issue-1996-07-12•Federal Register final rules — 1996-07-12
Federal Register final rules — 1996-07-12
issue-1996-07-12Federal Register final rules — 1996-07-12Regulation
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. 96-17951 Iraqi Sanctions Regulations; Executory Contracts with the Government of Iraq
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36627-36629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17951]
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DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 575
Iraqi Sanctions Regulations; Executory Contracts with the
Government of Iraq
AGENCY: Office of Foreign Assets Control, Treasury.
ACTION: Final rule; amendment.
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SUMMARY: This final rule amends the Iraqi Sanctions Regulations to
provide a general license authorizing U.S. persons to enter into
executory contracts with the Government of Iraq for the purchase of
Iraqi-origin petroleum and petroleum products, the sale of essential
parts and equipment for the Kirkuk-Yumurtalik pipeline system, and the
sale of humanitarian goods, with performance conditioned upon approval
by the Office of Foreign Assets Control within the framework of United
Nations Security Council Resolution 986 (1995).
EFFECTIVE DATE: July 10, 1996.
FOR FURTHER INFORMATION CONTACT: Steven I. Pinter, Chief, Licensing
Division, Tel.: 202/622-2480, or William B. Hoffman, Chief Counsel,
Tel.: 202/622-2410, Office of Foreign Assets Control, Department of the
Treasury, Washington, DC 20220.
SUPPLEMENTARY INFORMATION:
Electronic and Facsimile Availability
This document is available as an electronic file on The Federal
Bulletin Board the day of publication in the Federal Register. By
modem, dial 202/512-1387 and type ``/GO FAC,'' or call 202/512-1530 for
disk or paper copies. This file is available for downloading without
charge in WordPerfect 5.1, ASCII, and Adobe AcrobatTM readable
(*.PDF) formats. For Internet access, the address for use with the
World Wide Web (Home Page), Telnet, or FTP protocol is:
fedbbs.access.gpo.gov. The document is also accessible for downloading
in ASCII format without charge from Treasury's Electronic Library
(``TEL'') in the ``Business, Trade and Labor Mall'' of the FedWorld
bulletin board. By modem, dial 703/321-3339, and select the appropriate
self-expanding file in TEL. For Internet access, use one of the
following protocols: Telnet = fedworld.gov (192.239.93.3); World Wide
Web (Home Page) = http://www.fedworld.gov; FTP = ftp.fedworld.gov
(192.239.92.205). Additional information concerning the programs of the
Office of Foreign Assets Control is available for downloading from
Office's Internet Home Page: http://www.ustreas.gov/treasury/services/
fac/fac.html, or in fax form through the Office's 24-hour fax-on-demand
service: call 202/622-0077 using a fax machine, fax modem, or touch
tone telephone.
Background
On April 14, 1995, the United Nations Security Council (the
``UNSC'') adopted Resolution 986, which creates a framework, subject to
agreement of the Government of Iraq, that would permit the Government
of Iraq to sell $2 billion worth of petroleum and petroleum products
over a 6-month period, with all proceeds placed in a UN escrow account
for designated uses. On May 20, 1996, a Memorandum of Understanding
Between the Secretariat of the United Nations and the Government of
Iraq on the Implementation of Security Council Resolution 986 (1995)
(the ``Memorandum of Understanding'') was signed by representatives of
the Government of Iraq and the United Nations (the ``UN''). The
Memorandum of Understanding contains agreements preparatory to
implementation of Resolution 986. A portion of the proceeds in the
escrow account will be
[[Page 36628]]
available for Iraq's purchase of medicine, health supplies, foodstuffs,
and materials and supplies for essential civilian needs, to be
specified in a list prepared by Iraq and submitted to and approved by
the UN Secretary-General. At the UN level, this program will be
administered by the UNSC Committee established pursuant to UNSC
Resolution 661 (the ``661 Committee''), which will establish guidelines
concerning procedures for permitted Iraqi purchases and sales. Within
the United States, the Treasury Department's Office of Foreign Assets
Control (``OFAC''), in consultation with the Department of State, will
implement UNSC Resolution 986. No direct financial transactions with
the Government of Iraq are permitted.
This final rule amends the Iraqi Sanctions Regulations, 31 CFR part
575 (the ``Regulations''), to provide a general license in new
Sec. 575.522, authorizing U.S. persons to enter into executory
contracts with the Government of Iraq for the purchases of Iraqi-origin
petroleum and petroleum products, and the sales of humanitarian goods
and pipeline parts and equipment permitted pursuant to UNSC Resolution
986, provided that no contract with the Government of Iraq can be
performed except as further authorized by OFAC. New Secs. 575.323,
575.324, 575.325, and 575.326, provide definitions for the terms ``661
Committee,'' ``UNSC Resolution 986,'' ``986 Escrow Account,'' and
``executory contract.''
All executory contracts must contain terms requiring that all
proceeds of oil purchases from the Government of Iraq, including SOMO,
must be placed in the UN escrow account at Banque Nationale de Paris,
New York (the ``986 Escrow Account''), and all Iraqi payment for sales
of authorized pipeline parts and equipment, humanitarian goods, and
incidental transaction costs borne by Iraq will, upon 661 Committee
approval, be paid or payable out of the 986 Escrow Account.
The Office of Foreign Assets Control will provide further guidance
on licensing policy for purchases of Iraqi-origin petroleum and
petroleum products, and sales to Iraq of pipeline parts and equipment
essential to the safe operation of the Kirkuk-Yumurtalik pipeline and
of humanitarian goods, once the 661 Committee has provided guidance on
its requirements for contract approval.
Because the Regulations involve a foreign affairs function,
Executive Order 12886 and the provisions of the Administrative
Procedure Act, 5 U.S.C. 553, requiring notice of proposed rulemaking,
opportunity for public participation, and delay in effective date, are
inapplicable. Because no notice of proposed rulemaking is required for
this rule, the Regulatory Flexibility Act, 5 U.S.C. 601-612, does not
apply.
There is no collection of information contained herein.
List of Subjects in 31 CFR Part 575
Administrative practice and procedure, Banks, banking, Blocking of
assets, Exports, Foreign trade, Humanitarian aid, Imports, Iraq, Oil
imports, Penalties, Petroleum, Petroleum products, Reporting and
recordkeeping requirements, Specially designated nationals, Travel
restrictions.
For the reasons set forth in the preamble, 31 CFR part 575 is
amended as follows:
PART 575--IRAQI SANCTIONS REGULATIONS
1. The authority citation for part 575 continues to read as
follows:
Authority: 50 U.S.C. 1701-1706; 50 U.S.C. 1601-1651; 22 U.S.C.
287c; Pub. L. 101-513, 104 Stat. 2047-55 (50 U.S.C. 1701 Note); 3
U.S.C. 301; E.O. 12722, 55 FR 31803, 3 CFR, 1990 Comp., p. 294; E.O.
12724, 55 FR 33089, 3 CFR, 1992 Comp., p. 317.
Subpart C--General Definitions
2. Section 575.323 is added to subpart C to read as follows:
Sec. 575.323 661 Committee.
The term 661 Committee means the Security Council Committee
established by UNSC Resolution 661, and persons acting for or on behalf
of the Committee under its specific delegation of authority for the
relevant matter or category of activity, including the overseers
appointed by the UN Secretary-General to examine and approve agreements
for purchases of petroleum and petroleum products from the Government
of Iraq pursuant to UNSC Resolution 986 (1995).
3. Section 575.324 is added to subpart C to read as follows:
Sec. 575.324 UNSC Resolution 986.
The term UNSC Resolution 986 means United Nations Security Council
Resolution 986, adopted April 14, 1995.
4. Section 575.325 is added to subpart C to read as follows:
Sec. 575.325 986 Escrow Account.
The term 986 Escrow Account means the escrow account established by
the Secretary-General of the United Nations pursuant to paragraph 7 of
UNSC Resolution 986.
5. Section 575.326 is added to subpart C to read as follows:
Sec. 575.326 Executory contract.
The term executory contract means a contract which cannot be
performed according to its terms until a stated condition has been
fulfilled, such as a contract which requires the approval of a
regulatory body before the contracting parties may begin performance.
Subpart E--Licenses, Authorizations, and Statements of Licensing
Policy
6. Section 575.522 is added to subpart E to read as follows:
Sec. 575.522 Executory contracts with the Government of Iraq for trade
in petroleum, pipeline parts and equipment, and humanitarian goods
authorized.
(a) United States persons are authorized to enter into executory
contracts with the Government of Iraq for the following transactions,
the performance of which (including any preparatory activities,
payments or deposits related to such executory contracts) is contingent
upon the prior authorization of the Office of Foreign Assets Control in
or pursuant to this part:
(1) The purchase and exportation from Iraq of Iraqi-origin
petroleum and petroleum products;
(2) The trading, importation, exportation, or other dealings in or
related to Iraqi-origin petroleum and petroleum products outside Iraq;
(3) The sale and exportation to Iraq of parts and equipment that
are essential for the safe operation of the Kirkuk-Yumurtalik pipeline
system in Iraq; and
(4) The sale and exportation to Iraq of medicines, health supplies,
foodstuffs, and materials and supplies for essential civilian needs.
(b) The authorization contained in paragraph (a) of this section
applies only to executory contracts meeting both of the following
conditions:
(1) The executory contracts, including all related financing,
insurance, transportation, delivery, and other incidental contracts,
are consistent with all requirements of UNSC Resolution 986, other
applicable Security Council resolutions, the May 20, 1996 Memorandum of
Understanding Between the Secretariat of the United Nations and the
Government of Iraq on the Implementation of Security Council Resolution
986 (1995), and applicable guidance issued by the 661 Committee; and
(2) The executory contracts make any performance involving the
exportation, reexportation, transfer or supply of any goods, technology
or services that are subject to license application requirements of
another Federal agency contingent upon the prior authorization of that
agency. See Sec. 575.101(b).
(c) Nothing in this section authorizes any transaction related to a
United States person's travel to Iraq or activity
[[Page 36629]]
within Iraq, or any debit to an account blocked pursuant to this part.
(d) Note: U.S. passports must be validated by the U.S. Department
of State for travel to Iraq.
(e) Attention is drawn to the recordkeeping and retention
requirements of Sec. 575.601.
Dated: July 9, 1996.
R. Richard Newcomb,
Director, Office of Foreign Assets Control.
Approved: July 9, 1996.
James E. Johnson,
Assistant Secretary (Enforcement).
[FR Doc. 96-17951 Filed 7-10-96; 2:05 pm]
BILLING CODE 4810-25-F
Complete official Federal Register PDF
FR Doc. 96-17894 Technical Amendments; Organizational Changes; Miscellaneous Editorial Changes and Conforming Amendments
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Page 36629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17894]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 127, 158, 179, and 183
[CGD 96-026]
RIN 2115 AF33
Technical Amendments; Organizational Changes; Miscellaneous
Editorial Changes and Conforming Amendments
AGENCY: Coast Guard, DOT.
ACTION: Final rule; correction.
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SUMMARY: This document contains corrections to the final regulations
[CGD 96-026] which were published Friday, June 28, 1996, (61 FR 33660).
The regulations related to recent agency organizational changes and
editorial changes throughout Title 33, Code of Federal Regulations.
EFFECTIVE DATE: June 30, 1996.
FOR FURTHER INFORMATION CONTACT: Janet Walton, Project Manager, Office
of Standards Evaluation and Development (G-MSR-2), (202) 267-0257.
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of these corrections
amend Title 33, Code of Federal Regulations to reflect recent agency
organizational changes. They also make editorial changes to correct
addresses, update cross-references, remove obsolete regulatory
provisions and make other technical corrections. This rule has no
substantive effect on the regulated public.
Need for Correction
As published, the final regulations contain errors which may prove
to be misleading and are in need of clarification.
Correction of Publication
Accordingly, the publication on June 28, 1996, of the final
regulations [CGD 96-026], which were the subject of FR Doc. 96-16488 is
corrected as follows:
Sec. 127.003 [Corrected]
1. On page 33665, in the first column, in Sec. 127.003, line 2, the
word ``(G-MTH)'' is corrected to read ``(G-MPS)''.
Sec. 158.140 [Corrected]
2. On page 33668, in the first column, in Sec. 158.140(a)(2), line
4, add the word ``port'' immediately before the word ``or''.
Sec. 179.19 [Corrected]
3. On page 33669, in the second column, line 26, the amendatory
language for Sec. 179.19 is corrected to read ``In Sec. 179.19, in
paragraph (b), remove the word ``(G-MMS-4)'' and add, in its place, the
word ``(G-MSE-4)''.''
Sec. 183.3 [Corrected]
4. On page 33670, in the second column, in Sec. 183.3, add,
following the definition of ``Transom'', the definition ``Transom
height means the vertical distance from the lowest point of water
ingress along the top of the transom to a line representing a
longitudinal extension of the centerline of the boat's bottom surface,
excluding keels. This distance is measured as a projection on the
centerline plane of the boat. See Figure 183.3.''.
Dated: July 10, 1996.
Howard L. Hime,
Acting Director of Standards, Marine Safety and Environmental
Protection.
[FR Doc. 96-17894 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-17810 Inmate Calling ServicesPrison Payphones
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Page 36653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17810]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 61 and 64
[DA 96-1073]
Inmate Calling Services--Prison Payphones
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: On January 30, 1996, the Commission adopted a Declaratory
Ruling that inmate-only payphone instruments are customer premises
equipment (CPE) that must be provided on an unregulated basis. The
Commission additionally denied petitioner's request that certain
inmate-only services be considered enhanced services.
Three petitions were filed with the Commission on March 21, 1996,
and one on April 5, 1996, requesting that the Declaratory Ruling be
stayed or waived pending the effective date of new rules, pursuant to
Section 276 of the Telecommunications Act of 1996, that must be adopted
for all payphones. One petitioner also argued that the Declaratory
Ruling did not apply to smaller local exchange carriers (LECs). In this
Order we deny the request in part and grant it in part, and the
intended effect of this action is to ensure that the inmate-only
payphone market is competitive.
EFFECTIVE DATE: July 12, 1996.
FOR FURTHER INFORMATION CONTACT: Alan Thomas, 202-418-2338.
SUPPLEMENTARY INFORMATION: This report summarizes the Commission's
Order in the matter of Petition for Waiver and Partial Reconsideration
or Stay of Inmate-Only Payphones Declaratory Ruling (DA 96-1073,
adopted July 3, 1996 and released July 3, 1996). The file is available
for inspection and copying in the Network Services Reference Room, room
220, 2000 M Street, NW., Washington, DC, during the weekday hours of
8:30 a.m. to 3:30 p.m. Monday through Thursday; 8:30 a.m. to 11:30 a.m.
on Friday; closed between 12:30 p.m. and 1:30 p.m. Monday through
Thursday; or copies may be purchased from the Commission's duplicating
contractor, ITS, Inc. 2100 M St., NW., Suite 140, Washington, DC 20037,
phone (202) 857-3800.
Analysis of Proceeding
2. Petitioners requested the Commission to stay, waive, or
reconsider the effective date of the Declaratory Ruling pending the
effective date of new rules that must be adopted for all payphones
pursuant to Section 276 of the Telecommunications Act of 1996.
Petitioners contended that compliance would be superfluous if
accounting changes were required to be made solely for inmate-only
payphones. Petitioners also argued that providing inmate-only payphones
as unregulated CPE would constitute a new service, and that tariffs
disclosing technical information regarding such new service must be
filed with the Commission six or twelve months before introduction of
the new service; thus, petitioners contended that this disclosure
requirement made the September 2, 1996 deadline in the Declaratory
Ruling impossible to meet. Petitioners also argued that the Declaratory
Ruling is in conflict with Section 402 of the Telecommunications Act of
1996 because the former would require that cost allocation manuals
(CAMs) be filed more than once annually. Finally, one of the
petitioners separately argued that the Telecommunications Act of 1996
did not intend for the Declaratory Ruling to apply to smaller LECs.
3. In this Order, the Commission concluded that the petitioners
generally had not satisfied their burden, as stated in Washington
Metropolitan Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.
Cir. 1977), and thus denied the request for stay and waiver of the
Declaratory Ruling. Petitioners did not satisfy their burden that,
absent a stay, they would be irreparably injured; nor did they quantify
or otherwise demonstrate specific activities that would be superfluous
or burdensome. Petitioners also failed to address what effect a stay
would have upon the public interest or the harm a stay poses to other
parties. The Commission did, however, stay the requirement that CAM
revisions be filed. Given that the Commission will soon address Section
402 as part of its ongoing implementation of the Telecommunications Act
of 1996, petitioners' position regarding CAM filings did have
sufficient merit. Carriers are still required, however, to begin
separating their costs effective July 3, 1996.
4. The Commission also waived its requirement that tariffs for a
new service such as unregulated payphones must be filed within six or
twelve months. Adherence to the Commission's rule would have delayed
implementation of the Declaratory Ruling, and the appropriate remedy is
not to delay implementation, but rather to waive the normal time
period.
5. Finally, the Commission based its Declaratory Ruling on
longstanding CPE policies and not the Telecommunications Act of 1996;
petitioners offered no bar to the Commission's continued application of
these policies with regard to smaller LECs.
Ordering Clauses
6. It is ordered, pursuant to Sec. 1.3 of the Commission's rules,
47 CFR 1.3, and authority delegated in Sec. 0.91 of Commission's rules,
47 CFR 0.91, and Sec. 0.291 of the Commission's rules, 47 CFR 0.291,
that the Petition for Partial Reconsideration or Stay filed jointly by
Bell Atlantic, BellSouth, NYNEX, and Pacific Bell and Nevada Bell; the
Petition for Reconsideration and Stay filed by Cincinnati Bell; the
Petition for Waiver filed by Southwestern Bell; and the Petition for
Waiver filed by Pacific Bell and Nevada Bell are denied to the extent
described above.
7. It is further ordered that pursuant to Sec. 1.3 of the
Commission's rules, 47 CFR 1.3, and authority delegated in Sec. 0.91 of
the Commission's rules, 47 CFR 0.91, and Sec. 0.291 of the Commission's
rules, 47 CFR 0.291, that we stay the requirement that petitioners file
their CAM revisions on July 3, 1996, consistent with this order;
however, carriers are still required to begin separating their costs
effective July 3, 1996.
8. It is further ordered that pursuant to Sec. 1.3 of the
Commission's rules, 47 CFR 1.3, and authority delegated in Sec. 0.91 of
the Commission's rules, 47 CFR 0.91, and Sec. 0.291 of the Commission's
rules, 47 CFR 0.291, that we waive the network disclosure time
requirements applicable to a new unbundled network service to the
extent described above.
List of Subjects in 47 CFR Parts 61 and 64
Federal Communications Commission, Inmate-only payphone equipment,
Telephones.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-17810 Filed 7-11-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-17809 Applications Relating to Consolidation, Acquisition, or Control of Telephone Companies
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36653-36654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17809]
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[[Page 36654]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 66
[FCC 96-242]
Applications Relating to Consolidation, Acquisition, or Control
of Telephone Companies
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Telecommunications Act of 1996 specifically repealed
section 221(a) of the Communications Act of 1934. In 1956, the
Commission had enacted part 66 of the rules to set out the contents of
an application for authority to consolidate telephone companies. Since
the Commission no longer has this authority, it has removed part 66 of
its rules as unnecessary.
EFFECTIVE DATE: July 12, 1996.
FOR FURTHER INFORMATION CONTACT: R.J. Hertz, Enforcement Division,
Common Carrier Bureau, (202) 418-0984.
SUPPLEMENTARY INFORMATION:
Adopted: May 29, 1996;
Released: June 4 , 1996.
1. On February 8, 1996, the Telecommunications Act of 1996 (the
``1996 Act'') became law.1 Section 601(b)(2) of the 1996 Act
2 reads: ``(s)ubsection (a) of section 221 (47 U.S.C. 221(a)) is
repealed.'' This Order removes part 66 of the Commission's rules,3
which concerns the applications to be filed upon the consolidation,
acquisition, or change of control of telephone companies. Section 1.527
of our rules contained the rules to implement Section 221(a) of the
Communications Act of 1934, as amended.4 In 1956, after Congress
made minor changes to section 221(a), the Commission adopted part 66 to
establish new procedures and delineate the information necessary for an
application for Commission approval of the consolidation.5
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\1\ Pub. L. No. 104-104, 110 Stat. 56 (1996).
\2\ Id. sec. 601(b)(2).
\3\ 47 CFR 66.11-66.15.
\4\ 47 U.S.C. 221(a).
\5\ See Transfer of Carrier's Property, 42 FCC 125 (1956).
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2. Under section 221(a) of the Act, before a consolidation could
take place,6 the Commission was required to make a finding that it
was not contrary to the public interest for a telecommunications
carrier to acquire control, either by acquisition of the physical
assets or the securities, of another carrier. Specifically, it provided
that upon the filing of an application to consolidate, the Commission
was to issue a notice to the areas affected by the consolidation so
that the subscribers in those areas, as well as the state or local
authorities, would have the opportunity to submit comments on the
proposed consolidation. Then, if the Commission determined that the
consolidation was in the public interest, it was to certify this fact
so as to make inapplicable any other Act or Acts of Congress that would
make the proposed transaction unlawful.
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\6\ See supra note 4.
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3. Congress enacted section 221(a) at a time when local telephone
service was viewed as a natural monopoly; thus, section 221(a) allowed
competing local telephone companies to merge without facing antitrust
scrutiny.7 According to the Joint Explanatory Statement:
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\7\ See Joint Explanatory Statement of the Committee of
Conference, S. Rep. No. 104-458, at 200 (1996) (Joint Explanatory
Statement).
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[S]ection 221(a) could inadvertently undercut several of the
provisions of the Telecommunications Act of 1996. The problem arises
for at least two reasons. First, the crucial term ``telephone company''
is not defined. In the old world of regulated monopolies, a definition
probably was not necessary. However, in the new world of competition,
many companies will be able to argue plausibly that they are telephone
companies.
Second, section 221(a) allows the Commission to confer immunity
from any Act of Congress (including the Telecommunications Act of 1996)
after performing a public interest review. Section 221(a) could be used
to avoid the cable-telco buyout provisions of the Telecommunications
Act of 1996. Any cable company that owned any telephone assets could
become a telephone company and be bought out by a BOC by applying for
immunity under this section.
In addition, if immunity were conferred under section 221(a), it
would allow mergers between telecommunications giants to go forward
without any antitrust or securities review. In the old world, the
statute was usually used to confer immunity on mergers between
noncompeting Bell operating subsidiaries or mergers between Bells and
small independents within their territories. Neither of these
situations involved competitive considerations.8
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\8\ Id. at 200-01.
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The Joint Explanatory Statement clarifies, however, that repeal of
Section 221(a) would not affect the Commission's ability to conduct any
review of a merger for Communications Act purposes but would simply end
the Commission's ability to confer antitrust immunity.9
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\9\ Id. at 201.
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4. Because the part 66 rules were promulgated to effectuate a
process that has been repealed by the 1996 Act, these rules are now
unnecessary and should be removed. Accordingly, we find for good cause
that further notice and comment are not necessary, nor required, under
section 553(3)(B) of the Administrative Procedure Act,10 because
such changes are purely ministerial and necessary to conform our
written rules to the Congressional mandate found in the 1996 Act.
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\10\ 5 U.S.C. 553(3)(B).
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5. Accordingly, it is ordered, pursuant to sections 4 (i) and (j)
of the Communications Act of 1934, as amended, 47 U.S.C. 154 (i) and
(j), and section 601(b)(2) of the Telecommunications Act of 1996, Pub.
L. No. 104-104, sec. 601(b)(2), 110 Stat. 56 (1996), that part 66 of
the rules is hereby removed.
List of Subjects in 47 CFR Part 66
Administrative practice and procedure, Communications Carriers,
Federal Communications Commission, Telephone.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Title 47 of the Code of Federal Regulations, part 66, is amended as
follows:
PART 66--APPLICATIONS RELATING TO CONSOLIDATION, ACQUISITION, OR
CONTROL OF TELEPHONE COMPANIES--[REMOVED]
1. The authority citation for part 66 continues to read as follows:
Authority: Sec. 4, 48 Stat. 1066, as amended: 47 U.S.C. 154.
2. Part 66 is removed.
[FR Doc. 96-17809 Filed 7-11-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-17800 Allocation of Fiduciary Responsibility
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36609-36610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17800]
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[[Page 36610]]
FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
5 CFR Part 1660
Allocation of Fiduciary Responsibility
AGENCY: Federal Retirement Thrift Investment Board.
ACTION: Final rule.
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SUMMARY: The Executive Director of the Federal Retirement Thrift
Investment Board (Board) is removing 5 CFR Part 1660, which has been
superseded by regulations issued by the United States Department of
Labor.
EFFECTIVE DATE: August 12, 1996.
FOR FURTHER INFORMATION CONTACT: David L. Hutner, Federal Retirement
Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. By
telephone: (202) 942-1661.
SUPPLEMENTARY INFORMATION: Section 114(a)(1) of the Federal Employees'
Retirement System Technical Corrections Act of 1986, Public Law 99-556,
100 Stat. 3133 (October 27, 1986) authorized the Board to establish
procedures by which fiduciaries of the Thrift Savings Plan (TSP) could
allocate their fiduciary responsibilities. Sections 114(a) (1) and (2)
of the statute further provided that the authority to make allocations
under the procedures established by the Board, as well as any
allocation made under those procedures, would expire upon the earlier
of December 31, 1988, or the effective date of final regulations issued
by the United States Department of Labor (DOL) under 5 U.S.C.
8477(e)(1)(E).
The Board published interim regulations governing allocation of
fiduciary responsibilities at 52 FR 38,221 (October 15, 1987). The
interim regulations were codified at 5 CFR part 1660.
On December 29, 1988, DOL published final rules governing
allocation of fiduciary responsibility with respect to the TSP at 53 FR
52,684. The final rules were codified at 29 CFR part 2584. Because 5
CFR part 1660 was superseded by the final regulations issued by DOL and
no longer has any force or effect, its removal is appropriate. The
removal of the expired regulation has no legal consequences; it is, in
essence, a housekeeping matter.
Regulatory Flexibility Act
I certify that removal of these regulations will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
I certify that removal of these regulations will not require
additional reporting under the criteria of the Paperwork Reduction Act
of 1980.
Waiver of Notice of Proposed Rulemaking
Pursuant to 5 U.S.C. 553(b)(B), I find that good cause exists for
waiving the general notice of proposed rulemaking. Under section 114(a)
of the Federal Employees' Retirement System Technical Corrections Act
of 1986 (Pub. L. No. 99-556, 100 Stat. 3133), the force and effect of 5
CFR part 1660 expired on December 29, 1988. Since the removal of the
expired regulation has no legal consequences, publishing a proposal to
remove it is unnecessary, impractical and contrary to the pubic
interest.
List of Subjects in 5 CFR Part 1660
Employee benefit plans, Government employees, Retirement, Pensions.
Roger W. Mehle,
Executive Director, Federal Retirement Thrift Investment Board.
PART 1660--[REMOVED]
Under the authority of 5 U.S.C. 8474 (b) and section 114 of Pub. L.
99-556, and for the reasons set out in the preamble, 5 CFR part 1660 is
removed.
[FR Doc. 96-17800 Filed 7-11-96; 8:45 am]
BILLING CODE 6760-01-M
Complete official Federal Register PDF
FR Doc. 96-17791 Reorganization, Renumbering, and Reinvention of Regulations; Correction
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36626-36627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17791]
=======================================================================
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
29 CFR Chapters XXVI and XL
RIN 1212-AA75
Reorganization, Renumbering, and Reinvention of Regulations;
Correction
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: On July 1, 1996, the Pension Benefit Guaranty Corporation
published in the Federal Register (at 61 FR 34001, FR Doc. 96-16398) a
final rule reorganizing, renumbering, and reinventing its regulations.
This document contains corrections to the final rule.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General
Counsel, or Marc L. Jordan, Attorney, Office of the General Counsel,
Suite 340, Pension Benefit Guaranty Corporation, 1200 K Street, NW.,
Washington, DC 20005-4026; 202-326-4024 (202-326-4179 for TTY and TDD).
SUPPLEMENTARY INFORMATION: FR Doc. 96-16398, appearing at 61 FR 34001
(July 1, 1996), contained errors that are corrected as follows:
Sec. 4022.23 [Corrected]
1. On page 34032, in the table, the entries for ages 52 and 53,
footnote 1 to the table, and the first sentence of footnote 2 to the
table, are corrected to read as follows:
Factors for Converting Temporary Additional Benefit Under Step-Down Life Annuity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of years temporary additional benefit is payable under the plan as of the date of plan
Age of participant \1\ at the later of the date the termination \2\
temporary additional benefit commences or the date ---------------------------------------------------------------------------------------------------
of plan termination 1 2 3 4 5 6 7 8 9 10
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
52.................................................. .067 .131 .191 .248 .303 .357 .404 .451 .498 .545
53.................................................. .068 .133 .194 .252 .308 .363 .411 .459 .507 .555
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ At last birthday.
\2\ If the benefit is payable for less than 1 year, the appropriate factor is obtained by multiplying the factor for 1 year by a fraction, the numerator
of which is the number of months the benefit is payable, and the denominator of which is 12. * * *
Sec. 4022.24 [Corrected]
2. On page 34033, in the left column, in paragraph (4) of
Sec. 4022.24(c), the words ``thereafter.) In'' are corrected to read
``thereafter). In''.
Sec. 4022.62 [Corrected]
3. On page 34036, in the right column, in the paragraph headed
``Example 3--Facts'' and in paragraph (i) under the paragraph headed
``Estimated guaranteed benefit,'' the figures ``$2000'' (which appear
once in each of those two paragraphs) are corrected to read ``$2,000''.
Sec. 4022.63 [Corrected]
4. On page 34038, in the left column, in the undesignated paragraph
following the paragraph headed ``Estimated title IV benefit,'' the
figure ``$1000'' is corrected to read ``$1,000''.
Sec. 4041A.2 [Corrected]
5. On page 34052, in the right column, in the second line of
Sec. 4041A.2, the reference ``Sec. 4001.l'' (ending with the letter
``l'') is corrected to read ``Sec. 4001.1'' (ending with the numeral
``1'').
Appendix A to Part 4044--[Corrected]
6. On pages 34067 and 34068, in Table 2-M, the heading for the
right column is corrected to read ``qx''.
7. On page 34067, in the center column, in Table 2-M, the entry for
age 33 is corrected to read as follows:
------------------------------------------------------------------------
Age x qx
------------------------------------------------------------------------
33......................................................... 0.030200
------------------------------------------------------------------------
8. On page 34068, in the center column, in Table 2-F, the entry for
age 79 is corrected to read as follows:
------------------------------------------------------------------------
Age x qx
------------------------------------------------------------------------
79......................................................... 0.075524
------------------------------------------------------------------------
9. On pages 34068 and 34069, in Table 3, the heading for the left
column is corrected to read ``Age x''.
Appendix B to Part 4044--[Corrected]
10. On page 34069, in Table I [Annuity Valuations], the figures
``i1'' (i-subscript-1), where they appear four times in the column
headings, are corrected to read ``it'' (i-subscript-t), and the entry
for July 1994 is corrected to read as follows:
[[Page 36627]]
----------------------------------------------------------------------------------------------------------------
The values of it are:
For valuation dates occurring in -----------------------------------------------------------------------------
the month-- it for t= it for t= it for t=
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
July 1994......................... .0690 1-25 .0525 >25 N/A N/A
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
11. On page 34070, in Table II [Lump Sum Valuations], in the second
line of text, the words and figures ``interger and o < y
n1),'' are corrected to read ``integer and o < y
n1),''.
Appendix D to Part 4044--[Corrected]
12. On page 34071, in Table I-96 [Selection of Retirement Rate
Category], the abbreviation ``NRA'' is corrected to read ``URA''
wherever it appears (four times) in the column headings.
13. On pages 34071 and 34072, in Tables II-A, II-B, and II-C, the
words ``Normal retirement age'' are corrected to read ``Unreduced
retirement age'' wherever they appear in the column headings (once in
each of the three tables).
14. On page 34071, in Table II-A [Expected Retirement Ages for
Individuals in the Low Category], the entry for age 63 is corrected to
read as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unreduced retirement age
Participant's earliest retirement age at -------------------------------------------------------------------------------------------------------------
valuation date 60 61 62 63 64 65 66 67 68 69 70
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
63........................................ ........ ........ ........ 63 63 64 64 65 65 65 65
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Issued in Washington, D.C., this 9th day of July, 1996.
Martin Slate,
Executive Director, Pension Benefit Guaranty Corporation.
[FR Doc. 96-17791 Filed 7-11-96; 8:45 am]
BILLING CODE 7708-01-P
Complete official Federal Register PDF
FR Doc. 96-17782 Prevailing Rate Systems; Redefinition of Anchorage, AK, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Page 36609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17782]
========================================================================
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. 135 / Friday, July 12, 1996 / Rules
and Regulations
[[Page 36609]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH54
Prevailing Rate Systems; Redefinition of Anchorage, AK,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing an interim rule
to redefine the Anchorage, AK, nonappropriated fund (NAF) Federal Wage
System (FWS) wage area for pay-setting purposes.
DATES: This interim rule becomes effective on July 12, 1996. Comments
must be received by August 12, 1996.
ADDRESSES: Send or deliver comments to Donald J. Winstead, Assistant
Director for Compensation Policy, Human Resources Systems Service,
Office of Personnel Management, Room 6H31, 1900 E Street NW.,
Washington, DC 20415, or FAX: (202) 606-0824.
FOR FURTHER INFORMATION CONTACT:
Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management is
redefining the Anchorage, AK, FWS NAF wage area to add the Valdez-
Cordova census area as an area of application, and delete 10 area of
application census divisions.
The Anchorage, Alaska, NAF wage area was composed of a 1 census
division survey area and an 18 census division area of application.
With this change, the wage area is now made up of the same survey area
(Anchorage Borough, Alaska) and 9 area of application boroughs and
census areas (Fairbanks North Star, Juneau, Kenai Peninsula, Ketchikan
Gateway, Kodiak Island, Sitka, Southeast Fairbanks, Valdez-Cordorva,
and Yukon-Koyukuk).
These changes became necessary because the Air Force is planning
for the first time to hire temporary NAF FWS employees in the Valdez
Recreation Area in the Valdez-Cordova census area, an area currently
undefined for NAF wage setting purposes. In addition, the definition of
the entire Anchorage NAF wage area needed to be updated because the
Alaska boroughs and census areas and their names have been changed
since this wage area was last defined in regulation and because base
closures have left some locations without any NAF employees. The 10
area of application census divisions being deleted are: Aleutian
Islands, Barrow-North Slope, Bethel, Bristol Bay, Kobuk, Kuskokwim,
Nome, Outer Ketchikan, Southeast Fairbanks, and Upper Yukon.
As required in regulation, 5 CFR 532.219, the following criteria
were considered in redefining these wage areas:
(1) Proximity of largest activity in each county;
(2) Transportation facilities and commuting patterns; and
(3) Similarities of the counties in:
(i) Overall population;
(ii) Private employment in major industry categories; and
(iii) Kinds and sizes of private industrial establishments.
An analysis of the proposed change under these criteria supports
the recommended redefinition. Valdez-Cordova is contiguous to the
Anchorage survey area. Further, because the Anchorage, Alaska, NAF wage
area is the only NAF wage area in Alaska and there are no other nearby
NAF wage areas, the proposed redefinition is clearly the only
reasonable alternative.
The Federal Prevailing Rate Advisory Committee reviewed this
recommendation and by consensus recommended approval.
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking. Also, pursuant
to section 553(d)(3) of title 5, United States Code, I find that good
cause exists for making this rule effective in less than 30 days. The
notice is being waived and the regulation is being made effective in
less than 30 days because it is necessary to define the Valdez-Cordova
census area to a NAF wage area as soon as possible to provide for
setting the pay of new Air Force NAF employees in that location.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
Accordingly, OPM is amending 5 CFR part 532 as follows:
PART 532--PREVAILING RATE SYSTEMS
1. The authority citation for part 532 continues to read as
follows:
Authority: 5 U.S.C. 5343, 5346; Sec. 532.707 also issued under 5
U.S.C. 552.
2. Appendix D to subpart B is amended by revising the listing for
Anchorage, Alaska, to read as follows:
Appendix D to Subchapter B of Part 532--Nonappropriated Fund Wage and
Survey Areas
* * * * *
Alaska
Anchorage
Survey Area
Alaska: (Borough)
Anchorage
Area of application. Survey area plus:
Alaska: (Boroughs and census areas)
Fairbanks North Star
Juneau
Kenai Peninsula
Ketchikan Gateway
Kodiak Island
Sitka
Southeast Fairbanks
Valdez-Cordova
Yukon-Koyukuk
* * * * * *
[FR Doc. 96-17782 Filed 7-11-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-17753 Amendment to the International Traffic in Arms Regulations
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36624-36626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17753]
=======================================================================
-----------------------------------------------------------------------
[[Page 36625]]
DEPARTMENT OF STATE
Bureau of Political-Military Affairs
22 CFR Part 126
[Public Notice 2410]
Amendment to the International Traffic in Arms Regulations
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State is amending the International Traffic
in Arms Regulation (ITAR) (22 CFR parts 120-130) to reflect that it is
no longer the policy of the United States to deny licenses, other
approvals, exports and imports of defense articles and defense
services, destined for or originating in the states of the former
Yugoslavia with the exception of the Federal Republic of Yugoslavia
(Serbia and Montenegro). This includes Bosnia and Herzegovina, Croatia,
the Former Yugoslav Republic of Macedonia, and Slovenia. With respect
to those countries no longer on the proscribed list, all requests for
licenses or other approvals involving items covered by the U.S.
Munitions List (22 CFR part 121) will be reviewed on a case-by-case
basis. The Yugoslavia licenses and approvals suspended by the Federal
Register notice of July 19, 1991 (58 FR 33322) continue to remain
suspended. Exports or other transfers of affected items may only take
place pursuant to new licenses or other approvals.
EFFECTIVE DATE: This amendment is effective July 12, 1996.
FOR FURTHER INFORMATION CONTACT:
Rene BeBeau, Office of Arms Transfer and Export Control Policy, Bureau
of Political-Military Affairs, Department of State (202-647-4231).
SUPPLEMENTARY INFORMATION: Upon the initialling of the Dayton accords,
the UN Security Council (UNSC) on November 22, 1995, adopted Resolution
1021, providing for a phased lifting of the UNSC arms embargo on all
the successor states of former Yugoslavia. With the signing of the
peace agreement on December 14, 1995, by the Republic of Bosnia and
Herzegovina, the Republic of Croatia and the Federal Republic of
Yugoslavia (Serbia and Montenegro), and the submission of a report on
the signing by the UN Secretary General (``signing report'') on the
same date, the timeline for the phased lifting began.
UNSC Resolution 1021 provided that during the first 90 days from
the day the Secretary-General submitted the signing report, all the
provisions of the embargo under UNSC Resolution 713 remained in place.
For the second ninety days following the submission of the signing
report, all provisions of the arms embargo were terminated, except that
delivery of heavy weapons (as defined in the peace agreement),
ammunition therefor, mines, military aircraft and helicopters continued
to be prohibited until the arms control agreement referred to in Annex
1B of the Dayton accords had taken effect. After the 180th day
following the submission of the signing report, and after the
Secretary-General submitted an additional report (on the implementation
of Annex 1B), all provisions of the UNSC arms embargo terminated.
The Secretary-General submitted the report on the implementation of
Annex 1B (Agreement on Regional Stabilization) on June 14, 1996. June
14 is thus the day upon which the UNSC arms embargo on the states of
the former Yugoslavia, imposed by the Security Council in Resolution
713, terminated.
Section 126.1(c) of the ITAR states that whenever the UN Security
Council mandates an arms embargo, all transactions which are prohibited
by the embargo and which involve U.S. persons anywhere, or any person
in the United States, and defense articles and services of a type
enumerated on the United States Munitions List, irrespective of origin,
are prohibited under the ITAR for the duration of the embargo, unless
the Department of State publishes a Federal Register notice specifying
different measures. Notice of the policy of denial and suspension with
regard to the states of former Yugoslavia was published in the Federal
Register on July 19, 1991 (58 FR 33322).
The lifting at this time of the policy of denial with respect to
states of former Yugoslavia other than the FRY (Serbia and Montenegro),
and corresponding amendment to the relevant portion of Sec. 126.1(a) of
the ITAR, is consistent with developments in the region and is in
furtherance of our national security and foreign policy objectives.
The Federal Register notice of July 19, 1991, may not, however,
cease to be effective with respect to the FRY (Serbia and Montenegro)
without a certification to Congress by the President pursuant to
Section 540A of the Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1996, Pub. L. 104-107. No such
certification has been made.
Licenses and approvals subject to the new policy on the states of
the former Yugoslavia other than the FRY (Serbia and Montenegro)
include manufacturing licenses, technical assistance agreements,
technical data, and commercial defense article and defense service
exports and other transfers of any kind involving these countries under
the authority of the Arms Export Control Act and the International
Traffic in Arms Regulations.
This amendment to the ITAR involves a foreign affairs function of
the United States and thus is excluded from the major rule procedures
of Executive Order 12291 (46 FR 13193) and the procedures of 5 U.S.C.
553 and 554. This final rule does not contain a new or amended
information requirement subject to the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
List of Subjects in 22 CFR Part 126
Arms and munitions, Exports.
Accordingly, for the reasons set forth in the preamble, and under
the authority of Section 38 of the Arms Export Control Act (22 U.S.C.
2778) and Executive Order 11958, as amended, 22 CFR Subchapter M is
amended as follows:
PART 126--[AMENDED]
1. The authority citation for part 126 continues to read as
follows:
Authority: Secs. 2, 38, 40, 42, and 71, Arms Export Control Act,
Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and
2797); E.O. 11958, 41 FR 4311; E.O. 11322, 32 FR 119; 22 U.S.C.
2658; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205.
Sec. 126.1 [Amended]
2. Section 126.1(a) is amended and revised by removing ``the states
of the former Yugoslavia'' and replacing it with ``the FRY (Serbia and
Montenegro),'' so that as revised, paragraph (a) reads as follows:
(a) General. It is the policy of the United States to deny
licenses, other approvals, exports and imports of defense articles and
defense services, destined for or originating in certain countries.
This policy applies to Afghanistan, Armenia, Azerbaijan, Belarus, Cuba,
Georgia, Iran, Iraq, Kazakstan, Kyrgyzstan, Libya, Moldova, Mongolia,
North Korea, Syria, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and
Vietnam. This policy also applies to countries with respect to which
the United States maintains an arms embargo (e.g. Burma, China, the
Federal Republic of Yugoslavia (Serbia and Montenegro), Haiti, Liberia,
Rwanda, Somalia, Sudan and Zaire) or whenever an export would not
otherwise be in furtherance of world peace and the security and foreign
policy of the United States. Comprehensive arms embargoes are normally
the subject of a State Department notice published in the Federal
Register. The exemptions provided in the regulations in this
[[Page 36626]]
subchapter, except Secs. 123.17 and 125.4(b)(13) of this subchapter, do
not apply with respect to articles originating in or for export to any
proscribed countries or areas. With regard to Sec. 123.27 the exemption
does not apply with respect to articles originating in or for export to
countries prohibited by a United Nations Security Council Resolution or
to which the export (or for which the issuance of a license for the
export) would be prohibited by a U.S. statute (e.g. by Section 40 of
the Arms Export Control Act, 22 U.S.C. 2780, to countries that have
been determined to have repeatedly provided support for acts of
international terrorism, i.e., Cuba, Iran, Iraq, Libya, North Korea,
Sudan and Syria).
* * * * *
Dated: June 28, 1996.
Lynn E. Davis,
Under Secretary for Arms Control and International Security Affairs.
[FR Doc. 96-17753 Filed 7-11-96; 8:45 am]
BILLING CODE 4710-25-M
Complete official Federal Register PDF
FR Doc. 96-17751 Federal Motor Vehicle Safety Standards, and Consumer Information Regulations; Truck-Camper Loading
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36654-36661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17751]
=======================================================================
-----------------------------------------------------------------------
[[Page 36655]]
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 571 and 575
[Docket No. 96-09, Notice 02]
RIN 2127-AF81
Federal Motor Vehicle Safety Standards, and Consumer Information
Regulations; Truck-Camper Loading
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document rescinds Federal Motor Vehicle Safety Standard
(Standard) No. 126, Truck-camper loading, and combines its provisions
with 49 CFR 575.103, Truck-camper loading. This action is being taken
because a review of this agency's standards and regulations pursuant to
the President's regulatory reinvention initiative persuaded the agency
that combining these two rules into one will make their respective
requirements easier to understand and apply.
This document also eliminates the requirement to assign a vehicle
identification number to each slide-in camper.
DATES: This final rule is effective September 1, 1997.
Any petition for reconsideration of this rule must be received by
NHTSA not later than August 26, 1996.
ADDRESSES: Petitions for reconsideration should refer to the docket
number and notice number set forth above and be submitted to: Docket
Section, National Highway Traffic Safety Administration, 400 Seventh
Street, SW., Room 5109, Washington, DC 20590; telephone (202) 366-4949.
Docket hours are from 9:30 a.m. to 4 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT:
For technical issues: Robert M. Clarke, Chief, Vehicle Dynamics
Division, Office of Crash Avoidance Standards, National Highway Traffic
Safety Administration, 400 Seventh Street, SW., Room 5307, Washington,
DC 20590. Telephone (202) 366-5281; FAX (202) 366-4329.
For legal issues: Walter Myers, Office of the Chief Counsel,
National Highway Traffic Safety Administration, 400 Seventh Street,
SW., Room 5219, Washington, DC 20590. Telephone: (202) 366-2992; FAX
(202) 366-3820.
SUPPLEMENTARY INFORMATION:
Background
Standard No. 126 was initially established by final rule published
on August 15, 1972 (37 FR 16497) to provide information that can be
used by consumers to reduce overloading and improper load distribution
in truck-camper combinations. The standard requires manufacturers of
slide-in campers to affix a label to each camper specifying, among
other things, the maximum weight of the camper and its equipment. The
standard also requires that the owner's manual for the camper contain a
picture showing the location of the longitudinal center of gravity of
the camper when properly loaded.
When initially published, the standard also required manufacturers
of trucks capable of accommodating slide-in campers to include in the
truck operator's manual a picture showing the manufacturer's
recommended longitudinal center of gravity for the cargo weight rating
of the camper and a picture of the proper match of a truck and slide-in
camper.
Also on August 15, 1972, NHTSA published a notice of proposed
rulemaking (NPRM) proposing to require that slide-in campers be
identified by a vehicle identification number ``to facilitate any
future defect notification and recall campaigns that might occur'' (37
FR 16505).
