issue-1996-07-29•Federal Register final rules — 1996-07-29
Federal Register final rules — 1996-07-29
issue-1996-07-29Federal Register final rules — 1996-07-29Regulation
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. 96-19240 Bell Operating Company Provision of Out-of-Region Interstate, Interexchange Services
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39359-39360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19240]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[CC Docket No. 96-21, FCC 96-313]
Bell Operating Company Provision of Out-of-Region Interstate,
Interexchange Services
AGENCY: Federal Communications Commission.
ACTION: Final Rule; change of effective date.
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SUMMARY: In this Order on Reconsideration, the Commission advances the
effective date of its recently released Report and Order concerning
Bell operating company provision of domestic, out-of-region,
interstate, interexchange services. In the Matter of Out-of-Region
Interstate, Interexchange Services, CC Docket No. 96-21, FCC 96-288
(rel. July 1, 1996) (Interim BOC Out-of-Region Order). The effective
date as specified in that Interim BOC Out-of-Region Order was thirty
days after its publication in the Federal Register, which is August 8,
1996. To further facilitate the efficient and rapid provision of such
services by the BOC as contemplated by the Telecommunications Act of
1996, the Order on Reconsideration advances the
[[Page 39360]]
effective date of the Interim BOC Out-of-Region Order to July 29, 1996.
EFFECTIVE DATE: The interim rule published on July 9, 1996 at 61 FR
35964 will be effective July 29, 1996.
FOR FURTHER INFORMATION CONTACT: Michael Pryor (202) 418-0495 or
Melissa Waksman (202) 418-0913, Common Carrier Bureau, Policy and
Program Planning Division.
SUPPLEMENTARY INFORMATION:
1. On our own motion, pursuant to Section 1.108 of our rules, 47
CFR Sec. 1.108, we reconsider the effective date of the Interim BOC
Out-of-Region Order, 61 FR 35964, July 9, 1996. In that decision, we
established interim rules governing Bell Operating company (BOC)
provision of domestic, interstate, interexchange services originating
outside of their in-region states. We sought to facilitate the
efficient and rapid provision of such services by the BOCs, as
contemplated by the Telecommunications Act of 1996, (1996 Act), Public
Law No. 104-104, 110 Stat. 56 (1996) codified at 47 U.S.C. Secs. 151 et
seq. The Interim BOC Out-of-Region Order removes dominant carrier
regulation for BOCs that provide such services through an affiliate in
compliance with certain safeguards. The requirements established in the
Order are interim measures that remain in place until we complete our
more comprehensive review of the rules that are applicable to both
independent local exchange carriers and BOCs in the provision of out-
of-region, interstate, interexchange services.
2. We originally established an effective date for the Interim BOC
Out-of-Region Order of thirty days following publication in the Federal
Register. That Order was published in the Federal Register on July 9,
1996, and the scheduled effective date of the Order is August 8, 1996.
Under 5 U.S.C. Sec. 553(d)(1), however, a substantive rule which
relieves a restriction may become effective prior to thirty days
following Federal Register publication. Because the Interim BOC Out-of-
Region Order lifts dominant carrier regulation for the out-of-region
services of BOC affiliates complying with certain minimum safeguards,
we find that the Order falls within the exception to the 30-day rule
set forth in 5 U.S.C. Sec. 553(d)(1). Accelerating the effective date
of that Order will further the goals of the 1996 Act, which provided
that upon enactment the BOCs could provide out-of-region, interstate,
interexchange services. We find that the effective date of the Interim
BOC Out-of-Region Order shall be the date of the publication of this
Order on Reconsideration in the Federal Register.
3. Accordingly, It is ordered that, pursuant to Sections 4(i),
4(j), 303 and 405 of the Communications Act of 1934, as amended, 47
U.S.C. Secs. 154(i), 154(j), 303 and 405, and section 1.108 of the
Commission's rules, 47 CFR Sec. 1.108, the ORDER ON RECONSIDERATION is
hereby ADOPTED and shall become effective on the date of publication in
the Federal Register. It is further ordered that the effective date of
the Interim BOC Out-of-Region Order, FCC 96-288 (rel. July 1, 1996), 61
FR 35964 (July 9, 1996), shall be July 29, 1996.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-19240 Filed 7-26-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-19226 Amendment of Class E Airspace; Baker City, Oregon
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Page 39318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19226]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-ANM-011]
Amendment of Class E Airspace; Baker City, Oregon
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action amends the Baker City, Oregon, Class E airspace to
provide additional controlled airspace for Instrument Flight Rules
(IFR) operations at the Baker City Municipal Airport. Additionally,
this action corrects the airport name and referenced navigational aid
which were incorrectly stated in the previous legal description of the
Class E airspace area.
