended by the
manufacturer, if not compensated for by the use of a higher octane
fuel, could cause engine knock in vehicles that are not equipped with
knock sensors or retardation of engine timing in engines that are
equipped with knock sensors. Both engine responses could result in
inefficient combustion, and attendant reduced fuel economy. However, at
this time, EPA agrees with DOE that the available information does not
indicate widespread exceedance of the ORI tolerance built-in by engine
manufacturers. Thus, EPA can not conclude that an ORI-based CCD control
requirement should be implemented to prevent an adverse impact on fuel
economy.
---------------------------------------------------------------------------
\7\ Docket items VI-D-43 and VI-D-45.
---------------------------------------------------------------------------
On the broader energy use question, the DOE analysis suggested that
the potential changes in crude oil use combined with questionable
effects on vehicle fuel economy would not make a compelling argument to
support the position that a reduction in CCD would result in a cost-
effective overall reduction in fuel consumption, total gasoline
refinery and motor vehicle emissions or energy use, or dependency on
foreign oil. In conducting its assessment, DOE took into account
refinery processing efficiencies, energy yield, and vehicle fuel
consumption. DOE stated that, based on their evaluation of available
data, the potential direct vehicle emission effects of CCD control
should be the primary factor considered in evaluating whether it is
appropriate for EPA to implement a CCD control requirement. EPA agrees
that the available information is inadequate to conclude that a
reduction in ORI would result in a cost-effective reduction in total
energy use or emissions from gasoline refineries and motor vehicles.
C. CCD Interference
Automotive industry commenters urged EPA to implement a CCD control
requirement to prevent potential negative impacts of CCD on
driveability, including combustion chamber deposit interference (CCDI).
They stated that CCDI problems are expected with the increased use of
IVD control additives.
The petroleum industry stated that there is no documented basis for
EPA to consider a CCD control measure to prevent CCDI associated with
detergent additive overuse. They stated that data indicates that
manufacturing tolerances play a predominant role in the CCDI problem,
and cited a study indicating that engines with a 0.9 mm squish gap
design were unaffected by CCDI, while off-specification tolerances as
low as 0.3 mm were virtually guaranteed to produce the engine knock
associated with CCDI regardless of the fuel used.
EPA agrees that available data indicates that manufacturing
tolerances play a predominant role in the CCDI problem. EPA therefore
does not believe that there are compelling reasons at this time to
implement a CCD control requirement in order to prevent CCDI-related
driveability problems. Moreover, the IVD and PFID requirements
implemented with this rulemaking are not expected to increase levels of
CCD relative to those seen in current vehicles using major petroleum
marketers' gasoline.
D. Unwashed Gum Levels and CCD
Several automobile industry commenters stated that, as a surrogate
for CCD control, EPA should implement an interim limit on gasoline
unwashed gum levels to prevent adverse side effects that might result
from EPA's IVD and PFID performance mandates. One commenter presented
an analysis of gasoline survey data which, it stated, indicates a
correlation between increasing unwashed gum levels in commercial
gasolines and the use of increasing concentrations of IVD detergent
additives. Data was submitted by another commenter which, it stated,
indicated that certain IVD and PFID additives contribute to CCD
formation, and showed a correlation between unwashed gum levels and
CCD.
On the other hand, several fuel and additive industry commenters
stated that available data does not demonstrate a correlation between
unwashed gum levels and CCD. They presented data which they stated
indicates that no general correlation between unwashed
[[Page 35318]]
gum levels and CCD exists. They also stated that unwashed gum levels
are not necessarily a predictor of detergent additive concentrations.
EPA has concluded that no correlation of unwashed gum levels or
additive concentrations with gasoline CCD-forming tendency has been
established. EPA agrees with comments from fuel and additive producers
that unwashed gum levels cannot be used as a reliable predictor of
detergent concentration. EPA believes that available data indicates
that detergent additives vary in their tendency to contribute to CCD,
and that this tendency does not necessarily correlate with unwashed gum
levels. Based on a review of all of the available data, EPA believes
that implementing an unwashed gum limit on additized gasoline would not
necessarily produce beneficial results and might actually produce a
barrier to the development of CCD control additives.
E. Other Potential Adverse Side Effects of Detergent Overuse
Automobile industry commenters raised concerns about the effects
detergent additive overuse might have on materials and components of
automobiles. The comments stated that intake valve sticking and
deterioration of the fuel system, oxygen sensor and catalyst could
result from the use of overadditized fuel. API commented that negative
impacts on vehicles of accidental overtreatment have been very rare.
EPA finds no compelling reason from an emissions control standpoint
to implement specific regulatory measures to prevent occurrences of
detergent overuse. To the extent that driveability problems may exist
due to the failure of fuel marketers to institute adequate quality
control measures, the industries involved are in a position to
adequately resolve these problems without the imposition of a
regulatory control. As noted above and discussed in the Summary and
Analysis of Comments, EPA has sufficient reason to believe that its IVD
and PFID control requirements will not increase the likelihood that
detergent overuse, and any attendant side effects, will take place.
III. Basic Information Requirements
Pursuant to the fuel and fuel additive registration regulations in
40 CFR part 79, both additive manufacturers and fuel manufacturers are
required to report specific identification, composition, and other
basic product information to EPA. In the NPRM for the detergents
program, EPA proposed additional information that would be required for
detergent additive registration in order for a detergent product to be
eligible for use by blenders in complying with the gasoline detergency
requirements of the rule. EPA also proposed specific registration
requirements for fuel manufacturers related to their detergent blending
responsibilities under the program. This section briefly describes the
originally proposed information requirements as well as those included
in the interim detergent rule, and summarizes the changes to these
requirements reflected in today's final rule.
A. Detergent Additive Information Requirements
Under the fuel additive registration requirements of Sec. 79.21, an
additive manufacturer must submit certain compositional and analytical
information on each of the additive products it wishes to market. Among
other requirements, these include the chemical identification and
concentration of the components of the additive product; the chemical
structure of each component; an analytical technique for detecting and/
or measuring the additive as mixed in fuel; the identity of the fuels
in which the use of the additive is recommended and the purpose-in-use
and manufacturer's recommended range of concentration of the additive
in each such fuel.
Consistent with these standard registration requirements, EPA
proposed that, for a detergent additive to be eligible for fulfilling
gasoline detergency requirements, detergent certifiers would be
required to submit the following information on detergent additive
composition: (1) A specific chemical description of each component of
the detergent package, (2) the exact weight/volume percent of each
component of the detergent package, (3) a fourier transform infrared
spectroscopy (FTIR) test method to obtain a qualitative and
quantitative spectrum of the detergent additive package both in its
pure state and in finished gasoline, and (4) an actual infrared
spectrum of the detergent additive package and each component of the
detergent package. The detergent NPRM also proposed that, upon EPA's
request, a sample of the detergent additive must be provided to the
Agency for evaluation.
The information reporting requirements finalized in the interim
detergent rule (at Sec. 80.141(c)) maintains the proposed requirement
that the exact amount of each component of the detergent additive
package must be reported, and specifically prohibits the reporting of
any detergent-active component as the product of other chemical
reactants. In addition, the interim rule requires that, for each
detergent-active component, the registration must indicate which of the
following chemical categories applies: (1) Polyalkyl amine, (2)
polyether amine, (3) polyalkylsuccinimide, (4) polyalkylaminophenol,
(5) detergent-active carrier oil, (6) other detergent-active component.
The interim regulations state that a single detergent additive
registration may contain no variation in the identity or concentration
of any detergent-active component.8 The regulations require the
availability of an analytic procedure, preferably based on FTIR, that
is capable of both qualitative and quantitative identification of each
component of the detergent additive package. The regulations do not
require that the procedure be capable of identifying the additive when
mixed in fuel.
---------------------------------------------------------------------------
\8\ Subsequently, in Question and Answer Document #3 (Docket
item IV-C-10), EPA clarified that only downward variation in the
concentration of any detergent-active component was prohibited.
---------------------------------------------------------------------------
Following publication of the interim rule, CMA proposed several
alternatives to those requirements. CMA stated that the compositional
reporting requirements in the interim rule failed to recognize the
essential chemical nature of deposit control additives and the
processes by which they are manufactured. CMA asserted that compliance
with the requirements would be impossible, given the non-homogeneous
nature of detergent polymers and carrier oils, and the inherent
variability in detergent manufacturing, blending, and analytic sampling
processes. CMA was also concerned about the compositional test results
required to establish a defense to presumptive liability under
Sec. 80.156(c)(4)(ii) of the interim regulations.
CMA suggested that, rather than exact concentrations, only target
concentrations of the various detergent-active components should be
required to be reported for registration. CMA also stated that
registrants should not be precluded from reporting detergent-active
components as the product of other chemical reactants, provided that
the registrant also provide a description of product parameters that
are sufficient to effectively define the registered product.
As described fully in the Summary and Analysis of Comments and in a
memorandum to the docket,9 EPA has
[[Page 35319]]
considered the various issues raised by CMA, and has also reviewed its
own experience with the interim program. Under the interim program,
some manufacturers appear to have been able to comply with the
requirement to specifically identify and quantify each component of the
detergent package, while others have maintained that they are unable to
comply. While this experience does not enable EPA to make a definitive
judgment as to the general appropriateness of the interim reporting
requirements, it does demonstrate an ongoing problem in at least some
cases. Thus, EPA is adopting several provisions in today's rule that
will provide alternative reporting requirements. EPA believes these
alternative will accommodate industry's reasonable concerns about
practical and technical limitations on the ability to define detergent
additive composition, while also providing EPA with assurance that
detergent composition variability will not adversely affect in-use
deposit control effectiveness. The requirements finalized in today's
rule are summarized below.
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\9\ ``Interactions Between the Environmental Protection Agency
(EPA) and the Chemical Manufacturers Association (CMA)'', Jeff
Herzog, OMS, Judy Lubow, OECA, Docket item IV-E-41.
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1. Compositional Data. The interim rule's requirement that all
components of the detergent additive package be identified chemically
and by concentration (weight or volume percent of the product, as
applicable) will remain in effect. Within a single detergent additive
registration, the identity of detergent-active components is still not
permitted to vary. However, today's final rule accommodates
manufacturing variability to a greater degree than previously allowed
under the interim rule. Specifically, a range of concentrations is
permitted to be reported for detergent-active components, provided that
at the lower end of the range, the deposit control effectiveness of the
additive package is not less than that demonstrated during
certification testing.10
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\10\ Detergent certification testing must be conducted with
each detergent-active component present in the test fuel at a
concentration that does not exceed the concentration reported as the
lower bound in the range of concentrations.
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Recognizing the heterogeneous nature of the carrier oils and
detergent-active polymers which frequently occur in detergent additive
formulations, these final regulations provide two methods by which the
chemical composition of detergent-active components may be reported.
When it is reasonable to do so, detergent-active components are to be
identified (as originally proposed) using standard chemical
nomenclature or a description of the chemical structure, or both.
However, when the manufacturer believes this requirement to be
infeasible or impractical, detergent-active components (both detergent-
active polymers and detergent-active (chiefly synthetic) carrier oils)
may be reported as the product of specified reactants. In such cases,
the reactant materials must be identified, together with the acceptance
criteria normally used by the manufacturer for determining that these
materials are suitable for use in synthesizing the detergent
components. Upon EPA's request, documentation must be provided by the
manufacturer that the reported acceptance criteria are in fact those
normally required of its suppliers. In addition, the detergent-active
components must be described by means of gel permeation chromatography
(GPC), providing a quantitative distribution of the polymeric
components by molecular size. The GPC requirements include a
description of the test procedure, including the use of appropriate
calibration standards, and the resulting chromatograms. EPA believes
that, when combined with other reporting and sample requirements
(described below), this alternative approach will provide adequate
identifying information for detergent-active components.
For non-detergent-active carrier oils (usually petroleum-based),
the additive manufacturer must provide the percentage by weight of
oxygen, nitrogen and sulfur, when present in the carrier oil at greater
than 0.5 percent by weight. In addition, the manufacturer must provide
the T10, T50, T90, end boiling point, API gravity, and viscosity of the
carrier oil mixture.
These registration requirements will provide some useful
information for determining whether an in-use detergent additive
conforms to the composition of the detergent additive package which was
shown to be effective during certification testing. However, in light
of the limited ability of detergent manufacturers to precisely define
the chemical properties of their additive, EPA believes that additional
means are needed by which conformity with the composition reported in
the certification process c
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
an be confirmed. Therefore, today's rule
requires a sample of the detergent product to be submitted to EPA at
the time the certification letter is sent to the Agency, as well as an
FTIR-based test procedure together with the actual infrared spectra
produced by the procedure.
Under the interim rule and proposed certification rule, these items
were to be submitted on a per-request basis only. Thus, to accomplish
the Agency's objectives, EPA could have chosen to request the detergent
sample and FTIR from each additive manufacturer individually at the
time of detergent certification. However, this would be a time-
consuming and inefficient procedure. In fact, EPA's past experience
indicates that manufacturers may be reluctant to cooperate with such
requests. Therefore, EPA has instead chosen to require the submission
of these items with every certification letter. It should be noted,
however, that submission of detergent samples to EPA at the time of
certification does not mean that the Agency will confirm the validity
of the compositional information submitted by the additive
manufacturer. EPA reserves the right to request and analyze other
samples. Some detergent samples (or portions of samples) may indeed be
used to verify the registration information provided by the additive
manufacturers; others may be kept as baseline samples for monitoring
the conformity of future production batches. Detergent samples may also
be used by EPA chemists in efforts to develop improved analytical
methods for detergents and their components.
EPA is sensitive to manufacturer's concerns about the handling of
the samples they submit. To ensure the proper treatment of samples
claimed as confidential by the manufacturer, the regulations require
the detergent samples to be sent to EPA's chemistry laboratory in Ann
Arbor, which handles and stores such proprietary materials as part of
its day-to-day operations.11 Information claimed as confidential
will be protected as required under EPA's regulations concerning
confidential business information, at 40 CFR part 2. EPA also will take
all reasonable steps to maximize the shelf life of detergent samples.
To that end, today's rule requires that manufacturers inform EPA about
any known sample shelf life limitations, if any, and to indicate what
conditions (e.g.,temperature or light exposure) most affect shelf life.
Such information should be readily available to additive manufacturers
for their own quality control purposes.
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\11\ See Docket item IV-B-09 for a discussion of the procedures
that will be observed in handling proprietary detergent additive
samples.
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The Agency anticipates that detergent shelf life (i.e. the length
of time during which all of the pertinent properties that define a
detergent's functionality remain unchanged) will nearly always exceed a
year or more. In addition, certain basic properties (e.g., API gravity,
and viscosity), tend to be less sensitive to the passage of time. Thus,
a detergent sample may be useful for
[[Page 35320]]
certain limited testing purposes even after the normal shelf life has
expired. After an additive sample is no longer suitable for any
analytical testing purposes, it will be destroyed by the Agency.
Today's rule contains one additional compositional reporting
requirement which detergent manufacturers must fulfill if they wish to
be able to take advantage of relatively simple mechanisms which the
rule provides for demonstrating an affirmative defense to presumptive
liability (see Section VIII.B.2.a of this preamble). This provision
requires the manufacturer to submit to EPA certain physical product
parameters which will be monitored on each detergent production batch
for quality control purposes. Generally, the parameters to be monitored
for affirmative defense purposes include viscosity, density, and basic
nitrogen content, although other parameters may be added or substituted
upon the manufacturer's request and EPA's approval. For each such
parameter, the target value and range of variability and a description
of a standardized measurement test procedure are to be provided at the
time of certification. The designated test methods must be consistent
with the chemical and physical nature of the detergent product, and the
documented ASTM repeatability 12 for the method must be specified.
EPA will consider the parameter measurement to be an acceptable basis
for establishing an affirmative defense to presumptive liability if the
range of variability differs from the target value by no more than five
times the ASTM repeatability value, or by no more than 10 percent of
the target value, whichever is less. Due to the practical limitations
associated with the measurement of small quantities of certain product
parameters, this variability limit does not apply in the case of
nitrogen analysis (or other procedures for measuring concentrations of
specific chemical compounds or elements) when the target value is less
than 10 parts per million. In such cases, the acceptable variability is
instead limited to 50 percent of the target value.
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\12\ Repeatability of a test method is defined by ASTM as the
quantitative expression of the random error associated with a single
operator in a given laboratory obtaining replicate results with the
same apparatus under constant operating conditions on identical test
material within a short period of time. It is further defined as
that difference between two such single results as would be exceeded
in the long run in only one case out of twenty in the normal and
correct operation of the test method. (ASTM D 3244, Standard
Practice for Utilization of Test Data to Determine Conformance with
Specifications.)
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EPA believes that establishing such limitations on the acceptable
range of product parameter variability is necessary to a credible claim
that a given batch of detergent is equivalent to the certified
detergent product. This is especially important in view of the fact
that deposit control performance testing is required only on a single
detergent sample of a given composition. While acknowledging that some
production variability is expected, EPA must still ensure that the
functionality of the detergent actually produced is reasonably
equivalent to that demonstrated during certification. EPA believes
that, along with other affirmative defense elements, the required
limits on manufacturing variability will provide adequate assurance on
a routine basis that the composition and attendant deposit control
efficacy of detergent production batches do not vary to such an extent
that the minimum recommended treatment rate reported by the additive
manufacturer is no longer representative of the detergent's actual
performance. Outside of these limits, EPA is not sufficiently confident
that the composition of detergent production batches would provide
adequate deposit control. The affirmative defense provisions in today's
rule provide additive manufacturers with practical and economical
methods to demonstrate that the deposit control efficacy of detergent
batches is maintained, while allowing a reasonable degree of production
variability. The regulations also allow manufacturers who cannot meet
these variability limits to request (and justify) other arrangements.
2. Minimum Effective Concentration. As specified in Sec. 79.21(d),
a fuel additive registration must report the minimum blending
concentration which the manufacturer recommends for the additive in
each type of fuel for which the additive's use is designated. In the
case of detergent additives registered for use in gasoline, the minimum
recommended concentration is required to be no less than the lowest
amount which the additive manufacturer has determined to be effective
for deposit control. Thus, the minimum recommended concentration is
also the lowest additive concentration (LAC) which the detergent
blender may use in gasoline to be in compliance with the detergency
requirements of this program (subject to any use restrictions that may
be applicable under a given certification option).
The interim detergent regulations require that the reported minimum
effective concentration be supported by appropriate test data, which is
to be supplied to EPA upon request. While rigorous test procedures and
performance standards are not specified, the interim rule does contain
general guidelines regarding the type(s) of tests and test fuels which
EPA will regard as sufficient, during the interim period, for
demonstrating an additive's deposit control effectiveness at the
specified minimum concentration. These flexible testing requirements
were appropriate, given the purpose and practical limitations of the
interim program.
As described in subsequent sections, however, the detergent
certification program requires that the minimum recommended
concentration be determined on the basis of specific deposit control
performance standards, as shown in the context of specific performance
tests and test fuels. Moreover, this final rule offers a number of
certification options (described in Section IV), such that a different
minimum concentration may be determined for different gasoline pools
(e.g., national, PADD, fuel-specific) or gasoline types (e.g., premium,
oxygenated, nonoxygenated). Thus, in reporting the minimum recommended
concentration(s) for gasoline detergent additives, the additive
manufacturer must also specify the applicable certification option(s)
for each minimum concentration. In addition, if the detergent is also
registered separately for use in leaded gasoline, the applicable
minimum concentration for deposit control in leaded gasoline must be
specified. This amount may be the same as that needed for PFID control
under any certification option (except fuel specific) or, optionally,
the amount demonstrated to be needed for carburetor deposit control.
The information on minimum concentration, as reported in the
detergent registration, must also be accurately communicated by the
additive manufacturer to its customers, i.e., detergent blenders and
secondary additive manufacturers. For protection of all parties
involved in the transaction, this communication must be made in
writing. For example, if a gasoline misadditization were to occur, such
that detergent were added at a concentration less than the required
minimum amount, the detergent manufacturer could potentially be held
liable for the misadditization unless he could demonstrate that proper
blending instructions were provided prior to the additization. These
liability issues are discussed further in Section VIII of this
preamble.
[[Page 35321]]
3. Certification Letter. In addition to satisfying the above
requirements concerning detergent additive composition and recommended
concentration, the additive manufacturer (or other party wishing to
certify the detergent 13) must submit a certification letter to
EPA. The certification letter must include a statement attesting that
the additive has undergone the performance testing required by the
regulations, using the specified test fuels, and has met the deposit
control performance standards required for certification. The statement
must also affirm that the performance tests were conducted in a manner
consistent with sound engineering practices, and that complete
documentation of the test fuel formulation, performance test
procedures, and test results is available for EPA's inspection. In
addition, the letter must provide summary information on the test fuel
composition and source(s), the additive concentration(s) used in
certification testing, the results of the testing, and the lowest
additive concentration (minimum recommended concentration) which the
certifier seeks to establish for each certification option under which
the detergent is to be certified. This is a self-certification process,
with the party providing EPA with information that indicates compliance
with the various requirements. EPA will not issue a certificate, for
example as done in the Federal motor vehicle emissions control program.
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\13\ For example, in the case of a fuel-specific certification,
the certifying party could be the fuel manufacturer or another party
with title and access to the segregated fuel supply, rather than the
detergent manufacturer. See Section IV.D.
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The Agency will acknowledge receipt of the certification letter.
The certification date will be the earlier of either the certifier's
receipt of EPA's acknowledgement, or 60 days after EPA's receipt of the
certification letter, as documented by a certified mail receipt. EPA
does not intend routinely to examine the full test documentation, and
will in many cases rely on the certifier's attestations. Neither EPA's
acknowledgement of receipt of the letter or the passage of time
indicates that the certification letter has been reviewed by the Agency
or that a determination has been made regarding whether the
requirements of certification have been satisfied. This is consistent
with the self certification approach adopted in this rule. On a case-
by-case basis, EPA may require that an additive certifier provide the
actual test data to EPA to substantiate the claim of deposit control
effectiveness made in the certification letter. EPA believes that the
declaration by the certifier that a detergent certification meets the
program testing requirements, coupled with the occasional Agency review
of certification test data, should provide reasonable assurance that
the program requirements will in fact be met in the vast majority of
cases.
EPA might request submission of supporting data for a variety of
reasons. For example, the detergent treat rate recommended by an
additive manufacturer under one certification option may seem anomalous
relative to the treat rates recommended for the same additive under
other certification options. Alternatively, the treat rates recommended
by one additive manufacturer may not be consistent with the treat rates
recommended by manufacturers of apparently similar additives. EPA may
also learn from fuel or automobile manufacturers that a particular
detergent product appears to be less effective than others. For these
or other reasons, including random oversight of compliance, EPA may
request that the additive certifier provide some or all of the test
procedure and fuel data required under the regulations. In such a case,
the detergent registrant must provide the supporting data to EPA within
30 days of receipt of the request for such data. If EPA judges the
supporting data to be inadequate (or if it is not received), EPA may
disqualify the subject detergent for use in compliance with the
requirements of this rule (see Sec. 80.161(e)). The detergent additive
manufacturer will be required to provide EPA with a list of its
customers who use the disqualified detergent. EPA shall inform all such
fuel manufacturers and secondary additive manufacturers that the
detergent is no longer eligible for use in complying with Federal
gasoline detergency requirements. In addition, EPA may initiate the
enforcement actions described in Section VIII.
Under the interim program, a disqualification order becomes legally
effective for the additive manufacturer five days after its publication
in the Federal Register. Today's rule provides that under the
certification program a disqualification order will become effective
for the certifier on the date the order is received by the certifier.
The disqualification order will be published in the Federal Register as
under the interim program. However, EPA believes there is no reason to
delay the effective date of a disqualification for the certifier past
the date when the notification is received from EPA. At this point in
the disqualification process, the certifier will have been afforded
ample notice of a disqualification and an opportunity to participate in
the Agency's evaluation of whether the disqualification was
appropriate. Thus, the certifier will have had sufficient opportunity
to prepare to comply with the disqualification order upon its arrival.
If the certifier is also a blender of the disqualified additive, the
certifier must also stop using the ineligible detergent upon receipt of
the disqualification order. As under the interim program, other
blenders affected by the disqualification order will be afforded 45
days from their receipt of a notification from EPA that the detergent
is no longer eligible for use to comply with gasoline detergency
requirements, or 45 days from the publication of such notification in
the Federal Register, which ever is sooner, to discontinue use of the
disqualified detergent and substitute an eligible detergent additive.
B. Information Requirements for Fuel Manufacturers
The NPRM and the interim detergent program recognized that
detergent blenders, as fuel manufacturers (under the existing
definition of a fuel manufacturer in Sec. 79.2(d)), are subject to
standard fuel registration requirements under 40 CFR part 79. These
standard requirements include the identification of any additive
products intended to be used in the registered fuel and the range of
concentration of each such additive in the fuel. The only additional
feature proposed to meet the information requirements for fuel
registration under the detergent program was that the lower boundary of
the range of concentration of detergent additives could be no less than
the minimum recommended concentration specified in the detergent
additive's registration, unless otherwise approved by EPA under special
circumstances.
For reasons not directly related to the detergents program, EPA is
currently considering possible changes to the definition of ``fuel
manufacturer'' in Sec. 79.2(d). If this change is adopted, EPA realizes
that many detergent blenders would no longer be required to submit the
registration information envisioned in the NPRM. However, EPA
experience under the interim program indicates that EPA's monitoring
and enforcement activities regarding the proper use of certified
detergents rely much more on the detergent blenders' additization
accounting records (see Section VIII) than on the up-front registration
information which they would be required to submit. Thus, while this
final rule requires detergent blenders to maintain specific records
concerning
[[Page 35322]]
their additization activities, it does not include any special
registration requirements for detergent blenders, nor for fuel
manufacturers in general.
IV. Certification Options
A. Background
The gasoline produced by the U.S. refining industry is not
homogeneous with respect to the tendency to form deposits. Gasoline
pools with different characteristics occur as a result of different
crude oil sources, refining capabilities and fuel distribution
networks, the octane rating of gasoline provided for different engine
designs, and regulatory programs which control certain parameters in
gasoline sold in polluted urban areas. A study of the relative deposit-
forming severity of these gasoline pools showed that different pools of
gasoline may vary in their deposit forming potential, as reflected by
different distributions in the levels of specified ``severity factors''
(see Section VI). To provide industry the opportunity to optimize the
detergent additization of these various pools while still ensuring the
environmental benefits of the program, EPA proposed detergent
certification options based on the deposit related characteristics of
the various gasoline pools.
The proposed certification options included a nationwide program,
geographical options based on the Petroleum Administration Districts
for Defense (PADDs), oxygenate options because of the variety of
oxygenates which may be blended into gasoline to meet regulatory
requirements or octane specifications, an option for premium gasoline,
and a fuel-specific option for segregated gasoline pools. These options
are all being finalized in today's rule. EPA also proposed an option to
certify detergent additives for use in reformulated gasoline. However,
as discussed in more detail below, the deposit-forming severity of that
pool of gasoline has not yet been sufficiently characterized. Another
proposed option would have allowed detergent additives certified for
California gasoline to be used in all PADD V gasoline, but for the
reasons discussed below in Section V, EPA is not finalizing this
option. Nevertheless, California certifications will be accepted for
demonstrating compliance with the certification requirements of the
Federal program in California (see Section V). A proposed second tier
of detergent certification, to ensure sufficient additization of the
most severe gasolines, is also not finalized today. All these options
and the comments by the public on these options are discussed further
below.
It is important to understand that the choice of a particular
certification option actually represents a choice as to the test fuel
in which a particular detergent will be mixed when it undergoes
certification testing. (Test fuel composition [severity] is an
important element in determining the challenge to a detergent's ability
to control deposits represented by certification testing.) As a result
of such testing, a required minimum treat rate (minimum recommended
concentration or lowest additive concentration) will be established for
the additive when used in the type of gasoline represented by the test
fuel. In other words, the certification of a detergent under a
particular certification option has the result of setting a treat rate
for that detergent in the pool of gasoline covered by the certification
option. To say a detergent has been certified under several options
merely means that the detergent has undergone performance testing in
the context of several different test fuels, each representing a
different option, and that different treat rate requirements have thus
been established for the additive when used in the different gasoline
pools covered by these options. The relationship between certification
options and test fuels is discussed further in Section VI of this
preamble.
These options, when considered together, provide a great deal of
flexibility to the fuel industry for additizing gasoline. Of course, in
each situation, the industry must find the optimal balance between the
costs of additional certification testing and the potential opportunity
to use reduced additive amounts in particular gasoline pools. Based on
the number of oxygenates listed in the discussion on the oxygenates
suboption below, there are over 90 different combinations of
certification options and suboptions. Table #IV-1 summarizes the
categories of options and suboptions.
Table #IV-1.--Options and Suboptions for Certification of Detergent
Additives
------------------------------------------------------------------------
Options Suboptions
------------------------------------------------------------------------
Nationwide Option......................... Generic Certification; *
Oxygenated;
Nonoxygenated;
Oxygenate-Specific;
Premium:
Oxygenated;
Nonoxygenated:
Oxygenate-Specific.
PADD Option for PADDs I, II, III, IV, and Generic Certification;
V Outside California. Oxygenated;
Nonoxygenated;
Oxygenate-Specific;
Premium:
Oxygenated;
Nonoxygenated:
Oxygenate-Specific.
Fuel-specific Option...................... Parallels National and PADD
Specific Certification.
California Equivalency.................... Per CARB Certification.
------------------------------------------------------------------------
* Prescribed test fuel must contain 10% ethanol.
B. Single-Tier Certification System
In the NPRM, EPA proposed two detergent certification tiers. The
first tier would target the deposit control requirements of ``typical''
gasoline, containing relatively moderate levels of specified fuel
severity factors (sulfur, olefins, aromatics, and T-90). The second
tier was proposed as a means for controlling deposit formation from the
most severe gasolines. A gasoline would be identified as ``most
severe'' when at least one of the identified severity factors in the
gasoline was at or above the 95th percentile of the distribution of
measured values for that parameter in gasoline survey data. EPA
proposed the second tier certification because of the concern that
these most severe gasolines might exceed the ability of the detergent
additive, at the concentration required by the first tier, to control
engine deposits at the required level. EPA was particularly concerned
about the possibility that some motorists might consistently choose to
use the same brand of gasoline, which might happen to be the most
severe brand of gasoline available in an area. Used perennially, these
most severe gasolines could exceed an additive's ability to control
deposits and lead to much higher motor vehicle emissions and
driveability problems for those motorists.
As proposed, the additive manufacturers would certify their
additives to the second or more severe tier through the use of test
fuels containing higher concentrations of the gasoline severity
parameters. The expected results would be higher additive treat rate
requirements for the high-severity gasolines. Detergent blenders would
be responsible for testing their gasoline on a weekly or batch-by-batch
basis to characterize the severity of their gasoline using specified
[[Page 35323]]
test methods. Then, if the gasoline exceeded the 95th percentile of the
gasoline severity distribution created from survey data, the fuel
blender would have to additize its gasoline at the concentration
prescribed for the high-severity gasoline pool.
Comments submitted by both the oil and automobile industries were
opposed to the two-tier scheme for additizing gasoline. These comments
and other available information suggest that only rarely will
particular service stations or localities continually be supplied with
only the most severe additized gasoline. More often, the impact of
severe gasolines will be moderated by the consumer's subsequent use of
less severe gasoline. Furthermore, a review of PADD-specific gasoline
survey data suggests that gasoline which may be labeled severe because
of high levels of one or two severity factors may have relatively low
levels of the other severity factors. Thus, the incremental testing,
monitoring, and recordkeeping requirements that would be needed on a
regular basis to address the relatively rare instances in which the
impact of very severe gasoline might be significant and long-lasting do
not seem warranted. EPA concludes that the potential benefits of a
second tier of detergent additive certifications for severe gasolines
are uncertain, and do not justify the incremental costs and burdens.
This final rule, therefore, is based on a single-tier certification
approach. A complete description of the public comments on this issue
and EPA's associated analysis are contained in Section IV of the
Summary and Analysis of Comments document.
C. Geographical Certification Options
1. National Certification. To obtain a national certification, the
certifier must demonstrate a detergent additive's compliance with the
performance standards through testing with specified test fuel(s) based
on characteristics of the national gasoline supply (see Section VI).
The LAC established under a generic national certification option will
be valid for use of the detergent in any type of gasoline, oxygenated
or nonoxygenated, unleaded or leaded, of any octane grade, that is sold
in the United States, including imported gasoline. However, California
fuel marketers should be aware that CARB requires detergents used in
California gasoline to comply with CARB detergent certification
requirements, and that a detergent certified under the Federal program
may or may not also satisfy CARB's certification requirements.
Therefore, parties additizing gasoline for sale in California must
ensure that they are in compliance with both the Federal and CARB
detergent programs (See Section V for the applicability of a CARB
certification in meeting Federal detergent requirements).
The test fuel for the generic national certification option must
contain four specified severity parameters at no less than the 65th
percentile of the national survey data, and must be blended with
ethanol to 10 percent of the final blended volume. As described in more
detail in Section VI, ethanol was chosen for the generic test fuel
because the available data shows that it tends to have a greater impact
on deposit-forming tendency than the other oxygenates. Using different
test fuels, national certification can also be obtained for a variety
of subpools of the national gasoline supply (e.g., oxygenated versus
nonoxygenated, premium, and combinations of these pools). These
suboptions are further discussed below.
EPA proposed the national certification option and suboptions to
provide a broadly applicable method to certify a detergent. EPA
anticipates that many major gasoline marketers will use the national
certification option because of the simplicity of blending one
concentration of detergent additive in all the fuel manufacturers'
gasoline across the nation. In their comments on the proposed rule, the
refining industry supported the national option and stated that most of
its member companies would probably use this option.
2. PADD Certification. As described above, the prescribed additive
treatment levels under the national certification option are based on a
spectrum of nationwide gasolines. As a result, for some pools of
relatively low-severity gasoline distinguished by their geographical
location, the national option may cause more additive to be used than
necessary to maintain the required level of deposit control
performance. Thus, additive costs might tend to be higher than
necessary for those pools of gasoline. EPA's analysis of the
distribution of gasoline severity factors showed that the composition
of gasoline sold tends to differ between the various PADDs of the
United States. This difference probably results from the varying
sources of crude oil and the differences in crude processing
capabilities among the refineries in each PADD, and the relatively
consistent pattern of gasoline production and distribution within the
PADDs.
Given these fuel compositional differences between the PADDs, EPA
proposed, and is now finalizing, detergent additive certification
options applicable to the gasoline sold within each PADD. A PADD
certification can be obtained by demonstrating compliance with the
performance standards through testing on a specified test fuel(s) based
on the characteristics of the gasoline sold in the given PADD. As
summarized in Table #IV-1 above, the PADD certification option
parallels the national certification option in that there are
opportunities for a generic PADD certification or certification under
specified suboptions.
A PADD certification pertains to the additive treat rate
requirements for the gasoline sold to retail outlets, wholesale
purchaser consumers (WPC), or to the ultimate consumer within a PADD,
no matter where the gasoline may have been refined or additized. This
reflects the fact that the PADD certification test fuels are defined
according to survey data of gasoline sold at retail outlets within the
PADD, not gasoline produced or additized within the PADD. For a
detergent blender who commonly distributes detergent-additized gasoline
across PADD lines, and who wishes to have full flexibility as to the
destination of each batch of additized gasoline, a detergent with a
national certification would probably be more appropriate than a
detergent subject to the use restrictions of a PADD certification. Use
of a PADD-certified detergent will be most practical when the
downstream distribution networks from a given blending facility
terminate within a single PADD, or when a detergent blender is willing
and able to implement control systems to ensure that gasoline blended
with a PADD-certified detergent will end up at a retail outlet within
the appropriate PADD.
A PADD V certification is applicable only to the PADD V states
other than California. Accordingly, the required test fuel is based on
gasoline survey data collected from PADD V excluding California. This
is appropriate because California Phase II reformulated gasoline is
expected to be much less severe than gasoline available elsewhere in
PADD V (see Section V).
PADD certifications are likely to be sought only when the
respective certification test fuel specifications will result in a
lower minimum detergent treatment rate requirement than under a
national certification, i.e. for PADDs with less severe gasoline. In
the more severe PADDs, i.e., those in which the gasoline supply tends
to have higher levels of deposit-forming characteristics than the
national supply, the PADD certification test fuel specifications would
result in higher treatment requirements. Thus the national
certification option would likely be
[[Page 35324]]
chosen. This raises a potential concern that gasoline in relatively
severe PADDs might receive inadequate amounts of additive.
For this reason, the generic national test fuels have been designed
to represent greater than average deposit-forming conditions. For
example, as explained in detail in Section VI, this final rule
specifies that each test fuel must contain the fuel severity factors at
no less than the 65th percentile in the respective fuel survey
distribution. Only a very small proportion of the gasoline sold in the
United States contains the combination of all four of the fuel severity
parameters at levels this high or higher. Other approaches for assuring
adequate deposit control in the more severe PADDs were also considered
by EPA in the NPRM. As already discussed above, one option would be to
apply a second level of additization based on severity for national or
PADD certification, which would be triggered by a high level of one or
more severity parameters. For the reasons discussed, this approach was
not followed in this final rule. Under another alternative, the
national certification would be abandoned and only PADD-based
certifications would be allowed. This alternative was not pursued
because EPA judged it would multiply the costs of certification and
recordkeeping without sufficient additional benefit. In a third
alternative, national certification would still be allowed, but the
specifications on national test fuel severity would be increased to
provide additional assurance of adequate stringency for all PADDs. Due
to the wide support expressed for the proposed option in the comments,
the lack of support for these other alternatives, and a desire to limit
certification testing and additization costs to levels that are offset
by concomitant benefits, EPA has decided to finalize the proposed
methods of national and PADD certification, and to omit the
alternatives considered.
EPA believes that the PADD option in conjunction with the national
certification option will give the regulated industry a high degree of
flexibility toward optimizing the amount of detergent additive used in
fungible gasoline while ensuring adequate additization under either
option. The choice for each certifier of what combination of PADD and
national certifications to undertake will be made according to the
characteristics of the certifier's particular refinery, distribution,
or marketing network, weighing the additional cost of certification in
multiple areas against the potential savings (or competitive advantage)
of achieving a lower certified LAC.
3. U.S. Territories. This final rule requires gasoline sold in U.S.
territories to be additized at the concentration required under the
national certification option. In the NPRM, EPA acknowledged that its
information on gasoline severity and distribution networks was
insufficient to propose that a territory may be additized consistent
with the requirements of a particular PADD. Comment was requested on
whether it would be appropriate to include U.S. territories under a
PADD certification option and how territories could be appropriately
assigned to the various PADDs. EPA also requested comment on whether
special circumstances affecting gasoline supply, distribution, or
marketing might make compliance with these rules unreasonably
burdensome in some or all of the territories and whether special
provisions should apply or if these territories should be exempted.
EPA did not receive any response to the request for comments and
has not obtained additional information which would help determine if
the gasoline sold in any of the territories is consistent with any
specific PADD. Thus, the final rule requires gasoline sold in U.S.
territories to be additized with a nationally certified detergent at
the appropriate level.14 This will ensure a high level of deposit
control protection in these territories. In the NPRM, EPA identified
the following U.S. territories: Virgin Islands, Guam, the Commonwealth
of the Northern Marianas Islands, and Puerto Rico. American Samoa was
inadvertently omitted from this list, and is now properly noted as a
U.S. territory and therefore subject to Federal gasoline detergency
requirements.
---------------------------------------------------------------------------
\14\ However, this provision of the final rule does not affect
the potential availability of a special exemption for certain
territories under CAA section 325. Section 325 provides that, upon
petition by the respective governor, the Administrator is authorized
to exempt any person or class of persons in certain territories
(Virgin Islands, Guam, Commonwealth of the Northern Marianas
Islands, and American Samoa) from certain requirements under the
CAA, including the gasoline detergency requirements. Such an
exemption may be granted if the Administrator finds that compliance
with a regulatory requirement is not feasible or is unreasonable due
to unique geographical, meteorological, or economic factors within a
given territory, or such other local factors as the Administrator
deems significant. Puerto Rico is not included among the territories
permitted to petition the Agency for an exemption under the
provisions of Section 325.
---------------------------------------------------------------------------
4. Certification Sub-Options.
a. Nonoxygenated Gasoline Certification Option. The data presented
in the NPRM on the fuel parameters that impact deposit-forming severity
indicate that the addition of oxygenates such as ethanol and MTBE tends
to increase the amount of additive required to maintain the desired
level of deposit control protection. Thus, the generic certification
approach, based on test fuels containing oxygenate at the maximum
percentage, may lead to overadditization of nonoxygenated gasoline.
Thus, EPA is permitting the separate certification of detergents for
nonoxygenated gasolines, using appropriate nonoxygenated test fuels.
This suboption can be used in conjunction with the national and PADD
options, the fuel-specific option, and the premium fuel suboption.
b. Oxygenate-Specific Certification Option. A generic national or
PADD certification option based on ethanol-blended test fuels may
require higher additive blend concentrations and higher costs than
necessary for gasolines blended with oxygenates other than ethanol.
Thus, EPA is allowing specific certification of additives based on
testing with fuels containing other oxygenates. Examples of such other
oxygenates include ethyl tertiary butyl ether (ETBE), tertiary amyl
methyl ether (TAME), tertiary amyl ethyl ether (TAEE), tertiary hexyl
methyl ether (THME), diisopropyl ether (DIPE), and tert-butyl alcohol
(TBA). Like ethanol, the concentration of these oxygenates in the test
fuels shall be at the maximum concentration allowable in commercial
gasoline. However, while a detergent certified with a test fuel
containing ethanol can be used in gasoline containing any other
oxygenate or no oxygenate, oxygenate-specific certification will be a
use-restricted certification option. For example, the minimum additive
concentration determined through performance testing with MTBE-blended
test gasoline will be applicable only to gasoline blended with MTBE, or
without any oxygenates.
EPA requested comment on the potential benefits, problems, and
costs of either providing for or requiring a separate certification for
oxygenated and nonoxygenated fuels, and on the appropriate specificity
regarding the oxygenate to be used in certification testing. In
particular, EPA requested comment on the potential difficulties and
costs associated with differentiating oxygenated and nonoxygenated
gasolines for enforcement purposes. The oil industry supported the
options to certify additives for use in gasoline containing specific
oxygenates, or for use in gasoline without oxygenates. The ethanol
industry disputed the notion that ethanol is more deposit-forming than
the other oxygenates. In addition, they expressed concern that many
[[Page 35325]]
deposit control additives are not soluble in ethanol, thus restricting
ethanol blender choices for additizing ethanol blends. They further
contended that fuel manufacturers and blenders may not be willing to
continue using ethanol if they are placed at economic risk in case of
disruption in the supply of the appropriate detergent additives
available to them. EPA evaluated the available data on the solubility
of detergent additives in ethanol-gasoline blends and determined that,
even though some detergent additives may not be soluble in pure
ethanol, most (if not all) are soluble in the 10 percent and lower
ethanol blends currently being produced.
The ethanol industry also commented that fuel blenders who blend
ethanol into gasoline would be precluded from doing so if the gasoline
is already blended upstream with a detergent additive that is either
not certified for, or not used in sufficient amount to account for, the
addition of ethanol. This final rule requires incremental additization
when ethanol is added to previously additized gasoline, as proposed,
but to address the ethanol industry's concern, the rule permits a
different detergent to be used than the one already present in the
gasoline. The amount of incremental detergent must be sufficient to
account for the increase in base fuel severity caused by the presence
of ethanol, as well as the detergency requirements of the added ethanol
volume itself. To allow the proper amount to be determined, the newly
added detergent must be one which has been certified both for
nonoxygenated gasoline and for ethanol-blended (generic use) gasoline.
The proper incremental amount can then be computed based on the
different rates required under the two certifications. Additional
discussion of this issue and similar ``cures'' for other use
restrictions can be found in Section VIII of this preamble.
c. Premium Grade Certification Option. An analysis of AAMA fuel
survey data in the NPRM showed that premium gasolines, defined as
having an octane rating of $91 (R+M)/2, tend to have lower olefin
content, sulfur content, and T-90 than regular and intermediate grade
gasolines. Of the four pertinent nonoxygenated fuel parameters, only
aromatic content is higher in the premium grade. This suggests that
premium fuels may require a lower concentration of detergent additive
to maintain the same level of deposit control performance.
Based on these compositional differences, EPA expects that a
separate detergent certification suboption for use in premium gasoline
within the national and PADD certification options would allow the
industry to reduce costs by reducing the amount of additive required.
The oil industry supported the premium suboption in their comments on
the NPRM. Thus, the final rule will allow certification of additives
for use in premium gasoline.
d. Reformulated Gasoline Certification Option. The Federal RFG
regulations (59 FR 7716, February 16, 1994, 40 CFR 80.40) require
changes to gasoline in certain areas where the national ambient air
quality standard for ozone is not being met, and these changes may
potentially affect the deposit forming tendency of these gasolines. The
first phase of the RFG requirements, which took effect January 1, 1995,
is expected to cause a small reduction in some or all of the four
deposit-forming severity factors, although the oxygenate that the
program requires to be blended into RFG could counter the potential
fuel severity benefits. However, the effect of oxygenates must be
considered for all fuels under the detergents program and is therefore
not a particular concern with respect to RFG. Beginning in the year
2000, more stringent RFG fuel reformulation requirements will take
effect, and may result in more substantial reduction in deposit-
formation severity (mainly, a large sulfur reduction).
Anticipating that RFG may cause changes in gasoline severity, EPA
considered including a separate detergent certification option for use
in RFG. In the NPRM, EPA proposed the adoption of either a required or
optional RFG certification option and asked for comments on these
potential options. The oil industry favored a separate RFG option as
long as it was not required. However, EPA recognizes that sufficient
RFG survey data is not yet available for differentiating the deposit-
forming tendency of RFG from conventional gasoline, or from which to
establish test fuel specifications for an RFG test fuel. When
additional data becomes available, the Agency intends to review the RFG
severity parameter levels and compare them to other pools of gasoline.
If a review of the survey data shows that there is indeed a significant
difference in the severity of RFG, EPA may propose an RFG option in a
future rulemaking. In the meantime, additives may be certified with a
separate treat rate for RFG based on a refinery's own segregated RFG
pool using the procedures put into place for the fuel-specific
certification option. Otherwise, additives which are certified under
any geographic option may be used in RFG at the certified treat rate.
5. Recertification Requirements. In the NPRM, EPA discussed a
possible mechanism whereby national or PADD recertification could be
required if the composition of the gasoline pool in question changed
sufficiently to bring the adequacy of deposit control into question.
For this purpose, EPA would monitor trends in the composition of the
respective gasoline pools, and would periodically recalculate the
national and PADD percentile concentration values for the relevant
parameters. A need for recertification would be indicated if the newly
calculated 50th percentile level of any one of the monitored fuel
parameters was greater than or equal to the 60th percentile level in
the original fuel survey data.
However, to require recertification under the national and PADD
certification options would entail the adoption of new test fuel
specifications, which would most appropriately occur through a
subsequent rulemaking. Thus, today's rule does not include any
provisions that would automatically trigger national or PADD-based
recertification requirements. If EPA should determine in the future
that gasoline composition has shifted to such an extent to suggest that
detergents certified pursuant to the test fuel specifications in
today's final rule may no longer provide sufficient deposit control
protection, then EPA will publish a public notice that explores
potential recertification requirements and seeks public comment.
D. Fuel-Specific Certification Option
1. General Description. The fuel-specific certification option
proposed in the NPRM is also being finalized in today's rule. This
option provides fuel and additive manufacturers an opportunity to
tailor certification test fuels and subsequent detergent additive treat
rate requirements to the unique characteristics of segregated pools of
low-severity gasoline. These special gasoline pools may be produced
from inherently mild crude oil or, in other cases, from refinery
practices that reduce the deposit-forming tendency of the gasoline.
Such gasoline may require reduced concentrations of detergent additives
to meet the detergency requirements. Reduced additive concentrations,
when multiplied by the large volume of gasoline that is produced, could
provide a refiner or other fuel manufacturer with a substantial savings
in additive costs. To take advantage of this opportunity, however, the
fuel manufacturer must be able to segregate its special gasoline
pool(s) from the general fuel supply until the gasoline has been
blended with
[[Page 35326]]
the detergent additive specifically certified for use in this fuel.
Once properly additized, the gasoline need not be segregated from other
additized gasoline.
The fuel-specific option requires demonstration of the deposit
control performance standards through testing of a detergent additive
in a test fuel that is representative of the subject segregated
gasoline pool. To determine the composition and characteristics of the
segregated pool, certifiers are required to measure the concentrations
of aromatics, olefins, and sulfur in the gasoline, as well as the T-90
distillation point. These parameters are to be measured at least once
per month over a twelve-month period at each refinery or other facility
contributing to the defined gasoline pool, and a percentile
distribution of these defining characteristics is to be constructed. A
fuel sample, located from within the defined pool or blended from the
refinery blendstocks normally used to manufacture this pool, and
containing each of the parameters at a level no less than the 65th
percentile value of the entire pool, is then required to serve as the
test fuel (see Section VI.B., below, and Sec. 80.164(c)(2)).
Fuel-specific certification is fundamentally different from all
other certification options, in that the precise test fuel
specifications are defined by the certifier (under prescribed
procedures) rather than defined by EPA and codified in the regulations.
Thus, the certifier under the fuel-specific option must be a person who
has access to and control over the subject gasoline supply. Frequently,
this will be the refiner or other fuel manufacturer. EPA anticipates
cooperation between additive and fuel manufacturers in implementing the
fuel-specific option. The additive manufacturer retains responsibility
for (1) the registration of its detergent additive, and (2) proper
labeling of the additive as use restricted. In this instance, however,
it may be the fuel manufacturer, or another party with title to and
access to the segregated fuel supply, who takes responsibility for
certification instead of the detergent manufacturer.
Use of a detergent under the conditions of a fuel-specific
certification is restricted only to the defined pools of gasoline
produced by or distributed from the facilities included in the fuel
composition survey. Furthermore, as described in detail below, the
certification will become invalid if the composition of the subject
gasoline pool changes beyond a prescribed amount.
2. Variants. The fuel-specific option, like all other certification
options, gives registrants the flexibility to certify with non-
oxygenated, oxygenated, and/or oxygenate-specific test fuels. Data
indicates that non-oxygenated fuels have a lower deposit forming
tendency than oxygenated fuels and thus require lower concentrations of
detergent additives to provide deposit control. Furthermore, because
the deposit-forming tendency of oxygenated fuels varies from one
oxygenate to the next, some oxygenated fuels may require a lower
additive concentration than others. As mentioned previously,
substantial savings could result from tailoring the detergent
concentration requirements to the deposit-forming characteristics of
the fuel. Accordingly, fuel manufacturers using the fuel-specific
option may further optimize their detergent use by certifying under one
or more oxygenate-related suboptions. These suboptions are implemented
for fuel-specific certification in the same manner as for national or
PADD certifications.
EPA is also aware that some gasolines have such extremely low
deposit-forming tendencies that they may require only a PFID control
additive or, perhaps in some cases, no detergent additive at all. In
these special situations, certifiers may provide EPA with PFID and IVD
test results under the fuel-specific option to demonstrate that a
deposit control additive is not necessary for deposit control.
3. Monitoring and Recertification Requirements. The certifier under
the fuel-specific option is required to monitor fuel composition on a
monthly basis, and must provide an annual report to the Agency on the
composition of the gasoline covered by the certification and how the
composition deviates from baseline data. Recertification will be
required if the composition of the gasoline pool changes such that the
new 50th percentile concentration of any non-oxygenate fuel parameter
(i.e. aromatics, olefins, sulfur, or T-90) exceeds the 60th percentile
concentration reported in the original certification letter. New
percentiles are calculated on an annual basis using the last 12 months
of data. If the baseline percentile level is exceeded, the detergent
blender will be required to stop using the fuel-specific detergent
until recertification is complete and, in the meantime, must substitute
either a national or appropriate PADD-certified additive within 45 days
of the certification renewal date on which the recertification became
necessary to avoid a violation. The fuel-specific detergent may have
also been certified under the national or PADD certification options.
If so, the same detergent additive may be used at the appropriate
national or PADD-certified treat rate.
V. CARB Certifications
A. Background
Section 211(c)(4)(A) of the Clean Air Act generally prohibits
states from adopting their own state fuel programs to control motor
vehicle emissions, once EPA has regulated a fuel characteristic or
component under 211(c)(1). EPA's adoption of a Federal deposit control
additive program would therefore preempt certain state fuel programs.
However, section 211(c)(4)(B) clarifies that the state of California is
not subject to this prohibition. CARB has in fact implemented a
detergent additive certification program effective January 1, 1992
(Title 13, Section 2257 of the California Code of Regulations). EPA
determined that a CARB detergent certification would provide adequate
demonstration that a detergent could be used to meet Federal detergent
performance requirements under the Federal interim program.15
---------------------------------------------------------------------------
\15\ A detailed comparison of the CARB and Federal detergent
programs is included in the Summary and Analysis of Comments.
---------------------------------------------------------------------------
To ensure that the CARB detergent program would continue to provide
a level of deposit control protection equivalent to that of the Federal
program, once the Federal certification program was implemented, the
Agency proposed that the applicability of a CARB detergent
certification would be limited to gasolines sold in PADD V. EPA's
judgment that CARB-certified detergents would provide adequate deposit
control performance in all PADD V gasolines was based on the
similarities in the gasoline composition (and hence deposit forming
tendency) between California and the rest of PADD V, and the
similarities between CARB's and the proposed Federal deposit control
performance requirements. EPA proposed that PADD V gasoline additized
with CARB-certified detergents (CARB-based PADD V certification) would
be subject to the same use restrictions as gasoline certified under the
other PADD-specific options.