By final rule published on December 14, 1972 (37 FR 26605), NHTSA
adopted the requirement for a vehicle identification number. In a
separate final rule published on the same day, NHTSA withdrew the truck
requirements from the standard and reissued them in 49 CFR 575.103, a
consumer information regulation (37 FR 26607). That action was taken in
response to petitions for reconsideration of the final rule of August
15, 1972, which established Standard No. 126 (37 FR 16497).
Pursuant to the March 4, 1994 directive entitled Regulatory
Reinvention Initiative from the President to the heads of all Federal
departments and agencies, NHTSA reviewed all its Federal motor vehicle
safety standards and related regulations. As a result of that review,
NHTSA tentatively determined that the camper requirements of Standard
No. 126 and the truck requirements of 49 CFR 575.103 should be combined
into one regulation as before, but this time as a consumer information
regulation rather than a performance standard.
Notice of Proposed Rulemaking
(a) Truck Camper Loading Labeling and Information
The current truck-camper loading requirements of Standard No. 126
and Sec. 575.103 involve labeling and placing certain information in
the owner's manual. The former requirements are applicable to campers
and the latter, to trucks. Since the two provisions were so closely
related and, in fact, overlapping, the agency published an NPRM on
February 14, 1996 (61 FR 5730) proposing that Standard No. 126 be
rescinded and its provisions combined with and incorporated into the
provisions of 49 CFR 575.103. The agency stated that no useful purpose
is served by keeping the camper requirements separate from the truck
requirements in the CFR. The agency stated that since the provisions of
the two sections are so closely related, it would be easier, more
convenient, and more efficient for manufacturers, regulators, and the
public to apply those provisions if they were combined rather than
maintained as separate sections in the CFR.
(b) Slide-in Camper Vehicle Identification Number
As stated in the Background discussion above, Standard No. 126
requires camper manufacturers to assign a vehicle identification number
(VIN) to each slide-in camper they produce. Specifically, paragraph
S5.1.1(e) provides that manufacturers must assign a number to each
slide-in camper ``for identification purposes consisting of arabic
numerals, roman letters, or both.'' The same paragraph further provides
that no two campers produced within a 10-year period shall have the
same identification number.
The final rule of December 14, 1972 stated that the purpose of the
camper VIN was to increase the accuracy and efficiency of recall
campaigns conducted by manufacturers to remedy safety defects. However,
out of the 26 recalls that have been conducted under Standard No. 126
since its inception in 1972, none have involved or relied on the camper
VIN. Agency experience in past slide-in camper recalls has been that
the manufacturer's model and serial numbers are sufficient to identify
the campers and/or the models involved in the recall. NHTSA tentatively
concluded, therefore, that requiring slide-in campers to have a VIN is
redundant and does not serve its intended purpose. Accordingly, NHTSA
proposed to delete the requirement for a vehicle identification number
on slide-in campers.
[[Page 36656]]
Public Comments
Chrysler Corporation (Chrysler), General Motors (GM), and the
International Association of Chiefs of Police (IACP) submitted comments
in response to the NPRM. All indicated general support for the
proposals. The IACP commented that elimination of the VIN will not
present any difficulties for law enforcement since the serial and model
numbers will suffice for identification purposes in place of the VIN.
GM expressed two concerns. One was related to the proposal to
require center of gravity distance information in metric units only. GM
stated that such requirement will make it more difficult for purchasers
of trucks and slide-in campers to determine the comparability of the
combination units. GM argued that purchasers of new trucks who expect
to use their old campers will have to convert metric/English units to
determine the trucks' centers of gravity, and that many people do not
know how to do that. GM suggested, therefore, that the center of
gravity information depicted in Figures 2 and 4 be provided in both
English and metric units.
The other concern was the absence of a proposed effective date. GM
stated that if an effective date sooner than September 1, 1996, the
start of model year 1997, were established, it would create a
considerable cost burden on manufacturers by requiring them to revise
and print new manuals and consumer information booklets to incorporate
the new metric requirements. GM recommended, therefore, that an
effective date no earlier than September 1, 1996 be established as the
effective date of the proposed amendments.
Agency Analysis and Decision
(a) The agency is adopting its proposal for combining of the
provisions of Standard No. 126 and Sec. 575.103 and deleting the
requirement for a separate VIN for slide-in campers for the reasons
stated in the NPRM.
(b) Metric/English units of measurement. Section 5164 of the
Omnibus Trade and Competitiveness Act, Pub. L. 100-418 (Act),
established the metric system of measurements as the preferred system
of weights and measures for U.S. trade and commerce. Executive Order
No. 12770 directed Federal agencies to comply with the Act by adopting
and publishing a conversion schedule in the Federal Register. NHTSA
published for comment its plan to convert the Federal motor vehicle
safety standards to metric measurements in the Federal Register on
April 21, 1992 (57 FR 14619). Based on five comments received in
response to that notice, NHTSA published an NPRM on March 15, 1994 (59
FR 11962) proposing the initial group of standards to be converted to
the metric system, one of which was Standard No. 126. After considering
the submissions of 17 commenters, NHTSA published a final rule on March
14, 1995 converting Standard No. 126, among others, to metric
measurements, followed by the equivalent English measurements in
parentheses. Section 575.103 was not addressed in that final rule.
The agency considers GM's concerns to be reasonable with respect to
the metrics-only measurements shown on Figures 2 and 4, particularly
since Figure 1 shows both metric and English measurements. NHTSA's
stated intention for issuing the truck/camper loading requirements was
to provide useful information to consumers in the proper loading of
campers into their companion trucks. Obviously, if the required
labeling and illustrations are confusing or, at best, not helpful, then
the central purpose of the truck/camper requirements is defeated. NHTSA
agrees with GM, therefore, that if there is any possibility that
consumers may become confused in attempting to convert metric and
English units, both units should be shown in Figures 2 and 4.
Accordingly, Figures 2 and 4 are amended to depict measurements shown
first in metric units, followed by their equivalent English units in
parentheses.
(c) Effective date. The agency also agrees with GM with respect to
an effective date of this final rule, that is, that the amendments
issued by this rule should be effective at the start of a new model
year. The agency believes that an effective date of September 1, 1996
does not give manufacturers sufficient time to comply with the new
requirements. Accordingly, the effective date of the requirements of
this rule is established as September 1, 1997.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rulemaking document was not reviewed under E.O. 12866,
Regulatory Planning and Review. NHTSA has considered the impact of this
rulemaking action under the DOT's regulatory policies and procedures
and has determined that it is not ``significant'' within the meaning of
those policies and procedures.
The amendments promulgated in this rulemaking action are intended
to reorganize certain existing requirements and to eliminate a
separate, unneeded requirement, thereby simplifying and streamlining
the body of Federal regulations. The agency estimates that there will
be no cost impact or lead time effects for either manufacturers,
dealers, or consumers.
Elimination of the requirement for assigning and affixing a camper
VIN will result in only minimal cost savings. Currently, camper
manufacturers are required to place the camper VIN on the label
containing other information about campers. Since camper manufacturers
will continue to be required to place that label on their campers,
being relieved of the necessity of placing a camper VIN on the label
will at most enable the manufacturers to use a slightly smaller label.
Accordingly, the agency believes that the cost impacts of this
rulemaking action will be so minimal as not to warrant the preparation
of a full preliminary regulatory evaluation.
Regulatory Flexibility Act
NHTSA has also considered the impacts of this notice under the
Regulatory Flexibility Act. I hereby certify that this rule will not
have a significant economic impact on a substantial number of small
entities. For the reasons stated above, this proposal will have no
significant impact on manufacturers of slide-in campers and trucks
capable of accommodating slide-in campers, thus will have no impact on
the costs of those products. Accordingly, the agency has not prepared a
preliminary regulatory flexibility analysis.
Executive Order 12612 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the proposed rule will not have sufficient Federalism implications
to warrant preparation of a Federalism Assessment. No state laws will
be affected.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, Pub. L. 96-
511, the agency notes that there are no information collection
requirements associated with this rulemaking action.
Executive Order 12778 (Civil Justice Reform)
This rule has no retroactive effect. Under 49 U.S.C. 30103(b),
whenever a Federal motor vehicle safety standard is in effect, a state
or political subdivision thereof may prescribe or continue in effect a
standard applicable to the same
[[Page 36657]]
aspect of performance of a motor vehicle only if the state's standard
is identical to the Federal standard. However, the United States
government, a state or political subdivision thereof may prescribe a
standard for a motor vehicle or motor vehicle equipment for its own use
that imposes a higher performance requirement than that required by the
Federal standard. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. This section does not require submission of a
petition for reconsideration or other administrative procedures before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
In consideration of the foregoing, 49 CFR part 571 is amended as
follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
Sec. 571.126 [Removed]
2. Section 571.126 is removed in its entirety from the CFR.
List of Subjects in 49 CFR Part 575
Consumer protection, Motor vehicle safety, Reporting and
recordkeeping, Tires.
In consideration of the foregoing, 49 CFR part 575 is amended to
read as follows:
PART 575--CONSUMER INFORMATION REGULATIONS
3. The authority citation for part 575 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
4. Section 575.103 is revised to read as follows:
Sec. 575.103 Truck-camper loading.
(a) Scope. This section requires manufacturers of slide-in campers
to affix to each camper a label that contains information relating to
identification and proper loading of the camper and to provide more
detailed loading information in the owner's manual. This section also
requires manufacturers of trucks that would accommodate slide-in
campers to specify the cargo weight ratings and the longitudinal limits
within which the center of gravity for the cargo weight rating should
be located.
(b) Purpose. The purpose of this section is to provide information
that can be used to reduce overloading and improper load placement in
truck-camper combinations and unsafe truck- camper matching in order to
prevent accidents resulting from the adverse effects of these
conditions on vehicle steering and braking.
(c) Application. This section applies to slide-in campers and to
trucks that are capable of accommodating slide- in campers.
(d) Definitions.
Camper means a structure designed to be mounted in the cargo area
of a truck, or attached to an incomplete vehicle with motive power, for
the purpose of providing shelter for persons.
Cargo Weight Rating means the value specified by the manufacturer
as the cargo-carrying capacity, in pounds or kilograms, of a vehicle,
exclusive of the weight of occupants in designated seating positions,
computed as 68 kilograms or 150 pounds times the number of designated
seating positions.
Slide-in Camper means a camper having a roof, floor, and sides,
designed to be mounted on and removable from the cargo area of a truck
by the user.
(e) Requirements.--(1) Slide-in Camper.--(i) Labels. Each slide-in
camper shall have permanently affixed to it, in such a manner that it
cannot be removed without defacing or destroying it, and in a plainly
visible location on an exterior rear surface other than the roof,
steps, or bumper extension, a label containing the following
information in the English language lettered in block capitals and
numerals not less than 2.4 millimeters (three thirty-seconds of an
inch) high, of a color contrasting with the background, in the order
shown below and in the form illustrated in Figure 1.
(A) Name of camper manufacturer. The full corporate or individual
name of the actual assembler of the camper shall be spelled out, except
that such abbreviations as ``Co.'' or ``Inc.'' and their foreign
equivalents, and the first and middle initials of individuals may be
used. The name of the manufacturer shall be preceded by the words
``Manufactured by'' or ``Mfd by.''
(B) Month and year of manufacture. It may be spelled out, such as
``June 1995'' or expressed in numerals, such as ``695.''
(C) The following statement completed as appropriate:
``Camper weight is ____________ kg. (____________ lbs.) maximum
when it contains standard equipment, ____________ liters (____________
gal.) of water, ____________ kg. (____________ lbs.) of bottled gas,
and ____________ cubic meters (____________ cubic ft.) refrigerator (or
icebox with ____________ kg. (____________ lbs.) of ice, as
applicable). Consult owner's manual (or data sheet, as applicable) for
weights of additional or optional equipment.''
(D) ``Liters (or gal.) of water'' refers to the volume of water
necessary to fill the camper's fresh water tanks to capacity. ``Kg. (or
lbs.) of bottled gas'' refers to the amount of gas necessary to fill
the camper's bottled gas tanks to capacity. The statement regarding a
``refrigerator'' or ``icebox'' refers to the capacity of the
refrigerator with which the vehicle is equipped or the weight of the
ice with which the icebox may be filled. Any of these items may be
omitted from the statement if the corresponding accessories are not
included with the camper, provided that the omission is noted in the
camper owner's manual as required in paragraph (e)(1)(ii) of this
section.
(ii) Owner's manual. Each slide-in camper manufacturer shall
provide with each camper a manual or other document containing the
information specified in paragraph (e)(1)(ii) (A) through (F) of this
section.
(A) The statement and information provided on the label as
specified in paragraph (e)(1)(i) of this section. Instead of the
information required by paragraphs (e)(1)(i)(B) of this section, a
manufacturer may use the statements ``See camper identification label
located (as applicable) for month and year of manufacture.'' If water,
bottled gas, or refrigerator (icebox) has been omitted from this
statement, the manufacturer's information shall note such omission and
advise that the weight of any such item when added to the camper should
be added to the maximum camper weight figure used in selecting an
appropriate truck.
(B) A list of other additional or optional equipment that the
camper is designed to carry, and the maximum weight of each if its
weight is more than 9 kg. (20 lbs) when installed.
(C) The statement: ``To estimate the total cargo load that will be
placed on a truck, add the weight of all passengers in the camper, the
weight of supplies, tools, and all other cargo, the weight of installed
additional or optional camper equipment, and the manufacturer's camper
weight figure. Select a truck that has a cargo weight rating that is
equal to or greater than the total cargo load of the camper and whose
manufacturer recommends a cargo center of gravity
[[Page 36658]]
zone that will contain the camper's center of gravity when it is
installed.''
(D) The statements: ``When loading this camper, store heavy gear
first, keeping it on or close to the camper floor. Place heavy things
far enough forward to keep the loaded camper's center of gravity within
the zone recommended by the truck manufacturer. Store only light
objects on high shelves. Distribute weight to obtain even side-to-side
balance of the loaded vehicle. Secure loose items to prevent weight
shifts that could affect the balance of your vehicle. When the truck-
camper is loaded, drive to a scale and weigh on the front and on the
rear wheels separately to determine axle loads. The load on an axle
should not exceed its gross axle weight rating (GAWR). The total of the
axle loads should not exceed the gross vehicle weight rating (GVWR).
These weight ratings are given on the vehicle certification label that
is located on the left side of the vehicle, normally on the dash panel,
hinge pillar, door latch post, or door edge next to the driver on
trucks manufactured on or after January 1, 1972. If weight ratings are
exceeded, move or remove items to bring all weights below the
ratings.''
(E) A picture showing the location of the longitudinal center of
gravity of the camper within an accuracy of 5 centimeters (2 inches)
under the loaded condition specified in paragraph (e)(1)(i)(D) of this
section in the manner illustrated in Figure 2.
(F) A picture showing the proper match of a truck and slide-in
camper in the form illustrated in Figure 3.
(2) Trucks. (i) Except as provided in paragraph (e)(2)(ii) of this
section, each manufacturer of a truck that is capable of accommodating
a slide-in camper shall provide to the purchaser in the owner's manual
or other document delivered with the truck, in writing and in the
English language, the information specified in paragraphs (e)(2)(i) (A)
through (E) of this section.
(A) A picture showing the manufacturer's recommended longitudinal
center of gravity zone for the cargo weight rating in the form
illustrated in Figure 4. The boundaries of the zone shall be such that
when a slide-in camper equal in weight to the truck's cargo weight
rating is installed, no GAWR of the truck is exceeded.
(B) The truck's cargo weight rating.
(C) The statements: ``When the truck is used to carry a slide-in
camper, the total cargo load of the truck consists of the
manufacturer's camper weight figure, the weight of installed additional
camper equipment not included in the manufacturer's camper weight
figure, the weight of camper cargo, and the weight of passengers in the
camper. The total cargo load should not exceed the truck's cargo weight
rating and the camper's center of gravity should fall within the
truck's recommended center of gravity zone when installed.''
(D) A picture showing the proper match of a truck and slide-in
camper in the form illustrated in Figure 3.
(E) The statements: ``Secure loose items to prevent weight shifts
that could affect the balance of your vehicle. When the truck camper is
loaded, drive to a scale and weigh on the front and on the rear wheels
separately to determine axle loads. Individual axle loads should not
exceed either of the gross axle weight ratings (GAWR). The total of the
axle loads should not exceed the gross vehicle weight rating (GVWR).
These ratings are given on the vehicle certification label that is
located on the left side of the vehicle, normally the dash, hinge
pillar, door latch post, or door edge next to the driver. If weight
ratings are exceeded, move or remove items to bring all weights below
the ratings.''
(ii) If a truck would accommodate a slide-in camper but the
manufacturer of the truck recommends that the truck not be used for
that purpose, the information specified in paragraph (e)(2)(i)(E) of
this section shall not be provided but instead the manufacturer shall
provide a statement that the truck should not be used to carry a slide-
in camper.
MFD. BY: (CAMPER MANUFACTURER'S NAME)
(MONTH AND YEAR OF MANUFACTURE)
CAMPER WEIGHT IS ____________ KG (____________ LB) MAXIMUM WHEN
IT CONTAINS STANDARD EQUIPMENT, ____________ LITERS (____________
GAL) OF WATER, ____________ KG (____________ LB) OF BOTTLED GAS, AND
____________ CUBIC METERS (____________ CUBIC FT) REFRIGERATOR (OR
ICEBOX WITH ____________ KG (____________ LB) OF ICE, AS
APPLICABLE). CONSULT OWNER'S MANUAL (OR DATA SHEET AS APPLICABLE)
FOR WEIGHTS OF ADDITIONAL OR OPTIONAL EQUIPMENT.
Figure 1. Label for Camper
BILLING CODE 4910-59-P
[[Page 36659]]
[GRAPHIC] [TIFF OMITTED] TR12JY96.000
[[Page 36660]]
[GRAPHIC] [TIFF OMITTED] TR12JY96.001
[[Page 36661]]
[GRAPHIC] [TIFF OMITTED] TR12JY96.002
Issued on June 25, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-17751 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-59-C
Complete official Federal Register PDF
FR Doc. 96-17726 Post-Vietnam Era Veterans' Educational Assistance: Miscellaneous; Correction
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Page 36629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17726]
=======================================================================
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DEPARTMENT OF DEFENSE
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AH64
Post-Vietnam Era Veterans' Educational Assistance: Miscellaneous;
Correction
AGENCIES: Department of Defense and Department of Veterans Affairs.
ACTION: Final rule; correction.
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SUMMARY: This document corrects typographical errors contained in a
final rule published in the Federal Register on Friday, June 7, 1996
(61 FR 29028), concerning the Post Vietnam Era Veterans' Educational
Assistance Program (VEAP). This action is necessary to correct
amendatory language regarding authority citations.
EFFECTIVE DATE: June 7, 1996.
FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director
for Policy and Program Administration, Education Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, 202-273-7187.
Accordingly, the publication on June 7, 1996 of the final rule,
which was the subject of FR Doc. 96-14202, is corrected as follows:
Sec. 21.5100 [Correction]
On page 29030, in the first column, in Sec. 21.5100, amendatory
instruction number 11 is corrected to read as follows:
In Sec. 21.5100, the authority citation following paragraph (b) is
amended by removing ``3241; Pub. L. 96-466, Pub. L. 99-576'', and
adding, in its place, ``3697A(a)''; the authority citation following
paragraph (c) is amended by removing ``1663 (repealed, Pub. L. 102-16
Sec. 2(b)(1)); Pub. L. 99-466, Pub. L. 99-576'' and adding, in its
place, ``3241, 3697A(a) and (b)''; and the authority citation following
paragraph (d) is amended by removing ``3697A'' and adding, in its
place, ``3697A(c)''.
Dated: July 5, 1996.
Thomas O. Gessel,
Director, Office of Regulations Management, Office of General Counsel,
Department of Veterans Affairs.
Dated: July 8, 1996.
W.S. Sellman,
Director, Accession Policy Office, Assistant Secretary for Force
Management Policy, Department of Defense.
[FR Doc. 96-17726 Filed 7-11-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-17725 Fisheries Off West Coast States and in the Western Pacific; Correction
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36661-36662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17725]
=======================================================================
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[[Page 36662]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 660
[Docket No. 960614176-6176-01; I.D. 050796A]
RIN 0648-AI18
Fisheries Off West Coast States and in the Western Pacific;
Correction
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This document corrects a typographical error in the EFFECTIVE
DATE line of the preamble for the final rule in this proceeding
concerning Fisheries Off West Coast States and in the Western Pacific,
published on July 2, 1996 (61 FR 34570).
FOR FURTHER INFORMATION CONTACT: Robert Gorrell, 301-713-2341.
SUPPLEMENTARY INFORMATION:
In the final rule document 96-16234 beginning on page 34570 in the
issue of Tuesday, July 2, 1996, make the following correction:
On page 34570, in the first column under the EFFECTIVE DATE
heading, the citation ``50 CFR 600.53'' is corrected to read ``50 CFR
660.53''.
Dated: July 5, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 96-17725 Filed 7-11-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17686 Advisory Committees; Conversion of Ad Hoc Advisory Committee to Standing Advisory Committee
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Page 36624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17686]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 14
Advisory Committees; Conversion of Ad Hoc Advisory Committee to
Standing Advisory Committee
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the
standing advisory committees' regulations to add the name and function
of the Transmissible Spongiform Encephalopathies Advisory Committee
(formerly Ad Hoc Advisory Committee on Creutzfeldt-Jakob Disease).
Appearing elsewhere in this issue of the Federal Register is a notice
announcing the renewal of this advisory committee. A notice requesting
nominations for membership on this committee will publish at a later
date. This action is being taken to incorporate this committee into the
agency's list of standing advisory committees because it will no longer
be serving in an ad hoc capacity.
EFFECTIVE DATE: July 12, 1996.
FOR FURTHER INFORMATION CONTACT: Donna M. Combs, Committee Management
Office (HFA-306), Food and Drug Administration, 5600 Fishers Lane,
Rockville, MD 20857, 301-443-2765.
SUPPLEMENTARY INFORMATION: FDA is announcing that the name of the Ad
Hoc Advisory Committee on Creutzfeldt-Jakob Disease has been changed.
The committee was established on June 21, 1995, to advise the
Commissioner of Food and Drugs regarding the safety of blood products
obtained or prepared from one or more donations from a donor who, after
donation, was diagnosed with Creutzfeldt-Jakob Disease. The committee
was chartered for the duration of 1 year.
The Commissioner has now formally determined that there is a
continuing need for this committee, that the name and function of the
committee will be changed to more accurately describe the committee,
and that the committee will no longer be serving in an ad hoc capacity.
The name ``Transmissible Spongiform Encephalopathies Advisory
Committee''will more accurately describe the subject area for which the
committee is responsible. The change is consistent with the expanded
function of the committee.
The committee's new function is to review and evaluate available
scientific data concerning the safety of products which may be at risk
for transmission of spongiform encephalopathies having an impact on the
public health as determined by the Commissioner of Food and Drugs. The
committee will also make recommendations to the Commissioner regarding
the regulation of such products.
Management and support services for the committee will continue to
be provided by FDA's Center For Biologics Evaluation and Research. In
this document, FDA is formally incorporating this committee into the
agency's list of standing advisory committees by adding a new paragraph
in 21 CFR 14.100(b).
Publication of this final rule constitutes a final action on this
change under the Administrative Procedure Act. Under 5 U.S.C.
553(b)(3)(B) and (d) and 21 CFR 10.40(d) and (e), the agency finds good
cause to dispense with notice and public procedure and to proceed to an
immediately effective regulation. Such notice and procedures are
unnecessary and are not in the public interest, because the final rule
is merely codifying the new name and expanded function of the advisory
committee, as well as its status as a standing advisory committee, and
when effective will reflect the current committee charter.
List of Subjects in 21 CFR Part 14
Administrative practice and procedure, Advisory committees, Color
additives, Drugs, Radiation protection.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
14 is amended as follows:
PART 14-PUBLIC HEARING BEFORE A PUBLIC ADVISORY COMMITTEE
1. The authority citation for 21 CFR part 14 continues to read as
follows:
Authority: Secs. 201-903 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321-394; 21 U.S.C. 41-50, 141-149, 467f, 679, 821,
1034; secs. 2, 351, 354, 361 of the Public Health Service Act (42
U.S.C. 201, 262, 263b, 264); secs. 2-12 of the Fair Packaging and
Labeling Act (15 U.S.C. 1451-1461); 5 U.S.C. App. 2; 28 U.S.C. 2112.
2. Section 14.100 is amended by adding new paragraph (b)(6) to read
as follows:
Sec. 14.100 List of standing advisory committees.
* * * * *
(b) * * *
(6) Transmissible Spongiform Encephalopathies Advisory Committee.
(i) Date established: June 21, 1995.
(ii) Function: Reviews and evaluates available scientific data
concerning the safety of products which may be at risk for transmission
of spongiform encephalopathies having an impact on the public health.
* * * * *
Dated: July 5, 1996.
Michael A. Friedman,
Deputy Commissioner for Operations.
[FR Doc. 96-17686 Filed 7-11-96; 8:45 am]
BILLING CODE 4160-01-F------
Complete official Federal Register PDF
FR Doc. 96-17674 Effect of Parole of Cuban and Haitian Nationals on Resettlement Assistance Eligibility
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36610-36611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17674]
=======================================================================
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 212
[INS No. 1751-96]
RIN 1115-AE29
Effect of Parole of Cuban and Haitian Nationals on Resettlement
Assistance Eligibility
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 (``the Service'') regulations to clarify that nationals of Cuba
or Haiti who were paroled into the United States since October 10,
1980, are to be considered to have been paroled in an immigration
status referred to in section 501(e)(1) of the Refugee Education
Assistance Act of 1980, as amended. This rule is necessary to ensure
that these aliens are not inadvertently considered to hold an
immigration status other than the status referred to in section
501(e)(1).
DATES: This interim rule is effective July 12, 1996. Written comments
must be received on or before September 10, 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, Attn: Public Comment Clerk. To ensure proper handling, please
reference the INS Number 1751-96 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT: Janice B. Podolny, Associate General
Counsel, Chief of Examinations Division, Office of the General Counsel,
Suite 6100, 425 I Street NW., Washington, DC 20536, telephone: (202)
514-2895.
SUPPLEMENTARY INFORMATION: Section 501 of the Refugee Education
Assistance Act of 1980, Public Law 96-422, dated October 10, 1980, as
amended, provides for certain assistance to and on behalf of aliens
paroled into the United States from Cuba and Haiti. Under section
501(e)(1), and alien paroled as a ``Cuban-Haitian Entrant (Status
Pending),'' or in some other ``special status * * * for nationals of
Cuba or Haiti'' is eligible for this assistance, even it the alien has
acquired permanent residence, or some other immigration status, at the
time assistance is sought. Under section 501(e)(2), by contrast, Cuban
or Haitian nationals who are paroled in some parole status other than
the ``special status'' are eligible for assistance only so long as they
have not acquired some other immigration status.
Recent high volume influxes of aliens from Cuba, in particular,
have resulted in the parole of aliens, without a clear indication that
their parole is in a ``special status'' for Cubans and Haitians. For
example, due to clerical oversight the Forms I-94, Arrival-Departure
Record, issued to these aliens often have not borne any endorsement to
show that their parole gives them an immigration status that is within
the scope of section 501(e)(1). This interim rule amends 8 CFR 212.5 to
clarify that these aliens, and any Haitian nationals as well, paroled
on or after October 10, 1980, are to be considered to have been paroled
in the status referred to in section 501(e)(1). This amendment will
make it clear that these aliens have been, and remain, in the
immigration
[[Page 36611]]
status referred to in section 501(e)(1), even if they have since
acquired some other immigration status. Exceptions are made for aliens
paroled for criminal prosecution or solely in order to testify in some
official proceedings in the United States.
This interim rule is an interpretive rule. For this reason, the
Commissioner of the Immigration and Naturalization Service may properly
adopt this rule without the prior notice and comment period that is
ordinarily required. 5 U.S.C. 553(b). Because of the urgent need to
clarify the immigration status of these aliens, and to make it clear
that they hold an immigration status referred to in section 501(e)(1),
the Commissioner finds that good cause exists to make this rule
effective upon publication in the Federal Register. The Service
believes that this interim rule accurately distinguishes the
immigration status categories established by sections 501(e)(1) and
501(e)(2), but will consider any comments addressing this issue that
are received during the comment period.
In accordance with 5 U.S.C. 605(b), the Commissioner certifies that
this rule does not have a significant economic impact on a substantial
number of small entities.
Unfunded Mandate Reform Act of 1995
This interim rule is not a Federal intergovernmental mandate, as
defined by 2 U.S.C. 658(5). For this reason, it is not necessary to
conduct the analysis provided for under 2 U.S.C. 1532, to develop the
small government agency plan under 2 U.S.C. 1533, to solicit State,
local or tribal government input under 2 U.S.C. 1534, or to justify
this rule as the least burdensome alternative under 2 U.S.C. 1535.
Small Business Regulatory Enforcement Fairness Act of 1996
This interim rule is not a major rule, as defined by 5 U.S.C.
804(2).
Executive Order 12866
This rule is 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 conducted the
required review.
Executive Order 12612
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilties 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.
List of Subjects in 8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration.
Accordingly, part 212 of chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
2. Section 212.5 is amended by adding a new paragraph (g), to read
as follows:
Sec. 212.5 Parole of aliens into the United States.
* * * * *
(g) Effect of parole of Cuban and Haitian nationals. (1) Except as
provided in paragraph (g)(2) of this section, any national of Cuba or
Haiti who was paroled into the United States on or after October 10,
1980, shall be considered to have been paroled in the special status
for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the
Refugee Education Assistance Act of 1980, Public Law 96-422, as amended
(8 U.S.C. 1522 note).
(2) A national of Cuba or Haiti shall not be considered to have
been paroled in the special status for nationals of Cuba or Haiti,
referred to in section 501(e)(1) of the Refugee Education Assistance
Act of 1980, Public Law 96-422, as amended, if the individual was
paroled into the United States:
(i) In the custody of a Federal, State or local law enforcement or
prosecutorial authority, for purposes of criminal prosecution in the
United States; or
(ii) Solely to testify as a witness in proceedings before a
judicial, administrative, or legislative body in the United States.
Dated: July 2, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-17674 Filed 7-11-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-17640 Assessment and Collection of Regulatory Fees for Fiscal Year 1996
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36629-36653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17640]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 64
[MD Docket No. 96-84; FCC 96-295]
Assessment and Collection of Regulatory Fees for Fiscal Year 1996
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission has revised its Schedule of Regulatory Fees in
order to recover the amount of regulatory fees that Congress has
required it to collect for fiscal year 1996. Section 9 of the
Communications Act of 1934, as amended, provides for the annual
assessment and collection of regulatory
[[Page 36630]]
fees. For fiscal year 1996 sections 9(b)(2) and (3) provide for annual
``Mandatory Adjustments'' and ``Permitted Amendments'' to the Schedule
of Regulatory Fees. These revisions will further the National
Performance Review goals of reinventing Government by requiring
beneficiaries of Commission services to pay for such services.
EFFECTIVE DATE: September 10, 1996.
FOR FURTHER INFORMATION CONTACT: Peter W. Herrick, Office of Managing
Director at (202) 418-0443, or Terry D. Johnson, Office of Managing
Director at (202) 418-0445.
SUPPLEMENTARY INFORMATION:
Adopted: July 1, 1996;
Released: July 5, 1996.
By the Commission: Commissioner Chong concurring and issuing a
statement in which Commissioner Quello joins at a later date.
Table of Contents
Paragraph
Topic Nos.
I. Introduction............................................ 1-4
II. Background............................................. 5-7
III. Discussion............................................ 8-73
A. Overall Methodology................................... 8-11
B. Adjustment of Payment Units........................... 12
C. Adjustment of Television Station Fees................. 13
D. Recalculation of Fees--Mandatory Adjustments.......... 14
E. Proposed Permitted Amendments......................... 15-50
1. Commercial Mobile Radio Service....................... 16-22
2. Commercial AM/FM Radio................................ 23-29
3. Commercial VHF/UHF Television Stations................ 30-32
4. Auxiliary Broadcast Stations.......................... 33-36
5. Intelsat & Inmarsat Signatory......................... 37-47
6. Low Earth Orbit (LEO) Satellite Systems............... 48-49
7. Minimum Fee Payment Liability......................... 50
F. Additional Regulatory Fee Issues...................... 51-68
1. Cable Television Systems.............................. 51-57
2. International Bearer Circuits......................... 58-65
3. National Exchange Carriers Association................ 66-67
4. Mobile Satellite Service (MSS)........................ 68
G. Procedures for Payment of Regulatory Fees............. 69-74
1. Annual Payments of Standard Fees...................... 70-72
2. Installment Payments for Large Fees................... 73
3. Advance Payments of Small Fees........................ 74
H. Schedule of Regulatory Fees........................... 75
IV. Ordering Clause........................................ 76
V. Authority and Further Information....................... 77-78
Appendix A--Final Regulatory Flexibility Analysis
Appendix B--Sources of Payment Unit Estimates
Appendix C--Calculation of Pro-Rata Adjustments
Appendix D--Schedule of Regulatory Fees
Appendix E--Comparison Between FY 1995, Proposed FY 1996 and Final
FY 1996 Fees
Appendix F--Detailed Guidance on Who Must Pay Regulatory Fees
Appendix G--Description of FCC Activities
Appendix H--Parties Filing Comments and Reply Comments
Final Rules
I. Introduction
1. By this Report and Order, the Commission completes its
rulemaking proceeding to revise its Schedule of Regulatory Fees in
order to recover the amount of regulatory fees that Congress, pursuant
to Section 9(a) of the Communications Act, has required it to collect
for Fiscal Year (FY) 1996. See 47 U.S.C. Sec. 159(a).
2. For FY 1996, Congress has required that we collect $126,400,000
in regulatory fees in order to recover the costs of our enforcement,
policy and rulemaking, international and user information activities
for FY 1996. Public Law No. 104-134 and 47 U.S.C. Sec. 159(a)(2). This
is $10 million more than Congress designated for recovery through
regulatory fees for FY 1995. See Assessment and Collection of
Regulatory Fees for Fiscal Year 1995, FCC 95-227, released June 19,
1995, 60 FR 34004 (June 29, 1995). See FY 1995 Report and Order, 10 FCC
Rcd 13531. It is also $10 million more than Congress initially required
us to collect in regulatory fees for FY 1996.\1\ See Notice of Proposed
Rulemaking in the Matter of Assessment and Collection of Regulatory
Fees for Fiscal Year 1996, FCC 96-153, released April 9, 1996, 61 FR
16432 (April 15, 1996). The current Schedule of Regulatory Fees
(``Schedule'') is set forth in Sections 1.1152 through 1.1156 of the
Commission's rules. 47 CFR Secs. 1.1152-1.1156.
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\1\ Subsequent to the April 9, 1996 release of our NPRM in this
proceeding, the Congress passed and the President signed on April
26, 1996, H.R. 3019 (Public Law No. 104-134), 110 STAT. 1321, which
changed the total amount of regulatory fees to be collected in FY
1996 from $116.4 million (contained in Public Law No. 104-99) to
$126.4 million.
3. In addition to adjusting our Section 9 regulatory fees to ensure
collection of the $126.4 million that Congress requires us to collect
in FY 1996, we are also adjusting the Schedule and associated payment
procedures to reflect changes to certain fee amounts recently mandated
by Congress in Public Law No. 104-134, to reflect changes in the
estimated number of payment units associated with services subject to a
fee and to incorporate certain public interest considerations. See 47
---------------------------------------------------------------------------
U.S.C. 159(b).
4. Finally, we are amending the Schedule in order to assess
regulatory fees upon licensees and/or regulatees of services not
currently subject to payment of a fee, to simplify and streamline the
Schedule and to clarify and/or revise certain payment procedures. 47
U.S.C. Sec. 159(b)(3). Except where noted, in those instances where we
received no comments on a proposal set forth in our NPRM, we are
adopting the proposal without further discussion.
II. Background
5. Section 9(a) of the Communications Act of 1934, as amended,
requires us to assess and collect annual regulatory fees to recover the
costs, as determined annually by Congress, that we incur in carrying
out enforcement, policy and rulemaking, international, and user
information activities. 47 U.S.C. 159(a). In our FY 1994 Report and
Order, 59 FR 30984 (June 16, 1994), 9 FCC Rcd 5333, we adopted the
Schedule of Regulatory Fees that Congress established and we prescribed
rules to govern payment of the fees, as required by Congress. 47 U.S.C.
Sec. 159(b), (f)(1). Subsequently, in our FY 1995 Report and Order, we
modified the Schedule to increase by approximately 93 percent the
revenue generated by our regulatory fees due to the increased amount
that Congress required us to collect in FY 1995. 60 FR 34004 (June 29,
1995). Also, in the FY 1995 Report and Order, we amended certain rules
governing our regulatory fee program based upon our experience
administering the program in FY 1994. See 47 CFR Secs. 1.1151 et seq.
6. As noted above, for FY 1994 we adopted the Schedule of
Regulatory Fees established in Section 9(g) of the Act. For fiscal
years after FY 1994, however, Sections 9(b)(2) and (3), respectively,
provide that we adjust our fees by making ``Mandatory Adjustments'' and
``Permitted Amendments'' to the Schedule of Regulatory Fees. 47 U.S.C.
159(b)(2), (b)(3). Section 9(b)(2), entitled
[[Page 36631]]
``Mandatory Adjustments'', requires that we revise the Schedule of
Regulatory Fees whenever Congress changes the amount that we are to
recover. 47 U.S.C. 159(b)(2).
7. Section 9(b)(3), entitled ``Permitted Amendments,'' requires
that we determine annually whether to adjust the fees to take into
account factors that are reasonably related to the benefits provided to
the payors of the fees and factors that are in the public interest. In
making these amendments, we are to ``add, delete, or reclassify
services in the Schedule to reflect additions, deletions or changes in
the nature of its services.'' 47 U.S.C. 159(b)(3). Section 9(i)
requires that we develop accounting systems necessary to making
permitted amendments. 47 U.S.C. 159(i). Finally, we are required to
notify Congress of any permitted amendments 90 days before those
amendments go into effect. 47 U.S.C. 159(b)(4)(B).
III. Discussion
A. Overall Methodology
8. As noted above, Congress has required that we recover
$126,400,000 for FY 1996 through the collection of regulatory fees,
representing the costs applicable to our enforcement, policy and
rulemaking, international, and user information activities. 47
Sec. U.S.C. 159(a).
9. In our NPRM, we proposed to develop our fees for FY 1996 by
first adjusting our estimates of payment units so that we could
determine how much revenue we would collect even if we did not change
any individual fee amounts. We then compared the total estimated
revenue that we would collect at the existing fee amounts to the total
revenues that we are required to collect in FY 1996 ($126.4 million),
and pro-rated the difference among all the existing fee categories.\2\
We then intended to compare these projected revenues with cost data
accumulated from our new cost accounting system and to make any further
adjustments necessary to ensure that costs generally correlated with
revenues in each fee category. As discussed in the NPRM, this step was
not performed due to implementation problems associated with our new
cost accounting system.
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\2\ As noted earlier, Congress increased the amount to be
collected in FY 1996 from $116.4 million to $126.4 million
subsequent to release of our NPRM in this proceeding.
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10. We next considered various recommendations made by our Bureaus'
and Offices' managers concerning adjustments to the fees and to our
collection procedures. The results of these actions, the detailed steps
we followed in the development of our proposed FY 1996 regulatory fees,
and a proposed new Schedule of Regulatory Fees were presented in our
NPRM.\3\ In addition, we provided detailed descriptions of each fee
category, information on the entity responsible for payment of each
fee, and other critical information designed to assist potential fee
payers in determining the extent of fee liability, if any, for FY 1996.
We invited interested parties to comment on our proposed methodology
and on our various proposals to revise the Schedule of Regulatory Fees.
We are adopting the same general methodology, as set forth in
Paragraphs 12-14 below, for developing FY 1996 regulatory fees as we
proposed in our NPRM.
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\3\ Permitted amendments are being made pursuant to Section
9(b)(3) to incorporate CMRS Mobile Services, CMRS One-Way Paging,
Intelsat & Inmarsat Signatory, and Low Earth Orbit (LEO) Satellite
Systems regulatory fee categories and to make related changes to
Geosynchronous Space Station fees. These new permitted amendments
will require 90 days Notice to Congress prior to implementation. 47
U.S.C. 159(b)(4)(B). However, it should be noted that for the CMRS
Mobile Services, licensees who have not elected to convert their
stations from private to commercial status will not be subject to
payment of a CMRS Mobile Services regulatory fee for FY 1996.
Therefore, for stations licensed as commercial on or before the date
of determination of fee liability the fee will become effective 60
days from the date of publication in the Federal Register. See para.
17-22.
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11. While we received no comments specifically supporting or
opposing the proposed methodology, the law firm of Bernstein and
McVeigh contends that regulatees are entitled to a fee payment credit
because the Federal government, including the Commission, was closed
for business for significant periods due to budget disputes and
snowstorms resulting in substantially lower regulatory expenditures
than anticipated. However, we have no discretion in the amount that we
are required to collect since it is Congress that annually establishes
the amount that we are to collect through regulatory fees. See 47
U.S.C. 159(a). Thus, Bernstein and McVeigh's pleading requires no
further discussion.
B. Adjustment of Payment Units
12. In order to calculate individual service fees for FY 1996, we
first adjusted the estimated payment units for each service because, in
many services, payment units have changed substantially since last
year. We obtained our estimates through a variety of means, including
our licensee data bases, actual prior year payment records, and
industry and trade group projections. Herein, we are further adjusting
certain payment units to reflect refinements to our unit counts since
adoption of our NPRM. Appendix B provides a summary of how payment
units were determined for each fee category.
C. Adjustment of Television Station Fees
13. On April 26, 1996, the President signed H.R. 3019 (Public Law
No. 104-134), ``The Balanced Budget Downpayment Act.'' This
legislation, in addition to requiring that we collect $126.4 million in
regulatory fees, revised the fees for television broadcast licensees
set forth in Section 1.1153 of our rules.\4\ As Congress has required,
we have incorporated its revised television station fees into our
Schedule of Regulatory Fees for FY 1996.
D. Recalculation of Fees--Mandatory Adjustments
14. We next determined the amount of revenue to be collected from
television station licensees based on the new fee amounts established
by Congress, as discussed in Paragraph 13. See Appendix C. We
subtracted our estimated television revenues ($10,060,000) from the
total amount that Congress requires us to collect in FY 1996
($126,400,000). The difference ($116,340,000) is the amount to be
recovered from all other regulatees in order to meet Congress'
requirement for FY 1996. We then multiplied the revised payment unit
estimates for FY 1996 by the corresponding FY 1995 fee amounts in each
non-television fee category to determine the revenue we would collect
in FY 1996, assuming no other change to the FY 1995 fees. Next, we
adjusted the revenue requirements for each fee category on a
proportional basis, consistent with Section 9(b)(2) of the Act, in
order to insure that we would collect approximately $116,340,000 from
these fee categories. Finally, we recalculated the individual fee
amounts in order to collect the adjusted amount in each service, and
________________
\4\ Specifically, Public Law No. 104-134 made the following changes to
Section 1.1153:
------------------------------------------------------------------------
FY 1995 New FY
Fee category (VHF/UHF Television stations) fee 1996 fee
------------------------------------------------------------------------
VHF Markets 1-10.................................... $22,420 $32,000
VHF Markets 11-25................................... 19,925 26,000
VHF Markets 26-50................................... 14,950 17,000
VHF Markets 51-100.................................. 9,975 9,000
Remaining VHF Markets............................... 6,225 2,500
UHF Markets 1-10.................................... 17,925 25,000
UHF Markets 11-25................................... 15,950 20,000
UHF Markets 26-50................................... 11,950 13,000
UHF Markets 51-100.................................. 7,975 7,000
Remaining UHF Markets............................... 4,975 2,000
------------------------------------------------------------------------
[[Page 36632]]
rounded each fee amount as provided by Section 9(b)(2).\5\ Appendix C
provides detailed calculations describing how the revised fee amounts
were determined.
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\5\ Section 9(b)(2) requires that we round fees to the nearest
$5 in the case of fees under $1,000, or to the nearest $25 in the
case of fees of $1,000 or more. 47 U.S.C. 159(b)(2).
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E. Proposed Permitted Amendments
15. In our NPRM, we proposed certain changes and additions to our
current fee categories and to our methodologies for assessing fees in
individual service categories. We have given full consideration to the
comments by interested parties and, in certain instances, we have
decided that further adjustments to the Schedule of Regulatory Fees are
warranted based upon the public interest and other criteria established
in 47 U.S.C. 159(b)(3). Each of these changes is discussed below
together with any comments we received in response to our NPRM.
However, as noted above, we will not discuss further any of our
proposals from the NPRM which received no comments. Instead, these
proposals are incorporated as proposed in our NPRM or are not adopted
in those cases in which we proposed not to change our current rules and
procedures. These include: Commercial AM/FM/TV Construction Permits,
where we considered and rejected including the revenue requirement in
the fees for the broadcast station licensees; Wireless Cable, where we
considered and rejected the idea of basing the payment units on
subscriber counts instead of on a per license basis; Direct Broadcast
Satellite (DBS) Service, where we also considered and rejected a
proposal to establish payment units on a subscriber basis rather than
per satellite; Interstate Telephone Service Providers, where we
proposed to consolidate several service categories into one category;
and Earth Stations, where we also proposed to consolidate several
service categories into one category.
1. Commercial Mobile Radio Service (CMRS)
16. In the NPRM, we proposed to establish a CMRS Mobile Services
fee category and to include in the category cellular providers and CMRS
service licensees authorized to provide interconnected mobile radio
services for profit to the public, or to such classes of eligible users
as to be effectively available to a substantial portion of the public.
See NPRM at para. 19. We stated that the new CMRS Mobile Services
category was intended to replace the Public Mobile/Cellular Radio
regulatory fee category and that certain mobile services assigned to
the Private Land Mobile Radio Service fee category for FY 1995 would be
included in the new CMRS category for FY 1996.\6\ Also, we proposed to
defer assessing a regulatory fee upon licensees in the Personal
Communications Service (PCS) because PCS is in a very early start-up
phase. Finally, we proposed that CMRS Mobile Services fee payors
calculate their annual regulatory fee based on their total mobile or
cellular unit (mobile or cellular call sign or telephone number) count,
or on their total per unit (two-way pager) count, as determined on
December 31, 1995.
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\6\ Specifically, we proposed that the CMRS Mobile Service fee
category would include cellular providers (Part 22) and Business
Radio Services, 220-222 MHz Land Mobile Systems, Specialized Mobile
Radio Services (Part 90); Public Coast Stations (Part 80); Public
Mobile Radio, 800 MHz Air-Ground Radiotelephone, and Offshore Radio
Services (Part 22). Licensees who have not elected to convert from
private to commercial operations will be exempt from payment of the
annual CMRS Mobile Services fee for FY 1996. Existing commercial
licensees and those who elected to convert prior to December 31,
1995, must pay the annual CMRS Mobile Services fee for FY 1996.
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17. The American Mobile Telecommunications Association, Inc. (AMTA)
and Nextel Communications, Inc. (Nextel) oppose including Specialized
Mobile Radio (SMR) licensees and other mobile communications providers,
previously assigned to one of the Private Mobile Radio Services (PMRS)
fee categories, in the CMRS Mobile Services fee category for FY 1996.
The parties contend that these mobile service providers are not
properly subject to the CMRS Mobile Services fee because their
operations were not a part of the CMRS service on December 31, 1995,
the date for calculating the CMRS Mobile Services fee, and, in fact,
will not convert to CMRS status until August 10, 1996. AMTA and Nextel
also urge that we exclude from the CMRS Mobile Services category any
mobile units that do not have full interconnection capability with the
public switched network. In addition, Nextel contends that, given the
competitive status of CMRS providers, we should not subject some new
mobile service providers to a CMRS Mobile Services fee and defer
imposition of the requirement on other new providers, such as PCS.
Instead, AMTA and Nextel urge that current mobile service providers pay
no fee or remain in the PMRS fee category. Finally, AMTA contends that
existing mobile licensees who have paid their regulatory fees in
advance should not be subject to a CMRS Mobile Services fee until they
file applications for renewal or reinstatement. In the alternative,
AMTA and Nextel contend that current licensees that become subject to
the CMRS Mobile Services fee before their existing licenses expire are
entitled to a credit for the remaining years of their advance fee
payments.
18. In the Omnibus Budget Reconciliation Act of 1993, Congress
provided that private carrier systems, including 220-222 MHz and SMR
services, providing interconnected mobile radio services for profit to
the public, or to such classes of eligible users as to be effectively
available to a substantial portion of the public, were to be
reclassified as CMRS licensees.\7\ Congress provided a three year
transition period pursuant to which private carrier licensees
authorized prior to August 10, 1993, would continue to be regulated as
private carriers until August 10, 1996. Therefore, we agree with the
commenters that we should not require licensees that will not become
subject to CMRS regulation until August 10, 1996, to pay a CMRS Mobile
Services fee for FY 1996. Further, we agree with the parties that
existing CMRS licensees should include in their calculations of the
CMRS Mobile fee only those units operational on December 31, 1995.
Also, as a result of this decision, we have reduced our estimate of the
number of payment units for this category.
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\7\ See Omnibus Budget Reconciliation Act of 1993, Public Law
No. 103-66, Title VI Sec. 6002(b), 107 Stat. 312, 392.
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19. However, we do not agree that CMRS units that do not fully
connect with the public switched network should not be subject to the
CMRS fee. Consistent with Sections 9(a) and 9(b), our CMRS Mobile
Services fee is based upon the costs of our regulatory oversight. As
such, we will require mobile providers to submit a CMRS Mobile Services
fee based upon our regulatory costs rather than the particular use that
a provider makes of its frequencies. Therefore, mobile operators,
otherwise subject to the CMRS Mobile Services fee, should submit a CMRS
Mobile services fee for any unit operating under the authority of a
license authorizing the operator to provide ``for profit'' service to
the public and to interconnect its services with the public switched
network, without limitation, or to such classes of eligible users as to
be effectively available to a substantial portion of the public, as
[[Page 36633]]
described in Section 20.3 of our Rules.\8\ 47 CFR 20.3.
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\8\ For regulatory fee purposes, ``distress'' traffic is not
included as part of a public coast station licensee's subscriber
count.
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20. In addition, we reject Nextel's argument that, because we have
decided that PCS licensees should not be subject to the fee for FY
1996, all new providers of CMRS service should be excepted from payment
of the CMRS Mobile Services fee. Unlike other services within the CMRS
category of services, PCS has only recently been established and few
PCS providers are now operational. In contrast, SMR licensees, such as
Nextel, have long been eligible to provide mobile service, including
interconnection with the public switched network, and thus, although
they may be newly assigned to CMRS, these operators cannot be said to
be new providers of mobile services.
21. We recognize that some current mobile service providers have
paid Private Land Mobile fees covering the length of their license
term. However, we decline to defer assessing a CMRS fee on these
licensees until the expiration of their current licenses.\9\ In our
NPRM, we stated that payors of advance fees would not have these fees
``adjusted'' during their license term. See NPRM at para. 56. Our clear
purpose was to assure payors of advance fees that we would not require
any additional payment if we increased the fee amount required for the
fee category in which the payment was made. It was not our intent that
licensees transferred from one fee category to another would not be
subject to the fee payment required by their new fee category until the
expiration of their current license. Nevertheless, under our Rules, a
licensee is entitled to a refund of an advance payment, upon request,
whenever we ``adopt new rules that nullify a license or other
authorization.'' 47 CFR 1.1159(2)(i). Therefore, any licensee that
converts from private to CMRS and has paid its fees in advance for a
period of years, may file a request for refund with its initial CMRS
regulatory fee payment. Detailed procedures for refund requests will be
issued by Public Notice.
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\9\ Because Private Land Mobile regulatory fees are submitted
with license applications and paid for the number of years in the
term of the license, these licensees have paid their regulatory fees
several years in advance. See 47 U.S.C. 159(f)(2).
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22. Destineer, Inc., a PCS licensee, asks that we establish a CMRS
Messaging Service fee category to replace our CMRS One-Way Paging fee
category. Destineer recognizes that, as a PCS provider, it is not
subject to any fee payment for FY 1996. However, it states that, with
the exception of two-way paging services, our CMRS Mobile category
includes only broadband services and that broadband services, unlike
paging services, provide for real time two-way interactive voice
communications. We agree with Destineer that there are important
regulatory, technical and competitive differences between the two
narrowband and broadband services that may warrant establishing a fee
category that would include all narrowband services, including two-way
paging. However, Destineer has provided us with no information
concerning how to structure its proposed fee category, e.g., estimated
units that would be included in the category for FY 1996 or the impact
of the new fee category on revenues from our CMRS Mobile fee category.
Therefore, we will adopt our proposed CMRS Mobile Services and CMRS
One-Way Paging fee categories for FY 1996, but we invite interested
parties to file proposals and comments on alternative methods to assess
CMRS fees in our proceeding to establish regulatory fees for FY 1997.
2. Commercial AM/FM Radio
23. In our NPRM, we discussed a proposal to assess regulatory fees
for Commercial AM and FM radio licensees according to the size of a
station's market, but concluded that development of a market-based fee
assessment methodology for radio broadcast stations appeared to be not
cost effective. See FCC 96-153 at para. 20.\10\ As a result, we
proposed to assess radio broadcast fees solely on the basis of class of
license, utilizing the statutory fee structure that we adopted for FY
1994 and FY 1995. 47 U.S.C. 159(g). In our NPRM, we invited comments
proposing alternatives to the current radio fee structure. Id. at para.
21.
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\10\ In our FY 1995 NPRM, we recognized ``that the population
density of a station's geographic location was also a public
interest factor warranting recognition in the fee schedule.'' FCC
95-14 at para. 29. Subsequently, we declined to adopt a market-based
fee structure for AM and FM radio because we were unable to develop
a reliable and accurate method for differentiating among radio
markets. See FY 1995 Report and Order, 10 FCC Rcd at 13531-532.
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24. The Montana Broadcasters Association (Montana) filed comments
proposing a radio broadcast service fee structure based on class of
station and on market size. Montana maintains that its proposed fee
structure is similar to the fee structure that Congress enacted for
television broadcast stations and that it would more fairly allocate
regulatory fees among radio stations by reducing the fees for small
market radio stations and increasing them for larger stations. See 47
U.S.C. 159(g).
25. Montana's proposed fee structure takes into account both a
station's market size and the classification of its facilities. The
proposed fee structure establishes broad groupings of radio broadcast
markets determined by market size. It assigns a different level of fees
for each market grouping predicated on the ratios between fees that
Congress initially assessed for licensees in different sized television
markets. Montana proposes four specific market classifications: Markets
1 through 25, Markets 26 through 50, Markets 51 through 100, and
Remaining Markets. Stations are assigned to a market grouping based
upon Arbitron Rating Co. (Arbitron) market designations. Montana
proposes ratios between fees paid by larger market radio broadcast
stations and fees paid by remaining market radio broadcast stations as
follows:
Markets 1 through 25--1 to 3.4\11\
---------------------------------------------------------------------------
\11\ See Montana's petition, n. 4 at p 4. The ratios that
Montana employs are those that Congress established in its fee
structure for television broadcast regulatory fees. See 47 U.S.C.
Sec. 159(g). The Montana proposal would raise the fees for stations
in larger markets and reduce the fees in smaller markets. For
example the NPRM proposed a regulatory fee for Class A AM stations
of $1,125. Utilizing the proposed Montana Schedule, Class A stations
in remaining markets would have their fees reduced to $850; while
Class A stations in Markets 1 through 25 would pay $2,890; in
Markets 26 through 50 they would pay $2,040 and in Markets 51-100
they would pay $1,360. We note that Congress recently directed the
Commission to modify the regulatory fee schedule to increase the
differential between the fees paid by major market television
stations and fees paid by television stations located outside of the
top 50 markets. Utilizing new ratios between fees paid by television
in larger and smaller markets based on the relationship between the
fees Congress has established would further increase the
differential between payments by radio stations in larger and
smaller markets.
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Markets 26 through 50--1 to 2.4
Markets 51 through 100--l to 1.6
26. Montana assigns different classes of stations to each market by
relying on an analysis of the broadcast markets conducted by Dataworld
MediaXpert Service. According to Montana, its proposed rate structure
would result in aggregate revenue to the Commission approximating the
amount to be recovered from AM and FM licensees through the fee
structure proposed in our NPRM. Although the Montana proposal would
raise the fees for radio stations in the top 100 markets, no comments
were filed by parties who would be adversely affected by the proposal.
27. Montana proposes to utilize the Dataworld data base which in
turn is based on Arbitron market rankings. Inour
[[Page 36634]]
FY 1995 Report and Order, we found that a proposal to base fees on
Arbitron data did not provide a sufficiently accurate and equitable
methodology for determining fees. 10 FCC Rcd at 531-532. Moreover,
because Congress recently mandated that we amend the regulatory fee
schedule for television stations, we believe that further evaluation of
the proposal is necessary in order to determine the proper ratio
between fees for radio stations in different markets and to evaluate
the impact of this change. See H.R. 3019, H. Rept. 104-537.
28. As a result, for FY 1996, we have decided to adopt the basic
fee structure proposed in our NPRM, which differentiates between
licensees based on the class of a station's license. The fees therein
are low enough so that they should not be an onerous burden on most
licensees, and our policy is to grant waivers of the fees where our
licensees can make a showing of a compelling case of financial
hardship.
29. We agree, however, that there may be inequities in requiring
all radio stations of the same class to pay the same fee without regard
to the size of their market, particularly since stations serving
greater populations generally have greater revenues than stations
serving smaller markets. Thus, we believe that the Montana proposal
warrants further study and consideration. It is our intention to
consider the Montana proposal, or some modification thereof, for
assessment of the FY 1997 fees. We will be commencing, subsequent to
this proceeding, a Notice of Inquiry in order to develop a more
appropriate methodology for assessing AM and FM fees. We invite
interested parties to comment on Montana's proposal and to submit
alternative AM and FM fee methodologies for our consideration in the
context of that proceeding.
3. Commercial VHF/UHF Television Stations
30. Subsequent to the release of the FY 1996 NPRM, Congress
required that we revise Section 1.1153 of the rules in order to
increase the fees for VHF and UHF Television Stations located in the
top 50 markets and to reduce the fees for stations in the 51 to 100
largest markets and in the remaining markets category. Public Law No.
104-134. Therefore, as required by Congress, we will amend Section
1.1153 of our rules to include the specific fees that Congress
determined should be assessed licensees in the Television Broadcast
Service for FY 1996. See Appendix D for a listing of the FY 1996
Television Broadcast fees.
31. In our NPRM we proposed to rely on Nielsen DMA rankings to
determine the appropriate regulatory fee for television licensees in FY
1996 because Arbitron has ceased publication of its Areas of Dominant
Influence that we formerly relied upon. See NPRM at para. 27. Southern
Broadcast Corporation of Sarasota (Southern), licensee of Station
WWSB(TV), Sarasota, Florida, opposes reliance on Nielsen DMA's because,
as calculated by the DMA, its market rank would change to the 15th
largest DMA market from the 153rd ADI market. As a result, Southern
will be subject to a substantially higher fee than it has previously
been assessed.
32. We have decided to rely on Nielsen's DMA market rankings, as
proposed. As noted above, current Arbitron data for assessing
television regulatory fees is no longer available. Nielsen data is
generally accepted throughout the industry and will be updated and
published annually by Warren Publishing in its Television and Cable
Factbook. While the change may result in some licensees being assigned
to new markets, this is not a basis for rejecting Nielsen markets.
Nielsen markets may, in fact, provide a more accurate reflection of an
applicant's service area than do Arbitron markets. We will consider the
equities concerning the fees of licensees that change markets on a
case-by-case basis, upon request, and, where a licensee demonstrates
that it does not serve its assigned market, we will consider reducing
the assigned fees to a more equitable level, based upon the area
actually served by the licensee.
4. Auxiliary Broadcast Stations
33. This fee category includes licensees of Remote Pickup Stations,
Aural Broadcast Auxiliary Stations, Television Broadcast Auxiliary
Stations, and Low Power Auxiliary Stations, authorized under Part 74 of
the Commission's Rules. These stations are generally associated with a
particular television or radio broadcast station or cable television
system.
34. In an attempt to simplify the Fee Schedule, our NPRM considered
the feasibility and equity of combining Auxiliary Broadcast Station
fees with the primary fees paid by broadcast station licensees and
cable television operators into a single, consolidated fee. Although a
consolidated fee has certain advantages, there are significant problems
with using this approach and we found that such a fee would likely
result in serious inequities since larger commercial broadcast stations
and cable systems in the most profitable markets are more likely to
utilize multiple auxiliary stations. While a consolidated fee would
have little impact on stations serving larger populations, it could
result in less profitable stations in smaller markets subsidizing
regulatory fees for stations serving larger markets. Thus, our NPRM
proposed to retain Auxiliary Broadcast Station fees as a separate
category in FY 1996.
35. The Society of Broadcast Engineers (SBE) urges reduction or
elimination of the Auxiliary Broadcast Station fee. It contends that
frequency coordination and regulation of these facilities are in large
part conducted by volunteers and supported by voluntary contributions
from the industry. In SBE's view, imposition of a regulatory fee on
broadcast auxiliary stations could ``possibly place the entire program
of SBE-affiliated frequency committees in jeopardy.''
36. We have decided to not reduce or eliminate the Auxiliary
Broadcast Station fee. We cannot conclude that our proposed regulatory
fee would adversely impact voluntary coordination of auxiliary
stations. Moreover, the relatively small fee for Auxiliary Broadcast
Stations already takes into account volunteer efforts, including those
described by SBE. Accordingly, we will retain a separate Auxiliary
Broadcast Station fee as proposed in the NPRM. See Appendix F,
Paragraph 27.
5. Intelsat and Inmarsat Signatory
37. In our NPRM, we proposed to establish a Signatory fee category
to recover our costs of regulating the U.S. Signatories to the
International Telecommunications Satellite Organization (Intelsat) and
to the International Mobile Satellite Organization (Inmarsat). See FY
1996 NPRM at para. 43. We stated that the new fee was warranted due to
the unique role of the U.S. Signatories in Intelsat's and Inmarsat's
structure and our regulatory role with respect to these entities. The
U.S. Signatory to Intelsat is the Communications Satellite Corporation
(Comsat), the entity designated, pursuant to the Communications
Satellite Act, as the sole operating entity to participate in Intelsat
in order to construct and operate the space segment of the global
commercial telecommunications satellite system established under the
Interim Agreement and Special Agreement signed by the Governments on
August 20, 1964. See 47 U.S.C. 731. Also, pursuant to the
Communications Satellite Act, Comsat is solely designated to
participate in the Inmarsat. See 47 U.S.C. 751. Because Comsat is the
entity that Congress
[[Page 36635]]
designated as the U.S. Signatory to both Intelsat and Inmarsat, the fee
would apply only to Comsat.
38. Comsat has opposed our adoption of the Signatory Fee,
contending that the proposed fee is unlawful and, even if lawful,
excessive. GE American Communication, Inc. (GE Americom) has filed
comments supporting our adoption of the Signatory fee and reply
comments responding to certain of Comsat's arguments.
39. Comsat believes that the Signatory fee is beyond our authority
in light of Congress' intention not to assess a fee upon space stations
operated by international organizations. See FY 1995 Report and Order
at para. 110. In addition, Comsat argues that we are authorized to
establish new fee categories only in those instances in which there has
been a change in our regulation or in the law. Comsat also claims that
the Signatory fee is prohibited by Article I, Section 8, Clause 1 of
the United States Constitution as an unauthorized and unconstitutional
tax because it bears no relationship to any specific regulatory benefit
that Comsat receives from the Commission. Instead, Comsat argues,
Congress alone conferred upon Comsat its ``special benefit'' of
Signatory status. Finally, Comsat maintains that, even assuming that we
have authority to establish a Signatory fee, the total amount to be
recovered by the fee is grossly excessive.
40. We reject Comsat's contention that the Signatory fee
contravenes Congressional intent reflected in Section 9. In the
Conference Report accompanying Section 9, Congress stated with respect
to space station fees that--
the Committee intends that fees in this category be assessed on
operations of U.S. facilities, consistent with U.S. jurisdiction.
Therefore, these fees will only apply to space stations directly
licensed by the Commission under Title III of the Communications
Act. Fees will not be applied to space stations operated by
international organizations subject to the International
Organizations Immunities Act, 22 U.S.C. Section 288 et seq.\12\
---------------------------------------------------------------------------
\12\ See H.R. Rept. No. 213, 103d Cong., 1st Sess. 499 (1993);
see also H.R. Rep. No. 102-207, 102d Cong., 1st Sess. 26. Both
Intelsat and Inmarsat are subject to the International Organizations
Immunities Act. See Exec. Order No. 11,996, 42 Fed. Reg. 4331
(1977); Exec. Order No. 12,238, 45 Fed. Reg. 60,877 (1980).
In contrast to the space stations referred to in the Conference Report,
however, the Signatory fee will not be imposed on Intelsat and
Inmarsat, or on their operation of international space stations. The
fee applies only to Comsat, a private, for-profit, U.S. corporation
that receives benefits from its special role in international satellite
communications. Moreover, in contrast to Congress' rejection of a fee
on Intelsat's and Inmarsat's space stations as inconsistent with U.S.
jurisdiction, nothing in Section 9 limits our authority to recover our
costs of regulating Comsat, a U.S. Corporation.
41. Comsat is also mistaken that the second sentence in subsection
9(b)(3) limits our authority to establish new fee categories.
Specifically, subsection 9(b)(3) states that ``the Commission shall
add, delete, or reclassify services in the Schedule to reflect
additions, deletions, or changes in the nature of its services as a
consequence of Commission rulemaking proceedings or changes in law.''
47 U.S.C. 159(b)(3). The subsection provides that we must add new fees
to the Schedule to reflect changes in the nature of our services. The
statement does not purport to limit our statutory authority, and duty,
to otherwise modify fees as provided in Section 9.
42. In that regard, subsection 9(b)(3) requires that we ``amend the
Schedule of Regulatory Fees if the Commission determines that the
Schedule requires amendment to comply with the requirements of
paragraph (1)(A).'' Paragraph (1)(A), in turn, requires that we assess
and collect regulatory fees to cover the costs of regulatory
activities, including international activities, by ``tak[ing] into
account factors that are reasonably related to the benefits provided to
the payor of the fee by the Commission's activities and other factors
that the Commission determines are necessary in the public interest.''
47 U.S.C. 159(b)(1)(A). Thus, Section 9 both authorizes and requires
amendment of the Schedule when, as here, we determine that such action
is necessary to recover our regulatory costs for international
activities, taking into account the benefits that we provide the payor
and other public interest factors.
43. Further, we find no merit in Comsat's argument that our
proposed Signatory fee constitutes an unauthorized and unconstitutional
tax. Relying on National Cable Television Association v. United States,
(NCTA), Comsat claims that the fee is an unconstitutional tax, rather
than a fee, because it bears no relationship to any regulatory benefit
conferred by the Commission on Comsat as a signatory. Comsat also
asserts that Congress may not delegate the power to levy a tax. Comsat,
however, misstates the law concerning delegations of taxing authority.
In Skinner v. Mid-America Pipe Line Co., the Supreme Court made clear
that, even if agency fees are a form of taxation, the delegation of
discretionary authority under Congress' taxing power is subject to no
constitutional scrutiny greater than applied to other nondelegation
challenges. 490 U.S. 212, 224; 109 S.Ct. 1762, 1733 (1989). Thus, so
long as the fees in question are within the scope of Congress' lawful
delegation of authority in Section 9, they are constitutional. No
requirement exists to establish that all of the administrative costs
recovered through the signatory fee are not a tax in that they ``inure
directly to the benefit of regulated parties,'' rather than to the
public generally. Id. at 223-24.
44. Consistent with the Supreme Court's guidance in Skinner,
Congress in Section 9 of the Act declared that the fees are to be
assessed in a rulemaking proceeding, based upon our costs of performing
enforcement, policy and rulemaking, international and user information
activities, ``taking into account'' the benefits provided to the payor
of the fee by these activities, as well as other public interest
factors, and that we are to recover our costs only in the aggregate
amount annually appropriated by Congress.
45. We believe that the fee in question fully satisfies the
statutory requirements in Section 9. As noted in the NPRM, our review
of our Signatory activities disclosed that approximately 14.7% of the
costs attributable to space station regulatory oversight ($3,175,850)
\13\, as determined in Appendix C, is directly related to Intelsat and
Inmarsat Signatory activities (5.25 FTEs \14\ out of a total of 35.7
direct FTEs). As a result, $466,850 (rounded) must be collected from
the Signatories to offset the regulatory costs attributed to them
($3,175,850 x 14.7%). Dividing this revenue requirement by two (there
are Signatories to two separate organizations), yields a Signatory fee
of $233,425. See Appendix F, Paragraph 37. We also have no doubt that
Comsat benefits significantly from its status as signatory and the
regulatory oversight that is necessitated by that status.\15\
[[Page 36636]]
Therefore, taking into account these benefits, we perceive no public
interest basis for relieving Comsat of the costs that the Commission
incurs in regulating its activities.
---------------------------------------------------------------------------
\13\ Revenue requirements have been adjusted throughout the
satellite fee categories as a result of adjustments to the
assessable payment units for some fee categories and the
Congressionally imposed fees for VHF and UHF television stations.
Therefore, the amounts will not match the amounts shown in the NPRM.
\14\ Full Time Equivalent (FTE) employment is the total number
of regular straight-time hours (i.e., not including overtime or
holiday hours) worked or to be worked by current and future
employees divided by the number of compensable hours applicable to
each fiscal year.
\15\ For example, we are currently conducting several
proceedings concerning Comsat's authority to provide services via
Intelsat and Inmarsat, its authority to participate in the
procurement or leasing of various Intelsat and Inmarsat space
stations, and its authority to participate in certain Intelsat and
Inmarsat-associated businesses. There also are proceedings pending
before us related to whether Comsat has conformed to applicable
structural and financial separation rules. In addition, we actively
participate on an ongoing basis with the Executive Branch in the
oversight of Comsat's representations of U.S. policy at the Intelsat
and Inmarsat governing boards through the U.S. Government
Instructional process.
---------------------------------------------------------------------------
46. Since the Signatory fee will recover our costs attributable to
our Signatory oversight, we are able to reduce the space station fee.
The new space station fee is computed by reducing the revenue
requirement for space stations calculated in Appendix C ($3,175,850) by
the $466,850 to be collected from signatories and dividing the reduced
space station revenue requirement ($2,709,000) by the number of payment
units (38 operational space stations). The result of these calculations
is a new fee of $71,300 (rounded) for each operational space
station.\16\
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\16\ This fee is further adjusted in Paragraph 47.
---------------------------------------------------------------------------
47. Finally, although we have imposed a Signatory fee in our FY
1996 Schedule of Regulatory Fees, we intend in FY 1997 to explore
alternative means of recovering these costs. We may, for example,
conclude that it is more efficient to recover these regulatory costs
through increases in the fees for international bearer circuits.
However, before making such changes, we will seek public comment in the
rulemaking proceeding to implement the FY 1997 Schedule of Regulatory
Fees.
6. Low Earth Orbit (LEO) Satellite Systems
48. In our NPRM, we proposed for the first time to adopt a fee for
Low Earth Orbit (LEO) Satellite Systems.\17\ In developing that fee, we
proposed to apportion the total revenue requirement for all space
stations between LEO systems and geosynchronous space station
licensees. In so doing, we also proposed to preserve the same relative
relationship between the fees established by the Congress in Section
9(g) of the Act for geosynchronous space stations and LEO systems;
i.e., an approximate 38.5% differential between the fee for LEO systems
and the fee for geosynchronous space stations. 47 U.S.C. 159(g). After
reducing the space station revenue requirement by the amount of the
Signatory fees, the resultant LEO fee is $97,725 (rounded) and the new
geosynchronous fee is $70,575 (rounded).\18\
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\17\ Congress' Schedule of Regulatory Fees contains a fee for
LEO systems. However, for FY 1994 and FY 1995, we determined that no
LEO systems were operational on the effective date of the fee
requirement for these years. See FY 1995 Report and Order at para.
15.
\18\ The FY 1996 adjusted revenue requirement for all space
stations has been determined to be $2,709,000. See Paragraph 46. For
FY 1996, there is only one LEO system, and there are 37
geosynchronous (including DBS) space stations subject to fee
payment. The formula for computing the new LEO and geosynchronous
space station fees is as follows:
(a) We have assigned ``L'' to represent the LEO system fee and
``G'' to represent geosynchronous space station fee.
(b) The relationship between the LEO fee and the geosynchronous
fee may be expressed as:
L=1.385G (i.e., the LEO fee needs to be 38.5% higher than the
corresponding geosynchronous space station fee).
(c) The total revenue to be collected from LEOs and
geosynchronous space stations may be expressed as:
L+37G=$2,709,000 (i.e., the one existing LEO system and 37
geosynchronous space stations together must account for $2,709,000
in revenues).
(d) Substituting the value of ``L'' in (b) above into the
formula in (c) above yields the following:
1.385G+37G=$2,709,000
38.385G=$2,709,000
G=$470,574
(e) Therefore, ``G'' (Geosynchronous space station fee) is
$70,575 (rounded).
(f) Substituting the computed value of ``G'' in (d) above into
the formula in (c) above yields the following:
L+37(70,575)=2,709,000
L+2,611,275=2,709,000
L=97,725
(g) Therefore, ``L'' (LEO fee) is $97,725.
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49. Motorola requests that we defer imposing any regulatory fee on
a LEO system until an entire planned constellation has been launched
and is fully operational. In our FY 1994 Report and Order, we decided
that a LEO system would become subject to a fee payment when its first
satellite became operational upon certification by its licensee that
the operations of the first satellite in its system conforms to the
terms and conditions of its authorization pursuant to 47 CFR
Sec. 25.120(d). Nothing in Motorola's comments persuades us otherwise.
It may take several years for an entire constellation to be completed.
However, a system is capable of providing commercial customer services
prior to full deployment of all authorized satellites. Thus, because
our regulatory oversight of a LEO system begins when its initial
satellite is launched and placed in operation, we will require that a
LEO system licensee submit a fee once it certifies to the operation of
its initial satellite pursuant to Section 25.120(d) of our rules.
7. Minimum Fee Payment Liability
50. As proposed in our NPRM at para. 57, we will adopt a minimum
fee payment policy in order to minimize the cost of our regulatory fee
program because our collection and verification costs for small
payments are considerably more than our revenues from these
collections. A regulatee will be relieved of its fee payment
requirement if its total fee due, including all categories of fees for
which payment is due by the entity, amounts to less than $10. We have
reconsidered our proposal to submit the Form FCC 159 and have
determined that we will not require those entities qualifying for the
minimum fee liability exemption to file Form FCC 159. Those qualifying
for exemption, however, are advised that as part of our verification
program, it may be necessary for them to provide proof of exemption
should we choose to audit their fee liability.
F. Additional Regulatory Fee Issues
1. Cable Television Systems
51. The National Cable Television Association (NCTA) has filed
comments objecting to our proposed fee for cable television systems.
NCTA asserts that we failed to discuss in our NPRM the basis for our
proposed fee and that we did not demonstrate that the fee is reasonably
related to our costs of regulating cable television. NCTA also believes
that with deregulation, the fee for cable television should decrease
rather than increase, particularly in light of our ``social contract''
resolution of rate complaints, ongoing deregulation of small cable
systems and its expectation of further rate deregulation. Further, NCTA
contends that the cable television per subscriber fee should not be set
as high relative to the proposed fee for Wireless Cable (MMDS)
licensees.
52. In our NPRM, we discussed in detail our methodology for
developing our proposed fees for FY 1996, including our cable
television fees. See NPRM at Paras. 8-12 and Appendix C. Therein, we
set forth both our steps used to develop the fees and our mathematical
calculations underlying the development of specific fee proposals. We
also explained that, for various reasons, our cost accounting system
was not yet able to provide reliable information to assist us in
developing our fees. See NPRM at paras. 13-17. Thus, for FY 1996, we
were unable to compare the individual fee category revenues with actual
data accumulated from our new cost accounting system.
53. Even though we were not able to use our new cost accounting
system, we
[[Page 36637]]
believe the fees for cable systems are reasonably related to our costs
attributable to cable television regulation which consist of several
different categories of costs. Direct staff costs are those costs
attributable to staff assigned to the Cable Services Bureau engaged in
activities described in Section 9(a)(1) of the Act. Indirect or
overhead support staff costs are those costs attributable to staff
assigned to other Bureaus and Offices within the Commission who support
direct staff working in the Cable Services Bureau. Support staff
accounts for approximately 40% of staff costs attributable to cable
television oversight. Other obligations costs are non-personnel costs
such as office space rental, equipment, contractual services, supplies,
etc. which are attributable to the Cable Services Bureau. In total,
these costs have not changed significantly from FY 1995.
54. Additionally, we must recover from our regulatory fees other
costs that cannot be specifically attributed to a particular class of
licensee. These costs, in the interest of fairness, are allocated on a
pro-rata basis to all fee payors. For example, Congress has exempted
several classes of licensees from regulatory fees, including amateur
radio licensees, non-commercial radio and television stations, non-
profit entities and public safety licensees. Although these entities
are exempt from payment of a fee, Congress requires that our regulatory
costs associated with these entities be borne by those regulatees not
exempt from the fee requirement. Additionally, in making the mandatory
adjustments to the fee amounts required by Section 9(b)(2)(a), an
overall revenue shortfall occurs due to changes in the number of
payment units from FY 1995 to FY 1996. This shortfall (over $1 million)
is allocated on a pro rata basis to all fee categories, including cable
television system operators.
55. Also, we disagree with NCTA's contention that our regulatory
costs related to cable television systems should be lower at this stage
of the industry's deregulation. Based on the foregoing, our costs
attributable to the regulatory categories for which we are required to
recover our costs through regulatory fees are actually much higher than
they may appear due to overhead and indirect costs. Second, although we
are deregulating the cable television industry, our regulatory costs
related to cable television have not diminished for FY 1996. Since the
Telecommunications Act of 1996 became law, we have commenced several
important rulemaking proceedings to further our cable deregulatory
policies, requiring significant personnel resources. In addition,
because of the large volume of work required of the Commission under
the 1996 Act, the Cable Bureau has taken on significant new
responsibilities in a number of areas related to the provision of video
programming services. For example, the Bureau is responsible for
developing and enforcing rules concerning open video systems pursuant
to new section 653 of the Communications Act, over-the-air reception
devices under section 207 of the 1996 Act and telecommunications
navigation devices under new section 629. And the Bureau has been
assigned the responsibility to implement the amendments to section 224
(Regulation of Pole Attachments) of the Communications Act of 1934, as
well as new section 713 of the Communications Act concerning video
programming accessibility. These proceedings (whose costs must be
offset by regulatory fees) are in addition to our on-going oversight
responsibilities involving rate complaints, program access complaints,
informational services, and adjudicatory proceedings work, which must
continue even as we implement the Telecommunications Act. Thus, while
we agree with NCTA that our ``social contracts'' with cable operators
and the deregulation of small cable operators and similar policy
initiatives reduce certain costs of regulation, we cannot conclude that
our overall costs of cable regulation or those additional regulatory
costs that we must recover from cable operators justify a reduction in
the cable television fee for FY 1996.
56. Finally, we reject NCTA's complaint that the cable subscriber
fee is too high relative to the regulatory fees paid by Wireless Cable
(MMDS) licensees. NCTA estimates that MMDS fees would be $.20 per
subscriber if its fee were assessed on a per subscriber basis rather
than a call sign basis. As NCTA is aware, cable and MMDS are subject to
substantially different regulatory oversight programs. As a consequence
of our oversight of these services, our estimated total cost to
regulate the cable television industry in FY 1996 is $31 million as
opposed to an estimated total cost to regulate MMDS entities in FY 1996
of $158,000. In view of these estimated costs, in large part due to
their different regulatory regimes, we see no unreasonable disparity
between the revenue requirement that we have assigned to the two
services. NCTA should note that MMDS regulatory fees have increased
nearly twice as much as cable television fees since Congress
established its Schedule of Regulatory Fees in 1993. See 47 U.S.C.
159(g).
57. In summary, we expect that our deregulatory activities will
result in reduced oversight costs in future years, but those costs have
not and will not diminish for FY 1996. Thus, for FY 1996, we will adopt
the cable television fee shown in Appendix D.
2. International Bearer Circuits
58. International Bearer Circuit fees are assessed upon facilities-
based common carriers activating a circuit in any transmission facility
for the provision of service to an end user or a resale carrier. In our
NPRM, we proposed a fee of $4.00 per bearer circuit upon facilities-
based common carriers activating a circuit in any transmission facility
for the provision of service to an end user or a resale carrier.
59. Comsat contends that our proposed fee for international bearer
circuits is approximately twice the appropriate fee amount necessary to
recover the revenue requirement that we assigned to this fee category.
Comsat states that the revenue requirement associated with bearer
circuits has increased significantly in one year without any
explanation. In Comsat's view, the increase in the revenue requirement
for bearer circuits arises from underforecasting payment units in FY
1995 and the use of actual payment units as the basis for our FY 1996
forecast. Comsat states that, since there is no evidence that the costs
which the bearer circuit fee is designed to recover have increased, our
proposed retention of the $4.00 per circuit fee, based on our
underestimate of bearer circuit payment units for FY 1995, is
unjustified.
60. The Commission, in its FY 1995 NPRM, estimated that there were
62,000 international bearer circuits susceptible to regulatory fee
payment (based on estimated counts as of December 1994). As a result of
comments received from interested parties in that rulemaking, we more
than doubled (to 125,000) the number of estimated circuits applicable
to our development of FY 1995 regulatory fees in our FY 1995 Report and
Order. Based on actual numbers of bearer circuits for which fee
payments were made in FY 1995, we proposed in our FY 1996 NPRM a total
of 228,000 circuits for FY 1996 (based on estimated counts as of
December 31, 1995).
61. The Commission knows of no reliable source of bearer circuit
counts. We do not maintain this data at the Commission nor do we know
of any central repository of this information. As such, we must rely on
industry estimates or actual prior year payment information in order to
determine the
[[Page 36638]]
number of payment units for any particular fiscal year. The payment
unit estimate for FY 1995 was based on the best information available
to us and relied upon information provided by regulatees. The same is
true for FY 1996. Although Comsat questions our estimate of payment
units for FY 1996, it did not provide its own estimate of circuits, nor
did any other commentor. As such, we believe our FY 1996 payment unit
estimate based on actual circuits paid for in FY 1995 is appropriate.
62. Comsat's concerns relative to the total revenues being
collected from bearer circuits are not persuasive. The methodology for
calculating regulatory fees established by the Congress requires that
prior year fee amounts be proportionally adjusted in order to ensure
that the total amount to be collected is apportioned fairly among our
regulatees. The Congress also provided that further adjustments to the
fees (``permitted amendments'') should be supported by costs derived
from our cost accounting system. As noted elsewhere in this item, we
were unable to utilize cost data from our new cost accounting system
this year and were therefore unable to determine the total costs
attributable to bearer circuit regulation and to compare this to our
estimate of revenue requirements. This data should be available for
development of our FY 1997 regulatory fees. In the absence of reliable
cost accounting information, we performed an informal review of bearer
circuit costs and found that our costs may significantly exceed the
revenue requirement for bearer circuits established in this rulemaking.
Estimated staff resources devoted to bearer circuit oversight also seem
to support a higher revenue requirement. As such, we believe that our
revenue requirement and estimated payment units are based on the most
accurate information available, and we will utilize these estimates for
FY 1996.
63. In addition, Comsat states that our estimated unit count for
bearer circuits may also be low because we failed to consider that we
recently authorized domestic satellites to provide international bearer
circuits. See FCC 96-14 (released Jan. 22, 1996), summary published 61
FR 9946 (Mar. 12, 1996), 11 FCC Rcd 2429, (DISCO-I Order). Also, Comsat
contends that our definition of bearer circuits should include all
bearer circuits, not only those provided by common carriers, because
the statutory fee schedule contemplates that the bearer circuit fee
will be collected from common and private carriers alike.
64. Nothing in Section 9 of our implementing rules limits payment
of international bearer circuit fees to international common carriers.
Therefore, any common carrier, including domestic satellite licensees
providing international bearer circuits, as described in our FY 1995
Report and Order at paras. 115 through 117, is subject to the bearer
circuit fee. However, because our DISCO-I Order did not become
effective until after the calculation date for bearer circuits (October
1, 1995), domestic satellite licensees were not authorized to provide
international bearer circuits at the time for calculating the bearer
circuit regulatory fee, and, therefore, we have not included bearer
circuits provided by domestic satellite carriers in our estimates of
bearer circuit payment units for FY 1996.
65. Finally, Comsat contends that Section 9 provides for the
payment of a bearer circuit fee by private carriers. However, our NPRM,
as well as prior year NPRMs, did not propose to collect international
bearer circuit fees from other than common carriers. We do not have any
information in the record of this proceeding on which to calculate a
fee applicable to bearer circuits provided directly to end users over
non-common carrier international facilities. As a result, we have no
other viable alternative but to adopt the fee as proposed in the NPRM.
However, we believe that Comsat's proposal warrants further
consideration. It is our intention to consider Comsat's proposal, or
some modification thereof, for assessment of the FY 1997 fees.
3. National Exchange Carrier Association (NECA)
66. NECA has requested by comments in this proceeding that we amend
our rules governing confidentiality of information NECA receives in its
role as administrator of the Telecommunications Relay Service (TRS)
Fund to permit it to use TRS data for the sole additional purpose of
aggregating regulatory fees from local exchange carriers (LECs) in
accordance with our requirements for assessment of their fees.\19\ See
47 CFR Sec. 64.604(c)(4)(iii)(I). There were no other comments filed
addressing NECA's proposal.
---------------------------------------------------------------------------
\19\ NECA is a not-for-profit, membership association,
consisting of all local exchange carriers in the United States,
Puerto Rico, the U.S. Virgin Islands and Micronesia. NECA is
responsible, under Subpart G of our Rules, for preparation of access
charge tariffs on behalf of all local telephone companies that do
not file separate tariffs, collection and distribution of access
charge revenues, administration of the Universal Service and
Lifeline Assistance programs, and the administration of the TRS
fund. See 47 CFR Sec. 69.603 and Sec. 64.604.
---------------------------------------------------------------------------
67. Currently, our rules prohibit NECA from using the TRS data it
collects for any purpose other than administration of the TRS fund. See
47 CFR 64.604(c)(4)(iii)(I). Because our assessment of regulatory fees
from LECs and other common carriers is modeled in large part upon the
methodology that we adopted for contributions by these carriers to the
TRS fund, we believe that a specific limited modification of the rule
governing NECA's use of TRS information would increase NECA's
efficiency in determining the appropriate regulatory fee due from any
carrier that avails itself of NECA's services in paying its regulatory
fee. Thus, we will amend our rules to permit NECA to use TRS
information for determining a carrier's fee. Section
64.604(c)(4)(iii)(i) will be amended to state that NECA may also use
TRS information ``to calculate the regulatory fees of interstate common
carriers and to aggregate their fee payments for submission to the
Commission.''
4. Mobile Satellite Service (MSS)
68. Motorola Satellite Communications, Inc's. (``Motorola'') has
requested clarification that hand-held transmit and transmit/receive
units used in the mobile satellite service (MSS) are within the
category of MSS ``blanket'' earth station licenses subject to a single
fee for all authorized units on one license. We have incorporated
language in Appendix F that MSS ``blanket'' earth station licenses
include hand-held transmit and transmit/receive units as well as
vehicle-based transceivers and are, therefore, subject to a fee
payment.
G. Procedures for Payment of Regulatory Fees
69. Section 9(f) requires that we permit ``payment by installments
in the case of fees in large amounts, and in the case of small amounts,
shall require the payment of the fee in advance for a number of years
not to exceed the term of the license held by the payor.'' See 47
U.S.C. Sec. 159(f)(1). Consistent with the section, we are again
establishing three categories of fee payments, based upon the category
of service for which the fee payment is due and the amount of the fee.
In general, we are retaining the procedures that we have established
for the payment of regulatory fees.
1. Annual Payments of Standard Fees
70. Standard fees are those regulatory fees that are payable in
full on an annual basis. Payers of standard fees are not required to
make advance payments
[[Page 36639]]
for their full license term and are not eligible for installment
payments. All standard fees are payable in full on the date we
establish for payment of fees in their regulatory fee category.
71. The payment due date for standard fees will be announced by
Public Notice in the Federal Register following Congressional
notification. For licensees, permittees and holders of various
authorizations in the Common Carrier, Mass Media, International, and
Cable Television Services whose fees are not based on a subscriber,
unit, or circuit count, liability for fee payment is established for
any authorization held as of October 1, 1995, the first day of FY 1996.
However, the
FR Doc. 96-17640 Assessment and Collection of Regulatory Fees for Fiscal Year 1996
licensee, permittee, or other regulatee at the time a fee
payment is due is the individual or entity legally liable for the fee
payment.
72. In the case of regulatees whose fees are based upon a
subscriber, unit, or circuit count, the number of a regulatee's
subscribers or circuits on December 31, 1995, will be used to calculate
the fee payment.\20\ As noted in the preceding paragraph, the licensee,
permittee, or other regulatee at the time a fee payment is due is
legally liable for the fee payment.
---------------------------------------------------------------------------
\20\ Cable systems have been calculating their regulatory fees
using subscriber data submitted to the Commission in their Annual
Report of Cable Television Systems (Form FCC 325). Consistent with
this methodology, we ask that cable system operators compute their
subscribers as follows: Number of single family dwellings + number
of individual households in multiple dwelling unit (apartments,
condominiums, mobile home parks, etc.) paying at the basic
subscriber rate + bulk rate customers + courtesy and free service.
Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by
basic annual subscription rate for individual households.
Accordingly, the number of cable subscribers will not necessarily be
based on a count as of December 31, 1995, but rather on ``a typical
day in the last full week'' of December 1995.
---------------------------------------------------------------------------
2. Installment Payments for Large Fees
73. There will be insufficient time following the effective date of
our FY 1996 Schedule of Regulatory Fees to permit implementation of an
installment payment program for large fees. All entities who would
otherwise have been eligible for installments, i.e., whose fee
liability exceeds our previously established level of $12,000, must
submit their fee payments on the date we will announce by Public Notice
in the Federal Register.
3. Advance Payments of Small Fees
74. As we have in the past, we are treating regulatory fee payments
by certain licensees as small fees subject to advance payments. Advance
payments will be required from licensees of those services that have
been required to make advance payments in the past.\21\ Payers of
advance fees are required to submit the entire regulatory fee for the
full term of their license when filing their initial, renewal or
reinstatement application. Regulatees subject to a payment of small
fees shall pay the amount due for the current fiscal year multiplied by
the number of years in the term of their requested license. In the
event that the regulatory fee is adjusted following payment of the fee,
the new fee will not become effective until the expiration of the
licensing term. Thus, payment for the full license term would be made
based upon the regulatory fee applicable at the time the application is
filed. The effective date for the payment of all small fees pursuant to
the FY 1996 Schedule will be announced by Public Notice in the Federal
Register following Congressional notification.
---------------------------------------------------------------------------
\21\ Applicants for new, renewal and reinstatement licenses in
the following services are required to pay their regulatory fees in
advance: Land Mobile Services, Microwave Services, Interactive Video
Data Services (IVDS), Marine (Ship) Service, Marine (Coast) Service,
Private Land Mobile (Other) Services, Aviation (Aircraft) Service,
Aviation (Ground) Service, General Mobile Radio Service (GMRS). In
addition, applicants for Amateur Radio vanity call signs are
required to submit an advance payment.
---------------------------------------------------------------------------
H. Schedule of Regulatory Fees
75. The Commission's Schedule of Regulatory Fees for FY 1996 is
contained in Appendix D of this Report and Order.
IV. Ordering Clause
76. Accordingly, it is ordered that the rule changes as specified
herein are adopted. It is further ordered that the rule changes made
herein will become effective September 10, 1996, except that changes to
the Schedule of Regulatory Fees, made pursuant to Section 9(b)(3) of
the Communications Act, and incorporating regulatory fees for CMRS
Mobile Services, CMRS One-Way Paging, Geosynchronous Space Stations,
Intelsat and Inmarsat Signatories, and Low Earth Orbit Satellite
Systems, will become effective 90 days from notification to Congress.
However, it should be noted that for the CMRS Mobile Services,
licensees who did not elect to convert their stations from private to
commercial status prior to December 31, 1995, will not be subject to
payment of a regulatory fee for FY 1996. Therefore, for stations
licensed as commercial on or before the date of determination of fee
liability the fee will become effective September 10, 1996. See para.
17-22 supra. As noted above, the date payment of the regulatory fee is
due will be announced by Public Notice in the Federal Register.