Public comment was in agreement with EPA that, for California
gasoline, a CARB-certified detergent would provide at least as
effective deposit control as a detergent meeting Federal detergent
certification requirements. However, commenters disagreed with each
other on the extent to which a CARB-certified additive could be used to
satisfy Federal requirements for non-California gasoline. The
automotive industry
[[Page 35327]]
stated that CARB-certified detergents would not provide adequate
deposit control protection for non-California gasolines because of
differences in fuel composition, particularly under CARB's Phase II
reformulated gasoline requirements. Some commenters from the petroleum
industry supported the applicability of a CARB certification within
PADD V, while others stated that a CARB certification should be
applicable nationwide provided that CARB certification fuel parameter
levels meet EPA requirements. Other commenters stated that a CARB
certification should be accepted nationwide in order to avoid the
economic burden on small and independent refiners which would result
from being required to meet two sets of certification requirements.
B. Applicability of CARB Equivalent Certification
To determine the appropriate applicability of the CARB
certification program, EPA compared the level of deposit control
protection which will be provided under the Federal detergent
certification program finalized today to that provided under CARB's
program (see the Summary and Analysis of Comments for an extensive
discussion). In conducting this analysis, EPA compared the performance
standards, test procedures, and test fuels of the two programs, and
concluded that they were sufficiently similar to ensure that the use of
a detergent certified under CARB's current detergent program in
California gasoline will provide at least as effective deposit control
as a detergent meeting Federal certification requirements. However,
implementation of California Phase II RFG requirements has greatly
widened the compositional differences between California and non-
California gasolines. A detergent certified for the relatively low-
severity conditions of California Phase II gasoline can no longer be
expected to provide adequate deposit control in gasoline in the other
PADD V states or elsewhere in the nation. Thus, EPA will accept data
which supports a valid CARB detergent certification as sufficient
demonstration that a detergent additive is capable of satisfying
Federal gasoline detergency performance standards for CARB phase II
RFG, but not for non-California gasolines.
Certain changes proposed by CARB for its detergent program would,
if implemented, serve to make the two certification programs even more
similar. However, if CARB should implement other, unanticipated
changes, then EPA would evaluate whether such changes would reduce the
acceptability of CARB-certified detergents in meeting Federal gasoline
detergency requirements, and would propose changes to these
applicability provisions through another rulemaking if warranted.
To ensure that a CARB-certified detergent is only used to meet
Federal detergency requirements in California phase II RFG, the
gasoline must be additized in California, or sold or dispensed to the
ultimate consumer in California (or to parties who sell or dispense to
the ultimate consumer in California), or both. Some commenters
suggested that EPA should allow CARB-certified detergents to be used in
gasoline sold in all PADDs, provided that the severity parameter levels
in the gasoline did not exceed the severity limits in the CARB
certification. EPA believes this approach is not feasible, since it
would require a complex set of fuel composition monitoring requirements
similar to those proposed under the two-tier certification scheme (see
Section IV.B) which the Agency has determined would not be cost
effective. EPA does not believe that requiring all gasoline sold
outside of California to meet Federal detergent certification
requirements would cause significant financial hardship to smaller
gasoline marketers, as some commenters suggested. The costs to these
marketers of using a CARB-certified detergent would be similar to the
costs of using a Federally certified detergent, and the necessary
infrastructure is likely to exist already in the fuel marketers'
facilities outside of California due to their obligation to comply with
the interim Federal program. EPA believes that use of CARB-certified
detergent additives in non-California gasolines would not provide
adequate deposit control protection. Thus, to allow small gasoline
marketers to use CARB-certified detergents in non-California gasolines
could significantly reduce the emissions control benefits of this
program.
VI. Certification Test Fuels
A. National and PADD Certification Test Fuels
1. Proposed Test Fuel Requirements. Under the proposed
certification test fuel requirements, testing to demonstrate detergent
additive effectiveness would be conducted using test fuels containing
specified levels of five parameters (olefins, sulfur, aromatics, T-90
distillation point, and oxygenate content) that have been shown to
affect gasoline deposit-forming tendency. The minimum levels of these
severity factors in the test fuels proposed for each certification
option corresponded with values at the 55th to 65th percentiles of the
1989-1991 AAMA fuel survey data for the gasoline pool covered by the
certification option in question (e.g., national, PADD, premium, etc.).
EPA also discussed in the NPRM its concerns that the specified
level of these fuel severity factors may not completely define a
gasoline's deposit-forming severity. If this were the case, detergent
certifiers might blend certification test fuels that contained the
required levels of the fuel severity factors, but nevertheless were not
representative of in-use gasoline deposit forming tendency. To help
account for unknown factors in gasoline composition that might affect
fuel severity, EPA proposed that gasoline samples for certification
testing must be drawn from normal production gasoline stock (finished
commercial gasoline) taken from normally operating refinery and/or
terminal facilities. In addition, the test fuels required for each
certification were to be drawn from separate production/distribution
facilities in different areas of the nation. This requirement would
tend to increase the certainty that unknown severity factors would be
represented by ensuring that various refinery stocks were tested, and
would act as a screen to prevent the use of inappropriately mild (i.e.,
low deposit-forming severity) fuels. It would also serve to limit the
opportunity to select test fuels from refineries that, for unidentified
reasons, tend to produce gasoline with a relatively low deposit-forming
tendency. To ensure that the certification process accounts for any
interactive effects between detergent additives and non-detergent
additives, EPA proposed that the type and concentration of non-
detergent additives in the certification fuels must not differ in any
way from the fuels that are dispensed to the ultimate consumer.
EPA recognized in the NPRM that it could be difficult for an
additive certifier to locate a single finished gasoline which contained
all four nonoxygenate severity factors at the required levels. To
reduce this difficulty while ensuring adequate test fuel severity, EPA
proposed that testing for each certification option be conducted using
a matrix of four test fuels, each containing a different combination of
two of the nonoxygenate severity factors at levels no less than the
required 55th to 65th percentile values. Alternatively, additive
certifiers could perform testing in as few as two fuels, as long as
each of the severity parameters was present at the required levels in
at least one such fuel.
[[Page 35328]]
The proposed minimum of two test fuels was believed to be necessary
to account for the deposit-forming tendency of oxygenates. EPA proposed
that one of the test fuels would be required to contain 10 volume
percent ethanol, and another would be required to contain 15 volume
percent MTBE. These oxygenates were selected for testing because they
were expected to have the most significant impact on gasoline deposit-
forming tendency of the oxygenates within their respective oxygenate
classes (alcohols and ethers), and because they were expected to be the
two most widely used oxygenates.
EPA also proposed that certification test fuels be contained in
new, sealed containers during transportation and storage and that these
fuels could be stored no longer than one full year from when they were
drawn from the refinery before testing.
2. Final Test Fuel Requirements.
a. Test Fuel Source and Screening Requirements. In response to the
NPRM, commenters stated that finding finished fuels that met the test
fuel compositional specifications would be extremely burdensome and
impractical, and that EPA should instead allow the use of refinery
blendstocks to formulate certification fuels. To ensure that test fuels
were not inappropriately mild, they stated, test fuel blenders could be
required to provide EPA with documentation of the source and
identification of all of the refinery blendstocks used, as well as the
fuel parameter levels in the finished test fuel. Finally, they stated
that the finished test fuel should be required to conform to ASTM D
4814, for commercial gasolines. In combination, the commenters felt
that this information should alleviate EPA's concern about using
blendstocks for formulating test fuels.
EPA acknowledges that the proposed requirement that test fuels be
drawn from finished gasoline stock is a burdensome one. However, the
ideas raised by the oil industry, while somewhat helpful, are not
sufficient to prevent intentional manipulation of test results, or to
ensure that test fuels will adequately represent the deposit-forming
severity of in-use gasoline.
Thus, in the Reopening Notice, EPA asked for comment on other
potential approaches to ensure the adequacy of test fuels if they were
created from refinery blendstocks (see Summary and Analysis of
Comments), and has finalized one of these approaches in today's rule.
Specifically, the final rule requires that, to be eligible as a test
fuel, a candidate nonoxygenated, unadditized fuel must be tested to
demonstrate its severity by causing the formation of at least a
specified level of IVD in a 10,000 mile BMW test.
In its comments, API stated that increasing the required number of
expensive BMW tests just for this purpose would be cost-ineffective and
unnecessary. However, most other commenters supported EPA's proposed
demonstration test. Some commenters stated that, if a performance
severity test were established, it should be the exclusive requirement
for test fuel qualification, and that fuel parameter requirements
should be dropped. Other commenters stated that if such a test were
established, it should be allowed as an alternative to meeting fuel
parameter requirements in qualifying test fuels for certification
testing purposes.
EPA believes that the performance-based approach for qualifying
test fuels provides a practical and effective way to screen out test
fuels of inappropriately low deposit-forming severity that otherwise
conform to compositional specifications. Thus, this final rule allows
the use of refinery blendstocks for formulating test fuels, provided
that the unadditized test fuel severity is demonstrated by IVD testing.
If test fuels are drawn directly from finished gasolines, they do not
have to undergo severity demonstration testing to qualify for use in
certification tests.
EPA disagrees with the comment that a test fuel deposit
demonstration criterion will not be cost-effective. In the absence of
this assurance, EPA cannot be confident that test fuels created from
refinery blendstocks will be adequate to assure proper additization of
the in-use gasoline to achieve the emission reduction goals of the
detergent certification program. In comparison with the original
proposal, which would have required detergent certification testing to
be conducted in up to four specified test fuels, each to be located
from normal finished fuel supplies, the cost of a single demonstration
test for a batch of test fuel is modest. Furthermore, the costs for
test fuel blending and IVD demonstration testing can be shared. For
example, a testing laboratory can qualify a large quantity of test fuel
and then use it for certifying multiple detergent additives. In these
and other ways, the costs associated with the test fuel IVD
demonstration requirements can be spread over a large number of
detergents or companies. Thus, EPA believes that the test fuel deposit
demonstration requirement is reasonable and necessary, and that it can
be met in a very cost-effective manner.
EPA also disagrees with the comment that certifiers should be given
the option to qualify test fuels either by meeting the requirements of
the IVD demonstration test or by meeting the test fuel compositional
criteria, rather than being required to satisfy both. The fuel
parameter specifications are necessary to set the overall stringency of
the test fuel and to provide reasonable assurance that the composition
of the deposits formed is representative of deposits that result from
in-use gasoline. The deposit demonstration test is necessary to confirm
that the level of stringency prescribed by the fuel parameter
specification has been achieved. Thus, both types of test fuel criteria
are necessary to assure the validity of subsequent detergent
certification testing.
EPA received varied comments regarding an appropriate qualification
standard, i.e., the minimum amount of IVD that the unadditized test
fuel must generate during the demonstration test in order to qualify
for use in detergent certification testing. Suggestions ranged from 175
mg of deposit formation per valve up to 500 mg per valve. To resolve
this issue, EPA reviewed available BMW IVD test data on unadditized
test fuels.16 Tests on gasoline of ``typical'' deposit-forming
tendency, i.e., containing fuel severity factors at generally lower
levels than required in the detergent certification test fuels and more
representative of average severity gasolines, were selected as the
subject of this study. The results of this analysis showed that a
typical unadditized nonoxygenated fuel can generally be expected to
produce approximately 290 mg of deposits over the accumulation of
10,000 miles in a BMW test. Uncertainty in the 5,000 mile test data
precluded EPA from considering a standard based on that shorter
test.17
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\16\ Memorandum to the docket from David Swain, OMS, entitled
``Data Review of Intake Valve Deposit Weights for Detergent
Certification Fuel Screening'', Docket item IV-B-07.
\17\ It should be noted that the 5,000-mile deposit
demonstration test, in addition to its technical shortcomings, would
save only about 25 percent of the cost of a 10,000-mile test.
---------------------------------------------------------------------------
Based on this analysis, the final rule requires the accumulation of
at least 290 mg of IVD using unadditized, nonoxygenated fuel, during
the 10,000 mile BMW test, for qualifying base test fuels for the
national certification option. The same standard will apply to PADD
certifications in those PADDs where the IVD severity factor
distributions tend to be similar to or higher than the national levels
(PADDS I and III). For the other PADDs characterized by fuels which
tend to
[[Page 35329]]
have lower levels of severity factors most related to IVD formation,
the standard is adjusted downward by 10 percent. For the premium
certification test fuels, the standards are reduced an additional 10
percent below the respective all-grade test fuels. Thus, to qualify for
generic certification testing in PADDs II, IV, and V (excluding
California), the unadditized, nonoxygenated test fuels must demonstrate
a minimum accumulation of 260 mg of IVD (i.e., 90 percent of 290 mg) in
a 10,000 mile BMW test. The 260 mg standard also applies to the premium
optio
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
n at the national level and in PADDs I and III. For the premium
option within PADDs II, IV, and V (excluding California), test fuels
meeting the applicable nonoxygenate fuel parameter levels must
accumulate at least 235 mg of IVD (i.e., 90 percent of 260 mg). These
IVD demonstration criteria are expected to achieve the goal of the IVD
demonstration test while ensuring that the applicable fuel parameter
specifications remain the primary contributor to test fuel severity. At
the discretion of the certifier, the IVD severity demonstration test
may be terminated at fewer than the 10,000 miles specified in the test
procedure. However, the IVD demonstration criteria specified above (for
the 10,000 mile test length) must be satisfied for the test to qualify
for certification purposes. Once the engine has been disassembled to
examine the IVD (other than by removing the fuel injectors for
boroscope inspection) the test must be terminated.
The IVD demonstration is to be conducted on base test fuels, i.e.,
fuels which conform to the specified nonoxygenate severity factor
requirements, but do not contain oxygenate (or detergent). Once
qualified for use in certification testing, a base test fuel can be
blended with ethanol for use as a generic test fuel, and/or with other
oxygenates for use in oxygenate-specific certification testing options.
As suggested by a commenter, the final rule requires test fuels to
conform to ASTM D 4814 specifications.18 To further ensure the
representativeness of test fuels and the composition of deposits, the
rule also requires the certifier to provide to EPA documentation of the
source and identification of all of the refinery blendstocks used, as
well as the fuel parameter levels in the finished test fuel. Consistent
with the proposal, test fuels for national and PADD certification may
not be formulated using refinery blendstocks from a gasoline pool which
has been certified as a fuel-specific pool.
---------------------------------------------------------------------------
\18\ ASTM D 4814-95c, ``Standard Specification for Automotive
Spark-Ignition Engine Fuel'', 1995, is incorporated by reference in
40 CFR 80.164.
---------------------------------------------------------------------------
b. Test Fuel Severity Factors. The weight of public comment
supported the proposed five severity parameters (aromatics, sulfur,
olefins, T-90, and oxygenates) identified by EPA to characterize the
severity of gasoline for forming IVD and PFID. As stated above, some
commenters encouraged EPA to include additional severity factors to
these five; however, the information available on these potential
factors was not sufficient to conclude that any other factor would be
appropriate. Some commenters questioned whether these factors should be
considered equal in their severity, especially with respect to their
specific effect on PFID and IVD formation. However, EPA could not find
sufficient information to justify giving more weight to one severity
factor over another for either form of deposit. For these reasons, EPA
is finalizing the detergent certification program based on the five
severity factors weighted equally as proposed.
While the majority of commenters agreed that the impact of
oxygenates should be accounted for in the definition of certification
test fuels, the Renewable Fuels Association (RFA) commented that only
limited test data is available to indicate that a higher detergent
treatment rate may be necessary in oxygenate blends. EPA disagrees.
Data from a number of sources indicates that the addition of
oxygenates, in particular ethanol, has a substantial impact on gasoline
deposit-forming tendency.19 Also, most commenters stated that
testing on fuel containing 10 volume percent ethanol provides a more
difficult test of a detergent's deposit control efficacy than testing
on a fuel that contains 15 volume percent MTBE, and hence EPA should
allow testing on a single ethanol-containing certification fuel.
---------------------------------------------------------------------------
\19\ See the extensive discussion in the NPRM, the memorandum
to the docket entitled ``Data Review of Intake Valve Deposit (IVD)
Weights for Detergents Certification Fuel Screening'', by David
Swain, OMS (Docket item IV-B-07), and the Summary and Analysis of
Comments.
---------------------------------------------------------------------------
Consistent with the weight of available test data and public
comment, ethanol is included in the test fuel specifications related to
each of the generic certification options, i.e., those options which
certify a detergent for use in any oxygenated or nonoxygenated gasoline
in the related PADD-specific or national pool. To ensure representation
of the maximum deposit-forming effects of ethanol (or other oxygenate,
in the case of an oxygenate-specific certification option), additive
certifiers must blend the oxygenate into the test fuel so that its
final concentration is no less than the maximum concentration that the
oxygenate can be used in commercial gasoline. For ethanol this
corresponds to the addition of ethanol so that the final concentration
in the certification test fuel after blending is no less than 10
percent by volume. In the case of MTBE, this corresponds to the
addition of MTBE so that the final concentration in the certification
test fuel after blending is no less than 15 percent by volume.
Oxygenates used for certification testing purposes must be of fuel-
grade quality. The use of oxygenates that are specially processed to
remove impurities is not allowed.
c. Number and Severity of Test Fuels. As mentioned earlier, EPA
proposed in the NPRM that a detergent additive be tested in at least
two, and up to four test fuels, for each certification option selected.
In commenting on the proposal, API, CMA, and others from the petroleum
and detergent additive industries stated that this was unnecessary and
that EPA should allow certification testing to be conducted using a
single test fuel. On the other hand, AAMA stated that requiring more
than one certification test fuel would allow for the inclusion of more
refinery streams in the formulation of certification test fuels,
thereby providing more representative results. Requiring multiple test
fuels would also tend to help ensure that yet-to-be-identified fuel
severity factors are represented in the certification test fuels.
As described above, EPA decided to allow use of test fuels
formulated to the severity factor specifications from refinery
blendstocks as an alternative to using test fuels drawn from finished
commercial fuel supplies. This decision eliminates one of the most
important reasons for which multiple test fuels were originally
proposed, i.e. to ensure that detergents are tested in the presence of
adequately high levels of fuel severity factors, without creating the
impractical requirement that one finished fuel must be found which
happens to contain the specified levels of all the requisite
parameters. In addition, as described above in the section on severity
factors, EPA has determined that testing on ethanol-containing fuel
will suffice to demonstrate a detergent's effectiveness in other
oxygenated fuels, obviating the need for separate tests to be conducted
in the presence of ethanol and MTBE.
Reflecting these changes in the program's requirements, EPA has
further simplified the certification
[[Page 35330]]
testing program by requiring detergent performance testing in only one
test fuel for each certification option selected. Of course, this does
not preclude any additive certifier from performing multiple tests
itself on a variety of test fuels derived from different sources. Such
redundancy would help to ensure that the additive is as effective as
claimed in all the gasolines in the gasoline pool.
Having decided to require one test fuel per certification option,
EPA also reviewed the required levels of test fuel severity factors.
For the NPRM, EPA originally derived the nonoxygenate fuel parameter
specifications for each of the fuels in the proposed test fuel matrices
through a complex process based on ensuring no less than a 1-in-5
chance that a randomly selected commercial fuel would meet the required
fuel parameter levels. As mentioned previously, this process resulted
in proposed fuel parameter levels corresponding to the 55th to 65th
percentile range of concentrations relative to the national gasoline
pool.
Although commenters generally opposed the 20 percent availability
approach EPA used to determine test fuel specifications, there was
broad support for the 65th/55th percentile fuel parameter levels
derived from this approach. EPA believes it is appropriate to require
that each nonoxygenate fuel parameter be represented at its respective
65th percentile level, in the applicable gasoline pool (national, PADD,
premium, etc.). This decision is based on the facts that: (1) test
fuels may now be specially blended so that fuel parameter
specifications no longer need to be linked to fuel sample availability;
(2) there is no conclusive data on which to weight any one fuel
parameter's impact on fuel severity above another's, and (3) the 65th
percentile levels predominated in the originally proposed test fuel
matrix.
The required parameter levels are to be met in the certification
test fuel before the addition of ethanol. EPA analyzed AAMA fuel survey
data, comparing levels of the nonoxygenate fuel parameters in
nonoxygenated fuels to those in oxygenated fuels (all oxygenates
included in the analysis).20 While the results of this study were
not totally consistent, they indicated that the parameter levels in
oxygenated fuels tended to be lower than those in nonoxygenated fuels.
This result suggests a dilution effect when oxygenate is added. Thus,
specifying that the prescribed 65th percentile levels be met in the
test fuel before the addition of the oxygenate appears to conform to
the real-world behavior of in-use fuels.
---------------------------------------------------------------------------
\20\ ``Analysis of Differences in Nonoxygenate Fuel Parameter
Levels in Oxygenated and Nonoxygenated Gasolines: 1992-1994 American
Automobile Manufacturers Association Data'', George Hoffman,
DynCorp/DynTel, Docket item IV-B-08.
---------------------------------------------------------------------------
In its comments, API urged EPA to use test method reproducibility
to establish enforcement tolerances, i.e., levels below the
specifications which would still be considered to be in compliance with
the specifications, for the measurement of test fuel parameters (per
ASTM methods). EPA rejects this approach. As with the approach taken
for the deposit control performance standards, EPA believes that the
required test fuel parameter levels should be absolute minimums which
must be satisfied. Allowing downward variability in meeting test fuel
compositional requirements would compromise the program's emissions
control benefits as would allowing downward variability in meeting
deposit control testing standards.
d. Other Issues. EPA received a number of comments on its proposed
requirement that the non-detergent additives present in certification
fuels must be representative of those used in commercial gasoline. The
petroleum and detergent additives industries stated that it is unlikely
that non-detergent additives affect deposit-forming tendency because
they are present in commercial fuels at very low concentrations. Hence,
they stated that it was not necessary to require that non-detergent
additives be present in certification test fuels.
EPA's chief concerns regarding the additive content of test fuels
are (1) that no detergent-active substances be present in the test fuel
other than those substances which are part of the detergent additive
package being tested, and (2) that the deposit control performance
demonstrated by the detergent package in the test fuel not be adversely
affected by other additives encountered in use. In reviewing this
subject, EPA concluded that it is not practical at this time, nor has a
significant need yet been demonstrated, to require specific
nondetergent additives to be present in certification test fuels. EPA
has also concluded that requiring the identification of nondetergent
additives in the test fuel would not very effectively address EPA's
concerns; moreover, many certifiers would not be able to fully comply
with such a requirement.
Thus, consistent with the views of the commenters, today's rule is
generally not prescriptive with respect to nondetergent additive use in
certification test fuels. Typical nondetergent additives may be, but
are not required to be present in the test fuels. Also, the presence of
such additives does not need to be reported. The addition of detergent-
active substances other than the additive being tested is specifically
prohibited. On the other hand, if EPA subjects a certified detergent to
confirmatory testing, then EPA may include in its test fuel any
nondetergent additive which can reasonably be expected to be
encountered in use. If the performance of the certified detergent is
adversely affected by the presence of such additive, to the extent that
the detergent fails the confirmatory test, then the certification might
be jeopardized (see Sec. 80.161(e) regarding the disqualification of
detergent additives).
The additive industry disagreed with EPA's proposed requirement
that certification test fuels must be contained in new, sealed
containers during storage and transportation, claiming that this
requirement would be infeasible, unreasonable, and expensive, and would
generate a lot of waste. Instead, it said, clean tank trucks should be
adequate for the transport and storage of test fuels. EPA is persuaded
that the use of clean tank trucks or other containers will ensure that
test fuels are not contaminated or otherwise altered in a way that
might bias certification test results, and that requiring the use of
new sealed containers is unnecessary to maintain sample integrity.
Therefore, the certification program requires that certification test
fuels be transported and stored in clean tank trucks or other
containers. In response to EPA's request for data on the affect of fuel
storage on test fuel severity, comments from the additive industry
suggested that the passage of time would tend to increase test fuel
severity due to the effects of fuel oxidation. Therefore, the use of
test fuel which has been stored would tend to make the performance test
more stringent. EPA agrees with these comments. Furthermore, no data is
available to indicate that gasolines may become less severe over time.
Therefore, EPA will not limit the time a test fuel sample may be stored
before certification testing is conducted.
The majority of commenters were in agreement with EPA's proposal to
define test fuel parameter levels based on an analysis of the three
most current years of AAMA fuel survey data. However, several
commenters from the petroleum industry stated that EPA should use
refinery baseline data collected under the Reformulated Gasoline
Program. EPA disagrees with this comment. The RFG baseline data
[[Page 35331]]
pertains to 1990 only. Therefore, it would not provide as current, nor
as representative, a characterization of longer-term trends in fuel
quality as the proposed use of the average of three years of AAMA data.
The analysis presented in the NPRM was based on 1989 through 1991 AAMA
fuel survey data. However, more recent AAMA data is available now.
Thus, consistent with the proposal and the support expressed in the
public comment, the fuel specifications for detergent certification
testing have been updated to reflect the results of the 1992-1994
gasoline AAMA survey data.21
---------------------------------------------------------------------------
\21\ ``Statistical Analysis Methodology: 1992-1994 American
Automobile Manufacturers Association Data'', George Hoffman, CSC,
Docket item IV-B-06.
---------------------------------------------------------------------------
B. Fuel-Specific Certification Test Fuels
Unlike the test fuels described above for certification testing
under the national and PADD options, which are designed to represent
fungible gasolines, EPA proposed that the certification test fuels
under the fuel-specific option would be tailored to represent the
unique deposit-forming tendency of segregated gasoline pools. As
proposed, the additive certifier would have to establish its own test
fuels specific to its gasoline pool. To characterize the severity of
the test fuel, the certifier would use the four nonoxygenate parameters
specified under the national and PADD certification scheme for
nonoxygenated fuels, and would include oxygenate as a severity
parameter if oxygenate was used in the specified gasoline pool.
(Otherwise, the detergent would be restricted to use in non-oxygenated
fuel-specific gasoline.) EPA proposed that, subject to EPA's prior
approval, other parameters could be used in addition to the standard
four or five parameters. In order to use another parameter, EPA
proposed that the certifier of a fuel-specific detergent would submit
test data to EPA to demonstrate that the subject parameter affects the
deposit-forming severity of the segregated gasoline pool for which the
certification is sought. In addition, the applicant would submit a test
method approved by the American Society for Testing and Materials
(ASTM) to measure the additional fuel parameter in finished gasoline.
EPA proposed that the Agency would respond to such requests within 90
days after receiving the test data to support the use of the additional
parameters.
EPA received several comments expressing support for the proposal
to require certifiers of fuel-specific detergent to characterize the
composition of their segregated gasoline pool. Under this final rule,
the certifier must create and maintain fuel survey data from each of
the facilities that contribute to the subject gasoline pool for a
complete year. At a minimum, this data must include monthly
measurements of gasoline aromatics, olefin, and sulfur content, and T-
90 distillation point. The certifier must also calculate and provide to
EPA the percentile concentrations or levels for each of the fuel
parameters studied for the segregated pool as a whole (see
Sec. 80.164(c)). The use of such additional parameters will not require
prior approval by EPA since EPA judged that EPA's prior approval was
not necessary to ensure their proper use. However, to be taken into
account by EPA in case of confirmatory testing (see Section VII.D.),
such additional parameters must be surveyed, analyzed, and reported
according to the same requirements applicable to the four standard
parameters.
Consistent with the certification program's approach for national
and PADD certification test fuels, under this final rule, testing for
generic fuel-specific certification must be conducted using a single
test fuel that has nonoxygenate fuel parameter levels at or above their
respective 65th percentile values for the subject segregated gasoline
pool as determined by the fuel marketer's required fuel survey
analysis. Also paralleling the national and PADD certification options,
a nonoxygenated fuel-specific test fuel may be blended with ethanol (to
a concentration of at least 10 volume percent ethanol in the finished
fuel) to qualify as a test fuel for certifying a detergent for use with
any oxygenate. The requirements for oxygenate-specific fuel-specific
certification test fuels also parallel those under the national and
PADD certification options. Certification fuels used in conducting
testing to demonstrate that either a PFID-only detergent or no
detergent additive are needed to satisfy EPA's IVD/PFID control
requirements must meet the same compositional criteria described above.
No specific comments were received on whether EPA should apply an
IVD demonstration fuel qualification criterion under the fuel-specific
certification option. Gasoline within a given fuel-specific gasoline
pool is likely to be much less variable in composition than fungible
gasoline for several reasons. The sources contributing to a fuel-
specific pool will likely be limited in number and belong to a single
refiner. In addition, refining parameters would be more closely
controlled to maintain the unique composition that defines the
segregated fuel-specific gasoline pool. The fuel composition monitoring
and associated detergent recertification requirements under the fuel-
specific option will act to limit the variability in the composition
(and thus the severity) of such gasoline pools. Thus, under this final
rule, fuel-specific certification test fuels are not required to
satisfy deposit demonstration test requirements.
C. Summary of Test Fuel Requirements
The following table summarizes test fuel compositional requirements
under the different national, PADD, premium, and fuel-specific
certification sub-options.22
---------------------------------------------------------------------------
\22\ See Sec. 80.164 of the regulatory text for specific values
under the different certification options and suboptions. 65th
percentile nonoxygenate fuel parameter levels must be met prior to
the addition of the required oxygenate.
[[Page 35332]]
Table VI-1--Summary of Test Fuel Requirements; Generic Detergent Certification
[For use in any gasoline grade, with any oxygenate]
----------------------------------------------------------------------------------------------------------------
IVD
Nonoxygenate fuel demonstration
Gasoline pool parameters standard Oxygenate/concentration
(mg)
----------------------------------------------------------------------------------------------------------------
National.............................. 65th percentile in 290 10% Ethanol.
national survey.
PADDs I and III....................... ......do................. 290 Do.
PADDs II, IV, and V................... ......do................. 260 Do.
----------------------------------------------------------------------------------------------------------------
Premium Detergent Certification
[For use in premium gasoline, with any oxygenate]
----------------------------------------------------------------------------------------------------------------
IVD
Nonoxygenate fuel Demonstration
Gasoline pool parameters Standard Oxygenate/concentration
(mg)
----------------------------------------------------------------------------------------------------------------
National.............................. 65th percentile in 260 10% Ethanol.
national/premium survey.
PADDs I and III....................... 65th percentile (premium) 260 Do.
in respective PADD.
PADDs II, IV, and V................... ......do................. 235 Do.
----------------------------------------------------------------------------------------------------------------
Nonoxygenate or Oxygenate-Specific Certification
----------------------------------------------------------------------------------------------------------------
Nonoxygenate fuel IVD Demonstration
Gasoline pool parameters standard (mg) Oxygenate/concentration
----------------------------------------------------------------------------------------------------------------
Any Grade:
no oxygenate..................
(1)Same as national or PADD None.................
generic certification shown above
oxy specific.................. Max concentration.
Premium Only:
no oxygenate..................
(1)Same as national or PADD None.................
premium certification shown above
oxy specific.................. Max concentration.
----------------------------------------------------------------------------------------------------------------
Fuel-Specific Certification
----------------------------------------------------------------------------------------------------------------
Nonoxygenate fuel IVD demonstration
Gasoline pool parameters standard (mg) Oxygenate/concentration
----------------------------------------------------------------------------------------------------------------
No Oxygenate.................... 65th percentile in none.............. None.
the specified pool.
Any Oxygenate................... ......do........... ......do.......... 10% Ethanol.
Specific Oxygenate.............. ......do........... ......do.......... Specified oxygenate at maximum conc.
----------------------------------------------------------------------------------------------------------------
* Similar to the national and PADD certification case, fuel-specific certifications may be obtained for all
gasoline grades or for premium gasoline.
Test fuel samples used in IVD and PFID performance testing for a
given detergent must conform to identical qualification criteria, but
need not be drawn from the same batch of gasoline. Likewise, the
samples of the detergent additive package used in the required
certification tests need not be from the same production batch,
provided that both samples conform to the compositional information
provided to EPA by the additive certifier.
D. Test Fuels for Leaded Gasoline Certification
The certification program retains the interim rule's specifications
for leaded gasoline test fuels to allow use of existing test data to
the greatest extent possible. Given the very low level of leaded
gasoline use in the U.S., EPA believes that increasing the stringency
of these test fuels would not result in an environmental benefit that
would compensate for the cost incurred in conducting the additional
testing which would be required.
E. Measurement of Gasoline Fuel Parameters
For the purposes of measuring the fuel parameters which define
certification test fuels, EPA proposed to allow the use of specified
ASTM procedures, as well as other procedures proposed for use under the
RFG program (58 FR 11722, February 26, 1993). This proposal was
expected to allow reasonable flexibility in test procedure selection
while ensuring the needed measurement precision. EPA also wanted to
coordinate testing and compliance requirements across the RFG and
detergent additive rulemakings. To that end, the Agency proposed to
incorporate into the final detergent additive program, as appropriate,
any changes to the fuel parameter measurement procedures finalized in
the RFG program.
Certifiers under the fuel-specific option may use additional fuel
parameters to describe the composition of their segregated gasoline
pools and to
[[Page 35333]]
define the required certification test fuels (see Section VI.B.). EPA
proposed to require that ASTM-approved test procedures be used for
measurement of such additional test fuel parameters under the fuel-
specific certification option.
The RFG regulations, including final versions of the fuel parameter
test requirements, were published by EPA on February 16, 1994 (59 FR
7716). In finalizing these test procedures under the RFG program, the
Agency addressed some of the issues that were also raised in the
context of the public comment on the detergent NPRM.23 For the
reasons discussed under the RFG program Federal Register notice, and in
the interest of maintaining uniformity of fuel parameter testing
requirements between regulatory programs, EPA is adopting the
procedures finalized under the RFG program (40 CFR 80.46) for the
required measurement of levels of sulfur, olefins, aromatics, T90, and
oxygenate content under this final regulation. The use of alternate
test procedures is not allowed except as provided for under the RFG
program. As discussed in the final RFG rule, EPA believes that allowing
the use of additional alternate procedures would result in uncertain
quality and unacceptable variability of test results. EPA is currently
considering modifying 40 CFR 80.46 to update the test procedure for the
measurement of olefins. If such a change is adopted, and if other such
revisions are implemented, they will naturally also apply to the fuel
parameter measurement requirements under this rule.
---------------------------------------------------------------------------
\23\ See the Regulatory Impact Analysis for the Reformulated
Gasoline Final Rule, December 13, 1993, EPA Air Docket A-92-12,
Docket item V-B-01.
---------------------------------------------------------------------------
Because EPA is not finalizing the proposed two-tier certification
scheme with associated terminal fuel parameter monitoring requirements
(see Section IV), the required measurement of fuel parameters will be
limited to that necessary to formulate test fuels and to conduct fuel
survey analysis under the fuel-specific certification option. EPA
believes that restricting the procedures used to measure fuel parameter
levels to those prescribed under the RFG program will not represent an
undue hardship to the industry considering the limited fuel parameter
measurement requirements.
No specific comment was received on EPA's proposal that additional
test fuel parameters which may be used under the fuel-specific
certification option must be measured according to ASTM procedures.
Comment from the petroleum industry generally supported the use of
ASTM-approved methods and any other test methods which may be specified
for use under the reformulated gasoline program for use in measuring
test fuel parameters. Since it is unclear what additional parameters
might be used to define fuel-specific gasoline pools and the fuel
parameters selected may not commonly be measured by industry, EPA now
believes that it may be too restrictive to require to use of only ASTM-
approved procedures. Given this concern, EPA will require that test
procedures used to measure optional fuel parameters under the fuel-
specific option must conform to reasonable and customary standards of
repeatability and reproducibility, and reasonable and customary limits
of detection and accuracy for the type of test procedure in question.
ASTM-approved measurement procedures would conform to this requirement,
as might others that have not received ASTM approval.
VII. Certification Tests and Performance Requirements
A. Certification Test Procedures
In the NPRM, EPA proposed test procedures to evaluate IVD and PFID
control that were based on draft procedures under evaluation by ASTM.
It was also proposed that, if these test procedures were finalized by
ASTM, they would be incorporated by reference in this final rule. This
proposal was supported in the public comment. ASTM has since finalized
their IVD and PFID test procedures with minimal changes from the
earlier drafts proposed by EPA, and the procedures are incorporated in
this final rule.24
---------------------------------------------------------------------------
\24\ ASTM test method D 5598-94, ``Standard Test Method for
Evaluating Unleaded Automotive Spark-Ignition Engine Fuel for
Electronic Port Fuel Injector Fouling'', and ASTM test method D
5500-94, ``Standard Test Method for Evaluation of Unleaded
Automotive Spark-Ignition Engine Fuel for Intake Valve Deposit
Formation'' are incorporated by reference in 40 CFR 80.165(a) and
(b) respectively. ASTM is currently considering revisions to the
test validation criteria for these test procedures to provide more
flexibility (See Docket item IV-E-58). When available from ASTM, EPA
will evaluate the suitability of such revisions, and if appropriate,
might undertake a rulemaking activity regarding their adoption.
---------------------------------------------------------------------------
The IVD and PFID tests adopted by today's notice require an
accumulation of 10,000 miles on a standard test vehicle. EPA proposed
an alternative IVD test which could be conducted using an abbreviated
5,000 mile test cycle. However, EPA has determined that the use of such
a shortened test cycle might result in a significant increase in test
variability. Therefore, EPA will not accept results from this test for
IVD certification testing purposes.25
---------------------------------------------------------------------------
\25\ For similar reasons, EPA will not allow the use of the
abbreviated 5,000 mile IVD test for demonstrating the deposit
forming tendency of unadditized fuels. (See Section VI.A.4.)
---------------------------------------------------------------------------
The Agency is aware that ASTM is developing updated deposit control
test procedures which might be finalized by ASTM shortly after this
rule is published. Several commenters requested that EPA speed adoption
of these procedures when they become available. EPA recognizes that,
because these test procedures would use more current vehicle
technology, they might provide an improved means of determining the IVD
and PFID control requirements of modern vehicles. Therefore, the Agency
is interested in expediting consideration of the adoption of these test
procedures, particularly if they are finalized by ASTM in time to allow
their potential use in meeting initial detergent certification testing
needs. If EPA judges that the updated ASTM procedures are suitable for
regulatory purposes, the Agency will either publish a proposal
requesting comment on their adoption either as alternate or replacement
procedures for the deposit control performance tests adopted by today's
rule, or will publish a direct final rule for this purpose. A necessary
criterion for the adoption of the updated procedures would be the
determination of a correlation of test results from these procedures
with the performance standards of the current procedures, or data that
demonstrates that a specific performance standard for these procedures
provides an appropriate level of deposit control performance.
B. Deposit Control Test Standards
1. PFID-Control Test Standard. For the PFID control test procedure
finalized by today's notice, EPA proposed a performance standard of
less than 5 percent flow loss in any injector over the accumulation of
10,000 miles. Public comment requested that EPA adopt the 10 percent
standard which was widely used by industry to prevent driveability
problems. Commenters stated that the 10 percent standard should be
sufficient to prevent a PFID emissions increase given the stringency of
the PFID test relative to typical in-use driving conditions.
EPA accepted the traditional industry PFID standard of 10 percent
under the interim program to allow maximal use of existing test data.
However, to ensure realization of the potential emission benefits to be
provided by effective deposit control, the proposed 5 percent
[[Page 35334]]
standard is being adopted in the detergent certification program. The
necessity of the more stringent performance standard follows logically
from an understanding of the mechanism by which PFID cause exhaust
emissions to increase. As was reviewed in the NPRM, the most
significant factor appears to be the difference in PFID-related flow
loss between one fuel injector and another.26 Electronic fuel
control equipment onboard the vehicle cannot adjust the air/fuel ratio
for combustion efficiency in each cylinder; rather, it adjusts the air/
fuel mixture in response to the average oxygen level in the exhaust. As
a result, the fuel flow may be suboptimal for every cylinder. Some
cylinders will be overfueled, causing HC and CO emissions to increase
and fuel economy to decrease. In other cylinders, the combustion
mixture will be overly lean, causing a NOX emissions increase.
Furthermore, as the disparity between cylinders rises, the combustion
process in any cylinder will become less and less efficient.
---------------------------------------------------------------------------
\26\ Tupa, R.C., Koehler, D.E., ``Gasoline Port Fuel Injectors--
Keep Clean/Clean up With Additives,'' SAE Technical Series No.
861536.
---------------------------------------------------------------------------
The experience of auto manufacturers indicates that the average
driver will tolerate some degradation in vehicle driveabiliy. When
deposits increase to a level where the flow rate of one or more
injectors is reduced by 10 percent or more, however, combustion
efficiency and vehicle driveability will be impaired to the extent that
driver complaints can be expected.27 Thus, the 10 percent standard
has been the traditional industry norm. However, it is clear that the
efficiency of the combustion process may be significantly affected, and
emission rates increased, well before this point. Because the main
focus of the detergent certification program is the prevention of
emission problems, not driveability problems, EPA believes the 10
percent standard to be inappropriate.
---------------------------------------------------------------------------
\27\ Tupa, R.C. and Dorer, C.J. ``Gasoline and Diesel Fuel
Addditives for Performance/Distribution Quality--II,'' SAE Technical
Series No. 861179.
---------------------------------------------------------------------------
Although emission effects may begin as soon as any PFID begin to
accumulate, a standard of zero percent would obviously not be
reasonable. EPA has chosen instead to harmonize its PFID performance
standard with that of CARB, which implemented the 5 percent standard
under its regulation of detergent additives in January of 1992.
Experience under CARB's program has shown that the 5 percent standard
can be readily achieved using commonly available additive formulations.
Furthermore, as discussed in the NPRM, the application of a 5 percent
rather than a 10 percent PFID standard will usually not be the deciding
factor in controlling the amount of detergent needed to pass the
certification performance test requirements. Rather, in most cases, the
treatment rate required for IVD control will be the controlling factor.
Still, in those instances where PFID control requirements do affect the
treatment rate, the 5 percent standard will offer adequate stringency
to make the test meaningful from an emissions control standpoint.
2. IVD-Control Test Standard. For the IVD test, EPA proposed a
performance standard deposit weight of less than 100 mg-per-valve on
average over the accumulation of 10,000 miles. The public comment
supported adoption of this standard. Also, this is the performance
standard required by CARB. Based on the reasons discussed in the NPRM
and the public's support, EPA is adopting the proposed 100 mg-per-valve
IVD standard in this final rule.
C. Alternate Performance Requirements for Leaded Gasoline
The certification program, like the interim program, allows the use
of either carburetor-type, PFID, or IVD/PFID detergents to comply with
leaded gasoline detergency requirements. The responsibilities of fuel
and detergent manufacturers regarding the requirements for leaded
gasoline are otherwise the same as those described previously for
unleaded gasoline.
D. Confirmatory Testing by EPA
EPA may conduct confirmatory testing on gasoline blended with a
detergent additive to verify that the additive performs as well as or
better than required by the deposit control standards finalized today.
At its discretion, EPA may choose to conduct one or more of the
prescribed vehicle tests on a detergent additive. For this testing, EPA
would blend the additive in the designated test fuel at the minimum
concentration specified by the manufacturer. The severity parameter
levels in the test fuel would be equal to or less than that required
for the respective test fuel. The test fuel may also contain any
mixture of nondetergent gasoline additives found in commercial gasoline
at the concentration normally used. For verification of a CARB-based
certification, EPA would use the applicable CARB test procedures and
standards. EPA would run the IVD and perhaps the PFID ASTM test and a
carburetor test, and if the applicable performance standards were not
met, the certification could be invalidated. (See Section III.A.3. and
Sec. 80.161(e) regarding the disqualification of detergent additives).
The final rule does not include tolerances to allow for test-to-
test variability as requested by some commenters. EPA cannot establish
test tolerances for the same reason ASTM was unable to specify
precision parameters for their IVD and PFID test procedures. A
sufficient amount of repeat tests using these tests is not available.
Certifiers must therefore take into account a reasonable level of
uncertainty in evaluating their test results and reporting the
detergent's LAC. At its discretion, EPA may take such uncertainty into
account when evaluating the results of any confirmatory tests it may
conduct.
VIII. Enforcement Provisions
A. Overview
The enforcement provisions of the detergent certification program
closely track those in effect under the interim detergent program
promulgated on November 1, 1994. Following is a general outline of the
enforcement provisions that will apply in the certification program. In
general, these are the same enforcement provisions that apply under the
current interim program, with certain revisions that make them more
efficient and streamlined. (See section VIII(B) of this preamble for a
discussion of the revisions to the interim rule's enforcement
provisions.) Since the interim program is to continue in effect for
non-certified detergents until the certification program becomes
mandatory (on July 1, 1997 for detergent manufacturers, detergent
blenders, and other upstream parties, and on August 1, 1997 for
gasoline retailers and wholesale-purchaser consumers [WPCs]), revisions
to the interim program's enforcement provisions will apply as of
September 3, 1996. Enforcement provisions that are not revised by
today's rule will continue to apply under both the interim and final
certification programs.
For the convenience of the reader, many of the previously
promulgated provisions that are not being revised in this rule (such as
the core of the prohibited acts, liability, and product transfer
document sections), are nonetheless repeated in the regulations issued
today. It is important to note that this repetition is to make the Code
of Federal Regulations more useable and to avoid confusion. The
repetition of previously promulgated regulatory text is not intended to
be a re-promulgation
[[Page 35335]]
of that text. The only regulatory provisions promulgated today are new
provisions, and the revisions to previously promulgated provisions.
1. Certification Conformity. Effective August 1, 1997, all gasoline
sold or transferred to the ultimate consumer, and effective July 1,
1997, all gasoline sold or transferred to those who sell or transfer to
the ultimate consumer, must be additized with detergent that has been
certified pursuant to the requirements of Sec. 80.161. The detergent
must be present in at least the lowest additive concentration (LAC)
certified to EPA as effective, and in conformity with the use
restrictions of the certification. Prior to July 1, 1997, detergent
manufacturers may choose to certify their detergents in conformity with
Sec. 80.161. Gasoline/PRC additized with such certified detergents must
be additized in compliance with the requirements of Sec. 80.161.
Use restrictions pertain to the type of gasoline product to which
the detergent may be added under a given certification. As previously
described, detergents certified under the national option may be used
with any gasoline (e.g., oxygenated or non-oxygenated, premium or
regular) sold anywhere in the U.S. (subject to approved state
programs). Detergents may also be certified at a different LAC for use
with gasoline sold to the ultimate consumer in a particular PADD.
Detergents certified under the fuel-specific option may only be used
with the segregated gasoline specified in the certification.
Furthermore, within a national, PADD-specific, or fuel-specific
certification, a detergent may be separately certified at a different
LAC for use only with non-oxygenated fuel, for leaded fuel (for nonroad
use only), for fuel blended with a specific oxygenate, and/or for
premium fuel. Finally, detergent certifications based on certification
by the California Air Resources Board (CARB-based detergents), may only
be used with gasoline additized and/or ultimately sold in California.
Under the certification program, detergent in its pure state, i.e.,
prior to its addition to gasoline, must meet the chemical composition
and concentration specifications set forth in its 40 CFR part 79
registration (as is also the case under the interim program rule), and
in its Federal certification.
2. Compliance With Volumetric Additive Reconciliation (VAR)
Requirements. All parties who blend detergent into non-exempted
gasoline, or into components added to gasoline after the refining
process (post-refinery components, or PRC), must complete mandatory
accounting reconciliations establishing that the product was additized
at an actual detergent concentration that was at least equal to the LAC
certified as effective to prevent deposit formation. All additized
gasoline and PRC must be accounted for on VAR records.
Automated detergent blenders must complete these mandatory
reconciliations in consecutive compliance periods, each no greater than
31 days in length. The reconciliation for automated blenders is based
on averaging the additization concentrations over the compliance
period. Today's final rule, like the interim program, does not require
that a per-gallon minimum detergent concentration be attained by
blenders within the averaging period. Hand-blending detergent blenders
must complete the mandatory VAR on a per-batch basis.
VAR reconciliation records (VAR formula records) and VAR supporting
documentation must be maintained by detergent blenders for a five year
period from date of creation.
3. Equipment Calibration. To assure measurement accuracy, under
this final rule, automated additization equipment must be calibrated on
a semiannual basis, and every time the detergent in the storage tank is
changed to one with a different viscosity.
4. Product Transfer Documents. (PTDs). All regulated parties
transferring gasoline, detergent, or additized PRCs (except retailers
and WPCs transferring gasoline to the ultimate consumer) must also
transfer product transfer documents (PTDs) providing necessary
information about additization status, identity of the product, and
identity of the transferring parties. All regulated parties receiving
such product, including retailers and WPCs, must likewise obtain these
documents. Most regulated parties will be required to maintain these
documents for five years. However, WPCs receiving such documentation
for additized gasoline will not have any record maintenance requirement
as to the received documents.
5. Liability and Defenses. As is typical in EPA fuels programs,
presumptive liability will be the cornerstone of compliance assurance
under the certification program. All parties in the relevant gasoline,
detergent, and detergent-additized PRC distribution chain for a
nonconforming product will be presumed liable for detergent program
violations arising from that nonconformity, specifically, violations
involving the sale, transfer, etc. of nonconforming detergent,
nonconforming gasoline, and nonconforming additized PRC, as applicable.
Two exceptions to this general rule exist, however. First, carriers are
only presumptively liable for violations discovered at their own
facilities. For downstream violations, carriers will be deemed liable
only when EPA can prove that they caused the violations. Second, for
VAR violations, expected to be the primary source of violations under
the detergent program, only those parties meeting the definition of
detergent blender for the nonconforming product will be presumptively
liable.
In addition, any regulated parties that EPA can establish caused
VAR violations will be deemed liable for these violations, and branded
refiners will be vicariously liable for any violations, other than
violations of the PTD provisions, found at facilities operating under
the refiner's brand name. Presumptive liability for PTD violations is
imposed under the certification program only on those parties owning,
leasing, operating, controlling, or supervising facilities at which
such violations are found.
All parties subject to presumptive and vicarious liability have the
right to assert an affirmative defense to that liability.
6. Exemptions. As provided in the interim program, racing and
aviation fuel, and detergent and gasoline used for research,
development, and testing purposes, are exempt from the requirements of
the detergent certification rule, provided certain safeguards are met
to ensure the proper use of these exempted fuels. In addition, provided
certain conditions are satisfied, gasoline additized in the state of
California is exempt from the VAR requirements of today's certification
rule, and gasoline sold within California is exempt from the rule's PTD
requirements.
B. Enforcement Aspects of the Certification Program, Including
Clarifications of, and Changes to, the Interim Program
While the enforcement provisions of the certification program
closely track and continue those found in the current interim program,
there are certain important aspects in which EPA is revising its
enforcement provisions, for both the interim and certification program.
The following description of the enforcement program includes
modifications of the interim program. These changes primarily result
from industry queries about the practical implication of certain
provisions of the interim program rule. The Agency provided
implementation guidance on some aspects of the interim rule in
[[Page 35336]]
response to these queries, through the issuance of four Detergent Rule
Question and Answer Documents (Q&A Documents or Q&As). In addition,
some of the statements found in the Q&A Documents were issued by EPA to
address the Agency's implementation concerns that became apparent to
EPA upon initiating its enforcement program. All four Q&A Documents are
available in the docket (items IV-C-08 through IV-C-11). Also available
in the docket is a summary of significant industry implementation
questions that have not been incorporated in a Q&A document (item VI-D-
57).
Since these Q&A Documents do not have the same legal force as a
regulation, the Agency is incorporating these provisions in today's
rule. All of these modifications adopted into today's rule are within
the scope of the proposals found in the NPRM, and are logical
outgrowths of the proposal, typically based on comments in the form of
industry queries. The changes and clarifications mitigate industry
burdens in comparison to the regulatory language found in the current
interim program, while at the same time, maintain the effectiveness of
the Agency's detergent additive enforcement program.
Other changes from the interim program are also discussed below.
These changes were developed from ideas presented in the NPRM, or are
based on proposals raised in the Reopening Notice. The discussion of
these enforcement provisions includes EPA's response to comments
received about the proposals.
1. VAR Requirements. Mandatory VAR procedures are the foundation of
today's certification program, as they have been under the interim
program. All detergent blenders are required to record their actual
detergent concentration attained for a specified compliance period and
compare it with the detergent's applicable certified LAC. If the actual
detergent concentration for the compliance period is equal to or
greater than the LAC, then the blender's detergent concentration rate
is in compliance with the VAR requirements. To help prevent
misadditization, automated detergent blenders are prohibited from
setting their additization equipment at rates below the LAC rate. Hand
blenders are required to calculate VAR compliance for every load of
gasoline or PRC additized, for each detergent used in the load, and
each certified LAC rate used.
a. Automated Detergent Blender Compliance Periods. The interim
program final rule specified that VAR compliance periods for automated
blenders may continue no more than a calendar month, and may not extend
beyond the end of the calendar month in which they are started. The
monthly time period was established because it was considered a
reasonable compromise between industry's desire to average additization
compliance over an extended period, and the Agency's need to ensure an
effective additization level in the actual gasoline dispensed to
consumers. The original proposal in the NPRM was for a weekly VAR
compliance period. After reviewing industry comments to the NPRM
universally requesting VAR periods longer than a week's duration, the
Agency re-evaluated the matter and established the monthly period in
the final interim rule.
It was subsequently brought to the Agency's attention that tying
VAR compliance periods to calendar months was causing operational
problems for some detergent blenders. Blenders claimed that varied
operational procedures and needs made such rigid terminations
difficult. In the Q&A Documents, therefore, EPA relaxed this
requirement and permitted blenders to terminate their monthly VAR
compliance periods on the last working day of the month, or on the
first working day of the next month, etc. (See Q&A Document #2, Q.13,
p.8; and Q&A Document #4, Q.3, p.4.)