V. Authority and Further Information
77. Authority for this proceeding is contained in Sections 4 (i)
and (j), 9, and 303(r) of the Communications Act of 1934, as amended,
47 U.S.C. Secs. 154 (i) and (j) and 159 and 303(r).
78. Further information about this proceeding may be obtained by
contacting the Fees Hotline at (202) 418-0192.
List of Subjects
47 CFR Part 1
Administrative practice and procedure, Communications common
carriers, Federal Communications Commission, Radio, Telecommunications,
Television.
47 CFR Part 64
Communications common carriers, Federal Communications Commission,
Radio, Telegraph, Telephone.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 1 and 64 of Chapter I of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 1.1152 is revised to read as follows:
Sec. 1.1152 Schedule of annual regulatory fees and filing locations
for wireless radio services.
[[Page 36640]]
----------------------------------------------------------------------------------------------------------------
Exclusive use services (per license) Fee amount Address
----------------------------------------------------------------------------------------------------------------
1. Land Mobile (Above 470 MHz, Base
Station & SMRS)(47 CFR, Part 90)
(a) 800 MHz New, Renewal, Reinstatement $7.00 FCC, 800 MHz, P.O. Box 358235, Pittsburgh, PA 15251-5235.
(FCC 574).
(b) 900 MHz New, Renewal, Reinstatement 7.00 FCC, 900 MHz, P.O. Box 358240, Pittsburgh, PA 15251-5240.
(FCC 574).
(c) 470-512,800,900, 220 MHz, 220 MHz 7.00 FCC, 470-512, P.O. Box 358245, Pittsburgh, PA 15251-5245.
Nationwide Renewal (FCC 574R, FCC 405A).
(d) Correspondence Blanket Renewal (470- 7.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
512,800,900,220 MHz) (Remittance
Advice, Correspondence).
(e) 220 MHz New, Renewal, Reinstatement 7.00 FCC, 220 MHz, P.O. Box 358360, Pittsburgh, PA 15251-5360.
(FCC 574).
(f) 470-512 MHz New, Renewal, 7.00 FCC, 470-512, P.O. Box 358810, Pittsburgh, PA 15251-5810.
Reinstatement (FCC 574).
(g) 220 MHz Nationwide New, Renewal, 7.00 FCC, Nationwide, P.O. Box 358820, Pittsburgh, PA 15251-
Reinstatement (FCC 574). 5820.
2. Microwave (47 CFR Part 101)
(a) Microwave New, Renewal, 7.00 FCC, Microwave, P.O. Box 358250, Pittsburgh, PA 15251-
Reinstatement (FCC 402). 5250.
(b) Microwave Renewal (FCC 402R)........ 7.00 FCC, Microwave, P.O. Box 358255, Pittsburgh, PA 15251-
5255.
(c) Correspondence Blanket Renewal 7.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Microwave) (Remittance Advice,
Correspondence).
3. Interactive Video Data Service
(a) IVDS Renewal (FCC 574R, FCC 405A)... 7.00 FCC, IVDS, P.O. Box 358245, Pittsburgh, PA 15251-5245.
(b) Correspondence Blanket Renewal 7.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(IVDS) (Remittance Advice,
Correspondence).
(c) IVDS New, Renewal, Reinstatement 7.00 FCC, IVDS, P.O. Box 358365, Pittsburgh, PA 15251-5365.
(FCC 574).
4. Shared Use Services
(a) Land Transportation (LT) New, 3.00 FCC, Land Trans., P.O. Box 358215, Pittsburgh, PA 15251-
Renewal, Reinstatement (FCC 574). 5215.
(b) Business (Bus.) New, Renewal, 3.00 FCC, Business, P.O. Box 358220, Pittsburgh, PA 15251-
Reinstatement (FCC 574). 5220.
(c) Other Industrial (OI) New, Renewal, 3.00 FCC, Other Indus., P.O. Box 358225, Pittsburgh, PA 15251-
Reinstatement (FCC 574). 5225.
(d) General Mobile Radio Service (GMRS) 3.00 FCC, GMRS, P.O. Box 358230, Pittsburgh, PA 15251-5230.
New, Renewal, Reinstatement (FCC 574).
(e) Business, Other Industrial, Land 3.00 FCC, Bus., OI, LT, GMRS, P.O. Box 358245, Pittsburgh, PA
Transportation, GMRS Renewal (FCC 574R, 15251-5245.
FCC 405A).
(f) Ground New, Renewal, Reinstatement 3.00 FCC, Ground, P.O. Box 358260, Pittsburgh, PA 15251-5260.
(FCC 406).
(g) Coast New, Renewal, Reinstatement 3.00 FCC, Coast, P.O. Box 358265, Pittsburgh, PA 15251-5265.
(FCC 503).
(h) Ground Renewal (FCC 452R)........... 3.00 FCC, Ground, P.O. Box 358270, Pittsburgh, PA 15251-5270.
(i) Coast Renewal (FCC 452R)............ 3.00 FCC, Coast, P.O. Box 358270, Pittsburgh, PA 15251-5270.
(j) Ship New, Renewal, Reinstatement 3.00 FCC, Ship, P.O. Box 358275, Pittsburgh, PA 15251-5275.
(FCC 506).
(k) Aircraft New, Renewal, Reinstatement 3.00 FCC, Aircraft, P.O. Box 358280, Pittsburgh, PA 15251-
(FCC 404). 5280.
(l) Ship Renewal (FCC 405B)............. 3.00 FCC, Ship, P.O. Box 358290, Pittsburgh, PA 15251-5290.
(m) Aircraft Renewal (FCC 405B)......... 3.00 FCC, Aircraft, P.O. Box 358290, Pittsburgh, PA 15251-
5290.
(n) Correspondence Blanket Renewal 3.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Bus., OI, LT, GMRS) (Remittance
Advice, Correspondence).
(o) Correspondence Blanket Renewal 3.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Ground) (Remittance Advice,
Correspondence).
(p) Correspondence Blanket Renewal 3.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Coast) (Remittance Advice,
Correspondence).
(q) Correspondence Blanket Renewal 3.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Aircraft) (Remittance Advice,
Correspondence).
(r) Correspondence Blanket Renewal 3.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA 15251-5305.
(Ship) (Remittance Advice,
Correspondence).
5. Amateur Vanity Call Signs............ 3.00 FCC, Amateur Vanity, P.O. Box 358924, Pittsburgh, PA
15251-5924.
6. CMRS Mobile Services (per unit)...... .17 FCC, Cellular, P.O. Box 358835, Pittsburgh, PA 15251-
5835.
[[Page 36641]]
7. CMRS One-Way Paging (per unit)....... .02 FCC, Paging, P.O. Box 358835, Pittsburgh, PA 15251-5835.
----------------------------------------------------------------------------------------------------------------
3. Sec. 1.1153 is revised to read as follows:
Sec. 1.1153 Schedule of annual regulatory fees and filing locations
for mass media services.
----------------------------------------------------------------------------------------------------------------
Fee amount Address
----------------------------------------------------------------------------------------------------------------
AM Radio (47 CFR, Part 73)
1. Class D Daytime...................... $345 FCC, AM Branch, P.O. Box 358835, Pittsburgh, PA, 15251-
5835.
2. Class A Fulltime..................... 1,250
3. Class B Fulltime..................... 690
4. Class C Fulltime..................... 280
5. Construction Permits................. 140
FM Radio (47 CFR, Part 73)
1. Classes C,C1,C2,B.................... $1,250 FCC, FM Branch, P.O. Box 358835, Pittsburgh, PA.
2. Classes A,B1,C3...................... 830
3. Construction Permits................. 690
TV (47 CFR, Part 73) VHF Commercial
1. Markets 1 thru 10.................... $32,000 FCC, TV Branch, P.O. Box 358835, Pittsburgh, PA, 15251-
5835.
2. Markets 11 thru 25................... 26,000
3. Markets 26 thru 50................... 17,000
4. Markets 51 thru 100.................. 9,000
5. Remaining Markets.................... 2,500
6. Construction Permits................. 5,550
UHF Commercial
1. Markets 1 thru 10.................... $25,000 FCC, UHF Commercial, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
2. Markets 11 thru 25................... 20,000
3. Markets 26 thru 50................... 13,000
4. Markets 51 thru 100.................. 7,000
5. Remaining Markets.................... 2,000
6. Construction Permits................. 4,425
Satellite UHF/VHF Commercial
1. All Markets.......................... $690 FCC Satellite TV, P.O. Box 358835, Pittsburgh, PA, 15251-
5835
2. Construction Permits................. 250
Low Power TV, TV/FM Translator, & TV/FM $190 FCC, Low Power, P.O. Box 358835, Pittsburgh, PA, 15251-
Booster (47 CFR, Part 74). 5835.
Broadcast Auxiliary..................... 35 FCC, Auxiliary, P.O. Box 358835, Pittsburgh, PA, 15251-
5835.
Multipoint Distribution................. 155 FCC, Multipoint, P.O. Box 358835, Pittsburgh, PA, 15251-
5835.
----------------------------------------------------------------------------------------------------------------
4. Sec. 1.1154 is revised to read as follows:
Sec. 1.1154 Schedule of annual regulatory charges and filing locations
for common carrier services.
----------------------------------------------------------------------------------------------------------------
Fee amount Address
----------------------------------------------------------------------------------------------------------------
Radio Facilities
1. Domestic Public Fixed................ $155 FCC, Dom. Pub. Fixed, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
Carriers
1. Interstate Telephone Service .00098 FCC, Carriers, P.O. Box 358835, Pittsburgh, PA.
Providers (per dollar contributed to
TRS Fund).
----------------------------------------------------------------------------------------------------------------
5. Sec. 1.1155 is revised to read as follows:
Sec. 1.1155 Schedule of regulatory fees and filing locations for cable
television services.
----------------------------------------------------------------------------------------------------------------
Fee amount Address
----------------------------------------------------------------------------------------------------------------
1. Cable Antenna Relay Service.......... $325 FCC, Cable,
[[Page 36642]]
2. Cable TV System (per subscriber)..... .55 P.O. Box 358835, Pittsburgh, PA, 15251-5835.
----------------------------------------------------------------------------------------------------------------
6. Section 1.1156 is revised to read as follows:
Sec. 1.1156 Schedule of regulatory fees and filing locations for
international services.
----------------------------------------------------------------------------------------------------------------
Fee amount Address
----------------------------------------------------------------------------------------------------------------
Radio Facilities
1. International (HF):
Broadcast........................... $280 FCC, International, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
2. International Public:
Fixed............................... 225 FCC, International, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
Space Stations (Geosynchronous Orbit)... 70,575 FCC, Space Stations, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
Low Earth Orbit Satellite............... 97,725 FCC, Space Stations, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
INMARSAT/INTELSAT Signatory............. 233,425 FCC, Space Stations, P.O. Box 358835, Pittsburgh, PA,
15251-5835.
Earth Stations:
Transmit/Receive & Transmit Only 370 FCC, Earth Station, P.O. Box 358835, Pittsburgh, PA,
(per authorization or registration). 15251-5835.
Carriers:
1. International Circuits (per active 4.00 FCC, International, P.O. Box 358835, Pittsburgh, PA,
64KB circuit or equivalent) 15251-5835.
----------------------------------------------------------------------------------------------------------------
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for Part 64 continues to read as follows:
Authority: Sections 4, 48 Stat. 1066, as amended; 47 U.S.C. 154,
unless otherwise noted. Interpret or apply Sections 201, 218, 226,
228, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 201, 218, 226, 228,
unless otherwise noted.
2. Section 64.604(c)(4)(iii)(I) is revised to read as follows:
Sec. 64.604 Mandatory minimum standards.
* * * * *
(c) * * *
(4) * * *
(iii) * * *
(I) Information filed with the administrator. The administrator
shall keep all data obtained from contributors and TRS providers
confidential and shall not disclose such data in company-specific form
unless directed to do so by the Commission. The administrator shall not
use such data except for purposes of administering the TRS Fund,
calculating the regulatory fees of interstate common carriers, and
aggregating such fee payments for submission to the Commission. The
Commission shall have access to all data reported to the administrator,
and authority to audit TRS providers.
* * * * *
Appendix A--Final Regulatory Flexibility Analysis
[This Appendix A will not be published in the Code of Federal
Regulations.]
Final Analysis of the Report and Order
1. As required by Section 603 of the Regulatory Flexibility Act,
5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was
provided in the Notice of Proposed Rulemaking (NPRM). The Commission
sought written public comments on the proposals in the NPRM,
including the IRFA.
2. Need for and Objective of the Report and Order: Congress has
directed the Commission to collect $126,400,000 in regulatory fees
for fiscal year (FY) 1996. The Commission, pursuant to 47 U.S.C.
159, is modifying its Schedule of Regulatory Fees in order to comply
with the Congressional directive.
3. Summary of Significant Issues Raised by the Public in
response to the IRFA: No comments were submitted in response to the
IRFA.
4. Description and Estimate of Number of Small Businesses to
Which the Modifications of the Schedule of Fees Will Apply: The
Regulatory Flexibility Act generally defines the term ``small
business'' as having the same meaning as the term ``small business
concern'' under the Small Business Act, 15 U.S.C. Sec. 632. A small
business concern is one which (1) is independently owned and
operated; (2) is not dominant in its field of operations; and
satisfies additional criteria established by the Small Business
Administration (SBA). Id. According to the SBA's regulations,
entities engaged in the provision of communications services may
have maximum revenues of $11 million in order to qualify as a small
business concern. 13 CFR Sec. 121.201. Therefore, this standard also
applies in determining whether an entity is a small business for
purposes of the Regulatory Flexibility Act.
5. The Report and Order creates a Commercial Mobile Radio
Services (CMRS) category of fees which replaces the Cellular/Public
Mobile category in our FY 1995 Schedule of Regulatory Fees. Creation
of the new category does not affect any fees payable by licensees
nor the manner in which these fees are paid. Cellular and Public
Mobile Service licensees representing an estimated 30 million
assessable units will continue to pay an annual fee as they have in
the past. Business Radio, Special Mobile Radio Services and 220-222
Land Mobile Systems, which are regulated under Part 90 of the Rules,
and Public Coast Stations, which are regulated under Part 80,
currently pay small fees in advance for the full period of their
license terms, when filing their initial, reinstatement or renewal
application. Certain of these licensees may now elect to become CMRS
licensees. However, they are not required to make that choice before
August 10, 1996. When and if they do, those licensees which have
converted from the Private Mobile Radio Services (PMRS) to CMRS will
be required to pay annual regulatory fees predicated on the number
of units they have in service. Based on survey responses from
licensees, we estimate that roughly 120,000 stations will be
eligible for conversion from PMRS to CMRS. Although we know that
many entities hold licenses for
[[Page 36643]]
multiple stations and not all licensees are small entities, we
estimate the number of small entities that will be affected in the
future to be approximately 20,000. However, because these
conversions will not occur until the end of FY 1996 and were not
effective on our established date for fee liability, no annual fee
is being imposed on them for FY 1996.
6. With certain exceptions not relevant here, the Commission's
Regulatory Fee Schedule applies to all Commission licensee and
regulatees. The only other changes in the fee schedule, consist of
adjustments in the assessments for various entities necessitated by
the Congressionally mandated increase in the amount of fees to be
recovered and new fees for Low Earth Orbit Satellite Systems, and
Intelsat and Inmarsat Signatory Fees. There is only one Low Earth
Orbit System, and Comsat is the sole Intelsat and Inmarsat
Signatory. They are dominant carriers. Thus, we certify that these
new fees are not subject to the Regulatory Flexibility Act of 1980,
as amended, because they do not apply to small entities as defined
by Section 601(3) of the Regulatory Flexibility Act. We further
certify that the changes in the amounts of the other regulatory fees
to be collected are not subject to the Act because they are
relatively small and not likely to have a significant economic
impact on a substantial number of small entities. Moreover, the
Commission's policy is to waive the regulatory fee for licensees
which can establish that payment of the regulatory fees would create
a compelling case of financial hardship.
7. Description of Projected Reporting, Record Keeping and Other
Compliance Requirements: Compliance with the fee schedule requires
CMRS licensees to tabulate the number of units they have in service,
complete and file a form FCC 159, and pay an annual regulatory fee
based on the number of units in service. Licensees ordinarily will
keep a list of the number of units they have in service as part of
their normal business practices. No outside professional skills are
required to complete the form FCC 159, and it can be completed by
the employees responsible for an entity's business records. The
Commission estimates that it will take each licensee about 5-15
minutes to fill in and file a form FCC 159 after computing the
number of units subject to the fee. As an option, licensees are
permitted to file electronically or on computer diskette to ease the
burden of filing information which would require multiple forms FCC
159. Although not mandatory, the latter may require additional
professional skills. For Cellular and Public Mobile Services
licensees there is no change to these requirements. Licensees who
paid small fees in advance supplied fee information as part of their
application and did not use form FCC 159. When and if they convert
to CMRS, they must use the form FCC 159, but the impact would be
minimal since the basic information is the same as was on the
application form.
8. Minimizing the Impact on Small Entities and Consistent with
Stated Objectives: Although no comments were submitted on the IRFA,
we have amended our procedures in a manner calculated to minimize
the impact on small entities. The fee schedule will assess the fees
to be paid by those who choose to convert from PMRS to CMRS in the
future, and require that the fees be paid on an annual basis. These
new CMRS licensees will also be required to make annual fee
payments, since single advance payments would no longer be
practicable because of fluctuations in the numbers of units a
licensee may have in service over the length of its license term.
Additionally, the economic burden of annual fee payments would be
substantially less than would be the burden of requiring advance
payment of larger fees. Moreover, the conversion is voluntary, and
any licensee can avoid the burden by remaining a private carrier. In
addition, because the conversion of existing stations will not take
effect until August 10, 1996, licensees who have not converted will
be exempt from the fee for FY 1996. Finally, in order to ease the
burden on small entities, licensees with fee obligations of less
than $10 will be exempt from the fees.
[This Appendix B will not be published in the Code of Federal
Regulations]
Appendix B--Sources of Payment Unit Estimates for FY 1996
In order to calculate individual service fees for FY 1996, we
adjusted FY 1995 payment units for each service to more accurately
reflect expected FY 1996 payment liabilities. We obtained our
updated estimates through a variety of means. For example, we used
Commission licensee data bases, actual prior year payment records
and industry and trade association projections when available. We
tried to obtain verification for these estimates from multiple
sources and, in all cases, we compared FY 1996 estimates with actual
FY 1995 payment units to ensure that our revised estimates were
reasonable. Where it made sense, we adjusted and/or rounded our
final estimates to take into consideration the fact that certain
variables that impact on the number of payment units yet cannot be
estimated exactly. These include an unknown number of waivers and/or
exemptions that may occur in FY 1996 and the fact that, in many
services, the number of actual licensees or station operators
fluctuates from time to time due to economic, technical or other
reasons. Therefore, when we note, for example, that our estimated FY
1996 payment units are based on FY 1995 actual payment units, it
does not necessarily mean that our FY 1996 projection is exactly the
same number as FY 1995. It means that we have either rounded the FY
1995 number or adjusted it slightly to account for these variables.
------------------------------------------------------------------------
Sources of payment unit
Fee Category estimates
------------------------------------------------------------------------
Land Mobile (All), Microwave, IVDS, Marine Based on Wireless
(Ship & Coast), Aviation (Aircraft & Telecommunications Bureau
Ground), GMRS, Amateur Vanity Call Signs, (WTB) projections of new
Domestic Public Fixed. applications and renewals
taking into consideration
existing Commission
licensee data bases.
Aviation (Aircraft) and
Marine (Ship) estimates
have been adjusted to take
into consideration
proposals to license
portions of these services
on a voluntary basis.
CMRS Mobile Services (incl. Cellular/ Based on actual FY 1995
Public Mobile Radio Services and Two Way payment units adjusted to
Paging Services). take into consideration
industry estimates of
growth between FY 1995 and
FY 1996 and Wireless
Telecommunications Bureau
projections of new
applications and average
number of mobile units
associated with each
application.
CMRS One Way Paging Services.............. Based on industry estimates
of the number of pager
units in operation.
AM/FM Radio Stations...................... Based on actual FY 1995
payment units.
UHF/VHF Television Stations............... Based on actual FY 1995
payment units.
AM/FM/TV Construction Permits............. Based on actual FY 1995
payment units.
LPTV, Translators and Boosters............ Based on actual FY 1995
payment units.
Auxiliaries............................... Based on actual FY 1995
payment units.
MDS/MMDS.................................. Based on actual FY 1995
payment units.
Cable Antenna Relay System (CARS)......... Based on actual FY 1995
payment units.
Cable Television System Subscribers....... Based on Cable Services
Bureau and industry
estimates of
subscribership.
[[Page 36644]]
IXCs/LECs, CAPs, Other Service Providers.. Based on actual FY 1995
interstate revenues
associated with
contributions to the
Telecommunications Relay
System (TRS) Fund adjusted
to take into consideration
FY 1996 revenue growth in
this industry as estimated
by the Common Carrier
Bureau.
Earth Stations............................ Based on actual FY 1995
payment units.
Space Stations & LEOs..................... Based on International
Bureau licensee data bases.
International Bearer Circuits............. Based on actual FY 1995
payment units.
International HF Broadcast Stations, Based on actual FY 1995
International Public Fixed Radio Service. payment units.
------------------------------------------------------------------------
[[Page 36645]]
Appendix C
[This Appendix C will not be published in the Code of Federal Regulations]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FY 1996 Regulatory fees-calculation of mandatory adjustments
-------------------------------------------------------------------------------------
Fee category (times) (equals) Recalculated Rounded fee New FY 1996
FY 1996 Payment (times) Adj. FY Applicable Computed FY Pro-rated fee revenue
units 1995 fee years 1996 revenue revenue **
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LM (220 MHz. > 470 MHZ-Base, SMRS....................... 1,350 6 5 $40,500 45,125 7 7 47,250
Microwave............................................... 7,025 6 10 421,500 469,635 7 7 491,750
IVDS.................................................... 10 6 5 300 334 7 7 350
Marine (Ship)........................................... 24,650 3 10 739,500 823,951 3 3 739,500
GMS..................................................... 1,025 3 5 15,375 17,131 3 3 15,375
LM (Other).............................................. 75,000 3 5 1,125,000 1,253,475 3 3 1,125,000
Aviation (Aircraft)..................................... 12,050 3 10 361,500 402,783 3 3 361,500
Marine (Coast).......................................... 1,800 3 5 27,000 30,083 3 3 27,000
Aviation (Ground)....................................... 17,00 3 5 25,500 28,412 3 3 25,500
Amateur Vanity Calls Signs.............................. 20,000 3 10 600,000 668,520 3 3 600,000
AM Class A.......................................... 110 1,120 1 123,200 137,269 1,248 1,250 137,500
AM Class B.......................................... 1,350 620 1 837,000 932,585 691 690 931,500
AM Class C.......................................... 1,080 250 1 270,000 300,824 279 280 302,400
AM Class D.......................................... 1,450 310 1 449,500 500,833 345 345 500,250
AM Construction Permits............................. 35 125 1 4,375 4,875 139 140 4,900
FM Classes C, C1, C2, B............................. 2,220 1,120 1 2,486,400 2,770,347 1,248 1,250 2,775,000
FM Classes A, B1, C3................................ 2,200 745 1 1,639,000 1,826,174 830 830 1,826,000
FM Construction Permits............................. 350 620 1 217,000 241,781 691 690 241,500
TV Satellites........................................... 90 620 1 55,800 62,172 691 690 62,100
VHF Construction Permits............................ 10 4,975 1 49,750 55,431 5,543 5,550 55,500
UHF Construction Permits............................ 60 3,975 1 238,500 265,737 4,429 4,425 265,500
Auxilliaries............................................ 20,000 30 1 600,000 668,520 33 35 700,000
International HF Broadcast.............................. 4 250 1 1,000 1,114 279 280 1,120
LPTV/Translators/Boosters............................... 2,000 170 1 340,000 378,828 189 190 380,000
Satellite TV Construction Permit........................ 5 225 1 1,125 1,253 251 250 1,250
CARS.................................................... 2,200 290 1 638,000 710,860 323 325 715,000
Cable Systems........................................... 62,000,000 0.49 1 30,380,000 33,849,396 0.55 0.55 34,100,000
IXC, LECs, CAPS, Others................................. 56,467,000,000 0.00088 1 49,690,960 55,365,668 0.00098 0.00098 55,337,660
CMRS Mobile Services (Cellular/Public Mobile)........... 30,000,000 0.15 1 4,500,000 5,013,900 0.17 0.17 5,100,000
CMRAS--One Way Paging................................... 24,500,000 0.02 1 490,000 545,958 0.02 0.02 490,000
Domestic Public Fixed................................... 16,000 140 1 2,240,000 2,495,808 156 155 2,480,000
MDS/MMDS................................................ 1,130 140 1 158,200 176,266 156 155 175,150
International Circuits.................................. 228,000 4 1 912,000 1,016,150 4 4 912,000
International Public Fixed.............................. 15 200 1 3,000 3,343 223 225 3,375
Earth Stations.......................................... 5,700 330 1 1,881,000 2,095,810 368 370 2,109,000
Space Stations (Geosynchronous)......................... 38 75,000 1 2,850,000 3,175,470 83,565 83,575 3,175,850
---------------------------------------------------------------------------------------------------------------------------------------
****** Total Estimated Revenue Collected.......... ............... ............... ............... $104,411,985 $116,335,834 ............... ............... $116,215,780
****** Total Revenue Requirement.................. ............... ............... ............... $116,340,000 $116,340,000 ............... ............... $116,340,000
Difference........................................ ............... ............... ............... ($11,928,015) ($4,166) ............... ............... ($124,220)
** 1.1142 factor applied to other than TV............... ............... ............... ............... ............... ............... ............... ............... ...............
Television stations:
VHF Markets 1-10.................................... 40 32,000 1 1,280,000 ............... ............... 32,000 1,280,000
VHF Markets 11-25................................... 45 26,000 1 1,170,000 ............... ............... 26,000 1,170,000
VHF Markets 26-50................................... 80 17,000 1 1,360,000 ............... ............... 17,000 1,360,000
VHF Markets 51-100.................................. 110 9,000 1 990,000 ............... ............... 9,000 990,000
VHF Remaining Markets............................... 200 2,500 1 500,000 ............... ............... 2,500 500,000
[[Page 36646]]
UHF Markets 1-10.................................... 65 25,000 1 1,625,000 ............... ............... 25,000 1,625,000
UHF Markets 11-25................................... 60 20,000 1 1,200,000 ............... ............... 20,000 1,200,000
UHF Markets 26-50................................... 65 13,000 1 845,000 ............... ............... 13,000 845,000
UHF Markets 51-100.................................. 110 7,000 1 770,000 ............... ............... 7,000 770,000
UHF Remaining Markets............................... 160 2,000 1 320,000 ............... ............... 2,000 320,000
---------------------------------------------------------------------------------------------------------------------------------------
**** Total Estimated Revenue-Television (less Sat.
TV).............................................. ............... ............... ............... $10,060,000 ............... ............... ............... $10,060,000
Total Estimated Fee Revenue....................... ............... ............... ............... ............... ............... ............... ............... $126,275,780
Total Revenue Requirement......................... ............... ............... ............... ............... ............... ............... ............... $126,400,000
Difference........................................ ............... ............... ............... ............... ............... ............... ............... ($124,220)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 36647]]
Appendix D--FY 1996 Schedule of Regulatory Fees
[This Appendix D will not be published in the Code of Federal
Regulations]
------------------------------------------------------------------------
Annual
Fee category regulatory
fee
------------------------------------------------------------------------
Land Mobile (per license) (220-222 Mhz, above 470 Mhz, Base
Station and SMRS) (47 CFR Part 90)........................ 7
Microwave (per license) (47 CFR Part 101).................. 7
Interactive Video Data Service (per license) (47 CFR Part
95)....................................................... 7
Marine (Ship) (per station) (47 CFR Part 80)............... 3
Marine (Coast) (per license) (47 CFR Part 80).............. 3
General Mobile Radio Service (per license) (47 CFR Part 95) 3
Land Mobile (per license) (all stations not covered above). 3
Aviation (Aircraft) (per station) (47 CFR Part 87)......... 3
Aviation (Ground) (per license) (47 CFR Part 87)........... 3
Amateur Vanity Call Signs (per call sign) (47 CFR Part 97). 3
CMRS Mobile Services (per unit) (47 CFR Parts 20, 22, 80
and 90)................................................... .17
CMRS One-Way Paging (per unit) (47 CFR Parts 20, 22 and 90) .02
Domestic Public Fixed Radio & Multipoint Distribution
Services (per call sign) (47 CFR Part 21)................. 155
AM Radio (47 CFR Part 73):
Class A................................................ 1,250
Class B................................................ 690
Class C................................................ 280
Class D................................................ 345
Construction Permits................................... 140
FM Radio (47 CFR Part 73):
Classes C, C1, C2, B................................... 1,250
Classes A, B1, C3...................................... 830
Construction Permits................................... 690
TV (47 CFR Part 73) VHF Commercial:
Markets 1-10........................................... 32,000
Markets 11-25.......................................... 26,000
Markets 26-50.......................................... 17,000
Markets 51-100......................................... 9,000
Remaining Markets...................................... 2,500
Construction Permits................................... 5,550
TV (47 CFR Part 73) UHF Commercial:
Markets 1-10........................................... 25,000
Markets 11-25.......................................... 20,000
Markets 26-50.......................................... 13,000
Markets 51-100......................................... 7,000
Remaining Markets...................................... 2,000
Construction Permits................................... 4,425
Satellite Television Stations (All Markets)................ 690
Construction Permits--Satellite Television Stations........ 250
Low Power TV, TV/FM Translators & Boosters (47 CFR Part 74) 190
Broadcast Auxiliary (47 CFR Part 74)....................... 35
Cable Antenna Relay Service (47 CFR Part 78)............... 325
Cable Television Systems (per subscriber) (47 CFR Part 76). .55
Interstate Telephone Service Providers (per revenue dollar) .00098
Earth Stations (47 CFR Part 25)............................ 370
Space Stations (per operational station in geosynchronous
orbit) (47 CFR Part 25) also includes Direct Broadcast
Satellite Service (per operational station) (47 CFR Part
100)...................................................... 70,575
Low Earth Orbit Satellite (per operational system) (47 CFR
Part 25).................................................. 97,725
INMARSAT/INTELSAT Signatory (per signatory)................ 233,425
International Circuits (per active 64KB circuit)........... 4
International Public Fixed (per call sign) (47 CFR Part 23) 225
International (HF) Broadcast (47 CFR Part 73).............. 280
------------------------------------------------------------------------
Appendix E--Comparison Between FY 1995, FY 1996 Proposed and FY 1996 Final Regulatory Fees
[This Appendix E will not be published in the Code of Federal Regulations]
----------------------------------------------------------------------------------------------------------------
Annual Annual
Fee category regulatory fee NPRM proposed regulatory fee
FY 1995 fee FY 1996 FY 1996
----------------------------------------------------------------------------------------------------------------
Land Mobile (per license) (220-222 Mhz, above 470 Mhz, Base
Station and SMRS) (47 CFR Part 90)........................... 6 6 7
Microwave (per license) (47 CFR Part 101)..................... 6 6 7
Interactive Video Data Service (per license) (47 CFR Part 95). 6 6 7
Marine (Ship) (per station) (47 CFR Part 80).................. 3 3 3
Marine (Coast) (per license) (47 CFR Part 80)................. 3 3 3
General Mobile Radio Service (per license) (47 CFR Part 95)... 3 3 3
Land Mobile (per license) (all stations not covered above).... 3 3 3
Aviation (Aircraft) (per station) (47 CFR Part 87)............ 3 3 3
[[Page 36648]]
Aviation (Ground) (per license) (47 CFR Part 87).............. 3 3 3
Amateur Vanity Call Signs (per call sign) (47 CFR Part 97).... 3 3 3
CMRS Mobile Services (per unit) (47 CFR Parts 20, 22, 80 and
90).......................................................... .15 .15 .17
CMRS One-Way Paging (per unit) (47 CFR Parts 20, 22, and 90).. .02 .02 .02
Domestic Public Fixed Radio & Multipoint Distribution Services
(per call sign) (47 CFR Part 21)............................. 140 140 155
AM Radio (47 CFR Part 73):
Class A................................................... 1,120 1,125 1,250
Class B................................................... 620 630 690
Class C................................................... 250 255 280
Class D................................................... 310 315 345
Construction Permits...................................... 125 125 140
FM Radio (47 CFR Part 73):
Classes C, C1, C2, B...................................... 1,120 1,125 1,250
Classes A, B1, C3......................................... 745 755 830
Construction Permits...................................... 620 625 690
TV (47 CFR Part 73) VHF Commercial:
Markets 1-10.............................................. 22,420 22,700 32,000
Markets 11-25............................................. 19,925 20,175 26,000
Markets 26-50............................................. 14,950 15,125 17,000
Markets 51-100............................................ 9,975 10,100 9,000
Remaining Markets......................................... 6,225 6,300 2,500
Construction Permits...................................... 4,975 5,025 5,550
TV (47 CFR Part 73) UHF Commercial:
Markets 1-10.............................................. 17,925 18,150 25,000
Markets 11-25............................................. 15,950 16,150 20,000
Markets 26-50............................................. 11,950 12,100 13,000
Markets 51-100............................................ 7,975 8,075 7,000
Remaining Markets......................................... 4,975 5,025 2,000
Construction Permits...................................... 3,975 4,025 4,425
Satellite Television Stations (All Markets)................... 620 625 690
Construction Permits--Satellite Television Stations........... 225 230 250
Low Power TV, TV/FM Translators & Boosters (47 CFR Part 74)... 170 170 190
Broadcast Auxiliary (47 CFR Part 74).......................... 30 30 35
Cable Antenna Relay Service (47 CFR Part 78).................. 290 295 325
Earth Stations (47 CFR Part 25)............................... 330 335 370
Cable Television Systems (per subscriber) (47 CFR Part 76).... .49 .50 .55
Interstate Telephone Service Providers (per revenue dollar)... .00088 .00089 .00098
Space Stations (per operational station in geosynchronous
orbit) (47 CFR............................................... 75,000 63,500 70,575
Part 25) also includes Direct Broadcast Satellite Service (per
operational station) (47 CFR Part 100)....................... n/a 63,500 70,575
Low Earth Orbit Satellite (per operational system) (47 CFR
Part 25)..................................................... n/a 87,725 97,725
INMARSAT/INTELSAT Signatory (per signatory)................... n/a 217,575 233,425
International Circuits (per active 64KB circuit).............. 4 4 4
International Public Fixed (per call sign) (47 CFR Part 23)... 200 200 225
International (HF) Broadcast (47 CFR Part 73)................. 250 255 280
----------------------------------------------------------------------------------------------------------------
[This Appendix F will not be published in the Code of Federal
Regulations]
Appendix F--FY 1996 Guidelines for Regulatory Fee Categories
1. The guidelines below provide an explanation of regulatory fee
categories established by the Schedule of Regulatory Fees in section
9 (g) of the Communications Act, 47 U.S.C. 159(g) as modified in the
instant Report and Order. Where regulatory fee categories need
interpretation or clarification, we have relied on the legislative
history of section 9, our own experience in establishing and
regulating the Schedule of Regulatory Fees for Fiscal Years (FY)
1994 and 1995 and the services subject to the fee schedule, and the
comments of the parties in our proceeding to adopt fees for FY 1995.
The categories and amounts set out in the schedule have been
modified to reflect changes in the number of payment units,
additions and changes in the services subject to the fee requirement
and the benefits derived from the Commission's regulatory
activities, and to simplify the structure of the schedule. The
schedule may be similarly modified or adjusted in future years to
reflect changes in the Commission's budget and in the services
regulated by the Commission. See 47 U.S.C. 159(b)(2), (3).
2. Exemptions. Most licensees and other entities regulated by
the Commission must pay regulatory fees in 1996. However,
governments and nonprofit (exempt under Section 501 of the Internal
Revenue Code) entities are exempt from paying regulatory fees and
should not submit payment, but may be asked to submit a current IRS
Determination Letter documenting its nonprofit status, a
certification of governmental authority, or certification
[[Page 36649]]
from a governmental entity attesting to its exempt status. The
governmental exemption applies even where the government-owned or
community-owned facility is in direct competition with commercial
stations. Other specific exemptions are discussed below in association
with a particular service category or group.
I. Private Wireless Radio Services
3. Two levels of statutory fees were established for the Private
Wireless Radio Services--exclusive use services and shared use
services. Thus, licensees who generally receive a higher quality
communication channel due to exclusive or lightly shared frequency
assignments, will pay a higher fee than those who share marginal
quality assignments. This dichotomy is consistent with the directive
of section 9 that the regulatory fees reflect the benefits provided
to the licensees. See 47 U.S.C. Sec. 159(b)(1)(A). In addition,
because of the generally small amount of the fees assessed against
Private Wireless Radio Service licensees, applicants for new
licenses and reinstatements and for renewal of existing licenses are
required to pay a regulatory fee covering the entire license term,
with only a percentage of all licensees paying a regulatory fee in
any one year. Applications for modification or assignment of
existing authorizations do not require the payment of regulatory
fees. The expiration date of those authorizations will reflect only
the unexpired term of the underlying license rather than a new
license term.
a. Exclusive Use Services
4. Land Mobile Services: Regulatees in this category include
those authorized under Part 90 of the Commission's Rules to provide
limited access Wireless Radio service that allows high quality voice
or digital communications between vehicles or to fixed stations to
further the business activities of the licensee. These services,
using the 220-222 MHz band and frequencies at 470 MHz and above, may
be offered on a private carrier basis in the Specialized Mobile
Radio Services (SMRS).\1\ For FY 1996, Land Mobile licensees will
pay a $7 annual regulatory fee per license, payable for an entire
five or ten year license term at the time of application for a new,
renewal or reinstatement license.\2\ The total regulatory fee due is
either $35 for a license with a five year term or $70 for a license
with a 10 year term.
---------------------------------------------------------------------------
\1\ This category only applies to licensees of shared-use
private 220-222 MHz and 470 MHz and above in the Specialized Mobile
Radio (SMR) service who have elected not to change to the Commercial
Mobile Radio Service (CMRS). Those who have elected to change to the
CMRS are referred to paragraph 14 of this Appendix.
\2\ Although this fee category includes licenses with ten year
terms, the estimated volume of ten year license applications in FY
1996 is less than one tenth of one percent and, therefore, is
statistically insignificant.
---------------------------------------------------------------------------
5. Microwave Services: These services include private microwave
systems and private carrier systems authorized under Part 101 of the
Commission's Rules to provide telecommunications services between
fixed points on a high quality channel of communications. Microwave
systems are often used to relay data and to control railroad,
pipeline and utility equipment. For FY 1996, Microwave licensees
will pay a $7 annual regulatory fee per license, payable for an
entire ten year license term at the time of application for a new,
renewal or reinstatement license. The total regulatory fee due is
$70 for the ten year license term.
6. Interactive Video Data Service (IVDS): The IVDS is a two-way
point-to-multi-point radio service allocated high quality channels
of communications and au
FR Doc. 96-17640 Assessment and Collection of Regulatory Fees for Fiscal Year 1996
thorized under Part 95 of the Commission's
Rules. The IVDS provides information, products and services, and
also the capability to obtain responses from subscribers in a
specific service area. The IVDS is offered on a private carrier
basis. For FY 1996, IVDS licensees will pay a $7 annual regulatory
fee per license, payable for an entire five year license term at the
time of application for a new, renewal, or reinstatement license.
The total regulatory fee due is $35 for the five year term of the
license.
b. Shared Use Services
7. Marine (Ship) Service: This service is a shipboard radio
service authorized under Part 80 of the Commission's Rules to
provide telecommunications between watercraft or between watercraft
and shore-based stations. Radio installations are required by
domestic and international law for large passenger or cargo vessels.
Radio equipment may be voluntarily installed on smaller vessels,
such as recreational boats. The recently enacted Telecommunications
Act of 1996 gave the Commission the authority to license certain
ship stations by rule rather than by individual license. Private
boat operators sailing entirely within domestic U.S. waters and who
are not otherwise required by treaty or agreement to carry a radio,
may no longer be required to hold a marine license if the Commission
enacts rules to that effect, and they will not be required to pay a
regulatory fee. For FY 1996, parties required to be licensed and
those choosing to be licensed for Marine (Ship) Stations will pay a
$3 annual regulatory fee per station, payable for an entire ten year
license term at the time of application for a new, renewal or
reinstatement license. The total regulatory fee due is $30 for the
ten year license term.
8. Marine (Coast) Service: This service includes land-based
stations in the maritime services, authorized under Part 80 of the
Commission's Rules, to provide communications services to ships and
other watercraft in coastal and inland waterways. For FY 1996,
licensees of Marine (Coast) Stations will pay a $3 annual regulatory
fee per call sign, payable for the entire five year license term at
the time of application for a new, renewal or reinstatement license.
The total regulatory fee due is $15 per call sign for the five year
license term.
9. Private Land Mobile (Other) Services: These services include
Land Mobile Radio Services operating under Parts 90 and 95 of the
Commission's Rules. Services in this category provide one or two way
communications between vehicles, persons or to fixed stations on a
shared basis and include radiolocation services, industrial radio
services and land transportation radio services. For FY 1996,
licensees of services in this category will pay a $3 annual
regulatory fee per call sign, payable for an entire five year
license term at the time of application for a new, renewal or
reinstatement license. The total regulatory fee due is $15 for the
five year license term.
10. Aviation (Aircraft) Service: These services include stations
authorized to provide communications between aircraft and from
aircraft to ground stations and includes frequencies used to
communicate with air traffic control facilities pursuant to Part 87
of the Commission's Rules. The recently enacted Telecommunications
Act of 1996 gave the Commission the authority to license certain
aircraft radio stations by rule rather than by individual license.
Private aircraft operators flying entirely within domestic U.S.
airspace and who are not otherwise required by treaty or agreement
to carry a radio, may no longer be required to hold an aircraft
license if the Commission enacts rules to that effect, and they will
not be required to pay a regulatory fee. For FY 1996, parties
required to be licensed and those choosing to be licensed for
Aviation (Aircraft) Stations will pay a $3 annual regulatory fee per
station, payable for the entire ten year license term at the time of
application for a new, renewal or reinstatement license. The total
regulatory fee due is $30 per station for the ten year license term.
11. Aviation (Ground) Service: This service includes stations
authorized to provide ground-based communications to aircraft for
weather or landing information, or for logistical support pursuant
to Part 87 of the Commission's Rules. Certain ground-based stations
which only serve itinerant traffic; i.e., possess no actual units on
which to assess a fee, are exempt from payment of regulatory fees.
For FY 1996, licensees of Aviation (Ground) Stations will pay a $3
annual regulatory fee per license, payable for the entire five year
license term at the time of application for a new, renewal or
reinstatement license. The total regulatory fee is $15 per call sign
for the five year license term.
12. General Mobile Radio Service (GMRS): These services include
Land Mobile Radio licensees providing personal and limited business
communications between vehicles or to fixed stations for short-
range, two-way communications pursuant to Part 95 of the
Commission's Rules. For FY 1996, GMRS licensees will pay a $3 annual
regulatory fee per license, payable for an entire five year license
term at the time of application for a new, renewal or reinstatement
license. The total regulatory fee due is $15 per license for the
five year license term.
c. Amateur Radio Vanity Call Signs
13. Amateur Vanity Call Signs: This fee covers voluntary
requests for specific call signs in the Amateur Radio Service
authorized under part 97 of the Commission's Rules. For FY 1996,
applicants for Amateur Vanity Call-Signs will pay a $3 annual
regulatory fee per call sign, payable for an entire ten year license
term at the time of application for a vanity call sign. The total
[[Page 36650]]
regulatory fee due would be $30 per license for the ten year license
term.\3\
---------------------------------------------------------------------------
\3\ Section 9(h) exempts ``amateur radio operator licenses under
Part 97 of the Commission's rules (47 CFR Part 97)'' from the
requirement. However, Section 9(g)'s fee schedule explicitly
includes ``Amateur vanity call signs'' as a category subject to the
payment of a regulatory fee.
---------------------------------------------------------------------------
d. Commercial Wireless Radio Services
14. Commercial Mobile Radio Services (CMRS) Mobile Services: The
Commercial Mobile Radio Service (CMRS) is a new ``umbrella''
descriptive term attributed to various existing services authorized
to provide interconnected mobile radio services for profit to the
public, or to such classes of eligible users as to be effectively
available to a substantial portion of the public. CMRS Mobile
Services include certain licensees which formerly were licensed as
part of the Private Radio Services (e.g., Specialized Mobile Radio
Services) and others formerly licensed as part of the Common Carrier
Radio Services (e.g., Public Mobile Services and Cellular Radio
Service). While specific rules pertaining to each covered service
remain in separate Parts 22, 80 and 90; general rules for CMRS are
contained in Part 20. We have replaced the Public Mobile/Cellular
Radio regulatory fee category with a CMRS Mobile Services category
for regulatory fee collection purposes. CMRS Mobile Services will
include: qualifying Business Radio Services, 220-222 MHz Land Mobile
Systems, Specialized Mobile Radio Services (Part 90); \4\ Public
Coast Stations (Part 80); Public Mobile Radio, Cellular, 800 MHz
Air-Ground Radiotelephone, and Offshore Radio Services (Part 22).
Licensees who have not elected to convert from private to commercial
operations will be exempt from payment of the annual CMRS Mobile
Services fee for FY 1996. Existing commercial licensees and those
who converted prior to December 31, 1995, must pay the annual CMRS
Mobile Services fee for FY 1996. Each licensee in this group will
pay an annual regulatory fee for each mobile or cellular unit
(mobile or cellular call sign or telephone number), including two-
way paging units, assigned to its customers, including resellers of
its services. For FY 1996, the regulatory fee is $.17 per unit.
---------------------------------------------------------------------------
\4\ This category does not include licensees of private shared-
use 220 MHz and 470 MHz and above in the Specialized Mobile Radio
(SMR) service who have elected to remain non-commercial. Those who
have elected not to change to the Commercial Mobil Radio Service
(CMRS) are referred to paragraph 4 of this Appendix. Further,
Congress provided for a three year transition period until August
10, 1996, for conversion to CMRS. See Omnibus Budget Reconciliation
Act of 1993, Public Law No. 103-66, Title VI Sec. 6002(b), 107 Stat.
312,392. Therefore, licensees who had not converted to CMRS prior to
December 31, 1995, are not subject to the CMRS Mobile Services fee
for FY 1996.
---------------------------------------------------------------------------
15. Personal Communications Service (PCS): For FY 1996, the
Personal Communications Service (PCS) covered by Part 24 of the
rules is exempt from payment of regulatory fees.
16. Commercial Mobile Radio Services (CMRS) One-Way Paging
Services: The Commercial Mobile Radio Service (CMRS) is a new
``umbrella'' descriptive term attributed to various existing
services authorized to provide interconnected mobile radio services
for profit to the public, or to such classes of eligible users as to
be effectively available to a substantial portion of the public.
CMRS One-Way Paging Services include certain licensees which
formerly were licensed as part of the Private Radio Services (e.g.,
Private Paging) and others formerly licensed as part of the Common
Carrier Radio Services (e.g., Public Mobile One-Way Paging). While
specific rules pertaining to each covered service remain in separate
Parts 22 and 90; general rules for CMRS are contained in Part 20. We
have replaced the Public Mobile One-Way Paging regulatory fee
category with a CMRS One-Way Paging Services category for regulatory
fee collection purposes. Licensees who have not elected to convert
from private to commercial operations will be exempt from payment of
the annual CMRS One-Way Paging Services fee for FY 1996. Existing
commercial licensees and those who converted prior to December 31,
1995, must pay the annual CMRS One-Way Paging Services fee for FY
1996. Each licensee in the CMRS One-Way Paging Services will pay an
annual regulatory fee for each paging unit, assigned to its
customers, including resellers of its services. For FY 1996, the
regulatory fee is $.02 per unit.
II. Mass Media Services
17. The regulatory fees for the Mass Media fee category apply to
broadcast licensees and permittees. Noncommercial Educational
Broadcasters are exempt from regulatory fees.
a. Commercial AM and FM Radio
18. These categories include licensed Commercial AM (Classes A,
B, C, and D) and FM (Classes A, B, B1, C, C1, C2, and C3) Radio
Stations operating under Part 73 of the Commission's Rules.\5\ The
regulatory fees for AM and FM Stations for FY 1996 are as follows:
---------------------------------------------------------------------------
\5\ The Commission acknowledges that certain stations operating
in Puerto Rico and Guam have been assigned a higher level station
class than would be expected if the station were located on the
mainland. Although this results in a higher regulatory fee, we
believe that the increased interference protection associated with
the higher station class is necessary and justifies the fee.
---------------------------------------------------------------------------
AM Radio
Class A..........................................................$1,250
Class B.............................................................690
Class C.............................................................280
Class D.............................................................345
FM Radio
Classes C, C1, C2, B.............................................$1,250
Classes A, B1, C3...................................................830
b. Construction Permits--Commercial AM Radio
19. This category includes holders of permits to construct new
Commercial AM Stations. For FY 1996, permittees will pay a fee of
$140 for each permit held. Upon issuance of an operating license,
this fee would no longer be applicable and licensees would be
required to pay the applicable fee for the designated class of the
station.
c. Construction Permits--Commercial FM Radio
20. This category includes holders of permits to construct new
Commercial FM Stations. For FY 1996, permittees will pay a fee of
$690 for each permit held. Upon issuance of an operating license,
this fee would no longer be applicable. Instead, licensees would pay
a regulatory fee based upon the designated class of the station.
d. Commercial Television Stations
21. This category includes licensed Commercial VHF and UHF
Television Stations covered under Part 73 of the Commission's Rules,
except commonly owned Television Satellite Stations, addressed
separately below. Markets are Nielsen Designated Market Areas (DMA)
as listed in the Television & Cable Factbook, Stations Volume No.
63, 1995 Edition, Warren Publishing, Inc. The fees for each category
of station are as follows:
VHF Markets 1-10................................................$32,000
VHF Markets 11-25................................................26,000
VHF Markets 26-50................................................17,000
VHF Markets 51-100................................................9,000
VHF Remaining Markets.............................................2,500
UHF Markets 1-10................................................$25,000
UHF Markets 11-25................................................20,000
UHF Markets 26-50................................................13,000
UHF Markets 51-100................................................7,000
UHF Remaining Markets.............................................2,000
e. Commercial Television Satellite Stations
22. Commonly owned Television Satellite Stations in any market
(authorized pursuant to Note 5 of Section 73.3555 of the
Commission's Rules) that retransmit programming of the primary
station are assessed a fee of $690 annually. Those stations
designated as Television Satellite Stations in the 1995 Edition of
the Television and Cable Factbook are subject to the fee applicable
to Television Satellite Stations. All other television licensees are
subject to the regulatory fee payment required for their class of
station and market.
f. Construction Permits--Commercial VHF Television Stations
23. This category includes holders of permits to construct new
Commercial VHF Television Stations. For FY 1996, VHF permittees will
pay an annual regulatory fee of $5,550. Upon issuance of an
operating license, this fee would no longer be applicable. Instead,
licensees would pay a fee based upon the designated market of the
station.
g. Construction Permits--Commercial UHF Television Stations
24. This category includes holders of permits to construct new
UHF Television Stations. For FY 1996, UHF Television permittees will
pay an annual regulatory fee of $4,425. Upon issuance of an
operating license, this fee would no longer be applicable. Instead,
licensees would pay a fee based upon the designated market of the
station.
h. Construction Permits--Satellite Television Stations
25. The fee for UHF and VHF Television Satellite Station
construction permits for FY
[[Page 36651]]
1996 is $250. An individual regulatory fee payment is to be made for
each Television Satellite Station construction permit held.
i. Low Power Television, FM Translator and Booster Stations, TV
Translator and Booster Stations
26. This category includes Low Power UHF/VHF Television stations
operating under Part 74 of the Commission's Rules with a transmitter
power output limited to 1 kW for a UHF facility and, generally, 0.01
kW for a VHF facility. Low Power Television (LPTV) stations may
retransmit the programs and signals of a TV Broadcast Station,
originate programming, and/or operate as a subscription service.
This category also includes translators and boosters operating under
Part 74 which rebroadcast the signals of full service stations on a
frequency different from the parent station (translators) or on the
same frequency (boosters). The stations in this category are
secondary to full service stations in terms of frequency priority.
We have also received requests for waivers of the regulatory fees
from operators of community based Translators. These Translators are
generally not affiliated with commercial broadcasters, they are
nonprofit, nonprofitable, or only marginally profitable, serve small
rural communities, and are supported financially by the residents of
the communities served. We are aware of the difficulties these
Translators have in paying even minimal regulatory fees, and we have
addressed those concerns in the ruling on reconsideration of the FY
1994 Report and Order. Community based Translators are exempt from
regulatory fees. For FY 1996, licensees in this category will pay a
regulatory fee of $190 for each license held.
j. Broadcast Auxiliary Stations
27. This category includes licensees of remote pickup stations,
Aural Broadcast Auxiliary Stations, Television Broadcast Auxiliary
Stations, and Low Power Auxiliary Stations, authorized under Part 74
of the Commission's Rules. Auxiliary Stations are generally
associated with a particular television or radio broadcast station
or cable television system. For FY 1996, licensees of Commercial
Auxiliary Stations will pay a $35 annual regulatory fee on a per
call sign basis.
k. Multipoint Distribution Service
28. This service is included in the Domestic Public Fixed
Service category and covers Multipoint Distribution Service (MDS),
and Multichannel Multipoint Distribution Service (MMDS), authorized
under Part 21 of the Commission's Rules to use microwave frequencies
for video and data distribution within the United States. For FY
1996, MDS and MMDS stations will pay an annual regulatory fee of
$155 per call sign. See para. 31 below.
III. Cable Services
a. Cable Television Systems
29. This category includes operators of Cable Television
Systems, providing or distributing programming or other services to
subscribers under Part 76 of the Commission's Rules. For FY 1996
Cable Systems will pay a regulatory fee of $.55 per subscriber.\6\
Payments for Cable Systems are to be made on a per subscriber by
community unit basis as of December 31, 1995. Cable Systems should
determine their subscriber numbers by calculating the number of
single family dwellings, the number of individual households in
multiple dwelling units, e.g., apartments, condominiums, mobile home
parks, etc., paying at the basic subscriber rate, the number of bulk
rate customers and the number of courtesy or fee customers. In order
to determine the number of bulk rate subscribers, a system should
divide its bulk rate charge by the annual subscription rate for
individual households. See FY 1994 Report and Order, Appendix B at
para. 31.
---------------------------------------------------------------------------
\6\ Cable systems are to pay their regulatory fees on a per
subscriber basis rather than per 1,000 subscribers as set forth in
the statutory fee schedule. See FY 1994 Report and Order at para.
100.
---------------------------------------------------------------------------
b. Cable Antenna Relay Service
30. This category includes Cable Antenna Relay Service (CARS)
stations used to transmit television and related audio signals,
signals of AM and FM Broadcast Stations and cablecasting from the
point of reception to a terminal point from where the signals are
distributed to the public by a Cable Television System. For FY 1996,
licensees will pay an annual regulatory fee of $325 per CARS
license.
IV. Common Carrier Services
a. Fixed Radio Services
31. Domestic Public Fixed Radio Service: This category includes
licensees in the Point-to-Point Microwave Radio Service, Local
Television Transmission Radio Service, Digital Electronic Message
Service, Multipoint Distribution Service (MDS), and Multichannel
Multipoint Distribution Service (MMDS),\7\ authorized under Part 21
of the Commission's Rules to use microwave frequencies for video and
data distribution within the United States. For FY 1996, Domestic
Public Fixed Radio Service licensees pay a $155 annual regulatory
fee per call sign.
---------------------------------------------------------------------------
\7\ MDS and MMDS are regulated by the Mass Media Bureau.
---------------------------------------------------------------------------
b. Interstate Telephone Service Providers
32. This category includes Inter-Exchange Carriers (IXCs), Local
Exchange Carriers (LECs), Competitive Access Providers (CAPs),
domestic and international carriers that provide operator services,
Wide Area Telephone Service (WATS), 800, 900, telex, telegraph,
video, other switched, interstate access, special access, and
alternative access services either by using their own facilities or
by reselling facilities and services of other carriers or telephone
carrier holding companies, and companies other than traditional
local telephone companies that provide interstate access services to
long distance carriers and other customers. This category also
includes pre-paid calling card providers. These common carriers,
including resellers, must submit fee payments based upon their
proportionate share of gross interstate revenues using the
methodology that we have adopted for calculating contributions to
the TRS fund. See Telecommunications Relay Services, 8 FCC Rcd 5300
(1993), 58 FR 39671 (1993). In order to avoid imposing any double
payment burden on resellers, we will permit carriers to subtract
from their gross interstate revenues, as reported to NECA in
connection with their TRS contribution, any payments made to
underlying common carriers for telecommunications facilities and
services, including payments for interstate access service, that are
sold in the form of interstate service. For this purpose, resold
telecommunications facilities and services are only intended to
include payments that correspond to revenues that will be included
by another carrier reporting interstate revenue. For FY 1996,
carriers should multiply their adjusted gross revenue figure (gross
revenue reduced by the total amount of their payments to underlying
common carriers for telecommunications facilities or services) by
the factor 0.00098 to determine the appropriate fee for this
category of service. You may want to use the following worksheet to
determine your fee payment:
------------------------------------------------------------------------
Total Interstate
------------------------------------------------------------------------
(1) Revenue reported in TRS Fund worksheets
(2) Less: Access charges paid
(3) Less: Other telecommunications facilities and
services taken for resale
(4) Adjusted revenues (1)minus (2)minus(3)
(5) Fee factor................................... ......... 0.00098
(6) Fee due (4)times(5)
------------------------------------------------------------------------
V. International Services
a. Earth Stations
33. Very Small Aperture Terminal (VSAT) Earth Stations,
equivalent C-Band Earth Stations and antennas, and earth station
systems comprised of very small aperture terminals operate in the 12
and 14 GHz bands and provide a variety of communications services to
other stations in the network. VSAT systems consist of a network of
technically-identical small Fixed-Satellite Earth Stations which
often include a larger hub station. VSAT Earth Stations and C-Band
Equivalent Earth Stations are authorized pursuant to Part 25 of the
Commission's Rules. Mobile Satellite Earth Stations, operating
pursuant to Part 25 of the Commission's Rules under blanket licenses
for mobile antennas (transceivers), are smaller than one meter and
provide voice or data communications, including position location
information for mobile platforms such as cars, buses or trucks.\8\
Fixed- Satellite Transmit/Receive and Transmit Only Earth Station
antennas, authorized or registered
[[Page 36652]]
under Part 25 of the Commission's Rules, are operated by private and
public carriers to provide telephone, television, data, and other
forms of communications. Included in this category are telemetry,
tracking, and control (TT&C) earth stations and earth station
uplinks. For FY 1996, licensees of VSATs, Mobile Satellite Earth
Stations, and Fixed-Satellite Transmit/Receive and Transmit Only
Earth Stations will pay a fee of $370 per authorization or
registration as well as a separate fee of $370 for each associated
Hub Station.
---------------------------------------------------------------------------
\8\ Mobile earth stations are hand-held or vehicle-based units
capable of operation while the operator or vehicle is in motion. In
contrast, transportable units are moved to a fixed location and
operate in a stationary (fixed) mode. Both are assessed the same
regulatory fee for FY 1996.
---------------------------------------------------------------------------
34. Receive only earth stations. For FY 1996, there is no
regulatory fee for receive-only earth stations.
b. Space Stations (Geosynchronous)
35. Geosynchronous Space Stations are domestic and international
satellites positioned in orbit to remain approximately fixed
relative to the earth. Most are authorized under Part 25 of the
Commission's Rules to provide communications between satellites and
earth stations on a common carrier and/or private carrier basis. In
addition, this category includes Direct Broadcast Satellite (DBS)
Service which includes space stations authorized under Part 100 of
the Commission's rules to transmit or re-transmit signals for direct
reception by the general public encompassing both individual and
community reception. For FY 1996, entities authorized to operate
geosynchronous space stations (including DBS satellites) will be
assessed an annual regulatory fee of $70,575 per operational station
in orbit. Payment is required for any geosynchronous satellite that
has been launched and tested and is authorized to provide service.
c. Low Earth Orbit Satellites (LEOs)
36. Low Earth Orbit Satellite Systems are space stations that
orbit the earth in non-geosynchronous orbit. They are authorized
under Part 25 of the Commission's rules to provide communications
between satellites and earth stations on a common carrier and/or
private carrier basis. For FY 1996, entities authorized to operate
Low Earth Orbit Satellite Systems will be assessed an annual
regulatory fee of $97,725 per operational system in orbit. Payment
is required for any LEO System that has one or more operational
satellites.
d. Signatories
37. A Signatory to INMARSAT is an Administration or government,
or the telecommunications entity designated as sole operating entity
by an Administration or government, which participates in the
International Mobile Satellite Organization (INMARSAT) in order to
develop and operate a global maritime satellite telecommunication
system which serves maritime commercial and safety needs of the
United States and foreign countries. A Signatory to INTELSAT is an
Administration or government, or the telecommunications entity
designated as sole operating entity by an Administration or
government, which participates in the International
Telecommunications Satellite Organization (INTELSAT) in order to
develop, construct, operate and maintain the space segment of the
global commercial telecommunications satellite system established
under the Interim Agreement and Special Agreement signed by
Governments on August 20, 1964. For FY 1996, Signatories to INMARSAT
and INTELSAT will be assessed an annual regulatory fee of $233,425
in order to recover the cost of the Commission's regulatory
activities associated with such entities.
e. International Bearer Circuits
38. Regulatory fees for International Bearer Circuits are to be
paid by the facilities-based common carriers activating the circuit
in any transmission facility for the provision of service to an end
user or resale carrier. Payment of the fee for bearer circuits by
private submarine cable operators is required for circuits sold on
an indefeasible right of use (IRU) basis or leased to any customer
other than an international common carrier authorized by the
Commission to provide U.S. international common carrier services.
Compare FY 1994 Report and Order at 5367. The fee is based upon
active 64 Kbps circuits, or equivalent circuits. Under this
formulation, 64 Kbps circuits or their equivalent will be assessed a
fee. Equivalent circuits include the 64 Kbps circuit equivalent of
larger bit stream circuits. For example, the 64 Kbps circuit
equivalent of a 2.048 Mbps circuit is 30 64 Kbps circuits. Analog
circuits such as 3 and 4 KHz circuits used for international service
are also included as 64 Kbps circuits. However, circuits derived
from 64 Kbps circuits by the use of digital circuit multiplication
systems are not equivalent 64 Kbps circuits. Such circuits are not
subject to fees. Only the 64 Kbps circuit from which they have been
derived will be subject to payment of a fee. For FY 1996, the
regulatory fee is $4.00 for each active 64 Kbps circuit or
equivalent. For analog television channels we will assess fees as
follows:
------------------------------------------------------------------------
No. of
equivalent
Analog television channel size in MHz 64 Kbps
circuits
------------------------------------------------------------------------
36.......................................................... 630
24.......................................................... 288
18.......................................................... 240
------------------------------------------------------------------------
f. International Public Fixed
39. This fee category includes common carriers authorized under
Part 23 of the Commission's Rules to provide radio communications
between the United States and a foreign point via microwave or HF
troposcatter systems, other than satellites and satellite earth
stations, but not including service between the United States and
Mexico and the United States and Canada using frequencies above 72
MHz. For FY 1996, International Public Fixed Radio Service licensees
will pay a $225 annual regulatory fee per call sign.
g. International (HF) Broadcast
40. This category covers International Broadcast Stations
licensed under Part 73 of the Commission's Rules to operate on
frequencies in the 5,950 khz to 26,100 Khz range to provide service
to the general public in foreign countries. For FY 1996,
International HF Broadcast Stations will pay an annual regulatory
fee of $280 per station license.
Appendix G--Description of FCC Activities
[This Appendix G will not be published in the Code of Federal
Regulations]
Authorization of Service: The authorization or licensing of
radio stations, telecommunications equipment and radio operators, as
well as the authorization of common carrier and other services and
facilities. Includes policy direction, program development, legal
services, and executive direction, as well as support services
associated with authorization activities.
Policy and Rule Making: Formal inquiries, rule making
proceedings to establish or amend the Commission's rules and
regulations, action on petitions for rule making and requests for
rule interpretations or waivers; economic studies and analyses;
spectrum planning, modeling, propagation-interference analyses and
allocation; and development of equipment standards. Includes policy
direction, program development, legal services, and executive
direction, as well as support services associated with policy and
rule making activities.
Enforcement: Enforcement of the Commission's rules, regulations
and authorizations, including investigations, inspections,
compliance monitoring and sanctions of all types. Also includes the
receipt and disposition of formal and informal complaints regarding
common carrier rates and services, the review and acceptance/
rejection of carrier tariffs, and the review, prescription and audit
of carrier accounting practices. Includes policy direction, program
development, legal services, and executive direction, as well as
support services associated with enforcement activities.
Public Information Services: The publication and dissemination
of Commission decisions and actions, and related activities; public
reference and library services; the duplication and dissemination of
Commission records and databases; the receipt and disposition of
public inquiries; consumer, small business and public assistance;
and public affairs and media relations. Includes policy direction,
program development, legal services, and executive direction, as
well as support services associated with public information
activities.
Appendix H--Parties Filing Comments and Reply Comments
[This Appendix H will not be published in the Code of Federal
Regulations]
Parties Filing Comments
Bernstein and McVeigh
Motorola Satellite Communications, Inc.
Destineer Corp.
GE American Communications, Inc.
Montana Broadcasters Association
American Mobile Telecommunications Association, Inc.
COMSAT Corporation
Southern Broadcast Corporation of Sarasota
National Cable Television Association, Inc.
[[Page 36653]]
Society of Broadcast Engineers, Inc.
National Exchange Carrier Association, Inc.
NEXTEL Communications, Inc.
Parties Filing Reply Comments
GE American Communications, Inc.
[FR Doc. 96-17640 Filed 7-11-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-17535 Airworthiness Directives; Rolls-Royce, plc RB211 Series Turbofan Engines
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36622-36624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17535]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-ANE-39; Amendment 39-9672; AD 96-13-04]
RIN 2120-AA64
Airworthiness Directives; Rolls-Royce, plc RB211 Series Turbofan
Engines
AGENCY: Federal Aviation Administration, DOT.
[[Page 36623]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to Rolls-Royce, plc RB211 series turbofan engines, that
requires removing and replacing the existing rigid low pressure (LP)
fuel system tube assembly with a tube assembly having flexible sections
and revised clip points to preclude cracking and subsequent fuel
leakage. This amendment is prompted by multiple reports of fuel leaks.
The actions specified by this AD are intended to prevent a fuel system
leak, which could result in rapid atomization of fuel and an engine
fire.
DATES: Effective September 10, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 10, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Rolls-Royce, plc, P.O. Box 31, Moor Lane, Derby, DE248BJ,
United Kingdom; telephone 1332-249428, fax 1332-249423. This
information may be examined at the Federal Aviation Administration
(FAA), New England Region, Office of the Assistant Chief Counsel, 12
New England Executive Park, Burlington, MA; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Daniel Kerman, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7130, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to Rolls-Royce, plc (R-R) Models
RB211-535E4 series and -535E4-B series turbofan engines was published
in the Federal Register on June 26,1995 (60 FR 20189). That action
proposed to require replacement of the low pressure (LP) fuel tube
assembly in accordance with R-R Service Bulletin (SB) No. RB.211-73-
B048, Revision 1, dated July 22, 1994.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter states that as soon as parts were available, R-R
undertook incorporation of the modification described in R-R SB No.
RB.211-73-B048, Revision 1, dated July 22, 1994, on all engines in
production. The commenter states that all engines starting with serial
number (S/N) 31292 were delivered with the configuration required by
the proposed AD. The commenter proposes that the applicability section
be revised to exclude engine S/N's of 31292 and subsequent. The FAA
concurs and has revised the applicability section of this final rule
accordingly.
Two commenters support the rule as proposed.
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 described
previously. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
There are approximately 558 engines of the affected design in the
worldwide fleet. The FAA estimates that 292 engines installed on
aircraft of U.S. registry will be affected by this AD, that it will
take approximately 2 work hours per engine to accomplish the required
actions, and that the average labor rate is $60 per work hour. Required
parts will cost approximately $1,000 per engine. Based on these
figures, the total cost impact of the AD on U.S. operators is estimated
to be $327,040.
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:
96-13-04 Rolls-Royce, plc: Amendment 39-9672. Docket 94-ANE-39.
Applicability: Rolls-Royce, plc. (R-R) Models RB211-535E4 series
and -535E4-B series turbofan engines, prior to engine Serial Number
(S/N) 31292, installed on but not limited to Boeing 757 series
aircraft.
Note: This airworthiness directive (AD) applies to each engine
identified in the preceding applicability provision, regardless of
whether it has been modified, altered, or repaired in the area
subject to the requirements of this AD. For engines that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (b) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent a fuel system leak, which could result in rapid
atomization of fuel and an engine fire, accomplish the following:
(a) Within one year after the effective date of this AD, remove
the existing rigid low pressure (LP) fuel system tube assembly and
replace with the new flexible LP fuel system tube design with
revised clip points, in accordance with R-R Service Bulletin (SB)
No. RB.211-73-B048, Revision 1, dated July 22, 1994.
(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, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of
[[Page 36624]]
compliance with this airworthiness directive, if any, may be
obtained from the Engine Certification Office.
(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 aircraft to a location where
the requirements of this AD can be accomplished.
(d) The actions required by this AD shall be done in accordance
with the following R-R SB:
------------------------------------------------------------------------
Document No. Pages Revision Date
------------------------------------------------------------------------
RB.211-73-B048................ 1-6..... 1........... July 22, 1994.
7,8..... Original.... June 3, 1994.
9-12.... 1........... July 22, 1994.
Supplement.................... 1....... 1........... July 22, 1994.
Total Pages: 13.
------------------------------------------------------------------------
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 Rolls-Royce, plc, P.O. Box 31,
Moor Lane, Derby, DE248BJ, United Kingdom; telephone 1332-249428,
fax 1332-249423. Copies may be inspected at the FAA, New England
Region, Office of the Assistant Chief Counsel, 12 New England
Executive Park, Burlington, MA; or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(e) This amendment becomes effective on September 10, 1996.
Issued in Burlington, Massachusetts, on June 11, 1996.
James C. Jones,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 96-17535 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-17533 Airworthiness Directives; Pratt & Whitney PW4000 Series Turbofan Engines
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36620-36622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17533]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-ANE-10; Amendment 39-9676; AD 96-13-08]
RIN 2120-AA64
Airworthiness Directives; Pratt & Whitney PW4000 Series Turbofan
Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to Pratt & Whitney (PW) PW4000 series turbofan engines.
This action requires initial and repetitive inspections of the aft
cascade support frame assembly of thrust reverser for cracks, and
replacement, if necessary, with serviceable parts; or lockout of the
thrust reversers. This amendment is prompted by reports of aft cascade
support frame assembly failures. The actions specified in this AD are
intended to prevent aft cascade support frame assembly failure due to
cracks, which can result in thrust reverser
[[Page 36621]]
hardware liberation and ejection from the aircraft during thrust
reverser operation, which can contaminate the runway with debris,
causing an operational hazard to other aircraft during takeoff and
landing.
DATES: Effective August 1, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 1, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 96-ANE-10, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may also be
submitted to the Rules Docket by using the following Internet address:
``[email protected]''. All comments must contain the
Docket No. in the subject line of the comment.
The service information referenced in this AD may be obtained from
Pratt & Whitney, 400 Main St., East Hartford, CT 06108; telephone (860)
565-6600, fax (860) 565-4503. This information may be examined at the
FAA, New England Region, Office of the Assistant Chief Counsel, 12 New
England Executive Park, Burlington, MA; or at the Office of the Federal
Register 800 North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Chris Gavriel, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7147, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION: The Federal Aviation Administration (FAA)
has received reports of thrust reverser failure on Pratt & Whitney (PW)
PW4000 series turbofan engines. The thrust reverser aft cascade support
frame assembly can develop cracks due to high cycle fatigue that could
propagate to failure. To date, there have been a total of 38 aft
cascade support frame assemblies that were found either cracked or
failed. Failure of the cascade support assembly allows thrust reverser
hardware to be liberated and ejected from the aircraft during thrust
reverser operation. Seven of the failed assemblies caused liberations
of thrust reverser hardware. It is possible that other aircrews, either
departing or arriving on the same runway, may not see debris left on
the runway after a failure of the thrust reverser aft cascade support
frame assembly. This debris, therefore, could cause a serious unsafe
condition for departing and arriving aircraft. This condition, if not
corrected, could result in aft cascade support frame assembly failure
due to cracks, which can result in thrust reverser hardware liberation
and ejection from the aircraft during thrust reverser operation, which
can contaminate the runway with debris, causing an operational hazard
to other aircraft during takeoff and landing.
The FAA has reviewed and approved the technical contents of PW
Service Bulletin (SB) No. PW4NAC 78-78, Revision 6, dated March 6,
1996, and SB No. PW4MD11 78-67, Revision 5, dated March 6, 1996, that
describe procedures for inspection of the aft cascade support frame
assembly.
Since an unsafe condition has been identified that is likely to
exist or develop on other engines of the same type design, this AD is
being issued to prevent aft cascade support frame assembly failure.
This AD requires initial and repetitive inspections of the aft cascade
support frame assembly for cracks, and replacement, if necessary, with
serviceable parts; or lockout of the thrust reversers in accordance
with the applicable Aircraft Maintenance Manual for a time period not
to exceed 10 days. The actions are required to be accomplished in
accordance with the SB's described previously.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-ANE-10.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket. A copy of it, if filed, may
be obtained from the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
[[Page 36622]]
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:
96-13-08 Pratt & Whitney: Amendment 39-9676. Docket 96-ANE-10.
Applicability: Pratt & Whitney (PW) PW4000 series turbofan
engines, with thrust reverser, Supplemental Type Certificate (STC)
No. SJ514NE, installed on Airbus A300-600 and A310 series aircraft,
and thrust reverser, STC No. SE744NE, installed on McDonnell Douglas
MD-11 series aircraft. These thrust reversers incorporate aft
cascade support frame assemblies, Part Numbers (P/N's) 221-0516-503
and 221-0516-504.
Note: This airworthiness directive (AD) applies to each engine
with affected thrust reversers identified in the preceding
applicability provision, regardless of whether it has been modified,
altered, or repaired in the area subject to the requirements of this
AD. For engines with affected thrust reversers that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (c) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine with affected
thrust reversers from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent aft cascade support frame assembly failure due to
cracks, which can result in thrust reverser hardware liberation and
ejection from the aircraft during thrust reverser operation, which
can contaminate the runway with debris, causing an operational
hazard to other aircraft during takeoff and landing, accomplish the
following:
(a) For engines with affected thrust reversers installed on
Airbus A300-600 and A310 series aircraft, accomplish the following:
(1) Initially inspect aft cascade support frame assemblies for
cracks within 250 flight hours after the effective date of this AD,
in accordance with the Accomplishment Instructions, Part 1--Interim
Inspection, of PW Service Bulletin (SB) No. PW4NAC 78-78, Revision
6, dated March 6, 1996.
(2) Thereafter, inspect aft cascade support frame assemblies for
cracks at intervals not to exceed 450 flight hours since the last
inspection, in accordance with the Accomplishment Instructions, Part
1--Interim Inspection, of PW SB No. PW4NAC 78-78, Revision 6, dated
March 6, 1996.
(3) For aft cascade support frame assemblies that do not meet
the return to service criteria stated in the Accomplishment
Instructions, Part 1--Interim Inspection, of PW SB No. PW4NAC 78-78,
Revision 6, dated March 6, 1996, prior to further flight, accomplish
either of the following:
(i) Remove from service cracked aft cascade support frame
assemblies, and replace with a serviceable part; or
(ii) Lockout the thrust reverser in accordance with the Airbus
A300-600 and A310 series Aircraft Maintenance Manuals, as
applicable, for a time period not to exceed 10 days. At the
conclusion of the 10-day lockout period, prior to further flight
remove any cracked aft cascade support frame assemblies and replace
with serviceable parts.
(b) For engines with affected thrust reversers installed on
McDonnell Douglas MD-11 series aircraft, accomplish the following:
(1) Initially inspect aft cascade support frame assemblies for
cracks within 250 flight hours after the effective date of this AD,
in accordance with the Accomplishment Instructions, Part 1--Interim
Inspection, of PW SB No. PW4MD11 78-67, Revision 5, dated March 6,
1996.
(2) Thereafter, inspect aft cascade support frame assemblies for
cracks at intervals not to exceed 450 flight hours since the last
inspection, in accordance with the Accomplishment Instructions, Part
1--Interim Inspection, of PW SB No. PW4MD11 78-67, Revision 5, dated
March 6, 1996.
(3) For aft cascade support frame assemblies that do not meet
the return to service criteria stated in the Accomplishment
Instructions, Part 1--Interim Inspection, of PW SB No. PW4MD11 78-
67, Revision 5, dated March 6, 1996, prior to further flight,
accomplish either of the following:
(i) Remove from service cracked aft cascade support frame
assemblies, and replace with a serviceable part; or
(ii) Lockout the thrust reverser in accordance with the
McDonnell Douglas MD-11 series Aircraft Maintenance Manual, for a
time period not to exceed 10 days. At the conclusion of the 10-day
lockout period, prior to further flight remove any cracked aft
cascade support frame assemblies and replace with serviceable parts.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
(e) The actions required by this AD shall be done in accordance
with the following PW SB's:
------------------------------------------------------------------------
Document No. Pages Revision Date
------------------------------------------------------------------------
PW4NAC 78-78................... 1........ 6 March 6, 1996.
2,3...... 2 October 31, 1995.
4-6...... 6 March 6, 1996.
7........ 5 October 31, 1995.
8-11..... 6 March 6, 1996.
12....... 5 October 31, 1995.
13-19.... 6 March 6, 1996.
20-22.... 5 October 31, 1995.
23-34.... 6 March 6, 1996.
35....... 5 October 31, 1995.
36, 37... 6 March 6, 1996.
38....... 5 October 31, 1995.
39, 40... 6 March 6, 1996.
Total pages: 40.......
PW4MD11 78-67.................. 1-38..... 5 March 6, 1996.
Total pages: 38.......
------------------------------------------------------------------------
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 Pratt & Whitney, 400 Main St.,
East Hartford, CT 06108; telephone (860) 565-6600, fax (860) 565-
4503. Copies may be inspected at the FAA, New England Region, Office
of the Assistant Chief Counsel, 12 New England Executive Park,
Burlington, MA; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on August 1, 1996.
Issued in Burlington, Massachusetts, on July 2, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-17533 Filed 7-11-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-17431 Patent Waiver Regulation
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36611-36620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17431]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 784
Patent Waiver Regulation
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is publishing a final rule to
recodify and update a patent waiver regulation that was incorporated in
the Department of Energy Acquisition Regulations (DEAR) in 1984
(applicable to contracts) and the DOE Assistance Regulations
(applicable to grants and cooperative agreements). The final rule
contains changes that conform the regulation provisions to post-1984
statutory amendments, including the addition of terms and conditions
for contractor retention of patent rights required by 35 U.S.C. 210.
The rule also contains some new clarifying provisions and minor
procedural changes to the DOE patent waiver process.
This final rule will govern waiver of the Department's rights in
inventions made under contracts, grants, cooperative agreements,
understandings, or other DOE arrangements with entities other than
small businesses and non-profit organizations. This rule will also
apply to all participants in cooperative research and development
agreements (CRADAs), with both Bayh-Dole entities and non-Bayh-Dole
entities. Rights in inventions made under DOE funding agreements with
small businesses and nonprofit organizations are generally controlled
by 35 U.S.C. 202, which provides, with certain exceptions, for
contractor retention of title to inventions. However, this rule does
apply to waiver of rights in inventions when DOE has reserved title and
other rights in funding agreements with nonprofit organizations and
small business firms pursuant to the exceptions in 35 U.S.C. 202.
EFFECTIVE DATE: August 12, 1996.
FOR FURTHER INFORMATION CONTACT: Michael P. Hoffman, Office of
Assistant General Counsel for Technology Transfer and Intellectual
Property, 1000 Independence Avenue, S.W., Washington, D.C. 20585.
Telephone (202) 586-3441.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Discussion of Final Rule
III. Procedural Requirements
A. Applicable Procedures
B. Review Under Executive Order 12886
C. Review Under Regulatory Flexibility Act
D. Review Under NEPA
[[Page 36612]]
E. Review Under Paperwork Reduction Act
F. Review Under Executive Order 12612
G. Review Under Executive Order 12778
H. Review Under the Unfunded Mandates Reform Act
I. Background
The Government is required by law to acquire title to inventions
made under DOE contracts, grants, agreements, understandings, or other
arrangements with entities other than small businesses or nonprofit
organizations pursuant to section 152 of the Atomic Energy Act of 1954,
42 U.S.C. 2182, and section 9 of the Federal Nonnuclear Energy Research
and Development Act of 1974, 42 U.S.C. 5908. Both of these acts provide
that the Secretary of Energy may waive rights to such inventions under
certain circumstances.
The DOE regulations covering waiver of patent rights are in the DOE
Procurement Regulation at 41 CFR Part 9-9, principally at 41 CFR 9-
9.109-6. After the Federal Acquisition Regulations System became
effective in 1984, the DOE patent waiver regulation was continued in
effect with regard to procurements and financial assistance in the
DEAR, 48 CFR 927.300, and in DOE Assistance Regulations, 10 CFR 600.33,
respectively. Today's final rule will recodify and publish these
regulations and make them conveniently available to the public.
In today's final rule, DOE also is updating the patent waiver
regulation to make changes required by post-1984 statutory amendments
(as explained below), and is using this opportunity to make clarifying
and minor procedural changes to the regulation. The revised regulation
is being codified in a part of the Code of Federal Regulations that is
separate from the DEAR, because patent waivers may be requested in
connection with DOE arrangements other than procurement contracts, such
as grants, cooperative agreements and CRADAs.
Today's final rule reflects statutory changes that are not
referenced in the regulation at 41 CFR part 9-9. Specifically, patent
waiver terms and conditions in the Federal Nonnuclear Energy Research
and Development Act of 1974 were repealed by the Bayh-Dole patent and
trademark amendments of 1980, Pub. L. 96-517, Sec. 7 (94 Stat. 3027).
Subsequently, a requirement for certain terms and conditions when a
non-Bayh-Dole contractor retains title to inventions, pursuant to 35
U.S.C. 202, was imposed by the Trademark Clarification Act of 1984,
Pub. L. 98-620, title V (98 Stat. 3367). Accordingly, today's final
rule deletes the waiver terms and conditions repealed by the Bayh-Dole
patent and trademark amendments of 1980, and sets forth waiver terms
and conditions for contractor retention of rights required by 35 U.S.C.
210 and set forth in the DEAR at 48 CFR 952.227-11.
II. Section-by-Section Discussion of Final Rule
Section 784.1 of today's regulation presents the scope and
applicability of the regulation. Today's regulation covers waiver of
the Government's rights in inventions made under DOE contracts, grants,
agreements, understandings, or other arrangements with entities other
than small businesses or nonprofit organizations, as well as agreements
with small businesses or non profit organizations where the agreement
is not a funding agreement. Allocation of rights to inventions made
under DOE contracts, grants and other funding agreements with small
businesses or nonprofit organizations is controlled by 35 U.S.C. 200 et
seq., but today's regulation also governs waivers of rights in
inventions falling within exceptions to the policy of that law. The
scope of the regulation at 41 CFR 9-9.100 included policies and
procedures with respect to inventions made under arrangements with DOE,
and is not, as here, limited to policies and procedures regarding
waiver of the Government's invention rights.
Section 784.3 summarizes the law underlying the regulation (42
U.S.C. 2182 and 42 U.S.C. 5908), i.e., that while title to inventions
under DOE contracts or other arrangements with entities other than
small businesses or nonprofit organizations vests in the Government,
the Department may waive its rights to such inventions if such waiver
is determined to be in the public interest. Such determinations are to
be made in accordance with statutorily prescribed objectives. The
regulation, at 41 CFR 9-9.109-6(a), is similar, but it does not have an
exclusion for contracts with small businesses or nonprofit
organizations which under 35 U.S.C. 202, may, with certain exceptions,
elect to retain invention rights without a waiver.
Section 784.3(c) clarifies that references to ``contract'' in the
regulation include grants, cooperative agreements, and other
arrangements, consistent with the definition of ``contract'' provided
in the regulation at 41 CFR 9-9.107-5(a)(a)(2) and in the statute at 42
U.S.C. 5908(m), although not consistent with the definition of
``contract'' elsewhere, such as at 10 CFR 600.3.
Section 784.4 recites considerations, specified by statute, that
are to be included in making determinations to grant advance patent
waivers. For clarity, a definition of an advance waiver is provided in
today's regulation. Considerations (l) and (m) have been modified to
reflect 35 U.S.C. 202.
Section 784.5 recites statutory considerations to be included in
Government determinations to waive title rights in a particular
identified invention. Considerations (k) and (l) have been modified to
reflect 35 U.S.C. 202.
Section 784.6 recites additional national security related
considerations for waiver of certain sensitive inventions, as provided
in Pub. L. 99-661 (42 U.S.C. 7261a).
Section 784.7 provides guidance for requesting a class waiver,
i.e., a waiver that applies to a class of persons or a class of
inventions. Pertinent objectives and considerations set forth in
sections 784.3 through 784.6 are to be included in class waiver
determinations. Class waivers are authorized by statute (42 U.S.C.
5908) and are provided for in the regulation at 41 CFR 9-9.109-6(a)(1).
Section 784.8 provides general procedures concerning the patent
waiver process, including timeliness requirements for requesting
waivers, information concerning DOE's processing of waiver requests,
information concerning implementation of a waiver, and information
concerning requests for reconsideration of waiver denials. These
regulations track those in 41 CFR 9-9.109-6.
Section 784.8(a) has been modified slightly from the regulation at
41 CFR 9-9.109-6(a)(1) to reflect class waiver requests.
Section 784.8(b) provides reference to a patent waiver clause to be
included when advance waivers are granted, based on the clause provided
in the Federal Acquisition Regulation at 48 CFR 952.227-13; and
includes guidance for seeking an advance waiver for an identified
invention provided in 41 CFR 9-9.109-6(a)(1).
Section 784.8(c) reduces from 9 months to 8 months the time period
for requesting waiver for an identified invention to allow for a longer
time period (from three months to four months) for the Government to
perfect rights within the one-year time period, where a statutory bar
may arise due to public disclosure of an invention for which a waiver
request is not submitted. It also adds further guidance regarding
timeliness for submitting waiver requests and requirements for
reimbursement of patent costs to conform to current practice.
Section 784.8(d) adds a sentence regarding obtaining of an
agreement to
[[Page 36613]]
waiver terms and conditions to conform to current practice.
Sections 784.8 (e), (f) and (g), regarding processing by DOE of
waiver requests, have been modified slightly to better reflect current
DOE practice.
Section 784.8(h) discusses the right of a waiver requestor to
request reconsideration when a waiver request has been denied.
Section 784.8(I) has been added to provide guidance regarding
submission of an instrument confirming the Government's rights in
waived inventions, to conform to current practice, and as provided for
generally in the current regulation at 41 CFR 9-9.109-1(b).
Section 784.9 provides detailed direction concerning the content of
waiver requests. A self-explanatory form for requesting waivers is
available from the Contracting Officer or DOE Patent Counsel.
Generally, waiver requests must include identification of the
requestor, identification of the pertinent contract, including a
description of the contract effort, the nature of the requested waiver,
and information addressing waiver policies and considerations set forth
in the regulation. In addition, for an identified invention waiver
request, information concerning the specific invention, including names
of all inventors and patent status of the invention, is required. The
source of the language for this section is 41 CFR 9-9.109-6(e).
Section 784.9(a) adds a reference to the OMB control number for the
forms that persons must use to request advance and identified invention
waivers.
Section 784.9(c) adds a reference to a statutory provision (35
U.S.C. 205) enacted since issuance of the current regulation that
relates to treatment of proprietary information that may be contained
in waiver requests.
Section 784.10 provides for public availability of records of
waiver determinations, as required by 42 U.S.C. 5908(c). This section
replaces 41 CFR 9-9.109-6(f). The Assistant General Counsel for
Technology Transfer and Intellectual Property will be responsible for
maintaining and updating the publicly available record of waiver
determinations.
Section 784.11 describes typical situations that may be appropriate
for advance waivers, including cost-shared contracts, situations where
DOE is providing relatively modest increased funding to a substantially
privately-sponsored program, and situations where a waiver is necessary
to obtain the participation of a particular contractor. In addition,
the section describes possible limitations on the scope of waivers
depending on circumstances surrounding a particular waiver, e.g.,
restrictions to fields of use that are not the primary object of the
contract effort. Further, the section addresses the issue of a prime
contractor's obtaining rights to inventions made by a subcontractor.
This section has been slightly modified from its counterpart in 41 CFR
9.109-6(g) to reflect current practice and the enactment of, and
amendments to, 35 U.S.C. 202. In addition, section 784.11(b)(ii),
regarding rights in subcontractor inventions, and contained in the
current regulations at 41 CFR 9-9.107-4(h)(2), has been incorporated
into this regulation. Subsection (c) is derived from 41 CFR 9-9.109-
6(g)(3).
Section 784.12 sets forth the ``Patent Rights--Waiver'' clause
containing the terms and conditions for waivers. The current regulation
does not contain a patent waiver clause, but instead contains a
section, 41 CFR 9-9.109-6(I) entitled ``Terms and conditions of
waivers.'' The clause of the final regulation is based on the
contractor retention of rights clause contained in the Federal
Acquisition Regulation at 48 CFR 52.227-12, with certain additions. A
section (k), Background Patents; a section (p), Waiver Termination; a
section (q), Atomic Energy; a section (r), Publication; and a section
(s), Forfeiture of Rights in Unreported Subject Inventions, are
included, representing a continuation of previous DOE policy contained
in the current regulation at 41 CFR 9-9.107-5(a)(k), 41 CFR 9-9.109-
6(j), 41 CFR 9-9.107-5(a)(l)(1), 41 CFR 9-9.107-5(a)(f) and 41 CFR 9-
9.107-5(a)(g), respectively. Subsection (a) incorporates definitions
from 35 U.S.C. 201(d), 42 U.S.C. 5908(m) and 41 CFR 9-9.107-5. A
sentence has been added to (p) referring to the ``Contractor's minimum
license'' provision, Subsection (e).
Section 784.13 provides effective dates for various types of
waivers. This has been taken from 41 CFR 9-9.109-6(k).
III. Procedural Requirements
A. Applicable Procedures
This final rule recodifies and updates DOE's patent waiver
regulations. The rule does not change any DOE substantive policies or
establish new requirements affecting the rights and obligations of the
public in this area. The rule does include several procedural changes,
but DOE has determined that these changes will not have a significant
impact on contractors, grantees, or other persons who may request
waiver of the Government's rights in inventions made under contracts,
grants, and other DOE agreements and arrangements. Therefore, DOE has
determined that prior notice and an opportunity for public comment on
the rule is not required.
B. Review Under Executive Order 12886
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``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.
C. Review Under Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, requires,
in part, that an agency prepare an initial regulatory flexibility
analysis for any rule, unless it determines that the rule will not have
a ``significant economic impact'' on a substantial number of small
entities. The final rule concerns policy and procedures for patent
waivers affecting entities that are generally not small businesses
because there is separate statutory authority governing disposition of
invention rights of Government contractors that are small businesses.
The final rule imposes no significant burdens or impact on small
entities. Therefore, as required by Section 605(b), DOE certifies that
the final rule will not have a significant economic impact on a
substantial number of small entities.
D. Review Under NEPA
DOE has determined that issuance of this final rule is not a major
federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., and therefore that neither an
environmental assessment nor an environmental impact statement is
required. Categorical exclusion A2 in DOE's regulations implementing
NEPA, appendix A of subpart D of 10 CFR part 102, applies to this
rulemaking. Categorical exclusion A2 encompasses clarifying or
administrative modifications of rules pertaining to contracts.
E. Review Under Paperwork Reduction Act
The reporting requirements contained in 41 CFR 9-9.109-6 were
approved by OMB and assigned control no. 1901-
[[Page 36614]]
0800. This final rule imposes no new reporting requirement.
F. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the national Government and the States, and in the
distribution of power and responsibilities among various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action. Today's action sets forth DOE policies and procedures
governing requests for waiver of the Government's rights to inventions
made in the course of contracts, grant agreements, cooperative
agreements, and other arrangements that further DOE's mission. DOE has
determined that the final rule will not have a substantial direct
effect on the institutional interests or traditional functions of
States.
G. Review Under Executive Order 12778
Section 2 of Executive Order 12778, 56 FR 55195 (October 25, 1991),
instructs each agency to adhere to certain requirements in promulgating
new regulations. These requirements, set forth in section 2(a) and
(b)(2), 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 regulations define key
terms and are clear on such matters as exhaustion of administrative
remedies and preemption. DOE certifies that today's regulatory action
meets the requirements of section 2(a) and (b)(2) of Executive Order
12778.
H. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that: (1)would impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This rule does not contain any Federal intergovernmental or private
sector mandate. Therefore, the requirements of title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
List of Subjects in 10 CFR Part 784
Government contracts, Inventions and patents.
Issued in Washington, D.C., on July 2, 1996.
Robert R. Nordhaus,
General Counsel.
For the reasons set forth in the preamble, Chapter III of Title 10
of the Code of Federal Regulations is amended by adding new Part 784 to
read as set forth below.
PART 784--PATENT WAIVER REGULATION
Sec.
784.1 Scope and applicability.
784.2 Definitions.
784.3 Policy.
784.4 Advance waiver.
784.5 Waiver of identified inventions.
784.6 National security considerations for waiver of certain
sensitive inventions.
784.7 Class waiver.
784.8 Procedures.
784.9 Content of waiver requests.
784.10 Record of waiver determinations.
784.11 Bases for granting waivers.
784.12 Terms and conditions of waivers.
784.13 Effective dates.
Authority: 42 U.S.C. 7151; 42 U.S.C. 5908; 42 U.S.C. 2182; 35
U.S.C. 202 and 210; 42 U.S.C. 7261a.
PART 784--PATENT WAIVER REGULATION
Sec. 784.1 Scope and applicability.
(a) This part states the policy and establishes the procedures,
terms and conditions governing waiver of the Government's rights in
inventions made under contracts, grants, agreements, understandings or
other arrangements with the Department of Energy (DOE).
(b) This part applies to all inventions conceived or first actually
reduced to practice in the course of or under any contract, grant,
agreement, understanding, or other arrangement with or for the benefit
of DOE (including any subcontract, subgrant, or subagreement), the
patent rights disposition of which is governed by section 152 of the
Atomic Energy Act of 1954, 42 U.S.C. 2182, or section 9 of the Federal
Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. 5908.
In funding agreements with nonprofit organizations or small business
firms, when title or other rights are reserved to the Government under
the authority of 35 U.S.C. 202(a), this part will apply to any waiver
of such rights. The patent waiver provisions in this part supersede the
patent waiver regulations previously included with patent regulations
at 41 CFR Part 9-9.100.
Sec. 784.2 Definitions.
As used in this Part:
Contract means procurement contracts, grants, agreements,
understandings and other arrangements (including Cooperative Research
and Development Agreements [CRADAs], Work for Others and User Facility
agreements, which includes research, development, or demonstration
work, and includes any assignment or substitution of the parties,
entered into, with, or for the benefit of DOE.
Contractor means entities performing under contracts as defined
above.
Patent Counsel means the DOE Patent Counsel assisting the
contracting activity.
Sec. 784.3 Policy.
(a) Section 6 of Public Law 96-517 (the Bayh-Dole patent and
trademark amendments of 1980), as amended, as codified at 35 U.S.C.
200--212, provides that title to inventions conceived or first actually
reduced to practice in the course of or under any contract, grant,
agreement, understanding, or other arrangement entered into with or for
the benefit of the Department of Energy (DOE) vests in the United
States, except where 35 U.S.C. 202 provides otherwise for nonprofit
organizations or small
[[Page 36615]]
business firms. However, where title to such inventions vests in the
United States, the Secretary of Energy (hereinafter Secretary) or
designee may waive all or any part of the rights of the United States,
subject to required terms and conditions, with respect to any invention
or class of inventions made or which may be made by any person or class
of persons in the course of or under any contract of DOE if it is
determined that the interests of the United States and the general
public will best be served by such waiver. In making such
determinations, the Secretary or designee shall have the following
objectives:
(1) Making the benefits of the energy research, development, and
demonstration program widely available to the public in the shortest
practicable time;
(2) Promoting the commercial utilization of such inventions;
(3) Encouraging participation by private persons in DOE's energy
research, development, and demonstration programs; and
(4) Fostering competition and preventing undue market concentration
or the creation or maintenance of other situations inconsistent with
the antitrust laws.
(b) If it is not possible to attain the objectives in paragraphs
(a)(1) through (4) immediately and simultaneously for any specific
waiver determination, the Secretary or designee will seek to reconcile
these objectives in light of the overall purposes of the DOE patent
waiver policy, as set forth in section 152 of the Atomic Energy Act of
1954, 42 U.S.C. 2182, section 9 of the Federal Nonnuclear Energy
Research and Development Act of 1974, 42 U.S.C. 5908, Public Law 99-
661, 42 U.S.C. 7261a, and, where not inconsistent therewith, the
Presidential Memorandum to the Heads of Executive Departments and
Agencies on Government Patent Policy issued February 18, 1983 and
Executive Order No. 12591 issued April 10, 1987.
(c) The policy set forth in this section is applicable to all types
of contracts as defined in Sec. 784.2 of this part.
Sec. 784.4 Advance waiver.
This section covers inventions that may be conceived or first
actually reduced to practice in the course of or under a particular
contract. In determining whether an advance waiver will best serve the
interests of the United States and the general public, the Secretary or
designee (currently the Assistant General Counsel for Technology
Transfer and Intellectual Property) shall, at a minimum, specifically
include as considerations the following:
(a) The extent to which the participation of the contractor will
expedite the attainment of the purposes of the program;
(b) The extent to which a waiver of all or any part of such rights
in any or all fields of technology is needed to secure the
participation of the particular contractor;
(c) The extent to which the work to be performed under the contract
is useful in the production or utilization of special nuclear material
or atomic energy;
(d) The extent to which the contractor's commercial position may
expedite utilization of the research, development, and demonstration
results;
(e) The extent to which the Government has contributed to the field
of technology to be funded under the contract;
(f) The purpose and nature of the contract, including the intended
use of the results developed thereunder;
(g) The extent to which the contractor has made or will make
substantial investment of financial resources or technology developed
at the contractor's private expense which will directly benefit the
work to be performed under the contract;
(h) The extent to which the field of technology to be funded under
the contract has been developed at the contractor's private expense;
(i) The extent to which the Government intends to further develop
to the point of commercial utilization the results of the contract
effort;
(j) The extent to which the contract objectives are concerned with
the public health, public safety, or public welfare;
(k) The likely effect of the waiver on competition and market
concentration;
(l) In the case of a domestic nonprofit educational institution
under an agreement not governed by Chapter 18 of Title 35, United
States Code, the extent to which such institution has a technology
transfer capability and program approved by the Secretary or designee
as being consistent with the applicable policies of this section;
(m) The small business status of the contractor under an agreement
not governed by Chapter 18 of Title 35, United States Code, and
(n) Such other considerations, such as benefit to the U.S. economy,
that the Secretary or designee may deem appropriate.
Sec. 784.5 Waiver of identified inventions.
This section covers the relinquishing by the Government to the
contractor or inventor of title rights in a particular identified
subject invention. In determining whether such a waiver of an
identified invention will best serve the interests of the United States
and the general public, the Secretary or designee shall, at a minimum,
specifically include as considerations the following:
(a) The extent to which such waiver is a reasonable and necessary
incentive to call forth private risk capital for the development and
commercialization of the invention;
(b) The extent to which the plans, intentions, and ability of the
contractor or inventor will obtain expeditious commercialization of
such invention;
(c) The extent to which the invention is useful in the production
or utilization of special nuclear material or atomic energy;
(d) The extent to which the Government has contributed to the field
of technology of the invention;
(e) The purpose and nature of the invention, including the
anticipated use thereof;
(f) The extent to which the contractor has made or will make
substantial investment of financial resources or technology developed
at the contractor's private expense which will directly benefit the
commercialization of the invention;
(g) The extent to which the field of technology of the invention
has been developed at the contractor's expense;
(h) The extent to which the Government intends to further develop
the invention to the point of commercial utilization;
(i) The extent to which the invention is concerned with the public
health, public safety, or public welfare;
(j) The likely effect of the waiver on competition and market
concentration;
(k) In the case of a domestic nonprofit educational institution
under an agreement not governed by Chapter 18, Title 35, United States
Code, the extent to which such institution has a technology transfer
capability and program approved by the Secretary or designee as being
consistent with the applicable policies of this section;
(l) The small business status of the contractor, under an agreement
not governed by Chapter 18 of Title 35, United States Code; and,
(m) Such other considerations, such as benefit to the U.S. economy
that the Secretary or designee may deem appropriate.
Sec. 784.6 National security considerations for waiver of certain
sensitive inventions.
(a) Whenever, in the course of or under any Government contract or
subcontract of the Naval Nuclear
[[Page 36616]]
Propulsion Program or the nuclear weapons programs or other atomic
energy defense activities of the Department of Energy, a contractor
makes an invention or discovery to which title vests in the Department
of Energy pursuant to statute, the contractor may request waiver of any
or all of the Government's property rights. The Secretary of Energy or
designee may decide to waive the Government's rights.
(b) In making a decision under this section, the Secretary or
designee shall consider, in addition to the objectives of DOE waiver
policy as specified in Sec. 784.3(a)(1) through (4), and the
considerations specified in Sec. 784.4 for advance waivers, and
Sec. 784.5 for waiver of identified inventions, the following:
(1) Whether national security will be compromised;
(2) Whether sensitive technical information (whether classified or
unclassified) under the Naval Nuclear Propulsion Program or the nuclear
weapons programs or other atomic energy defense activities of the
Department of Energy for which dissemination is controlled under
Federal statutes and regulations will be released to unauthorized
persons;
(3) Whether an organizational conflict of interest contemplated by
Federal statutes and regulations will result, and
(4) Whether waiving such rights will adversely affect the operation
of the Naval Nuclear Propulsion Program or the nuclear weapons programs
or other atomic energy defense activities of the Department of Energy.
(c) A decision under this Sec. 784.6 shall be made within 150 days
after the date on which a complete request for waiver, as described by
paragraph (d) of this section, has been submitted to the Patent Counsel
by the contractor.
(d) In addition to the requirements for content which apply
generally to all waiver requests under paragraph (a) of this section, a
requestor must include a full and detailed statement of facts, to the
extent known by or available to the requestor, directed to the
considerations set forth in paragraphs (b)(1) through (4) of this
section, as applicable. To be considered complete, a waiver request
must contain sufficient information, in addition to the content
requirements under paragraphs (a) and (b) of this section, to allow the
Secretary or designee to make a decision under this section. For
advance waiver requests, such information shall include, at a minimum:
(1) An identification of all of the requestor's contractual
arrangements involving the Government (including contracts,
subcontracts, grants, or other arrangements) in which the technology
involved in the contract was developed or used and any other funding of
the technology by the Government, whether direct or indirect, involving
any other party, of which the requestor is aware;
(2) A description of the requestor's past, current, and future
private investment in and development of the technology which is the
subject of the contract. This includes expenditures not reimbursed by
the Government on research and development which will directly benefit
the work to be performed under the instant contract, the amount and
percentage of contract costs to be shared by the requestor, the out-of-
pocket costs of facilities or equipment to be made available by the
requestor for performance of the contract work which are not charged
directly or indirectly to the Government under contract, and the
contractor's plans and intentions to further develop and commercialize
the technology at private expense;
(3) A description of competitive technologies or other factors
which would ameliorate any anticompetitive effect of granting the
waiver.
(4) Identification of whether the contract pertains to work that is
classified, or sensitive, i.e., unclassified but controlled pursuant to
section 148 of the Atomic Energy Action of 1954, as amended (42 U.S.C.
2168), or subject to export control under Chapter 17 of the Military
Critical Technology List (MCTL) contained in Department of Defense
Directive 5230.25 including identification of all principal uses of the
subject matter of the contract, whether inside or outside the
contractor program, and an indication of whether any such uses involve
classified or sensitive technologies.
(5) Identification of all DOE and DOD programs and projects in the
same general technology as the contract for which the requestor intends
to be providing program planning advice or has provided program
planning advice within the last three years.
(e) For identified invention requests under this section, such
requests shall include at a minimum:
(1) A brief description of the intentions of the requestor (or its
present or intended licensee) to commercialize the invention. This
description should include:
(i) Estimated expenditures,
(ii) Anticipated steps,
(iii) The associated time periods to bring the invention to
commercialization, and
(iv) A statement that requestor (or its present or intended
licensee) has the capability to carry out its stated intentions.
(2) A description of any continuing Government funding of the
development of the invention (including investigation of materials or
processes for use therewith), from whatever Government source, whether
direct or indirect, and, to the extent known by the requestor, any
anticipated future Government funding to further develop the invention.
(3) A description of competitive technologies or other factors
which would ameliorate any anticompetitive effects of granting the
waiver.
(4) A statement as to whether or not the requestor would be willing
to reimburse the Department of Energy for any and all costs and fees
incurred by the Department in the preparation and prosecution of the
patent applications covering the invention that is the subject of the
waiver request.
(5) Where applicable, a statement of reasons why the request was
not timely filed in accordance with the applicable patent rights clause
of the contract, or why a request for an extension of time to file the
request was not filed in a timely manner.
(6) Identification of whether the invention pertains to work that
is classified, or sensitive, i.e., unclassified but controlled pursuant
to section 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C.
2168), or subject to export control under Chapter 17 of the Military
Critical Technology List (MCTL) contained in Department of Defense
Directive 5230.25, including identification of all principal uses of
the invention inside or outside the contractor program, and an
indication of whether any such uses involve classified or sensitive
technologies.
(7) Identification of all DOE and DOD programs and projects in the
same general technology as the invention for which the requestor
intends to be providing program planning advice or has provided program
planning advice within the last three years.
(8) A statement of whether a classification review of the invention
disclosure, any resulting patent application(s), and/or any reports and
other documents disclosing a substantial portion of the invention, has
been made, together with any determinations on the existence of
classified or sensitive information in either the invention disclosure,
the patent application(s), or reports or other documents disclosing a
substantial portion of the invention; and
(9) Identification of any and all proposals, work for other
activities, or other arrangements submitted by the
[[Page 36617]]
requestor, DOE, or a third party, of which requestor is aware, which
may involve further funding of the work on the invention at either the
contractor facility where the invention arose or another facility owned
by the Government.
(f) Patent Counsel will notify the requestor promptly if the waiver
request is found not to be a complete request and, in that event, will
provide the requestor with a reasonable period, not to exceed 60 days,
to correct any such incompleteness. If requestor does not respond
within the allotted time period, the waiver request will be considered
to be withdrawn. If requestor responds within the allotted time period,
but the submittal is still deemed incomplete or insufficient, the
waiver request may be denied.
(g) As set forth in paragraph (c) of this section, waiver decisions
shall be made within 150 days after the date on which a complete
request for waiver of such rights, as specified in this section, has
been submitted by the requestor to the DOE Patent Counsel. If the
original waiver request does not result in a communication from DOE
Patent Counsel indicating that the request is incomplete, the 150-day
period for decision commences on the date of receipt of the waiver
request. If the original waiver request results in a communication from
DOE Patent Counsel indicating that the request is incomplete, the 150-
day period for decision commences on the date on which supplementary
information is received by Patent Counsel sufficient to make the waiver
request complete. For advance waiver requests, if requestor is not
notified that the request is incomplete, the 150-day period for
decision commences on the date of receipt of the request, or on the
date on which negotiation of contract terms is completed, whichever is
later.
(h) Failure of DOE to make a patent waiver decision within the
prescribed 150-day period shall in no way be construed as a grant of
the waiver.
Sec. 784.7 Class waiver.
This section covers relinquishing of patent title rights by the
Government to a class of persons or to a class of inventions. The
authorization for class waivers is to be found at 42 U.S.C. 5908(c).
Class waivers may be appropriate in situations where all members of a
particular class would likely qualify for an advance or identified
invention waiver. Normally, class waivers are originated by the
Department. However, any person with a direct and substantial interest
in a DOE program may request a class waiver by forwarding a written
request therefor to the Patent Counsel. While no particular format for
requesting a class waiver is prescribed, any request for a class waiver
and any resulting determination by the Secretary or designee must
address the pertinent objectives and considerations set forth in
Secs. 784.3(a), 784.4, 784.5, and 784.6.
Sec. 784.8 Procedures.
(a) All requests for waivers shall be in writing. Each request for
a waiver other than a class waiver shall include the information set
forth in Sec. 784.9. Such requests may be submitted by existing or
prospective contractors in the case of requests for an advance waiver
and by contractors, including successor contractors at a facility, or
employee-inventors in the case of requests for waiver of identified
inventions.
(b) A request for an advance waiver should be submitted to the
Contracting Officer (subcontractors may submit through their prime
contractors) at any time prior to execution of the contract or
subcontract, or within thirty days thereafter, or within such longer
period as may be authorized by Patent Counsel for good cause shown in
writing. If the purpose, scope, or cost of the contract is
substantially altered by modification or extension after the waiver is
granted, a new waiver request will be required. When advance waivers
are granted, the provisions of the ``Patent Rights--Waiver'' clause set
forth in Sec. 784.12 shall be used in contracts which are the subject
of the waivers, unless modified with the approval of the Patent Counsel
to conform to the scope of the waiver granted. (See Sec. 784.12.)
Advance waivers may be requested for all inventions which may be
conceived or first actually reduced to practice under a DOE contract.
An advance waiver may also be requested for an identified invention
conceived by the contractor before the contract but which may be first
actually reduced to practice under the contract. Such waiver request
must include a copy of any patent or patent application covering the
identified invention, or if no patent application has been filed, a
complete description of the invention.
(c) A request for waiver (other than an advance or class waiver)
for an identified invention must be submitted to the Patent Counsel at
the time the invention is to be reported to DOE or not later than eight
months after conception and/or first actual reduction to practice,
whichever occurs first in the course of or under the contract, or such
longer period as may be authorized by Patent Counsel for good cause
shown in writing by the requestor. The time for submitting a waiver
request will not normally be extended past the time the invention has
been advertised for licensing by DOE. If the Government has already
filed a patent application on the invention, the requestor should
indicate whether or not it is willing to reimburse the Government for
the costs of searching, prosecution, filing and maintenance fees, in
the event the waiver is granted.
(d) If the request for waiver contains insufficient information,
the Patent Counsel may seek additional information from the requestor
and from other sources. The Patent Counsel will thoroughly analyze the
request in view of each of the objectives and considerations and shall
also consider the overall rights obtained by the Government in the
patent, copyright, and data clauses of the contract. Where it appears
that a waiver of a lesser part of the rights of the United States than
requested would be more appropriate in view of the policies set forth,
the Patent Counsel should attempt to negotiate a compromise acceptable
to both the requestor and DOE. If approval of a waiver is recommended,
Patent Counsel shall obtain an indication of agreement by the requestor
to the proposed waiver scope, terms and conditions.
(e) The Patent Counsel will prepare a Statement of Considerations
setting forth the rationale for either approving or denying the waiver
request and will forward the Statement to the General Counsel or
designee for review thereof. While the Statement need not provide
specific findings as to each and every consideration of Sec. 784.4 or
Sec. 784.5 of this part, it will cover those that are decisive, and it
will explain the basis for the recommended determination. There may be
occasions when the application of the various individual considerations
of Sec. 784.4 or Sec. 784.5 of this part to a particular case could
conflict, and in those instances the conflict will be reconciled giving
due regard to the overall policies set forth in 784.3(a) (1) through
(4).
(f) The Patent Counsel will also obtain comments from the
appropriate DOE program organization to assist the Patent Counsel in
the waiver determination. Additionally, if any other Federal Government
entity has provided funding or will be providing funding, or if a
subject invention has been made in whole or in part by an employee of
that entity, Patent Counsel shall obtain permission to waive title to
the undivided interest in the invention from the cognizant official of
that entity. In situations where time does not permit a delay in
contract negotiations for the preparation and mailing of a full written
[[Page 36618]]
statement, field Patent Counsel may submit a recommendation on the
waiver orally to the Assistant General Counsel for Technology Transfer
and Intellectual Property, who upon verbal consultation with the
appropriate DOE program organization, shall provide a verbal decision
to field Patent Counsel. All oral actions shall be promptly confirmed
in writing. In approving waiver determinations, the Secretary or
designee shall objectively review all requests for waiver in view of
the objectives and considerations set forth in Secs. 784.3 through
784.6. If the determination and the rationale therefor is not
accurately reflected in the Statement of Considerations which has been
submitted for approval, a new Statement of Considerations shall be
prepared.
(g) In the event that a request for advance waiver is approved
after the effective date of the contract, the Patent Counsel shall
promptly notify the requestor by letter of the determination and the
basis therefor. The letter shall state the scope, terms and conditions
of such waiver. If the terms and conditions of an approved advance
waiver were not incorporated in the contract when executed, the letter
shall inform the requestor that the advance waiver shall be effective
as of the effective date of the contract for an advance waiver of
inventions identified, i.e., conceived prior to the effective date of
the contract, or as of the date the invention is reported with an
election by the contractor to retain rights therein, i.e., for an
invention conceived or first actually reduced to practice after the
effective date of the contract; provided a copy of the letter is signed
and returned to the Contracting Officer by the requestor acknowledging
the acceptance of the scope, terms and conditions of the advance
waiver. After acceptance by the contractor of an advance waiver, the
Contracting Officer shall cause a unilateral no-cost modification to be
made to the contract incorporating the terms and conditions of the
waiver in lieu of previous patent rights provisions.
(h) In the event that a waiver request is denied, the requestor
may, within thirty days after notification of the denial, request
reconsideration. Such a request shall include any additional facts and
rationale not previously submitted which support the request. Request
for reconsideration shall be submitted and processed in accordance with
the procedures for submitting waiver requests set forth in this
section.
Sec. 784.9 Content of waiver requests.
(a) Forms (OMB No. 1901-0800) for submitting requests for advance
and identified invention waivers, indicating the necessary information,
may be obtained from the Contracting Officer or Patent Counsel. All
requests for advance and identified invention waivers shall include the
following information:
(1) The requestor's identification, business address, and, if
represented by Counsel, the Counsel's name and address;
(2) An identification of the pertinent contract or proposed
contract and a copy of the contract Statement of Work or a
nonproprietary statement which fully describes the proposed work to be
performed;
(3) The nature and extent of waiver requested;
(4) A full and detailed statement of facts, to the extent known by
or available to the requestor, directed to each of the considerations
set forth in Secs. 784.4 or 784.5 of this part, as applicable, and a
statement applying such facts and considerations to the policies set
forth in Sec. 784.3 of this part. It is important that this submission
be tailored to the unique aspects of each request for waiver, and be as
complete as feasible; and
(5) The signature of the requestor or authorized representative
with the following statement: ``The facts set forth in this request for
waiver are within the knowledge of the requestor and are submitted with
the intention that the Secretary or designee rely on them in reaching
the waiver determination.''
(b) In addition to the requirements of paragraph (a) of this
section, requests for waiver of identified inventions shall include:
(1) The full names of all inventors;
(2) A statement of whether a patent application has been filed on
the invention, together with a copy of such application if filed or, if
not filed, a complete description of the invention;
(3) If a patent application has not been filed, any information
which may indicate a potential statutory bar to the patenting of the
invention under 35 U.S.C. 102 or a statement that no such bar is known
to exist; and
(4) Where the requestor is the inventor, written authorization from
the applicable contractor or subcontractor permitting the inventor to
request a waiver.
(c) Subject to statutes, DOE regulations, requirements, and
restrictions on the treatment of proprietary and classified
information; all material submitted in requests for waiver or in
support thereof will be made available to the public after a
determination on the waiver request has been made, regardless of
whether a waiver is granted. Accordingly, requests for waiver should
not normally contain information or data that the requestor is not
willing to have made public. If proprietary or classified information
is needed to make the waiver determination, such information shall be
submitted only at the request of Patent Counsel.
Sec. 784.10 Record of waiver determinations.
The Assistant General Counsel for Technology Transfer and
Intellectual Property shall maintain and periodically update a publicly
available record of waiver determinations.
Sec. 784.11 Bases for granting waivers.
(a) The various factual situations which are appropriate for
waivers cannot be categorized precisely because the appropriateness of
a waiver will depend upon the manner in which the considerations set
forth in Secs. 784.4 or 784.5, and 784.6 if applicable, of this part
relate to the facts and circumstances surrounding the particular
contracting situation or the particular invention, in order to best
achieve the objectives set forth in Sec. 784.3 of this part. However,
some examples where advance waivers might be appropriate are:
(1) Cost-shared contracts;
(2) Situations in which DOE is providing increased funding to a
specific ongoing privately-sponsored research, development, or
demonstration project;
(3) Situations such as Work for Others Agreements, User Facility
Agreements or CRADAs, involving DOE-approved private use of Government
facilities where the waiver requestor is funding a substantial part of
the costs; and
(4) Situations in which the equities of the contractor are so
substantial in relation to that of the Government that the waiver is
necessary to obtain the participation of the contractor.
(b) Waivers may be granted as to all or any part of the rights of
the United States to an invention subject to certain rights retained by
the United States as set forth in Sec. 784.12 of this part. The scope
of the waiver will depend upon the relationship of the contractual
situation or identified invention to considerations set forth in
Secs. 784.4 or 784.5, and 784.6, if applicable, in order to best
achieve the objectives set forth in Sec. 784.3. For example, waivers
may be restricted to a particular field of use in which the contractor
has substantial equities or a commercial position, or restricted to
those uses that are not the primary object of the contract effort.
[[Page 36619]]
Waivers may also be made effective for a specified duration of time,
may be limited to particular geographic locations, may require the
contractor to license others at reduced royalties in consideration of
the Government's contribution to the research, development, or
demonstration effort, or may require return of a portion of the
royalties or revenue to the Government.
(c) Contractors shall not use their ability to award subcontracts
as economic leverage to acquire rights for themselves in the
subcontractor inventions, where the subcontractor(s) would prefer to
petition for title. A waiver granted to a prime contractor is not
normally applicable to inventions of subcontractors. However, in
appropriate circumstances, the waiver given to the prime contractor may
be made applicable to the waivable inventions of any or all
subcontractors, such as where there are pre-existing special research
and development arrangements between the prime contractor and
subcontractor, or where the prime contractor and subcontractor are
partners in a cooperative effort. In addition, in such circumstances,
the prime contractor may be permitted to acquire nonexclusive licenses
in the subcontractors' inventions when a waiver of the subcontractor
inventions is not covered by the prime contractor's waiver.
(d) In advance waivers of identified inventions, the invention will
be deemed to be a subject invention and the waiver will be considered
as being effective as of the effective date of the contract (see
Sec. 784.13(a)). This will be true regardless of whether the identified
invention had been first actually reduced to practice prior to the time
of contracting or would be reduced to practice under the contract or
after expiration of the contract. One purpose of advance waivers of
identified inventions is to establish the rights of the parties to such
inventions when the facts surrounding the first actual reduction to
practice prior to or during the contract are or will be difficult to
establish.
Sec. 784.12 Terms and conditions of waivers.
The terms and conditions for waivers are set forth in the ``Patent
Rights--Waiver'' clause in this section. A waiver of all foreign and
domestic patent rights under a contract authorizes the use of this
clause with any additions prescribed by the DOE Acquisition Regulations
(48 CFR Chapter 9) or the terms of the waiver. This clause shall not be
used in contracts with small business firms or nonprofit organizations
subject to 35 U.S.C. 200 et seq. If a waiver of different scope is
granted, the clause shall be modified to conform to the scope of the
waiver granted. Advance waivers for arrangements other than contracts,
grants, and cooperative agreements may use other clause provisions
approved by the Assistant General Counsel for Technology Transfer and
Intellectual Property, except that all waivers for funding agreements
shall be subject to the license of clause paragraph (b) and the
provisions of clause paragraphs (i) and (j). The terms and conditions
of the clause shall also constitute the basis for confirmatory licenses
regarding waivers of identified inventions. For inventions under
advance waivers, a duly executed and approved instrument fully
confirmatory of all rights to which the Government is entitled is
required to be submitted promptly after filing a patent application
thereon. If, however, a waiver request is pending, delivery of the
confirmatory instrument may be delayed until a determination on the
waiver request is made. In the case of a waiver of an identified
invention pursuant to a request for greater rights, the confirmatory
instrument shall be agreed to or submitted to Patent Counsel before or
at the time the waiver is granted.
Patent Rights--Waiver
Use the clause at 48 CFR 52.227-12 with the following changes:
(1) In paragraph (a) ``Definitions'' add the following
definitions:
Background patent means a domestic patent covering an invention
or discovery which is not a Subject Invention and which is owned or
controlled by the Contractor at any time through the completion of
this contract:
(i) Which the Contractor, but not the Government, has the right
to license to others without obligation to pay royalties thereon,
and
(ii) Infringement of which cannot reasonably be avoided upon the
practice of any specific process, method, machine, manufacture or
composition of matter (including relatively minor modifications
thereof) which is a subject of the research, development, or
demonstration work performed under this contract.
Contract means any contract, grant, agreement, understanding, or
other arrangement, which includes research, development, or
demonstration work, and includes any assignment or substitution of
parties.
DOE patent waiver regulations means the Department of Energy
patent waiver regulations at 10 CFR part 784.
Patent Counsel means the Department of Energy Patent Counsel
assisting the procuring activity.
Secretary means the Secretary of Energy.
(2) In paragraph (a) in the definition of ``Subject invention''
substitute: ``course of or'' for: ``performance of work''.
(3) In paragraph (b) ``Allocation of principal rights,'' add at
the beginning of first sentence:
``Whereas DOE has granted a waiver of rights to subject
inventions to the Contractor,''.
(4) In paragraph (c)(1), substitute:
``Patent Counsel within six months after conception or first
actual reduction to practice, whichever occurs first in the course
of or under this contract, but in any event, prior to any sale,
public use, or public disclosure of such invention known to the
Contractor.'' for.
``Contractor officer within 2 months after the inventor
discloses it in writing to Contractor Personnel responsible for
Patent matters * * * earlier.''
(5) In paragraph (c)(2) add at the end: ``The Contractor shall
notify the Patent Counsel as to those countries (including the
United States) in which the Contractor will retain title not later
than 60 days prior to the end of the statutory period.''
(6) In paragraph (c)(3) substitute: ``but not later than at
least 60 days'' for ``or, if earlier,''
(7) In paragraph (d) add (d)(5):
``(5) If the waiver authorizing the use of this clause is
terminated as provided in paragraph (p) of this clause.''
(8) In paragraph (e)(1) add: ``under paragraph (d) of this
clause'' after ``Government obtains title.''
(9) In paragraph (e)(2) substitute ``37 CFR part 404 and DOE
licensing regulations.'' for ``the Federal Property Management
regulations and agency licensing regulations (if any)''
(10) In paragraph (f)(5) substitute ``the course of or'' for
``performance of work''.
(11) In paragraph (g) substitute paragraphs (1), (2) and (3) as
follows:
(1) Unless otherwise directed by the Contracting Officer, the
Contractor shall include the clause at 48 CFR 952.227-11, suitably
modified to identify the parties, in all subcontracts, regardless of
tier, for experimental, developmental, or research work to be
performed by a small business firm or nonprofit organization, except
where the work of the subcontract is subject to an Exceptional
Circumstances Determination by DOE. In all other subcontracts,
regardless of tier, for experimental, developmental, demonstration,
or research work, the Contractor shall include the patent rights
clause at 48 CFR 952.227-13 (suitably modified to identify the
parties).
(2) The Contractor shall not, as part of the consideration for
awarding the subcontract, obtain rights in the subcontractor's
subject inventions.
(3) In the case of subcontractors at any tier, Department, the
subcontractor, and Contractor agree that the mutual obligations of
the parties created by this clause constitute a contract between the
subcontractor and the Department with respect to those matters
covered by this clause.
(12) Substitute the following for paragraph (k):
(k) Background Patents
(1) The Contractor agrees:
(i) to grant to the Government a royalty-free, nonexclusive
license under any Background Patent for purposes of practicing
[[Page 36620]]
a subject of this contract by or for the Government in research,
development, and demonstration work only.
(ii) that, upon written application by DOE, it will grant to
responsible parties for purposes of practicing a subject of this
contract, nonexclusive licenses under any Background Patent on terms
that are reasonable under the circumstances. If, however, the
Contractor believes that exclusive or partially exclusive rights are
necessary to achieve expeditious commercial development or
utilization, then a request may be made to DOE for DOE approval of
such licensing by the Contractor.
(2) Notwithstanding paragraph (k)(1)(ii), the Contractor shall
not be obligated to license any Background Patent if the Contractor
demonstrates to the satisfaction of the Secretary or his designee
that:
(i) a competitive alternative to the subject matter covered by
said Background Patent is commercially available from one or more
other sources; or
(ii) the Contractor or its licensees are supplying the subject
matter covered by said Background Patent in sufficient quantity and
at reasonable prices to satisfy market needs, or have taken
effective steps or within a reasonable time are expected to take
effective steps to so supply the subject matter.
(13) Add new paragraph (l) Communications as follows:
All reports and notifications required by this clause shall be
submitted to the Patent Counsel unless otherwise instructed.
(14) In paragraph (m) add to end of sentence: ``, except with
respect to Background Patents, above.''
(15) In paragraph (n)(4) substitute ``conducted in such a manner
as'' for ``subject to appropriate conditions.''
(16) In paragraph (o) add at the end of the parenthetical phrase
in the heading to the paragraph: ``or grants''.
(17) In paragraph (o) add paragraph (o)(1)(v) as follows:
(v) Convey to the Government, using a DOE-approved form, the
title and/or rights of the Government in each subject invention as
required by this clause.
(18) In paragraph (o), substitute the following for (o)(3):
(3) Final payment under this contract shall not be made before
the Contractor delivers to the Patent Counsel all disclosures of
subject inventions required by paragraph (c)(1) of this clause, an
acceptable final report pursuant to paragraph (f)(7)(ii) of this
clause, and all past due confirmatory instruments, and the Patent
Counsel has issued a patent clearance certification to the
Contracting Officer.
(19) Add paragraphs (p), (q), (r), and (s) as follows:
(p) Waiver Terminations.
Any waiver granted to the Contractor authorizing the use of this
clause (including any retention of rights pursuant thereto by the
Contractor under paragraph (b) of this clause) may be terminated at
the discretion of the Secretary or his designee in whole or in part,
if the request for waiver by the Contractor is found to contain
false material statements or nondisclosure of material facts, and
such were specifically relied upon by DOE in reaching the waiver
determination. Prior to any such termination, the Contractor will be
given written notice stating the extent of such proposed termination
and the reasons therefor, and a period of 30 days, or such longer
period as the Secretary or his designee shall determine for good
cause shown in writing, to show cause why the waiver of rights
should not be so terminated. Any waiver termination shall be subject
to the Contractor's minimum license as provided in paragraph (e) of
this clause.
(q) Atomic Energy.
No claim for pecuniary award or compensation under the
provisions of the Atomic Energy Act of 1954, as amended, shall be
asserted by the Contractor or its employees with respect to any
invention or discovery made or conceived in the course of or under
this contract.
(r) Publication.
It is recognized that during the course of work under this
contract, the Contractor or its employees may from time to time
desire to release or publish information regarding scientific or
technical developments conceived or first actually reduced to
practice in the course of or under this contract. In order that
public disclosure of such information will not adversely affect the
patent interests of DOE or the Contractor, approval for release of
publication shall be secured from Patent Counsel prior to any such
release or publication. In appropriate circumstances, and after
consultation with the Contractor, Patent Counsel may waive the right
of prepublication review.
(s) Forfeiture of rights in unreported subject inventions.
(1) The Contractor shall forfeit and assign to the Government,
at the request of the Secretary of Energy or designee, all rights in
any subject invention which the Contractor fails to report to Patent
Counsel within six months after the time the Contractor:
(i) Files or causes to be filed a United States or foreign
patent application thereon; or
(ii) Submits the final report required by paragraph (e)(2)(ii)
of this clause, whichever is later.
(2) However, the Contractor shall not forfeit rights in a
subject invention if, within the time specified in paragraph (m)(1)
of this clause, the Contractor:
(i) Prepares a written decision based upon a review of the
record that the invention was neither conceived nor first actually
reduced to practice in the course of or under the contract and
delivers the decision to Patent Counsel, with a copy to the
Contracting Officer; or
(ii) Contending that the subject invention is not a subject
invention, the Contractor nevertheless discloses the subject
invention and all facts pertinent to this contention to the Patent
Counsel, with a copy to the Contracting Officer, or
(iii) Establishes that the failure to disclose did not result
from the Contractor's fault or negligence.
(3) Pending written assignment of the patent application and
patents on a subject invention determined by the Contracting Officer
to be forfeited (such determination to be a Final Decision under the
Disputes clause of this contract), the Contractor shall be deemed to
hold the invention and the patent applications and patents
pertaining thereto in trust for the Government. The forfeiture
provision of this paragraph shall be in addition to and shall not
supersede any other rights and remedies which the Government may
have with respect to subject inventions.
Sec. 784.13 Effective dates.
Waivers shall be effective on the following dates:
(a) For advance waivers of identified inventions, i.e., inventions
conceived prior to the effective date of the contract, on the effective
date of the contract, even though the advance waiver may have been
requested after that date;
(b) For identified inventions under advance waivers, i.e.,
inventions conceived or first actually reduced to practice after the
effective date of the contract, on the date the invention is reported
with the election to retain rights as to that invention; and
(c) For waivers of identified inventions (other than under an
advance waiver), on the date of the letter from Patent Counsel
notifying the requestor that the waiver has been granted.
[FR Doc. 96-17431 Filed 7-11-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-16861 Safety Standards for Explosives at Metal and Nonmetal Mines
[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Rules and Regulations]
[Pages 36790-36807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16861]
[[Page 36789]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
_______________________________________________________________________
30 CFR Parts 56 and 57
Safety Standards for Explosives at Metal and Nonmetal Mines; Final Rule
Federal Register / Vol. 61, No. 135 / July 12, 1996 / Rules and
Regulations
[[Page 36790]]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56 and 57
RIN 1219-AA84
Safety Standards for Explosives at Metal and Nonmetal Mines
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises certain provisions of the Mine Safety
and Health Administration's (MSHA) safety standards for explosives at
metal and nonmetal mines. The final rule revises existing standards for
separation of detonators from other explosives or blasting agents
during storage in powder chests and during transportation.
Additionally, it revises existing provisions related to loading and
blasting of explosive materials. The final rule also expands the
application of existing provisions concerning the protection of
explosive materials from impact and exposure to high temperatures, and
it revises and clarifies the existing provisions addressing static
electricity dissipation during loading. The rule revises the existing
preamble discussion for vehicles containing explosive material, and
incorporates existing blast site security provisions into the loading
and blasting standards. For the convenience of the mining community,
MSHA has published the full text of the explosives standards for metal
and nonmetal mines in this Federal Register document.
EFFECTIVE DATES: This final rule is effective September 10, 1996. The
incorporation by reference listed in the regulations is effective
September 10, 1996.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
Under final Secs. 56/57.6306(a), operators must either attend;
barricade and post the blast site with warning signs, such as
``Danger,'' ``Explosives,'' or ``Keep Out;'' or flag the blast site
against unauthorized entry. These final requirements for use of warning
signs, such as ``Danger,'' ``Explosives,'' or ``Keep Out,'' are not
considered information collection under the Paperwork Reduction Act of
1995 (PRA 95) and are not subject to approval by the Office of
Management and Budget (OMB).
Final Secs. 56/57.6306(d) requires that operators conduct loading
and blasting in a manner to facilitate a continuous process so that the
blast is fired as soon as possible. The final standard does not retain
the concept of ``undue delay'', but retains the existing requirement to
notify MSHA of blasting delays beyond 72 hours. MSHA estimates that
these provisions affect fewer than 10 respondents annually, all large
mines. Although notification is considered an information collection
burden under PRA 95, this provision is not subject to OMB approval
because it affects fewer than 10 respondents annually.
II. Rulemaking Background
MSHA published comprehensive revisions to its explosives safety
standards for metal and nonmetal mines in January 1991 (56 FR 2070).
Prior to the effective date of the rule, MSHA stayed several provisions
due to compliance issues raised by the mining community and explosives
manufacturers. The provisions involved were subsequently reproposed on
October 16, 1992 (57 FR 47524) for revision and clarification. On
December 30, 1993, MSHA published the existing final rule which became
effective on January 31, 1994 (58 FR 69596).
In February 1994, the American Mining Congress (AMC) and the
Institute of Makers of Explosives (IME) each filed a petition for
review of the final rule with the United States Court of Appeals for
the District of Columbia Circuit, in American Mining Congress v. MSHA,
Docket No. 91-1124 and 91-1568, consolidated cases, and in IME v. MSHA,
Docket No. 94-1144. AMC requested that MSHA reconsider evidence in the
rulemaking record regarding the continuous loading requirements of
Secs. 56/57.6306(c), Loading and blasting. In addition, AMC requested
that the Agency clarify the preamble discussion to Secs. 56/
57.6202(a)(1), concerning vehicles containing explosive materials.
IME suggested revision of Secs. 56/57.6000, the definition of
``laminated partition,'' and corresponding changes in Secs. 56/
57.6133(b), Powder chests, and Secs. 56/57.6201(a)(2) and (b)(2),
Separation of transported explosive material. Also, IME requested that
MSHA reconsider information in the rulemaking record regarding the
requirements of Secs. 56/57.6602, Static electricity dissipation during
loading.
In response to the issues raised by the mining industry and
explosive manufacturers, MSHA issued Program Policy Letter No. P94-IV-3
on September 30, 1994. This Program Policy Letter provided information
to the mining community regarding the proper usage of the IME-22
Container as a ``laminated partition'' under Secs. 56/57.6000,
Secs. 56/57.6133, and Secs. 56/57.6201. The Agency also interpreted the
``continuous loading'' requirements of Secs. 56/57.6306; clarified the
meaning of the term ``good condition'' as it applies to vehicles used
in Secs. 56/57.6202; clarified the application of Secs. 56/57.6501
regarding double trunklines or loop systems when using low energy
detonating cord with inhole delays; and interpreted Secs. 56/57.6602(e)
on static electricity dissipation during loading as it applies to the
use of plastic hole liners. This final regulation addresses these
regulatory issues except for Secs. 56/57.6501 regarding double
trunklines or loop systems. Therefore, Program Policy Letter No. P94-
IV-3 will expire on the effective date of this final regulation.
On January 5, 1995, MSHA published a proposed rule in the Federal
Register (60 FR 1866) which would have revised the provisions discussed
above. Public hearings were held in Cleveland, Ohio, and Elko, Nevada
in July 1995. The rulemaking record closed on August 18, 1995. MSHA
received and reviewed written and oral statements on the proposed rule
from all segments of the mining community. These final standards for
explosives at metal and nonmetal mines are based on consideration of
the entire rulemaking record, including all written comments and
exhibits received related to the January 1991 and the December 1993
final regulations, as well as the January 5, 1995, proposal and the
public hearing record.
To serve the interests of the mining community, MSHA has
republished the full text of subpart E of 30 CFR parts 56 and 57 as
they will read effective September 10, 1996. This final rule, however,
addresses revisions only to the following sections. Sections
republished here and not on the list below are unchanged.
Parts 56 and 57
Secs. 56/57.6000 Definitions.
Secs. 56/57.6133 owder chests.
Secs. 56/57.6201 Separation of transported explosive material.
Secs. 56/57.6202 Vehicles.
Secs. 56/57.6302 Separation of explosive material.
Secs. 56/57.6306 Loading, blasting, and security.
Secs. 56/57.6313 Blast site security.
Secs. 56/57.6602 Static electricity dissipation during loading.
[[Page 36791]]
Secs. 56/57.6905 Protection of explosive material.
III. Discussion and Summary of the Final Rule
A. General Discussion
Historically, hazards associated with the storage, transportation,
and use of explosive materials have caused or contributed to serious
injuries and fatalities in metal and nonmetal mines. Precautions to
safeguard against these hazards are an essential part of any effective
mine safety program. The standards in 30 CFR parts 56 and 57, subpart
E, focus on hazards associated with using or working near explosive
materials at metal and nonmetal mines. The standards in this final rule
clarify and address certain precautions necessary to prevent the
hazards common to storing, transporting, and handling explosive
materials. These standards also address the issues raised in the rule
challenges noted above.
B. Organizational Changes
Paragraph (b) of existing Secs. 56/57.6302 is moved to Secs. 56/
57.6905 of this subpart. Paragraph (a) of existing Secs. 56/57.6302
requires that explosives and blasting agents be kept separate from
detonators until loading begins. This provision remains unchanged. The
section heading of Secs. 56/57.6302 is revised in the final rule to
read ``Separation of explosive material.''
Paragraph (b) of existing Secs. 56/57.6302 requires that explosive
material be protected from impact and temperatures in excess of 150
degrees Fahrenheit when taken to the blast site.
In 1993, MSHA promulgated Secs. 56/57.6302 under the ``Use''
portion of the explosives regulation, thereby inadvertently creating
confusion as to whether explosives also must be protected from impact
during transportation and storage. MSHA's intent was to require
protection of explosive material from impact and high temperatures
generally, not just during use. This final rule moves existing
paragraph (b) of Secs. 56/57.6302 to ``General Requirements'' and
``General Requirements-Surface and Underground.'' The provision is
codified as Secs. 56/57.6905, with the section heading ``Protection of
explosive material.''
C. Deletions
Existing Secs. 56/57.6313, which require that areas where loading
is suspended or loaded holes are awaiting firing be attended,
barricaded and posted, or flagged against unauthorized entry are
deleted, and these requirements are incorporated into final Secs. 56/
57.6306(a) for loading and blasting.
D. Incorporations by Reference
Existing Secs. 56/57.6000, Secs. 56/57.6133, and Secs. 56/57.6201
incorporate by reference the definition of ``laminated partition'' and
recommendations found in the IME Safety Library Publication No. 22,
``Recommendations for the Safe Transportation of Detonators in a
Vehicle with other Explosive Materials,'' (May 1993), and ``The Generic
Loading Guide for the IME-22 Container,'' (October 1993). Whenever a
laminated partition is used under the final rule, IME's recommendations
contained in these two publications must be followed. As discussed
below, MSHA will make these IME publications available to the mining
community.
E. Section-by-Section Analysis
The following section-by-section analysis explains the final rule
and its effect on existing standards. The standards in part 56 apply to
all surface metal and nonmetal mines; those in part 57 apply to
underground and surface areas of underground metal and nonmetal mines.
Secs. 56/57.6000 Definitions.
Secs. 56/57.6133 Powder chests.
Secs. 56/57.6201 Separation of transported explosive material.
Sections 56/57.6133 and 56/57.6201 address the hazards of unplanned
detonation of explosives when stored and transported. The separation
requirements are intended to impede propagation should detonators be
initiated.