One blender suggested a manner of resolving these operational
concerns in a much simpler manner, by structuring the automated blender
monthly compliance periods so that they could last no longer than 31
days, without being restricted to a calendar month. Thus, the problems
involving calendar month terminations would be alleviated. (See Docket
item IV-E-44.)
The Agency agrees that this is a reasonable method of ensuring that
automated VAR compliance periods are no greater than a month, without
forcing regulated parties to conform their operational practices to
rigid calendar month time frames. Therefore, today's final rule adopts
this flexible approach for both the interim and certification programs,
specifying that the automated VAR compliance period must be less than
or equal to 31 days, at the blender's option.
The interim program rule requires that the VAR record identify the
dates of the compliance period, as was proposed in the NPRM. The Agency
has also interpreted this requirement in the Q&A Documents. (See Q&A
Document #2, Q.13, p.8 & 9; and Q&A Document #4, Q.3, p.4 & 5.) Under
this interpretation, if the VAR formula record for a particular
compliance period includes all the additizations occurring within a
certain calendar month, then the VAR formula record need only identify
the month. However, if the compliance period does not include the
entire calendar month, then the blender must indicate on its VAR
records the exact dates and times of the period's beginning and end.
The point of recording such information is to ensure that the VAR time
periods are inclusive of all additizations. Today's final rule includes
these requirements and interpretations for both the interim and
certification programs.
As in the interim program, the certification program requires
termination of the VAR period when an automated blender's additization
equipment concentration rate is increased more than 10 percent over the
original rate. A new reconciliation period must be commenced at that
point. The 10 percent limit was intended to provide industry with some
flexibility in adjusting additization equipment while preventing large
increases in additization rates as compensation for significant under-
additizations. It was not intended to prohibit the use of a temporary
rate change to correct a misadditized batch of gasoline, or to fix a
temporary equipment problem. In Q&A Document #4 (q.5, p.6), EPA
clarified its intent in promulgating this provision and stated that it
would allow temporary rate changes beyond the 10 percent cutoff,
provided that the purpose is to correct a temporary problem involving a
batch misadditization and that documentation about the temporary
correction is maintained.
Today's rule contains the rate change flexibility as introduced in
the Q&A Documents. It also permits rate changes solely intended to
correct an equipment malfunction, provided that any detergent used in
this corrective procedure and not blended with gasoline is subtracted
from the detergent volume totals. Similarly, today's rule provides that
automated blenders may set their equipment's concentration rate lower
than the LAC, provided such alteration is a documented temporary
procedure performed solely to correct a batch misadditization. In the
NPRM, EPA proposed that automated blenders could never set their
equipment lower than the LAC, and the interim rule incorporated this
proposal. However, based on experiences of blenders under the interim
rule, and in the interest of encouraging correction of batch
misadditizations within a VAR compliance period, EPA is including this
exception to the LAC rate minimum in today's final rule.
[[Page 35337]]
b. VAR Formula Records per Detergent Storage System. As proposed in
the NPRM, the interim program requires automated blenders to create a
separate VAR formula record for each detergent storage tank. However,
some blenders expressed concern to the Agency about the rigidity of
this requirement, since their detergent additization systems were fed
by more than one tank or container, and it would thus be difficult to
create separate VAR records for the different tanks. (See Q&A Document
#1, Q.9, p.6.) To address this concern and provide the necessary
operational flexibility for such blenders, the Agency stated that it
would allow VAR records to be based on detergent tank storage systems.
(Q&A Document #1, supra.) Today's final rule formalizes this more
flexible approach.
c. Brands and Grades of Gasoline on VAR Records. As proposed in the
NPRM, the interim rule requires brands and grades of the gasoline
product covered by a VAR formula record to be listed on that record to
ensure identification of the product covered. Detergent blenders
expressed concern about this requirement because brands of product were
not always known and because product identification was available on
supporting records and was thus not necessary on each formula record.
(See Q&A Document #1, Q.17, p.7; and Docket item IV-E-44.)
These concerns prompted an Agency Q&A Document response, specifying
that gasoline brands had to be identified only when known to the
blender. Today's final rule adopts this Q&A provision, and provides
further flexibility by permitting product identification as to brand
and grade to be recorded on supporting documentation. As to gasoline
identification on the VAR formula record itself, detergent blenders
only have to identify, when relevant, that the product is additized
under a customer-controlled proprietary system. This latter requirement
is necessary to alert Agency auditors that a party in addition to the
terminal operator might be liable for VAR violations for this product.
The additional flexibility in these provisions will facilitate VAR
recordkeeping tasks without interfering with the Agency's need for
proper identification of additized product.
d. Recording of Detergent LAC and the Actual Concentration. As
proposed in the NPRM, the interim rule required that the LAC must
appear on the VAR formula record and in detergent manufacturer blending
instructions in units of gallons of detergent per gallons of gasoline.
However, in implementing the detergent registration provisions, the
Agency realized that such a figure would typically contain three zeros
after the decimal point because the amount of detergent being used per
gallon of gasoline is so small. The constant use of such a figure would
be unwieldy and difficult to work with. Therefore, EPA advised blenders
that the LAC would be permitted to be stated in terms of gallons of
detergent per one thousand gallons of gasoline (Docket item IV-C-12).
This more workable LAC identification system is contained in today's
final rule. Further, today's rule requires the LAC to be reported in
relation to the volume of PRC in which the detergent is blended, as
well as gasoline volume, since the effective detergent concentration
depends on the total volume of additized product.
Neither the NPRM nor the interim rule specified the number of
figures to which the blender must express actual detergent
concentration. Pursuant to a request for clarification of the Agency's
intent on this issue (see Q&A Document #1, Q.22, p.9), today's final
rule clarifies that the actual concentration must be expressed to four
figures. This specification is appropriate, given the large volumes
typically encountered.
Today's final rule also specifies that the LAC identified on the
VAR records and in the manufacturers' blending instructions to their
customers must also be expressed to four figures. Neither the NPRM nor
the interim rule specifically addressed this point. Both concentrations
now have to be recorded to the same arithmetic rounding standard. This
will facilitate comparison of the LAC with the blender's actual
detergent concentration, and it also ensures that this information is
standardized on all VAR formula records.
e. VAR Recording of Use-Restricted LACs. Under the interim program,
a detergent can be registered with multiple LACs for use of the
detergent in different types of gasoline. For example, a detergent can
have one LAC for generic product, and another, lower LAC for leaded
gasoline. The generic/leaded distinction retains limited relevance
under today's final rule, because the sale or dispensing of leaded
gasoline for use in nonroad vehicles continues to be permitted even
though the sale or dispensing of such product for use in highway
vehicles was banned as of January 1, 1996.
As previously mentioned in this preamble, there are additional
certification rule situations under which a detergent may be certified
with multiple LACs. As proposed in the NPRM and codified in the interim
program, under the certification program a VAR formula record may
account for the use of only one such certified LAC. Additization based
on a different certified LAC must be recorded on a different record. In
addition, the VAR formula record for a detergent's use-restricted LAC
must state the respective use restriction(s) for the LAC on the VAR
record. This requirement will highlight for the regulated party, and
for the Agency, the specific use for which the detergent is certified,
and will help ensure that gasoline is additized at a proper rate.
f. Diluted Detergent. Under the interim rule, any change in
detergent package composition which changes the LAC requires a new
registration. Thus, a detergent blender could not dilute a detergent
with the marketer's own gasoline in order to make the detergent less
viscous for ease in use in the colder winter months.
Pursuant to a request to permit such detergent dilution, EPA has
allowed such a practice, since it does not make the detergent less
efficient in preventing deposit formation, and it facilitates winter
use of the detergent (Q&A Document #4, Q.1, p.1.). Safeguards are
established under the Q&A to ensure that the use of this procedure does
not result in less effective additization. Blenders using this
procedure are required to use the diluted detergent at an LAC rate that
compensates for the dilution, and they are required to inform EPA of
this usage in writing, prior to the dilution. Today's final rule
codifies this provision allowing lenders to dilute their detergent for
winter handling, thus modifying the strict prohibition against
detergent package LAC variation originally proposed in the NPRM.
g. VAR Recording of Gasoline Which is Overadditized for the
Anticipated Addition of Ethanol or Other PRC. Under the interim
program, excess detergent can initially be added to gasoline to account
for the anticipated later addition of unadditized ethanol or other PRC
to that gasoline. The purpose of such initial overadditization of the
gasoline portion is to ensure that the combined gasoline/PRC product
contains the appropriate detergent concentration.
Neither the NPRM nor the interim program rule specified how this
permitted practice was to be recorded on the VAR formula records. EPA
clarified this matter by the issuance of Q&A Documents which stated
that the Agency expects such a VAR formula record to identify the
volume of gasoline being overadditized, and the anticipated volume of
ethanol/PRC being accounted for. In addition, EPA expects that the
volume of ethanol/PRC being accounted
[[Page 35338]]
for by the gasoline overadditization is to be included in the recorded
final volume of product additized (Q&A Document #1, Attachment 1, p.24-
25; and Q&A Document #2, Q.8, p.7). Such identification on the VAR
record is necessary to highlight that the blender is over-additizing
gasoline in this manner, as well as to ensure that the actual detergent
concentration for the gasoline/PRC blend is sufficient to effectively
control deposit formation.
Today's final rule codifies these VAR recording clarifications
found in the Q&A Documents, so as to make the VAR records reflect the
reality of this specialized overadditization practice. These
clarifications should enable the regulated community and EPA to verify
that this procedure, which was also permitted under the interim rule,
is implemented in an accurate, effective manner.
Today's final rule also extends these PRC-related overadditization
VAR procedures to the hand blender VAR requirements, for the same
reasons they are necessary for automated blenders. This corrects the
Agency's oversight to include them in the interim program's provisions
for hand blenders.
h. VAR Recording of Transfers of Unadditized Gasoline. Under the
interim program, automated detergent blending facilities and terminals
at which hand blending occurs are required to create and maintain VAR
supporting documentation for each transfer of unadditized gasoline from
the facility in the compliance period (for automated blenders), or
monthly (for the hand blending terminals). A record that unadditized
product has left the detergent blending terminal is needed by the
Agency so that the product can be traced, if necessary, to ensure that
it was ultimately properly additized prior to use by the consumer.
Because terminals already are required under the interim program to
maintain product transfer documents for each such transfer, the Agency
stated in Q&A Document #1 (Attachment #1.) that detergent blenders
could indicate on VAR records the total amount of such transfers
occurring either in the VAR compliance period (for the automated
blenders), or during the month (for hand blenders), without indicating
the date, volume, or recipient of each transfer. These total volumes
are to be recorded on the automated blender VAR formula record or the
hand blender monthly record of unadditized transfers. This simplified
approach is codified in today's rule. It streamlines the more
exhaustive recording provision found in the interim rule, while
providing useful notification to the Agency on VAR records of the
transfer of unadditized product from detergent blending terminals.
In requiring detergent blenders to identify on their VAR records
transfers of unadditized gasoline leaving their facilities, neither the
NPRM nor the interim rule considered that this would require refineries
which also happen to be detergent blending terminals to record routine
bulk transfers of unadditized product to other detergent blending
facilities. Such bulk transfers were not the target of this record
requirement because they are not intended for immediate consumer use.
Consequently, pursuant to industry inquiry about this matter, the
Agency stated in Q&A Document #4 (Q.4, p.5.) that it would excuse such
refinery bulk transfers from inclusion in the VAR recording requirement
for transfers of unadditized product. Today's final rule codifies this
exception and extends it to pipelines which also happen to be detergent
blenders and which also regularly make bulk upstream transfers of
unadditized gasoline. The proposal as originally described in the NPRM
has thus been modified to take into account the reality of upstream
bulk transfers of unadditized gasoline which do not warrant the special
VAR attention necessary for downstream transfers of such product.
i. Supporting Documentation of VAR Volumes for Hand Blending
Facilities. As proposed in the NPRM, the interim rule required hand
blending detergent facilities to retain VAR supporting documentation,
specifically, PTDs and bills of lading for all product they receive or
send out. However, the interim rule did not require hand detergent
blenders to maintain documentation supporting their recorded VAR
volumes for gasoline, PRC, and detergent.
Since such documents would obviously be important if the reported
volumes were ever subject to question, EPA has issued guidance that
such data, if available to the hand blender, should be maintained
(Attachment 1 of Q&A Document #1, p.28.). Today's final rule codifies
this requirement for hand blenders.
j. Electronic VAR Formula and Supporting Records. Neither the NPRM
nor the interim program final rule addressed the use of electronic
records to satisfy VAR formula or supporting record requirements.
Pursuant to industry request for approval of electronic records (Docket
VI-D-57.), in Q&A Document #1 (Q.4, p.11) the Agency clarified that the
use of electronic VAR and PTDs complies with the rule, provided that
these records are complete, easily readable, and accessible.
In written discussions with petroleum industry groups, EPA
discussed permitting the use of computer identification codes in lieu
of VAR formula signatures, provided that safeguards of authenticity
would be met (Docket item IV-C-13). Blenders using such ID codes would
be required to maintain a document signed by the VAR record's creator,
acknowledging that the use of this identification code on the record is
equivalent to his/her signature, and must take record security and
access precautions.
Some regulated parties objected to the idea of the Agency placing
conditions on the use of electronic records, asserting that these
records are as reliable as paper records which are not subject to any
additional conditions (Docket items VI-D-59 and VI-D-60).
The Agency disagrees with such comments, and believes that its
enforcement needs justify the establishment of conditions on its
approval of the use of electronic records. If electronic records are to
be used by industry to satisfy detergent rule requirements, EPA needs
to be assured that these electronically generated document
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
s will be
easy to read and easily accessible. If they are encoded or stored in a
manner that makes them unusable by the Agency, the effectiveness of the
detergent enforcement program would be compromised. Therefore, the
Agency is choosing to establish readability and accessibility
requirements for electronic records.
Further, since electronically generated documents can be easily
altered without evidence of such alteration being visible, and because
compliance with the detergent program is determined primarily through
review of the VAR formula records, the Agency needs to ensure that
electronic VAR formula records are stored with access and audit
security. Consequently, the use of electronically created VAR formula
records requires the existence of access and audit security
precautions, including documentation verifying the true identity of
parties identified on these documents only through the use of computer
ID codes.
The final rule promulgated today includes a specific provision
approving the use of electronic VAR records. It thus expands the range
of permissible documents that will be acceptable to satisfy VAR
requirements, while maintaining safeguards necessary for EPA's
enforcement needs.
k. Detergent Tank Transitioning. The interim rule prohibited the
commingling
[[Page 35339]]
of different detergents through provisions prohibiting the supply,
storage, etc. of an unregistered detergent (which commingled different
detergents would be), and the additization of gasoline with an
unregistered detergent. During implementation of the interim program,
the Agency was asked whether a detergent blender could transition from
the use of one detergent to another by adding a new detergent into a
tank that contains the residue of an old, different detergent, even
though some commingling would result (See Q&A Document #1, and Docket
item VI-D-57).
Such detergent tank transitioning process is a common industry
practice and prohibiting it would greatly inconvenience many blenders.
Therefore, EPA believes it is reasonable to permit this practice in
spite of the limited commingling involved. At the same time, the Agency
needs to ensure that protective procedures will be followed which limit
the amount, or effect, of the commingling. EPA is concerned that the
combined detergent may be used at a LAC that would not adequately
additize the gasoline. Further, commingling of detergent would make it
difficult or impossible to confirm the identity of the detergent by
testing, if this should be necessary for enforcement purposes.
If a blender desires to use the same detergent, but at a different
LAC certified for use restricted to a different product, this would not
constitute an actual tank transitioning process. In this instance, the
detergent in the storage tank remains the same and no commingling
occurs. Therefore, in such a situation, the only requirement that
today's rule imposes is that the blender must create separate VAR
formula records for each certified LAC use, identifying the separate
use restrictions, and must use measurement equipment able to accurately
measure the detergent recorded for each record.
For the case of a tank transitioning situation, i.e., where
different detergents are being commingled, EPA issued a response in Q&A
Document #1 (Q.5, p.4) which provided limited approval for such
commingling. Associated procedures ensure proper VAR identification and
usage the proper LAC for the combined detergent. They also encourage
the maximum depletion of the prior detergent in the tank so as to limit
the commingling involved.
Today's final rule follows this Q&A approach by permitting
detergent commingling during legitimate tank transitioning periods,
while requiring necessary procedural and recordkeeping safeguards to
ensure proper VAR identification of the detergents and proper
additization with the commingled detergent. It thus relaxes the total
prohibition against detergent commingling proposed in the NPRM, to
provide industry with the flexibility it needs to execute this standard
tank transitioning procedure.
In addition, today's rule codifies the detergent transitioning
policy, first outlined in Q&A Document #1, supra, under which the
addition of new detergent into a detergent storage tank is specifically
permitted and the combined detergent is treated as if only the new
detergent were in the tank, provided that the tank is drained of the
old detergent to a remaining level no greater than 10 percent of the
tank's newly delivered, commingled volume. This volume includes the
tank's remaining inventory of the residue detergent, plus the newly
delivered detergent.
This 10 percent cutoff figure creates an incentive to detergent
blenders to reduce the amount of actual commingling involved in their
detergent transitioning. The Agency has chosen this figure because EPA
judges this small amount of residual detergent to be inconsequential
enough to minimize concern about the use of an inappropriate LAC for
the combined mixture. At the same time, it is large enough to
accommodate blender need for flexibility in tank drainage procedures.
Furthermore, the drained detergent can be re-delivered into storage
tanks containing the new detergent, provided that the re-delivered
detergent comprises no greater than 10 percent of the tank's total
commingled delivered volume. The Agency believes it is appropriate to
allow this particular commingling procedure because it eliminates the
need for blenders to dispose of the previous detergent.
If both detergents have the same LAC, today's final rule permits
blenders to drain their detergent tanks (and/or redeliver old
detergent) so that the old detergent makes up no greater than 20
percent of the total newly delivered volume without following
additional procedures. In such situations, there is no risk of blender
confusion as to what LAC applies, so greater flexibility is warranted
than for those situations in which the detergent LACs are different.
Finally, today's rule establishes provisions that will apply when
two detergents being commingled in tank transitioning situations have
different certification use restrictions. Neither the NPRM nor the
interim program specifically addressed this matter, and no comments on
this topic were received by EPA. When two separately certified
detergents are being commingled, the rule establishes that the original
detergent's use restrictions no longer apply, while the use
restrictions for the new detergent must be followed. The Agency
believes that this procedure is appropriate, practical, and easy to
follow, provided the transitioning steps discussed above are followed.
Under these steps, a blender commingling 10 percent or less of the
original detergent would essentially disregard the carry-over of the
original detergent, and follow the LAC and use restrictions of the
newly added detergent.
In situations where a blender commingles in the detergent tank a
residue of more than 10 percent of the original detergent which has a
different LAC than the new detergent, the blender is required by the
transitioning procedures to use the higher LAC of the two detergents
until an amount of detergent is used up which is equal to that of the
original detergent remaining in the tank at the time of the new
detergent's delivery. The use of the higher LAC should ensure that the
commingled detergent will be effective in the fuel for which either
detergent was certified. Therefore, the blender is allowed to use that
higher LAC with the new detergent's use restrictions, and to disregard
the original detergent's use restrictions.
Each of the permitted tank transitioning procedures described above
must be documented, either on the VAR record or in supporting
documentation. Documentation of the detergent commingling will be
useful to EPA if enforcement testing of the detergent is contemplated
by the Agency.
l. Automated Additization Equipment Calibration. The interim rule
required automated detergent blenders to calibrate their additization
equipment each time they change their detergent package and at the
beginning of each calendar quarter. The purpose of this regulatory
requirement was to ensure the accuracy of the volume numbers recorded
on the VAR forms by confirming the measuring accuracy of the equipment
generating those numbers. Today's certification rule somewhat eases
these calibration requirements in response to comments from detergent
blenders that these requirements were unnecessarily severe.
Industry's initial implementation concern was that it would be
impossible to fulfill the requirement that every blender's quarterly
calibration had to be performed in the first month of each quarter (See
Docket item IV-E-45). To reduce this burden, the Agency issued a Q&A
Document stating that blenders
[[Page 35340]]
could perform the required quarterly calibration in any month within a
calendar quarter, provided that the quarterly calibrations occurred no
later than three months from the previous calibration (Q&A Document #1,
Q.12, p.6.).
As a further concern about quarterly calibration, API and NPRA
commented, in response to Agency inquiry, that the quarterly
requirement was, itself, too severe. API suggested that an annual
calibration requirement would be more appropriate, while NPRA asserted
that calibration information should only be asserted as an affirmative
defense element. (Docket items IV-C-14, VI-D-58, VI-D-61, VI-D-62, VI-
D-63, and VI-D-64.) API further asserted that parties performing
additive reconciliations on a daily or weekly basis, i.e., more
frequently than the required monthly reconciliations, would be assuring
the accuracy of their monthly VAR volumes as effectively as those
parties performing quarterly calibrations. Therefore, for such parties,
API believed an annual calibration requirement would be sufficient.
However, EPA received conflicting information from a representative
of an additization equipment company (Docket items IV-E-46 and VI-D-
65). This party asserted that merely performing reconciliations at a
greater frequency, while not addressing the real issue of the
equipment's measurement accuracy, would not result in improved accuracy
of the VAR records. According to this commenter, if the amount of
detergent being injected per recorded pulse happens to change while the
equipment continues recording the same pulses as before, the mere fact
that a blender increases the frequency of reviewing the recorded pulses
will not ensure that the blender discovers the measurement accuracy
problem. This commenter suggested that the only way to address this
concern is to actually recalibrate the equipment.
The Agency agrees that merely increasing the frequency of VAR
reconciliations does not necessarily ensure measurement accuracy, and
that periodic additization equipment calibrations are thus essential.
Under similar reasoning, the Agency rejects the suggestion that
periodic calibrations should merely be asserted as part of an
affirmative defense. If a blender does not calibrate its equipment
regularly, the fact that its additizations are inaccurate may never be
known.
However, it is also apparent that quarterly calibrations are
burdensome to some facilities, without necessarily providing
commensurate benefits. Therefore, today's final rule requires that
automated detergent blenders perform at least two equipment
calibrations per year. To ensure that the calibrations will be
reasonably spaced throughout the year, the rule also specifies that
these procedures are to be conducted within each calendar half year,
but at least one hundred and twenty days apart. This modified approach
will reduce the equipment calibration burden to industry, while also
satisfying the Agency's need for regular verification of VAR volume
accuracy.
As additional input on the calibration issue, API commented that it
was not technically necessary or useful to recalibrate additization
equipment every time a detergent package was changed. API stated that
merely changing a detergent package, in itself, would not affect
equipment measurement accuracy. On this point, the equipment
manufacturer commenter indicated that if detergent viscosity changes
due to a detergent package change, the amount of detergent being
injected per recorded pulse would change. A new calibration of the
recording equipment would thus be necessary to ensure that the recorded
measurements were still accurate.
The Agency agrees that re-calibration is necessary only when the
viscosity of the new package is different from that of the previous
package. Thus, today's final rule requires that equipment recalibration
must be performed each time the detergent package is changed, unless
written documentation indicates that the new detergent package has the
same viscosity as the previous detergent package. To provide additional
flexibility, today's rule permits a calibration performed to fulfill
the package change requirement to serve also as compliance with the
semi-annual calibration requirement, provided that the package change
calibration satisfies the associated spacing requirements. The Agency
believes that these modifications to the proposed calibration
requirements will assure VAR measurement accuracy while minimizing
industry quality control burdens.
m. Detergent Blender Record Retention. The interim program rule
requires detergent blenders to provide EPA with all VAR formula and
supporting records upon request. EPA had proposed that the records be
maintained at the place of creation, but the interim rule did not
include this requirement. The interim program also did not specify the
manner in which these records were to be provided.
Several detergent blending terminals requested clarification of
EPA's expectations under the interim program concerning document
provision at the time of inspection. (See Q&A Document #1, Q.24 and 25,
p. 9 and 10 respectively; and Docket item VI-D-57.) The Agency
responded that terminals were not expected to store all the required
documentation on site (Q&A Document #1, supra.). The Agency also stated
that detergent blenders were expected to provide EPA inspectors with
six months of VAR formula and supporting records (including PTDs)
within one hour of request, with the remaining requested documents to
be provided by the next business day. The Agency believed that this
time frame for record review would provide EPA with the ability to
quickly review a moderate amount of records, but would not burden
respondents with the need to provide immediately the full five years of
documents which they are required to maintain.
However, EPA's experience in implementing the interim program has
revealed that the Agency needs immediate access to VAR formula records
for a time span greater than six months. Detergent program violations
are not typically discovered through pre-arranged, exhaustive record
audits like those conducted under the RFG baseline audit program.
Instead, detergent program violations are primarily discovered through
on-site inspection review of VAR formula records. These inspections
typically occur during unannounced and expedited terminal inspections
to determine compliance with a variety of EPA fuels programs. Such
inspections are usually completed in several hours and typically do not
extend beyond the day of the initial inspection contact.
Therefore, EPA needs the immediate availability at inspection sites
of a long enough period of VAR formula records to give a clear picture
of a facility's compliance performance. EPA considers one year of VAR
formula records to be the minimum time frame within which EPA can
determine the facility's compliance, so that immediate access to at
least that period of VAR formula records is essential for effective
detergent program enforcement. Since VAR formula records are typically
only one or two pages in length per reconciliation, retention of this
small amount of documentation should not be unduly burdensome.
Today's final rule requires automated detergent blenders and hand
blending terminals to provide the preceding year's VAR formula records
within one hour of a request by EPA personnel. The remainder must be
supplied by the start of the next business day, or later if approved by
EPA. In the case of VAR
[[Page 35341]]
supporting records, only the preceding two month's records need be
immediately available.
For non-terminal hand blenders, only the prior two months VAR
formula and supporting records must be made available within one hour
of EPA's request. Since these blenders are required to create VAR
formula records for each batch of fuel they blend, they typically
create many more VAR formula records per month than automatic blenders,
and thus more records will be available for EPA review. Further, since
such blenders are typically small businesses with little storage space,
EPA believes it would not be appropriate to impose on them the same
record provision burdens as on the larger, terminal blenders.
Today's certification rule (at Secs. 80.157(g) and 80.170(g)) also
clarifies that ``immediate provision'' of the required records means
that the records should be provided within an hour of request, or later
with EPA approval. Such flexibility permits records to be stored on
site, or to be transmitted, electronically or by other means, from any
other location of the party's choice. Furthermore, if any blender can
establish by documentation that its VAR supporting records are either
centrally maintained at another location, or maintained at an
alternative location by a terminal customer operating its own
proprietary detergent system, then that blender does not have to
provide VAR supporting records until the start of the following
business day, instead of within an hour.
2. Affirmative Defense and Liability Issues. The affirmative
defense and liability provisions of the certification program are a
continuation of, and are substantially the same as, those promulgated
by the interim rule. Immediately following is an analysis of the
certification program's affirmative defense provisions. Significant
differences from the interim program are discussed thereafter.
The certification program gives all parties which are subject to
presumptive and vicarious liability the right to assert an affirmative
defense to that liability. In general, such parties must establish that
they did not cause the violation. In addition, they must provide
applicable PTD(s) meeting the requirements of Sec. 80.171 for the
product in violation, documenting that the product satisfied all
requirements of this program when it left their control.
Specific parties have additional requirements to establish an
affirmative defense:
Branded refiners are subject to vicarious liability for product
nonconformity violations involving gasoline, detergent, and detergent-
additized PRC, as well as for VAR violations, that occur at branded
facilities, i.e., facilities which operate under the corporate, trade,
or brand name of the refiner or any of its marketing subsidiaries. In
addition to establishing the lack of causation and the PTD elements of
a presumptive liability affirmative defense, branded refiners are also
required to establish either of two additional elements to avoid
vicarious liability for a violation. They must either establish that
the violation was caused by sabotage or in violation of law, or that
the violation occurred despite the existence of a contractual
obligation designed to prevent it, where such obligation was monitored
by an appropriate oversight program including periodic review of PTDs
to ensure contractual compliance. These requirements are the same as
those that currently apply under the interim program.
Detergent blenders, as the parties with the most control over
proper additization, have to demonstrate additional affirmative defense
elements to avoid presumptive liability for detergent rule violations.
In addition to lack of causation and PTD compliance, detergent blenders
must have a quality assurance program to ensure proper additization of
the product they additize. The quality assurance program must include
periodic review of their PTD and volume measurement records to ensure
the accuracy of the blender's PTD and VAR records. Further, a detergent
blender asserting an affirmative defense must establish the receipt (or
provision, as appropriate) of accurate written blending instructions
prior to the blending of the detergent into the nonconforming gasoline
or PRC. These affirmative defense elements are essentially the same as,
and are a continuation of, those found under the interim program.
Detergent manufacturers are subject to presumptive liability for
non-VAR related detergent, gasoline, and detergent-additized PRC
nonconformity violations. As the parties controlling the production of
the detergent, the detergent manufacturers must make specific showings
to establish an affirmative defense to such liability. (See the
following subsection for an analysis of changes to detergent
manufacturer affirmative defense requirements under today's rule.)
Detergent manufacturers are also subject to liability for any
detergent, gasoline or PRC nonconformity violations, or VAR violations,
which EPA can establish they caused.
Carriers of gasoline or detergent are the last parties with
different liability and affirmative defense elements under the
detergent program. Since these parties do not take title to the product
they transfer, carriers have less incentive (although not necessarily
less ability) to cause violations. Therefore, like the interim
detergent program and other EPA fuels programs, carriers are
presumptively liable under the certification program only for the
detergent program violations found at their facilities. They are,
however, also subject to liability for non-PTD detergent program
violations discovered downstream from them, provided that EPA can
establish they caused the violations.
a. Detergent Manufacturer Affirmative Defense Modification. In the
NPRM, EPA proposed that, in order to successfully establish an
affirmative defense to presumptive liability, a detergent manufacturer
would have to establish the two standard defense elements (i.e., lack
of causation and complying PTDs), as well as the existence of test
results confirming that the detergent in question conformed to
compositional specifications when it left the manufacturer's control.
Detergent manufacturers commented that these proposed additional
requirements were unfair, because their actual ability to cause
gasoline nonconformity violations was limited. The proposed
requirements were thus modified in the interim rule. Under the interim
rule, to successfully assert an affirmative defense to presumptive
liability for non-VAR product nonconformity violations, a detergent
manufacturer was required to establish that it did not cause the
violation. Instead, it had to demonstrate or furnish: (1) That it
provided timely and accurate written blending instructions to its
customer, (2) a detergent PTD, meeting the requirements of Sec. 80.158,
showing product compliance when the detergent left the manufacturer's
control, and (3) accurate test results establishing that the product
was in compliance with its registration specifications at the time the
manufacturer transferred the detergent.
In subsequent discussions with EPA, CMA objected to the interim
rule's affirmative defense requirement that relatively sophisticated
test results be available on each batch to establish its chemical
conformity to registration specifications (see Docket item IV-E-41).
CMA maintained that conducting such tests on each batch of detergent
was unnecessary and prohibitively expensive. Instead, for quality
control purposes, detergent manufacturers
[[Page 35342]]
typically monitor the quality of the reagents which are input to the
production process, and then test each produced batch to ascertain that
it meets relevant physical property specifications. CMA contended that
these same measures would be adequate to show that a questioned batch
of detergent did meet its registration specifications.
In establishing the interim rule requirement for relatively
rigorous analytical test results as an affirmative defense element,
EPA's intent was to ensure that the detergent manufacturer would be
prepared to supply scientifically defensible, objective evidence that
the detergent component of a product was consistent with its registered
compositional specifications when it left the manufacturer's control.
However, EPA is persuaded by its discussions with the industry that
alternative approaches, more consistent with the industry's normal
production practices, can also be used to fulfill these objectives
adequately.
EPA acknowledges that a requirement to perform an FTIR 28
routinely on every production batch, in case it might be needed in the
future for affirmative defense to presumptive liability, might be
overly burdensome for some manufacturers. Thus, EPA is making
alternative provisions available which manufacturers may choose to
follow for affirmative defense purposes. If EPA informs the detergent
manufacturer of the possible existence of a violation for which the
manufacturer may be presumptively liable within one year of the
production of the detergent batch involved, then FTIR results are
required for that batch. However, the manufacturer need not have
conducted the FTIR procedure on the batch at the time of production.
Instead, the manufacturer may choose to retain a sample of each
detergent batch when it is produced, and to store it for at least a
year in case it becomes a component of a product thought to be in
violation of this rule. In that instance, the manufacturer would
conduct the FTIR analysis on the retained sample of the batch involved.
Whether the FTIR analysis was done at the time the batch was produced,
or performed as needed on a retained sample of the batch, EPA would
compare the results with the FTIR submitted at time of certification,
to determine whether, in its judgement, the composition of the
production detergent batch was in reasonable conformity with the
certified detergent product.
---------------------------------------------------------------------------
\28\ Under the interim program, the test may be an FTIR-based
analysis or other procedure which can qualitatively and
quantitatively identify each component of the detergent additive
package (Sec. 80.141(f)). Under the certification program, an FTIR
analysis is required (Sec. 80.162(d)).
---------------------------------------------------------------------------
If the manufacturer receives notification from EPA of possible
presumptive liability concerning a detergent batch that was produced
more than a year previously, the manufacturer has additional choices
for the affirmative defense showing. The manufacturer still has the
option to provide an FTIR on the batch (either taken a time of
production or on a retained sample), as would be required if the batch
had been produced less than one year ago. However, EPA understands that
shelf life restrictions may become a factor for some detergents after a
year or more of sample storage time. Thus, in lieu of an FTIR, the
manufacturer may choose to rely on the following two affirmative
defense requirements: (1) Documentation that the reagents used to
synthesize the batch were the same in identity and quality as those
specified in the certification, and (2) documentation that relevant
physical properties of the batch fell within the range established in
the detergent's certification (see section III.A.1 of this preamble).
b. Extension of Liability for VAR Violations. Under the interim
program, only detergent blenders are subject to presumptive liability
for VAR violations. Because detergent blenders were the only parties
required to perform VAR reconciliations, it appeared logical that they
should be the only parties liable for violations involving such
reconciliations.
The Agency has become convinced, however, that parties other than
detergent blenders can cause VAR violations, even if such other parties
do not conduct the VAR reconciliations. For example, such parties can
provide erroneous instructions to the detergent blender about detergent
concentration rates or use restrictions. Conceivably, parties could
also conspire with the detergent blender to transfer competitively low-
priced unadditized or misadditized gasoline.
Therefore, in the Reopening Notice, EPA proposed extending
presumptive liability for VAR violations to other regulated parties in
the gasoline and detergent distribution chains. In the alternative, EPA
proposed maintaining presumptive liability for VAR violations solely
for detergent blenders, but extending liability to any regulated party
whom EPA could show actually caused a VAR violation. This option was
proposed with a new requirement that parties in the detergent
distribution system would have an affirmative duty to provide accurate,
written blending instructions for the detergent (59 FR 66872).
Most commenters on this issue disagreed with the Agency's proposal
to extend presumptive liability for VAR violations to additional
parties, asserting that EPA should be able to effectively enforce the
VAR requirements with the liability scheme currently in effect under
the interim program rule. These commenters also argued that detergent
blenders are the only parties who could reasonably be held responsible
for their own VAR violations. However, two commenters stated that
parties other than detergent blenders could cause VAR violations, and
should therefore also be subject to presumptive liability for such
violations.
Few parties commented specifically about the alternative proposal
to impose an affirmative duty on parties to provide accurate detergent
blending instructions. One commenter agreed with the idea, provided
that this requirement would take the place of extending presumptive
liability for VAR violations to additional parties. A second commenter
opposed the proposal, basing its opposition on the idea that a new
affirmative duty was not necessary in the detergent program. Other
commenters asserted that, in general, no new enforcement provisions
were warranted at this point in the detergent program.
EPA agrees with the majority of commenters that most VAR violations
will be caused by detergent blenders. Therefore, the Agency agrees that
extending presumptive liability to parties other than detergent
blenders would be inappropriate. However, since other regulated parties
in addition to detergent blenders clearly do have some capacity to
cause VAR violations, today's rule does extend liability for VAR
violations to those regulated parties that EPA shows caused such
violations.
Today's final rule does not impose a new affirmative duty on
parties in the detergent distribution system to provide their customers
accurate detergent blending instructions. It is obviously important to
the effectiveness of the detergent program that detergent blenders
receive accurate blending instructions. However, EPA's experience
enforcing the detergent program has shown the effectiveness of the
existing affirmative defense requirements concerning blending
instructions, i.e., the reciprocal affirmative defense requirements of
the detergent manufacturer and the detergent blender, respectively, to
provide and receive accurate, written
[[Page 35343]]
blending instructions. This experience indicates that the added
imposition of an affirmative obligation (in addition to the affirmative
defense element) to provide such instructions is not necessary.
c. Defense Against Liability Where More Than One Party May Be
Liable for VAR Violations.
As proposed in the NPRM, both the interim program and the
certification program provide that multiple parties may be subject to
liability for the same VAR violations. This possibility exists for
several reasons: Multiple parties may fit the definition of detergent
blender; several regulated parties may have caused the VAR violations;
and branded refiners may be vicariously liable for another party's
violations if a VAR violation occurs at a branded facility, including a
detergent storage system, operating under the corporate, trade, or
brand name of that branded refiner.
Many commenters suggested that liability for VAR violations should
be limited by the terms of contracts that the parties themselves have
created concerning additization of gasoline. These commenters stated
that detergent additization is often carried out pursuant to the terms
of such contracts which dictate responsibilities between the parties,
and which should be respected by the Agency.
As EPA stated in the preamble to the interim program rule, the
Agency is not required to base its own determination of liability for
violations on the consensual agreements created by potential violators.
However, the Agency may consider the division of responsibilities
contractually established between the parties when deciding whom it
will prosecute for violations.
It is the Agency's policy that: if such division of
responsibilities is established by a written contract; if the parties
not assuming responsibility have implemented reasonable contractual
oversight procedures to ensure that the assuming party has fulfilled
its responsibilities; if the assuming party is fiscally sound and
capable of paying the penalty for failure to comply with the VAR
requirements; and if the non-assuming parties have not otherwise caused
the VAR violation; then, it is appropriate for the non-assuming parties
to avoid liability for a VAR violation.
The Agency believes that contractual arrangements meeting these
criteria provide reasonable assurance that the assuming party is
responsible for the VAR requirements and has the financial ability to
pay penalties if it fails to adequately meet these requirements.
Therefore, EPA does not believe that compliance with the detergent
program will be compromised if parties are permitted to assert reliance
on such contracts as a defense to the imposition of multiple liability
for VAR violations.
Consequently, today's final rule provides that parties subject to
liability for VAR violations may successfully assert an affirmative
defense to such liability, provided that the elements described above
are satisfied. This defense cannot be used, however, to avoid
imposition of liability related to a detergent blender's failure to
provide VAR records upon EPA request, as required pursuant to
Sec. 80.170(g). As previously mentioned, the Agency needs to review
certain limited, but essential, VAR records during inspections at
detergent blending terminals. EPA cannot allow parties to avoid this
enforcement necessity through a privately created contract.
d. Defense to Liability for Gasoline Nonconformity Violations Based
Solely on the Addition of Misadditized Ethanol or Other PRC to
Gasoline. Under the interim and certification programs, gasoline which
is properly additized at a detergent blending terminal can subsequently
become a nonconforming product when a party downstream of the
gasoline's additization terminal blends mis- or unadditized ethanol or
other PRC into the gasoline. The reason for the nonconformity is that
the combined product fails to attain the proper additization
concentration through the addition of the misadditized PRC.
The sale, offering for sale, etc. of nonconforming gasoline is a
violation of the detergent rule for which all parties in the relevant
gasoline, detergent, and PRC distribution systems are presumed liable,
although each such party has the right to assert an affirmative defense
to liability. In addition, branded refiners are also subject to
vicarious liability if the violation involves branded products. Neither
the NPRM nor the interim rule addressed the appropriateness of a
special affirmative defense specifically geared to violations caused by
misadditized PRC.
In commenting on the Reopening Notice, representatives of the
ethanol industry stated that the interim program is causing a chilling
effect on the use of ethanol. According to one industry representative,
this situation is brought about, in part, because parties in the
distribution chain who do not add ethanol to the product are concerned
about their potential liability if mis- or unadditized ethanol is
subsequently added to the gasoline. This commenter asserted that such
parties were avoiding or prohibiting the use of ethanol with their
product because of their apprehension of potential liability.
As a response to this comment, today's final rule provides that the
party not adding the ethanol or other PRC can avoid the imposition of
liability (whether presumptive or vicarious) in this situation merely
by establishing that it did not cause the violation, and that it has
PTDs establishing that the product was in conformity with program
specifications when it left the party's control. This provision relaxes
the presumptive and vicarious liability affirmative defense
requirements established for other violations in the interim program
and proposed in the NPRM, and thus makes it easier for the party not
adding the ethanol to avoid liability for nonconforming product. The
Agency believes this is appropriate because such parties have little
control over this type of violation, and because the environmental harm
of the violation tends to be mitigated by the industry practice of
slightly over-additizing gasoline to ensure that actual additization is
above the required LAC.
e. Liability for the Sale of Nonconforming Gasoline or PRC When the
Gasoline or PRC Also Violates VAR Requirements. This section
articulates Agency policy about enforcement of detergent rule
provisions when the same gasoline violates both the VAR standard
requirement and the prohibition against the sale of nonconforming
product. When gasoline or PRC is misadditized because it failed to
attain the VAR standard, a VAR violation has occurred. Only the
detergent blender and/or those whom EPA can establish caused the
violation are responsible for that VAR violation. However, any party,
including the detergent blender, who sells, transfers, etc. the
nonconforming gasoline or PRC is also subject to liability for a
different violation, i.e., the sale, etc. of nonconforming gasoline or
PRC. Any party subject to liability for any of these violations has the
right to assert an affirmative defense to such liability.
In the preamble to the interim program final rule (59 FR 54700),
the Agency made clear that it intended to treat fairly those parties
who unknowingly sell such non-complying gasoline. EPA is reiterating
that position. Specifically, when a VAR standard violation is found,
the Agency does not intend, as a general practice, to take enforcement
action against the detergent blending party for both the VAR violation
and the violations stemming from the sale of the same nonconforming
gasoline or PRC. However, if the circumstances of the
[[Page 35344]]
violation make the Agency believe that the imposition of liability for
both violations is appropriate, then EPA will bring an enforcement
action for both violations. Such unusual circumstances could include
the party's deliberate attempt to profit from detergent program
violations, or a pattern of significant and repetitive VAR standard
violations.
In a similar manner, when a VAR standard violation is found, the
Agency will not generally take an enforcement action against the non-
blending parties for selling or transferring the nonconforming gasoline
or PRC. The reason is that parties receiving the nonconforming product
typically have no practical means of knowing that the product is
misadditized, and, consequently, they should easily be able to
establish their affirmative defense element. However, if unusual
circumstances exist indicating that the non-detergent blending parties
had responsibility for the nonconforming sale violations, EPA may take
enforcement action against these parties for such sale violations.
f. Detergent Blender Affirmative Defense Clarification and
Clarification of Presumptive Liability Arising from Detergent Blending.
Under the interim program, for detergent blenders to avoid liability
for VAR and product nonconformity violations, they must establish the
standard detergent rule affirmative defense elements of lack of
causation and PTD compliance. In addition, because of their unique
status in the detergent program as the parties actually adding the
detergent to the gasoline or PRC, they are also required to establish
two additional affirmative defense elements. First, they must show
that, prior to blending, they received (or provided) accurate, written
blending instructions including the LAC and any applicable use
restriction information for the detergent. Second, they must establish
that they have a quality assurance (quality) program which includes
periodic review of supporting transfer and measurement documents,
confirming the correctness of the PTD's and VAR documents.
At an API detergent additives compliance task group meeting
discussing implementation of the interim rule, and through an NPRA
comment on the Reopening Notice (see Docket items #IV-E-44 & #VI-D-63),
the Agency was advised of industry concern about this quality program
element for an affirmative defense. The commenters were concerned that
this quality program defense element might require detergent blenders
to review records of downstream parties handling the gasoline, to
ensure that these other parties were complying with detergent rule
requirements. Since these other parties were not under the control of
the detergent blenders, according to these commenters, the blenders
feared that it would be difficult for them to fulfill this
responsibility.
The Agency agrees that detergent blenders should not be required to
review the records or other actions of parties over whom the blenders
have no control. The Agency's primary intent in establishing this
affirmative defense element was to ensure that detergent blenders
properly control and assure the quality of their own additization
process, not the operations of others over whom they have no control.
Therefore, EPA is clarifying that the detergent blender quality program
element applies to the blender's review of its own records and the
supporting documents it possesses to confirm the correctness of its own
additization activities.
Blenders wishing to assert an affirmative defense should be aware,
however, that they may find it difficult to successfully establish
their lack of causation if they knew of a customer's misadditization of
their product, and they failed to prevent the continuance of that
practice. In such situations, the blender can control future
misadditizations by refusing to sell to the violating party. The Agency
believes that, in this unusual situation, the blender does have some
control over such a violation, and that blenders can, and should, be
held accountable for reasonable steps to prevent it in order to
establish an affirmative defense.
Today's rule also clarifies another point about detergent blending
liability. As proposed in the NPRM and as codified in the interim rule,
regulated parties are presumptively in violation if they own, control,
etc. the facility where a gasoline or PRC nonconformity violation is
found. In addition, applicable parties are presumptively in violation
if they do actions (whether upstream or downstream of the place where
the violation is found), such as selling or transferring the product or
components of the product in violation, which could cause the
nonconformity or other violation and which make it reasonable for such
parties to be presumptively in violation.
For this latter liability, as was proposed in the NPRM, the interim
rule specifies the acts giving rise to this presumptive liability,
including such activities as manufacturing, refining, selling,
dispensing, and transporting the products in question. While the
interim rule does not specifically mention the act of detergent
blending as one which would give rise to this liability, the act of
detergent blending is typically associated with the other activities
(such as selling, dispensing, or transferring the relevant product),
which are specified in the rule. The act of detergent blending clearly
could give rise to gasoline or PRC nonconformity violations. Therefore,
today's certification rule clarifies that detergent blending is an
activity that will trigger presumptive liability under both the interim
and the certification programs. This clarification is within the scope
of the NPRM proposal since it merely specifies another action that is
related to the other--similar actions--which precipitate such
liability.
g. Liability Clarification. The Agency received a comment from CMA
requesting clarification as to what specific violations detergent
manufacturers would be deemed liable for, and how the continuing days
of penalties would relate to those violations. CMA stated that the
regulations were unclear, because the section of the rule which
designates the prohibited acts appeared to make manufacturers liable
for a single event, such as the sale of non-conforming detergent, while
the penalty provision appeared to impose liability for all the days
that such non-conforming detergent remained anywhere in the gasoline
distribution chain. CMA also claimed that it was unreasonable for EPA
to impose such extended liability on detergent manufacturers, since
their involvement with the detergent and its subsequent blending is
typically limited to the initial sale or distribution of the detergent.
EPA is clarifying in today's rule that parties are responsible for
causing the presence of nonconforming products in their distribution
systems, in addition to their liability for their own sale, transfer,
etc. of nonconforming products. This scheme for presumptive liability
is similar to that adopted under several of EPA's fuel regulations in
Part 80, and has been found in practice to efficiently provide a
mechanism for EPA to identify the party or parties that have caused a
violation, and to impose adequate potential liability for purposes of
deterrence.
Under today's rule, if a detergent manufacturer makes a sale of a
nonconforming detergent, the detergent manufacturer is liable for a
violation of the prohibition against selling nonconforming detergent.
The detergent manufacturer is also liable for a violation for each of
the days that any of the nonconforming detergent from that sale remains
in the detergent distribution system. In addition, if the
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nonconforming detergent was used by its purchaser to create
nonconforming additized gasoline or post refinery component (PRC), then
each day that the nonconforming gasoline or PRC remains anywhere in the
gasoline or PRC distribution systems, is also included (but not
duplicated), in the total number of days that the detergent
manufacturer is in violation.
In addition, if there were two original sales of nonconforming
detergent by the detergent manufacturer, each of these sales would be a
separate violation for that manufacturer, with additional separate
violations for each day that the nonconforming detergent from each sale
remains anywhere in the detergent, PRC, and gasoline distribution
systems, i.e., if detergent from each sale is in its detergent
distribution system or is found in additized gasoline or PRC in their
distribution systems on a specific day, then there are two violations
for that day. However, the detergent manufacturer is not also
responsible for additional violations committed by downstream parties
who deal with the nonconforming product. The daily violation for
causing the presence of nonconforming product in the relevant
distribution systems does not change depending on the number of people
who happen to store, transport, sell or otherwise deal with the
nonconforming product.
Although the comment related specifically to detergent
manufacturers, this principle is applicable to all parties' liability
under the detergent program. Causing the presence of nonconforming
product in the relevant distribution systems is the basis upon which
EPA established in the interim program the provision under which
penalties continue to accrue for each day that the nonconforming
product remains in these distribution systems. Thus, in clarifying this
point in today's final rule, EPA has added appropriate language to
Secs. 80.155, 80.156, 80.168, and 80.169. This clarification does not
constitute a change in EPA's implementation or intent with respect to
either the interim program or the certification program.
3. Inclusion of Importers of Additized Gasoline Within the
Definition of Detergent Blender. The definition of detergent blender in
the interim rule did not include importers of additized gasoline. It
became apparent to the Agency that this omission interfered with EPA's
ability to determine if imported additized product had been properly
additized, since only detergent blenders are required to maintain VAR
records. EPA thus had less oversight over importers of additized
gasoline than it did over the domestic detergent blending parties
marketing the same product, increasing the risk of importation of
misadditized gasoline. This omission also put domestic detergent
blenders of gasoline at a competitive disadvantage in relation to
importers.
To correct this problem, EPA proposed in the Reopening Notice to
amend the definition of detergent blender to include those parties who
imported additized gasoline. All of the comments received on this issue
supported the proposed change. Commenters stated that including
importers of additized gasoline within the definition of detergent
blenders is fair and closes a gap in EPA's ability to enforce the
regulation.
EPA agrees with these comments. Accordingly, today's final rule
includes importers of additized gasoline within the definition of
detergent blender. This change applies to both the interim program and
the certification program.
4. Certification Use Restrictions. Under the interim program, the
only possible detergent use restriction applies to detergents which
have a separate LAC specific to leaded gasoline. Such detergents cannot
be used at the leaded-only LAC with unleaded gasoline. In all other
circumstances, any properly registered detergent can be legally used
with any gasoline or PRC under the interim program.
Under the certification program, however, a detergent may be
certified for one or more restricted uses, thus taking advantage of
lower LACs applicable to some restricted gasoline pools (see Section
IV). These use restrictions require corresponding prohibitions to
ensure compliance with the restrictions, as proposed in the NPRM. Those
parties choosing to take advantage of the use-restricted certification
options in today's program must fully abide by the certified use
restrictions or they will be subject to liability for violations for
the sale, transfer, etc. of the nonconforming gasoline or PRC that
results from the noncompliance. The following is a description of the
certification rule's use restrictions, followed by a discussion of a
permissible method of removing the restrictions under appropriate
circumstances.
Under the PADD-specific certification option, gasoline and/or PRC
additized with a PADD-specific detergent must be sold, transferred,
etc. to the ultimate consumer or to a retail outlet or WPC facility,
only in that specified PADD.
Detergent certified under the fuel-specific option, may only be
blended into gasoline or PRC that conforms with the fuel segregation
and composition requirements of the fuel-specific certification.
Under the national, PADD-specific, and fuel-specific certification
options, if a detergent is certified with an LAC which is effective for
use only with non-oxygenated gasoline, or only with gasoline containing
a specified oxygenate (or non-oxygenated product), then that detergent
at that LAC may only be used with the appropriate base gasoline or PRC
product. In addition, oxygenates cannot subsequently be added to
gasoline previously additized at a lower LAC certified for use with
non-oxygenated gasoline. Similarly, an oxygenate not included in a
given detergent's certification cannot be added to gasoline which was
previously additized according to that certification.
Properly additized gasoline may be commingled with another gasoline
which was properly additized with a different detergent, even if the
second detergent's certification includes different use restrictions
from the first. However, this does not apply to PADD specific
detergents. Gasoline or PRC additized with a detergent certified
specifically to one PADD may not be commingled with gasoline or PRC
additized with a detergent certified specifically to a different PADD
since, by definition, each batch of gasoline, including any PRC, must
be sold or transferred to the ultimate consumer, etc., in its own PADD
in order to be considered properly additized.
If, prior to EPA inspection or sale to the ultimate consumer, a
party discovers that it possesses product that is nonconforming because
of failure to conform to use restrictions, or that party wants to use
an additized product in a way that would be nonconforming to that
product's use restrictions, it is possible under appropriate
circumstances to cure such nonconformity. Such a situation may occur,
for example, during mandated oxygenate seasons, if a terminal has
gasoline which it previously additized with detergent restricted for
use with non-oxygenated product. In order to comply with the oxygenate
requirements, such a terminal would be permitted to add oxygenate to
the gasoline in spite of its oxygenate restriction, provided the
appropriate curing steps were followed.
The Agency proposed in the NPRM that violations of certification
restrictions (specifically, PADD-specific restrictions), would be
curable by full readditization of the product with the proper PADD-
specific detergent. Commenters from the automotive industry objected to
this approach,
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claiming that such double additization could cause combustion chamber
deposit formation.
While EPA agrees that double additization is not a desirable cure
for use restriction misadditizations, today's rule does permit limited
readditization as a curing procedure under appropriate circumstances.