The existing definition of ``laminated partition'' in 30 CFR
Secs. 56/57.6000 includes the combinations of materials which must be
used in a partition if operators choose to store or transport certain
detonators with explosives or blasting agents. These dimensions are
based on IME Safety Library Publication No. 22, ``Recommendations for
the Safe Transportation of Detonators in a Vehicle with other Explosive
Materials,'' (May 1993), and the ``Generic Loading Guide for the IME-22
Container,'' (October 1993). The term ``laminated partition'' appears
in existing Secs. 56/57.6133, Powder chests, and in Secs. 56/57.6201,
Separation of transported explosive material.
Existing standards Secs. 56/57.6133 require that detonators stored
at surface operations and at surface areas of underground operations
must be kept in chests separate from other explosives or blasting
agents, unless the detonators and explosives or blasting agents are
separated by 4 inches of hardwood or equivalent, or a laminated
partition. Similarly, existing Secs. 56/57.6201(a)(2) require
detonators and other explosives or blasting agents to be transported on
separate vehicles or conveyances, except detonators in quantities of
more than 1,000 may be transported on the same vehicle or conveyance if
maintained in the manufacturer's original packaging, and if separated
from explosives or blasting agents by 4 inches of hardwood or
equivalent, or a laminated partition. The 4 inches of hardwood or
equivalent must be fastened to the vehicle or conveyance. Paragraph
(b)(2) of Secs. 56/57.6201 allows detonators in quantities of 1,000 or
fewer to be transported with explosives or blasting agents when kept in
closed containers and separated by 4 inches of hardwood or equivalent,
or a laminated partition. The 4 inches of hardwood or equivalent must
be fastened to the vehicle or conveyance.
The Institute of Makers of Explosives (IME) raised objections to
these existing regulations since the IME safety guidelines warn against
hazards associated with use of the IME-22 container when transporting
detonators with other explosives and blasting agents on the same
vehicle.
Proposed Secs. 56/57.6000 included language similar to that of the
existing regulation. Proposed Secs. 56/57.6133(b) would have allowed
operators the flexibility to continue storing detonators with other
explosives and blasting agents in a powder chest (day box) when
separated by 4 inches of hardwood or equivalent. Likewise, proposed
Secs. 56/57.6201 (a)(2) and (b)(2) would have allowed operators to
continue transporting detonators with explosives and blasting agents on
the same vehicle or conveyance if they are separated by 4 inches of
hardwood or equivalent. In response to IME's comments, both proposed
standards also would have allowed use of a laminated partition to
separate detonators from explosive materials, provided operators
followed guidelines included in the IME Safety Library Publication No.
22, ``Recommendations for the Safe Transportation of Detonators in a
Vehicle with other Explosive Materials,'' (May 1993), and the ``Generic
Loading Guide for the IME-22 Container'' (October 1993) when using a
laminated partition.
Final regulations for Secs. 56/57.6000 are the same as the proposed
rule. The final regulations for both Secs. 56/57.6133(b) and Secs. 56/
57.6201 (a)(2) and (b)(2) parallel the proposed rules in that they
permit the longstanding practice of using 4 inches of hardwood or
[[Page 36792]]
equivalent, or a laminated partition (which includes the IME-22
Container or box) to separate detonators from other explosives or
blasting agents, provided that the provisions of the IME Safety Library
Publication No. 22, ``Recommendations for the Safe Transportation of
Detonators in a Vehicle with other Explosive Materials,'' (May 1993),
and the ``Generic Loading Guide for the IME-22 Container'' (October
1993) are followed. Copies of these IME publications are available to
the mining industry at MSHA headquarters in Arlington, VA, and at all
Metal and Nonmetal Mine Safety and Health district offices.
MSHA did not receive any comments relative to the Agency's
definition of the term ``laminated partition'' as described in the
proposed rule.
One commenter objected to MSHA incorporating by reference IME
publications stating that such incorporation would interfere with the
opportunity to comment on the content of these publications. MSHA has
historically relied upon manufacturers' design specifications and
recommendations for the proper use of specific mining equipment and
machinery where unintended use of such equipment and machinery poses a
serious safety hazard to miners. Therefore, if operators use a
laminated partition for compliance with standards Secs. 56/57.6133 and
Secs. 56/57.6201, they must follow the guidelines prescribed in IME's
accompanying documentation, including updated revisions where
applicable. MSHA expects that the IME will periodically update this
documentation, and MSHA intends to give mine operators adequate notice
should compliance changes become necessary.
Some commenters sought clarification of the phrase ``4 inches of
hardwood, or equivalent,'' as used in proposed Secs. 56/57.6133 and
Secs. 56/57.6201, while other commenters requested that MSHA define the
term ``equivalent'' in the final regulation to specify the types of or
combinations of materials that would be accepted. ``Equivalent'' under
the final rule refers to any barrier, other than a laminated partition,
that provides at least the same degree of protection for explosives or
blasting agents as 4 inches of hardwood should detonators be initiated
by outside forces. Presently, MSHA has no equivalency data to convert
the degree of protection provided by hardwood to another material.
However, the final standard preserves the flexibility to recognize such
future developments.
One commenter requested that MSHA clarify whether ``4 inches of
hardwood'' refers to a partition separating two containers or to the
construction of the detonator box itself. The 4 inches of hardwood or
its equivalent refers to the partition used to separate explosives and
blasting agents from detonators. The purpose of separation is to impede
propagation should detonators be initiated by outside forces. The 4
inches of hardwood or equivalent separator must be fastened inside the
cargo area of the vehicle or conveyance containing explosive materials.
At commenters' suggestions, mine operators are reminded that MSHA
standards are applicable only to mining property, including
transporting of explosive materials. Any transportation of explosive
material over public highways is subject to the requirements of the
United States Department of Transportation in Title 49 of the Code of
Federal Regulations.
Sections 56/57.6202 Vehicles
Sections 56/57.6202 address the hazard of an unplanned detonation
of explosive material during transportation. Detonation can result from
vehicle fires, vehicle accidents or construction of an explosive
container with inappropriate material.
The existing regulations at Secs. 56/57.6202(a)(1) require that
vehicles used to transport explosives be maintained in ``good
condition.'' MSHA indicated in the preamble discussion to this
regulation that for compliance purposes, vehicles must be road-worthy
and capable of passing Federal, state, and local licensing requirements
for over-the-road use.
MSHA received a number of objections to this interpretation of
``good condition.'' In response to these commenters, MSHA clarifies in
this final regulation preamble that for vehicles to be in ``good
condition'' that they comply with the applicable MSHA standards
contained in subpart M-Machinery and Equipment, which address
requirements for all self-propelled mobile equipment used on mine
property. Commenters agreed with this interpretation and MSHA adopts
this approach in the final rule.
``USE''
Sections 56/57.6302 Separation of Explosive Material and Sections 56/
57.6905 Protection of Explosive Material
Sections 56/57.6302 address the hazard of unplanned detonation of
explosive material and protection for explosive material during use,
transportation, and prior to loading.
Existing paragraph (a) of Secs. 56/57.6302 requires that explosives
and blasting agents be kept separate from detonators until loading
begins. Existing paragraph (b) requires that explosive material be
protected from impact and temperatures in excess of 150 degrees
Fahrenheit when taken to the blast site.
When MSHA promulgated existing Secs. 56/57.6302, the standards
appeared in the ``USE'' portion of the explosives regulations, although
the same hazards also exist during the transportation and storage
processes. Therefore, the final rule revises and expands application of
existing paragraph (b) of Secs. 56/57.6302 to ``GENERAL REQUIREMENTS''
for both surface and underground, and moves this existing paragraph to
newly numbered standards Secs. 56/57.6905. Like the proposed
regulation, final paragraph (a) requires that operators protect
explosive materials against temperatures in excess of 150 degrees
Fahrenheit. This temperature threshold is based upon the 1992 Bureau of
Mines Information Circular No. 9335, Blasting Hazards of Gold Mining in
Sulfide-Bearing Ore Bodies; MSHA's Investigation Report No. D7431-S949,
Investigation of Premature Detonations, Paradise Peak Mine, (December
10, 1991); and the IME Safety Library Publication No. 4, ``Warnings and
Instructions for Consumers in Transporting, Storing, Handling and Using
Explosive Materials,'' (March 1992), all of which suggest a hazardous
change in stability of explosives once temperatures reach this level.
Final paragraph (b) of Secs. 56/57.6905, as proposed, requires that
explosive material be protected from impact except for tamping and
dropping during loading, so long as operators comply with existing
requirements of Secs. 56/57.6304 for primer protection. For example,
large equipment used during the loading process may be capable of
exerting forcible impact onto detonating or initiating systems. Also,
the proximity of other mining activity may allow equipment to come in
contact with explosive loading equipment and explosive containers,
thereby exerting impact.
In the proposal, MSHA would have added a new requirement for
underground mines to address the hazard of freeing hang-ups in raises,
chutes and ore passes. To allow for this type of blasting, the proposal
would have permitted only detonating cord to initiate explosives placed
in raises, chutes, and ore passes to free hang-ups.
Commenters objected to the proposal as being too restrictive in
that it would limit commonly accepted methods of blasting and prohibit
application of new technological developments. These commenters stated
that the use of
[[Page 36793]]
detonating cord as proposed by MSHA may introduce inherent hazards such
as fire from the ignition of timber, loosening timber, or other
supports, contributing to flyrock, and loosening rib and back. Although
MSHA's experience with detonating cord has not resulted in these
hazards, the rulemaking record does not contain sufficient support to
finalize the proposal. Therefore, the final rule does not adopt the
proposal and will continue to permit current conventional practices for
freeing hang-ups, provided applicable MSHA safety standards for
explosives are followed. These standards, including the requirements of
the final rule, provide reasonable protection against unplanned
detonation of explosives during hang-up blasting.
Sections 56/57.6313 Blast Site Security and Sections 56/57.6306
Loading, Blasting, and Security
The final regulations address the hazard of unplanned detonation of
explosives and the presence of unauthorized persons within the blast
site, as well as moving vehicles or electrically-powered equipment
which could contact and detonate explosive material. The final rule
also protects persons working in the blast site from other mining
activities unrelated to loading explosives, which can interfere with
the loading process and increase the likelihood of an accident.
Existing paragraph (a) of Secs. 56/57.6306 prohibits vehicles and
other equipment from being driven over explosive material or initiating
systems. Existing paragraph (b) allows haulage activity near the base
of the highwall being loaded, if no other haulage access exists. MSHA
has incorporated existing requirements of Secs. 56/57.6313 on blast
site security into final Secs. 56/57.6306(a). Existing Secs. 56/57.6313
require that areas in which loading is suspended or loaded holes are
awaiting firing must be attended, barricaded and posted, or flagged
against unauthorized entry. The proposal would have revised and
expanded application of existing Secs. 56/57.6313 by requiring that
when explosive materials or initiating systems are brought to the blast
site, operators must either barricade and post, or flag the blast site
so that unauthorized or inadvertent entry is prevented. Most commenters
agreed with the proposal. One commenter objected, however, suggesting
that MSHA require identification of the blast site only when the blast
site is not attended.
Final Secs. 56/57.6306(a) adopts the proposal and includes one
revision consistent with existing Secs. 56/57.6313 regarding attending
the blast site. Under the final standard, operators must either attend;
barricade and post the blast site with warning signs; or flag the blast
site against unauthorized entry. MSHA has included in the final
standard some common examples of the content of warning signs used in
the mining industry. In no way does the Agency intend for these
examples to be an exclusive list. Operators may use other warning signs
for compliance with this provision provided these signs adequately
convey to persons that they are entering a hazardous area. MSHA's
experience is that these warning signs are universally accepted and are
consistent with DOT placards for explosive materials. Once explosives
or initiating systems are brought to the blast site, good safety
practices dictate that precautions be taken to prevent accidental
damage to explosive materials, which can lead to a misfire or
accidental detonation. Key among these precautions is delineating the
blast site to warn unauthorized persons of the presence of explosives.
The provisions of Secs. 56/57.6313 were intended to require mine
operators to alert other persons working at the mine during loading and
blasting operations of the blast site parameters to prevent
unauthorized or inadvertent entry onto the blast site. Particularly on
a large blast site, persons performing blast-related tasks, such as
loading explosives, would not be readily able to warn persons to keep
out of the blast site.
One commenter stated that the proposal would result in additional
costs to purchase warning signs to barricade, post or flag the blast
site. MSHA anticipates that the final rule will result in only nominal
cost increases to the mining industry because the posting requirement
of final paragraph (a) is an incorporation of existing Secs. 56/
57.6313, as explained above. Moreover, the final regulation gives
operators compliance flexibility by providing alternative methods on
how to demarcate the blast site. Under this final regulation, once
initiation systems are brought to the blast site, mine operators must
either: (1) attend the blast site; (2) barricade and post the blast
site with warning signs, such as ``Danger,'' ``Explosives,'' or ``Keep
Out;''; or (3) flag the blast site, to be in compliance with paragraph
(a).
In the final rule, existing paragraph (a) of Secs. 56/57.6306
becomes paragraph (b) with no substantive change.
Paragraph (c) of final Secs. 56/57.6306 restates the existing rule
and restricts persons from entering the blast site except those engaged
in surveying, stemming, sampling of geology, and reopening of holes.
The final rule, like the proposal, clarifies that haulage activity is
permitted near the base of surface highwalls or underground bench faces
being loaded or awaiting firing, where no other haulage access exists.
Final paragraph (d) of Secs. 56/57.6306 protects against the hazard
of periods in which the process of loading and firing explosives is
interrupted. In the proposal, MSHA would have added new requirements
for all mines to address the potential hazards posed by unauthorized
personnel entering a blast site where explosive materials are present.
The preamble discussion to the proposed rule stated that persons
unfamiliar with the blast site may throw lighted smoking materials into
a blast hole, disturb the initiation system, or kick material into a
hole--any one of which could contribute to a premature detonation.
Existing paragraph (c) requires that loading be continuous except
where adverse circumstances beyond the operator's control necessitate
an interruption in loading. Existing paragraph (e) requires that when
loading is completed and circuits are connected, operators must blast
without undue delay, unless adverse circumstances exist which are
beyond the operator's control. The existing standard also requires that
operators notify MSHA if such delay could exceed 72-hours. Existing
paragraphs (c) and (e) of Secs. 56/57.6306 are deleted by the final
rule. Hazards addressed under these existing provisions are covered
under the final rule in paragraph (d).
Proposed paragraph (d)(1) would have required mine operators to
continue the loading and firing process without interruption or undue
delay. MSHA gave examples of ``undue delay'' in the preamble discussion
to the proposed standard which included emergencies, unfavorable
atmospheric conditions, shift changes and large equipment failures.
Also, the proposal would have required operators to attend the mine to
prevent unauthorized entry into the blast site.
Commenters indicated that the proposed ``attended'' requirement was
confusing because it could be read to suggest that the physical
presence of an individual at the blast site is necessary, contrary to
MSHA's definition of the term ``attended.'' Commenters also requested
that MSHA clarify the meaning of ``undue delay'' with a list of
circumstances. Other commenters suggested that MSHA clarify that
examples listed in the preamble to the proposed standard are not the
only justifications for an interruption in the
[[Page 36794]]
loading process. In addition, commenters objected to the proposal and
to the preamble discussion by stating that past practices in the mining
industry have successfully provided protection when loading was
interrupted or blasting was delayed, and that no injuries or deaths
have been attributed to unattended explosives.
MSHA agrees that there have been no known deaths caused by loaded
explosives awaiting blasting. However, explosives technology literature
and experience confirm that caution, including reasonable security
measures, are appropriate. The final rule therefore adopts an updated
version of a previous explosives safety regulation, and continues to
permit longstanding practices at larger mining operations which take
several days to complete the loading and blasting process.
Final paragraph (d) requires that operators conduct loading and
blasting in a manner to facilitate a continuous process so that the
blast is fired as soon as possible. The final standard does not retain
the concept of ``undue delay,'' but retains the existing requirement to
notify MSHA of blasting delays beyond 72 hours. The final standard does
not include the proposed requirement that the mine be attended when
loading is interrupted or blasting is delayed. MSHA believes that
requiring mine operators to load and blast as soon as practicable
provides the measure of protection needed for miners by minimizing the
loading and blasting exposure time.
Paragraph (d)(2) of Secs. 56/57.6306 of the proposed standard would
have required that persons securing a blast site at a surface mine or
at the surface area of an underground mine withdraw from the blast site
during the approach and progress of an electrical storm. The proposal
also would have required that persons securing an underground blast
site using an electrical blasting system that is capable of being
initiated by lightning be withdrawn to a safe location.
Commenters objected to this proposal by stating that it was
duplicative of existing Secs. 56/57.6604, which provides for the
suspension of blasting operations and the withdrawal of persons from
the blast area to a safe location during the approach and progress of
an electrical storm. MSHA agrees that Secs. 56/57.6604 sufficiently
addresses the precautions necessary to protect miners from the danger
of accidental detonation caused by an electrical storm. Therefore, the
final rule does not adopt proposed Secs. 56/57.6306.
Paragraphs (f) and (g) of the final rule are unchanged from the
existing regulations. These final rules continue to require that
operators institute specific safety measures immediately prior to and
after the blasting process. Final paragraph (f) requires, among other
things, ample warning, clear escape routes from the blast area, and all
access to the blast area to be guarded or barricaded to prevent the
passage of persons or vehicles. Numerous accidents have occurred from
the failure to clear or prevent unauthorized entry to the blast area.
Final paragraph (g) requires post-blast examinations to minimize
hazards to persons who will perform subsequent work in the area.
``EXTRANEOUS ELECTRICITY''
Sections 56/57.6602 Static Electricity Dissipation During Loading
This standard addresses the hazard resulting from a buildup of
static electricity generated by pneumatic loading, which could cause
premature detonation of explosives.
Existing Secs. 56/57.6602 require that when explosive material is
loaded pneumatically or dropped into a blasthole in a manner that could
generate static electricity, an evaluation must be made of potential
static electricity hazards and the hazard must be eliminated before
loading begins. The standard prohibits the use of wire-countered hoses
and plastic tube hole liners where their use could generate static
electricity in an amount sufficient to initiate a detonator.
Following publication of the existing rule, MSHA received technical
information from commenters suggesting that the scope of the standard
is too broad. The term ``dropping'' encompasses dropping, pouring, or
augering explosive materials into blastholes, activities which are
performed at a low velocity. As a result, insufficient static
electricity is generated to initiate a detonator, and therefore, does
not pose a serious hazard. In the proposal, MSHA narrowed the
application of this standard by deleting the term ``dropping'' from the
text of existing Secs. 56/57.6602.
In response to the proposed revision, a number of commenters
indicated that the rule would still include activities which would not
generate sufficient static electricity to initiate a detonator. These
commenters indicated that the amount of energy required to initiate a
detonator should be well-known by the blaster in charge and that
blaster is in the best position to make the determination as to when
precautions are necessary.
The final rule adopts this approach and requires that certain
precautions be taken only when there is a static electricity hazard.
IV. Executive Order 12866 and the Regulatory Flexibility Act
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of intended regulations. MSHA has determined
that this rulemaking is not a significant regulatory action and,
therefore, has not prepared a separate analysis of costs and benefits.
The Regulatory Flexibility Act requires regulatory agencies to consider
a rule's impact on small entities. For the purpose of the Regulatory
Flexibility Analysis, MSHA defines a small entity as an operation
employing fewer than 20 employees. This final rule would not have a
significant economic impact on a substantial number of small entities.
The analysis contained in this preamble meets MSHA's responsibilities
under Executive Order 12866 and the Regulatory Flexibility Act.
Under the January 5, 1995, proposed rule (60 FR 1866), MSHA
estimated that the total annual recurring cost impact would have been
about $70,000. All of these costs were attributable to proposed
Secs. 56/57.6306(d)(1) which would have required the blast site to be
attended if loading was interrupted or firing of the blast was delayed
for any reason. MSHA recognizes that it is a safe practice to
continuously load explosives and fire them promptly; however,
interruptions in loading and delays in firing do occur, particularly in
large mining operations. This final rule, therefore, will retain the
existing requirements that permit reasonable interruptions in the
loading process and require notification to MSHA if blasting of a
loaded round will be delayed for more than 72 hours. MSHA estimates
that this provision affects fewer than 10 mines annually, but that the
mining industry will not incur any additional costs resulting from
MSHA's retention of the existing requirements.
The final rule eliminates existing Secs. 56/57.6313 and
incorporates these requirements for blast site security as Secs. 56/
57.6306(a) which require that the blast site be attended; barricaded
and posted with warning signs, such as ``Danger,'' ``Explosives,'' or
``Keep Out;'' or flagged against unauthorized entry, when explosives or
initiating systems are present. MSHA estimates that final Secs. 56/
57.6306(a) would affect about 15 small and 60 large mines annually.
MSHA anticipates that these provisions primarily would affect quarries;
open pit mines, except for certain operations which do not use
explosives, such as clay mines and phosphate mines; and large
underground mines. MSHA does
[[Page 36795]]
not expect small underground mines to be affected as these operations
would rarely, if ever, experience the need to leave the blast site
unattended when explosive materials or initiating systems are present.
Sand and gravel operations and mills rarely blast, and then the blast
site is likely to be a single charge, such as that needed to break a
large boulder.
Although the scope of this requirement is expanded from when
loading is suspended or firing is delayed to apply whenever explosive
materials or initiating systems are present at the blast site, MSHA
experience is that it is common industry practice to have the blast
site attended when explosive materials or initiating systems are
delivered and while loading is in progress. Final Secs. 56/57.6306(a)
address blast site security when explosives are being used. When
explosive materials or initiating systems are not being used, other
MSHA standards require that they be secured in magazines or other
appropriate explosive materials storage facilities. On occasion,
however, circumstances, such as delays in loading or firing, may
require the blast site to be left unattended when explosive materials
are present. In such situations, MSHA expects that mine operators would
choose to barricade and post with warning signs, such as ``Danger,''
``Explosives,'' or ``Keep Out,'' or flag the blast site against
unauthorized entry, rather than attend the blast site. One commenter
stated that the proposal would result in additional costs to purchase
warning signs to barricade, post, or flag the blast site. As this is
required under existing Secs. 56/57.6313, no new costs are required for
compliance with the final rule. MSHA, therefore, has not included an
additional cost for this provision in the Regulatory Flexibility
Analysis.
V. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-
4, requires each Federal agency to assess the effects of Federal
regulatory actions on state, local, and tribal governments and the
private sector, other than to the extent such actions merely
incorporate requirements specifically set forth in a statute. The
Agency has determined that this final rule does not impose an unfunded
mandate on state and local governments or tribal entities.
List of Subjects in 30 CFR Parts 56 and 57
Explosives, Incorporation by reference, Mine safety and health,
Reporting and recordkeeping requirements.
Dated: June 26, 1996.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
Parts 56 and 57, subchapter N, chapter I, title 30 of the Code of
Federal Regulations are amended as follows:
PART 56--[AMENDED]
1. The authority citation for part 56 is revised to read as
follows:
Authority: 30 U.S.C. 811.
2. Effective September 10, 1996, subpart E of part 56 is revised to
read as follows:
Subpart E--Explosives
Sec.
56.6000 Definitions.
STORAGE
56.6100 Separation of stored explosive material.
56.6101 Areas around explosive material storage facilities.
56.6102 Explosive material storage practices.
56.6130 Explosive material storage facilities.
56.6131 Location of explosive material storage facilities.
56.6132 Magazine requirements.
56.6133 Powder chests.
TRANSPORTATION
56.6200 Delivery to storage or blast site areas.
56.6201 Separation of transported explosive material.
56.6202 Vehicles.
56.6203 Locomotives.
56.6204 Hoists.
56.6205 Conveying explosives by hand.
USE
56.6300 Control of blasting operations.
56.6301 Blasthole obstruction check.
56.6302 Separation of explosive material.
56.6303 Initiation preparation.
56.6304 Primer protection.
56.6305 Unused explosive material.
56.6306 Loading, blasting, and security.
56.6307 Drill stem loading.
56.6308 Initiation systems.
56.6309 Fuel oil requirements for ANFO.
56.6310 Misfire waiting period.
56.6311 Handling of misfires.
56.6312 Secondary blasting.
ELECTRIC BLASTING
56.6400 Compatibility of electric detonators.
56.6401 Shunting.
56.6402 Deenergized circuits near detonators.
56.6403 Branch circuits.
56.6404 Separation of blasting circuits from power source.
56.6405 Firing devices.
56.6406 Duration of current flow.
56.6407 Circuit testing.
NONELECTRIC BLASTING
56.6500 Damaged initiating material.
56.6501 Nonelectric initiation systems.
56.6502 Safety fuse.
EXTRANEOUS ELECTRICITY
56.6600 Loading practices.
56.6601 Grounding.
56.6602 Static electricity dissipation during loading.
56.6603 Air gap.
56.6604 Precautions during storms.
56.6605 Isolation of blasting circuits.
EQUIPMENT/TOOLS
56.6700 Nonsparking tools.
56.6701 Tamping and loading pole requirements.
MAINTENANCE
56.6800 Storage facilities.
56.6801 Vehicle repair.
56.6802 Bulk delivery vehicles.
56.6803 Blasting lines.
GENERAL REQUIREMENTS
56.6900 Damaged or deteriorated explosive material.
56.6901 Black powder.
56.6902 Excessive temperatures.
56.6903 Burning explosive material.
56.6904 Smoking and open flames.
57.6905 Protection of explosive material.
Subpart E--Explosives
Sec. 56.6000 Definitions.
The following definitions apply in this subpart.
Attended. Presence of an individual or continuous monitoring to
prevent unauthorized entry or access.
Barrier. A material object, or objects that separates, keeps apart,
or demarcates in a conspicuous manner such as cones, a warning sign, or
tape.
Blast area. The area in which concussion (shock wave), flying
material, or gases from an explosion may cause injury to persons. In
determining the blast area, the following factors shall be considered:
(1) Geology or material to be blasted.
(2) Blast pattern.
(3) Burden, depth, diameter, and angle of the holes.
(4) Blasting experience of the mine.
(5) Delay system, powder factor, and pounds per delay.
(6) Type and amount of explosive material.
(7) Type and amount of stemming.
Blast site. The area where explosive material is handled during
loading, including the perimeter formed by the loaded blastholes and 50
feet (15.2 meters) in all directions from loaded holes. A minimum
distance of 30 feet (9.1 meters) may replace the 50-foot (15.2-meter)
requirement if the perimeter of loaded holes is demarcated with a
barrier. The 50-foot (15.2-meter) and alternative 30-foot (9.1-meter)
[[Page 36796]]
requirements also apply in all directions along the full depth of the
hole.
Blasting agent. Any substance classified as a blasting agent by the
Department of Transportation in 49 CFR 173.114a(a). This document is
available at any MSHA Metal and Nonmetal Safety and Health district
office.
Detonating cord. A flexible cord containing a center core of high
explosives which may be used to initiate other explosives.
Detonator. Any device containing a detonating charge used to
initiate an explosive. These devices include electric or nonelectric
instantaneous or delay blasting caps and delay connectors. The term
``detonator'' does not include detonating cord. Detonators may be
either ``Class A'' detonators or ``Class C'' detonators, as classified
by the Department of Transportation in 49 CFR 173.53, and 173.100. This
document is available at any MSHA Metal and Nonmetal Safety and Health
district office.
Emulsion. An explosive material containing substantial amounts of
oxidizers dissolved in water droplets, surrounded by an immiscible
fuel.
Explosive. Any substance classified as an explosive by the
Department of Transportation in 49 CFR 173.53, 173.88, and 173.100.
This document is available at any MSHA Metal and Nonmetal Safety and
Health district office.
Explosive material. Explosives, blasting agents, and detonators.
Flash point. The minimum temperature at which sufficient vapor is
released by a liquid to form a flammable vapor-air mixture near the
surface of the liquid.
Igniter cord. A fuse that burns progressively along its length with
an external flame at the zone of burning, used for lighting a series of
safety fuses in a desired sequence.
Laminated partition. A partition composed of the following material
and minimum nominal dimensions: \1/2\-inch-thick plywood, \1/2\-inch-
thick gypsum wallboard, \1/8\-inch-thick low carbon steel, and \1/4\-
inch-thick plywood, bonded together in that order (IME-22 Box). A
laminated partition also includes alternative construction materials
described in the Institute of Makers of Explosives (IME) Safety Library
Publication No. 22, ``Recommendations for the Safe Transportation of
Detonators in a Vehicle with other Explosive Materials,'' (May 1993),
and the ``Generic Loading Guide for the IME-22 Container,'' (October
1993). This incorporation by reference has been approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Copies are available at MSHA, 4015 Wilson Boulevard,
Room 728, Arlington, VA 22203, and at all Metal and Nonmetal Mine
Safety and Health district offices, or available for inspection at the
Office of the Federal Register, 800 North Capitol Street, NW., 7th
Floor, suite 700, Washington, DC.
Loading. Placing explosive material either in a blasthole or
against the material to be blasted.
Magazine. A bullet-resistant, theft-resistant, fire-resistant,
weather-resistant, ventilated facility for the storage of explosives
and detonators (BATF Type 1 or Type 2 facility).
Misfire. The complete or partial failure of explosive material to
detonate as planned. The term also is used to describe the explosive
material itself that has failed to detonate.
Multipurpose dry-chemical fire extinguisher. An extinguisher having
a rating of at least 2-A:10-B:C and containing a nominal 4.5 pounds or
more of dry-chemical agent.
Primer. A unit, package, or cartridge of explosives which contains
a detonator and is used to initiate other explosives or blasting
agents.
Safety switch. A switch that provides shunt protection in blasting
circuits between the blast site and the switch used to connect a power
source to the blasting circuit.
Slurry. An explosive material containing substantial portions of a
liquid, oxidizers, and fuel, plus a thickener.
Storage facility. The entire class of structures used to store
explosive materials. A ``storage facility'' used to store blasting
agents corresponds to a BATF Type 4 or 5 storage facility.
Water gel. An explosive material containing substantial portions of
water, oxidizers, and fuel, plus a cross-linking agent.
STORAGE
Sec. 56.6100 Separation of stored explosive material.
(a) Detonators shall not be stored in the same magazine with other
explosive material.
(b) When stored in the same magazine, blasting agents shall be
separated from explosives, safety fuse, and detonating cord to prevent
contamination.
Sec. 56.6101 Areas around explosive material storage facilities.
(a) Areas surrounding storage facilities for explosive material
shall be clear of rubbish, brush, dry grass, and trees for 25 feet in
all directions, except that live trees 10 feet or taller need not be
removed.
(b) Other combustibles shall not be stored or allowed to accumulate
within 50 feet of explosive material. Combustible liquids shall be
stored in a manner that ensures drainage will occur away from the
explosive material storage facility in case of tank rupture.
Sec. 56.6102 Explosive material storage practices.
(a) Explosive material shall be--
(1) Stored in a manner to facilitate use of oldest stocks first;
(2) Stored according to brand and grade in such a manner as to
facilitate identification; and
(3) Stacked in a stable manner but not more than 8 feet high.
(b) Explosives and detonators shall be stored in closed
nonconductive containers except that nonelectric detonating devices may
be stored on nonconductive racks provided the case-insert instructions
and the date-plant-shift code are maintained with the product.
Sec. 56.6130 Explosive material storage facilities.
(a) Detonators and explosives shall be stored in magazines.
(b) Packaged blasting agents shall be stored in a magazine or other
facility which is ventilated to prevent dampness and excessive heating,
weather-resistant, and locked or attended. Drop trailers do not have to
be ventilated if they are currently licensed by the Federal, State, or
local authorities for over-the-road use. Facilities other than
magazines used to store blasting agents shall contain only blasting
agents.
(c) Bulk blasting agents shall be stored in weather-resistant bins
or tanks which are locked, attended, or otherwise inaccessible to
unauthorized entry.
(d) Facilities, bins or tanks shall be posted with the appropriate
United States Department of Transportation placards or other
appropriate warning signs that indicate the contents and are visible
from each approach.
Sec. 56.6131 Location of explosive material storage facilities.
(a) Storage facilities for any explosive material shall be--
(1) Located so that the forces generated by a storage facility
explosion will not create a hazard to occupants in mine buildings and
will not damage dams or electric substations; and
(2) Detached structures located outside the blast area and a
sufficient distance from powerlines so that the powerlines, if damaged,
would not contact the magazines.
[[Page 36797]]
(b) Operators should also be aware of regulations affecting storage
facilities in 27 CFR part 55, in particular, 27 CFR 55.218 and 55.220.
This document is available at any MSHA Metal and Nonmetal Safety and
Health district office.
Sec. 56.6132 Magazine requirements.
(a) Magazines shall be--
(1) Structurally sound;
(2) Noncombustible or the exterior covered with fire-resistant
material;
(3) Bullet resistant;
(4) Made of nonsparking material on the inside;
(5) Ventilated to control dampness and excessive heating within the
magazine;
(6) Posted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that
indicate the contents and are visible from each approach, so located
that a bullet passing through any of the signs will not strike the
magazine;
(7) Kept clean and dry inside;
(8) Unlighted or lighted by devices that are specifically designed
for use in magazines and which do not create a fire or explosion
hazard;
(9) Unheated or heated only with devices that do not create a fire
or explosion hazard;
(10) Locked when unattended; and
(11) Used exclusively for the storage of explosive material except
for essential nonsparking equipment used for the operation of the
magazine.
(b) Metal magazines shall be equipped with electrical bonding
connections between all conductive portions so the entire structure is
at the same electrical potential. Suitable electrical bonding methods
include welding, riveting, or the use of securely tightened bolts where
individual metal portions are joined. Conductive portions of nonmetal
magazines shall be grounded.
(c) Electrical switches and outlets shall be located on the outside
of the magazine.
Sec. 56.6133 Powder chests.
(a) Powder chests (day boxes) shall be--
(1) Structurally sound, weather-resistant, equipped with a lid or
cover, and with only nonsparking material on the inside;
(2) Posted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that
indicate the contents and are visible from each approach;
(3) Located out of the blast area once loading has been completed;
(4) Locked or attended when containing explosive material; and
(5) Emptied at the end of each shift with the contents returned to
a magazine or other storage facility, or attended.
(b) Detonators shall be kept in chests separate from explosives or
blasting agents, unless separated by 4-inches of hardwood or
equivalent, or a laminated partition. When a laminated partition is
used, operators must follow the provisions of the Institute of Makers
of Explosives (IME) Safety Library Publication No. 22,
``Recommendations for the Safe Transportation of Detonators in a
Vehicle with other Explosive Materials,'' (May 1993), and the ``Generic
Loading Guide for the IME-22 Container,'' (October 1993). This
incorporation by reference has been approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies are available at MSHA, 4015 Wilson Boulevard, Room 728,
Arlington, VA 22203, and at all Metal and Nonmetal Mine Safety and
Health district offices, or available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., 7th Floor, suite
700, Washington, DC.
TRANSPORTATION
Sec. 56.6200 Delivery to storage or blast site areas.
Explosive material shall be transported without undue delay to the
storage area or blast site.
Sec. 56.6201 Separation of transported explosive material.
Detonators shall not be transported on the same vehicle or
conveyance with other explosives except as follows:
(a) Detonators in quantities of more than 1000 may be transported
in a vehicle or conveyance with explosives or blasting agents provided
the detonators are--
(1) Maintained in the original packaging as shipped from the
manufacturer; and
(2) Separated from explosives or blasting agents by 4-inches of
hardwood or equivalent, or a laminated partition. The hardwood or
equivalent shall be fastened to the vehicle or conveyance. When a
laminated partition is used, operators must follow the provisions of
the Institute of Makers of Explosives (IME) Safety Library Publication
No.22, ``Recommendations for the Safe Transportation of Detonators in a
Vehicle with other Explosive Materials,'' (May 1993), and the ``Generic
Loading Guide for the IME-22 Container,'' (October 1993). This
incorporation by reference has been approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies are available at MSHA, 4015 Wilson Boulevard, Room 728,
Arlington, VA 22203, and at all Metal and Nonmetal Mine Safety and
Health district offices, or available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., 7th Floor, suite
700, Washington, DC.
(b) Detonators in quantities of 1000 or fewer may be transported
with explosives or blasting agents provided the detonators are--
(1) Kept in closed containers; and
(2) Separated from explosives or blasting agents by 4-inches of
hardwood or equivalent, or a laminated partition. The hardwood or
equivalent shall be fastened to the vehicle or conveyance. When a
laminated partition is used, operators must follow the provisions of
IME Safety Library Publication No. 22, ``Recommendations for the Safe
Transportation of Detonators in a Vehicle with other Explosive
Materials,'' (May 1993), and the ``Generic Loading Guide for the IME-22
Container,'' (October 1993). This incorporation by reference has been
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies are available at MSHA, 4015
Wilson Boulevard, Room 728, Arlington, VA 22203, and at all Metal and
Nonmetal Mine Safety and Health district offices, or available for
inspection at the Office of the Federal Register, 800 North Capitol
Street, NW., 7th Floor, suite 700, Washington, DC.
Sec. 56.6202 Vehicles.
(a) Vehicles containing explosive material shall be--
(1) Maintained in good condition and shall comply with the
requirements of subpart M of this part;
(2) Equipped with sides and enclosures higher than the explosive
material being transported or have the explosive material secured to a
nonconductive pallet;
(3) Equipped with a cargo space that shall contain the explosive
material (passenger areas shall not be considered cargo space);
(4) Equipped with at least two multipurpose dry-chemical fire
extinguishers or one such extinguisher and an automatic fire
suppression system;
(5) Posted with warning signs that indicate the contents and are
visible from each approach;
(6) Occupied only by persons necessary for handling the explosive
material;
[[Page 36798]]
(7) Attended or the cargo compartment locked, except when parked at
the blast site and loading is in progress; and
(8) Secured while parked by having--
(i) The brakes set;
(ii) The wheels chocked if movement could occur; and
(iii) The engine shut off unless powering a device being used in
the loading operation.
(b) Vehicles containing explosives shall have--
(1) No sparking material exposed in the cargo space; and
(2) Only properly secured nonsparking equipment in the cargo space
with the explosives.
(c) Vehicles used for dispensing bulk explosive material shall--
(1) Have no zinc or copper exposed in the cargo space; and
(2) Provide any enclosed screw-type conveyors with protection
against internal pressure and frictional heat.
Sec. 56.6203 Locomotives.
Explosive material shall not be transported on a locomotive. When
explosive material is hauled by trolley locomotive, covered,
electrically insulated cars shall be used.
Sec. 56.6204 Hoists.
(a) Before explosive material is transported in hoist conveyances,
the hoist operator shall be notified.
(b) Explosive material transported in hoist conveyances shall be
placed within a container which prevents shifting of the cargo that
could cause detonation of the container by impact or by sparks. The
manufacturer's container may be used if secured to a nonconductive
pallet. When explosives are transported, they shall be secured so as
not to contact any sparking material.
(c) No explosive material shall be transported during a mantrip.
Sec. 56.6205 Conveying explosives by hand.
Closed, nonconductive containers shall be used to carry explosives
and detonators to and from blast sites. Separate containers shall be
used for explosives and detonators.
USE
Sec. 56.6300 Control of blasting operations.
(a) Only persons trained and experienced in the handling and use of
explosive material shall direct blasting operations and related
activities.
(b) Trainees and inexperienced persons shall work only in the
immediate presence of persons trained and experienced in the handling
and use of explosive material.
Sec. 56.6301 Blasthole obstruction check.
Before loading, blastholes shall be checked and, wherever possible,
cleared of obstructions.
Sec. 56.6302 Separation of explosive material.
Explosives and blasting agents shall be kept separated from
detonators until loading begins.
Sec. 56.6303 Initiation preparation.
(a) Primers shall be made up only at the time of use and as close
to the blast site as conditions allow.
(b) Primers shall be prepared with the detonator contained securely
and completely within the explosive or contained securely and
appropriately for its design in the tunnel or cap well.
(c) When using detonating cord to initiate another explosive, a
connection shall be prepared with the detonating cord threaded through,
attached securely to, or otherwise in contact with the explosive.
Sec. 56.6304 Primer protection.
(a) Tamping shall not be done directly on a primer.
(b) Rigid cartridges of explosives or blasting agents that are 4
inches (100 millimeters) in diameter or larger shall not be dropped on
the primer except where the blasthole contains sufficient depth of
water to protect the primer from impact. Slit packages of prill, water
gel, or emulsions are not considered rigid cartridges and may be drop
loaded.
Sec. 56.6305 Unused explosive material.
Unused explosive material shall be moved to a protected location as
soon as practical after loading operations are completed.
Sec. 56.6306 Loading, blasting, and security.
(a) When explosive materials or initiating systems are brought to
the blast site, the blast site shall be attended; barricaded and posted
with warning signs, such as ``Danger,'' ``Explosives,'' or ``Keep
Out;'' or flagged against unauthorized entry.
(b) Vehicles and equipment shall not be driven over explosive
material or initiating systems in a manner which could contact the
material or systems, or create other hazards.
(c) Once loading begins, the only activities permitted within the
blast site shall be those activities directly related to the blasting
operation and the activities of surveying, stemming, sampling of
geology, and reopening of holes, provided that reasonable care is
exercised. Haulage activity is permitted near the base of a highwall
being loaded or awaiting firing, provided no other haulage access
exists.
(d) Loading and blasting shall be conducted in a manner designed to
facilitate a continuous process, with the blast fired as soon as
possible following the completion of loading. If blasting a loaded
round may be delayed for more than 72 hours, the operator shall notify
the appropriate MSHA district office.
(e) In electric blasting prior to connecting to the power source,
and in nonelectric blasting prior to attaching an initiating device,
all persons shall leave the blast area except persons in a blasting
shelter or other location that protects them from concussion (shock
wave), flying material, and gases.
(f) Before firing a blast--
(1) Ample warning shall be given to allow all persons to be
evacuated;
(2) Clear exit routes shall be provided for persons firing the
round; and
(3) All access routes to the blast area shall be guarded or
barricaded to prevent the passage of persons or vehicles.
(g) Work shall not resume in the blast area until a post-blast
examination addressing potential blast-related hazards has been
conducted by a person with the ability and experience to perform the
examination.
Sec. 56.6307 Drill stem loading.
Explosive material shall not be loaded into blastholes with drill
stem equipment or other devices that could be extracted while
containing explosive material. The use of loading hose, collar sleeves,
or collar pipes is permitted.
Sec. 56.6308 Initiation systems.
Initiation systems shall be used in accordance with the
manufacturer's instructions.
Sec. 56.6309 Fuel oil requirements for ANFO.
(a) Liquid hydrocarbon fuels with flash points lower than that of
No. 2 diesel oil (125 deg.F) shall not be used to prepare ammonium
nitrate-fuel oil, except that diesel fuels with flash points no lower
than 100 deg.F may be used at ambient air temperatures below 45
deg.F.
(b) Waste oil, including crankcase oil, shall not be used to
prepare ammonium nitrate-fuel oil.
Sec. 56.6310 Misfire waiting period.
When a misfire is suspected, persons shall not enter the blast
area--
(a) For 30 minutes if safety fuse and blasting caps are used; or
(b) For 15 minutes if any other type detonators are used.
Sec. 56.6311 Handling of misfires.
(a) Faces and muck piles shall be examined for misfires after each
blasting operation.
[[Page 36799]]
(b) Only work necessary to remove a misfire and protect the safety
of miners engaged in the removal shall be permitted in the affected
area until the misfire is disposed of in a safe manner.
(c) When a misfire cannot be disposed of safely, each approach to
the area affected by the misfire shall be posted with a warning sign at
a conspicuous location to prohibit entry, and the condition shall be
reported immediately to mine management.
(d) Misfires occurring during the shift shall be reported to mine
management not later than the end of the shift.
Sec. 56.6312 Secondary blasting.
Secondary blasts fired at the same time in the same work area shall
be initiated from one source.
ELECTRIC BLASTING
Sec. 56.6400 Compatibility of electric detonators.
All electric detonators to be fired in a round shall be from the
same manufacturer and shall have similar electrical firing
characteristics.
Sec. 56.6401 Shunting.
Except during testing--
(a) Electric detonators shall be kept shunted until connected to
the blasting line or wired into a blasting round;
(b) Wired rounds shall be kept shunted until connected to the
blasting line; and
(c) Blasting lines shall be kept shunted until immediately before
blasting.
Sec. 56.6402 Deenergized circuits near detonators.
Electrical distribution circuits within 50 feet of electric
detonators at the blast site shall be deenergized. Such circuits need
not be deenergized between 25 to 50 feet of the electric detonators if
stray current tests, conducted as frequently as necessary, indicate a
maximum stray current of less than 0.05 amperes through a 1-ohm
resistor as measured at the blast site.
Sec. 56.6403 Branch circuits.
(a) If electric blasting includes the use of branch circuits, each
branch shall be equipped with a safety switch or equivalent method to
isolate the circuits to be used.
(b) At least one safety switch or equivalent method of protection
shall be located outside the blast area and shall be in the open
position until persons are withdrawn.
Sec. 56.6404 Separation of blasting circuits from power source.
(a) Switches used to connect the power source to a blasting circuit
shall be locked in the open position except when closed to fire the
blast.
(b) Lead wires shall not be connected to the blasting switch until
the shot is ready to be fired.
Sec. 56.6405 Firing devices.
(a) Power sources shall be capable of delivering sufficient current
to energize all electric detonators to be fired with the type of
circuits used. Storage or dry cell batteries are not permitted as power
sources.
(b) Blasting machines shall be tested, repaired, and maintained in
accordance with manufacturer's instructions.
(c) Only the blaster shall have the key or other control to an
electrical firing device.
Sec. 56.6406 Duration of current flow.
If any part of a blast is connected in parallel and is to be
initiated from powerlines or lighting circuits, the time of current
flow shall be limited to a maximum of 25 milliseconds. This can be
accomplished by incorporating an arcing control device in the blasting
circuit or by interrupting the circuit with an explosive device
attached to one or both lead lines and initiated by a 25-millisecond
delay electric detonator.
Sec. 56.6407 Circuit testing.
A blasting galvanometer or other instrument designed for testing
blasting circuits shall be used to test each of the following:
(a) Continuity of each electric detonator in the blasthole prior to
stemming and connection to the blasting line.
(b) Resistance of individual series or the resistance of multiple
balanced series to be connected in parallel prior to their connection
to the blasting line.
(c) Continuity of blasting lines prior to the connection of
electric detonator series.
(d) Total blasting circuit resistance prior to connection to the
power source.
NONELECTRIC BLASTING
Sec. 56.6500 Damaged initiating material.
A visual check of the completed circuit shall be made to ensure
that the components are properly aligned and connected. Safety fuse,
igniter cord, detonating cord, shock or gas tubing, and similar
material which is kinked, bent sharply, or damaged shall not be used.
Sec. 56.6501 Nonelectric initiation systems.