For example, prior to EPA inspection and discovery of the problem and
prior to sale of the product to the consumer, readditization is clearly
appropriate in the case of gasoline that is nonconforming solely
because it contains detergent at a lower treat rate than required for
that gasoline product. This could occur when a batch of regular
unleaded gasoline is accidentally additized with detergent at the lower
treat rate certified for use only with premium gasoline, or when a
batch of oxygenated gasoline is accidentally additized at a detergent's
lower, non-oxygenated product treat rate. If the detergent has also
been certified at a higher treat rate for use with the gasoline product
at issue, then the violation can be cured merely by adding enough of
the detergent to attain the appropriate, certified treat rate, pursuant
to the formula specified in the rule. In such cases, documentation in
the form of a ``curing VAR'' for the added detergent must be
maintained. In addition, any PTDs created for the cured product must
not include any reference to the prior use restriction which no longer
applies.
Today's final rule similarly permits such curing to enable
downstream parties to add substances which would otherwise be precluded
by the upstream addition of restricted-use detergent. For example,
oxygenate can be added to gasoline which already contains a detergent
at a treat rate certified only for unoxygenated gasoline, provided the
marketer adds at least enough additional detergent to achieve a
combined detergent concentration no less than the detergent's certified
LAC for oxygenated gasoline. In such cases, not only must the oxygenate
component be properly additized with detergent, but the previously
additized gasoline portion must be further additized to attain the
certified treat rate for the combined end-product, i.e., oxygenated
gasoline.
However, if a downstream party does not know which detergent has
been used upstream or does not have access to it, or if the initial
detergent has not been certified for the downstream party's desired
use, then the above provision would not enable the use restriction to
be cured. For this reason, today's rule also permits a party to cure a
use restriction, prior to EPA inspection or knowledge of the problem
and prior to sale to the ultimate consumer, by adding the proper amount
of any detergent (according to the formula for such addition provided
at Sec. 80.169(g)), that has been certified both for the desired use
and the initial use. For example, oxygenate can be added to gasoline
which already contains a detergent certified only for nonoxygenated
gasoline, provided an adequate amount of another detergent is added
which has different LACs certified for use with nonoxygenated and
oxygenated gasolines. The minimum amount of new detergent required is a
function of the difference between its certified treat rates for the
new (e.g., oxygenated) and the initial (e.g., nonoxygenated) uses.
In a similar manner, if a party has misadditized gasoline or PRC in
violation of a PADD restriction, the error can be cured most easily,
prior to EPA discovery of the violation and prior to sale to the
ultimate consumer, by adding more of the same detergent, provided it
has been certified for the desired use. However, the violation can also
be cured by adding an appropriate amount of a different detergent,
provided it has been certified both for the PADD and the desired use
(e.g., national). The amount of additional detergent must be based upon
the difference between the LACs for the PADD and other certification,
and must at least equal the amount determined by the regulatory
formula. In all these instances, the party must create a readditization
VAR to document the use restriction curing procedure. If the above
procedures are fully complied with, then the use restriction is
effectively negated, and any violation that would have resulted from
the use restriction is also obviated.
5. PTD Changes. The core of the PTD requirements established under
the interim program continue under the certification program. However,
certain changes and additions to the PTD requirements have been
incorporated into the final rule. The following is a discussion of
these changes.
a. Elimination of PTD Retention Requirement for Additized Gasoline
for Wholesale Purchaser-Consumers (WPCs). Under the interim program,
gasoline WPCs, as regulated parties under this program, are required to
retain their PTDs for five years. However, EPA has determined that
retention of PTDs for additized gasoline by such parties is not
necessary.
The Agency's enforcement of the interim program thus far has
centered around auditing the VAR activities of detergent blenders and
conducting paperwork reviews of other parties in the gasoline
distribution system, all as part of general fuel regulation compliance
inspections. Because inspections of WPC facilities have not been
extensive, and because EPA does not expect an increase in such
inspections, EPA will not require WPCs to retain PTDs for additized
gasoline under today's final rule. In the unusual event that they
receive any other regulated product (such as unadditized gasoline or
additized PRC), today's rule does require these parties to retain the
PTDs for such unusual transfers. Parties selling or transferring
regulated products to WPCs are still required to transfer PTD's to
those parties and to retain copies of all such PTDs (except as
discussed in the following section).
As proposed under the NPRM and as is required under the interim
program, the certification program requires WPCs to receive PTDs at the
time gasoline is transferred to them, so that they can review these
documents to determine proper additization compliance (with the one
exception for small loads discussed below). In addition, if a WPC
transfers gasoline to another regulated party which is not an ultimate
consumer using it in a motor vehicle, then the WPC is a distributor of
the gasoline, and must comply with all PTD requirements that apply to
distributors.
b. Elimination of PTD Requirements for Transfer of Small Loads of
Additized Gasoline to Ultimate Consumers. Under the interim program,
all regulated parties who transfer gasoline or additized PRC, with the
exception of WPCs or retail outlets transferring gasoline to the
ultimate consumer, are required to transfer PTDs for that product to
the transferee. Similarly, all regulated parties receiving the product
must obtain the PTDs from their transferor. The interim program further
requires that such documents be maintained for five years from date of
transfer.
The Agency was advised by the Independent Petroleum Marketers
Association (IPMA) that this PTD requirement was creating a hardship
for distributors in rural areas who pick up additized gasoline from
terminals, and then deliver small amounts of this product to farmers.
(See Docket items VI-D-51, VI-D-52, VI-D-66, and VI-D-67.) IPMA
suggested that such transfers be made exempt from the PTD requirements
since such sales are analogous to sales to the ultimate consumer from
retail outlets, which are exempt from PTD requirements. These loads are
typically divided from the larger truckloads picked up at the
terminals. New delivery tickets are created for each of the divided
loads, typically hand written and containing
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minimal information. Thus, the creation and storage of detailed PTDs
for those small deliveries is unduly burdensome.
The Agency agrees that small sales by distributors of additized
gasoline to ultimate consumers for their own use can be considered
analogous to retail sales and should be exempt from PTD requirements.
The PTD requirements were established to alert regulated parties and
the Agency to the additization status of the transferred product. This
notification was not intended to be extended to retail customers.
Further, the small amount of product involved, and the fact that the
gasoline is not intended for additional transfer, diminishes even
further the notification value of the PTDs in this situation.
In light of the purported record creation and maintenance burdens
associated with these documents, and because of the minimal
notification value associated with them, today's final rule exempts
from the PTD requirements certain transfers of small amounts of
gasoline. Specifically, the rule exempts transfers of additized
gasoline of no greater than 550 gallons made by distributors which are
not the detergent blenders of the gasoline, to ultimate consumers for
their own use or the use of their agents or employees. The 550 gallon
maximum is established because that is the criteria for minimum tank
size used in the fuels regulations (40 CFR 80.2(o)) to define a party
as a wholesale-purchaser consumer.
The PTD exemption is further limited by the type of parties
involved with the transfer. The exemption does not apply to those
distributors actually doing the detergent blending, since such parties
typically are terminals with equipment that automatically produces
PTDs, and thus have no need for the exemption. Further, the exemption
is restricted to small deliveries to ultimate consumers of gasoline,
who are not in the business of distributing gasoline to other parties.
Deliveries to parties which distribute gasoline are excluded from this
exemption since such marketers are responsible for the further transfer
of gasoline to their own customers. The Agency expects gasoline
marketers to fulfill their regulatory responsibility of reviewing PTD
receipts to ensure that the product received is properly additized.
c. Address of the Transferee/Transferor. The certification program
continues the interim program requirement that the addresses of both
the transferor and the transferee of the product are to be listed on
the PTD. Today's rule also adopts the Q&A Document modification that
allows the address of the transferee to be identified on a separate
document which must be made available to EPA inspectors upon request
(Q&A Document #1, Q.15, p.14). This change responds to industry's
concern about lack of space on commercial transfer documents due to PTD
requirements.
For the sake of conformity with the PTD requirements of the RFG
rules (40 CFR part 80, subparts D & E), as implemented by that rule's
Q&A Documents, and because of document space concerns, today's final
rule expands this alternative procedure to the identification of
addresses of transferrers also. However, as in the RFG program, today's
final rule establishes the following additional requirements for those
who would use this alternative procedure: (1) The normal business
practice between the parties must not include listing addresses on
their transfer documents, and (2) both parties to the transaction must
know and have records of the required addresses.
d. PTD Identification of Oxygenates and PRC Added to Gasoline. In
promulgating the interim program, it was not necessary to require
regulated parties such as refiners to identify on a gasoline product's
PTD whether the gasoline had been blended with a particular oxygenate,
since a properly registered detergent could be used with any gasoline,
including oxygenated gasoline, sold in the United States. Using the
same reasoning, the Q&As for the interim program clarified that any PRC
(including an oxygenate) which was added to gasoline prior to detergent
additization was not required to be identified on the gasoline's PTD.
(Q&A Document #2, Q.6, p.11.) If, however, a PRC was additized
separately from the gasoline, the same Q&A reaffirmed the regulatory
requirement that the gasoline's PTD does have to identify the
component, because it is useful for the Agency and regulated parties to
be aware of the separate additization of the components.
In contrast, the identification of a refinery-added oxygenate or a
PRC is very important under today's final rule, since a specific
detergent certification may not cover the use of a particular oxygenate
or, under the fuel-specific certification option, a particular PRC.
Therefore, as originally proposed, today's rule requires that all
gasoline product transfer documents identify any PRC added to the
gasoline. It further extends the identification requirement to any
oxygenate, whether refinery-added or a PRC, added to gasoline. Without
such identification, parties may inadvertently additize gasoline
containing an oxygenate or PRC with detergent that has not been
certified for use with that product.
e. Detergent Package Use Restriction Designations. Since today's
final rule permits detergents to be certified for use with a specific
fuel, or for a variety of restricted uses, it is important that the
PTDs for detergent packages identify the existence of any special use
restrictions. Without such identification, there would be greater
possibility that a detergent blender would inadvertently use the
detergent with inappropriate gasoline.
In the NPRM, the Agency proposed that PTDs for certified detergents
with PADD, fuel-specific, CARB-based, or leaded gasoline use
restrictions must specify the use restriction that applied to the
detergent being transferred. Today's rule adopts the concept that a
detergent's use restrictions must be highlighted on the detergent's
PTD. However, because detergents under today's rule may be certified
with a multitude of different LACs related to different use
restrictions, today's final rule only requires PTDs for such products
to include a general warning that use restrictions apply to the
product. The Agency believes that requiring identification on a
detergent package's PTD of all the options and corresponding use
restrictions under which a detergent has been certified would result in
a waste of space on PTDs for those detergents with numerous use-
restricted LACs. Furthermore, identification of numerous LACs could be
confusing and counter-productive to the recipient of the detergent,
since many of the use restrictions may not be relevant to the
particular party receiving the detergent.
Therefore, under today's rule, if a detergent has only one
certified LAC for generic use with any fuel product, then the PTD for
the detergent must not include any reference to use restrictions.
However, if the detergent's only certified LAC is for use with a
restricted product (e.g., fuel-specific, leaded only, premium only,
etc.), then the PTD for that detergent package must identify the
detergent as use-restricted detergent. Similarly, if a detergent has
been certified with two or more LACs, and thus has a variety of
restricted use possibilities, the PTD for that detergent package must
indicate that the detergent has special use options available. The
Agency believes that such PTD identification will give adequate notice
to detergent recipients of the use-restricted status of transferred
detergents, while not presenting so much information that the recipient
might be misled by it.
[[Page 35348]]
f. Fuel-Specific Gasoline Designations. As proposed in the NPRM,
today's final rule requires that base gasoline which is segregated for
use with a particular fuel specific-detergent must be identified as
such on its PTD. This identification will help prevent the use of the
specialized detergent with an inappropriate gasoline. The PTD for such
gasoline must indicate that it is base gasoline for use with the
designated detergent package.
Because fuel-specific certification is based on gasoline from a
segregated fuel supply, oxygenates or PRCs may be added to the subject
gasoline only if they were specifically included in the detergent's
fuel-specific certification. Today's rule adopts the proposed provision
that base gasoline with oxygenates or PRCs which were not included in
the designated detergent's fuel-specific certification cannot be
identified on its PTD as base gasoline for use with that fuel-specific
detergent.
At the marketer's option, base gasoline which is designated for a
fuel-specific detergent may be additized with a different detergent, or
at a non-fuel-specific LAC treat rate. The fuel-specific designation
does not require the use of the fuel-specific detergent, it merely
permits it.
Today's certification rule also specifies the proper PTD
identification for the fuel-specific gasoline designated in a fuel-
specific detergent certification which establishes that such gasoline
does not need to be additized. Because some unusual gasoline supplies
may be able to pass the performance requirements of detergent
certification testing without the use of detergents, today's rule
provides that such gasoline may be legally sold and transported under
the fuel-specific certification option. The rule further requires that
a PTD for such product must identify it as ``detergent-equivalent
gasoline''. This is appropriate nomenclature, since the fuel is
equivalent to additized gasoline in its deposit prevention capability.
The use of this PTD identification will provide notice to recipients of
the actual additization status of the product.
g. PADD Designation on PTDs for Additized Gasoline or PRC. Today's
rule adopts the proposal that the PTD for gasoline or PRC additized
with a PADD-specific detergent must identify the product as restricted
for ultimate sale or transfer in that PADD. For example, use of the
phrase ``PADD I only'' would be considered acceptable identification of
this restricted use. In a similar manner, the PTD for gasoline
additized with a CARB-based certified detergent must identify the
product as CARB-based, to alert recipients that the gasoline must
either have been additized in California or sold to the ultimate
consumer in that state. (See section VIII(B)(7)(c), below, for a
discussion of specified detergent rule exemptions for gasoline
additized and sold in California.) As discussed above, gasoline or PRC
may be cured of PADD or other use restrictions through the approved
readditization curing process.
h. Identification of Oxygenate and PRC Use Restrictions on PTDs for
Additized Gasoline. As previously discussed, a misadditization
violation would arise under today's rule if oxygenate or PRC were added
to gasoline additized with a detergent restricted against that use.
Therefore, successful implementation of the detergent program requires
that gasoline additized with such detergent must have a PTD identifying
the oxygenate or PRC restriction. Use of such phrases such as
``oxygenate use prohibited'' or ``MTBE use only'', would be acceptable
identification. Such PTD identification for the additized gasoline will
provide notice to downstream parties of the continuing oxygenate or PRC
use restriction applying to the product. It will also alert these
parties to the need to eliminate the restriction through the approved
curing method if they desire to add the restricted component.
This PTD identification requirement for additized gasoline is a
modification of the NPRM proposal, which would have required that PTDs
for additized gasolines identify the EPA certification number of the
deterge
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
nt used to additize the gasoline. Under the proposal, the use of
the specified certification number would have provided notice to
recipients that the particular use restrictions certified with that
specified detergent needed to be followed.
However, today's final rule does not provide certification numbers
for detergents, since EPA does not believe that the informational
benefits of such numbers would outweigh the administrative and
recordkeeping burdens associated with them. As a more efficient
substitute, today's rule merely requires that those gasolines actually
additized at a use-restricted LAC rate must identify the applicable
oxygenate or PRC use restrictions on their PTDs.
i. Base Gasoline Identification. Under the interim program rule,
all regulated parties transferring unadditized gasoline are required to
identify the product on its PTD as base gasoline. In addition, PTDs for
such product are also required to state the warning that this gasoline
is ``Not for sale to the ultimate consumer''. These base gasoline
requirements originally proposed in the NPRM were considered necessary
to highlight to the recipients the significant information that such
unadditized product could not legally be sold or transferred for
consumer use.
Although the Agency still believes it is important for unadditized
gasoline to be highlighted as such within the gasoline distribution
system, EPA no longer considers it necessary to mandate particular
identification language (e.g. the phrase ``base gasoline'') for it. EPA
experience in implementing the interim program has shown that
permitting industry flexibility in complying with PTD identification
requirements has not resulted in significant identification problems.
Therefore, under today's final rule, PTDs for base gasoline may use any
nomenclature which clearly states that the base gasoline is
unadditized. However, today's rule does require that PTDs for most base
gasolines must include the mandated language specifically warning
against the sale of unadditized gasoline to the ultimate consumer.
An exception is base gasoline to be used for research and
development purposes, as discussed below in section VIII.B.7. Another
exception was initially articulated by EPA in Q&A Document #1, Q.13,
p.13, in response to a refiner's suggestion that the consumer-sale
prohibition language was unnecessary on certain specialized PTDs.
Specifically, an industry party requested permission to delete this
language on PTDs for contractually controlled bulk transfers of
unadditized product from refiners to pipelines, when the parties have a
written agreement which states that the pipeline will not sell or
transfer the unadditized gasoline to ultimate consumers.
The Agency agreed in the Q&A Document that transfers between these
parties under these circumstances should not require the PTD warning
language, because the likelihood of such unadditized product being
mistakenly delivered to a consumer is minimal. Today's final rule
codifies this exception to the PTD warning language requirement in the
limited circumstances outlined above. The Agency believes that this
modification of the proposal will not result in the sale of unadditized
product to consumers, but will reduce the paperwork burden on refiners
and pipelines.
j. Use of Product Codes on PTDs. The NPRM and interim program did
not address the use of product codes and other language not specified
in the regulation, to satisfy the information requirements established
for PTDs. However, both in comments on the
[[Page 35349]]
NPRM, and in implementation feedback to the Agency (See Q&A Document
#1, Q.13, p.13), regulated parties requested permission to use product
codes to satisfy PTD information requirements proposed in the NPRM and
codified in the interim program. The rationale given by the parties
supporting such substitution is that the use of product codes would
greatly reduce the amount of space needed to convey the required
information.
The Agency is sympathetic to industry's need to conserve space on
commercial documents because transfer documents have to comply with
several regulatory information requirements, not only those associated
with the detergent rule. In response to this concern, the Agency issued
a Q&A Document which permitted the use of product codes to comply with
the interim program's PTD requirements, provided certain conditions
were met (Q&A Document #1, supra.) The conditions are designed to
ensure clear communication of the information required by the
regulation.
Under the Q&A guidance, product codes or other alternative language
must be clear, accurate, and not misleading. They must be standardized
throughout the distribution system in which they are used, and
downstream parties must be informed of their full meaning. However,
parties may not use product codes or alternative language to substitute
for the two required warnings found in the interim regulation. These
are the prohibition against the sale of base gasoline to the ultimate
consumer, and the statement that a detergent certified only for the
control of carburetor deposits must be used with leaded gasoline only.
The Agency believes that these warnings are so important that
abbreviations or substitutions for them would not provide adequate
notice to receiving parties.
Today's final rule codifies this approach. The rule's provision
requires such codes to be clear and accurate, so that any parties
transferring PTDs with product codes or alternative language which are
confusing or not effectively explained to downstream parties, are not
in compliance with the detergent rule's PTD requirements. Such parties
are also liable for any product nonconformity violations caused by the
non-complying PTDs.
Today's rule does not prohibit the use of product codes to convey
the leaded gasoline only warning, since PTD notification requirements
for all detergent package use restrictions, including the leaded
gasoline restriction, are treated in the same way under today's final
rule (See preamble section VIII.B.5.e.). Instead, compliance with the
generic use-restriction language is required, to provide effective
notice to recipients of the detergent package that the use of the
detergent is subject to conditions.
As discussed in the previous section, today's rule does not permit,
in most instances, substitution for the regulatory warning language
against the sale of base gasoline to the ultimate consumer. However,
electronic data transmissions cannot accommodate the PTD regulatory
language for base gasoline transfers. Consequently, as under the RFG
program, today's final rule permits the warning language on electronic
PTDs to be reflected by product codes, provided that such documents are
for title transfers only, and do not involve actual transfer or
possession of the product. Under the specified conditions, the Agency
does not believe that the absence of the exact regulatory warning
language from the electronic PTDs will result in the improper transfer
of unadditized product.
k. PTD Requirements for Gasoline Overadditized for the Later
Addition of Ethanol or Other PRC. Under the interim rule, when gasoline
is overadditized to account for the later addition of unadditized PRC,
the PTD for the gasoline must indicate that the product has been
overadditized to account for the later addition of a specified volume
of PRC. The purpose of this requirement is to provide notice to the
recipient that only the stated volume of PRC has been accounted for by
the gasoline's overadditization.
At the 1994 API public seminar on the interim program, EPA received
industry feedback that it would be difficult for marketers to identify
on PTDs the actual amount of anticipated ethanol that the particular
overadditization accounted for, and that it would be much more
convenient and preferable to identify the standardized, maximum
percentage of product volume that the anticipated ethanol could
comprise (See Docket item IV-E-45). For example, most blenders using
this procedure would over-additize a batch of gasoline in anticipation
of the later addition of ethanol amounting to no greater than 10
percent of the fuel's finished volume.
The Agency believes that identification of the maximum percentage
of total product volume that the blender anticipates will be PRC, and
for which the blender has additized, will provide adequate notice of
the maximum amount of such product that may be added to the additized
gasoline. Therefore, EPA stated at the API seminar that blenders could
identify on PTDs the amount of ethanol that could be added to
overadditized gasoline either by this percentage, or by the volume of
ethanol. Today's final rule codifies this change as to ethanol and
other PRCs.
6. Extension of the Agency's Right of Entry into Facilities of
Detergent Manufacturers, Distributors, and Carriers. Neither the NPRM
nor the interim program addressed the Agency's authority to enter and
inspect the premises of parties in the detergent distribution system.
The EPA believes that such authority is included in its information
gathering authority under section 114, as well as in its authority to
regulate detergents under section 211(l) of the Clean Air Act, and in
its general authority under section 301(a). Therefore, EPA proposed in
the Reopening Notice to expand its right of entry provision located at
40 CFR 80.4.
Section 80.4 currently states that the Administrator or her
authorized representative may enter the premises of parties in the
gasoline distribution system to make inspections, take samples, and
conduct tests to determine compliance with EPA fuels requirements under
40 CFR Part 80. In the Reopening Notice, the Agency proposed expanding
this section to include entry into the facilities of the detergent
manufacturers, distributors, and carriers now regulated under Part 80.
Only one commenter, the Chemical Manufacturers Association, opposed
the proposal, and did so only in regard to detergent manufacturers. CMA
stated that section 211(l) does not make it unlawful for detergent
manufacturers to produce or store detergents out of conformity with EPA
specifications. CMA argued that EPA's only legitimate concern under
section 211(l) was to ensure that detergents met specifications when
they were blended into gasoline. This commenter believed that the
Agency could adequately address this concern by sampling detergents
only at the premises of detergent blenders. Thus, argued CMA, EPA's
right to enter and inspect the premises of a detergent manufacturer
could not be considered necessary to carry out its functions under the
Act and was, therefore, not authorized under section 301.
The Agency disagrees with CMA's argument. The Agency believes that
it is necessary for EPA to inspect the premises of detergent
manufacturers, both to enforce the detergent specifications mandated by
section 211(l), as well as to prevent the creation of misadditized
gasoline which would also be in violation of section 211(l).
[[Page 35350]]
Detergent manufacturers can clearly cause detergents to fail to conform
to required specifications through their improper manufacture of the
detergents. Their sale of such nonconforming detergent, which is a
violation of the detergent program in itself, would then cause other
violations of the program, namely, the sale of misadditized gasoline
based on that detergent nonconformity.
To ensure that the regulatory detergent specifications are met and
that detergent is not sold which would cause the sale of misadditized
gasoline, it is necessary for the Agency to sample and test detergent
at all points in its sale/distribution system, including at detergent
manufacturer facilities. It would be counter-productive and impractical
for the Agency to wait to sample and test nonconforming detergent until
a detergent blender is actually in the process of using it, or has
already used it, in violation of section 211(l) prohibitions. Thus, the
Agency's ability to inspect the premises of detergent manufacturers is
reasonable and necessary for EPA to effectively carry out its statutory
mandates.
7. Exemptions. As proposed in the NPRM, the interim program
includes an exemption from the requirements of the detergent rule for
detergent used for research, development, and testing purposes. Also
exempt under the interim program are aviation fuel and racing fuel.
Several parties commenting on the interim program have requested
modifications of these exemptions. (See Docket items #IV-E-41, VI-D-08
and VI-D-69.) The following is a discussion of the exemptions finalized
today, including a discussion of the newly-included California gasoline
exemptions.
a. Research, Development, and Testing Exemption. In the NPRM, EPA
proposed that parties conducting research and development (R&D) testing
of gasoline and detergent additives could apply to the Agency to obtain
detergent rule exemption waivers for their products. Pursuant to
industry comment that the proposed waiver procedures were burdensome
and unnecessary, the interim program established an R&D-exemption which
did not require a specific EPA waiver. Under this provision, detergents
that are in a research, development, or test status, or are sold to
petroleum, automobile, engine, or component manufacturers for such
purposes, are exempt from the rule's requirements, provided that (1)
the detergent or the fuel containing the detergent is kept segregated,
(2) documentation identifies the product as R&D and states that it is
only to be used for R&D purposes, (3) the product is not sold or
transferred, or offered for sale or transfer, from a retail outlet, (4)
if the detergent is transferred or offered for transfer from a WPC
facility, that facility is R&D associated, and (5) the party using the
product notifies EPA at least annually, and prior to usage, of the
purposes of the R&D program and the volume of the product to be used.
A comment on the Reopening Notice pointed out that this R&D
exemption did not appear to include base gasoline to be used for R&D
purposes. This commenter suggested that EPA specifically add base
gasoline to be used for R&D purposes to the products being exempted
under the rule. The commenter also suggested amending the PTD warning
requirements for base gasoline, so that a base gasoline PTD could say
either that the product was not for sale to the ultimate consumer or,
if appropriate, that it was to be used only for R&D purposes.
The Agency agrees with this comment about the R&D exemption. The
omission of R&D base gasoline from the language of this exemption
provision was unintentional. Today's final rule therefore corrects this
omission and specifically includes within the exemption all R&D
gasoline, both base and additized product. The rule requires, however,
that for gasoline to be exempt under this provision, it must be used by
an appropriate R&D institution, i.e., a manufacturer of additives,
gasoline, automotive parts, or automobiles, or it must be used under
the control of such a party. This requirement will ensure that only
parties legitimately connected with petroleum, additive, or automotive
research and development will be able to use the exemption.
In response to the request that EPA allow PTDs for R&D base
gasoline to identify the product as such, and to state ``For R&D
purposes only'' instead of the general warning against sale to the
ultimate consumer, today's final rule permits such information on PTDs
for this fuel.
CMA commented that the R&D exemption requirement of prior and
annual notification to EPA was unfair and burdensome. This commenter
asserted that such notification was not required for the other
detergent rule exemptions, and therefore should not be required for
this one. Further, CMA argued that the actual volume of R&D product to
be used in an upcoming year was not knowable at the beginning of the
year, which would make it difficult to comply with the reporting
requirement. Both CMA and a second industry commenter (Docket item #VI-
D-57) believed that the notification requirement was confusing as to
which parties had to report, because contract laboratories often
perform research on behalf of the gasoline, additive, or automotive
manufacturers.
While today's final rule retains the annual notification
requirement for the R&D exemption, EPA has modified the requirement in
response to these comments. The Agency believes that annual
notification is necessary because it alerts the Agency to intended R&D
product use. The Agency can then inspect the R&D facilities to ensure
that the exempted product is actually being used for legitimate R&D
purposes. In addition, the prior notification requirement is useful for
enforcement purposes because any party attempting to assert R&D status
as a rationale for noncompliance will first have to establish that it
previously notified the Agency of its intended R&D use.
However, in response to commenter concern, the final rule does ease
the R&D notification requirements. The rule permits either the party
actually conducting the research or the party controlling the research
to make the notification to EPA. Therefore, if they choose,
manufacturers can submit one annual notification to cover all the R&D
products that their contract laboratories are testing for them,
obviating the need for contract laboratories to submit multiple
notifications for their varied testing work. Moreover, the annual
notification need only identify a reasonable estimate of the R&D
product to be used in the coming year, rather than a certain amount.
b. Racing and Aviation Fuel Exemptions. As proposed in the NPRM,
the interim program included an exemption from detergent rule
requirements for fuel sold, transferred, etc. as automotive racing fuel
and for fuel sold, etc. as airplane engine fuel. For such fuel to be
exempt, it must be kept segregated and must be accompanied by
documentation identifying it as racing or aviation fuel, not for street
or highway use. The exemption provision also required that the product
not be sold or transferred from a retail outlet.
Several comments on the NPRM protested the restriction that racing
fuel sold or transferred from a retail outlet would not qualify for the
exemption. These comments stated that prohibiting the sale of such fuel
at retail outlets would be unfair to auto racing participants, since
some racing facilities do not have fuel pumps available. Further, the
comments alleged that this
[[Page 35351]]
requirement would discriminate unfairly against retail outlets.
The interim program's exemption for racing fuel included the retail
outlet sale restriction because such fuel, which normally has a high
lead content and lacks detergent additives, is not appropriate for
street or highway use. Retail outlets, by their very nature, are
facilities at which fuel is sold to consumers for street or highway
use. Therefore, the Agency believed that permitting the sale of this
product at facilities regularly selling gasoline to general consumers
would be conducive to the illegal sale and use of this exempted
product.
EPA remains concerned about this potential problem, but agrees with
the commenters that completely prohibiting the sale of exempt racing
fuel at retail outlets is an unnecessarily broad solution. Therefore,
today's final rule places less restrictive requirements on the sale of
exempt racing fuel to protect against the sale of this product to
highway-use consumers.
The product segregation and documentation requirements promulgated
in the interim program will continue under today's rule. Also, the rule
affirms that the exemption is confined to fuel distributed to racing
vehicles that are restricted for nonhighway use. This requirement is
consistent with that of the RFG program. The consistency between the
two fuels programs will make it easier for parties to comply with both
programs. In addition, today's rule requires that pumps from which
racing fuel is dispensed must be clearly labeled as such.
The Agency believes that these provisions will prevent the improper
use of unadditized racing fuel in highway vehicles as effectively as
the proposed retail outlet sale prohibition would. At the same time,
these requirements do not unfairly discriminate against retail outlets
but apply, instead, to all parties selling or transferring racing fuel.
It is a violation of today's rule to sell product claimed to be
exempt racing fuel and not properly additized to a consumer for street
or highway use. The Agency believes that parties who sell or transfer
the product to inappropriate recipients may have difficulty
establishing for an affirmative defense that they did not cause the
violation if they cannot demonstrate that they complied with the
exemption requirements and that they had taken reasonable steps to
ensure the product would be used in the proper manner so that the
exemption would apply.
Today's rule continues to exempt aviation gasoline. Similar to the
exemption for racing fuel, today's rule requires dispensers of exempt
aviation gasoline to properly label the aviation pumps, and to sell or
transfer the product for aviation use only. The interim program's
segregation and documentation requirements for this product are also
continued in today's rule. The Agency believes that these requirements
will ensure that the exempt product is used only in aviation engines.
c. California Gasoline Exemptions. The interim program requires
that gasoline additized and sold or transferred to the ultimate
consumer in California is subject to all the enforcement-related
provisions of the Federal detergent program, including the VAR and
paperwork requirements, in spite of the fact that CARB is also
regulating this fuel under its own detergent program. At the time the
interim rule was promulgated, EPA was concerned that CARB's detergent
program might not be as effective as the Federal program in ensuring
compliance with the Federal standards for proper additization. However,
CARB's enforcement of its detergent regulation program has proven to be
very vigorous, and its enforcement requirements have been shown to be
effective.29 Further, CARB has proposed changes to its detergent
program which would make CARB's program even more rigorous in the
future.30
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\29\ See Docket item VI-D-68 for a summary of CARB's detergent
program enforcement actions.
\30\ See Docket item VI-D-55 regarding the 9/29/95 Proposed
Amendments to CARB's Detergent Additive Rule.
---------------------------------------------------------------------------
Therefore, EPA now considers that CARB's VAR and paperwork
requirements, even under the present CARB statutory language, will be
as effective in ensuring compliance with the Federal standards as are
their Federal program equivalents. Consequently, EPA has decided to
create exemptions for California gasoline from the Federal VAR and PTD
provisions. Since the equivalent CARB record keeping and reconciliation
provisions are effective, these Federal enforcement requirements would
be superfluous in California.
Today's rule merely exempts the specified California gasoline from
certain Federal enforcement program requirements that are unnecessary
in California. Specifically, gasoline additized in California is exempt
from the Federal VAR requirements, and gasoline sold or transferred
wholly within California is exempt from the Federal PTD requirements.
Such gasoline is still subject under today's rule to the general
requirements of additization and sale in conformity with Federal
certification requirements, since Congress mandated the additization,
pursuant to EPA specifications, of all gasoline sold to consumers in
the United States. California detergent blenders can comply with both
the state and Federal requirements by using detergents which have CARB-
based Federal certifications, and following the CARB-mandated record
keeping and VAR procedures. EPA will evaluate California blenders'
compliance with the Federal LAC standards by examining the records of
the same type mandated by CARB, plus the CARB-mandated type of records
for gasoline additized in California for ultimate sale elsewhere. The
Agency does not expect to regularly conduct detergent program
inspections in California. EPA believes that CARB's enforcement of the
California requirements will adequately assure compliance with Federal
standards. However, if EPA believes it appropriate, the Agency will
conduct detergent program inspections of California facilities.
To ensure that the Agency will have access to the same amount of
compliance records for California detergent blenders as for blenders
outside of California, today's final rule requires California-regulated
parties who operate under the exemption from the Federal VAR
requirements to maintain the detergent program records required by CARB
(and the same type of records for gasoline to be sold outside of
California), for the same five-year period that records are required to
be maintained under the Federal program. The Federal VAR exemption is
predicated on this record creation and maintenance. The Agency will
thus be able to review these compliance records, if and when it chooses
to inspect California facilities, covering the same time period that
applies in other states.
The California gasoline exemptions from the specified VAR and PTD
provisions of the Federal detergent enforcement program are also
predicated on EPA's conclusion that the CARB program is as effective as
the Federal program in ensuring compliance with the Federal detergent
standards. EPA intends to monitor CARB's program to ensure that these
exemptions continue to be justified. If EPA determines that changes in
CARB's regulations or its enforcement practices, or other changed
circumstances, would compromise the CARB program's ability to ensure
compliance with Federal additization standards, then EPA may
[[Page 35352]]
delete these exemptions through a future rulemaking.
C. Proposed Changes Not Incorporated in the Certification Rule
Several changes to enforcement provisions of the interim program
were proposed in the Reopening Notice but are not incorporated in
today's certification rule. The following is a summary of these
proposed changes along with the reasons they were ultimately rejected
by the Agency.
The first such nonfinalized proposal would have required the use of
meters on all automated additization equipment injectors. EPA proposed
this metering requirement to promote greater additization accuracy.
However, comments on this proposal universally condemned it as being
expensive, disruptive of industry's present operating procedures, and
not necessarily effective in ensuring greater accuracy. The commenters
believed that the detergent program should continue to permit blenders
to use their existing equipment, unless enforcement experience
established a need for greater accuracy.
These comments are persuasive. EPA enforcement experience of the
first year of the detergent program has indicated minimal problems with
non-metered records. Therefore, the extra expense of new metered
additization equipment has not proven to be necessary.
The second nonfinalized proposal would have required VAR volumes to
be recorded to the nearest tenth of a gallon, instead of the nearest
gallon requirement established under the interim program. Commenters
disputed the need for increasing the severity of the recording
requirement, since some additization systems cannot measure volumes to
that degree of precision and installing new equipment would be very
costly. At the same time, commenters asserted that increasing the
precision would not bring noticeable benefits in greater additization
accuracy. In particular, it was pointed out that recording volume
figures to one tenth of a gallon, for the large volumes of fuel
typically being recorded, would be meaningless in improving
additization compliance.
The Agency finds these comments persuasive, except as regards VAR
reporting of detergent volumes of five gallons or less. Reporting such
small amounts of detergent only to the nearest gallon would create a
greater than 10 percent degree of inaccuracy in reporting the
additization that actually occurred. The Agency believes that this is
an unacceptable level of inaccuracy in VAR compliance reporting.
Therefore, although the proposed change to a tenth of gallon reporting
is not generally incorporated in today's final rule, detergent volumes
of five gallons of less are required to be recorded on the VAR formula
records to the nearest tenth of a gallon (or smaller unit), if the
blender's equipment can measure to this level. If not, such volumes are
to be reported down to the nearest gallon. This procedure will address
EPA's concerns for accurate reporting of additization, while also
meeting industry's objection to purchasing upgraded equipment merely to
ensure this accuracy.
Another proposed change not incorporated in today's final rule was
the imposition of a minimum detergent concentration for each gallon of
gasoline additized, in addition to meeting the VAR averaging
requirement. This was another proposal that industry commenters to the
Reopening Notice consistently opposed, primarily because of the huge
expenses they said would be entailed for installing additization
equipment that could monitor per-gallon compliance. Commenters argued
that little gain would result from this requirement, since deposit
formation occurs over the long term. Therefore, according to these
commenters, the compliance already required under the VAR averaging
procedures should be adequate to prevent such buildups.
EPA concedes the points made, and has chosen to delete the proposed
requirement of per-gallon minimum additization. This decision could be
revisited in the future, however, if experience shows that such
additional compliance requirements are necessary to effectively prevent
deposit formation.
The fourth change not incorporated was the extension of presumptive
liability for VAR violations to all parties, except upstream carriers,
in the product's distribution system. See Section VIII.B.2.b. for a
discussion of this issue.
The final proposed change from the Reopening Notice that was not
included in today's rule was the prohibition against the use of
multiple equipment set rates within one VAR formula record. The Agency
was concerned that if gasoline additized under several detergent
concentration set rates were included within the reported VAR volumes
in the same formula record, then there would be inadequate assurance
that the gasoline additized at the lower rates was in compliance with
the LAC standard. Compliance at the higher rates could mask
noncompliance in the lower rates. Therefore, the Agency proposed the
prohibition against the use of multiple set rates within the same VAR
record.
Detergent blender commenters to this proposal wanted to retain the
ability to use multiple set rates in the same VAR record because it
would minimize their VAR paperwork burdens and would allow the use of
present equipment. They rejected the need for the proposed prohibition,
arguing that the interim program's prohibition against setting any
injector's set rate lower than the LAC and the additional prohibition
against adjusting any injector's set rate higher than 10 percent of its
initial setting, would effectively ensure that the gasoline additized
at the lower treat rates also attains the LAC standard.
The Agency agrees with these comments that the interim program's
set rate requirements do provide some insurance that the gasoline
additized under the lower concentrations will be adequately additized.
Therefore, EPA does not consider the added paperwork and equipment
expenditures associated with the proposed multiple set rate prohibition
to be warranted. However, the certification program maintains the
interim program requirement that detergents being used at different
LACs must be recorded and reconciled on separate VAR formula records
(See section VIII.B.2.e.). Since VAR compliance is based on the
comparison of the actual detergent concentration attained with the
appropriate LAC certified for the fuel product being additized, each
restricted LAC must be separately compared to the respective additized
product.
To make this requirement meaningful, the certification program
continues the interim program's requirement that blenders using a
detergent at different LACs must have the ability to accurately measure
the additization occurring under each LAC. Both the interim and
certification programs provide flexibility to blenders in satisfying
this requirement. For example, such blenders could measure usage from
different tanks containing the detergent being used at different LACs,
use a separate meter on an injector that is additizing under a separate
LAC, or use a meter capable of distinguishing additizations under
separate LACs.
In summary, for the reasons outlined above, EPA agrees with the
overwhelming majority of commenters to the Reopening Notice that the
above compliance provision modifications discussed in this section
should not be adopted. To date, EPA's enforcement experience with the
interim program has shown a high level of additization compliance. If
future experience reveals that current enforcement provisions are
[[Page 35353]]
inadequate, then EPA may revise these provisions through another
rulemaking.
IX. Administrative Requirements
A. Administrative Designation and Regulatory Analysis
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether this regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The order defines ``significant regulatory action'' as any
regulatory action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or,
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, EPA has determined
that this final rule is a ``significant regulatory action''. EPA's
regulatory impact analysis (RIA),31 available in the public docket
and summarized below, indicates that the annual costs to producers for
compliance with the requirements of the certification program are
expected to exceed $100 million. Therefore, EPA has treated this action
as significant and has submitted a regulatory analysis to the Office of
Management and Budget (OMB) for review.
---------------------------------------------------------------------------
\31\ The RIA was prepared in conjunction with the interim
detergent program based on costs and benefits projected for the
detergent certification program (Docket item V-B-01). An addendum
updating the RIA was prepared to reflect minor changes in program
costs from those projected in the original analysis (Docket item V-
B-03).
---------------------------------------------------------------------------
The total cost of the detergent additive certification program
includes costs associated with certification testing and additional
registration and record-keeping requirements, as well as additization
costs. Over 90 percent of the total estimated cost of the program is
associated with the price of the additives needed to bring all gasoline
up to the effective detergency levels which much of U.S. gasoline
already contains. The average incremental cost to consumers is
projected to be approximately 0.10 cents per gallon of gasoline. This
amount will be partially compensated for by the increased fuel economy
and decreased maintenance requirements which improved deposit control
is expected to provide.
The gasoline detergent additive requirements are expected to result
in reductions in motor vehicle emissions of hydrocarbons, carbon
monoxide, and oxides of nitrogen, totalling over one million tons
during the 30-month interim program and about 600,000 tons per year
under the detergent certification program. These emissions reductions
will be achieved at relatively low cost, i.e., about $226 per ton. Fuel
economy benefits are also expected as a result of the detergent
program, amounting to nearly 450 million gallons during the 1995-2001
period. The savings associated with this fuel economy benefit are
expected to partially offset the costs of the program, decreasing the
cost per ton of emissions reduction to $120.
The program is not expected to be a significant cost burden to
individual businesses, and adverse effects on competitive relationships
are not expected. In fact, this rule should result in increased sales
and business opportunities within the fuel additive industry. Any
written comments from OMB and any EPA response to OMB's comments are
available in the public docket for this rule.
B. Regulatory Flexibility Act
EPA's analysis of the impact of this rule on small entities is
included as Chapter 5 in the Regulatory Impact Assessment (RIA) that
was prepared in association with the interim program as described
above.
The analysis shows that the regulatory responsibilities of the
various types of businesses affected by this rule, along the chain from
gasoline refiner to distributor to retailer, differ significantly. For
each type of business, however, even for the small business entities in
this chain, the costs of the regulation are estimated to be modest. The
largest costs will be incurred by gasoline producers in the price of
the additional detergent additive required to be added to gasoline.
However, this basic cost is essential to the Clean Air Act mandate and
for realization of the program's emission control objectives. Also, to
some extent, additization costs are expected to be passed along the
distribution chain to consumers. In the case of small additive
manufacturers and additive injection equipment manufacturers, rather
than being unduly burdensome, this regulation could result in
significant economic opportunities through increased sales.
The addendum to the RIA, as noted in the previous section, was
prepared to reflect minor changes in the regulatory program from the
previous analysis. Relevant changes were primarily associated with the
cost of detergent certification testing, especially in regard to test
fuel qualification. For small additive manufacturers, which are likely
to use the services of contract laboratories for certification testing,
such costs can be largely defrayed by cost sharing, since ``proven''
test fuels can be used by an unlimited number of laboratory customers.
Furthermore, the economic benefits to small additive manufacturers of
the requirements for detergent use will more than compensate for the
manufacturer's certification costs under this rule. Thus, as was found
in the original analysis, the addendum to the RIA concluded that
significant adverse economic impacts on small businesses are very
unlikely to occur as a result of this rule. Consequently, EPA has
determined that this rule will not have a significant adverse impact on
a substantial number of small entities.
C. Paperwork Reduction Act
The changes to the detergent program's information collection
requirements in this rule have been submitted for approval to the
Office of Management and Budget (OMB) under the requirements of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An Information
Collection Request document has been prepared by EPA (ICR No. 1655.03)
and a copy may be obtained from Sandy Farmer, Regulatory Information
Division; EPA; 401 M Street, SW. (Mail Code 2137); Washington, DC
20460, or by calling (202) 260-2740. These new requirements are not
effective until OMB approves them. The information collection
requirements currently in force under the interim detergent program
(ICR No. 1655-02) will continue to be effective until replaced by those
contained in today's rule. In addition, many of the information
collection requirements unique to the detergent certification program
were anticipated in the NPRM and were previously approved by OMB (ICR
No. 1655-01). These requirements will also be effective until the
requirements contained in today's rule are approved by OMB.
The information to be collected is necessary for the Agency to
ensure that detergent additives that are effective in controlling
deposits are used and that the emissions control goals of this
[[Page 35354]]
regulation are realized. The information will be used by the Agency to
evaluate whether the deposit control performance standards in today's
rule have been satisfied, that detergents are blended into gasoline at
the required levels, and that the restrictions placed on the use of
detergents certified under the different certification options are
observed. The information collection requirements are mandatory apart
from those associated with maintaining affirmative defenses. Section
114 of the Clean Air Act (CAA), 42 U.S.C. 7414 authorizes EPA to
require recordkeeping and reporting regarding enforcement of the
provisions of Title II of the CAA, including the provisions related to
this rule. Any information or detergent samples submitted to EPA for
which a claim of confidentiality is made will be safeguarded according
to EPA regulations at 40 CFR 2.201 et seq.
The following estimates of this collection requirements hourly and
cost burden include the time to review instructions; develop, acquire,
install, and utilize 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 respond to a
collection of information; search existing data sources; complete and
review the collection of information; and transmit or otherwise
disclose the information.
The desegregated hourly burden estimates for this collection are as
follows:
(a) Additive manufacturers: (1) EPA estimate that two research
exemptions will be reported each year per respondent at about 0.08 hr.
per response, with 59 total respondents; (2) The certification testing
recordkeeping burden is estimated at approximately 3.5 certifications
per respondent in 1996 and 1997 with 59 total respondents. In 1998 and
following years this is estimated to drop to approximately one
certification per respondent. The burden initially includes about 382
certifications but is reduced dramatically to a turnover rate of about
15 percent of the initial number of certifications annually in future
years. The burden per certification response is estimated to be less
than 90 hours. The 1997 hours for all respondents is approximately
21,830. This is reduced to about 5,160 hours in 1998 and 1999; (3)
Other yearly requirements are customary business practices or have no
hourly burden except a 0.15 hr. burden to review the instruction for
quality assurance provision;
(b) Refiners and importers: (1) Refiner/importer voluntary quality
assurance for defense involves about 20 responses per respondent with
about 0.01 hr. per response. One hundred parties are estimated to
perform these voluntary quality assurance procedures; (2) Other
requirements involve no hourly burden;
(c) Terminals who blend detergent: The monthly detergent use
accounting records requirement is largely a customary business practice
that was adapted to EPA format under the previous interim rule. It is
estimated that there will be 12 responses per year per detergent for
each terminal. The on-customary business practice hourly burden per
terminal per month is about 0.01 hour. It is estimated that there might
be as many as 1,246 respondents; (2) The required calibration of
terminal equipment is already performed, however, the rule requires
that it be performed at least twice per year. The associated non-
customary business practice burden per response associated with this
calibration requirement is estimated at 0.21 hours, with 1,200
automated terminals participating. The startup burden per terminal to
read rule/instructions is estimated at 0.25 hr; (3) It is estimated
that 1,246 terminals conduct recordkeeping quality assurance on 15
occasions per year at 0.02 hr. per review; (4) Other requirements
require no hourly burden;
(d) Truckers who hand blend detergent: It is estimated that
truckers who hand blend detergent might do so on as many as 875
occasions annually, with approximately 0.03 hour per response and 100
total respondents annually for this requirement; (2) Other trucker
requirements are customary business practices;
(e) Retailers and wholesale purchaser-consumers: It is estimated
that retailers and wholesale purchaser-consumers of gasoline who also
dispense detergent-exempt aviation fuel or racing fuel will spend 0.55
hrs to label pumps. This is a one-time requirement for a total of 5,000
respondents.
The disaggregated cost estimates for this collection are as
follows:
(a) Additive manufacturers: (1) It is estimated that the 59
respondents will spend a total of $559,967 in 1996 and $697,882 in 1997
for recordkeeping involving the approximately 382 certifications that
will occur initially. This is reduced to $163,060/year in ensuing years
since it is estimated that 15 percent of the number of initially
certified additives will be certified annually after the program's
first year. For certification testing itself, there are no capital
costs; most of the additives tested will be tested in-house on existing
equipment already used as a customary business practice by these
manufacturers. Test costs for 1997 average $242,559 per party for 59
parties, and in 1996 average $210,921 per party for 59 parties. For
1998 and beyond, the cost is estimated to fall to $63,276 per party.
These parties will also spend about $4.86 per year for exemption
notices and will have a startup cost of about $4.80 in 1996 for a
quality assurance program that is otherwise a customary business
practice;
(b) Refiners and importers: It is estimated that 100 refiners and
importers of gasoline will pay $2,564 per year per party for voluntary
defense quality assurance;
(c) Terminals: The VAR records for terminals are expected to cost
each of 1,246 terminals about $2.28 per year beyond customary business
practice costs. Calibration requirements are expected to cost each of
1,200 terminals about $13 each beyond customary business practices with
a startup cost of $8 per respondent in 1996 for reviewing the changed
requirement. Record checks are expected to cost each terminal about
$8.00 per year;
(d) Truckers: If any truckers hand blend a large number of loads
per year, the cost per trucker could be as high as $691 per year. Other
costs are customary business practices;
(e) Retailers and wholesale purchaser-consumers: It is estimated
that retailers and wholesale purchaser-consumers of gasoline who also
dispense exempt aviation gas or racing gas will pay about $12.60 in the
first year for labelling their pumps and about $1 each year after for
the capital cost of purchasing the label.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Ch. 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing the respondent burden, including through the use of
automated collection techniques to the Director, Regulatory Information
Division, U.S. Environmental Protection Agency (Mail Code 2137), 401 M
Street, SW., Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
[[Page 35355]]
Include the ICR number in any correspondence.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. 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 for
any one year. Before promulgating an EPA rule for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost effective, or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows EPA to adopt an alternative other
than the least costly, most cost effective, or least burdensome
alternative if the Administrator publishes with the final rule an
explanation of why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments. The rule imposes no enforceable duties on any of these
governmental entities. Nothing in the program would significantly or
uniquely affect small governments. EPA has determined that this rule
contains Federal mandates that will result in expenditures of $100
million or more in any one year for the private sector. EPA believes
that the program represents the least costly, most cost-effective
approach to achieving the air quality goals of the proposed rule. EPA
has performed the required analyses under Executive Order 12866 which
contains identical analytical requirements. The reader is directed to
Section IX.A., Administrative Designation and Regulatory Analysis, for
further information regarding these analyses.
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.
X. Electronic Copies of Rulemaking Documents
The preamble, the RIA, and regulatory language of this final rule
are available in the public docket as described under ``ADDRESSES''
above and are also available electronically on the Office of Air
Quality Planning and Standards (OAQPS) Technology Transfer network
Bulletin Board System (TTNBBS). Instructions for accessing TTNBBS and
downloading the relevant files are described below.
A. Technology Transfer Network Bulletin Board System (TTNBBS)
TTNBBS can be accessed using a dial-in telephone line (919-541-
5742) and a 1200, 2400, or 9600 bps modem (equipment up to 14.4 Kbps
can be accommodated). The parity of the modem should be set to N or
none, the data bits to 8, and the stop bits to 1. When first signing on
to the bulletin board, the user will be required to answer some basic
informational questions to register into the system. After registering,
proceed through the following options from a series of menus:
(T) Gateway to TTN Technical Areas (Bulletin Boards)
(M) OMS--Mobile Sources Information
(K) Rulemaking and Reporting
(3) Fuels
(4) Detergent Additives
At this point, the system will list all available files in the
chosen category in reverse chronological order with brief descriptions.
The following eight ``zip'' files are currently available:
DCA__CFP.ZIP (Preamble to the final rule on the Certification
Requirements for Deposit Control Additives)
DCA__CFR.ZIP (Regulatory text for the final rule on the Certification
Requirements for Deposit Control Additives)
DCA__RIAA.ZIP (Addendum to the Regulatory Impact Analysis)
DCA__RCN.ZIP (Notice to Reopen the Comment Period)
DCA__RIA.ZIP (Regulatory Impact Analysis)
DCA__1FP.ZIP (Preamble to the final rule on the Interim Requirements
for Deposit Control Additives)
DCA__IFR.ZIP (Regulatory text for the final rule on the Interim
Requirements for Deposit Control Additives)
DCA__PRE.ZIP (Preamble from the Notice of Proposed Rulemaking)
File information can be obtained from the ``READ.ME'' file. Choose
from the following options when prompted:
ownload, rotocol, xamine, ew, ist, elp or to
exit.
To download a file, e.g., filename.ZIP, the user needs to
choose a file transfer protocol appropriate for the user's computer
from the options listed on the terminal. The user's computer is then
ready to receive the file by invoking the user's resident file transfer
software. Programs and instructions for de-archiving compressed files
can be found under ystems Utilities from the top menu, under
rchivers/de-archivers. Please note that due to differences between
the software used to develop the document and the software into which
the document may be downloaded, changes in format, page length, etc.
may occur.
TTNBBS is available 24 hours a day, 7 days a week except Monday
morning from 8-12 EST, when the system is down for maintenance and
backup. For help in accessing the system, call the systems operator at
919-541-5384 in Research Triangle Park, North Carolina, during normal
business hours EST.
B. Internet
Rulemaking documents may be found on the internet as follow:
World Wide Web
http://www.epa.gov/omswww
FTP
ftp://ftp.epa.gov Then CD to the /pub/gopher/OMS/ directory
Gopher
gopher://gopher.epa.gov:70/11/Offices/Air/OMS
Alternatively, go to the main EPA gopher, and follow the menus:
gopher.epa.gov
EPA Offices and Regions
[[Page 35356]]
Office of Air and Radiation
Office of Mobile Sources
List of Subjects in 40 CFR Part 80
Environmental protection, Fuel additives, Gasoline detergent
additives, Gasoline, Incorporation by reference, Motor vehicle
pollution, Penalties, Reporting and recordkeeping requirements.
Dated: June 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 80 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 80--[AMENDED]
1. The authority citation for part 80 continues to read as follows:
Authority: Sec. 114, 211 and 301(a) of the Clean Air Act as
amended (42 U.S.C. 7414, 7545, and 7601(a)).
2. Section 80.4 is revised to read as follows:
Sec. 80.4 Right of entry; tests and inspections.
The Administrator or his authorized representative, upon
presentation of appropriate credentials, shall have a right to enter
upon or through any refinery, retail outlet, wholesale purchaser-
consumer facility, or detergent manufacturer facility; or the premises
or property of any gasoline or detergent distributor, carrier, or
importer; or any place where gasoline or detergent is stored; and shall
have the right to make inspections, take samples, obtain information
and records, and conduct tests to determine compliance with the
requirements of this part.
3-4. Section 80.140 is amended by revising the definition of
``Detergent Blender'' and by adding definitions for ``Leaded Gasoline''
and ``Repeatability'', in alphabetical order, to read as follows:
Sec. 80.140 Definitions.
* * * * *
Detergent blender means any person who owns, leases, operates,
controls or supervises the blending operation of a detergent blending
facility, or imports detergent-additized gasoline or detergent-
additized post-refinery component.
* * * * *
Leaded gasoline means gasoline which is produced with the use of
any lead additive or which contains more than 0.05 gram of lead per
gallon or more than 0.005 gram of phosphorus per gallon.
* * * * *
Repeatability of a test method means the amount of random error
which is expected to affect the results obtained for a given test
substance, when the test is replicated by a single operator in a given
laboratory within a short period of time, using the same apparatus
under constant operating conditions. Quantitatively, it is the
difference between two such single results that would be exceeded in
the long run in only one out of twenty normal and correct replications
of the test method.
* * * * *
5. Section 80.141 is amended as follows:
a. Paragraphs (a) and (b), the second sentence of paragraph
(c)(1)(i), paragraphs (c)(1)(ii), (c)(2), (c)(3)(i), (d), and (e)(1),
the first sentence of paragraph (e)(2)(ii)(B), and the last sentence of
paragraph (g)(3) are revised.
b. Paragraph (c)(3)(iv) is added.
c. Paragraph (e)(2)(ii)(B)(1)(iii) is removed and reserved.
d. In paragraph (g)(1), the reference to paragraph (d)(2)(ii)(B) is
revised to (d)(3)(ii).
Sec. 80.141 Interim detergent gasoline program.
(a) Effective dates of requirements. (1) Until June 30, 1997, the
products listed in paragraphs (a)(1)(i) through (iii) of this section
must comply with either the interim program requirements described in
this section or the certification program requirements described in
Sec. 80.161. Beginning July 1, 1997, the listed products must comply
with the requirements in Sec. 80.161. These dates and requirements
apply to:
(i) All gasoline sold or transferred to a party who sells or
transfers gasoline to the ultimate consumer;
(ii) All additized post-refinery component (PRC); and
(iii) All detergent additives sold or transferred for use in
gasoline or PRC for compliance with the requirements of this subpart.
(2) Until July 31, 1997, all gasoline sold or transferred to the
ultimate consumer must contain detergent additive(s) meeting either the
interim requirements of this Sec. 80.141 or the certification program
requirements of Sec. 80.161. Beginning August 1, 1997, such gasoline
must contain detergent additive(s) meeting the certification
requirements of Sec. 80.161.
(b) Applicability of gasoline and PRC detergency requirement;
responsible parties. (1) Except as specifically exempted in
Sec. 80.160, the detergency requirements of this subpart apply to all
gasoline, whether intended for on-highway or nonroad use, including
conventional, reformulated, oxygenated, and leaded gasolines, as well
as the gasoline component of fuel mixtures of gasoline and alcohol
fuels, gasoline used as marine fuel, gasoline service accumulation fuel
(as described in Sec. 86.113-94(a)(1) of this chapter), the gasoline
component of fuel mixtures of gasoline and methanol used for service
accumulation in flexible fuel vehicles (as described in Sec. 86.113-
94(d) of this chapter), gasoline used for factory fill purposes, and
all additized PRC.
(2) Pursuant to paragraphs (c) through (f) of this section,
compliance with these requirements is the responsibility of parties who
directly or indirectly sell or dispense gasoline to the ultimate
consumer as well as parties who manufacture, supply, or transfer
detergent additives or detergent-additized post-refinery components.
(c) * * *
(1) * * *
(i) * * * Polymeric components may be reported as the product of
other chemical reactants, provided that the supporting data specified
in Sec. 80.162(b) is also reported for such components.
(ii) The weight and/or volume percent (as applicable) of each
component of the package, with variability in these amounts restricted
according to the provisions of paragraph (c)(2) of this section.
* * * * *
(2) Allowable variation in compositional data. (i) A single
detergent additive registration may contain no variation in the
identity of any of the detergent-active components identified pursuant
to paragraph (c)(1)(iii) of this section.
(ii) A single detergent additive registration may specify a range
of concentrations for identified detergent-active components, provided
that, if each such component were present in the detergent additive
package at the lower bound of its reported range of concentration, the
minimum recommended concentration reported in accordance with the
requirements of paragraph (c)(3) of this section would still provide
the deposit control effectiveness claimed by the detergent registrant.
(iii) The identity or concentration of non-detergent-active
components of the detergent additive package may vary under a single
registration, provided that the range of such variation is specified in
the registration, and that such variability does not reduce the deposit
control effectiveness of the additive package as compared with the
level of effectiveness claimed by the detergent registrant pursuant to
the requirements of paragraph (c)(3) of this section.
[[Page 35357]]
(iv) Except as provided in paragraph (c)(2)(v) of this section,
detergent additive packages which do not satisfy these restrictions
must be separately registered. EPA may disqualify an additive for use
in satisfying the requirements of this subpart if EPA determines that
the variability included within a given detergent additive registration
may reduce the deposit control effectiveness of the detergent package
such that it could invalidate the minimum recommended concentration
reported in accordance with the requirements of paragraph (c)(3) of
this section.
(v) A change in minimum concentration requirements resulting from a
modification of detergent additive composition shall not require a new
detergent additive registration or a change in existing registration
if:
(A) The modification is effected by a detergent blender only for
its own use or for the use of parties which are subsidiaries of, or
share common ownership with, the blender, and the modified detergent is
not sold or transferred to other parties; and
(B) The modification is a dilution of the additive for the purpose
of ensuring proper detergent flow in cold weather; and
(C) Gasoline is the only diluting agent used; and
(D) The diluted detergent is subsequently added to gasoline at a
rate that attains the detergent's registered minimum recommended
concentration, taking into account the dilution; and
(E) EPA is notified, either before or within seven days after the
dilution action, of the identity of the detergent, the identity of the
diluting material, the amount or percentage of the dilution, the change
in treat rate necessitated by the dilution, and the locations and time
period of diluted detergent usage. The notification shall be sent or
faxed to the address in Sec. 80.174(c).
(3) * * *
(i) The lower boundary of the recommended range of concentration
for the detergent additive package in gasoline, which the additive
manufacturer must report pursuant to the registration requirements in
Sec. 79.21(d) of this chapter, must equal or exceed the minimum
concentration which the manufacturer has determined to be necessary for
the control of deposits in the associated fuel type, pursuant to
paragraph (e) of this section. The minimum recommended concentration
shall be provided to EPA in units of gallons of detergent additive
package per thousand gallons of gasoline or PRC, reported to four
digits. This concentration is the lowest additive concentration (LAC)
referred to elsewhere in this subpart.
* * * * *
(iv) Once included in the registration for a detergent additive
package, the minimum concentration recommended by the detergent
manufacturer to detergent blenders and other users of the detergent
additive, pursuant to paragraph (c)(3)(ii) of this section, may not be
changed without first notifying EPA. The notification must be sent by
certified mail to the address specified in Sec. 80.174(b). Changes to
the minimum recommended concentration must be supported by available
test data pursuant to paragraph (c)(3)(iii) of this section.
(d) The rate at which a detergent blender treats gasoline with a
detergent additive package must be no less than the minimum recommended
concentration reported for the subject detergent additive pursuant to
paragraph (c)(3) of this section, except under the following
conditions:
(1) If a detergent blender believes that the minimum treat rate
recommended by the manufacturer of a detergent additive exceeds the
amount of detergent actually required for effective deposit control,
and possesses substantiating data consistent with the guidelines in
paragraph (e) of this section, then, upon informing EPA in writing of
these circumstances, the detergent blender may use the detergent at a
lower concentration.
(2) The notification to EPA must clearly specify the name of the
detergent product and its manufacturer, the concentration recommended
by the detergent manufacturer, and the lower concentration which the
detergent blender intends to use. The notification must also attest
that data are available to substantiate the deposit control
effectiveness of the detergent at the intended lower concentration. The
notification must be sent by certified mail to the address specified in
Sec. 80.174(b).
(3) At its discretion, EPA may require that the detergent blender
submit the test data purported to substantiate the claimed
effectiveness of the lower concentration of the detergent additive. EPA
may also require the manufacturer of the subject detergent additive to
submit test data substantiating the minimum recommended concentration
specified in the detergent additive registration. In either case, EPA
will send a letter to the appropriate party, and the supporting data
will be due to EPA within 30 days of receipt of EPA's letter.
(i) If the detergent blender fails to submit the required
supporting data to EPA in the allotted time period, or if EPA judges
the submitted data to be inadequate to support the detergent blender's
claim that the lower concentration provides a level of deposit control
consistent with the requirements of this section, then EPA will
disapprove the use of the detergent at the lower concentration.
Further, the detergent blender may be subject to applicable liabilities
and penalties pursuant to Secs. 80.156 and 80.159 for any gasoline or
PRC it has additized at the lower concentration.
(ii) If the detergent manufacturer fails to submit the required
test data to EPA within the allotted time period, EPA will proceed on
the assumption that data are not available to substantiate the minimum
recommended concentration specified in the detergent registration, and
the subject additive may be disqualified for use in complying with the
requirements of this subpart, pursuant to the procedures in paragraph
(g) of this section. The detergent manufacturer may also be subject to
applicable liabilities and penalties pursuant to Secs. 80.156 and
80.159.
(iii) If both parties submit the required information, EPA will
evaluate the quality and results of both sets of test data in relation
to each other and to industry-consensus test practices and standards,
in a manner consistent with the guidelines described in paragraph (e)
of this section. EPA will approve or disapprove the use of the
detergent at the lower concentration, and will inform both the
detergent blender and the detergent manufacturer of the results of its
analysis within 60 days of receipt of both sets of data.
(e) * * *
(1) CARB-based supporting test data. For detergent additives which
are certified by the California Air Resources Board (CARB) for use in
the state of California (pursuant to Title 13, section 2257 of the
California Code of Regulations), the CARB certification data
constitutes adequate support of the detergent's effectiveness under
this section, with the exception that CARB detergent certification data
specific to California Phase II reformulated gasoline (pursuant to
Title 13, Chapter 5, Article 1, Subarticle 2, California Code of
Regulations, Standards for Gasoline Sold Beginning March 1, 1996) will
not be considered adequate support for detergent effectiveness in
gasolines that do not conform to the compositional specifications for
California's Phase II reformulated gasoline. For CARB-based supporting
data to be used to demonstrate detergent performance, the minimum
recommended concentration reported in
[[Page 35358]]
the detergent additive registration must be no less than the
concentration of the detergent-active components reported in the
subject CARB detergent certification.
(2) * * *
(ii) * * *
(B) For demonstration of fuel injector and intake valve deposit
control performance, the tests specified in Secs. 80.165, or other
vehicle-based tests using generally accepted industry procedures and
standards, are preferred.* * *
* * * * *
(g) * * *
(3) * * * All correspondence regarding a disqualification must be
sent to the address specified in Sec. 80.174(b).
* * * * *
6. Section 80.155 is revised to read as follows:
Sec. 80.155 Interim detergent program controls and prohibitions.
(a)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of gasoline to
the ultimate consumer for use in motor vehicles or in any off-road
engines (except as provided in Sec. 80.160), or to a gasoline retailer
or wholesale purchaser-consumer, and no person shall detergent-additize
gasoline, unless such gasoline is additized in conformity with the
requirements of Sec. 80.141. No person shall cause the presence of any
gasoline in the gasoline distribution system unless such gasoline is
additized in conformity with the requirements of Sec. 80.141.
(2) Gasoline has been additized in conformity with the requirements
of Sec. 80.141 when the detergent component satisfies the requirements
of Sec. 80.141 and when:
(i) The gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of an
applicable detergent registered under 40 CFR part 79, and in accordance
with at least the minimum concentration specifications of that
detergent as registered under 40 CFR part 79 or as otherwise provided
under Sec. 80.141(d); or
(ii) The gasoline is composed of two or more commingled gasolines
and each component gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
registered under 40 CFR part 79, and in accordance with at least the
minimum concentration specifications of that detergent as registered
under 40 CFR part 79 or as otherwise provided under Sec. 80.141(d); or
(iii) The gasoline is composed of a gasoline commingled with a
post-refinery component (PRC), and both of these components have been
additized in conformity with the detergent composition and use
specifications of a detergent registered under 40 CFR part 79, and in
accordance with at least the minimum concentration specifications of
that detergent as registered under 40 CFR part 79 or as otherwise
provided under Sec. 80.141(d).
(b) No person shall blend detergent into gasoline or PRC unless
such person complies with the volumetric additive reconciliation
requirements of Sec. 80.157.
(c) No person shall sell, offer for sale, dispense, supply, offer
for supply, store, transport, or cause the transportation of any
gasoline, detergent, or detergent-additized PRC unless the product
transfer document for the gasoline, detergent or detergent-additized
PRC complies with the requirements of Sec. 80.158.
(d) No person shall refine, import, manufacture, sell, offer for
sale, dispense, supply, offer for supply, store, transport, or cause
the transportation of any detergent that is to be used as a component
of detergent-additized gasoline or detergent-additized PRC, unless such
detergent conforms with the composition specifications of a detergent
registered under 40 CFR part 79 and the detergent otherwise complies
with the requirements of Sec. 80.141. No person shall cause the
presence of any detergent in the detergent, PRC, or gasoline
distribution systems unless such detergent complies with the
requirements of Sec. 80.141.
(e)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of detergent-
additized PRC, unless the PRC has been additized in conformity with the
requirements of Sec. 80.141. No person shall cause the
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
presence in the
PRC or gasoline distribution systems of any detergent-additized PRC
that fails to conform to the requirements of Sec. 80.141.
(2) PRC has been additized in conformity with the requirements of
Sec. 80.141 when the detergent component satisfies the requirements of
Sec. 80.141 and:
(i) The PRC has been additized in accordance with the detergent
composition and use specifications of a detergent registered under 40
CFR part 79, and in accordance with at least the minimum concentration
specifications of that detergent as registered under 40 CFR part 79 or
as otherwise provided under Sec. 80.141(d); or
(ii) The PRC is composed of two or more commingled PRCs, and each
component has been additized in accordance with the detergent
composition and use specifications of a detergent registered under 49
CFR part 79, and in accordance with at least the minimum concentration
specifications of that detergent as registered under 40 CFR part 79 or
as otherwise provided under Sec. 80.141(d).
7. Section 80.156 is amended by revising paragraphs (a)(1)(ii),
(a)(2), introductory text, (a)(2)(ii), (a)(3), introductory text,
(a)(3)(ii), (a)(4), (a)(5), introductory text, (c)(1), introductory
text, (c)(1)(i), (c)(3), (c)(4), and by adding paragraphs (c)(5)
through (c)(8) to read as follows:
Sec. 80.156 Liability for violations of the interim detergent program
controls and prohibitions.
(a) * * *
(1) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who refined, imported,
manufactured, sold, offered for sale, dispensed, supplied, offered for
supply, stored, detergent additized, transported, or caused the
transportation of the detergent-additized gasoline (or the base
gasoline component, the detergent component, or the detergent-additized
post-refinery component of the gasoline) that is in violation, and each
such party that caused the gasoline that is in violation to be present
in the gasoline distribution system; and
* * * * *
(2) Post-refinery component non-conformity. Where detergent-
additized PRC contained in any storage tank at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.155(e), the following persons shall be deemed in
violation:
(i) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale-purchaser consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, detergent additized,
transported, or caused the transportation of the detergent-additized
PRC (or the detergent component of the PRC) that is in violation, and
each such party that caused the PRC that is in violation to be present
in the PRC or gasoline distribution systems; and
* * * * *
(3) Detergent non-conformity. Where the detergent (prior to
additization)
[[Page 35359]]
contained in any storage tank or container found at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.155(d), the following persons shall be deemed in
violation:
(i) * * *
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent that is in violation, and each such
party that caused the detergent that is in violation to be present in
the detergent, gasoline, or PRC distribution systems; and
* * * * *
(4) Volumetric additive reconciliation. Where a violation of the
volumetric additive reconciliation requirements established by
Sec. 80.155(b) has occurred, the following persons shall be deemed in
violation:
(i) Each detergent blender who owns, leases, operates, controls or
supervises the facility (including, but not limited to, a truck or
individual storage tank) where the violation has occurred; and
(ii) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, or oxygenate blender,
and each detergent manufacturer, carrier, distributor, or blender, who
refined, imported, manufactured, sold, offered for sale, dispensed,
supplied, offered for supply, stored, transported, or caused the
transportation of the detergent-additized gasoline, the base gasoline
component, the detergent component, or the detergent-additized post-
refinery component, of the gasoline that is in violation, provided that
the EPA demonstrates, by reasonably specific showings by direct or
circumstantial evidence, that such person caused the violation.
(5) Product transfer document. Where a violation of Sec. 80.155(c)
is found at a facility owned, leased, operated, controlled, or
supervised by any gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, the following
persons shall be deemed in violation:
* * * * *
(c) Defenses. (1) In any case in which a gasoline refiner,
importer, distributor, carrier, reseller, retailer, wholesale-purchaser
consumer, oxygenate blender, detergent distributor, carrier, or
blender, is in violation of any of the prohibitions of Sec. 80.155,
pursuant to paragraphs (a) or (b) of this section as applicable, the
regulated party shall be deemed not in violation if it can demonstrate:
(i) That the violation was not caused by the regulated party or its
employee or agent (unless otherwise provided in this paragraph (c));
* * * * *
(3) Detergent blender. In any case in which a detergent blender is
liable for violating any of the prohibitions of Sec. 80.155, the
detergent blender shall not be deemed in violation if it can
demonstrate, in addition to the defense requirements stated in
paragraph (c)(1) of this section, the following:
(i) That it obtained or supplied, as appropriate, prior to the
detergent blending, accurate written instructions from the detergent
manufacturer or other party with knowledge of such instructions,
specifying the detergent's minimum recommended concentration (lowest
additive concentration) pursuant to Sec. 80.141(c)(3) and, if
applicable, the limitations of this concentration for use in leaded
product.
(ii) That it has implemented a quality assurance program that
includes, but is not limited to, a periodic review of its supporting
product transfer and volume measurement documents to confirm the
correctness of its product transfer and volumetric additive
reconciliation documents created for all products it additized.
(4) Detergent manufacturer--(i) Presumptive liability affirmative
defense. Notwithstanding the provisions of paragraph (c)(1) of this
section, in any case in which a detergent manufacturer is liable for
violating any of the prohibitions of Sec. 80.155, the detergent
manufacturer shall be deemed not in violation if it can demonstrate
each of the following:
(A) Product transfer documents which account for the detergent
component of the product in violation and which indicate that such
detergent satisfied all relevant requirements when it left the
detergent manufacturer's control; and
(B) Written blending instructions which, pursuant to
Sec. 80.141(c)(3)(ii), were supplied by the detergent manufacturer to
its customer who purchased or obtained from the manufacturer the
detergent component of the product determined to be in violation. The
written blending instructions must have been supplied by the
manufacturer prior to the customer's use or sale of the detergent. The
instructions must accurately identify the minimum recommended
concentration (lowest additive concentration) specified in the
detergent's 40 CFR part 79 registration, and must also accurately
identify if the detergent, at that concentration, is only registered as
effective for use in leaded gasoline.
(C) If the detergent batch used in the noncomplying product was
produced less than one year before the manufacturer was notified by EPA
of the possible violation, then the manufacturer must provide FTIR or
other test results for the batch of detergent used in the noncomplying
product, performed in accordance with the detergent testing procedure
submitted by the manufacturer, or available for submission, pursuant to
Sec. 80.141(f).
(1) The analysis may have been conducted on the subject detergent
batch at the time it was manufactured, or may be conducted on a sample
of that batch which the manufacturer retained for such purpose at the
time the batch was manufactured.
(2) The test results must accurately establish that, when it left
the manufacturer's control, the detergent component of the product
determined to be in violation was in conformity with the chemical
composition and concentration specifications reported pursuant to
Sec. 80.141(c)(1);
(D) If the detergent batch used in the noncomplying product was
produced more than one year prior to the manufacturer's notification by
EPA of the possible violation, then the manufacturer must provide
either:
(1) Test results for the batch in question as specified in the
paragraph (c)(4)(i)(C) of this section; or
(2) The following materials:
(i) Documentation of the measured viscosity, density, and basic
nitrogen content of the detergent batch in question, or any other such
physical parameters which the manufacturer normally uses to ensure
production quality control, which establishes conformity with the
manufacturer's quality control standards for such parameters; and
(ii) If the detergent registration identifies polymeric
component(s) of the detergent package as the product(s) of other
chemical reactants, documentation that the reagents used to synthesize
the detergent batch in question were the same as those specified in the
registration and that they met the manufacturer's normal acceptance
criteria for such reagents, reported pursuant to Sec. 80.162(b)(1).
[[Page 35360]]
(ii) Detergent manufacturer causation liability. In any case in
which a detergent manufacturer is liable for a violation of
Sec. 80.155, and the manufacturer establishes an affirmative defense to
such liability pursuant to paragraph (c)(4)(i) of this section, the
detergent manufacturer will nonetheless be deemed liable for the
violation of Sec. 80.155 if EPA can demonstrate, by reasonably specific
showings by direct or circumstantial evidence, that the detergent
manufacturer caused the violation.
(5) Defense against liability where more than one party may be
liable for VAR violations. In any case in which a party is
presumptively or vicariously liable for a violation of Sec. 80.155 due
to a failure to meet the VAR requirements Sec. 80.157, except for the
VAR record requirements pursuant to Sec. 80.157(g), such party shall
not be deemed liable if it can establish the following:
(i) Prior to the violation it had entered into a written contract
with another potentially liable detergent blender party (``the assuming
party''), under which that other party assumed legal responsibility for
fulfilling the VAR requirement that had been violated;
(ii) The contract included reasonable oversight provisions to
ensure that the assuming party fulfilled its VAR responsibilities
(including, but not limited to, periodic review of VAR records) and the
oversight provision was actually implemented by the party raising the
defense;
(iii) The assuming party is fiscally sound and able to pay its
penalty for the VAR violation; and
(iv) The employees or agents of the party raising the defense did
not cause the violation.
(6) Defense to liability for gasoline non-conformity violations
caused solely by the addition of misadditized ethanol or other PRC to
the gasoline. In any case in which a party is presumptively or
vicariously liable for a gasoline non-conformity violation of
Sec. 80.155(a) caused solely by another party's addition of
misadditized ethanol or other PRC to the gasoline, the former party
shall not be deemed liable for the violation provided that it can
establish that is has fulfilled the requirements of paragraphs
(c)(1)(i) and (ii) of this section.
(7) Detergent tank transitioning defenses. The commingling of two
detergents in the same detergent storage tank will not be deemed to
violate or cause violations of any of the provisions of this subpart,
provided the following conditions are met:
(i) The commingling must occur during a legitimate detergent
transitioning event, i.e., a shift from the use of one detergent to
another through the delivery of the new detergent into the same tank
that contains the original detergent; and
(ii) If the new detergent is restricted to use in leaded gasoline,
then such restriction must be applied to the combined detergents; and
(iii) The commingling event must be documented, either on the VAR
formula record or on attached supporting records; and
(iv) Notwithstanding any contrary provisions in Sec. 80.157, a VAR
formula record must be created for the combined detergents. The VAR
compliance period must begin no later than the time of the commingling
event. However, at the blender's option, the compliance period may
begin earlier, thus including use of the uncombined original detergent
within the same period, provided that the 31-day limitation pursuant to
Sec. 80.157(a)(6) is not exceeded; and
(v) The VAR formula record must also satisfy the requirements in
one of the following paragraphs (c)(7)(v)(A) through (C) of this
section, whichever applies to the commingling event. If neither
paragraph (c)(7)(v)(A) nor (B) of this section initially applies, then
the blender may drain and subsequently redeliver the original detergent
into the tank in restricted amounts, in order to meet the conditions of
paragraph (c)(7)(v)(A) or (B) of this section. Otherwise, the blender
must comply with paragraph (c)(7)(v)(C) of this section.
(A) If both detergents have the same LAC, and the original
detergent accounts for no more than 20 percent of the tank's total
delivered volume after addition of the new detergent, then the VAR
formula record is required to identify only the use of the new
detergent.
(B) If the two detergents have different LACs and the original
detergent accounts for 10 percent or less of the tank's total delivered
volume after addition of the new detergent, then the VAR formula record
is required to identify only the use of the new detergent, and must
attain the LAC of the new detergent. If the original detergent's LAC is
greater than that of the new detergent, then the compliance period may
begin earlier than the date of the commingling event (pursuant to
paragraph (c)(7)(iv) of this section) only if the original detergent
does not exceed 10 percent of the total detergent used during the
compliance period.
(C) If neither of the preceding paragraphs (c)(7)(v)(A) or (B) of
this section applies, then the VAR formula record must identify both of
the commingled detergents, and must use and attain the higher LAC of
the two detergents. Once the commingled detergent has been depleted by
an amount equal to the volume of the original detergent in the tank at
the time the new detergent was added, subsequent VAR formula records
must identify and use the LAC of only the new detergent.
(8) Defense to liability for noncompliance with leaded-only use
restrictions. A party shall not be deemed liable for violations of
Sec. 80.155(a) or (e) caused solely by the additization or use of
gasoline or PRC in violation of leaded-only use restrictions, provided
that the conditions specified in Sec. 80.169(c)(9) are met.
8. Section 80.157 is amended by revising the introductory text and
paragraphs (a) and (b), by revising paragraphs (d), (e), and (f) and
redesignating them as paragraphs (e), (f), and (g), and by adding a new
paragraph (d), to read as follows:
Sec. 80.157 Volumetric additive reconciliation (VAR), equipment
calibration, and recordkeeping requirements under the interim detergent
program.
This section contains requirements for automated detergent blending
facilities and hand-blending detergent facilities. All gasolines and
all PRC intended for use in gasoline must be additized, unless
otherwise noted in supporting VAR records, and must be accounted for in
VAR records. The VAR reconciliation standard is attained under this
section when the actual concentration of detergent used per VAR formula
record equals or exceeds the lowest additive concentration (LAC)
specified for that detergent pursuant to Sec. 80.141(c)(3), or, if
appropriate, under Sec. 80.141(d). A separate VAR formula record must
be created for leaded gasoline additized with a detergent registered
for use only with leaded gasoline, or used at a concentration that is
registered as effective for leaded gasoline only. Detergent so used
must be accurately and separately measured, either through the use of a
separate storage tank, a separate meter, or some other measurement
system that is able to accurately distinguish its use. Recorded volumes
of gasoline, detergent, and PRC must be expressed to the nearest gallon
(or smaller units), except that detergent volumes of five gallons or
less must be expressed to the nearest tenth of a gallon (or smaller
units). However, if the blender's equipment cannot accurately measure
to the nearest tenth of a gallon, then such volumes must be rounded
downward to the next lower gallon. PRC included in the reconciliation
must be
[[Page 35361]]
identified. Each VAR formula record must also contain the following
information:
(a) Automated blending facilities. In the case of an automated
detergent blending facility, for each VAR period, for each detergent
storage system and each detergent in that storage system, the following
must be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified in
the detergent registration for use with the applicable type of gasoline
(i.e., unleaded or leaded). The LAC must be expressed in terms of
gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the specified LAC is only effective for
use with leaded gasoline, the record must so indicate. If the detergent
storage system which is the subject of the VAR formula record is a
proprietary system under the control of a customer, this fact must be
indicated on the record.
(2) The total volume of detergent blended into gasoline and PRC, in
accordance with one of the following paragraphs, as applicable.
(i) For a facility which uses in-line meters to measure detergent
usage, the total volume of detergent measured, together with supporting
data which includes one of the following: the beginning and ending
meter readings for each meter being measured, the metered batch volume
measurements for each meter being measured, or other comparable metered
measurements. The supporting data may be supplied on the VAR formula
record or in the form of computer printouts or other comparable VAR
supporting documentation.
(ii) For a facility which uses a gauge to measure the inventory of
the detergent storage tank, the total volume of detergent shall be
calculated from the following equation:
Detergent Volume=(A)-(B)+(C)-(D)
Where:
A=Initial detergent inventory of the tank
B=Final detergent inventory of the tank
C=Sum of any additions to detergent inventory
D=Sum of any withdrawals from detergent inventory for purposes other
than the additization of gasoline or PRC.
The value of each variable in this equation must be separately
recorded on the VAR formula record. In addition, a list of each
detergent addition included in variable C and a list of each detergent
withdrawal included in variable D must be provided, either on the
formula record or as VAR supporting documentation.
(3) The total volume of gasoline plus PRC to which detergent has
been added, together with supporting data which includes one of the
following: The beginning and ending meter measurements for each meter
being measured, the metered batch volume measurements for each meter
being measured, or other comparable metered measurements. The
supporting data may be supplied on the VAR formula record or in the
form of computer printouts or other comparable VAR supporting
documentation. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(4) The actual detergent concentration, calculated as the total
volume of detergent added (pursuant to paragraph (a)(2) of this
section), divided by the total volume of gasoline plus PRC (pursuant to
paragraph (a)(3) of this section). The concentration must be calculated
and recorded to four digits.
(5) A list of each detergent concentration rate initially set for
the detergent that is the subject of the VAR record, together with the
date and description of each adjustment to any initially set
concentration. The concentration adjustment information may be supplied
on the VAR formula record or in the form of computer printouts or other
comparable VAR supporting documentation. No concentration setting is
permitted below the applicable LAC, except as may be modified pursuant
to Sec. 80.141(d) or as described in paragraph (a)(7) of this section.
(6) The dates of the VAR period, which shall be no longer than
thirty-one days. If the VAR period is contemporaneous with a calendar
month, then specifying the month will fulfill this requirement; if not,
then the beginning and ending dates and times of the VAR period must be
listed. The times may be supplied on the VAR formula record or in
supporting documentation. Any adjustment to any detergent concentration
rate more than 10 percent over the concentration rate initially set in
the VAR period shall terminate that VAR period and initiate a new VAR
period, except as provided in paragraph (a)(7) of this section.
(7) The concentration setting for a detergent injector may be set
below the applicable LAC, or it may be adjusted more than 10 percent
above the concentration initially set in the VAR period without
terminating that VAR period, provided that:
(i) The purpose of the change is to correct a batch misadditization
prior to the end of the VAR period and prior to the transfer of the
batch to another party, or to correct an equipment malfunction; and
(ii) The concentration is immediately returned after the correction
to a concentration that fulfills the requirements of paragraphs (a)(5)
and (6) of this section; and
(iii) The blender creates and maintains documentation establishing
the date and adjustments of the correction; and
(iv) If the correction is initiated only to rectify an equipment
malfunction, and the amount of detergent used in this procedure is not
added to gasoline in the compliance period, then this amount is
subtracted from the detergent volume listed on the VAR formula record.
(8) If unadditized gasoline has been transferred from the facility,
other than bulk transfers from refineries or pipelines to non-retail
outlets or non-WPC facilities, the total amount of such gasoline must
be specified.
(b) Non-automated facilities. In the case of a facility in which
hand blending or any other non-automated method is used to blend
detergent, for each detergent and for each batch of gasoline and each
batch of PRC to which the detergent is being added, the following shall
be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, and the LAC specified in
the detergent registration for use with the applicable type of gasoline
(i.e., unleaded or leaded). The LAC must be expressed in terms of
gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the specified LAC is only effective for
use with leaded gasoline, the record must so indicate.
(2) The date of the additization that is the subject of the VAR
formula record.
(3) The volume of added detergent.
(4) The volume of the gasoline and/or PRC to which the detergent
has been added. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(5) The brand (if known), grade, and leaded/unleaded status of
gasoline, and/or the type of PRC.
[[Page 35362]]
(6) The actual detergent concentration, calculated as the volume of
added detergent (pursuant to paragraph (b)(3) of this section), divided
by the volume of gasoline and/or PRC (pursuant to paragraph (b)(4) of
this section). The concentration must be calculated and recorded to
four digits.
* * * * *
(d) Electronically-generated VAR formula and supporting records.
(1) Electronically-generated records are acceptable for VAR formula
records and supporting documentation (including PTDs), provided that
they are complete, accessible, and easily readable. VAR formula records
must also be stored with access and audit security, which must restrict
to a limited number of specified people those who have the ability to
alter or delete the records. In addition, parties maintaining records
electronically must make available for EPA use the hardware and
software necessary to review the records.
(2) Electronically-generated VAR formula records may use an
electronic user identification code to satisfy the signature
requirements of paragraph (c)(1) of this section, provided that:
(i) The use of the ID is limited to the record creator; and
(ii) A paper record is maintained, which is signed and dated by the
VAR formula record creator, acknowledging that the use of that
particular user ID on a VAR formula record is equivalent to his/her
signature on the document.
(e) Automated detergent blenders must calibrate their detergent
equipment once in each calendar half year, with the acceptable
calibrations being no less than one hundred twenty days apart.
Equipment recalibration is also required each time the detergent
package is changed, unless written documentation indicates that the new
detergent package has the same viscosity as the previous detergent
package. Detergent package change calibrations may be used to satisfy
the semiannual requirement provided that the calibrations occur in the
appropriate half calendar year and are no less than one hundred twenty
days apart.
(f) The following VAR supporting documentation must also be created
and maintained:
(1) For all automated detergent blending facilities, documentation
reflecting performance of the calibrations required by paragraph (e) of
this section, and any associated adjustments of the automated detergent
equipment;
(2) For all hand-blending facilities which are terminals, a record
specifying, for each calendar month, the total volume in gallons of
transfers from the facility of unadditized base gasoline;
(3) For all detergent blending facilities, product transfer
documents for all gasoline, detergent and detergent-additized PRC
transferred into or out of the facility; in addition, bills of lading,
transfer, or sale for all unadditized PRC transferred into the
facility;
(4) For all automated detergent blending facilities, documentation
establishing the brands (if known) and grades of the gasoline which is
the subject of the VAR formula record;
(5) For all hand blending detergent blenders, the documentation, if
in the party's possession, supporting the volumes of gasoline, PRC, and
detergent reported on the VAR formula record; and
(6) For all detergent blending facilities, documentation
establishing the curing of a batch or amount of misadditized gasoline
or PRC, or the curing of a use restriction on the additized gasoline or
PRC, and providing at least the following information: the date of the
curing procedure; the problem that was corrected; the amount, name, and
LAC of the original detergent used; the amount, name, and LAC of the
added curing detergent; and the actual detergent concentration attained
in, and the volume of, the total cured product.
(g) Document retention and availability. All detergent blenders
shall retain the documents required under this section for a period of
five years from the date the VAR formula records and supporting
documentation were created, and shall deliver them upon request to the
EPA Administrator or the Administrator's authorized representative.
(1) Except as provided in paragraph (g)(3) of this section,
automated detergent blender facilities and hand-blender facilities
which are terminals, which physically blend detergent into gasoline,
must make immediately available to EPA, upon request, the preceding
twelve months of VAR formula records plus the preceding two months of
VAR supporting documentation.
(2) Except as provided in paragraph (g)(3) of this section, other
hand-blending detergent facilities which physically blend detergent
into gasoline must make immediately available to EPA, upon request, the
preceding two months of VAR formula records and VAR supporting
documentation.
(3) Facilities which have centrally maintained records at other
locations, or have customers who maintain their own records at other
locations for their proprietary detergent systems, and which can
document this fact to the Agency, may have until the start of the next
business day after the request to supply VAR supporting documentation,
or longer if approved by the Agency.
(4) In this paragraph (g) of this section, the term immediately
available means that the records must be provided, electronically or
otherwise, within approximately one hour of EPA's request, or within a
longer time frame as approved by EPA.
9. Section 80.158 is revised to read as follows:
Sec. 80.158 Product transfer documents (PTDs).
(a) Contents. For each occasion when any gasoline refiner,
importer, reseller, distributor, carrier, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer,
distributor, carrier, or blender, transfers custody or title to any
gasoline, detergent, or detergent-additized PRC other than when
detergent-additized gasoline is sold or dispensed at a retail outlet or
wholesale purchaser-consumer facility to the ultimate consumer, the
transferor shall provide to the transferee, and the transferee shall
acquire from the transferor, documents which accurately include the
following information:
(1) The names and addresses of the transferee and transferor; the
address requirement may be fulfilled, in the alternative, through
separate documentation which establishes said addresses and is
maintained by the parties and made available to EPA for the same length
of time as required for the PTDs, provided that the normal business
procedure of these parties is not to identify addresses on PTDs.
(2) The date of the transfer.
(3) The volume of product transferred.
(4)(i) The identity of the product being transferred (i.e., its
identity as base gasoline, detergent, detergent-additized gasoline, or
specified detergent-additized oxygenate or detergent-additized gasoline
blending stock that comprises a detergent-additized PRC). PTDs for
detergent-additized gasoline or PRC are not required to identify the
particular detergent used to additize the product.
(ii) If the product being transferred consists of two or more
different types of product subject to this regulation, i.e., base
gasoline, detergent-additized gasoline, or specified detergent-
additized PRC, then the PTD for the commingled product must identify
each such type of component contained in the commingled product.
(5) If the product being transferred is gasoline to which an
oxygenate or a PRC has been added, then the PTD for the
[[Page 35363]]
gasoline must identify the oxygenate or PRC. The PTDs for commingled,
additized gasolines must identify all the oxygenates and PRCs added to
either component.
(6) If the product being transferred is base gasoline, then in
addition to the base gasoline identification, the following warning
must be stated on the PTD: ``Not for sale to the ultimate consumer''.
If, pursuant to Sec. 80.160(a), the product being transferred is exempt
base gasoline to be used for research, development, or test purposes
only, the following warning must also be stated on the PTD: ``For use
in research, development, and test programs only.''
(7) The name of the detergent additive as reported in its
registration must be used to identify the detergent package on its PTD.
(8) If the product being transferred is leaded gasoline, then the
PTD must disclose that the product contains lead and/or phosphorous, as
applicable.
(9) If the product being transferred is detergent that is only
authorized for the control of carburetor deposits, then the following
must be stated on the detergent's transfer document: ``For use with
leaded gasoline only.''
(10) If the product being transferred is detergent-additized
gasoline that has been overadditized in anticipation of the later (or
earlier) addition of PRC, then the PTD must include a statement that
the product has been overadditized to account for a specified volume in
gallons, or a specified percentage of the product's total volume, of
additional, specified PRC.
(b) Gasoline may not be additized with a detergent authorized only
for the control of carburetor deposits and whose product transfer
document states ``For use with leaded gasoline only'', and gasoline may
not be additized at the lower concentration specified for a detergent
authorized at a lower concentration for the control of carburetor
deposits only, unless the product transfer document for the gasoline to
be additized identifies it as leaded gasoline.
(c) Use of product codes and other non-regulatory language. (1)
Product codes and other non-regulatory language may not be used as a
substitute for the specified PTD warning language specified in
paragraph (a)(6) of this section for base gasoline, except that:
(i) The specified warning language may be omitted for bulk
transfers of base gasoline from a refinery to a pipeline if there is a
prior written agreement between the parties specifying that all such
gasoline is unadditized and will not be transferred to the ultimate
consumer;
(ii) Product codes may be used as a substitute for the specified
warning language provided that the PTD is an electronic data
interchange (EDI) document being used solely for the transfer of title
to the base gasoline, and provided that the product codes otherwise
comply with the requirements of this section.
(2) Product codes and other language not specified in this section
may otherwise be used to comply with PTD information requirements,
provided that they are clear, accurate, and not misleading.
(3) If product codes are used, they must be standardized throughout
the distribution system in which they are used, and downstream parties
must be informed of their full meaning.
(d) PTD exemption for small transfers of additized gasoline.
Transfers of additized gasoline are exempt from the PTD requirements of
this section provided all the following conditions are followed:
(1) The product is being transferred by a distributor who is not
the product's detergent blender; and
(2) The recipient is a wholesale purchaser-consumer (WPC) or other
ultimate consumer of gasoline, for its own use only or for that of its
agents or employees; and
(3) The volume of additized gasoline being transferred is not
greater than 550 gallons.
(e) Recordkeeping period. Any person creating, providing or
acquiring product transfer documentation for gasoline, detergent, or
detergent-additized PRC, except as provided in paragraph (d) of this
section, shall retain the documents required by this section for a
period of five years from the date the product transfer documentation
was created, received or transferred, as applicable, and shall deliver
such documents to EPA upon request. WPCs are not required to retain
PTDs of additized gasoline received by them.
10. Section 80.160 is revised to read as follows:
Sec. 80.160 Exemptions.
(a) Research, development, and testing exemptions. Any detergent
that is either in a research, development, or test status, or is sold
to petroleum, automobile, engine, or component manufacturers for
research, development, or test purposes, or any gasoline to be used by,
or under the control of, petroleum, additive, automobile, engine, or
component manufacturers for research, development, or test purposes, is
exempted from the provisions of the interim detergent program, provided
that:
(1) The detergent (or fuel containing the detergent), or the
gasoline, is kept segregated from non-exempt product, and the party
possessing the product maintains documentation identifying the product
as research, development, or testing detergent or fuel, as applicable,
and stating that it is to be used only for research, development, or
testing purposes; and
(2) The detergent (or fuel containing the detergent), or the
gasoline, is not sold, dispensed, or transferred, or offered for sale,
dispensing, or transfer from a retail outlet. It shall also not be
sold, dispensed, or transferred, or offered for sale, dispensing, or
transfer from a wholesale purchaser-consumer facility, unless such
facility is associated with detergent, fuel, automotive, or engine
research, development or testing; and
(3) The party using the product for research, development, or
testing purposes, or the party sponsoring this usage, notifies the EPA,
on at least an annual basis and prior to the use of the product, of the
purpose(s) of the program(s) in which the product will be used and the
anticipated volume of the product to be used. The information must be
submitted to the address or fax number provided in Sec. 80.174(c).
(b) Racing fuel and aviation fuel exemptions. Any fuel that is
refined, sold, dispensed, transferred, or offered for sale, dispensing,
or transfer as automotive racing fuel or as aircraft engine fuel, is
exempted from the provisions of this subpart, provided that:
(1) The fuel is kept segregated from non-exempt fuel, and the party
possessing the fuel for the purposes of refining, selling, dispensing,
transferring, or offering for sale, dispensing, or transfer as
automotive racing fuel or as aircraft engine fuel, maintains
documentation identifying the product as racing fuel, restricted for
non-highway use in racing motor vehicles, or as aviation fuel,
restricted for use in aircraft, as applicable;
(2) Each pump stand at a regulated party's facility, from which
such fuel is dispensed, is labeled with the applicable fuel
identification and use restrictions described in paragraph (b)(1) of
this section; and
(3) The fuel is not sold, dispensed, transferred, or offered for
sale, dispensing, or transfer for highway use in a motor vehicle.
(c) California gasoline exemptions. (1) Gasoline or PRC which is
additized in the state of California is exempt from
[[Page 35364]]
the VAR provisions in Secs. 80.155(b) and (e) and 80.157, provided
that:
(i) For all such gasoline or PRC, whether intended for sale within
or outside of California, records of the type required for California
gasoline (specified in title 13, California Code of Regulations,
section 2257) are maintained; and
(ii) Such records, with the exception of daily additization
records, are maintained for a period of five years from the date they
were created and are delivered to EPA upon request.
(2) Gasoline or PRC that is transferred and/or sold solely within
the state of California is exempt from the PTD provisions of the
interim detergent program, specified in Secs. 80.155(c) and 80.158.
(3) Nothing in this paragraph (c) exempts such gasoline or PRC from
the requirements of Sec. 80.155(a) and (e), as applicable. EPA will
base its determination of California gasoline's conformity with the
detergent's LAC on the additization records required by CARB, or
records of the same type.
11. Subpart G is further amended by adding new Secs. 80.161 through
80.173, to read as follows:
Sec. 80.161 Detergent additive certification program.
(a) Effective dates and applicability of requirements. (1) As of
July 1, 1997:
(i) Detergent additives for the control of port fuel injector
deposits (PFID) and/or intake valve deposits (IVD) in gasoline engines
may not be transferred or sold for use in compliance with this subpart
unless such additives have been certified according to the requirements
of this section.
(ii) Except as provided in Sec. 80.169(c)(8), PFID and IVD control
additives may not be added to gasoline or post-refinery component (PRC)
for compliance with this subpart unless such additives have been
certified according to the requirements of this section.
(iii) Gasoline may not be sold or transferred to a party who sells
or transfers gasoline to the ultimate consumer unless such gasoline
contains detergent additives which have been certified according to the
requirements of this section.
(2) Beginning August 1, 1997, all gasoline sold or transferred to
the ultimate consumer must contain detergent additive(s) which have
been certified, according to the requirements of this section, to be
effective for the control of PFID and IVD in gasoline engines.
(3) Except as specifically exempted in Sec. 80.173, these
detergency requirements apply to all gasoline, whether intended for on-
highway or nonroad use, including conventional, oxygenated,
reformulated, and leaded gasolines, as well as the gasoline component
in mixtures of petroleum and alcohol fuels, gasoline used as marine
fuel, gasoline service accumulation fuel (as described in Sec. 86.113-
94(a)(1) of this chapter), the gasoline component of fuel mixtures of
petroleum and methanol used for service accumulation in flexible fuel
vehicles (as described in Sec. 86.113-94(d) of this chapter), the
gasoline used for factory fill purposes, and all additized PRC.
(4) The specific controls and prohibitions applicable to persons
subject to these regulations are set forth in Sec. 80.168.
(b) Detergent additive certification requirements. For a detergent
additive package to be certified as eligible for use by detergent
blenders in complying with the gasoline detergency requirements of this
subpart, the requirements listed in this paragraph (b) must be
satisfied for such detergent. Subject to the provisions of paragraph
(e) of this section, if the certifier fails to conduct the specified
tests or to submit the specified materials, or if EPA judges the
testing or materials to be inadequate, or if the detergent fails EPA
confirmatory deposit control performance testing pursuant to
Sec. 80.167, the Administrator may deny or withdraw the detergent's
eligibility to be used to satisfy the detergency requirements of this
subpart.
(1) The detergent additive manufacturer must properly register the
detergent additive under 40 CFR part 79. For this purpose:
(i) The compositional data required under Sec. 79.21(a) of this
chapter shall include the information specified in Sec. 80.162.
(ii) The minimum recommended additive concentration required under
Sec. 79.21(d) of this chapter shall be reported to EPA in units of
gallons of detergent additive package per 1000 gallons of gasoline or
PRC, provided to four digits. This concentration is the lowest additive
concentration (LAC) referred to in Sec. 80.170, and shall be reported
as follows:
(A) For a detergent additive registered for use in unleaded
gasoline, the minimum concentration must be determined and reported for
each certification option under which the manufacturer wishes to
certify the additive pursuant to Sec. 80.163.
(1) In the case of a detergent certified for use in California
gasoline based on an existing certification granted by the California
Air Resources Board (CARB), pursuant to Sec. 80.163(d), the minimum
recommended concentration must equal or exceed the amount specified in
the CARB certification.
(2) In the case of any other detergent certification option, the
minimum recommended concentration must equal or exceed the amount mixed
into the associated test fuel specified in Sec. 80.164, which was shown
to satisfy the PFID and IVD deposit control performance tests and
standards specified in Sec. 80.165.
(B) For a detergent registered for use in leaded gasoline, the
minimum recommended concentration must be no less than the amount shown
to be needed for control of carburetor deposits, pursuant to the test
procedure and test fuel guidelines in Sec. 80.166.
(C) Once it has been registered by EPA, the minimum recommended
concentration specified by a detergent manufacturer to detergent
blenders and other users of the additive, pursuant to paragraph (c) of
this section, may not be changed without first notifying EPA. Such
notification should be sent by certified mail to the address specified
in Sec. 80.174(b). The change in minimum concentration must be
supported by existing certification data or else the notification to
EPA must be accompanied by new certification information which
demonstrates that the modification is consistent with the requirements
of paragraphs (b)(1)(ii)(A) and (B) of this section.
(2) The detergent additive manufacturer (or other certifying party)
must submit to EPA a sample of the actual detergent additive package
which was used in the certification testing specified in Sec. 80.164
or, if such sample is not available, then a sample which has the same
composition as the package used in certification testing.
(i) The sample volume shall be between 250 ml and 500 ml.
(ii) The sample shall be packaged in a container which has a
resealable closure and which will maintain sample integrity for at
least one year. The container shall be labeled with the name and
address of the manufacturer and the name of the detergent additive
package.
(iii) Any known shelf life limitations, and any available
information on optimal temperature, light exposure, or other conditions
to prolong sample shelf life, shall be provided.
(iv) If the certifying party wishes to claim that the sample or any
accompanying documents are entitled to special handling for reasons of
business confidentiality, the party must clearly identify the sample or
documents as such. EPA will handle any samples or documents with such
claims according to the regulations at 40 CFR part 2.
[[Page 35365]]
(v) The sample shall be submitted to EPA, at the address provided
in Sec. 80.174(a), within seven days of the date on which the
certification letter for the detergent package is sent to EPA as
required by paragraph (b)(3) of this section.
(3) The detergent additive manufacturer (or other certifying party)
shall submit a certification letter for the detergent additive package
to the address in Sec. 80.174(b). The party must use certified or
express mail with return receipt service. The letter shall be signed by
a person legally authorized to represent the certifying party and shall
contain the following information:
(i) Identifying information.
(A) The name and address of the detergent additive manufacturer.
(B) In any case where the certifier is not the detergent additive
manufacturer, such as in the case of a fuel-specific certification
pursuant to Sec. 80.163(c), the name and address of the certifier.
(C) The commercial identifying name of the detergent additive
product as registered under the requirements of Sec. 79.21 of this
chapter.
(ii) A statement attesting that:
(A) The detergent package which is the subject of this
certification has been tested according to applicable procedural and
test fuel requirements in this subpart and has met the applicable
performance standards; and
(B) The testing was conducted in a manner consistent with good
engineering practices; and
(C) Complete documentation of the test fuel formulation and IVD
demonstration procedures, detergent performance test procedures, and
test results are available for EPA's inspection upon request.
(iii) The name and location of the laboratory(ies) at which the
certification testing was conducted and the dates during which the
testing was conducted.
(iv) For each option under which certification is sought pursuant
to Sec. 80.163, specifications of the test fuel(s) in which the
detergent underwent performance testing. These fuel specifications must
include:
(A) The sulfur content in weight percent.
(B) The T-90 distillation point in degrees Fahrenheit.
(C) The olefin content in volume percent.
(D) The aromatic content in volume percent.
(E) The identity and volume percent of any oxygenate compound.
(F) The source of the test fuel(s) and/or fuel blend stocks used to
formulate the test fuel(s).
(v) In the case of a national or PADD certification (pursuant to
Sec. 80.163 (a) or (b)) for which the test fuel was specially
formulated from refinery blend stocks, the results of the IVD
demonstration test, pursuant to Sec. 80.164(b)(3).
(vi) In the case of a fuel-specific detergent certification,
pursuant to Sec. 80.163(c), the definition of the segregated gasoline
pool, including any permitted PRC, for which the certification is
sought, and the fuel parameter percentile distributions determined for
the subject gasoline pool, as specified in Sec. 80.164(c). The
percentile distributions must include all of the fuel parameters listed
in paragraph (b)(3)(iv) (A) through (D) of this section, along with any
other fuel parameter(s) which the certifier wishes to use to define the
certification fuel. As specified in Sec. 80.164(c)(1)(iv), the
procedures used to measure the additional parameters must be
identified, as well as the levels of these additional parameters
present in the test fuel(s).
(vii) In the case of a certification for California gasoline based
on an existing certification granted by CARB, pursuant to
Sec. 80.163(d), a copy of the CARB certificate.
(viii) The test concentration(s) of the subject detergent additive
in each test fuel, and the corresponding test results (percent flow
restriction demonstrated in the PFID test and milligrams of deposit per
valve demonstrated in the IVD test).
(ix) For each option under which certification of the detergent is
sought, the minimum recommended concentration which the certifying
party seeks to establish for the detergent additive package, pursuant
to paragraph (b)(1)(ii) of this section.
(4) EPA will acknowledge receipt of the detergent certification
letter. The effective date of certification will be the sooner of 60
days from the date on which EPA receives the certification letter, or
the certifier's receipt of EPA's acknowledgement of the certification
letter. However, neither the passage of 60 days nor EPA's
acknowledgement will signify acceptance by EPA of the validity of the
information in the certification letter or the adequacy or potency of
the detergent sample submitted pursuant to paragraph (b)(2) of this
section. EPA may elect at any time to review the detergent
certification data, analyze the submitted detergent additive sample, or
subject the detergent additive package to confirmatory testing as
described in Sec. 80.167 and, where appropriate, may disqualify a
detergent certification according to the provisions in paragraph (e) of
this section.