(a) When the nonelectric initiation system uses shock tube--
(1) Connections with other initiation devices shall be secured in a
manner which provides for uninterrupted propagation;
(2) Factory-made units shall be used as assembled and shall not be
cut except that a single splice is permitted on the lead-in trunkline
during dry conditions; and
(3) Connections between blastholes shall not be made until
immediately prior to clearing the blast site when surface delay
detonators are used.
(b) When the nonelectric initiation system uses detonating cord--
(1) The line of detonating cord extending out of a blasthole shall
be cut from the supply spool immediately after the attached explosive
is correctly positioned in the hole;
(2) In multiple row blasts, the trunkline layout shall be designed
so that the detonation can reach each blasthole from at least two
directions;
(3) Connections shall be tight and kept at right angles to the
trunkline;
(4) Detonators shall be attached securely to the side of the
detonating cord and pointed in the direction in which detonation is to
proceed;
(5) Connections between blastholes shall not be made until
immediately prior to clearing the blast site when surface delay
detonators are used; and
(6) Lead-in lines shall be manually unreeled if connected to the
trunklines at the blast site.
(c) When the nonelectric initiation system uses gas tube,
continuity of the circuit shall be tested prior to blasting.
Sec. 56.6502 Safety fuse.
(a) The burning rate of each spool of safety fuse to be used shall
be measured, posted in locations which will be conspicuous to safety
fuse users, and brought to the attention of all persons involved with
the blasting operation.
(b) When firing with safety fuse ignited individually using
handheld lighters, the safety fuse shall be of lengths which provide at
least the minimum burning time for a particular size round, as
specified in the following table:
Table E-1.--Safety Fuse--Minimum Burning Time
------------------------------------------------------------------------
Number of holes in a round Minimum burning time
------------------------------------------------------------------------
1...................................... 2 min.\1\
2-5.................................... 2 min. 40 sec.
6-10................................... 3 min. 20 sec.
11 to 15............................... 5 min.
------------------------------------------------------------------------
\1\ For example, at least a 36-inch length of 40-second-per-foot safety
fuse or at least a 48-inch length of 30-second-per-foot safety fuse
would have to be used to allow sufficient time to evacuate the area.
[[Page 36800]]
(c) Where flyrock might damage exposed safety fuse, the blast shall
be timed so that all safety fuses are burning within the blastholes
before any blasthole detonates.
(d) Fuse shall be cut and capped in dry locations.
(e) Blasting caps shall be crimped to fuse only with implements
designed for that purpose.
(f) Safety fuse shall be ignited only after the primer and the
explosive material are securely in place.
(g) Safety fuse shall be ignited only with devices designed for
that purpose. Carbide lights, liquefied petroleum gas torches, and
cigarette lighters shall not be used to light safety fuse.
(h) At least two persons shall be present when lighting safety
fuse, and no one shall light more than 15 individual fuses. If more
than 15 holes per person are to be fired, electric initiation systems,
igniter cord and connectors, or other nonelectric initiation systems
shall be used.
EXTRANEOUS ELECTRICITY
Sec. 56.6600 Loading practices.
If extraneous electricity is suspected in an area where electric
detonators are used, loading shall be suspended until tests determine
that stray current does not exceed 0.05 amperes through a 1-ohm
resister when measured at the location of the electric detonators. If
greater levels of extraneous electricity are found, the source shall be
determined and no loading shall take place until the condition is
corrected.
Sec. 56.6601 Grounding.
Electric blasting circuits, including powerline sources when used,
shall not be grounded.
Sec. 56.6602 Static electricity dissipation during loading.
When explosive material is loaded pneumatically into a blasthole in
a manner that generates a static electricity hazard--
(a) An evaluation of the potential static electricity hazard shall
be made and any hazard shall be eliminated before loading begins;
(b) The loading hose shall be of a semiconductive type, have a
total of not more than 2 megohms of resistance over its entire length
and not less than 1000 ohms of resistance per foot;
(c) Wire-countered hoses shall not be used;
(d) Conductive parts of the loading equipment shall be bonded and
grounded and grounds shall not be made to other potential sources of
extraneous elec
FR Doc. 96-16861 Safety Standards for Explosives at Metal and Nonmetal Mines
tricity; and
(e) Plastic tubes shall not be used as hole liners if the hole
contains an electric detonator.
Sec. 56.6603 Air gap.
At least a 15-foot air gap shall be provided between the blasting
circuit and the electric power source.
Sec. 56.6604 Precautions during storms.
During the approach and progress of an electrical storm, blasting
operations shall be suspended and persons withdrawn from the blast area
or to a safe location.
Sec. 56.6605 Isolation of blasting circuits.
Lead wires and blasting lines shall be isolated and insulated from
power conductors, pipelines, and railroad tracks, and shall be
protected from sources of stray or static electricity. Blasting
circuits shall be protected from any contact between firing lines and
overhead powerlines which could result from the force of a blast.
EQUIPMENT/TOOLS
Sec. 56.6700 Nonsparking tools.
Only nonsparking tools shall be used to open containers of
explosive material or to punch holes in explosive cartridges.
Sec. 56.6701 Tamping and loading pole requirements.
Tamping and loading poles shall be of wood or other nonconductive,
nonsparking material. Couplings for poles shall be nonsparking.
MAINTENANCE
Sec. 56.6800 Storage facilities.
When repair work which could produce a spark or flame is to be
performed on a storage facility--
(a) The explosive material shall be moved to another facility, or
moved at least 50 feet from the repair activity and monitored; and
(b) The facility shall be cleaned to prevent accidental detonation.
Sec. 56.6801 Vehicle repair.
Vehicles containing explosive material and oxidizers shall not be
taken into a repair garage or shop.
Sec. 56.6802 Bulk delivery vehicles.
No welding or cutting shall be performed on a bulk delivery vehicle
until the vehicle has been washed down and all explosive material has
been removed. Before welding or cutting on a hollow shaft, the shaft
shall be thoroughly cleaned inside and out and vented with a minimum
\1/2\-inch diameter opening to allow for sufficient ventilation.
Sec. 56.6803 Blasting lines.
Permanent blasting lines shall be properly supported. All blasting
lines shall be insulated and kept in good repair.
GENERAL REQUIREMENTS
Sec. 56.6900 Damaged or deteriorated explosive material.
Damaged or deteriorated explosive material shall be disposed of in
a safe manner in accordance with the instructions of the manufacturer.
Sec. 56.6901 Black powder.
(a) Black powder shall be used for blasting only when a desired
result cannot be obtained with another type of explosive, such as in
quarrying certain types of dimension stone.
(b) Containers of black powder shall be--
(1) Nonsparking;
(2) Kept in a totally enclosed cargo space while being transported
by a vehicle;
(3) Securely closed at all times when--
(i) Within 50 feet of any magazine or open flame;
(ii) Within any building in which a fuel-fired or exposed-element
electric heater is operating; or
(iii) In an area where electrical or incandescent-particle sparks
could result in powder ignition; and
(4) Opened only when the powder is being transferred to a blasthole
or another container and only in locations not listed in paragraph
(b)(3) of this section.
(c) Black powder shall be transferred from containers only by
pouring.
(d) Spills shall be cleaned up promptly with nonsparking equipment.
Contaminated powder shall be put into a container of water and shall be
disposed of promptly after the granules have disintegrated, or the
spill area shall be flushed promptly with water until the granules have
disintegrated completely.
(e) Misfires shall be disposed of by washing the stemming and
powder charge from the blasthole, and removing and disposing of the
initiator in accordance with the requirement for damaged explosives.
(f) Holes shall not be reloaded for at least 12 hours when the
blastholes have failed to break as planned.
Sec. 56.6902 Excessive temperatures.
(a) Where heat could cause premature detonation, explosive material
shall not be loaded into hot areas, such as kilns or sprung holes.
(b) When blasting sulfide ores where hot holes occur that may react
with
[[Page 36801]]
explosive material in blastholes, operators shall--
(1) Measure an appropriate number of blasthole temperatures in
order to assess the specific mine conditions prior to the introduction
of explosive material;
(2) Limit the time between the completion of loading and the
initiation of the blast to no more than 12 hours; and
(3) Take other special precautions to address the specific
conditions at the mine to prevent premature detonation.
Sec. 56.6903 Burning explosive material.
If explosive material is suspected of burning at the blast site,
persons shall be evacuated from the endangered area and shall not
return for at least one hour after the burning or suspected burning has
stopped.
Sec. 56.6904 Smoking and open flames.
Smoking and use of open flames shall not be permitted within 50
feet of explosive material except when separated by permanent
noncombustible barriers. This standard does not apply to devices
designed to ignite safety fuse or to heating devices which do not
create a fire or explosion hazard.
Sec. 56.6905 Protection of explosive material.
(a) Explosive material shall be protected from temperatures in
excess of 150 degrees Fahrenheit.
(b) Explosive material shall be protected from impact, except for
tamping and dropping during loading.
PART 57--[AMENDED]
1. The authority citation for part 57 is revised to read as
follows:
Authority: 30 U.S.C. 811.
2. Effective September 10, 1996, subpart E of part 57 is revised to
read as follows:
Subpart E--Explosives
Sec.
57.6000 Definitions.
STORAGE--SURFACE AND UNDERGROUND
57.6100 Separation of stored explosive material.
57.6101 Areas around explosive material storage facilities.
57.6102 Explosive material storage practices.
STORAGE--SURFACE ONLY
57.6130 Explosive material storage facilities.
57.6131 Location of explosive material storage facilities.
57.6132 Magazine requirements.
57.6133 Powder chests.
STORAGE--UNDERGROUND ONLY
57.6160 Main facilities.
57.6161 Auxiliary facilities.
TRANSPORTATION--SURFACE AND UNDERGROUND
57.6200 Delivery to storage or blast site areas.
57.6201 Separation of transported explosive material.
57.6202 Vehicles.
57.6203 Locomotives.
57.6204 Hoists.
57.6205 Conveying explosives by hand.
USE--SURFACE AND UNDERGROUND
57.6300 Control of blasting operations.
57.6301 Blasthole obstruction check.
57.6302 Separation of explosive material.
57.6303 Initiation preparation.
57.6304 Primer protection.
57.6305 Unused explosive material.
57.6306 Loading, blasting, and security.
57.6307 Drill stem loading.
57.6308 Initiation systems.
57.6309 Fuel oil requirements for ANFO.
57.6310 Misfire waiting period.
57.6311 Handling of misfires.
57.6312 Secondary blasting.
ELECTRIC BLASTING--SURFACE AND UNDERGROUND
57.6400 Compatibility of electric detonators.
57.6401 Shunting.
57.6402 Deenergized circuits near detonators.
57.6403 Branch circuits.
57.6404 Separation of blasting circuits from power source.
57.6405 Firing devices.
57.6406 Duration of current flow.
57.6407 Circuit testing.
NONELECTRIC BLASTING--SURFACE AND UNDERGROUND
57.6500 Damaged initiating material.
57.6501 Nonelectric initiation systems.
57.6502 Safety fuse.
EXTRANEOUS ELECTRICITY--SURFACE AND UNDERGROUND
57.6600 Loading practices.
57.6601 Grounding.
57.6602 Static electricity dissipation during loading.
57.6603 Air gap.
57.6604 Precautions during storms.
57.6605 Isolation of blasting circuits.
EQUIPMENT/TOOLS--SURFACE AND UNDERGROUND
57.6700 Nonsparking tools.
57.6701 Tamping and loading pole requirements.
MAINTENANCE--SURFACE AND UNDERGROUND
57.6800 Storage facilities.
57.6801 Vehicle repair.
57.6802 Bulk delivery vehicles.
57.6803 Blasting lines.
GENERAL REQUIREMENTS--SURFACE AND UNDERGROUND
57.6900 Damaged or deteriorated explosive material.
57.6901 Black powder.
57.6902 Excessive temperatures.
57.6903 Burning explosive material.
57.6904 Smoking and open flames.
57.6905 Protection of explosive material.
GENERAL REQUIREMENTS--UNDERGROUND ONLY
57.6960 Mixing of explosive material.
Subpart E--Explosives
Sec. 57.6000 Definitions.
The following definitions apply in this subpart.
Attended. Presence of an individual or continuous monitoring to
prevent unauthorized entry or access. In addition, areas containing
explosive material at underground areas of a mine can be considered
attended when all access to the underground areas of the mine is
secured from unauthorized entry. Vertical shafts shall be considered
secure. Inclined shafts or adits shall be considered secure when locked
at the surface.
Barrier. A material object, or objects that separates, keeps apart,
or demarcates in a conspicuous manner such as cones, a warning sign, or
tape.
Blast area. The area in which concussion (shock wave), flying
material, or gases from an explosion may cause injury to persons. In
determining the blast area, the following factors shall be considered:
(1) Geology or material to be blasted.
(2) Blast pattern.
(3) Burden, depth, diameter, and angle of the holes.
(4) Blasting experience of the mine.
(5) Delay system, powder factor, and pounds per delay.
(6) Type and amount of explosive material.
(7) Type and amount of stemming.
Blast site. The area where explosive material is handled during
loading, including the perimeter formed by the loaded blastholes and 50
feet (15.2 meters) in all directions from loaded holes. A minimum
distance of 30 feet (9.1 meters) may replace the 50-foot (15.2-meter)
requirement if the perimeter of loaded holes is demarcated with a
barrier. The 50-foot (15.2-meter) and alternative 30-foot (9.1-meter)
requirements also apply in all directions along the full depth of the
hole. In underground mines, at least 15 feet (4.6 meters) of solid rib,
pillar, or broken rock can be substituted for the 50-foot (15.2-meter)
distance. In underground mines utilizing a block-caving system or
similar system, at least 6 feet (1.8 meters) of solid rib or pillar,
including concrete reinforcement of at least 10 inches (254
millimeters), with overall dimensions of not less than 6 feet (1.8
meters), may be substituted for the 50-foot (15.2-meter) distance
requirement.
Blasting agent. Any substance classified as a blasting agent by the
Department of Transportation in 49 CFR
[[Page 36802]]
173.114a(a). This document is available at any MSHA Metal and Nonmetal
Safety and Health district office.
Detonating cord. A flexible cord containing a center core of high
explosives which may be used to initiate other explosives.
Detonator. Any device containing a detonating charge used to
initiate an explosive. These devices include electric or nonelectric
instantaneous or delay blasting caps, and delay connectors. The term
``detonator'' does not include detonating cord. Detonators may be
either ``Class A'' detonators or ``Class C'' detonators, as classified
by the Department of Transportation in 49 CFR 173.53, and 173.100. This
document is available at any MSHA Metal and Nonmetal Safety and Health
district office.
Emulsion. An explosive material containing substantial amounts of
oxidizers dissolved in water droplets, surrounded by an immiscible
fuel.
Explosive. Any substance classified as an explosive by the
Department of Transportation in 49 CFR 173.53, 173.88, and 173.100.
This document is available at any MSHA Metal and Nonmetal Safety and
Health district office.
Explosive material. Explosives, blasting agents, and detonators.
Flash point. The minimum temperature at which sufficient vapor is
released by a liquid to form a flammable vapor-air mixture near the
surface of the liquid.
Igniter cord. A fuse that burns progressively along its length with
an external flame at the zone of burning, used for lighting a series of
safety fuses in a desired sequence.
Laminated partition. A partition composed of the following material
and minimum nominal dimensions: \1/2\-inch-thick plywood, \1/2\-inch-
thick gypsum wallboard, \1/8\-inch-thick low carbon steel, and \1/4\-
inch-thick plywood, bonded together in that order (IME-22 Box). A
laminated partition also includes alternative construction materials
described in the Institute of Makers of Explosives (IME) Safety Library
Publication No. 22, ``Recommendations for the Safe Transportation of
Detonators in a Vehicle with other Explosive Materials.'' (May 1993),
and the ``Generic Loading Guide for the IME-22 Container,'' (October
1993). This incorporation by reference has been approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Copies are available at MSHA, 4015 Wilson Boulevard,
Room 728, Arlington, VA 22203, and at all Metal and Nonmetal Mine
Safety and Health district offices, or available for inspection at the
Office of the Federal Register, 800 North Capitol Street NW., 7th
Floor, suite 700, Washington, DC.
Loading. Placing explosive material either in a blasthole or
against the material to be blasted.
Magazine. A bullet-resistant, theft-resistant, fire-resistant,
weather-resistant, ventilated facility for the storage of explosives
and detonators (BATF Type 1 or Type 2 facility).
Misfire. The complete or partial failure of explosive material to
detonate as planned. The term also is used to describe the explosive
material itself that has failed to detonate.
Multipurpose dry-chemical fire extinguisher. An extinguisher having
a rating of at least 2-A:10-B:C and containing a nominal 4.5 pounds or
more of dry-chemical agent.
Primer. A unit, package, or cartridge of explosives which contains
a detonator and is used to initiate other explosives or blasting
agents.
Safety switch. A switch that provides shunt protection in blasting
circuits between the blast site and the switch used to connect a power
source to the blasting circuit.
Slurry. An explosive material containing substantial portions of a
liquid, oxidizers, and fuel, plus a thickener.
Storage facility. The entire class of structures used to store
explosive materials. A ``storage facility'' used to store blasting
agents corresponds to a BATF Type 4 or 5 storage facility.
Water gel. An explosive material containing substantial portions of
water, oxidizers, and fuel, plus a cross-linking agent.
STORAGE--SURFACE AND UNDERGROUND
Sec. 57.6100 Separation of stored explosive material.
(a) Detonators shall not be stored in the same magazine with other
explosive material.
(b) When stored in the same magazine, blasting agents shall be
separated from explosives, safety fuse, and detonating cord to prevent
contamination.
Sec. 57.6101 Areas around explosive material storage facilities.
(a) Areas surrounding storage facilities for explosive material
shall be clear of rubbish, brush, dry grass, and trees for 25 feet in
all directions, except that live trees 10 feet or taller need not be
removed.
(b) Other combustibles shall not be stored or allowed to accumulate
within 50 feet of explosive material. Combustible liquids shall be
stored in a manner that ensures drainage will occur away from the
explosive material storage facility in case of tank rupture.
Sec. 57.6102 Explosive material storage practices.
(a) Explosive material shall be--
(1) Stored in a manner to facilitate use of oldest stocks first;
(2) Stored according to brand and grade in such a manner as to
facilitate identification; and
(3) Stacked in a stable manner but not more than 8 feet high.
(b) Explosives and detonators shall be stored in closed
nonconductive containers except that nonelectric detonating devices may
be stored on nonconductive racks provided the case-insert instructions
and the date-plant-shift code are maintained with the product.
STORAGE--SURFACE ONLY
Sec. 57.6130 Explosive material storage facilities.
(a) Detonators and explosives shall be stored in magazines.
(b) Packaged blasting agents shall be stored in a magazine or other
facility which is ventilated to prevent dampness and excessive heating,
weather-resistant, and locked or attended. Drop trailers do not have to
be ventilated if they are currently licensed by the Federal, State, or
local authorities for over-the-road use. Facilities other than
magazines used to store blasting agents shall contain only blasting
agents.
(c) Bulk blasting agents shall be stored in weather-resistant bins
or tanks which are locked, attended, or otherwise inaccessible to
unauthorized entry.
(d) Facilities, bins or tanks shall be posted with the appropriate
United States Department of Transportation placards or other
appropriate warning signs that indicate the contents and are visible
from each approach.
Sec. 57.6131 Location of explosive material storage facilities.
(a) Storage facilities for any explosive material shall be--
(1) Located so that the forces generated by a storage facility
explosion will not create a hazard to occupants in mine buildings and
will not damage dams or electric substations; and
(2) Detached structures located outside the blast area and a
sufficient distance from powerlines so that the powerlines, if damaged,
would not contact the magazines.
(b) Operators should also be aware of regulations affecting storage
facilities in 27 CFR part 55, in particular, 27 CFR
[[Page 36803]]
55.218 and 55.220. This document is available at any MSHA Metal and
Nonmetal Safety and Health district office.
Sec. 57.6132 Magazine requirements.
(a) Magazines shall be--
(1) Structurally sound;
(2) Noncombustible or the exterior covered with fire-resistant
material;
(3) Bullet resistant;
(4) Made of nonsparking material on the inside;
(5) Ventilated to control dampness and excessive heating within the
magazine;
(6) Posted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that
indicate the contents and are visible from each approach, so located
that a bullet passing through any of the signs will not strike the
magazine;
(7) Kept clean and dry inside;
(8) Unlighted or lighted by devices that are specifically designed
for use in magazines and which do not create a fire or explosion
hazard;
(9) Unheated or heated only with devices that do not create a fire
or explosion hazard;
(10) Locked when unattended; and
(11) Used exclusively for the storage of explosive material except
for essential nonsparking equipment used for the operation of the
magazine.
(b) Metal magazines shall be equipped with electrical bonding
connections between all conductive portions so the entire structure is
at the same electrical potential. Suitable electrical bonding methods
include welding, riveting, or the use of securely tightened bolts where
individual metal portions are joined. Conductive portions of nonmetal
magazines shall be grounded.
(c) Electrical switches and outlets shall be located on the outside
of the magazine.
Sec. 57.6133 Powder chests.
(a) Powder chests (day boxes) shall be--
(1) Structurally sound, weather-resistant, equipped with a lid or
cover, and with only nonsparking material on the inside;
(2) Posted with the appropriate United States Department of
Transportation placards or other appropriate warning signs that
indicate the contents and are visible from each approach;
(3) Located out of the blast area once loading has been completed;
(4) Locked or attended when containing explosive material; and
(5) Emptied at the end of each shift with the contents returned to
a magazine or other storage facility, or attended.
(b) Detonators shall be kept in chests separate from explosives or
blasting agents, unless separated by 4-inches of hardwood or
equivalent, or a laminated partition. When a laminated partition is
used, operators must follow the provisions of the Institute of Makers
of Explosives (IME) Safety Library Publication No. 22, (May 1993),
``Recommendations for the Safe Transportation of Detonators in a
Vehicle with other Explosive Materials,'' (May 1993), and the ``Generic
Loading Guide for the IME-22 Container,'' (October 1993). This
incorporation by reference has been approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies are available at MSHA, 4015 Wilson Boulevard, Room 728,
Arlington, VA 22203, and at all Metal and Nonmetal Mine Safety and
Health district offices, or available for inspection at the Office of
the Federal Register, 800 North Capitol Street NW., 7th Floor, suite
700, Washington, DC.
STORAGE--UNDERGROUND ONLY
Sec. 57.6160 Main facilities.
(a) Main facilities used to store explosive material underground
shall be located--
(1) In stable or supported ground;
(2) So that a fire or explosion in the storage facilities will not
prevent escape from the mine, or cause detonation of the contents of
another storage facility;
(3) Out of the line of blasts, and protected from vehicular
traffic, except that accessing the facility;
(4) At least 200 feet from work places or shafts;
(5) At least 50 feet from electric substations;
(6) A safe distance from trolley wires; and
(7) At least 25 feet from detonator storage facilities.
(b) Main facilities used to store explosive material underground
shall be--
(1) Posted with warning signs that indicate the contents and are
visible from any approach;
(2) Used exclusively for the storage of explosive material and
necessary equipment associated with explosive material storage and
delivery:
(i) Portions of the facility used for the storage of explosives
shall only contain nonsparking material or equipment.
(ii) The blasting agent portion of the facility may be used for the
storage of other necessary equipment;
(3) Kept clean, suitably dry, and orderly;
(4) Provided with unobstructed ventilation openings;
(5) Kept securely locked unless all access to the mine is either
locked or attended; and
(6) Unlighted or lighted only with devices that do not create a
fire or explosion hazard and which are specifically designed for use in
magazines.
(c) Electrical switches and outlets shall be located outside the
facility.
Sec. 57.6161 Auxiliary facilities.
(a) Auxiliary facilities used to store explosive material near work
places shall be wooden, box-type containers equipped with covers or
doors, or facilities constructed or mined-out to provide equivalent
impact resistance and confinement.
(b) The auxiliary facilities shall be--
(1) Constructed of nonsparking material on the inside when used for
the storage of explosives;
(2) Kept clean, suitably dry, and orderly;
(3) Kept in repair;
(4) Located out of the line of blasts so they will not be subjected
to damaging shock or flyrock;
(5) Identified with warning signs or coded to indicate the contents
with markings visible from any approach;
(6) Located at least 15 feet from all haulageways and electrical
equipment, or placed entirely within a mined-out recess in the rib used
exclusively for explosive material;
(7) Filled with no more than a one-week supply of explosive
material;
(8) Separated by at least 25 feet from other facilities used to
store detonators; and
(9) Kept securely locked unless all access to the mine is either
locked or attended.
TRANSPORTATION--SURFACE AND UNDERGROUND
Sec. 57.6200 Delivery to storage or blast site areas.
Explosive material shall be transported without undue delay to the
storage area or blast site.
Sec. 57.6201 Separation of transported explosive material.
Detonators shall not be transported on the same vehicle or
conveyance with other explosives except as follows:
(a) Detonators in quantities of more than 1,000 may be transported
in a vehicle or conveyance with explosives or blasting agents provided
the detonators are--
(1) Maintained in the original packaging as shipped from the
manufacturer; and
[[Page 36804]]
(2) Separated from explosives or blasting agents by 4 inches of
hardwood or equivalent, or a laminated partition. The hardwood or
equivalent shall be fastened to the vehicle or conveyance. When a
laminated partition is used, operators must follow the provisions of
the Institute of Makers of Explosives (IME) Safety Library Publication
No. 22, ``Recommendations for the Safe Transportation of Detonators in
a Vehicle with other Explosive Materials'' (May 1993), and the
``Generic Loading Guide for the IME-22 Container'' (October 1993). This
incorporation by reference has been approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies are available at MSHA, 4015 Wilson Boulevard, Room 728,
Arlington, VA 22203, and at all Metal and Nonmetal Mine Safety and
Health district offices, or available for examination at the Office of
the Federal Register, 800 North Capitol Street NW., 7th Floor, suite
700, Washington, DC.
(b) Detonators in quantities of 1,000 or fewer may be transported
with explosives or blasting agents provided the detonators are--
(1) Kept in closed containers; and
(2) Separated from explosives or blasting agents by 4 inches of
hardwood or equivalent, or a laminated partition. The hardwood or
equivalent shall be fastened to the vehicle or conveyance. When a
laminated partition is used, operators must follow the provisions of
IME Safety Library Publication No. 22, ``Recommendations for the Safe
Transportation of Detonators in a Vehicle with other Explosive
Materials'' (May 1993), and the ``Generic Loading Guide for the IME-22
Container'' (October 1993). This incorporation by reference has been
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies are available at MSHA, 4015
Wilson Boulevard, Room 728, Arlington, VA 22203, and at all Metal and
Nonmetal Mine Safety and Health district offices, or available for
examination at the Office of the Federal Register, 800 North Capitol
Street NW., 7th Floor, suite 700, Washington, DC.
Sec. 57.6202 Vehicles.
(a) Vehicles containing explosive material shall be--
(1) Maintained in good condition and shall comply with the
requirements of subpart M of this part;
(2) Equipped with sides and enclosures higher than the explosive
material being transported or have the explosive material secured to a
nonconductive pallet;
(3) Equipped with a cargo space that shall contain the explosive
material (passenger areas shall not be considered cargo space);
(4) Equipped with at least two multipurpose dry-chemical fire
extinguishers or one such extinguisher and an automatic fire
suppression system;
(5) Posted with warning signs that indicate the contents and are
visible from each approach;
(6) Occupied only by persons necessary for handling the explosive
material;
(7) Attended or the cargo compartment locked at surface areas of
underground mines, except when parked at the blast site and loading is
in progress; and
(8) Secured while parked by having--
(i) The brakes set;
(ii) The wheels chocked if movement could occur; and
(iii) The engine shut off unless powering a device being used in
the loading operation.
(b) Vehicles containing explosives shall have--
(1) No sparking material exposed in the cargo space; and
(2) Only properly secured nonsparking equipment in the cargo space
with the explosives.
(c) Vehicles used for dispensing bulk explosive material shall--
(1) Have no zinc or copper exposed in the cargo space; and
(2) Provide any enclosed screw-type conveyors with protection
against internal pressure and frictional heat.
Sec. 57.6203 Locomotives.
Explosive material shall not be transported on a locomotive. When
explosive material is hauled by trolley locomotive, covered,
electrically insulated cars shall be used.
Sec. 57.6204 Hoists.
(a) Before explosive material is transported in hoist conveyances--
(1) The hoist operator shall be notified; and
(2) Hoisting in adjacent shaft compartments, except for empty
conveyances or counterweights, shall be stopped until transportation of
the explosive material is completed.
(b) Explosive material transported in hoist conveyances shall be
placed within a container which prevents shifting of the cargo that
could cause detonation of the container by impact or by sparks. The
manufacturer's container may be used if secured to a nonconductive
pallet. When explosives are transported, they shall be secured so as
not to contact any sparking material.
(c) No explosive material shall be transported during a mantrip.
Sec. 57.6205 Conveying explosives by hand.
Closed, nonconductive containers shall be used to carry explosives
and detonators to and from blast sites. Separate containers shall be
used for explosives and detonators.
USE--SURFACE AND UNDERGROUND
Sec. 57.6300 Control of blasting operations.
(a) Only persons trained and experienced in the handling and use of
explosive material shall direct blasting operations and related
activities.
(b) Trainees and inexperienced persons shall work only in the
immediate presence of persons trained and experienced in the handling
and use of explosive material.
Sec. 57.6301 Blasthole obstruction check.
Before loading, blastholes shall be checked and, wherever possible,
cleared of obstructions.
Sec. 57.6302 Separation of explosive material.
Explosives and blasting agents shall be kept separated from
detonators until loading begins.
Sec. 57.6303 Initiation preparation.
(a) Primers shall be made up only at the time of use and as close
to the blast site as conditions allow.
(b) Primers shall be prepared with the detonator contained securely
and completely within the explosive or contained securely and
appropriately for its design in the tunnel or cap well.
(c) When using detonating cord to initiate another explosive, a
connection shall be prepared with the detonating cord threaded through,
attached securely to, or otherwise in contact with the explosive.
Sec. 57.6304 Primer protection.
(a) Tamping shall not be done directly on a primer.
(b) Rigid cartridges of explosives or blasting agents that are 4
inches (100 millimeters) in diameter or larger shall not be dropped on
the primer except where the blasthole contains sufficient depth of
water to protect the primer from impact. Slit packages of prill, water
gel, or emulsions are not considered rigid cartridges and may be drop
loaded.
Sec. 57.6305 Unused explosive material.
Unused explosive material shall be moved to a protected location as
soon as practical after loading operations are completed.
[[Page 36805]]
Sec. 57.6306 Loading, blasting, and security.
(a) When explosive materials or initiating systems are brought to
the blast site, the blast site shall be attended; barricaded and posted
with warning signs, such as ``Danger,'' ``Explosives,'' or ``Keep
Out;'' or flagged against unauthorized entry.
(b) Vehicles and equipment shall not be driven over explosive
material or initiating systems in a manner which could contact the
material or system, or create other hazards.
(c) Once loading begins, the only activities permitted within the
blast site shall be those activities directly related to the blasting
operation and the activities of surveying, stemming, sampling of
geology, and reopening of holes, provided that reasonable care is
exercised. Haulage activity is permitted near the base of bench faces
being loaded or awaiting firing, provided no other haulage access
exists.
(d) Loading and blasting shall be conducted in a manner designed to
facilitate a continuous process, with the blast fired as soon as
possible following the completion of loading. If blasting a loaded
round may be delayed for more than 72 hours, the operator shall notify
the appropriate MSHA district office.
(e) In electric blasting prior to connecting to the power source,
and in nonelectric blasting prior to attaching an initiating device,
all persons shall leave the blast area except persons in a blasting
shelter or other location that protects them from concussion (shock
wave), flying material, and gases.
(f) Before firing a blast--
(1) Ample warning shall be given to allow all persons to be
evacuated;
(2) Clear exit routes shall be provided for persons firing the
round; and
(3) All access routes to the blast area shall be guarded or
barricaded to prevent the passage of persons or vehicles.
(g) Work shall not be resumed in the blast area until a post-blast
examination addressing potential blast-related hazards has been
conducted by a person with the ability and experience to perform the
examination.
Sec. 57.6307 Drill stem loading.
Explosive material shall not be loaded into blastholes with drill
stem equipment or other devices that could be extracted while
containing explosive material. The use of loading hose, collar sleeves,
or collar pipes is permitted.
Sec. 57.6308 Initiation systems.
Initiation systems shall be used in accordance with the
manufacturer's instructions.
Sec. 57.6309 Fuel oil requirements for ANFO.
(a) Liquid hydrocarbon fuels with flash points lower than that of
No. 2 diesel oil (125 deg.F) shall not be used to prepare ammonium
nitrate-fuel oil, except that diesel fuels with flash points no lower
than 100 deg.F may be used at ambient air temperatures below 45
deg.F.
(b) Waste oil, including crankcase oil, shall not be used to
prepare ammonium nitrate-fuel oil.
Sec. 57.6310 Misfire waiting period.
When a misfire is suspected, persons shall not enter the blast
area--
(a) For 30 minutes if safety fuse and blasting caps are used; or
(b) For 15 minutes if any other type detonators are used.
Sec. 57.6311 Handling of misfires.
(a) Faces and muck piles shall be examined for misfires after each
blasting operation.
(b) Only work necessary to remove a misfire and protect the safety
of miners engaged in the removal shall be permitted in the affected
area until the misfire is disposed of in a safe manner.
(c) When a misfire cannot be disposed of safely, each approach to
the area affected by the misfire shall be posted with a warning sign at
a conspicuous location to prohibit entry, and the condition shall be
reported immediately to mine management.
(d) Misfires occurring during the shift shall be reported to mine
management not later than the end of the shift.
Sec. 57.6312 Secondary blasting.
Secondary blasts fired at the same time in the same work area shall
be initiated from one source.
ELECTRIC BLASTING--SURFACE AND UNDERGROUND
Sec. 57.6400 Compatibility of electric detonators.
All electric detonators to be fired in a round shall be from the
same manufacturer and shall have similar electrical firing
characteristics.
Sec. 57.6401 Shunting.
Except during testing--
(a) Electric detonators shall be kept shunted until connected to
the blasting line or wired into a blasting round;
(b) Wired rounds shall be kept shunted until connected to the
blasting line; and
(c) Blasting lines shall be kept shunted until immediately before
blasting.
Sec. 57.6402 Deenergized circuits near detonators.
Electrical distribution circuits within 50 feet of electric
detonators at the blast site shall be deenergized. Such circuits need
not be deenergized between 25 to 50 feet of the electric detonators if
stray current tests, conducted as frequently as necessary, indicate a
maximum stray current of less than 0.05 ampere through a 1-ohm resistor
as measured at the blast site.
Sec. 57.6403 Branch circuits.
(a) If electric blasting includes the use of branch circuits, each
branch shall be equipped with a safety switch or equivalent method to
isolate the circuits to be used.
(b) At least one safety switch or equivalent method of protection
shall be located outside the blast area and shall be in the open
position until persons are withdrawn.
Sec. 57.6404 Separation of blasting circuits from power source.
(a) Switches used to connect the power source to a blasting circuit
shall be locked in the open position except when closed to fire the
blast.
(b) Lead wires shall not be connected to the blasting switch until
the shot is ready to be fired.
Sec. 57.6405 Firing devices.
(a) Power sources shall be capable of delivering sufficient current
to energize all electric detonators to be fired with the type of
circuits used. Storage or dry cell batteries are not permitted as power
sources.
(b) Blasting machines shall be tested, repaired, and maintained in
accordance with manufacturer's instructions.
(c) Only the blaster shall have the key or other control to an
electrical firing device.
Sec. 57.6406 Duration of current flow.
If any part of a blast is connected in parallel and is to be
initiated from powerlines or lighting circuits, the time of current
flow shall be limited to a maximum of 25 milliseconds. This can be
accomplished by incorporating an arcing control device in the blasting
circuit or by interrupting the circuit with an explosive device
attached to one or both lead lines and initiated by a 25-millisecond
delay electric detonator.
Sec. 57.6407 Circuit testing.
A blasting galvanometer or other instrument designed for testing
blasting circuits shall be used to test the following:
(a) In surface operations--
(1) Continuity of each electric detonator in the blasthole prior to
stemming and connection to the blasting line;
[[Page 36806]]
(2) Resistance of individual series or the resistance of multiple
balanced series to be connected in parallel prior to their connection
to the blasting line;
(3) Continuity of blasting lines prior to the connection of
electric detonator series; and
(4) Total blasting circuit resistance prior to connection to the
power source.
(b) In underground operations--
(1) Continuity of each electric detonator series; and
(2) Continuity of blasting lines prior to the connection of
electric detonators.
NONELECTRIC BLASTING--SURFACE AND UNDERGROUND
Sec. 57.6500 Damaged initiating material.
A visual check of the completed circuit shall be made to ensure
that the components are properly aligned and connected. Safety fuse,
igniter cord, detonating cord, shock or gas tubing, and similar
material which is kinked, bent sharply, or damaged shall not be used.
Sec. 57.6501 Nonelectric initiation systems.
(a) When the nonelectric initiation system uses shock tube--
(1) Connections with other initiation devices shall be secured in a
manner which provides for uninterrupted propagation;
(2) Factory-made units shall be used as assembled and shall not be
cut except that a single splice is permitted on the lead-in trunkline
during dry conditions; and
(3) Connections between blastholes shall not be made until
immediately prior to clearing the blast site when surface delay
detonators are used.
(b) When the nonelectric initiation system uses detonating cord--
(1) The line of detonating cord extending out of a blasthole shall
be cut from the supply spool immediately after the attached explosive
is correctly positioned in the hole;
(2) In multiple row blasts, the trunkline layout shall be designed
so that the detonation can reach each blasthole from at least two
directions;
(3) Connections shall be tight and kept at right angles to the
trunkline;
(4) Detonators shall be attached securely to the side of the
detonating cord and pointed in the direction in which detonation is to
proceed;
(5) Connections between blastholes shall not be made until
immediately prior to clearing the blast site when surface delay
detonators are used; and
(6) Lead-in lines shall be manually unreeled if connected to the
trunklines at the blast site.
(c) When nonelectric initiation systems use gas tube, continuity of
the circuit shall be tested prior to blasting.
Sec. 57.6502 Safety fuse.
(a) The burning rate of each spool of safety fuse to be used shall
be measured, posted in locations which will be conspicuous to safety
fuse users, and brought to the attention of all persons involved with
the blasting operation.
(b) When firing with safety fuse ignited individually using
handheld lighters, the safety fuse shall be of lengths which provide at
least the minimum burning time for a particular size round, as
specified in the following table:
Table E-1.--Safety Fuse--Minimum Burning Time
------------------------------------------------------------------------
Number of holes in a round Minimum burning time
------------------------------------------------------------------------
1...................................... 2 min.\1\
2-5.................................... 2 min. 40 sec.
6-10................................... 3 min. 20 sec.
11 to 15............................... 5 min.
------------------------------------------------------------------------
\1\ For example, at least a 36-inch length of 40-second-per-foot safety
fuse or at least a 48-inch length of 30-second-per-foot safety fuse
would have to be used to allow sufficient time to evacuate the area.
(c) Where flyrock might damage exposed safety fuse, the blast shall
be timed so that all safety fuses are burning within the blastholes
before any blasthole detonates.
(d) Fuse shall be cut and capped in dry locations.
(e) Blasting caps shall be crimped to fuse only with implements
designed for that purpose.
(f) Safety fuse shall be ignited only after the primer and the
explosive material are securely in place.
(g) Safety fuse shall be ignited only with devices designed for
that purpose. Carbide lights, liquefied petroleum gas torches, and
cigarette lighters shall not be used to light safety fuse.
(h) At least two persons shall be present when lighting safety
fuse, and no one shall light more than 15 individual fuses. If more
than 15 holes per person are to be fired, electric initiation systems,
igniter cord and connectors, or other nonelectric initiation systems
shall be used.
EXTRANEOUS ELECTRICITY--SURFACE AND UNDERGROUND
Sec. 57.6600 Loading practices.
If extraneous electricity is suspected in an area where electric
detonators are used, loading shall be suspended until tests determine
that stray current does not exceed 0.05 amperes through a 1-ohm
resister when measured at the location of the electric detonators. If
greater levels of extraneous electricity are found, the source shall be
determined and no loading shall take place until the condition is
corrected.
Sec. 57.6601 Grounding.
Electric blasting circuits, including powerline sources when used,
shall not be grounded.
Sec. 57.6602 Static electricity dissipation during loading.
When explosive material is loaded pneumatically into a blasthole in
a manner that generates a static electricity hazard--
(a) An evaluation of the potential static electricity hazard shall
be made and any hazard shall be eliminated before loading begins;
(b) The loading hose shall be of a semiconductive type, have a
total of not more than 2 megohms of resistance over its entire length
and not less than 1000 ohms of resistance per foot;
(c) Wire-countered hoses shall not be used;
(d) Conductive parts of the loading equipment shall be bonded and
grounded and grounds shall not be made to other potential sources of
extraneous electricity; and
(e) Plastic tubes shall not be used as hole liners if the hole
contains an electric detonator.
Sec. 57.6603 Air gap.
At least a 15-foot air gap shall be provided between the blasting
circuit and the electric power source.
Sec. 57.6604 Precautions during storms.
During the approach and progress of an electrical storm--
(a) Surface blasting operations shall be suspended and persons
withdrawn from the blast area or to a safe location; or
(b) Underground electrical blasting operations that are capable of
being initiated by lightning shall be suspended and all persons
withdrawn from the blast area or to a safe location.
Sec. 57.6605 Isolation of blasting circuits.
Lead wires and blasting lines shall be isolated and insulated from
power conductors, pipelines, and railroad tracks, and shall be
protected from sources of stray or static electricity. Blasting
circuits shall be protected from any contact between firing lines and
overhead powerlines which could result from the force of a blast.
EQUIPMENT/TOOLS--SURFACE AND UNDERGROUND
Sec. 57.6700 Nonsparking tools.
Only nonsparking tools shall be used to open containers of
explosive material or to punch holes in explosive cartridges.
[[Page 36807]]
Sec. 57.6701 Tamping and loading pole requirements.
Tamping and loading poles shall be of wood or other nonconductive,
nonsparking material. Couplings for poles shall be nonsparking.
MAINTENANCE--SURFACE AND UNDERGROUND
Sec. 57.6800 Storage facilities.
When repair work which could produce a spark or flame is to be
performed on a storage facility--
(a) The explosive material shall be moved to another facility, or
moved at least 50 feet from the repair activity and monitored; and
(b) The facility shall be cleaned to prevent accidental detonation.
Sec. 57.6801 Vehicle repair.
Vehicles containing explosive material and oxidizers shall not be
taken into a repair garage or shop.
Sec. 57.6802 Bulk delivery vehicles.
No welding or cutting shall be performed on a bulk delivery vehicle
until the vehicle has been washed down and all explosive material has
been removed. Before welding or cutting on a hollow shaft, the shaft
shall be thoroughly cleaned inside and out and vented with a minimum
\1/2\-inch diameter opening to allow for sufficient ventilation.
Sec. 57.6803 Blasting lines.
Permanent blasting lines shall be properly supported. All blasting
lines shall be insulated and kept in good repair.
GENERAL REQUIREMENTS--SURFACE AND UNDERGROUND
Sec. 57.6900 Damaged or deteriorated explosive material.
Damaged or deteriorated explosive material shall be disposed of in
a safe manner in accordance with the instructions of the manufacturer.
Sec. 57.6901 Black powder.
(a) Black powder shall be used for blasting only when a desired
result cannot be obtained with another type of explosive, such as in
quarrying certain types of dimension stone.
(b) Containers of black powder shall be--
(1) Nonsparking;
(2) Kept in a totally enclosed cargo space while being transported
by a vehicle;
(3) Securely closed at all times when--
(i) Within 50 feet of any magazine or open flame;
(ii) Within any building in which a fuel-fired or exposed-element
electric heater is operating; or
(iii) In an area where electrical or incandescent-particle sparks
could result in powder ignition; and
(4) Opened only when the powder is being transferred to a blasthole
or another container and only in locations not listed in paragraph
(b)(3) of this section.
(c) Black powder shall be transferred from containers only by
pouring.
(d) Spills shall be cleaned up promptly with nonsparking equipment.
Contaminated powder shall be put into a container of water and shall be
disposed of promptly after the granules have disintegrated, or the
spill area shall be flushed promptly with water until the granules have
disintegrated completely.
(e) Misfires shall be disposed of by washing the stemming and
powder charge from the blasthole, and removing and disposing of the
initiator in accordance with the requirement for damaged explosives.
(f) Holes shall not be reloaded for at least 12 hours when the
blastholes have failed to break as planned.
Sec. 57.6902 Excessive temperatures.
(a) Where heat could cause premature detonation, explosive material
shall not be loaded into hot areas, such as kilns or sprung holes.
(b) When blasting sulfide ores where hot holes occur that may react
with explosive material in blastholes, operators shall--
(1) Measure an appropriate number of blasthole temperatures in
order to assess the specific mine conditions prior to the introduction
of explosive material;
(2) Limit the time between the completion of loading and the
initiation of the blast to no more than 12 hours; and
(3) Take other special precautions to address the specific
conditions at the mine to prevent premature detonation.
Sec. 57.6903 Burning explosive material.
If explosive material is suspected of burning at the blast site,
persons shall be evacuated from the endangered area and shall not
return for at least one hour after the burning or suspected burning has
stopped.
Sec. 57.6904 Smoking and open flames.
Smoking and use of open flames shall not be permitted within 50
feet of explosive material except when separated by permanent
noncombustible barriers. This standard does not apply to devices
designed to ignite safety fuse or to heating devices which do not
create a fire or explosion hazard.
Sec. 57.6905 Protection of explosive material.
(a) Explosive material shall be protected from temperatures in
excess of 150 degrees Fahrenheit.
(b) Explosive material shall be protected from impact, except for
tamping and dropping during loading.
GENERAL REQUIREMENTS--UNDERGROUND ONLY
Sec. 57.6960 Mixing of explosive material.
(a) The mixing of ingredients to produce explosive material shall
not be conducted underground unless prior approval of the MSHA district
manager is obtained. In granting or withholding approval, the district
manager shall consider the potential hazards created by--
(1) The location of the stored material and the storage practices
used;
(2) The transportation and use of the explosive material;
(3) The nature of the explosive material, including its
sensitivity;
(4) Any other factor deemed relevant to the safety of miners
potentially exposed to the hazards associated with the mixing of the
bulk explosive material underground.
(b) Storage facilities for the ingredients to be mixed shall
provide drainage away from the facilities for leaks and spills.
[FR Doc. 96-16861 Filed 7-11-96; 8:45 am]
BILLING CODE 4510-43-P
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