(c) The minimum concentration reported in the detergent
registration according to the provisions of paragraph (b)(1)(ii) of
this section, plus any restrictions in use associated with that
concentration, must be accurately communicated in writing by the
additive manufacturer to each fuel manufacturer or detergent blender
who purchases the subject detergent for purpose of compliance with the
gasoline detergency requirements of this subpart, and to any additive
manufacturer who purchases the subject additive with the intent of
reselling it to a fuel manufacturer for this purpose.
(d) The rate at which a detergent blender treats gasoline with a
detergent additive package must be no less than the minimum recommended
concentration reported for the subject detergent additive pursuant to
paragraph (b)(1)(ii) of this section, except under the following
conditions:
(1) If a detergent blender possesses deposit control performance
test results as specified in Sec. 80.165 or Sec. 80.166 which show that
the minimum treat rate recommended by the manufacturer of a detergent
additive product exceeds the amount of that detergent actually required
for effective deposit control, then, upon informing EPA in writing of
these circumstances, the detergent blender may use the detergent at the
lower concentration substantiated by these test results.
(2) The notification to EPA must clearly specify the name of the
detergent product and its manufacturer, the concentration recommended
by the detergent manufacturer, and the lower concentration which the
detergent blender intends to use. The notification must also attest
that the required data are available to substantiate the deposit
control effectiveness of the detergent at the intended lower
concentration. The notification must be sent by certified mail to the
address specified in Sec. 80.174(b).
(3) At its discretion, EPA may require that the detergent blender
submit the test data purported to substantiate the claimed
effectiveness of the lower concentration of the detergent additive. In
addition, EPA may require the manufacturer of the subject detergent
additive to submit test data substantiating the minimum recommended
concentration specified in the detergent additive registration. In
either case, EPA will send a letter to the appropriate party; the
supporting data will be due to EPA within 30 days of receipt of EPA's
letter.
[[Page 35366]]
(i) If the detergent blender fails to submit the required
supporting data to EPA in the allotted time period, or if EPA judges
the submitted data to be inadequate to support the detergent blender's
claim that the lower concentration provides a level of deposit control
consistent with the requirements of this section, then EPA will
disapprove the use of the detergent at the lower concentration.
Further, the detergent blender may be subject to applicable liabilities
and penalties pursuant to Secs. 80.169 and 80.172 for any gasoline or
PRC it has additized at the lower concentration.
(ii) If the detergent manufacturer fails to submit the required
test data to EPA within the allotted time period, EPA will proceed on
the assumption that data are not available to substantiate the minimum
recommended concentration specified in the detergent registration, and
the subject additive may be disqualified for use in complying with the
requirements of this subpart, pursuant to the procedures in paragraph
(e) of this section. The detergent manufacturer may also be subject to
applicable liabilities and penalties in Secs. 80.169 and 80.172.
(iii) If both parties submit the required information, EPA will
evaluate the quality and results of both sets of test data, and will
either approve or disapprove the use of the lower treat rate submitted
by the detergent blender. EPA will inform both parties of the results
of its analysis.
(e) Disqualification of a detergent additive package. (1) When EPA
makes a preliminary determination that a detergent additive certifier
has failed to comply with the detergent certification requirements of
this section, including a failure to submit required materials for a
detergent additive or submission of materials which EPA deems
inadequate, or if a detergent additive fails confirmatory testing
conducted pursuant to Sec. 80.167, EPA shall notify the additive
certifier by certified mail, return receipt requested, setting forth
the basis for that determination and informing the certifier that the
detergent may lose its eligibility to be used to comply with the
detergency requirements of this section.
(2) If EPA determines that the detergent certification was created
by fraud or other misconduct, such as a negligent disregard for the
truthfulness or accuracy of the required information, the detergent
certification will be considered void ab initio and the
disqualification will be retroactive to July 1, 1997 or the date on
which the additive product was first certified, whichever is later.
(3) The certifier will be afforded 60 days from the date of receipt
of the notice of intent of detergent disqualification to submit written
comments concerning the notice, and to demonstrate or achieve
compliance with the specific requirements which provide the basis for
the proposed disqualification. If the certifier does not respond in
writing within 60 days from the date of receipt of the notice of intent
of disqualification, the detergent disqualification shall become final
and the Administrator shall notify the certifier of such final
disqualification order. If the certifier responds in writing within 60
days from the date of receipt of the notice of intent to disqualify,
the Administrator shall review and consider all comments submitted by
the certifier before taking final action concerning the proposed
disqualification. All correspondence regarding a disqualification must
be sent to the address provided in Sec. 80.174(b).
(4) As part of a written response to a notice of intent to
disqualify, a certifier may request an informal hearing concerning the
notice. Any such request shall state with specificity the information
the certifier wishes to present at such a hearing. If an informal
hearing is requested, EPA shall schedule such a hearing within 90 days
from the date of receipt of the request. If an informal hearing is
held, the subject matter of the hearing shall be confined solely to
whether or not the certifier has complied with the specific
requirements which provide the basis for the proposed disqualification.
If an informal hearing is held, the designated presiding officer may be
any EPA employee, the hearing procedures shall be informal, and the
hearing shall not be subject to or governed by 40 CFR part 22 or by 5
U.S.C. 554, 556, or 557. A verbatim transcript of each informal hearing
shall be kept and the Administrator (or designee) shall consider all
relevant evidence and arguments presented at the hearing in making a
final decision concerning a proposed disqualification.
(5) If a certifier who has received a notice of intent to
disqualify submits a timely written response, and the Administrator (or
designee) decides after reviewing the response and the transcript of
any informal hearing to disqualify the detergent for use in complying
with the requirements of this subpart, the Administrator (or designee)
shall issue a final disqualification order and forward a copy of the
disqualification order to the certifier by certified mail. Notice of
the disqualification order will also be published in the Federal
Register. The disqualification will become effective as of the date on
which the copy of the order is received by the certifier. If the
certifier is also a blender of the disqualified additive, then the
certifier must stop using the ineligible detergent upon receipt of the
disqualification order.
(6) Within 10 days of receipt of EPA's notification of the final
decision to disqualify a detergent additive package pursuant to this
paragraph (e), the detergent certifier must submit to EPA, at the
address specified in Sec. 80.174(b), a list of its customers who use
the disqualified detergent. Failure to do so may subject the certifier
to liabilities for violations of Sec. 80.168 that result from the use
of the uncertified detergent. EPA shall inform the certifier's
customers by certified mail that the detergent is no longer eligible
for compliance with the requirements of this subpart. These parties
must stop using the ineligible detergent additive package and
substitute an eligible detergent additive within 45 days of receiving
the notification, or within 45 days of publication of the
disqualification notice in the Federal Register, whichever occurs
sooner.
Sec. 80.162 Additive compositional data.
For a detergent additive product to be eligible for use by
detergent blenders in complying with the gasoline detergency
requirements of this subpart, the compositional data to be supplied to
EPA by the additive manufacturer for the purpose of registering a
detergent additive package under Sec. 79.21(a) of this chapter must
include the items listed in this section. In the case of items
requiring measurement or other technical analysis, and for which a
specific test procedure is not stipulated herein, the procedure must
conform to reasonable and customary standards of repeatability and
reproducibility, and reasonable and customary limits of detection and
accuracy for the type of test procedure or analytic procedure in
question. At EPA's request, detailed documentation of any such test
procedure must be submitted within 10 days of the registrant's receipt
of EPA's request.
(a) A complete listing of the components of the detergent additive
package and the weight and/or volume percent (as applicable) of each
component of the package.
(1) When possible, standard chemical nomenclature shall be used or
the chemical structure of the component shall be given. Polymeric
components may be reported as the product of other chemical reactants,
provided that the supporting data specified in paragraph (b) of this
section is also reported.
[[Page 35367]]
(2) Each detergent-active component of the package shall be
classified into one of the following designations:
(i) Polyalkyl amine;
(ii) Polyether amine;
(iii) Polyalkylsuccinimide;
(iv) Polyalkylaminophenol;
(v) Detergent-active petroleum-based carrier oil;
(vi) Detergent-active synthetic carrier oil; and
(vii) Other detergent-active component (identify category, if
feasible.)
(3) Composition variability.
(i) The composition of a detergent additive reported in a single
additive registration (and the detergent additive product sold under a
single additive registration) may not:
(A) Include detergent-active components which differ in identity
from those contained in the detergent additive package at the time of
certification testing; or
(B) Include a range of concentration for any detergent-active
component such that, if the component were present in the detergent
additive package at the lower bound of the reported range, the deposit
control effectiveness of the additive package would be reduced as
compared with the level of effectiveness demonstrated during
certification testing.
(ii) The identity or concentration of non-detergent-active
components of the detergent additive package may vary under a single
registration, provided that the range of such variation is specified in
the registration and that such variability does not reduce the deposit
control effectiveness of the additive package as compared with the
level of effectiveness demonstrated during certification testing.
(iii) Except as provided in paragraph (a)(3)(iv) of this section,
detergent additive packages which do not satisfy the restrictions in
this paragraph (a)(3) must be separately registered. EPA may disqualify
an additive for use in satisfying the requirements of this subpart if
EPA determines that the variability included within a given detergent
additive registration may reduce the deposit control effectiveness of
the detergent package such that it may invalidate the minimum
recommended concentration reported in accordance with the applicable
requirements of Sec. 80.161(b)(1)(ii).
(iv) A change in minimum concentration requirements resulting from
a modification of detergent additive composition shall not require a
new detergent additive registration or a change in existing
registration if:
(A) The modification is effected by a detergent blender only for
its own use or for the use of parties which are subsidiaries of, or
share common ownership with, the blender, and the modified detergent is
not sold or transferred to other parties; and
(B) The modification is a dilution of the additive for the purpose
of ensuring proper detergent flow in cold weather; and
(C) Gasoline is the only diluting agent used; and
(D) The diluted detergent is subsequently added to gasoline at a
rate that attains the detergent's registered minimum recommended
concentration, taking into account the dilution; and
(E) EPA is notified, either before or within seven days after the
dilution action, of the identity of the detergent, the identity of the
diluting material, the amount or percentage of the dilution, the change
in treat rate necessitated by the dilution, and the locations and time
period of diluted detergent usage. The notification shall be sent or
faxed to the address in Sec. 80.174(c).
(b) For detergent-active polymers and detergent-active carrier oils
which are reported as the product of other chemical reactants:
(1) Identification of the reactant materials and the manufacturer's
acceptance criteria for determining that these materials are suitable
for use in synthesizing detergent components. The manufacturer must
maintain documentation, and submit it to EPA upon request,
demonstrating that the acceptance criteria reported to EPA are the same
criteria which the manufacturer specifies to the suppliers of the
reactant materials.
(2) A Gel Permeation Chromatograph (GPC), providing the molecular
weight distribution of the polymer or detergent-active carrier oil
components and the concentration of each chromatographic peak
representing more than one percent of the total mass. For these results
to be acceptable, the GPC test procedure must include equipment
calibration with a polystyrene standard or other readily attainable and
generally accepted calibration standard. The identity of the
calibration standard must be provided, together with the GPC
characterization of the standard.
(c) For non-detergent-active carrier oils, the following
parameters:
(1) T10, T50, and T90 distillation points, and end boiling point,
measured according to applicable test procedures cited in Sec. 80.46.
(2) API gravity and viscosity
(3) Concentration of oxygen, sulfur, and nitrogen, if greater than
or equal to 0.5 percent (by weight) of the carrier oil
(d) Description of an FTIR-based method appropriate for identifying
the detergent additive package and its detergent-active components
(polymers, carrier oils, and others) both qualitatively and
quantitatively, together with the actual infrared spectra of the
detergent additive package and each detergent-active component obtained
by this test method.
(e) To provide a basis for establishing an affirmative defense to
presumptive liability pursuant to Sec. 80.169(c)(4)(i)(D)(2)(i),
specific physical parameters must be identified which the manufacturer
considers adequate and appropriate, in combination with other
information and sampling requirements under this subpart, for
identifying the detergent additive package and monitoring its
production quality control.
(1) Such parameters shall include (but need not be limited to)
viscosity, density, and basic nitrogen content, unless the additive
manufacturer specifically requests, and EPA approves, the substitution
of other parameter(s) which the manufacturer considers to be more
appropriate for a particular additive package. The request must be made
in writing and must include an explanation of how the requested
physical parameter(s) are helpful as indicator(s) of detergent
production quality control. EPA will respond to such requests in
writing; the additional parameters are not approved until the certifier
receives EPA's written approval.
(2) The manufacturer shall identify a standardized measurement
method, consistent with the chemical and physical nature of the
detergent product, which will be used to measure each parameter. The
documented ASTM repeatability for the method shall also be cited. The
manufacturer's target value for each parameter in the detergent
package, and the expected range of production values for each
parameter, shall be specified.
(3) EPA will consider the parameter measurements to be an
acceptable basis for establishing an affirmative defense to presumptive
liability, if the expected range of variability differs from the target
value by an amount no greater than five times the standard
repeatability of the test procedure, or by no more than 10 percent of
the target value, whichever is less. However, in the case of nitrogen
analysis or other procedures for measuring concentrations of specific
chemical compounds or elements, when the target value is less than 10
parts per million, a range of variability up to 50 percent
[[Page 35368]]
of the target value will be considered acceptable.
(4) If a manufacturer wishes to rely on measurement methods or
production variability ranges which do not conform to the above
limitations, then the manufacturer must receive prior written approval
from EPA in order to be assured that any related parameter measurements
will be considered an acceptable basis for establishing an affirmative
defense. A request for such allowance must be made in writing. It must
fully justify the adequacy of the test procedure, explain why a broader
range of variability is required, and provide evidence that the
production detergent will perform adequately throughout the requested
range of variability.
Sec. 80.163 Detergent certification options.
To be used to satisfy the detergency requirements under
Sec. 80.161(a), a detergent additive must be certified in accordance
with the requirements of one or more of the options and suboptions
described in this section. Where a certification option makes an
additive eligible for use in a particular gasoline, that additive is
also eligible for use in PRC which will be added to the particular
gasoline. Under each option, the lowest additive concentration (LAC) or
minimum recommended concentration registered for a detergent additive
package, pursuant to Sec. 80.161(b)(1)(ii), must equal or exceed the
lowest detergent treat rate shown to be needed in the designated test
fuel in order to meet the deposit control performance requirements
specified in Sec. 80.165.
(a) National certification. A detergent certified under a national
certification option is eligible for use in gasoline which can be sold
or dispensed anywhere within the United States or its territories
(subject to approved state programs).
(1) National generic certification option. To be certified under
this option, a candidate detergent must meet the deposit control
performance test requirements and standards specified in Sec. 80.165
using test fuels that conform to the requirements in Sec. 80.164(b)(1),
Table 1, Line 1. A detergent certified under this option is eligible to
be used at a conforming LAC in any grade of gasoline, with or without
an oxygenate component.
(i) National nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(1) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to be
used at a conforming LAC only in gasoline that does not contain an
oxygenate component.
(ii) National oxygenate-specific suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(1) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that contains no oxygenate component other than the one present in the
test fuel.
(2) National premium certification option. To be certified under
this option, a candidate detergent must meet the deposit control
performance test requirements and standards specified in Sec. 80.165
using test fuels that conform to the requirements in Sec. 80.164(b)(1),
Table 1, Line 2. A detergent certified under this option is eligible to
be used at a conforming LAC only in premium grade gasoline, with or
without an oxygenate component.
(i) National premium nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(a)(2) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to b
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
e
used at a conforming LAC only in premium grade gasoline that does not
contain an oxygenate component.
(ii) National premium oxygenate-specific suboption. The
requirements for certification under this suboption are the same as
those in paragraph (a)(2) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that is premium grade and contains no oxygenate component other than
the one present in the test fuel.
(b) Petroleum Administrative Defense District (PADD) Certification.
A detergent certified under a PADD certification option is eligible for
use in gasoline which can be sold or dispensed to the ultimate
purchaser, or to those parties who sell or dispense to the ultimate
consumer, only within the PADD for which the certification was granted.
The states and jurisdictions included within each PADD are specified in
Sec. 79.59(b)(3)(i) through (v), except that, for purposes of PADD
certification, the state of California is excluded from PADD V.
(1) PADD generic certification option. To be certified under this
option, a candidate detergent must meet the deposit control performance
test requirements and standards specified in Sec. 80.165 using test
fuels that conform to the requirements in Sec. 80.164(b)(1), Table 2,
for a selected PADD. A detergent certified under this option is
eligible to be used at a conforming LAC in any grade of gasoline, with
or without an oxygenate component, provided that the gasoline is
ultimately dispensed in the selected PADD.
(i) PADD nonoxygenate suboption. The requirements for certification
under this suboption are the same as those in paragraph (b)(1) of this
section, except that, pursuant to Sec. 80.164(a)(2)(ii), the
certification test fuel shall contain no ethanol or other oxygenate. A
detergent certified under this suboption is eligible to be used at a
conforming LAC only in gasoline that is nonoxygenated and is ultimately
dispensed in the selected PADD.
(ii) PADD oxygenate-specific suboption. The requirements for
certification under this suboption are the same as those in paragraph
(b)(1) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that contains no oxygenate component other than the one present in the
test fuel and is ultimately dispensed in the selected PADD.
(2) PADD premium certification option. To be certified under this
option, a candidate detergent must meet the deposit control performance
test requirements and standards specified in Sec. 80.165 using test
fuels that conform to the requirements in Sec. 80.164(b)(1), Table 2,
for a selected PADD. A detergent certified under this option is
eligible to be used at a conforming LAC only in gasoline that is
premium grade (with or without an oxygenate component) and is
ultimately dispensed in the selected PADD.
(i) PADD premium nonoxygenate suboption. The requirements for
certification under this suboption are the same as those in paragraph
(b)(2) of this section, except that, pursuant to Sec. 80.164(a)(2)(ii),
the certification test fuel shall contain no ethanol or other
oxygenate. A detergent certified under this suboption is eligible to be
used at a conforming LAC only in gasoline that is premium grade,
contains no
[[Page 35369]]
oxygenate component, and is ultimately dispensed in the selected PADD.
(ii) PADD premium oxygenate-specific suboption. The requirements
for certification under this suboption are the same as those in
paragraph (b)(2) of this section, except that, pursuant to
Sec. 80.164(a)(2)(iii), the certification test fuel shall contain an
oxygenate compound other than ethanol. A detergent certified under this
suboption is eligible to be used at a conforming LAC only in gasoline
that is premium grade, contains no oxygenate component other than the
one present in the test fuel, and is ultimately dispensed in the
selected PADD.
(c) Fuel-specific certification. Except as provided in paragraph
(c)(3) of this section, to be certified under the fuel-specific
certification option, a candidate detergent must meet the deposit
control performance test requirements and standards specified in
Sec. 80.165 using test fuels that conform to the requirements of
Sec. 80.164(c).
(1) A detergent certified under this option is eligible to be used
at a conforming LAC only in the defined gasoline pool reported in the
certification letter pursuant to Sec. 80.161(b)(3).
(i) The gasoline pool may only include gasoline produced or
distributed from the facilities covered by the fuel survey which was
used to define the fuel-specific certification test fuels, pursuant to
Sec. 80.164(c)(1).
(ii) The gasoline pool must be kept segregated from any other
gasoline prior to blending with the detergent additive.
(iii) Depending on the oxygenate components added to the test fuel
pursuant to Sec. 80.164(a)(2), the gasoline pool may be inclusive of
all grades and all oxygenate blending characteristics (i.e., generic),
or may be restricted to non-oxygenated gasoline, or to gasoline
containing a specific oxygenate compound. The certification may also be
restricted to premium grade gasoline. Any such use restrictions must be
specified in the certification letter. Provisions in Secs. 80.168 and
80.171(a)(9) through (12) related to such use restrictions also apply.
(2) Detergent certification under this option entails special
initial and annual reporting requirements, specified under
Secs. 80.161(b)(3)(vi) and 80.164(c)(3), which necessitate that the
responsible party have control over and access to the segregated
gasoline pool for which the detergent is certified. For this reason,
the certifying party under this option is likely to be (but is not
required to be) a fuel manufacturer or detergent blender, rather than
the additive manufacturer.
(3) If a certifier demonstrates that the required test fuel
representing a segregated pool of gasoline meets the deposit control
performance standards specified in Sec. 80.165 in the absence of a
detergent additive, or using a detergent additive which has only PFID-
control activity, then this gasoline pool (and PFID detergent, if
applicable) can be certified accordingly under the fuel-specific
option.
(4) Gasoline properly additized with a detergent certified under
the fuel-specific option may be transferred or sold anywhere within the
United States and its territories (subject to approved state programs).
(d) CARB-Based Certification. A valid certification under section
2257 of Title 13, California Code of Regulations (CARB certification)
may be the basis for a certification under the following restrictions
and conditions:
(1) A detergent certified under this option may be used at the LAC
specified in the CARB certification only in gasoline that meets the
requirements of California Phase II reformulated gasoline (pursuant to
Title 13, Chapter 5, Article 1, Subarticle 2, California Code of
Regulations, Standards for Gasoline Sold Beginning March 1, 1996). The
grade(s) of California gasoline which may be so additized, and the
oxygenate(s) which may be present, are as specified in the CARB
certification for the detergent in question.
(2) The gasoline must be either: Additized in California; or sold
or dispensed to the ultimate consumer in California (or to parties who
sell or dispense to the ultimate consumer in California); or both
additized and ultimately dispensed in California.
(3) A certification under this option will continue to be valid
only as long as the CARB certification remains valid. The certifier
must cease selling or using a detergent immediately upon being notified
by CARB that the CARB certification for this detergent has been
invalidated, and must notify EPA within 7 days of receipt of this
notification.
Sec. 80.164 Certification test fuels.
(a) General requirements. This section provides specifications for
the test fuels required in conjunction with the certification options
described in Sec. 80.163. For each such certification option, the
associated test fuel must meet or exceed the levels of four basic fuel
parameters (aromatics, fuel sulfur, olefins, and T-90) prescribed here
and may also contain specified oxygenate compounds. In addition,
pursuant to paragraph (b)(3) of this section, some fuels must undergo
an IVD demonstration test before they are eligible to be used as test
fuels under this certification program. Test fuel characteristics must
be reported to EPA in the detergent certification letter required
pursuant to Sec. 80.161(b)(3).
(1) Quantitative specifications for the four basic fuel parameters,
provided in paragraphs (b) and (c) of this section, refer to the levels
of these parameters in the base gasoline prior to the addition of any
oxygenate. The levels of the basic fuel parameters must be measured in
accordance with applicable procedures in Sec. 80.46.
(2) Oxygenate components of certification test fuels must be of
fuel grade quality. The type and amount of oxygenate to be blended into
the test fuel (if any) shall be as follows:
(i) To certify a detergent for generic use (i.e., for use in
gasoline containing any oxygenate compound, as well as for use in
nonoxygenated gasoline), the finished test fuel shall contain ethanol
at 10 volume percent.
(ii) To certify a detergent specifically for use in nonoxygenated
gasoline, no oxygenate compounds shall be added to the test fuel.
(iii) To certify a detergent specifically for use in gasoline
blended with a specified oxygenate compound other than ethanol, the
specified oxygenate must be added to the test fuel in an amount such
that the finished fuel contains the oxygenate at the highest
concentration at which the specific oxygenate may be used in in-use
gasoline.
(3) No detergent-active substance other than the detergent additive
package undergoing testing may be added to a certification test fuel.
Typical nondetergent additives, such as antioxidants, corrosion
inhibitors, and metal deactivators, may be present in the test fuel at
the discretion of the additive certifier. In addition, any nondetergent
additives (other than oxygenate compounds) which are commonly blended
into gasoline and which are known or suspected to affect IVD or PFID
formation, or to reduce the ability of the detergent in question to
control such deposits, should be added to the test fuel for
certification testing.
(4) Certification test requirements may be satisfied for a
detergent additive using more than one batch of test fuel, provided
that each batch satisfies all applicable test fuel requirements under
this section.
(5) Unless otherwise required by this section, finished test fuels
must conform to the requirements for commercial gasoline described in
ASTM D 4814-95c, ``Standard Specification for Automotive Spark-Ignition
Engine
[[Page 35370]]
Fuel'', which is incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC
20460, or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC. Copies of this material may be
obtained from ASTM, 1916 Race St., Philadelphia, PA 19103.
(b) National and PADD certification test fuels.
(1) Test fuels for the national generic and premium certification
options must contain levels of the designated fuel parameters which
meet or exceed the applicable values in Table 1. Test fuels for the
PADD generic certification options must contain levels of the
designated fuel parameters which meet or exceed the applicable values
in Table 2. Test fuels for the PADD premium certification options must
contain levels of the designated fuel parameters which meet or exceed
the applicable values in Table 3. Oxygenate requirements for the
respective nonoxygenate and oxygenate-specific suboptions are specified
in paragraph (a)(2) of this section.
Table 1.--National Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
1. National Generic............. 0.034 339 11.4 31.1 10% Ethanol.
2. National Premium.............. 0.016 332 6.5 35.9
----------------------------------------------------------------------------------------------------------------
Table 2.--PADD-Specific Generic Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
PADD 1 Generic................... 0.039 343 15.4 32.1
PADD 2 Generic................... 0.034 338 10.3 29.3
PADD 3 Generic................... 0.032 343 12.9 29.8 10% Ethanol.
PADD 4 Generic................... 0.050 326 10.0 27.1
PADD 5 Generic................... 0.021 337 7.6 34.5
----------------------------------------------------------------------------------------------------------------
Table 3.--PADD-Specific Premium-Grade Certification Test Fuels
----------------------------------------------------------------------------------------------------------------
Required minimum fuel parameter values
------------------------------------------------------------------------------
Certification option Sulfur Olefins Aromatics
(weight %) T-90 (F) (volume %) (volume %) Oxygenate (volume %)
----------------------------------------------------------------------------------------------------------------
PADD 1 Premium................... 0.018 332 9.2 38.6
PADD 2 Premium................... 0.014 333 6.0 34.3
PADD 3 Premium................... 0.015 334 6.0 34.6 10% Ethanol.
PADD 4 Premium................... 0.040 319 6.0 22.3
PADD 5 Premium................... 0.011 332 4.3 36.7
----------------------------------------------------------------------------------------------------------------
(2) National and PADD certification test fuels must either be
formulated to specification from normal refinery blend stocks, or drawn
from finished gasoline supplies. The source of such samples must be
normally-operating gasoline production or distribution facilities
located in the U.S. Samples must not be drawn from a segregated
gasoline pool that is or will be covered by a fuel-specific
certification under Sec. 80.163(c) on the date when the certification
information under this option is submitted to EPA.
(3) To be eligible for use in detergent additive certification
testing, in addition to the specifications above, national and PADD
test fuels which are specially formulated from refinery blend stocks
must themselves undergo testing to demonstrate their deposit-forming
tendency. For this purpose, the unadditized, nonoxygenated test fuel
must be subjected to the IVD control test procedure described in
Sec. 80.165(b). At the discretion of the tester, the duration of the
demonstration test may be less than 10,000 miles, provided the results
satisfy the standard of this paragraph. In order to qualify for use in
certification testing, the formulated fuel's test results must meet or
exceed the values shown in Table 4 for the relevant certification
option. If the demonstration test results do not meet these criteria,
then the formulated fuel may not be used for detergent certification
testing.
Table 4.--IVD Demonstration Test Criteria
----------------------------------------------------------------------------------------------------------------
Minimum required deposit level in IVD demonstration test (mg/valve,
average)
Certification option -----------------------------------------------------------------------------
National PADD 1 PADD 2 PADD 3 PADD 4 PADD 5
----------------------------------------------------------------------------------------------------------------
Generic........................... 290 290 260 290 260 260
[[Page 35371]]
Premium........................... 260 260 235 260 235 235
----------------------------------------------------------------------------------------------------------------
(c) Fuel-specific certification test fuels. (1) Test fuels required
for fuel-specific certification must contain levels of each of the four
basic fuel parameters (aromatics, olefins, T-90, and fuel sulfur) at no
less than their respective 65th percentile values in the segregated
gasoline pool for which the detergent certification is sought in
accordance with Sec. 80.163(c). These values must be determined by the
certifier as follows:
(i) At least once monthly for at least one complete year prior to
the certification, the certifier must measure the levels of the
required parameters in representative fuel samples contributed to the
segregated gasoline pool by each participating refinery, terminal, or
other fuel production or distribution facility. The fuel parameters
must be measured in accordance with the test procedures in Sec. 80.46.
If the applicability of the fuel-specific certification is to be
limited to premium gasoline, then the required fuel compositional data
must be collected only from samples of premium gasoline.
(ii) The fuel composition survey results, weighted according to the
percentage of gasoline contributed to the segregated gasoline pool from
each participating facility, shall be used to construct a percentile
distribution of the measured values for each of the fuel parameters.
(iii) Data from more than one year may be used to construct the
required statistical distribution provided that only the total data
from complete consecutive years is used and that all survey data must
have been collected within three years of the date the certification
information is submitted to EPA.
(iv) At the discretion of the certifier, other fuel parameters may
be used to define the certification test fuels in addition to the four
required parameters. To be taken into account by EPA in case of
confirmatory testing pursuant to Sec. 80.167, such additional
parameters must be surveyed and analyzed according to the same
requirements applicable to the four standard parameters. In addition,
any optional parameters must be measured using test procedures which
conform to reasonable and customary standards of repeatability and
reproducibility, and reasonable and customary limits of detection and
accuracy for the type of test procedure or analytic procedure in
question.
(v) Using the percentile distributions calculated from the survey
data for the four required parameters and any additional discretionary
parameters, the 65th percentile value for each such parameter shall be
determined. Prior to the addition of any oxygenate compound, the fuel-
specific certification test fuel shall contain each specified parameter
at a level or concentration no less than this 65th percentile value.
Test fuel oxygenate requirements for generic, nonoxygenate, and
oxygenate-specific certification suboptions are specified in paragraph
(a)(2) of this section.
(2) Fuel-specific certification test fuels must either be
formulated to specification from the same refinery blend stocks which
are normally used to blend the gasolines included in the subject
gasoline pool, or drawn from the finished fuel supplies which
contribute to this pool of gasoline. Fuel-specific certification test
fuels need not undergo an IVD demonstration test prior to use in
certification testing.
(3) The certifier must submit an annual report to EPA within 30
days of the anniversary of the initial certification effective date.
Failure to submit the annual report by the required date will
invalidate the fuel-specific certification and may subject the
certifier to liability and penalties under Secs. 80.169 and 80.172. The
purpose of the annual report is to update the information on the
composition of the segregated gasoline pool that was characterized by
the initial fuel survey.
(i) For this purpose, the same fuel survey and statistical analysis
requirements that were conducted pursuant to paragraphs (c)(1)(i),(ii),
and (iv) of this section must be repeated, using data for the most
current twelve-month period from each of the production/distribution
facilities that contributed to the original fuel survey.
(ii) The annual report must present the percentile distributions
for each fuel parameter as determined from the new survey data and, for
each measured fuel parameter, must compare the newly determined 50th
percentile value with the 60th percentile value for that parameter as
determined in the original fuel survey.
(iii) If the new 50th percentile level for any fuel parameter is
greater than or equal to the 60th percentile level reported in the
initial certification, then the fuel-specific certification is no
longer valid. In such instance, the certifier must immediately
discontinue the sale and use of the subject detergent under the
conditions of the fuel-specific certification and must immediately
notify any downstream customers/recipients of the subject detergent
that the certification is no longer valid and that their use of the
detergent must discontinue within seven days. To avoid liability and
penalties under Secs. 80.169 and 80.172, the certifier must take these
remedial steps within 45 days of the anniversary of the original fuel-
specific certification. Downstream customers/recipients must
discontinue usage of the detergent within seven days of receipt of
notification of the detergent's invalidity to avoid such liability.
(4) The fuel composition survey results which support the original
test fuel specifications and the annual statistical analyses, along
with related documentation on test methods and statistical procedures,
shall be retained by the certifier for a period of at least five years,
and shall be made available to EPA upon request.
Sec. 80.165 Certification test procedures and standards.
This section specifies the deposit control test requirements and
performance standards which must be met in order to certify detergent
additives for use in unleaded gasoline, pursuant to
Sec. 80.161(b)(1)(ii)(A)(2). These standards must be met in the context
of the specific test procedures identified in paragraphs (a) and (b) of
this section, except as provided in paragraph (c) of this section. In
any case, the testing must be conducted and the performance standards
met when the subject detergent additive is mixed in a test fuel meeting
all relevant requirements of Sec. 80.164, including the deposit-forming
tendency demonstration specified in Sec. 80.164(b)(3), if applicable.
Complete test documentation must be submitted
[[Page 35372]]
by the certifying party within 30 days of receipt of a written request
from EPA for such records.
(a) Fuel injector deposit control testing. (1) The required test
fuel must produce no more than 5% flow restriction in any one injector
when tested in accordance with ASTM D 5598-94, ``Standard Test Method
for Evaluating Unleaded Automotive Spark-Ignition Engine Fuel for
Electronic Port Fuel Injector Fouling,'' 1994, which is incorporated by
reference. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be inspected at U.S. EPA, OAR, 401 M Street,
Southwest, Washington, DC 20460, or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Copies of this material may be obtained from ASTM, 1916 Race St.,
Philadelphia, PA 19103.
(2) At the option of the certifier, fuel injector flow may be
measured at intervals during the 10,000 mile test cycle described in
ASTM D 5598-94, in addition to the flow measurements required at the
completion of the test cycle, but not more than every 1,000 miles.
(b) Intake valve deposit control testing. The required test fuel
must produce the accumulation of less than 100 mg of intake valve
deposits on average when tested in accordance with ASTM D 5500-94,
``Standard Test Method for Vehicle Evaluation of Unleaded Automotive
Spark-Ignition Engine Fuel for Intake Valve Deposit Formation,'' 1994,
which is incorporated by reference. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be inspected at U.S. EPA,
OAR, 401 M Street, Southwest, Washington, DC 20460, or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC. Copies of this material may be obtained from ASTM, 1916
Race St., Philadelphia, PA 19103.
(c) If conducted using test fuels meeting all relevant requirements
of Sec. 80.164, and completed prior to September 3, 1996, then the PFID
and IVD control test procedures required for detergent certification in
California (specified in section 2257 of Title 13, California Code of
Regulations) will also be considered acceptable. California Air
Resources Board, ``Test Method for Evaluating Port Fuel Injector (PFI)
Deposits in Vehicle Engines'', March 1, 1991, and California Air
Resources Board, ``BMW--10,000 Miles Intake Valve Test Procedure'',
March 1, 1991, are incorporated by reference. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected at U.S. EPA, OAR, 401 M Street, Southwest, Washington, DC
20460, or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC. Copies of this material may be
obtained from the California Air Resource Board, Stationary Source
Division, 2020 L Street, PO Box 2815, Sacramento, CA, 95814.
Sec. 80.166 Carburetor deposit control performance test and test fuel
guidelines.
EPA will use the guidelines in this section to evaluate the
adequacy of carburetor deposit control test data, used to support the
minimum concentration recommended for detergents used in leaded
gasoline pursuant to Sec. 80.161(b)(1)(ii)(B).
(a) Carburetor Deposit Control Test Procedure and Performance
Standard Guidelines. For demonstration of carburetor deposit control
performance, any generally accepted vehicle, engine, or bench test
procedure and associated performance standard for carburetor deposit
control will be considered adequate. Port and throttle body fuel
injector deposit control test data will also be considered to be
adequate demonstration of an additive's ability to control carburetor
deposits. Examples of acceptable test procedures for demonstration of
carburetor deposit control, in addition to the fuel injector test
procedure listed in Sec. 80.165(a), are contained in the following
references:
(1) ``Test Method for Evaluating Port Fuel Injector (PFI) Deposits
in Vehicle Engines'', March 1, 1991, Section 2257, Title 13, California
Code of Regulations.
(2) ``A Vehicle Test Technique for Studying Port Fuel Injector
Deposits--A Coordinating Research Council Program'', Robert Tupa et
al., SAE Technical paper No. 890213, 1989.
(3) ``The Effects of Fuel Composition and Additives on Multiport
Fuel Injector Deposits'', Jack Benson et al., SAE Technical Paper
Series No. 861533, 1986.
(4) ``Injector Deposits--The Tip of Intake System Deposit
Problems'', Brian Taneguchi, et al., SAE Technical Paper Series No.
861534, 1986.
(5) ``Fuel Injector, Intake Valve, and Carburetor Detergency
Performance of Gasoline Additives'', C.H. Jewitt et al., SAE Technical
Paper No. 872114, 1987.
(6) ``Carburetor Cleanliness Test Procedure, State-of-the-Art
Summary, Report: 1973-1981'', Coordinating Research Council, CRC Report
No. 529, Coordinating Research Council Inc. (CRC), 219 perimeter Center
Parking, Atlanta, Georgia, 30346.
(b) Carburetor Deposit Control Test Fuel Guidelines. (1) The
gasoline used in the tests described in paragraph (a) of this section
must contain the detergent-active components of the subject detergent
additive package in an amount which corresponds to the minimum
recommended concentration recorded in the respective detergent
registration, or less than this amount.
(2) The test fuel must not contain any detergent-active components
other than those recorded in the subject detergent certification.
(3) The composition of the test fuel used in carburetor deposit
control testing, conducted to support the claimed effectiveness of
detergents used in leaded gasoline, should be reasonably typical of in-
use gasoline in its tendency to form carburetor deposits (or more
severe than typical in-use fuels) as defined by the olefin and sulfur
content. A test fuel conforming to these compositional guidelines may
be sampled directly from finished gasolines or may be blended to
specification using typical refinery blend stocks. Test data using
leaded fuels is preferred for this purpose, but data collected using
unleaded fuels may also be acceptable provided that some correlation
with additive performance in leaded fuels is available.
Sec. 80.167 Confirmatory testing.
EPA may test a detergent to confirm that the required performance
levels are met. Based on the findings of this confirmatory testing, a
detergent certification may be denied or revoked under the provisions
of Sec. 80.161(e).
(a) Confirmatory testing conducted to evaluate the validity of
detergent certifications under the national, PADD, or fuel-specific
options will generally entail a single vehicle test using the
procedures detailed in Sec. 80.165. The test fuel(s) used in conducting
confirmatory certification testing will contain the specified fuel
parameters at or below the minimum levels specified in Sec. 80.164, and
will otherwise conform to the applicable certification test fuel
specifications therein.
(b) Confirmatory certification testing conducted to evaluate the
validity of CARB-based detergent certifications will use the subject
detergent in test fuel(s) containing the relevant fuel parameters at
levels no greater than the maximum levels for which the CARB
certification was granted. The test procedures will be conducted
pursuant to the procedures
[[Page 35373]]
specified under section 2257 of Title 13, California Code of
Regulations.
(c) Confirmatory testing conducted to evaluate the validity of
registration and certification information specific to detergent use in
leaded gasoline will use the subject detergent in a test fuel
containing the test fuel parameters at levels no greater than those
prescribed in Sec. 80.164. EPA will make all reasonable efforts to use
the same test procedure for confirmatory testing purposes as was used
by the certifier in conducting deposit control performance testing.
(d) When EPA decides to conduct confirmatory testing on a fuel or
additive which is not readily available in the open market, EPA may
request that the detergent certifier and/or manufacturer of such fuel
or additive furnish a sample in the needed quantity. If testing is
conducted to evaluate the validity of a detergent certification under
the fuel-specific option, the detergent blender must supply EPA with
test fuel, or with blend stocks with which to formulate such test fuel,
in sufficient quantity to conduct the specified deposit control
performance testing. The fuel or additive manufacturer shall comply
with a sample request made pursuant to this paragraph within 30 days of
receipt of the request.
Sec. 80.168 Detergent certification program controls and prohibitions.
(a)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of gasoline to
the ultimate consumer for use in motor vehicles or in any off-road
engines (except as provided in Sec. 80.173), or to a gasoline retailer
or wholesale purchaser-consumer, and no person shall detergent-additize
gasoline, unless such gasoline is additized in conformity with the
requirements of Sec. 80.161. No person shall cause the presence of any
gasoline in the gasoline distribution system unless such gasoline is
additized in conformity with the requirements of Sec. 80.161.
(2) Gasoline has been additized in conformity with the requirements
of Sec. 80.161 when the detergent component satisfies the requirements
of Sec. 80.161 and when:
(i) The gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
certified in accordance with this subpart, and in accordance with at
least the minimum concentration specifications of that detergent as
certified or as otherwise provided under Sec. 80.161(d); or
(ii) The gasoline is composed of two or more commingled gasolines
and each component gasoline has been additized in conformity with the
detergent composition and purpose-in-use specifications of a detergent
certified in accordance with this subpart, and in accordance with at
least the minimum concentration specifications of that detergent as
certified or as otherwise provided under Sec. 80.161(d); or
(iii) The gasoline is composed of a gasoline commingled with a
post-refinery component (PRC), and both of these components have been
additized in conformity with the detergent composition and use
specifications of a detergent certified in accordance with this
subpart, and in accordance with at least the minimum concentration
specifications of that detergent as certified or as otherwise provided
under Sec. 80.161(d).
(b) No person shall blend detergent into gasoline or PRC unless
such person complies with the volumetric additive reconciliation
requirements of Sec. 80.170.
(c) No person shall sell, offer for sale, dispense, supply, offer
for supply, store, transport, or cause the transportation of any
gasoline, detergent, or detergent-additized PRC, unless the product
transfer document for the gasoline, detergent or detergent-additized
PRC complies with the requirements of Sec. 80.171.
(d) No person shall refine, import, manufacture, sell, offer for
sale, dispense, supply, offer for supply, store, transport, or cause
the transportation of any detergent that is to be used as a component
of detergent-additized gasoline or detergent-additized PRC unless such
detergent conforms with the composition specifications of a detergent
certified in accordance with this subpart and the detergent otherwise
complies with the requirements of Sec. 80.161. No person shall cause
the presence of any detergent in the detergent, PRC, or gasoline
distribution systems unless such detergent complies with the
requirements of Sec. 80.161.
(e)(1) No person shall sell, offer for sale, dispense, supply,
offer for supply, transport, or cause the transportation of detergent-
additized PRC unless the PRC has been additized in conformity with the
requirements of Sec. 80.161. No person shall cause the presence in the
PRC or gasoline distribution systems of any detergent-additized PRC
that fails to conform to the requirements of Sec. 80.161.
(2) PRC has been additized in conformity with the requirements of
Sec. 80.161 when the detergent component satisfies the requirements of
Sec. 80.161 and when:
(i) The PRC has been additized in accordance with the detergent
composition and use specifications of a detergent certified in
accordance with this subpart and in conformity with at least the
minimum concentration specifications of that detergent as certified or
as otherwise provided under Sec. 80.161(d), or
(ii) The PRC is composed of two or more commingled PRCs, and each
component has been additized in accordance with the detergent
composition and use specifications of a detergent certified in
accordance with this subpart, and in conformity with at least the
minimum concentration specifications of that detergent as certified or
as otherwise provided under Sec. 80.161(d).
Sec. 80.169 Liability for violations of the detergent certification
program controls and prohibitions.
(a) Persons Liable--(1) Gasoline non-conformity. Where gasoline
contained in any storage tank at any facility owned, leased, operated,
controlled or supervised by any gasoline refiner, importer, carrier,
distributor, reseller, retailer, wholesale purchaser-consumer,
oxygenate blender, or detergent blender, is found in violation of any
of the prohibitions specified in Sec. 80.168(a), the following persons
shall be deemed in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender, or
detergent blender, who owns, leases, operates, controls or supervises
the facility (including, but not limited to, a truck or individual
storage tank) where the violation is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who refined, imported,
manufactured, sold, offered for sale, dispensed, supplied, offered for
supply, stored, detergent additized, transported, or caused the
transportation of the detergent-additized gasoline (or the base
gasoline component, the detergent component, or the detergent-additized
post-refinery component of the gasoline) that is in violation, and each
such party that caused the gasoline that is in violation to be present
in the gasoline distribution system; and
(iii) Each gasoline carrier who dispensed, supplied, stored, or
transported any gasoline in the storage tank containing gasoline found
to be in violation, and each detergent carrier who dispensed, supplied,
stored, or transported the detergent component of
[[Page 35374]]
any PRC or gasoline in the storage tank containing gasoline found to be
in violation, provided that EPA demonstrates, by reasonably specific
showings by direct or circumstantial evidence, that the gasoline or
detergent carrier caused the violation.
(2) Post-refinery component non-conformity. Where detergent-
additized PRC contained in any storage tank at any facility owned,
leased, operated, controlled or supervised by any gasoline refiner,
importer, carrier, distributor, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer, carrier,
distributor, or blender, is found in violation of the prohibitions
specified in Sec. 80.168(e), the following persons shall be deemed in
violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale-purchaser consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, detergent additized,
transported, or caused the transportation of the detergent-additized
PRC (or the detergent component of the PRC) that is in violation, and
each such party that caused the PRC that is in violation to be present
in the PRC or gasoline distribution systems; and
(iii) Each carrier who dispensed, supplied, stored, or transported
any detergent-additized PRC in the storage tank containing PRC that is
in violation, and each detergent carrier who dispensed, supplied,
stored, or transported the detergent component of any detergent-
additized PRC which is in the storage tank containing detergent-
additized PRC found to be in violation, provided that EPA demonstrates
by reasonably specific showings by direct or circumstantial evidence,
that the gasoline or detergent carrier caused the violation.
(3) Detergent non-conformity. Where the detergent (prior to
additization) contained in any storage tank or container found at any
facility owned, leased, operated, controlled or supervised by any
gasoline refiner, importer, carrier, distributor, reseller, retailer,
wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, carrier, distributor, or blender, is found in violation
of the prohibitions specified in Sec. 80.168(d), the following persons
shall be deemed in violation:
(i) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, who owns,
leases, operates, controls or supervises the facility (including, but
not limited to, a truck or individual storage tank) where the violation
is found;
(ii) Each gasoline refiner, importer, distributor, reseller,
retailer, wholesale purchaser-consumer, oxygenate blender, detergent
manufacturer, distributor, or blender, who sold, offered for sale,
dispensed, supplied, offered for supply, stored, transported, or caused
the transportation of the detergent that is in violation, and each such
party that caused the detergent that is in violation to be present in
the detergent, gasoline, or PRC distribution systems; and
(iii) Each gasoline or detergent carrier who dispensed, supplied,
stored, or transported any detergent which is in the storage tank or
container containing detergent found to be in violation, provided that
EPA demonstrates, by reasonably specific showings by direct or
circumstantial evidence, that the gasoline or detergent carrier caused
the violation.
(4) Volumetric additive reconciliation. Where a violation of the
volumetric additive reconciliation requirements established by
Sec. 80.168(b) has occurred, the following persons shall be deemed in
violation:
(i) Each detergent blender who owns, leases, operates, controls or
supervises the facility (including, but not limited to, a truck or
individual storage tank) where the violation has occurred; and
(ii) Each gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, or oxygenate blender,
and each detergent manufacturer, carrier, distributor, or blender, who
refined, imported, manufactured, sold, offered for sale, dispensed,
supplied, offered for supply, stored, transported, or caused the
transportation of the detergent-additized gasoline, the base gasoline
component, the detergent component, or the detergent-additized PRC of
the gasoline that is in violation, provided that EPA demonstrates, by
reasonably specific showings by direct or circumstantial evidence, that
such person caused the violation.
(5) Product transfer document. Where a violation of Sec. 80.168(c)
is found at a facility owned, leased, operated, controlled, or
supervised by any gasoline refiner, importer, carrier, distributor,
reseller, retailer, wholesale purchaser-consumer, oxygenate blender,
detergent manufacturer, carrier, distributor, or blender, the following
persons shall be deemed in violation: each gasoline refiner, importer,
carrier, distributor, reseller, retailer, wholesale purchaser-consumer,
oxygenate blender, detergent manufacturer, carrier, distributor, or
blender, who owns, leases, operates, control or supervises the facility
(including, but not limited to, a truck or individual storage tank)
where the violation is found.
(b) Branded Refiner Vicarious Liability. Where any violation of the
prohibitions specified in Sec. 80.168 has occurred, with the exception
of violations of Sec. 80.168(c), a refiner will also be deemed liable
for violations occurring at a facility operating under such refiner's
corporate, trade, or brand name or that of any of its marketing
subsidiaries. For purposes of this section, the word facility includes,
but is not limited to, a truck or individual storage tank.
(c) Defenses. (1) In any case in which a gasoline refiner,
importer, distributor, carrier, reseller, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent distributor, carrier,
or blender, is in violation of any of the prohibitions of Sec. 80.168,
pursuant to paragraph (a) or (b) of this section as applicable, the
regulated party shall be deemed not in violation if it can demonstrate:
(i) That the violation was not caused by the regulated party or its
employee or agent (unless otherwise provided in this paragraph (c));
(ii) That product transfer documents account for the gasoline,
detergent, or detergent-additized PRC in violation and indicate that
the gasoline, detergent, or detergent-additized PRC satisfied relevant
requirements when it left the party's control; and
(iii) That the party has fulfilled the requirements of paragraphs
(c) (2) or (3) of this section, as applicable.
(2) Branded refiner. Where a branded refiner is in violation of any
of the prohibitions of Sec. 80.168 as a result of violations occurring
at a facility (including, but not limited to, a truck or individual
storage tank) which is operating under the corporate, trade or brand
name of a refiner or that of any of its marketing subsidiaries, the
refiner shall be deemed not in violation if it can demonstrate, in
addition to the defense requirements stated in paragraph (c)(1) of this
section, that the violation was caused by:
(i) An act in violation of law (other than these regulations), or
an act of sabotage or vandalism, whether or not
[[Page 35375]]
such acts are violations of law in the jurisdiction where the violation
of the prohibitions of Sec. 80.168 occurred; or
(ii) The action of any gasoline refiner, importer, reseller,
distributor, oxygenate blender, detergent manufacturer, distributor,
blender, or retailer or wholesale purchaser-consumer supplied by any of
these persons, in violation of a contractual undertaking imposed by the
refiner designed to prevent such action, and despite the implementation
of an oversight program, including, but not limited to, periodic review
of product transfer documents by the refiner to ensure compliance with
such contractual obligation; or
(iii) The action of any gasoline or detergent carrier, or other
gasoline or detergent distributor not subject to a contract with the
refiner but engaged by the refiner for transportation of gasoline, PRC,
or detergent, to a gasoline or detergent distributor, oxygenate
blender, detergent blender, gasoline retailer or wholesale purchaser
consumer, despite specification or inspection of procedures or
equipment by the refiner which are reasonably calculated to prevent
such action.
(iv) In this paragraph (c)(2), to show that the violation ``was
caused'' by any of the specified actions, the party must demonstrate by
reasonably specific showings, by direct or circumstantial evidence,
that the violation was caused or must have been caused by another.
(3) Detergent blender. In any case in which a detergent blender is
liable for violating any of the prohibitions of Sec. 80.168, the
detergent blender shall not be deemed in violation if it can
demonstrate, in addition to the defense requirements stated in
paragraph (c)(1) of this section, the following:
(i) That it obtained or supplied, as appropriate, prior to the
detergent blending, accurate written instructions from the detergent
manufacturer or other party with knowledge of such instructions,
specifying the appropriate LAC for the detergent, as specified in
Sec. 80.161(b)(1)(ii), together with any use restrictions which pertain
to this LAC pursuant to the detergent's certification; and
(ii) That it has implemented a quality assurance program that
includes, but is not limited to, a periodic review of its supporting
product transfer and volume measurement documents to confirm the
correctness of its product transfer and volumetric additive
reconciliation documents created for all products it additized.
(4) Detergent manufacturer.-- (i) Presumptive Liability Affirmative
Defense. Notwithstanding the provisions of paragraph (c)(1) of this
section, in any case in which a detergent manufacturer is liable for
violating any of the prohibitions of Sec. 80.168, the detergent
manufacturer shall be deemed not in violation if it can demonstrate
each of the following:
(A) Product transfer documents which account for the detergent
component of the product in violation and which indicate that such
detergent satisfied all relevant requirements when it left the
detergent manufacturer's control.
(B) Written blending instructions which, pursuant to
Sec. 80.161(c), were supplied by the detergent manufacturer to its
customer who purchased or obtained from the manufacturer the detergent
component of the product determined to be in violation. The written
blending instructions must have been supplied by the manufacturer prior
to the customer's use or sale of the detergent. The instructions must
accurately specify both the appropriate LAC for the detergent, pursuant
to Sec. 80.161(b)(1)(ii), plus any use restrictions which may pertain
to this LAC pursuant to the detergent's certification.
(C) If the detergent batch used in the noncomplying product was
produced less than one year before the manufacturer was notified by EPA
of the possible violation, then the manufacturer must provide FTIR test
results for the batch in question.
(1) The FTIR analysis may have been conducted on the subject
detergent batch at the time it was manufactured, or may be conducted on
a sample of that batch which the manufacturer retained for such purpose
at the time the batch was manufactured.
(2) To establish that, when it left the manufacturer's control, the
detergent component of the noncomplying product was in conformity with
the chemical composition and concentration specifications reported
pursuant to Sec. 80.161(b), the FTIR test results for the detergent
batch used in the noncomplying product must, in EPA's judgment, be
consistent with the FTIR results submitted at the time of registration
pursuant to Sec. 80.162(d).
(D) If the detergent batch used in the noncomplying product was
produced more than one year prior to the manufacturer's notification by
EPA of the possible violation, then the manufacturer must provide
either:
(1) FTIR test results for the batch in question as specified in the
preceding paragraph (c)(4)(i)(C) of this Sec. 80.169(c); or
(2) The following materials:
(i) Documentation for the batch in question, showing that its
measured viscosity, density, and basic nitrogen content, or any other
such physical parameter(s) which EPA may have approved for monitoring
production quality control, were within the acceptable range of
production values specified in the certification pursuant to
Sec. 80.162(e); and
(ii) If the detergent registration identifies polymeric
component(s) of the detergent package as the product(s) of other
chemical reactants, documentation that the reagents used to synthesize
the detergent batch in question were the same as those specified in the
registration and that they met the manufacturer's normal acceptance
criteria reported pursuant to Sec. 80.162(b)(1).
(ii) Detergent manufacturer causation liability. In any case in
which a detergent manufacturer is liable for a violation of
Sec. 80.168, and the manufacturer establishes an affirmative defense to
such liability pursuant to Sec. 80.169(c)(4)(i), the detergent
manufacturer will nonetheless be deemed liable for the violation of
Sec. 80.168 if EPA can demonstrate, by reasonably specific showings by
direct or circumstantial evidence, that the detergent manufacturer
caused the violation.
(5) Defense against liability where more than one party may be
liable for VAR violations. In any case in which a party is
presumptively or vicariously liable for a violation of Sec. 80.170,
except for the VAR record requirements pursuant to Sec. 80.170(g), such
party shall not be deemed liable if it can establish the following:
(i) Prior to the violation it had entered into a written contract
with another potentially liable detergent blender party (``the assuming
party''), under which that other party assumed legal responsibility for
fulfilling the VAR requirement that had been violated;
(ii) The contract included reasonable oversight provision to ensure
that the assuming party fulfilled its VAR responsibilities (including,
but not limited to, periodic review of VAR records) and the oversight
provision was actually implemented by the party raising the defense;
(iii) The assuming party is fiscally sound and able to pay its
penalty for the VAR violation; and
(iv) The employees or agents of the party raising the defense did
not cause the violation.
(6) Defense to liability for gasoline non-conformity violations
caused solely by the addition of misadditized ethanol or other PRC to
the gasoline. In any case in which a party is presumptively or
vicariously liable for a gasoline non-conformity violation of
Sec. 80.168(a)
[[Page 35376]]
caused solely by another party's addition of misadditized ethanol or
other PRC to the gasoline, the former party shall not be deemed liable
for the violation, provided that it can establish that it has fulfilled
the defense requirements of paragraphs (c)(1) (i) and (ii) of this
section.
(7) Detergent tank transitioning defenses. The commingling of two
detergents in the same detergent storage tank will not be deemed to
violate or cause violations of any of the provisions of this subpart,
provided the following conditions are met:
(i) The commingling must occur during a legitimate detergent
transitioning event, i.e., a shift from the use of one detergent to
another through the delivery of the new detergent into the same tank
that contains the original detergent; and
(ii) Any use restrictions applicable to the new detergent's
certification also apply to the combined detergents; and
(iii) The commingling event must be documented, either on the VAR
formula record or on attached supporting records; and
(iv) Notwithstanding any contrary provisions in Sec. 80.170, a VAR
formula record must be created for the combined detergents. The VAR
compliance period must begin no later than the time of the commingling
event. However, at the blender's option, the compliance period may
begin earlier, thus including use of the uncombined original detergent
within the same period, provided that the 31-day limitation pursuant to
Sec. 80.170(a)(6) is not exceeded; and
(v) The VAR formula record must also satisfy the requirements in
one of the following paragraphs (c)(7)(v) (A) through (C) of this
section, whichever applies to the commingling event. If neither
paragraph (c)(7)(v) (A) nor (B) of this section initially applies, then
the blender may drain and subsequently redeliver the original detergent
into the tank in restricted amounts, in order to meet the conditions of
paragraph (c)(7)(v) (A) or (B) of this section. Otherwise, the blender
must comply with paragraph (c)(7)(v)(C) of this section.
(A) If both detergents have the same LAC, and the original
detergent accounts for no more than 20 percent of the tank's total
delivered volume after addition of the new detergent, then the VAR
formula record is required to identify only the use of the new
detergent.
(B) If the two detergents have different LACs and the original
detergent accounts for 10 percent or less of the tank's total delivered
volume after addition of the new detergent, then the VAR formula record
is required to identify only the use of the new detergent, and must
attain the LAC of the new detergent. If the original detergent's LAC is
greater than that of the new detergent, then the compliance period may
begin earlier than the date of the commingling event (pursuant to
paragraph (c)(7)(iv) of this section) only if the original detergent
does not exceed 10 percent of the total detergent used during the
compliance period.
(C) If neither of the preceding paragraphs (c)(7)(v) (A) or (B) of
this section applies, then the VAR formula record must identify both of
the commingled detergents, and must use and attain the higher LAC of
the two detergents. Once the commingled detergent has been depleted by
an amount equal to the volume of the original detergent in the tank at
the time the new detergent was added, subsequent VAR formula records
must identify and use the LAC of only the new detergent.
(8) Transition from noncertified to certified detergent.
Notwithstanding the prohibitions in Secs. 80.161(a)(3) and 80.168,
after June 30, 1997, the addition to gasoline or PRC of a detergent
which has not been certified pursuant to Sec. 80.161 shall not be
deemed to violate or cause violations of provisions of this subpart,
provided that all of the following conditions are met:
(i) The detergent was received by the detergent blender prior to
July 1, 1997 and is used prior to January 1, 1998. Documentation which
supports these dates must be maintained for at least five years and
must be available for EPA's inspection upon request;
(ii) The detergent is added to gasoline or PRC only in combination
with a certified detergent and, at any one time, accounts for no more
than 10 percent of the detergent tank's delivered volume;
(iii) The total volume of detergent added to the gasoline or PRC is
sufficient to attain the LAC of the certified detergent; and
(iv) Use restrictions associated with the certified detergent are
adhered to.
(g) Procedures for curing use restrictions. In the case of a fuel
product which has been additized with a detergent under the conditions
of a use-restricted certification (pursuant to Sec. 80.163), the use
restriction can be negated (``cured'') by application of the procedures
in this paragraph (g). A party shall not be liable for violations of
Sec. 80.168(a) or (e) caused solely by the additization or subsequent
use of gasoline or PRC in violation of such use restriction, provided
that the following steps and conditions are applied before EPA has
identified the nonconformity and prior to the sale or transfer of
nonconforming product to the ultimate consumer:
(i) Additional detergent must be added in sufficient quantity to
provide effective deposit control, taking into account both the amount
of detergent previously added and the final anticipated volume and
composition of the subject fuel product.
(ii) The additional detergent may be either the original detergent
or a different detergent, so long as the additional detergent has been
separately certified both for use with the subject fuel product and for
use with the type of fuel product associated with the restriction which
the party wishes to negate by the curing procedure. Detergents which
have not been separately certified for both types of fuel products are
not eligible to be used for this curing procedure.
(iii) If a fuel product has been detergent additized under the
conditions of a use-restricted certification which would preclude the
addition of an oxygenate or other PRC, then such oxygenate or other PRC
may nevertheless be added to that fuel product under this curing
procedure, provided that additional eligible detergent is added, in an
amount which equals or exceeds the number of gallons (DA) derived
from the following equation:
Additional Detergent Volume=DA=Vp(LAC2-LAC1) +
V(1-p)LAC2
Where:
V=Final volume of fuel product (in gallons)
p=Fraction of final fuel product composed of the original (uncombined)
fuel product
LAC2=Detergent's LAC certified for the final combined fuel product
(in gallons of detergent per 1,000 gallons of fuel product)
LAC1=Detergent's LAC certified for the original (uncombined) fuel
product (in gallons of detergent per 1,000 gallons of fuel product)
(iv) In other instances in which gasoline or PRC has been additized
in violation of a detergent use restriction, and no additional fuel
components are to be added, such use restriction can be cured by the
addition of eligible detergent in an amount which equals or exceeds the
number of gallons (DA) derived from the following equation, which is a
simplified version of the previous equation:
Additional Detergent Volume=DA=V(LAC2-LAC1)
Where:
[[Page 35377]]
V=Volume of fuel product (in gallons) to be cured of the use
restriction
LAC2=Detergent's LAC certified for the fuel product without the
use restriction (in gallons of detergent per 1,000 gallons of fuel
product)
LAC1=Detergent's LAC certified for the fuel product with the use
restriction to be cured (in gallons of detergent per 1,000 gallons of
fuel product)
(v) In all such instances, a curing VAR must be created and
maintained, which documents the use of the appropriate equation as
specified above, and otherwise complies with the requirements of
Sec. 80.170(f)(6).
Sec. 80.170 Volumetric additive reconciliation (VAR), equipment
calibration, and recordkeeping requirements.
This section contains requirements for automated detergent blending
facilities and hand-blending detergent facilities. All gasoline and all
PRC intended for use in gasoline must be additized unless otherwise
noted in supporting VAR records, and must be accounted for in VAR
records. The VAR reconciliation standard is attained under this section
when the actual concentration of detergent used per VAR formula record
equals or exceeds the applicable LAC certified for that detergent
pursuant to Sec. 80.161(b)(3)(ix) or, if appropriate, Sec. 80.161(d).
If a given detergent package has been certified under more than one
certification option pursuant to Sec. 80.163, then a separate VAR
formula record must be created for gasoline or PRC additized on the
basis of each certification and its respective LAC. In such cases, the
amount of the detergent used under different certification options must
be accurately and separately measured, either through the use of a
separate storage tank, a separate meter, or some other measurement
system that is able to accurately distinguish its use. Recorded volumes
of gasoline, detergent, and PRC must be expressed to the nearest gallon
(or smaller units), except that detergent volumes of five gallons or
less must be expressed to the nearest tenth of a gallon (or smaller
units). However, if the blender's equipment cannot accurately measure
to the nearest tenth of a gallon, then such volumes must be rounded
downward to the next lower gallon. PRC included in the reconciliation
must be identified. Each VAR formula record must also contain the
following information:
(a) Automated blending facilities. In the case of an automated
detergent blending facility, for each VAR period, for each detergent
storage system and each detergent in that storage system, the following
must be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, the LAC, and any use
restriction applicable to the LAC. The LAC must be expressed in terms
of gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits. If the detergent storage system which is the
subject of the VAR formula record is a proprietary system under the
control of a customer, this fact must be indicated on the record.
(2) The total volume of detergent blended into gasoline and PRC, in
accordance with one of the following paragraphs (a)(2)(i) or (ii) of
this section, as applicable.
(i) For a facility which uses in-line meters to measure detergent
usage, the total volume of detergent measured, together with supporting
data which includes one of the following: the beginning and ending
meter readings for each meter being measured, the metered batch volume
measurements for each meter being measured, or other comparable metered
measurements. The supporting data may be supplied on the VAR formula
record or in the form of computer printouts or other comparable VAR
supporting documentation.
(ii) For a facility which uses a gauge to measure the inventory of
the detergent storage tank, the total volume of detergent shall be
calculated from the following equation:
Detergent Volume=(A)-(B)+(C)-(D)
Where:
A=Initial detergent inventory of the tank
B=Final detergent inventory of the tank
C=Sum of any additions to detergent inventory
D=Sum of any withdrawals from detergent inventory for purposes other
than the additization of gasoline or PRC.
The value of each variable in this equation must be separately recorded
on the VAR formula record. In addition, a list of each detergent
addition included in variable C and a list of each detergent withdrawal
included in variable D must be provided, either on the formula record
or as VAR supporting documentation.
(3) The total volume of gasoline plus PRC to which detergent has
been added, together with supporting data which includes one of the
following: the beginning and ending meter measurements for each meter
being measured, the metered batch volume measurements for each meter
being measured, or other comparable metered measurements. The
supporting data may be supplied on the VAR formula record or in the
form of computer printouts or other comparable VAR supporting
documentation. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(4) The actual detergent concentration, calculated as the total
volume of detergent added (pursuant to paragraph (a)(2) of this
section), divided by the total volume of gasoline plus PRC (pursuant to
paragraph (a)(3) of this section). The concentration must be calculated
and recorded to four digits.
(5) A list of each detergent concentration rate initially set for
the detergent that is the subject of the VAR record, together with the
date and description of each adjustment to any initially set
concentration. The concentration adjustment information may be supplied
on the VAR formula record or in the form of computer printouts or other
comparable VAR supporting documentation. No concentration setting is
permitted below the applicable certified LAC, except as may be modified
pursuant to Sec. 80.161(d) or as described in paragraph (a)(7) of this
section.
(6) The dates of the VAR period, which shall be no longer than
thirty-one days. If the VAR period is contemporaneous with a calendar
month, then specifying the month will fulfill this requirement; if not,
then the beginning and ending dates and times of the VAR period must be
listed. The times may be supplied on the VAR formula record or in
supporting documentation. Any adjustment to any detergent concentration
rate more than 10 percent over the concentration rate initially set in
the VAR period shall terminate that VAR period and initiate a new VAR
period, except as provided in paragraph (a)(7) of this section.
(7) The concentration setting for a detergent injector may be set
below the applicable LAC, or it may be adjusted more than 10 percent
above the concentration initially set in the VAR period without
terminating that VAR period, provided that:
(i) The purpose of the change is to correct a batch misadditization
prior to the end of the VAR period and prior to the transfer of the
batch to another party, or to correct an equipment malfunction; and
(ii) The concentration is immediately returned after the correction
to a concentration that fulfills the
[[Page 35378]]
requirements of paragraphs (a) (5) and (6) of this section; and
(iii) The blender creates and maintains documentation establishing
the date and adjustments of the correction; and
(iv) If the correction is initiated only to rectify an equipment
malfunction, and the amount of detergent used in this procedure is not
added to gasoline within the compliance period, then this amount is
subtracted from the detergent volume listed on the VAR formula record.
(8) If unadditized gasoline has been transferred from the facility,
other than bulk transfers from refineries or pipelines to non-retail
outlets or non-WPC facilities, the total amount of such gasoline must
be specified.
(b) Non-automated facilities. In the case of a facility in which
hand blending or any other non-automated method is used to blend
detergent, for each detergent and for each batch of gasoline and each
batch of PRC to which the detergent is being added, the following shall
be recorded:
(1) The manufacturer and commercial identifying name of the
detergent additive package being reconciled, the LAC, and any use
restriction applicable to the LAC. The LAC must be expressed in terms
of gallons of detergent per thousand gallons of gasoline or PRC, and
expressed to four digits.
(2) The date of the additization that is the subject of the VAR
formula record.
(3) The volume of added detergent.
(4) The volume of the gasoline and/or PRC to which the detergent
has been added. If gasoline has intentionally been overadditized in
anticipation of the later addition of unadditized PRC, then the total
volume of gasoline plus PRC recorded must include the expected amount
of unadditized PRC to be added later. In addition, the amount of
gasoline which was overadditized for this purpose must be specified.
(5) The brand (if known), grade, and leaded/unleaded status of
gasoline, and/or the type of PRC.
(6) The actual detergent concentration, calculated as the volume of
added detergent (pursuant to paragraph (b)(3) of this section), divided
by the volume of gasoline and/or PRC (pursuant to paragraph (b)(4) of
this section). The concentration must be calculated and recorded to
four digits.
(c) Every VAR formula record created pursuant to paragraphs (a) and
(b) of this section shall contain the following:
(1) The signature of the creator of the VAR record;
(2) The date of the creation of the VAR record; and
(3) A certification of correctness by the creator of the VAR
record.
(d) Electronically-generated VAR formula and supporting records.
(1) Electronically-generated records are acceptable for VAR formula
records and supporting documentation (including PTDs), provided that
they are complete, accessible, and easily readable. VAR formula records
must also be stored with access and audit security, which must restrict
to a limited number of specified people those who have the ability to
alter or delete the records. In addition, parties maintaining records
electronically must make available to EPA the hardware and software
necessary to review the records.
(2) Electronically-generated VAR formula records may use an
electronic user identification code to satisfy the signature
requirements of paragraph (c)(1) of this section, provided that:
(i) The use of the ID is limited to the record creator; and
(ii) A paper record is maintained, which is signed and dated by the
VAR formula record creator, acknowledging that the use of that
particular user ID on a VAR formula record is equivalent to his/her
signature on the document.
(e) Automated deterg
FR Doc. 96-16666 Regulation of Fuels and Fuel Additives: Certification Standards for Deposit Control Gasoline Additives
ent blenders must calibrate their detergent
equipment once in each calendar half year, with the acceptable
calibrations being no less than one hundred twenty days apart.
Equipment recalibration is also required each time the detergent
package is changed, unless written documentation indicates that the new
detergent package has the same viscosity as the previous detergent
package. Detergent package change calibrations may be used to satisfy
the semiannual requirement provided that the calibrations occur in the
appropriate half calendar year and are no less than one hundred twenty
days apart.
(f) The following VAR supporting documentation must also be created
and maintained:
(1) For all automated detergent blending facilities, documentation
reflecting performance of the calibrations required by paragraph (e) of
this section, and any associated adjustments of the automated detergent
equipment;
(2) For all hand-blending facilities which are terminals, a record
specifying, for each VAR period, the total volume in gallons of
transfers from the facility of unadditized base gasoline;
(3) For all detergent blending facilities, product transfer
documents for all gasoline, detergent and detergent-additized PRC
transferred into or out of the facility; in addition, bills of lading,
transfer, or sale for all unadditized PRC transferred into the
facility;
(4) For all automated detergent blending facilities, documentation
establishing the brands (if known) and grades of the gasoline which is
the subject of the VAR formula record; and
(5) For all hand blending detergent blenders, the documentation, if
in the party's possession, supporting the volumes of gasoline, PRC, and
detergent reported on the VAR formula record.
(6) For all detergent blending facilities, documentation
establishing the curing of a batch or amount of misadditized gasoline
or PRC, or the curing of a use restriction on the additized gasoline or
PRC, and providing at least the following information: the date of the
curing procedure; the problem that was corrected; the amount, name, and
LAC of the original detergent used; the amount, name, and LAC of the
added curing detergent; and the actual detergent concentration attained
in, and the volume of, the total cured product.
(g) Document retention and availability. All detergent blenders
shall retain the documents required under this section for a period of
five years from the date the VAR formula records and supporting
documentation are created, and shall deliver them upon request to the
EPA Administrator or the Administrator's authorized representative.
(1) Except as provided in paragraph (g)(3) of this section,
automated detergent blender facilities and hand-blender facilities
which are terminals, which physically blend detergent into gasoline,
must make immediately available to EPA, upon request, the preceding
twelve months of VAR formula records plus the preceding two months of
VAR supporting documentation.
(2) Except as provided in paragraph (g)(3) of this section, other
hand-blending detergent facilities which physically blend detergent
into gasoline must make immediately available to EPA, upon request, the
preceding two months of VAR formula records and VAR supporting
documentation.
(3) Facilities which have centrally maintained records at other
locations, or have customers who maintain their own records at other
locations for their proprietary detergent systems, and which can
document this fact to the Agency, may have until the start of the next
business day after the EPA request to supply VAR supporting
documentation, or longer if approved by the Agency.
(4) In this paragraph (g) of this section, the term immediately
available
[[Page 35379]]
means that the records must be provided, electronically or otherwise,
within approximately one hour of EPA's request, or within a longer time
frame as approved by EPA.
Sec. 80.171 Product transfer documents (PTDs).
(a) Contents. For each occasion when any gasoline refiner,
importer, reseller, distributor, carrier, retailer, wholesale
purchaser-consumer, oxygenate blender, detergent manufacturer,
distributor, carrier, or blender, transfers custody or title to any
gasoline, detergent, or detergent-additized PRC other than when
detergent-additized gasoline is sold or dispensed at a retail outlet or
wholesale purchaser-consumer facility to the ultimate consumer, the
transferor shall provide to the transferee, and the transferee shall
acquire from the transferor, documents which accurately include the
following information:
(1) The name and address of the transferee and transferor; the
address requirement may be fulfilled, in the alternative, through
separate documentation which establishes said addresses and is
maintained by the parties and made available to EPA for the same length
of time as required for the PTDs, provided that the normal business
procedure of these parties is not to identify addresses on PTDs.
(2) The date of the transfer.
(3) The volume of product transferred.
(4)(i) The identity of the product being transferred (i.e., its
identity as base gasoline, detergent, detergent-additized gasoline, or
specified detergent-additized oxygenate or detergent-additized gasoline
blending stock that comprises a detergent-additized PRC). PTDs for
detergent-additized gasoline or PRC are not required to identify the
particular detergent used to additize the product.
(ii) If the product being transferred consists of two or more
different types of product subject to this regulation, i.e., base
gasoline, detergent-additized gasoline, or specified detergent-
additized PRC, component, then the PTD for the commingled product must
identify each such type of component contained in the commingled
product.
(5) If the product being transferred is gasoline to which an
oxygenate or a PRC has been added, the PTD for the gasoline must
identify the oxygenate or PRC. The PTDs for commingled additized
gasolines must identify all the oxygenates and PRCs added to either
component.
(6) If the product being transferred is base gasoline, then in
addition to the base gasoline identification, the following warning
must be stated on the PTD: ``Not for sale to the ultimate consumer''.
If, pursuant to Sec. 80.173(a), the product being transferred is exempt
base gasoline to be used for research, development, or test purposes
only, the following warning must also be stated on the PTD: ``For use
in research, development, and test programs only''.
(7) The name of the detergent additive as reported in its
registration must be used to identify the detergent package on its PTD.
(8) If the product being transferred is leaded gasoline, then the
PTD must disclose that the product contains lead and/or phosphorous, as
applicable.
(9) If the product being transferred is gasoline or PRC that has
been additized with detergent under a PADD-specific or CARB-based
certification, or under a certification option which creates an
oxygenate or PRC use restriction, then the PTD for the additized
product must identify the applicable use restriction. The PTD for
commingled additized gasolines or PRCs containing such restrictions
must indicate the applicable restriction(s) from each component.
(10) If the product being transferred is detergent-additized
gasoline or PRC that has been overadditized in anticipation of the
later (or earlier) addition of PRC, then the PTD must include a
statement that the product has been overadditized to account for a
specified volume in gallons, or a specified percentage of the product's
total volume, of additional, specified PRC.
(11) If a detergent package has been certified under only one
certification option, and that option places a use restriction on the
respective LAC, then the PTD must identify the detergent as use-
restricted; the PTD for a detergent package certified with more than
one LAC must identify that the detergent has special use options
available.
(12) Base gasoline designated for fuel-specific certification.
(i) The PTD for segregated base gasoline intended for additization
with a specific fuel-specific detergent pursuant to Sec. 80.163(c) must
indicate that it is for use with the designated, fuel-specific
detergent.
(ii) A PTD for base gasoline may not indicate that the product is
for use with a designated, fuel-specific detergent, unless the entire
quantity of base gasoline is from the segregated fuel supply specified
in the detergent's certification and the gasoline contains only those
oxygenates or PRCs, if any, specified and approved in the detergent's
certification.
(iii) If, pursuant to Sec. 80.163(c)(3), the fuel-specific
certification for the segregated pool of gasoline has established that
no detergent additives are necessary for such gasoline to comply with
this subpart, then the PTD must identify this gasoline as detergent-
equivalent gasoline.
(b) Use of product codes and other non-regulatory language. (1)
Product codes and other non-regulatory language may not be used as a
substitute for the specified PTD warning language specified in
paragraph (a)(6) of this section for base gasoline, except that:
(i) The specified warning language may be omitted for bulk
transfers of base gasoline from a refinery to a pipeline if there is a
prior written agreement between the parties specifying that all such
gasoline is unadditized and will not be transferred to the ultimate
consumer;
(ii) Product codes may be used as a substitute for the specified
warning language provided that the PTD is an electronic data
interchange (EDI) document being used solely for the transfer of title
to the base gasoline, and provided that the product codes otherwise
comply with the requirements of this section.
(2) Product codes and other non-regulatory language may not be used
in place of the PTD language specified in paragraph (a)(11) of this
section regarding detergent package use restrictions.
(3) Product codes and other language not specified in this section
may otherwise be used to comply with PTD information requirements,
provided that they are clear, accurate, and not misleading.
(4) If product codes are used, they must be standardized throughout
the distribution system in which they are used, and downstream parties
must be informed of their full meaning.
(c) PTD exemption for small transfers of additized gasoline.
Transfers of additized gasoline are exempt from the PTD requirements of
this section provided all the following conditions are satisfied:
(1) The product is being transferred by a distributor who is not
the product's detergent blender; and
(2) The recipient is a wholesale purchaser-consumer (WPC) or other
ultimate consumer of gasoline, for its own use only or for that of its
agents or employees; and
(3) The volume of additized gasoline being transferred is no
greater than 550 gallons.
(d) Recordkeeping Period. Any person creating, providing or
acquiring product transfer documentation for gasoline, detergent, or
detergent-additized PRC shall retain the documents required by this
section for a period of five years from the date the product transfer
[[Page 35380]]
documentation was created, received or transferred, as applicable, and
shall deliver such documents to EPA upon request. WPCs are not required
to retain PTDs of additized gasoline received by them.
Sec. 80.172 Penalties.
(a) General. Any person who violates any prohibition or affirmative
requirement of Sec. 80.168 shall be liable to the United States for a
civil penalty of not more than the sum of $25,000 for every day of such
violation and the amount of economic benefit or savings resulting from
the violation.
(b) Gasoline non-conformity. Any violation of Sec. 80.168(a) shall
constitute a separate day of violation for each and every day the
gasoline in violation remains at any place in the gasoline distribution
system, beginning on the day that the gasoline is in violation of the
respective prohibition and ending on the last day that such gasoline is
offered for sale or is dispensed to any ultimate consumer.
(c) Detergent non-conformity. Any violation of Sec. 80.168(d) shall
constitute a separate day of violation for each and every day the
detergent in violation remains at any place in the gasoline or
detergent distribution system, beginning on the day that the detergent
is in violation of the prohibition and ending on the last day that
detergent-additized gasoline, containing the subject detergent as a
component thereof, is offered for sale or is dispensed to any ultimate
consumer.
(d) Post-refinery component non-conformity. Any violation of
Sec. 80.168(e) shall constitute a separate day of violation for each
and every day the PRC in violation remains at any place in the PRC or
gasoline distribution system, beginning on the day that the PRC is in
violation of the respective prohibition and ending on the last day that
detergent-additized gasoline containing the PRC is offered for sale or
is dispensed to any ultimate consumer.
(e) Product transfer document non-conformity. Any violation of
Sec. 80.168(c) shall constitute a separate day of violation for every
day the PTD is not fully in compliance. This is to begin on the day
that the PTD is created or should have been created and to end at the
later of the following dates:
(1) The day that the document is corrected and comes into
compliance; or
(2) The day that gasoline not additized in conformity with interim
detergent program requirements, as a result of the PTD non-conformity,
is offered for sale or is dispensed to the ultimate consumer.
(f) Volumetric additive reconciliation recordkeeping non-
conformity. Any VAR recordkeeping violation of Sec. 80.168(b) shall
constitute a separate day of violation for every day that VAR
recordkeeping is not fully in compliance. Each element of the VAR
record keeping program that is not in compliance shall constitute a
separate violation for purposes of this section.
(g) Volumetric additive reconciliation compliance standard non-
conformity. Any violation of the VAR compliance standard established in
Sec. 80.170 shall constitute a separate day of violation for each and
every day of the VAR compliance period in which the standard was
violated.
(h) Volumetric additive reconciliation equipment calibration non-
conformity. Any VAR equipment calibration violation of Sec. 80.168(b)
shall constitute a separate day of violation for every day a VAR
equipment calibration requirement is not met.
Sec. 80.173 Exemptions.
(a) Research, development, and testing exemptions. Any detergent
that is either in a research, development, or test status, or is sold
to petroleum, automobile, engine, or component manufacturers for
research, development, or test purposes, or any gasoline to be used by,
or under the control of, petroleum, additive, automobile, engine, or
component manufacturers for research, development, or test purposes, is
exempted from the provisions of the detergent certification program,
provided that:
(1) The detergent (or fuel containing the detergent), or the
gasoline, is kept segregated from non-exempt product, and the party
possessing the product maintains documentation identifying the product
as research, development, or testing detergent or fuel, as applicable,
and stating that it is to be used only for research, development, or
testing purposes; and
(2) The detergent (or fuel containing the detergent), or the
gasoline, is not sold, dispensed, or transferred, or offered for sale,
dispensing, or transfer, from a retail outlet. It shall also not be
sold, dispensed, or transferred or offered for sale, dispensing, or
transfer from a wholesale purchaser-consumer facility, unless such
facility is associated with detergent, fuel, automotive, or engine
research, development or testing; and
(3) The party using the product for research, development, or
testing purposes, or the party sponsoring this usage, notifies the EPA,
on at least an annual basis and prior to the use of the product, of the
purpose(s) of the program(s) in which the product will be used and the
anticipated volume of the product to be used. The information must be
submitted to the address or fax number specified in Sec. 80.174(c).
(b) Racing fuel and aviation fuel exemptions. Any fuel that is
refined, sold, dispensed, transferred, or offered for sale, dispensing,
or transfer as automotive racing fuel or as aircraft engine fuel, is
exempted from the provisions of this subpart, provided that:
(1) The fuel is kept segregated from non-exempt fuel, and the party
possessing the fuel for the purposes of refining, selling, dispensing,
transferring, or offering for sale, dispensing, or transfer as
automotive racing fuel or as aircraft engine fuel, maintains
documentation identifying the product as racing fuel, restricted for
non-highway use in racing motor vehicles, or as aviation fuel,
restricted for use in aircraft, as applicable;
(2) Each pump stand at a regulated party's facility, from which
such fuel is dispensed, is labeled with the applicable fuel
identification and use restrictions described in paragraph (b)(1) of
this section; and
(3) The fuel is not sold, dispensed, transferred, or offered for
sale, dispensing, or transfer for highway use in a motor vehicle.
(c) California gasoline exemptions. (1) Gasoline or PRC which is
additized in the state of California is exempt from the VAR provisions
in Secs. 80.168 (b) and (e) and 80.170, provided that:
(i) For all such gasoline or PRC, whether intended for sale within
or outside of California, records of the type required for California
gasoline (specified in title 13, California Code of Regulations,
section 2257) are maintained; and
(ii) Such records, with the exception of daily additization
records, are maintained for a period of five years from the date they
were created and are delivered to EPA upon request.
(2) Gasoline or PRC that is transferred and/or sold solely within
the state of California is exempt from the PTD provisions of the
detergent certification program, specified in Secs. 80.168(c) and
80.171.
(3) Nothing in this paragraph (c) exempts such gasoline or PRC from
the requirements of Sec. 80.168 (a) and (e), as applicable. EPA will
base its determination of California gasoline's conformity with the
detergent's LAC on the additization records required by CARB, or
records of the same type.
[[Page 35381]]
Sec. 80.174 Addresses.
(a) The detergent additive sample required under Sec. 80.161(b)(2)
shall be sent to: Manager, Fuels and Technical Analysis Group, Testing
Services Division, U.S. Environmental Protection Agency, National
Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann Arbor,
Michigan 48105.
(b) Other detergent registration and certification data, and
certain other information which may be specified in this subpart, shall
be sent to: Detergent Additive Certification, Director, Fuels and
Energy Division, U.S. Environmental Protection Agency (6406J), 401 M
Street, SW., Washington, DC 20460.
(c) Notifications to EPA regarding program exemptions, detergent
dilution and commingling, and certain other information which may be
specified in this subpart, shall be sent to: Detergent Enforcement
Program, U.S. Environmental Protection Agency, Suite 214, 12345 West
Alameda Parkway, Denver, CO 80228, (FAX 303-969-6490).
[FR Doc. 96-16666 Filed 7-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-16653 Airworthiness Directives; Boeing Model 747-200 (Combi'') and 747-300 (Combi'') Airplanes Modified in Accordance With Heath Tecna Supplemental Type Certificate (STC) SA2365NM or STC SA5108NM
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35125-35127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16653]
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[[Page 35126]]
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-128-AD; Amendment 39-9683; AD 96-14-01]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 747-200 (``Combi'') and
747-300 (``Combi'') Airplanes Modified in Accordance With Heath Tecna
Supplemental Type Certificate (STC) SA2365NM or STC SA5108NM
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Boeing Model 747-200 ``combi'' and 747-300
``combi'' airplanes. This action requires the installation of a new
hose and fitting for the oxygen supply system. This amendment is
prompted by a report indicating that a gasket seal in the oxygen hose
assembly was omitted during installation. The actions specified in this
AD are intended to prevent leakage of oxygen from the passenger oxygen
supply lines, which could prevent an adequate flow of oxygen from
reaching passengers in the event of a deployment of the passenger
oxygen masks.
DATES: Effective July 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 22, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 3, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-128-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
Heath Tecna Interiors, 3225 Woburn Street, Bellingham, Washington
98226. This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Don Kurle, Senior Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington;
telephone (206) 227-2798; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: The FAA has received a report indicating
that, due to an engineering drawing error, a gasket seal was
inadvertently omitted from the passenger oxygen supply assembly
installed on certain Boeing Model 747-200 and -300 ``combi'' airplanes
that have been modified in accordance with Heath Tecna Supplemental
Type Certificate (STC) SA2365NM or STC SA5108NM. (``Combi'' airplanes
are aircraft that are configured and certificated to transport both
cargo and passengers at the same time on the main deck.) Without the
gasket seal, oxygen can leak from the low pressure passenger oxygen
supply lines. This condition, if not corrected, could prevent an
adequate flow of oxygen from reaching passengers when the passenger
oxygen masks are deployed (due to a drop in cabin pressure, for
example). There have been no incidents of this sort in service,
however.
Explanation of Relevant Service Information
Heath Tecna, which is the manufacturer of the oxygen supply
assembly, has issued Service Bulletin H0364-35-001, dated March 15,
1996, which describes procedures for installing a new hose and fitting
for the oxygen system located in Zones D and E of the airplane.
Explanation of Requirements of the Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, this AD is
being issued to prevent leakage of oxygen from the passenger oxygen
supply lines, which could prevent an adequate flow of oxygen from
reaching passengers in the event of a deployment of the passenger
oxygen masks. This AD requires the installation of a new hose and
fitting for the oxygen supply system. The actions are required to be
accomplished in accordance with the service bulletin described
previously.
Cost Impact
None of the Model 747-200 ``combi'' or 747-300 ``combi'' airplanes
affected by this action are on the U.S. Register. All airplanes
included in the applicability of this rule currently are operated by
non-U.S. operators under foreign registry; therefore, they are not
directly affected by this AD action. However, the FAA considers that
this rule is necessary to ensure that the unsafe condition is addressed
in the event that any of these subject airplanes are imported and
placed on the U.S. Register in the future.
Should an affected airplane be imported and placed on the U.S.
Register in the future, it would require approximately 8 work hours to
accomplish the required actions, at an average labor charge of $60 per
work hour. Required parts would cost approximately $400 per airplane.
Based on these figures, the cost impact of this AD would be $880 per
airplane.
Determination of Rule's Effective Date
Since this AD action does not affect any airplane that is currently
on the U.S. register, it has no adverse economic impact and imposes no
additional burden on any person. Therefore, notice and public
procedures hereon are unnecessary and the amendment may be made
effective in less than 30 days after publication in the Federal
Register.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by notice and opportunity for public comment, comments are
invited on this rule. Interested persons are invited to comment on this
rule by submitting such written data, views, or arguments as they may
desire. Communications shall identify the Rules Docket number and be
submitted in triplicate to the address specified under the caption
``ADDRESSES.'' All communications received on or before the closing
date for comments will be considered, and this rule may be amended in
light of the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of the AD action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-128-AD.'' The postcard will be date stamped and
returned to the commenter.
[[Page 35127]]
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-14-01 Boeing: Amendment 39-9683. Docket 96-NM-128-AD.
-Applicability: Model 747-200 ``combi'' airplanes and Model 747-
300 ``combi'' airplanes; modified in accordance with Heath Tecna
Supplemental Type Certificate (STC) SA2365NM or STC SA5108NM;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
-Compliance: Required as indicated, unless accomplished
previously.
To prevent leakage of oxygen from the passenger oxygen supply
lines, which could prevent an adequate flow of oxygen from reaching
passengers in the event of a deployment of the passenger oxygen
masks, accomplish the following:
(a) Within 15 months after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD in accordance with Heath Tecna Service Bulletin H0364-35-001,
dated March 15, 1996:
(1) Remove the oxygen hose assembly, part number (P/N) 173479-
16; the two bushings, P/N MS21915-12-10 and P/N AN893-19D; the tube,
P/N HPD5-74223-7; and the two nuts, P/N AN818-12D. And
(2) Install a union-bulkhead, P/N MS21924D10, and oxygen hose
assembly, P/N 45901-10-0200.
(b) Prior to further fight after accomplishing the installation
required by paragraph (a)(2) of this AD, perform an oxygen system
leak test, in accordance with Boeing 747 Maintenance Manual, Chapter
35.21.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The actions shall be done in accordance with Heath Tecna
Service Bulletin H0364-35-001, dated March 15, 1996. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Heath Tecna Interiors, 3225 Woburn
Street, Bellingham, Washington 98226. Copies may be inspected at the
FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on July 22, 1996.
Issued in Renton, Washington, on June 25, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16653 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-16652 Airworthiness Directives; Boeing Model 767 Series Airplanes Equipped With Pratt & Whitney Model JT9D-7R4 Engines
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35127-35129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16652]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-154-AD; Amendment 39-9684; AD 96-14-02]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 767 Series Airplanes
Equipped With Pratt & Whitney Model JT9D-7R4 Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Boeing Model 767 series airplanes, that requires
a visual inspection to verify proper clearance between the number 18
fuel nozzle secondary transfer fuel tube and the pylon drain tube of
the engine, and various follow-on actions. This amendment also requires
the installation of clamps and associated fasteners between the
environmental control system (ECS) controller tube and the pylon drain
tube. This amendment is prompted by reports of chafing of the number 18
fuel nozzle secondary transfer fuel tube of the engine due to an
improperly installed or loose pylon drain tube. The actions specified
by this AD are intended to prevent such chafing, which could lead to
subsequent fuel leakage and a possible engine fire.
DATES: Effective August 9, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 9, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Monica Merritt, Aerospace Engineer,
Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification
Office, 1601 Lind Avenue, SW., Renton,
[[Page 35128]]
Washington; telephone (206) 227-2683; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Boeing Model 767 series
airplanes was published in the Federal Register on January 31, 1996 (61
FR 3340). That action proposed to require a visual inspection to verify
proper clearance between the number 18 fuel nozzle secondary transfer
fuel tube and the pylon drain tube of the engine, and various follow-on
actions. That action also proposed to require the installation of
clamps and associated fasteners between the environmental control
system (ECS) controller tube and the pylon drain tube.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
One commenter supports the proposal.
Request To Revise Description of Affected Component
One commenter, Boeing, requests that all references in the proposed
rule to the ``ECS'' controller tube be changed to ``the high pressure
controller muscle air tube.'' The commenter states that the high
pressure controller and muscle air tube are components of the airplane
pneumatic system, which provides engine bleed air to various airplane
systems, including the ECS.
The FAA agrees with the commenter's suggestion that the revised
wording may be a more accurate description of the subject component.
However, the service information (Boeing Service Bulletin 767-71A0082)
that is referenced in the AD uses the term ``ECS controller tube''
throughout the procedures it contains relative to the modification. In
light of this, the FAA finds that using the term ``ECS controller
tube'' in the final rule will maintain consistency with the terminology
used in the referenced service bulletin and, thereby, will avoid
confusion.
Request To Revise Description of Service History
This same commenter requests that the description of the incidents
that prompted the AD be revised. The commenter points to a specific
statement that appeared in the Discussion section of the preamble to
the notice: ``In the engine fire incident, investigation revealed that
the cause of the chafing was attributed to the installation of the
wrong engine fuel manifold, which did not provide for adequate
clearance for the fuel tube.'' The commenter states that subsequent
investigation of this particular incident revealed that an acceptable
clearance could be maintained even if the wrong configuration of number
18 fuel tube was installed. The contributing factor to the chafing of
the number 18 fuel tube was the mis-installation of the pylon drain
tube.
The FAA acknowledges this new information. However, it in no way
affects the intent of or need for this AD. Since the Discussion section
is not repeated in the final rule, no change to the rule is necessary.
Request To Clarify Damage Specifications
This same commenter requests that proposed paragraph (a)(2) be
revised to clarify the amount of damage to the number 18 fuel tube and
the pylon drain tube of the engine that would require replacement or
repair of those items. The commenter points out that the damage
specifications indicated in the proposal are different from those
specified in both the 767 Maintenance Manual and the Pratt & Whitney
JT9D Engine Manual.
The FAA concurs that clarification is necessary. Based on
information contained in the two manuals referenced by the commenter,
the FAA finds that repair or replacement must be accomplished if damage
to the number 18 fuel tube is greater than 0.003 inch, and if damage to
the pylon drain tube is greater than 0.004 inch. Paragraphs (a)(2)(i)
and (a)(2)(ii) of the final rule have been changed accordingly.
Additionally, those paragraphs have been revised to include reference
to the 767 Maintenance Manual and the Pratt & Whitney JT9D Engine
Manual as sources of information relative to damage measurements.
Request To Extend Compliance Time
One commenter requests that the compliance time for accomplishing
the inspection be extended from the proposed 6 months to 12 months. The
commenter, a non-U.S. operator, requests this extension in order to
accommodate the modification of a number of engines in its fleet that
currently are equipped with different clamps.
The FAA does not concur with the commenter's request to extend the
compliance time. In developing an appropriate compliance time for this
action, the FAA considered not only the degree of urgency associated
with addressing the subject unsafe condition, but the availability of
required parts and the practical aspect of accomplishing the inspection
and installing the modification within an interval of time that
parallels normally scheduled maintenance for the majority of affected
operators. The FAA has found that an ample number of modification parts
will be available to accommodate the affected fleet within the 6-month
compliance period. In light of these factors, the FAA finds that the
compliance time, as proposed, is appropriate. However, under the
provisions of paragraph (b) of the final rule, the FAA may approve
requests for adjustments to the compliance time if data are submitted
to substantiate that such an adjustment would provide an acceptable
level of safety.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 93 Model 767 series airplanes equipped with
Pratt & Whitney Model JT9D-7R4 engines of the affected design in the
worldwide fleet. The FAA estimates that 30 airplanes of U.S. registry
will be affected by this AD, that it will take approximately 4 work
hours per airplane to accomplish the required actions, and that the
average labor rate is $60 per work hour. Required parts will cost
approximately $31 per airplane. Based on these figures, the cost impact
of the AD on U.S. operators is estimated to be $8,130, or $271 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612,
[[Page 35129]]
it is determined that this final rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-14-02 Boeing: Amendment 39-9684. Docket 95-NM-154-AD.
Applicability: Model 767 series airplanes having line position 1
through 329, inclusive; equipped with Pratt & Whitney Model JT9D-7R4
engines; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent chafing of the number 18 fuel nozzle secondary
transfer fuel tube of the engine, and subsequent fuel leakage and
possible engine fire, accomplish the following:
(a) Within 6 months after the effective date of this AD, perform
a visual inspection to verify proper clearance (0.5 inch) between
the number 18 fuel nozzle secondary transfer fuel tube and the pylon
drain tube of the engine.
(1) If the clearance is equal to or greater than 0.5 inch: Prior
to further flight, install clamps and associated fasteners between
the environmental control system (ECS) and the pylon drain tube, in
accordance with Boeing Alert Service Bulletin 767-71A0082, dated
July 6, 1995.
(2) If the clearance is less than 0.5 inch: Prior to further
flight, perform a visual inspection to detect damage of the number
18 fuel nozzle secondary transfer fuel tube and the pylon drain
tube.
(i) If no damage is detected; or if any damage to the number 18
fuel nozzle secondary transfer tube is less than or equal to 0.003
inch deep, as specified in Section 72-09-71 of Pratt & Whitney JT9D
Engine Manual, and if any damage to the drain tube is less than or
equal to 0.004 inch deep, as specified in the Boeing 767 Maintenance
Manual 28-22-07: Prior to further flight, relocate the pylon drain
tube to meet the 0.5 inch specification. After accomplishing the
relocation, prior to further flight, install the clamps and
associated fasteners between the ECS and the pylon drain tube, in
accordance with Boeing Alert Service Bulletin 767-71A0082, dated
July 6, 1995.
(ii) If any damage to the number 18 fuel tube is greater than
0.003 inch deep, as specified in Section 72-09-71 of the Pratt &
Whitney JT9D Engine Manual; or if any damage to the drain tube is
greater than 0.004 inch deep, as specified in the Boeing 767
Maintenance manual 28-22-07: Prior to further flight, repair or
replace the damaged tube, in accordance with Section 28-00-10 of the
Boeing 767 Overhaul Manual. After accomplishing the repair or
replacement, prior to further flight, install the clamps and
associated fasteners between the ECS and the pylon drain tube, in
accordance with Boeing Alert Service Bulletin 767-71A0082, dated
July 6, 1995.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The installation of the clamps and associated fasteners
shall be done in accordance with Boeing Alert Service Bulletin 767-
71A0082, dated July 6, 1995. This incorporation by reference was
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(e) This amendment becomes effective on August 9, 1996.
Issued in Renton, Washington, on June 25, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16652 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-16510 Suspension and Exclusion of Contractors and Termination of Contracts
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35115-35122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16510]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 367
RIN 3064-AB76
Suspension and Exclusion of Contractors and Termination of
Contracts
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Board of Directors of the Federal Deposit Insurance
Corporation (FDIC or Corporation) is adopting an interim final rule
concerning suspension and exclusion of FDIC contractors and termination
of contracts. The interim final rule is adopted pursuant to section
12(f) (4) and (5) of the Federal Deposit Insurance Act (FDI Act), and
the rule-making authority of the FDIC found at section 9 of the Act.
Additional provisions implementing these statutory directives appear in
the FDIC's regulation, as published in the Federal Register on June 6,
1996, governing contractor conflicts of interest and the requirements
that FDIC contractors meet minimum standards of competence, experience,
fitness and integrity. This interim final rule is a companion to the
conflict of interest regulation in that it sets forth procedures for
the suspension and/or exclusion of contractors that have violated the
conflicts of interest regulations (and hence, fail to meet minimum
standards of fitness and integrity), or have otherwise acted in a
manner warranting such action. In addition to FDIC contractors, this
interim final rule also applies to subcontractors, key employees,
management officials and affiliated business entities of FDIC
contractors (all such terms are defined herein), and is designed to
inform such contractors regarding their rights to notice and an
opportunity to be heard on FDIC suspension and exclusion actions.
DATES: Effective date. This interim final rule is effective July 5,
1996.
Comment period date. Comments must be received on or before
September 3, 1996.
ADDRESSES: Send written comments to Jerry L. Langley, Executive
Secretary, FDIC, 550 17th Street, NW., Washington, DC 20429. Comments
may be hand-delivered to room 400, 1776 F Street, NW., Washington, DC
20429 on business days between 8:30 a.m. and 5:00 p.m. (FAX number:
(202) 898-3604; Internet: [email protected]). Comments will be
available for inspection and photocopying in the FDIC Public
Information Center, room 100, 801 17th Street, NW., Washington, DC
20429, between 9:00 a.m. and 5:00 p.m. on business days.
FOR FURTHER INFORMATION CONTACT: Peter A. Ziebert, Counsel, Legal
Division, (202) 736-0742; or Richard M. Handy, Assistant Executive
Secretary (Ethics), Office of the Executive Secretary, (202) 898-7271.
SUPPLEMENTARY INFORMATION:
I. Background
This interim final rule sets forth standards and procedures
governing suspension and exclusion of FDIC contractors, which includes
subcontractors, management officials, key employees and affiliated
business entities of such contractors, for violations of 12 CFR part
366, the FDIC's contractor conflict of interest regulation (61 FR
28725, June 6, 1996). This interim final rule also provides for the
termination of awarded contracts of FDIC contractors. For the most
part, this rule is modeled after the suspension and exclusion
regulation used by the Resolution Trust Corporation (RTC) until RTC
sunset on December 31, 1995, which had been codified at 12 CFR part
1618. This rule also bears similarity to the suspension and debarment
procedures utilized by other federal entities, which have been
developed after extensive public comment and
[[Page 35116]]
have withstood considerable judicial scrutiny. However, as discussed
below, the rule departs in certain respects from the procedures used by
other federal entities because the FDIC is not subject to the Federal
Acquisition Regulation (FAR). The rule also revises the former RTC
regulation in several ways as the FDIC now promulgates its own
suspension and exclusion regulation.
Generally, this rule provides for more expedited and less formal
procedures than are used by other federal agencies, while at the same
time satisfying due process requirements regarding notice and an
opportunity to be heard. These expedited procedures are necessary due
to the urgent need to protect the FDIC and the public interest against
further dissipation of assets now under FDIC control and previously
under RTC control.
As noted above, FDIC has a statutory mandate to be vigilant in
enforcing the highest ethical standards for its contractors.
Accordingly, it is imperative that contractor suspension and exclusion
proceedings be processed as expeditiously as possible consistent with
due process requirements that affected contractors be afforded notice
and an opportunity to be heard on such enforcement actions.
II. Summary of the Interim Final Rule
The regulation is comprised of 20 sections. Section 367.1 covers
the authority, purpose, scope and application of the regulation. It
makes clear that the regulation applies to contractors other than
attorneys or law firms that provide services or enter into contracts to
provide services to the FDIC acting in any capacity. The regulation is
effective as of the date of publication in the Federal Register for
reasons set out in section III, below. Moreover, the regulation applies
to actions initiated by the FDIC on or after the effective date
regardless of the date of the cause giving rise to such actions.
Finally, Sec. 367.1 provides that this regulation supersedes and
replaces the RTC suspension and exclusion regulation (12 CFR part 1618)
and that RTC actions taken under that part will be honored as if taken
by the FDIC.
Section 367.2 contains the definitions to be used in this part. The
definitions are generally based on the commonly accepted definitions
used in the FDIC's conflict of interest regulation (12 CFR part 366) or
by other federal entities. Key terms that are defined here include
affiliated business entity, conflict of interest, contract, contractor,
control, key employee, management official, pattern or practice of
defalcation, subcontractor, and substantial loss to federal deposit
insurance funds.
Section 367.3 identifies the appropriate officials in the FDIC
suspension and debarment program. The FDIC ``Ethics Counselor'' (FDIC
Executive Secretary) is the official responsible for rendering
suspension and exclusion decisions. The ``Corporation Ethics
Committee'' provides a review forum of any suspension or exclusion
decision appealed by a contractor.
Section 367.4 is reserved.
Section 367.5 covers exclusions. Contractors excluded from FDIC
contracting are prohibited from entering into any new contracts with
FDIC for the duration of the exclusion period. The FDIC shall not
solicit offers from, award contracts to, extend or modify existing
contracts, award task orders under existing contracts, or consent to
subcontracts with excluded contractors.
Section 367.5 (b)(1) sets forth a significant change in the
regulation from the FAR-based debarment and suspension regulation, and
from the former RTC regulation. FDIC exclusion actions will only become
effective upon the Ethics Counselor's decision to exclude a contractor
after the contractor has received written notice of a possible cause to
exclude from FDIC and has had an opportunity to respond. In other
words, a contractor's receipt of a notice of possible cause to exclude
does not act as an exclusion from the FDIC contracting program. This
provision provides contractors with ample due process as the exclusion
matter is considered.
Section 367.6 sets forth 13 causes for exclusion, which generally
parallel the former RTC regulations. There are four mandatory causes
for exclusion set forth at Sec. 367.6 (a) (1) through (4); the
remainder are discretionary bases for which exclusion may be warranted
if a violation is established by a preponderance of the evidence.
Section 367.7 covers suspensions. The same contracting prohibitions
apply to suspended contractors as is the case with excluded
contractors. An important distinction in the regulation, however, is
that a suspension action shall become effective immediately upon
issuance of a notice of suspension, which as noted above differs from
the notice of possible cause to exclude. Suspensions will be used when
immediate action is necessary to protect the integrity of the FDIC
contracting program and/or the security of FDIC assets during the
pendency of legal or investigative proceedings against a contractor.
Section 367.8 lists causes for suspension. Suspensions will be
imposed upon a showing of adequate evidence of any of the causes listed
in Sec. 367.7.
Section 367.9 provides that causes to suspend and/or exclude a
contractor can be imputed between a contractor and its affiliated
business entities, key employees, management officials, joint venture
partners, and subcontractors.
Sections 367.10-.11 are reserved.
Section 367.12 states that FDIC suspension and exclusion actions
shall be processed as informally as practicable, consistent with due
process considerations.
Section 367.13 covers the issuance of the notice of possible cause
to exclude, and notice of suspension, and the information that will be
set forth therein.
Section 367.14 covers contractor responses to such notices and
clearly states that the contractor shall have 15 days from the date of
the notice within which to respond.
Section 367.15 addresses those situations where additional
proceedings may be held, as determined by the Ethics Counselor, in
situations where the contractor's response raises a genuine dispute
over material facts. In such cases, the contractor shall be afforded
the opportunity to appear (with counsel if desired) before the FDIC.
Section 367.16 covers the Ethics Counselor's decisions in
suspension and exclusion matters. It sets forth the information that
will be included in a suspension or exclusion decision and makes clear
that any exclusion decision rendered pursuant to this provision shall
include a period of exclusion.
Section 367.17 provides further information as to the period of
suspension or exclusion.
Section 367.18 covers abrogation of contracts (i.e., termination or
recision) as an additional remedy for the FDIC.
Section 367.19 sets forth procedures regarding exceptions to
suspensions and exclusions and makes clear that such exceptions are
only available in unique circumstances when there is a compelling
reason to utilize a particular contractor for a specific task.
Section 367.20 sets forth the procedures for the review and
reconsideration of Ethics Counselor decisions to the Corporation Ethics
Committee.
III. Administrative Procedure Act
The FDIC is adopting this regulation as an interim final rule
effective upon publication in the Federal Register without the usual
notice-and-comment period or delayed effective date as
[[Page 35117]]
provided for under the Administrative Procedure Act. 5 U.S.C. 551, et
seq. (APA). The APA requirements may be waived for ``good cause.''
Promulgation of the regulation on an expedited basis is necessary
due to the urgent need to protect the FDIC and the public interest
against further dissipation of the assets now under FDIC control, and
formerly under RTC control, as a consequence of the resolution of
hundreds of failed savings associations. Furthermore, many FDIC
contractors have in their possession extremely valuable documents and
legal instruments which can be readily converted to private gain.
The Financial Institutions Reform, Recovery, and Enforcement Act of
1989 (FIRREA) has imposed a duty on the FDIC to be vigilant and
aggressive in enforcing the highest ethical standards for its
independent contractors. Accordingly, it is imperative that a
regulation be immediately adopted setting forth policies and procedures
pertaining to the suspension or exclusion of FDIC contractors that have
been found to have violated those standards. The cost of any delay in
promulgating the regulation would ultimately be borne by the taxpaying
public in terms of additional erosion in the value of the assets under
FDIC control.
IV. Regulatory Flexibility Analysis
The Board of Directors has concluded that the interim final rule
will not impose a significant economic hardship on small institutions.
Therefore, the Board of Directors hereby certifies pursuant to section
605 of the Regulatory Flexibility Act (5 U.S.C. 605) that the interim
final rule will not have a significant economic impact on a substantial
number of small business entities within the meaning of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Therefore, the provisions of
that Act relating to an initial and final regulatory flexibility
analysis do not apply.
V. Paperwork Reduction Act
No collections of information pursuant to the Paperwork Reduction
Act are contained in this interim final rule. Therefore, no information
has been submitted to the Office of Management and Budget (OMB) for
review.
For the above reasons, the FDIC finds that the benefits to the
public in adopting the interim rule outweigh any harm from the delay in
seeking public comment. The FDIC actively solicits comments from the
public and will carefully evaluate and act upon any such comments
before adopting the rule as final within 60 days after the close of the
public comment period.
List of Subjects in 12 CFR Part 367
Administrative practice and procedure, Conflict of interest,
Government contracts.
For the reasons set out in the preamble, FDIC adds part 367 to
title 12, chapter III of the Code of Federal Regulations to read as
follows:
PART 367--SUSPENSION AND EXCLUSION OF CONTRACTORS AND TERMINATION
OF CONTRACTS
Sec.
367.1 Authority, purpose, scope and application.
367.2 Definitions.
367.3 Appropriate officials.
367.4 [Reserved]
367.5 Exclusions.
367.6 Causes for exclusion.
367.7 Suspensions.
367.8 Causes for suspension.
367.9 Imputation of causes.
367.10-367.11 [Reserved]
367.12 Procedures.
367.13 Notices.
367.14 Responses.
367.15 Additional proceedings as to disputed material facts.
367.16 Ethics Counselor decisions.
367.17 Duration of suspensions and exclusions.
367.18 Abrogation of contracts.
367.19 Exceptions to suspensions and exclusions.
367.20 Review and reconsideration of Ethics Counselor decisions.
Authority: 12 U.S.C. 1822(f) (4) and (5).
Sec. 367.1 Authority, purpose, scope and application.
(a) Authority. This part is adopted pursuant to section 12(f) (4)
and (5) of the Federal Deposit Insurance Act, 12 U.S.C. 1822(f) (4) and
(5), and the rule-making authority of the Federal Deposit Insurance
Corporation (FDIC) found at 12 U.S.C. 1819. Other regulations
implementing these statutory directives appear at 12 CFR part 366.
(b) Purpose. This part is designed to inform contractors and
subcontractors (including their affiliated business entities, key
employees and management officials) regarding their rights to notice
and an opportunity to be heard on FDIC actions involving suspension and
exclusion from contracting and rescission of existing contracts. This
part is in addition to, and not in lieu of, any other statute or
regulation that may apply to such contractual activities.
(c) Scope. (1) This part applies to:
(i) Contractors, other than attorneys or law firms providing legal
services, submitting offers to provide services or entering into
contracts to provide services to the FDIC acting in any capacity; and
(ii) Subcontractors entering into contracts to perform services
under a proposed or existing contract with the FDIC.
(d) Application. (1) This part will apply to entities that become
contractors, as defined in Sec. 367.2(f), on or after July 5, 1996. In
addition, this part will apply to contractors as defined in
Sec. 367.2(f) that are performing contracts on July 5, 1996.
(2) This part will also apply to actions initiated on or after July
5, 1996 regardless of the date of the cause giving rise to the actions.
(3) Contracts entered into by the former Resolution Trust
Corporation (RTC) that were transferred to the FDIC will be treated in
the same manner as FDIC contracts under this part.
(4) This part supersedes and replaces the former RTC regulation
relating to suspension and exclusion of registered contractors and
rescission of contracts in effect through December 31, 1995. RTC
actions taken under the RTC regulation will be honored as if taken by
the FDIC. A contractor subject to an RTC exclusion or suspension will
be precluded thereby from participation in the FDIC's contracting
program unless that exclusion or suspension is modified or terminated
under the provision of this part.
Sec. 367.2 Definitions.
(a) Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
(b) Affiliated business entity means a company that is under the
control of the contractor, is in control of the contractor, or is under
common control with the contractor.
(c) Civil judgment means a judgment of a civil offense or liability
by any court of competent jurisdiction in the United States.
(d) Company means any corporation, firm, partnership, society,
joint venture, business trust, association, consortium or similar
organization.
(e) Conflict of interest means a situation in which:
(1) A contractor; any management officials or affiliated business
entities of a contractor; or any employees, agents, or subcontractors
of a contractor who will perform services under a proposed or existing
contract with the FDIC:
(i) Has one or more personal, business, or financial interests or
relationships which would cause a reasonable individual with knowledge
of the relevant facts to question the integrity or impartiality of
those who are
[[Page 35118]]
or will be acting under a proposed or existing FDIC contract;
(ii) Is an adverse party to the FDIC, RTC, Federal Savings and Loan
Insurance Corporation (FSLIC), or their successors in a lawsuit; or
(iii) Has ever been suspended, excluded, or debarred from
contracting with a federal entity or has ever had a contract with the
FDIC, RTC, FSLIC or their successors rescinded or terminated prior to
the contract's completion and which rescission or termination involved
issues of conflicts of interest or ethical responsibilities; or
(2) Any other facts exist which the FDIC, in its sole discretion,
determines may, through performance of a proposed or existing FDIC
contract, provide a contractor with an unfair competitive advantage
which favors the interests of the contractor or any person with whom
the contractor has or is likely to have a personal or business
relationship.
(f) Contractor means a person or company which has submitted an
offer to perform services for the FDIC or has a contractual arrangement
with the FDIC to perform services. For purposes of this part,
contractor also includes:
(1) A contractor's affiliated business entities, key employees, and
management officials of the contractor;
(2) Any subcontractor performing services for the FDIC and the
management officials and key employees of such subcontractors; and
(3) Any entity or organization seeking to perform services for the
FDIC as a minority or woman-owned business (MWOB).
(g) Contract(s) means agreement(s) between FDIC and a contractor,
including, but not limited to, agreements identified as ``task
orders'', for a contractor to provide services to FDIC. Contracts also
mean contracts between a contractor and its subcontractor.
(h) Control means the power to vote, directly or indirectly, 25
percent or more of any class of the voting stock of a company; the
ability to direct in any manner the election of a majority of a
company's directors or trustees; or the ability to exercise a
controlling influence over the company's management and policies. For
purposes of this definition, a general partner of a limited partnership
is presumed to be in control of that partnership.
(i) Conviction means a judgment or conviction of a criminal offense
by any court of competent jurisdiction, whether entered upon a verdict
or plea, and includes pleas of nolo contendere.
(j) FDIC means the Federal Deposit Insurance Corporation acting in
its receivership and corporate capacities, and FDIC officials or
committees acting under delegated authority.
(k) Indictment shall include an information or other filing by a
competent authority charging a criminal offense.
(l) Key employee means an individual who participates personally
and substantially in the negotiation of, performance of, and/or
monitoring for compliance under a contract with the FDIC. Such
participation is made through, but is not limited to, decision,
approval, disapproval, recommendation, or the rendering of advice under
the contract.
(m) Management official means any shareholder, employee or partner
who controls a company and any individual who directs the day-to-day
operations of a company. With respect to a partnership, all partners
are deemed to be management officials unless the partnership is
governed by a management or executive committee with responsibility for
the day-to-day operations. In partnerships with such committees,
management official means only those partners who are a member of such
a committee.
(n) Material fact means one that is necessary to determine the
outcome of an issue or case and without which the case could not be
supported.
(o) Offer means a proposal or other written or oral offer to
provide services to FDIC.
(p) Pattern or practice of defalcation regarding obligations means
two or more instances in which a loan or advance from an insured
depository institution:
(1) Is in default for ninety (90) or more days as to payment of
principal, interest, or a combination thereof, and there remains a
legal obligation to pay an amount in excess of $50,000; or
(2) Where there has been a failure to comply with the terms of a
loan or advance to such an extent that the collateral securing the loan
or advance was foreclosed upon, resulting in a loss in excess of
$50,000 to the insured depository institution.
(q) Preponderance of the evidence means proof by information that,
compared with that opposing it, leads to the conclusion that the fact
at issue is more probably true than not.
(r) Subcontractor means an entity or organization that enters into
a contract with an FDIC contractor or another subcontractor to perform
services under a proposed or existing contract with the FDIC.
(s) Substantial loss to federal deposit insurance funds means:
(1) A loan or advance from an insured depository institution, which
is currently owed to the FDIC, RTC, FSLIC or their successors, or the
Bank Insurance Fund (BIF), the Savings Association Insurance Fund
(SAIF), the FSLIC Reserve Fund (FRF), or funds that were maintained by
the RTC for the benefit of insured depositors, that is or has ever been
delinquent for ninety (90) or more days as to payment of principal,
interest, or a combination thereof and on which there remains a legal
obligation to pay an amount in excess of $50,000;
(2) An obligation to pay an outstanding, unsatisfied, final
judgment in excess of $50,000 in favor of the FDIC, RTC, FSLIC, or
their successors, or the BIF, the SAIF, the FRF or the funds that were
maintained by the RTC for the benefit of insured depositors; or
(3) A loan or advance from an insured depository institution which
is currently owed to the FDIC, RTC, FSLIC or their successors, or the
BIF, the SAIF, the FRF or the funds that were maintained by the RTC for
the benefit of insured depositors, where there has been a failure to
comply with the terms to such an extent that the collateral securing
the loan or advance was foreclosed upon, resulting in a loss in excess
of $50,000.
Sec. 367.3 Appropriate officials.
(a) The Ethics Counselor is the Executive Secretary of the FDIC.
The Ethics Counselor shall act as the official responsible for
rendering suspension and exclusion decisions under this part. In
addition to taking suspension and/or exclusion action under this part,
the Ethics Counselor has authority to terminate exclusion and
suspension proceedings. As used in this part, ``Ethics Counselor''
includes any official designated by the Ethics Counselor to act on the
Ethics Counselor's behalf.
(b) The Corporation Ethics Committee is the committee appointed by
the Chairman of the FDIC, or Chairman's designee, which provides review
of any suspension or exclusion decision rendered by the Ethics
Counselor that is appealed by a contractor who has been suspended and/
or excluded from FDIC contracting.
(c) Information concerning the possible existence of any cause for
suspension or exclusion shall be reported to the Office of the
Executive Secretary (Ethics Section). This part does not modify the
responsibility to report allegations of fraud, waste and abuse,
including but not limited to criminal violations, to the Office of
Inspector General.
[[Page 35119]]
Sec. 367.4 [Reserved]
Sec. 367.5 Exclusions.
(a) The Ethics Counselor may exclude a contractor from the FDIC
contracting program for any of the causes set forth in Sec. 367.6,
using procedures established in this part.
(b) Exclusion is a serious action to be imposed when a contractor
has violated one or more of the causes set forth in Sec. 367.6.
Contractors excluded from FDIC contracting programs are prohibited from
entering into any new contracts with FDIC for the duration of the
period of exclusion as determined pursuant to this part. The FDIC shall
not solicit offers from, award contracts to, extend or modify existing
contracts, award task orders under existing contracts, or consent to
subcontracts with such contractors. Excluded contractors are also
prohibited from conducting business with FDIC as agents or
representatives of other contractors.
(c) Exclusion actions do not become effective upon the notification
of the contractor that there is a possible cause to exclude under
Sec. 367.13. Rather, they become effective only upon the Ethics
Counselor's decision to exclude the contractor pursuant to Sec. 367.16.
(d) The causes for exclusion set forth in Sec. 367.6(a)(1) through
(4) reflect statutorily established mandatory bars to contracting with
the FDIC.
(e) Except when one or more of the statutorily established
mandatory bars to contracting are shown to exist, the existence of a
cause for exclusion does not necessarily require that the contractor be
excluded; the seriousness of the contractor's acts or omissions and any
mitigating or aggravating circumstances shall be considered in making
any exclusion decision.
Sec. 367.6 Causes for exclusion.
The FDIC may exclude a contractor, in accordance with the
procedures set forth in this part, upon a finding that:
(a) The contractor has been convicted of any felony;
(b) The contractor has been removed from, or prohibited from
participating in the affairs of, any insured depository institution
pursuant to any final enforcement action by the Office of the
Comptroller of the Currency, the Office of Thrift Supervision, the
Board of Governors of the Federal Reserve System, or the Federal
Deposit Insurance Corporation or their successors;
(c) The contractor has demonstrated a pattern or practice of
defalcation;
(d) The contractor has caused a substantial loss to Federal deposit
insurance funds;
(e) The contractor has failed to disclose, pursuant to 12 CFR
366.6, a material fact to the FDIC;
(f) The contractor has failed to disclosed any material adverse
change in the representations and certifications provided to FDIC under
12 CFR 366.6;
(g) The contractor has miscertified its status as a minority and/or
woman owned business (MWOB);
(h) The contractor has a conflict of interest that was not waived
by the Ethics Counselor or designee;
(i) The contractor has been subject to a final enforcement action
by any federal financial institution regulatory agency, or has
stipulated to such action;
(j) The contractor is debarred from participating in other federal
programs;
(k) The contractor has been convicted of, or subject to a civil
judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction, or conspiracy to do the same;
(2) Violation of federal or state antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging, or conspiracy to do the
same;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstructing of justice,
or conspiracy to do the same;
(4) Commission of any other offense indicating a breach of trust,
dishonesty or lack of integrity, or conspiracy to do the same;
(l) The contractor's performance under previous contract(s) with
FDIC or RTC has resulted in:
(1) The FDIC or RTC declaring such contract(s) to be in default;
(2) The termination of such contract(s) for poor performance; or
(3) A violation of the terms of a contract that would have resulted
in a default or termination of the contract for poor performance if
that violation had been discovered during the course of the contract;
or
(m) The contractor has engaged in any conduct:
(1) Indicating a breach of trust, dishonesty, or lack of integrity
that seriously and directly affects its ability to meet standards of
present responsibility required of an FDIC contractor; or
(2) So serious or compelling in nature that it adversely affects
the ability of a contractor to meet the minimum ethical standards
required by 12 CFR part 366.
Sec. 367.7 Suspensions.
(a) The Ethics Counselor may suspend a contractor for any of the
causes in Sec. 367.8 using the procedures established in this section.
(b) Suspension is an action to be imposed when there exists
adequate evidence of one or more of the causes set out in Sec. 367.8.
This includes, but is not limited to, situations where immediate action
is necessary to protect the integrity of the FDIC contracting program
and/or the security of FDIC assets during the pendency of legal or
investigative proceedings initiated by FDIC, any federal agency or any
law enforcement authority.
(c) The duration of any suspension action shall be for a temporary
period pending the completion of an investigation and such other legal
proceedings as may ensue.
(d) A suspension shall become effective immediately upon issuance
of the notice specified in Sec. 367.13(b).
(e) Contractors suspended from FDIC contracting programs are
prohibited from entering into any new contracts with the FDIC for the
duration of the period of suspension. The FDIC shall not solicit offers
from, award contracts to, extend or modify existing contracts, award
task orders under existing contracts, or consent to subcontracts with
such contractors. Suspended contractors are also prohibited from
conducting business with FDIC as agents or representatives of other
contractors.
Sec. 367.8 Causes for suspension.
(a) Suspension may be imposed under the procedures set forth in
this section upon adequate evidence:
(1) Of suspension by another federal agency;
(2) That a cause for exclusion under Sec. 367.6 may exist;
(3) Of the commission of any other offense indicating a breach of
trust, dishonesty, or lack of integrity that seriously and directly
affects the minimum ethical standards required of an FDIC contractor;
or
(4) Of any other cause so serious or compelling in nature that it
adversely affects the ability of a contractor to meet the minimal
ethical standards required by 12 CFR part 366.
(b) Indictment for any offense described in Sec. 367.6 is adequate
evidence to suspend a contractor.
(c) In assessing the adequacy of the evidence, FDIC will consider
how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated
and what inferences can reasonably be drawn as a result.
[[Page 35120]]
Sec. 367.9 Imputation of causes.
(a) Where there is cause to suspend and/or exclude any affiliated
business entity of the contractor, that conduct may be imputed to the
contractor if the conduct occurred in connection with the affiliated
business entity's performance of duties for or on behalf of the
contractor, or with the contractor's knowledge, approval, or
acquiescence. The contractor's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(b) Where there is cause to suspend and/or exclude any contractor,
that conduct may be imputed to any affiliated business entity, key
employee, or management official of a contractor who participated in,
knew of or had reason to know of the contractor's conduct.
(c) Where there is cause to suspend and/or exclude a key employee
or management official of a contractor, that cause may be imputed to
the contractor if the conduct occurred in connection with the key
employee or management official's performance of duties for or on
behalf of the contractor, or with the contractor's knowledge, approval,
or acquiescence. The contractor's acceptance of the benefits derived
from the conduct shall be evidence of such knowledge, approval, or
acquiescence.
(d) Where there is cause to suspend and/or exclude one contractor
participating in a joint venture or similar arrangement, that cause may
be imputed to other participating contractors if the conduct occurred
for or on behalf of the joint venture or similar arrangement, or with
the knowledge, approval, or acquiescence of these contractors.
Acceptance of the benefits derived from the conduct shall be evidence
of such knowledge, approval, or acquiescence.
(e) Where there is cause to suspend and/or exclude a subcontractor,
that cause may be imputed to the contractor for which the subcontractor
performed services, if the conduct occurred for or on behalf of the
contractor and with the contractor's knowledge, approval, or
acquiescence. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
Secs. 367.10-367.11 [Reserved]
Sec. 367.12 Procedures.
(a) FDIC shall process suspension and exclusion actions as
informally as practicable, consistent with its policy of providing
contractors with adequate information on the grounds that give rise to
the proposed action and affording contractors with a reasonable
opportunity to respond.
(b) For purposes of determining filing dates for the pleadings
required by this part, including responses, notices of appeal, appeals
and requests for reconsideration, the provisions relating to the
construction of time limits in 12 CFR 308.12 will control.
Sec. 367.13 Notices.
(a) Exclusions. Before excluding a contractor, the FDIC shall send
it a written notice of possible cause to exclude. Such notice shall
include:
(1) Notification that exclusion for a specified period of time is
being considered based on the specified cause(s) in Sec. 367.6 to be
relied upon;
(2) Identification of the event(s), circumstance(s), or
condition(s) that indicates that there is cause to believe a cause for
exclusion exists, described in sufficient detail to put the contractor
on notice of the conduct or transaction(s) upon which an exclusion
proceeding is based;
(3) Notification that the contractor is not prohibited from
contracting with the FDIC unless and until it is either suspended from
FDIC contracting or the FDIC Ethics Counselor issues a decision
excluding the contractor, provided however, in any case where the
possible cause for exclusion would also be an impediment to the
contractor's eligibility pursuant to 12 CFR part 366, the contractor's
eligibility for any contract will be determined under that part; and
(4) Notification of the regulatory provisions governing the
exclusion proceeding and the potential effect of a final exclusion
decision.
(b) Suspensions. Before suspending a contractor, the FDIC shall
send it notice, including:
(1) Notice that a suspension is being imposed based on specified
causes in Sec. 367.8;
(2) Identification of the event(s), circumstance(s), or
condition(s) that indicate that there is adequate evidence to believe a
cause for suspension exists, described in sufficient detail to put the
contractor on notice of the basis for the suspension, recognizing that
the conduct of ongoing investigations and legal proceedings, including
criminal proceedings, place limitations on the evidence that can be
released;
(3) Notification that the suspension prohibits the contractor from
contracting with the FDIC for a temporary period, pending the
completion of an investigation or other legal proceedings; and
(4) Notification of the regulatory provisions governing the
suspension proceeding.
(c) Service of notices. Notices will be sent to the contractor by
first class mail, postage prepaid. For purposes of compliance with this
section, notice shall be considered to have been received by the
contractor if the notice is properly mailed to the last known address
of such contractor. Whenever practical, a copy of the notice will also
be transmitted to the contractor by facsimile. In the event the notice
is not sent by facsimile, a copy will be sent by an overnight delivery
service such as Express Mail or a commercial equivalent.
Sec. 367.14 Responses.
(a) The contractor will have 15 days from the date of the notice
within which to respond.
(b) The response shall be in writing and may include: information
and argument in opposition to the proposed exclusion and/or suspension,
including any additional specific information pertaining to the
possible causes for exclusion; and information and argument in
mitigation of the proposed period of exclusion.
(c) The response may request a meeting with an FDIC official
identified in the notice to permit the contractor to discuss issues of
fact or law relating to the suspension and/or proposed exclusion or to
otherwise resolve the pending matters.
(1) Any such meetings between a contractor and FDIC shall take such
form as the FDIC deems appropriate.
(2) In cases of suspensions, no meeting will be held where a
representative of the Department of Justice has advised in writing that
the substantial interests of the Government would be prejudiced by such
a meeting and the Ethics Counselor determines that a suspension is
based on the same facts as pending or contemplated legal proceedings
referenced by the representative of the Department of Justice.
(d) Failure to respond to the notice shall be deemed an admission
of the existence of the cause(s) for suspension and/or exclusion set
forth in the notice and an acceptance of the period of exclusion
proposed therein. In such circumstances, the FDIC may proceed to a
final decision without further proceedings.
(e) Where a contractor has received more than one notice, the FDIC
may consolidate the pending proceedings, including the scheduling of
any meetings, in accordance with this section.
[[Page 35121]]
Sec. 367.15 Additional proceedings as to disputed material facts.
(a) In actions not based upon a conviction or civil judgment, if
the Ethics Counselor finds that the contractor's submission raises a
genuine dispute over facts material to the proposed suspension and/or
exclusion, the contractor shall be afforded an opportunity to appear
(with counsel, if desired), submit documentary evidence, present
witnesses, and confront any witnesses the FDIC presents.
(b) The Ethics Counselor may refer disputed material facts to
another official for analysis and recommendation.
(c) If requested, a transcribed record of any additional
proceedings shall be made available at cost to the contractor.
Sec. 367.16 Ethics Counselor decisions.
(a) Standard of proof:
(1) An exclusion must be based on a finding that the cause(s) for
exclusion is established by a preponderance of the evidence in the
administrative record of the case; and
(2) A suspension must be based on a finding that the cause(s) for
suspension is established by adequate evidence in the administrative
record of the case.
(b) The administrative record consists of the portion of any
information, reports, documents or other evidence identified and relied
upon in the Notice of Possible Cause to Exclude, the Notice of
Suspension and/or supplemental Notices, if any, together with any
material portions of the contractor's response. When additional
proceedings are necessary to determine disputed material facts, the
Ethics Counselor shall base the decision on the facts as found,
together with any information and argument submitted by the contractor
and any other information in the administrative record.
(c) In actions based upon a conviction, judgment, a final
enforcement action by a federal financial institution regulatory
agency, or in which all facts and circumstances material to the
exclusion action have been finally adjudicated in another forum, the
Ethics Counselor may exclude a contractor without regard to the
procedures set out in Secs. 367.13 through 367.14. Any such decisions
will be subject to the review and reconsideration provisions of
Sec. 367.20.
(d) Notice of decisions. Contractors shall be given prompt notice
of the Ethics Counselor's decision in the manner described in
Sec. 367.13(c). If the Ethics Counselor suspends a contractor or
imposes a period of exclusion, the decision shall:
(1) Set forth the cause(s) for suspension and/or exclusion included
in the Notice that were found by a preponderance of the evidence with
reference to the administrative record support for that finding;
(2) Set forth the effect of the exclusion action and the effective
dates of that action;
(3) Refer the contractor to its procedural rights of review and
reconsideration under Sec. 367.20; and
(4) Inform the contractor that a copy of the exclusion decision
shall be placed in the FDIC Public Reading Room.
(e) If the FDIC Ethics Counselor decides that a period of exclusion
is not warranted, the Notice of Possible Cause to Exclude may be
withdrawn or the proceeding may be otherwise terminated. A decision to
terminate an exclusion proceeding may include the imposition of
appropriate conditions on the contractor in their future dealings with
the FDIC.
Sec. 367.17 Duration of suspensions and exclusions.
(a) Suspensions. (1) Suspensions shall be for a temporary period
pending the completion of an investigation or other legal or exclusion
proceedings.
(2) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless a representative of the Department of Justice
requests its extension in writing. In such cases, the suspension may be
extended for an additional six months. In no event may a suspension be
imposed for more than 18 months, unless such proceedings have been
initiated within that period.
(3) FDIC shall notify the Department of Justice of an impending
termination of a suspension at least 30 days before the 12-month period
expires to give the Department of Justice an opportunity to request an
extension.
(4) The time limitations for suspension in this section may be
waived by the affected contractor.
(b) Exclusions. (1) Exclusions shall be for a period commensurate
with the seriousness of the cause(s) after due consideration of
mitigating evidence presented by the contractor.
(2) If a suspension precedes an exclusion, the suspension period
shall be considered in determining the exclusion period.
(3) Exclusion for causes other than the mandatory bars in 12 CFR
366.4(a) generally should not exceed three years, but where
circumstances warrant, a longer period of exclusion may be imposed.
(4) The Ethics Counselor may extend an existing exclusion for an
additional period if the Ethics Counselor determines that an extension
is necessary to protect the integrity of the FDIC contracting program
and the public interest. However, an exclusion may not be extended
solely on the basis of the facts and circumstances upon which the
initial exclusion action was based. The standards and procedures in
this part shall be applied in any proceeding to extend an exclusion.
Sec. 367.18 Abrogation of contracts.
(a) The FDIC may, in its discretion, rescind or terminate any
contract in existence at the time a contractor is suspended or
excluded.
(b) Any contract not rescinded or terminated shall continue in
force in accordance with the terms thereof.
(c) The right to rescind or terminate a contract in existence is
cumulative and in addition to any other remedies or rights the FDIC may
have under the terms of the contract, at law, or otherwise.
Sec. 367.19 Exceptions to suspensions and exclusions.
(a) Exceptions to the effects of suspensions and exclusions may be
available in unique circumstances, where there are compelling reasons
to utilize a particular contractor for a specific task. Requests for
such exceptions may be submitted only by the FDIC program office
requesting the contract services.
(b) In the case of the modification or extension of an existing
contract, the Ethics Counselor may except such a contracting action
from the effects of suspension and/or exclusion upon a determination,
in writing, that a compelling reason exists for utilization of the
contractor in the particular instance. The Ethics Counselor's authority
under this section shall not be delegated to any lower official.
(c) In the case of new contracts, the Corporation Ethics Committee
may except a particular new contract from the effects of suspension
and/or exclusion upon a determination in writing that a compelling
reason exists for utilization of the contractor in the particular
instance.
Sec. 367.20 Review and reconsideration of Ethics Counselor decisions.
(a) Review. (1) A suspended and/or excluded contractor may appeal
the exclusion decision to the Corporation Ethics Committee.
(2) In order to avail itself of the right to appeal, a suspended
and/or excluded contractor must file a written notice of intent to
appeal within 5 days of the Ethics Counselor's decision.
[[Page 35122]]
(3) The appeal shall be filed in writing within 30 days of the
decision.
(4) The Corporation Ethics Committee, at its discretion and after
determining that it is in the best interests of the FDIC, may stay the
effect of the suspension and/or exclusion pending conclusion of its
review of the matter.
(b) Reconsideration. (1) A suspended and/or excluded contractor may
submit a request to the Ethics Counselor to reconsider the suspension
and/or exclusion decision, reduce the period of exclusion or terminate
the suspension and/or exclusion.
(2) Such requests shall be in writing and supported by
documentation that the requested action is justified by:
(i) Reversal of the conviction or civil judgment upon which the
suspension and/or exclusion was based;
(ii) Newly discovered material evidence;
(iii) Bona fide change in ownership or management;
(iv) Elimination of other causes for which the suspension and/or
exclusion was imposed; or
(v) Other reasons the FDIC Ethics Counselor deems appropriate.
(3) A request for reconsideration based on the reversal of the
conviction or civil judgment may be filed at any time.
(4) Requests for reconsideration based on other grounds may only be
filed during the period commencing 60 days after the Ethics Counselor's
decision imposing the suspension and/or exclusion. Only one such
request may be filed in any twelve month period.
(5) The Ethics Counselor's decision on a request for
reconsideration is subject to the review procedure set forth in
paragraph (a) of this section.
By order of the Board of Directors.
Dated at Washington, D.C., this 17th day of June 1996.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 96-16510 Filed 7-3-96; 8:45 am]
BILLING CODE 6714-01-P
Complete official Federal Register PDF
FR Doc. 96-15953 Airworthiness Directives; Airbus Model A300 B2 and B4 Series Airplanes
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Rules and Regulations]
[Pages 35122-35125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15953]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94-NM-102-AD; Amendment 39-9679; AD 96-13-11]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A300 B2 and B4 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to all Airbus Model A300 B2, B4-100, and B4-200 series
airplanes, that currently requires supplemental structural inspections
to detect fatigue cracking, and repair of cracked structure. This
amendment requires revising the supplemental structural inspection
(SSID) program by changing some of the inspection techniques, changing
some of the thresholds and intervals for inspections, expanding the
area to be inspected for some of the inspections, and revising the
Fleet Leader Program. This amendment is prompted by a review of recent
service history and reports received from the current SSID program
required by the existing AD. The actions specified by this AD are
intended to prevent reduced structural integrity of these airplanes due
to fatigue cracking.
DATES: Effective August 9, 1996.
The incorporation by reference of Airbus Industrie A300
Supplemental Structural Inspection Document (SSID), Revision 2, dated
June 1994, as listed in the regulations is approved by the Director of
the Federal Register as of August 9, 1996.
The incorporation by reference of Airbus Industrie A300
Supplemental Structural Inspection Document (SSID), dated September
1989, as listed in the regulations, was approved previously by the
Director of the Federal Register as of March 9, 1993 (58 FR 6703,
February 2, 1993).
ADDRESSES: The service information referenced in this AD may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2146; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 93-01-24,
amendment 39-8478 (58 FR 6703, February 2, 1993), which is applicable
to all Airbus Model A300 B2, B4-100, and B4-200 series airplanes, was
published in the Federal Register on January 31, 1996 (61 FR 3343). The
action proposed to continue to require supplemental structural
inspections to detect fatigue cracking, and repair of cracked
structure. The action also proposed to require revising the
supplemental structural inspection program, including changing some of
the inspection techniques, changing some of the thresholds and
intervals for certain inspections, expanding the area to be inspected
for some of the inspections, and revising the Fleet Leader Program.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Support for the Proposal
Both commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that approximately 26 Model A300 series airplanes
of U.S. registry will be affected by this AD.
The actions that are currently required by AD 93-01-24 take
approximately 564 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact on U.S. operators of the actions required by AD 93-01-24 is
estimated to be $879,840, or $33,840 per airplane.
Implementation of the inspections, repairs, and replacements
specified in Revision 2 of the SSID into an operator's maintenance
program is estimated to require approximately 597 work hours (including
removal, inspection, and installation work hours) per airplane per
year, at an average labor rate of $60 per
[[Page 35123]]
work hour. Based on these figures, the cost impact on U.S. operators of
the proposed requirements of this AD is estimated to be $931,320, or
$35,820 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-8478 (58 FR
6703, February 2, 1993), and by adding a new airworthiness directive
(AD), amendment 39-9679, to read as follows:
96-13-11 Airbus Industries: Amendment 39-9679. Docket 94-NM-102-AD.
Supersedes AD 93-01-24, Amendment 39-8478.
Applicability: All Model A300 B2-1A, B2-1C, B2K-3C, and B2-203
series airplanes, and Model A300 B4-2C, B4-103, and B4-203 series
airplanes; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (m) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced structural integrity of these airplanes due
to fatigue cracking, accomplish the following:
(a) Within one year after March 9, 1993 (the effective date of
AD 93-01-24, amendment 39-8478), incorporate a revision into the
FAA-approved maintenance inspection program that provides for
supplemental maintenance inspections, modifications, repair, or
replacement of the significant structural details (SSD) and
significant structural items (SSI) specified in ``Airbus Industrie
A300 Supplemental Structural Inspection Document'' (SSID), dated
September 1989 (hereafter referred to as ``the SSID'').
(b) Within one year after the effective date of this AD, replace
the revision of the FAA-approved maintenance program required by
paragraph (a) of this AD with the inspections, inspection intervals,
repairs, and replacements defined in ``Airbus Industrie A300
Supplemental Structural Inspection Document'' (SSID), Revision 2,
dated June 1994 (hereafter referred to as ``Revision 2 of the
SSID''). Accomplish the actions specified in the service bulletins
identified in Section 6, ``SB Reference List,'' Revision 2 of the
SSID, at the times specified in those service bulletins. The actions
are to be accomplished in accordance with those service bulletins.
(1) For airplanes that have exceeded the threshold specified in
any of the service bulletins identified in Section 6, ``SB Reference
List,'' Revision 2 of the SSID: Accomplish the actions specified in
those service bulletins within the grace period specified in that
service bulletin. The grace period is to be measured from the
effective date of this AD.
(2) For airplanes that have exceeded the threshold specified in
any of the service bulletins identified in Section 6, ``SB Reference
List,'' Revision 2 of the SSID, and a grace period is not specified
in that service bulletin: Accomplish the actions specified in that
service bulletins within 1,500 flight cycles after the effective
date of this AD.
(c) If any cracked structure is detected during the inspections
required by either paragraph (a) or (b) of this AD, prior to further
flight, permanently repair the cracked structure in accordance with
either paragraph (c)(1), (c)(2), or (c)(3) of this AD.
Note 2: A permanent repair is defined as a repair that meets the
certification basis of the airplane, and does not require additional
modification at a later date.
(1) The service bulletins listed in Section 6, ``SB Reference
List,'' of the SSID [for airplanes that are currently being
inspected in accordance with paragraph (a) of this AD]; or in
accordance with a method approved by the Manager, Standardization
Branch, ANM-113, FAA, Transport Airplane Directorate, if a permanent
repair is not specified in any of these service bulletins. Or
(2) The service bulletins listed in Section 6, ``SB Reference
List,'' of Revision 2 of the SSID [for airplanes that are currently
being inspected in accordance with paragraph (b) of this AD]; or in
accordance with a method approved by the Manager, Standardization
Branch, ANM-113, if a permanent repair is not specified in any of
these service bulletins. Or
(3) Other permanent repair data meeting the certification basis
of the airplane which is approved by the Manager, Standardization
Branch, ANM-113, or by the Direction Gonorale de l'Aviation Civile
(DGAC) of France.
(d) For airplanes identified as Fleet Leader Program (FLP) in
Section 5, ``Fleet Leader Program,'' of the SSID or Revision 2 of
the SSID: Inspect according to the instructions and intervals
specified in paragraph 4.4, ``Adjustment of Inspection Requirements
and DSG,'' of Section 4, or Section 9, as applicable, of the SSID
[for airplanes inspected in accordance with paragraph (a) of this
AD], or Revision 2 of the SSID [for airplanes inspected in
accordance with paragraph (b) of this AD], for each SSD.
(e) For the purpose of accomplishing paragraphs (d), (f), (g),
and (i) of this AD, operators shall not use paragraph 6.2,
``Complete RR Method,'' of Section 9 of the SSID to calculate
inspection thresholds and intervals.
(f) For Model A300-B2 and B2K-3C series airplanes: For any SSD
that has exceeded the values of the threshold specified in paragraph
6, ``Inspection Threshold and Intervals,'' Section 9 of the SSID,
inspect at the time specified in either paragraph (f)(1) or (f)(2)
of this AD, as applicable.
(1) For airplanes inspected in accordance with paragraph (a) of
this AD: Inspect within 2,000 landings after March 9, 1993, in
accordance with the SSID. Or
(2) For airplanes inspected in accordance with paragraph (b) of
this AD: Inspect within 2,000 landings after the effective date of
this AD, in accordance with Revision 2 of the SSID.
(g) For Model A300-B4 series airplanes: For any SSD that has
exceeded the values of the threshold specified in paragraph 6,
``Inspection Threshold and Intervals,'' Section 9 of the SSID,
inspect at the time specified in either paragraph (g)(1) or (g)(2)
of this AD, as applicable.
[[Page 35124]]
(1) For airplanes inspected in accordance with paragraph (a) of
this AD: Inspect within 1,500 landings after March 9, 1993 [the
effective date of AD 93-01-24, amendment 39-8478]. Or
(2) For airplanes inspected in accordance with paragraph (b) of
this AD: Inspect within 1,500 landings after the effective date of
this AD.
(h) For airplanes identified as FLP in Section 5, ``Fleet Leader
Program,'' of the SSID or Revision 2 of the SSID: Within one year
after the effective date of this AD, apply the basic requirements
given in Revision 2 of the SSID.
(i) For airplanes that are subject to the requirements of
paragraph (b) of this AD, and have exceeded the initial inspection
threshold specified in paragraph 4.4, ``Adjustment of Inspection
Requirements and DSG,'' of Section 4, or paragraph 6, ``Inspection
Threshold and Intervals,'' of Section 9, for each SSD: Perform the
initial inspection prior to the accumulation of the number of flight
cycles specified in paragraph 7, ``Additional Information,'' Section
9, of Revision 2 of the SSID.
Note 3: Fatigue ratings are not applicable to these allowances;
therefore, no adjustment is required.
Note 4: Paragraph (i) of this AD provides the ``grace'' periods
for those airplanes that are new to the FLP or that have newly added
or revised SSID requirements in accordance with paragraph (b) of
this AD.
(j) The grace period provided by paragraph (i) of this AD is
also applicable to the thresholds and/or repeat intervals for each
SSD for which the inspection interval or threshold was reduced in
accordance with the requirements of paragraph (b) of this AD.
(k) For FLP airplanes identified in Section 5, ``Fleet Leader
Program,'' of the SSID or Revision 2 of the SSID that are listed in
Section 7, ``SSI Limitation List,'' of the SSID [for airplanes that
are currently being inspected in accordance with paragraph (a) of
this AD] , or Revision 2 of the SSID [for airplanes that are
currently being inspected in accordance with paragraph (b) of this
AD]: Inspect at intervals not to exceed the interval specified for
each SSI, in accordance with the values given in Section 7, ``SSI
Limitation List,'' of the SSID or Revision 2 of the SSID, as
applicable.
(l) For all airplanes: All inspection results, positive or
negative, must be reported to Airbus Industrie in accordance with
either paragraph (l)(1) or (l)(2) of this AD, as applicable.
Information collection requirements contained in this regulation
have been approved by the Office of Management and Budget (OMB)
under the provisions of the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.) and have been assigned OMB Control Number 2120-
0056.
(1) For FLP airplanes, identified in Section 5, ``Fleet Leader
Program,'' of the SSID or Revision 2 of the SSID: Submit reports in
accordance with the instructions in paragraph 5.2, ``SSIP Inspection
Reporting,'' of Section 5, and paragraph 7.1, ``General,'' of
Section 7 of the SSID [for airplanes that are currently being
inspected in accordance with paragraph (a) of this AD]; or Revision
2 of the SSID [for airplanes inspected in accordance with paragraph
(b) of this AD].
(2) For all airplanes that are subject to Section 6, ``SB
Reference List,'' of the SSID: Submit reports in accordance with the
instructions in the applicable service bulletins identified in
Section 6 of the SSID [for airplanes that are currently being
inspected in accordance with paragraph (a) of this AD]; or Revision
2 of the SSID [for airplanes that are currently being inspected in
accordance with paragraph (b) of this AD].
(m) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 5: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
Note 6: Alternative methods of compliance previously granted for
AD 93-01-24, amendment 39-8478, continue to be considered as
acceptable alternative methods of compliance with this amendment.
(n) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(o) The actions shall be done in accordance with Airbus
Industrie Supplemental Structural Inspection Document (SSID), dated
September 1989; or Airbus Industrie A300 SSID, Revision 2, dated
June 1994, as applicable. Airbus Industrie A300 SSID, Revision 2,
dated June 1994, contains the following list of effective pages:
------------------------------------------------------------------------
Revision level
Page No. shown on page Date shown on page
------------------------------------------------------------------------
Record of revision.............. 2................ Jun 94
Section 0:
O-LEP 1..................... 2................ Jun 94.
O-TOC 1..................... 2................ Jun 94.
Section 1:
1-LEP 1..................... 2................ Jun 94.
1-TOC 1..................... 1................ Mar 93.
1........................... 1................ Mar 93.
2, 3........................ 2................ Jun 94.
Section 2:
2-LEP 1..................... 2................ Jun 94.
2-TOC 1..................... 1................ Mar 93.
1, 2........................ 1................ Mar 93.
3........................... 2................ Jun 94.
Section 3:
3-LEP 1..................... 2................ Jun 94.
3-TOC 1..................... 2................ Jun 94.
1, 2........................ 2................ Jun 94.
Section 4:
4-LEP 1..................... 1................ Mar 93.
4-TOC 1..................... 1................ Mar 93.
1-3, 7-9, 11-16, 19, 24-38, 1................ Mar 93.
40-46.
4-6, 10, 17, 18, 20-23, 39.. 0................ Sep 89.
Section 5:
5-LEP 1..................... 2................ Jun 94.
5-TOC 1..................... 2................ Jun 94.
1-48........................ 2................ Jun 94.
Section 6:
6-LEP 1..................... 2................ Jun 94.
6-TOC 1..................... 1................ Mar 93.
1........................... 1................ Mar 93.
2-4......................... 2................ Jun 94.
Section 7:
7-LEP 1..................... 1................ Mar 93.
7-TOC 1..................... 1................ Mar 93.
1-10........................ 1................ Mar 93.
Section 8:
8-LEP 1..................... 1................ Mar 93.
8-TOC 1..................... 1................ Mar 93.
1-5......................... 1................ Mar 93.
Section 9:
9-LEP 1-6................... 2................ Jun 94.
9-LEP 7-9................... 2................ Jun 94.
9-TOC 1..................... 1................ Mar 93.
1-3......................... 1................ Mar 93.
4........................... 2................ Jun 94.
526305/1-4...................... 0................ Sep 89.
526305/5........................ 1................ Mar 93.
526305/6........................ 2................ Jun 94.
536101/1........................ 0................ Sep 89.
536101/2........................ 1................ Mar 93.
536101/3........................ 2................ Jun 94.
536101/4........................ 0................ Sep 89.
536110/1, 2..................... 0................ Sep 89.
536110/3........................ 1................ Mar 93.
536110/4........................ 2................ Jun 94.
536110/5........................ 0................ Sep 89.
536202/1........................ 0................ Sep 89.
536202/2, 3..................... 1................ Mar 93.
536202/4........................ 2................ Jun 94.
536202/5-7...................... 0................ Sep 89.
536204/1, 2..................... 0................ Sep 89.
536204/3, 4..................... 1................ Mar 93.
536204/5........................ 2................ Jun 94.
536204/6, 7..................... 0................ Sep 89.
536205/1, 2..................... 0................ Sep 89.
536205/3........................ 2................ Jun 94.
536205/4........................ 1................ Mar 93.
536205/5........................ 2................ Jun 94.
536205/6, 7..................... 0................ Sep 89.
536206/1........................ 0................ Sep 89.
536206/2, 3..................... 1................ Mar 93.
536206/4........................ 2................ Jun 94.
536206/5, 6..................... 0................ Sep 89.
536207/1........................ 0................ Sep 89.
536207/2........................ 1................ Mar 93.
536207/3........................ 2................ Jun 94.
536207/4-7...................... 0................ Sep 89.
536225/1........................ 0................ Sep 89.
536225/2........................ 1................ Mar 93.
536225/3........................ 2................ Jun 94.
536225/4-6...................... 0................ Sep 89.
536301/1-3...................... 0................ Sep 89.
536301/4........................ 1................ Mar 93.
536301/5........................ 0................ Sep 89.
536301/6........................ 1................ Mar 93.
536301/7-9...................... 2................ Jun 94.
536301/10....................... 2................ Jun 94.
536311/1-3...................... 0................ Sep 89.
536311/4........................ 1................ Mar 93.
536311/5, 6..................... 2................ Jun 94.
[[Page 35125]]
536311/7........................ 2................ Jun 94.
536355/1-4...................... 0................ Sep 89.
536355/5........................ 1................ Mar 93.
536355/6........................ 2................ Jun 94.
536359/1........................ 0................ Sep 89.
536359/2........................ 1................ Mar 93.
536359/3........................ 2................ Jun 94.
536365/1........................ 0................ Sep 89.
536365/2........................ 1................ Mar 93.
536365/3........................ 2................ Jun 94.
536365/4........................ 1................ Mar 93.
536367/1........................ 0................ Sep 89.
536367/2........................ 1................ Mar 93.
536367/3........................ 2................ Jun 94.
536403/1........................ 0................ Sep 89.
536403/2........................ 1................ Mar 93.
536403/3........................ 2................ Jun 94.
536403/4........................ 0................ Sep 89.
536405/1-3...................... 0................ Sep 89.
536405/4-5...................... 1................ Mar 93.
536405/6........................ 2................ Jun 94.
536405/7........................ 0................ Sep 89.
536407/1-3...................... 0................ Sep 89.
536407/4, 5..................... 1................ Mar 93.
536407/6........................ 2................ Jun 94.
536407/7........................ 0................ Sep 89.
536415/1, 2..................... 1................ Mar 93.
536415/3........................ 2................ Jun 94.
536415/4........................ 0................ Sep 89.
536502/1-4...................... 0................ Sep 89.
536502/5, 6..................... 1................ Mar 93.
536502/7-9...................... 2................ Jun 94.
536502/10....................... 2................ Jun 94.
536503/1, 2..................... 0................ Sep 89.
536503/3, 4..................... 1................ Mar 93.
536503/5........................ 2................ Jun 94.
536503/6-10..................... 0................ Sep 89.
536506/1, 2..................... 0................ Sep 89.
536506/3, 4..................... 1................ Mar 93.
536506/5........................ 2................ Jun 94.
536506/6-11..................... 0................ Sep 89.
536509/1, 2..................... 0................ Sep 89.
536509/3........................ 1................ Mar 93.
536509/4........................ 2................ Jun 94.
536509/5........................ 0................ Sep 89.
536510/1, 2..................... 0................ Sep 89.
536510/3........................ 1................ Mar 93.
536510/4........................ 2................ Jun 94.
536510/5, 6..................... 0................ Sep 89.
536521/1, 2..................... 0................ Sep 89.
536521/3, 4..................... 1................ Mar 93.
536521/5........................ 2................ Jun 94.
536523/1........................ 0................ Sep 89.
536523/2, 3..................... 1................ Mar 93.
536523/4........................ 2................ Jun 94.
536523/5, 6..................... 0................ Sep 89.
536541/1........................ 0................ Sep 89.
536541/2, 3..................... 2................ Jun 94.
536541/4........................ 2................ Jun 94.
536546/1........................ 0................ Sep 89.
536546/2........................ 1................ Mar 93.
536546/3........................ 2................ Jun 94.
536546/4-6...................... 0................ Sep 89.
536547/1........................ 0................ Sep 89.
536547/2........................ 1................ Mar 93.
536547/3........................ 2................ Jun 94.
536547/4........................ 0................ Sep 89.
536548/1, 2..................... 0................ Sep 89.
536548/3, 4..................... 1................ Mar 93.
536548/5........................ 2................ Jun 94.
536548/6-8...................... 1................ Mar 93.
536596/1, 2..................... 0................ Sep 89.
536596/3........................ 1................ Mar 93.
536596/4........................ 2................ Jun 94.
536596/5........................ 0................ Sep 89.
536598/1, 2..................... 0................ Sep 89.
536598/3, 4..................... 1................ Mar 93.
536598/5........................ 2................ Jun 94.
536598/6-9...................... 0................ Sep 89.
536599/1........................ 0................ Sep 89.
536599/2........................ 1................ Mar 93.
536599/3-6...................... 2................ Jun 94.
536599/7........................ 2................ Jun 94.
536651/1, 2..................... 0................ Sep 89.
536651/3, 4..................... 1................ Mar 93.
536651/5........................ 2................ Jun 94.
536652/1-3...................... 0................ Sep 89.
536652/4........................ 1................ Mar 93.
536652/5........................ 2................ Jun 94.
536652/6........................ 0................ Sep 89.
536704/1, 2..................... 0................ Sep 89.
536704/3........................ 1................ Mar 93.
536704/4........................ 2................ Jun 94.
536704/5........................ 0................ Sep 89.
546001/1........................ 0................ Sep 89.
546001/2, 3..................... 1................ Mar 93.
546001/4........................ 2................ Jun 94.
546001/5-10..................... 1................ Mar 93.
536014/1........................ 0................ Sep 89.
536014/2, 3..................... 1................ Mar 93.
536014/4........................ 2................ Jun 94.
536014/5-7...................... 0................ Sep 89.
556002/1........................ 0................ Sep 89.
556002/2, 3..................... 1................ Mar 93.
556002/4........................ 2................ Jun 94.
556002/5-7...................... 1................ Mar 93.
556003/1-4...................... 0................ Sep 89.
556003/5, 6..................... 1................ Mar 93.
556003/7........................ 2................ Jun 94.
556003/8-10..................... 1................ Mar 93.
556004/1, 2..................... 0................ Sep 89.
556004/3........................ 1................ Mar 93.
556004/4........................ 2................ Jun 94.
576004/1........................ 0................ Sep 89.
576004/2........................ 1................ Mar 93.
576004/3........................ 2................ Jun 94.
576004/4-6...................... 0................ Sep 89.
576007/1........................ 0................ Sep 89.
576007/2........................ 1................ Mar 93.
576007/3........................ 2................ Jun 94.
576007/4-6...................... 0................ Sep 89.
576009/1........................ 0................ Sep 89.
576009/2........................ 1................ Mar 93.
576009/3........................ 2................ Jun 94.
576009/4-6...................... 0................ Sep 89.
576011/1........................ 0................ Sep 89.
576011/2........................ 1................ Mar 93.
576011/3........................ 2................ Jun 94.
576011/4-6...................... 0................ Sep 89.
576013/1-3...................... 0................ Sep 89.
576013/4........................ 1................ Mar 93.
576013/5-8...................... 2................ Jun 94.
576013/9........................ 2................ Jun 94.
576017/1........................ 0................ Sep 89.
576017/2........................ 1................ Mar 93.
576017/3........................ 2................ Jun 94.
576017/4........................ 0................ Sep 89.
576021/1........................ 0................ Sep 89.
576021/2........................ 1................ Mar 93.
576021/3........................ 2................ Jun 94.
576021/4-6...................... 0................ Sep 89.
576029/1, 2..................... 0................ Sep 89.
576029/3........................ 1................ Mar 93.
576029/4........................ 2................ Jun 94.
576029/5-7...................... 0................ Sep 89.
576031/1........................ 0................ Sep 89.
576031/2........................ 1................ Mar 93.
576031/3........................ 2................ Jun 94.
576031/4-6...................... 0................ Sep 89.
576035/1........................ 0................ Sep 89.
576035/2........................ 1................ Mar 93.
576035/3........................ 2................ Jun 94.
576035/4-6...................... 0................ Sep 89.
576037/1........................ 0................ Sep 89.
576037/2........................ 1................ Mar 93.
576037/3-6...................... 2................ Jun 94.
576037/7........................ 2................ Jun 94.
576041/1-4...................... 0................ Sep 89.
576041/5, 6..................... 2................ Jun 94.
576047/1........................ 0................ Sep 89.
576047/2-6...................... 2................ Jun 94.
576051/1........................ 0................ Sep 89.
576051/2........................ 1................ Mar 93.
576051/3........................ 2................ Jun 94.
576051/4-6...................... 0................ Sep 89.
576062/1, 2..................... 1................ Mar 93.
576062/3-5...................... 2................ Jun 94.
576063/1-5...................... 2................ Jun 94.
576064/1-6...................... 2................ Jun 94.
576065/1-7...................... 2................ Jun 94.
576067/1-3...................... 2................ Jun 94.
576068/1-3...................... 2................ Jun 94.
576070/1-7...................... 2................ Jun 94.
------------------------------------------------------------------------
This incorporation by reference of Airbus Industrie SSID, dated
September 1989, was approved by the Director of the Federal Register
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, as of March 9,
1993 (58 FR 6703, February 2, 1993). The incorporation by reference
of Airbus Industrie SSID, Revision 2, dated June 1994, is approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from Airbus
Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex,
France. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(p) This amendment becomes effective on August 9, 1996.
Issued in Renton, Washington, on June 17, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15953 Filed 7-3-96; 8:45 am]
BILLING CODE 4910-13-U
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