EFFECTIVE DATE: 0901 UTC, October 10, 1996.
FOR FURTHER INFORMATION CONTACT:
James C. Frala, Operations Branch, ANM-532.4, Federal Aviation
Administration, Docket No. 96-ANM-011, 1601 Lind Avenue SW., Renton,
Washington 98055-4056; telephone number: (206) 227-2535.
SUPPLEMENTARY INFORMATION:
History
On May 20, 1996, the FAA proposed to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend Class E airspace at
Baker City, Oregon to provide additional controlled airspace for IFR
operations at Baker City Municipal Airport (61 FR 25157). A minor
correction is also being made to the airport name and navigational aid
name which were incorrectly referenced in the previous legal
description of the Class E airspace area. Interested parties were
invited to participate in the rulemaking proceeding by submitting
written comments on the proposal. No comments were received.
The coordinates for this airspace docket are based on North
American Datum 83. Class E airspace areas extending upward from 700
feet or more above the surface of the earth are published in paragraph
6005 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E airspace areas listed in this document will be published
subsequently in the Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulations
amends Class E airspace at Baker City, Oregon. The FAA has determined
that this regulation only involves an established body of technical
regulations for which frequent and routine amendments are necessary to
keep them operationally current. It, therefore, (1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under DOT Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the FAA amends 14 CFR part 71 as
follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
ANM OR E5 Baker City, OR [Revised]
Baker City Municipal Airport, OR
(Lat. 44 deg.50'17'' N., long. 117 deg.48'35'' W.)
Baker City VOR/DME
(Lat. 44 deg.50'26'' N., long. 117 deg.48 deg.28'' W.)
That airspace extending upward from 1,200 feet above the surface
within 7 miles northeast and 5.3 miles southwest of the Baker City
VOR/DME 138 deg. and 317 deg. radials extending from 12.2 miles
southeast to 14 miles northwest of the VOR/DME, and within 8.7 miles
west and 4.3 miles east of the Baker City VOR/DME 345 deg. radial
extending from the VOR/DME to the south edge of V-298, and that
airspace east of Baker City VOR/DME bounded on the north by the
south edge of V-121, on the southeast by the northwest edge of V-
269, and on the southwest by the northeast edge of V-4-444;
excluding the Boise, ID, Enroute Domestic Airspace Area.
* * * * *
Issued in Seattle, Washington, on July 8, 1996.
Helen Fabian Parke,
Manager, Air Traffic Division, Northwest Mountain Region.
[FR Doc. 96-19226 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-19225 Establishment of Class E Airspace; Colstrip, Montana
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39317-39318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19225]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-ANM-22]
Establishment of Class E Airspace; Colstrip, Montana
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action establishes the Colstrip, Montana, Class E
airspace to accommodate a Global Positioning System (GPS) Standard
Instrument Approach Procedure (SIAP) to the Colstrip Airport.
EFFECTIVE DATE: 0901 UTC, December 5, 1996.
FOR FURTHER INFORMATION CONTACT:
James C. Frala, Operations Branch, ANM-532.4, Federal Aviation
Administration, Docket No. 95-ANM-22, 1601 Lind Avenue SW., Renton,
Washington 98055-4056; telephone number: (206) 227-2535.
SUPPLEMENTARY INFORMATION:
History
On May 22, 1996, the FAA proposed to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) to establish Class E airspace at
Colstrip, Montana, to accommodate a new GPS SIAP to the Colstrip
Airport (61 FR 25600). Interested parties were invited to participate
in the rulemaking proceeding by submitting written comments on the
proposal. No comments were received.
The coordinates for this airspace docket are based on North
American Datum 83. Class E airspace areas extending upward from 700
feet or more above the surface of the earth are published in paragraph
6005 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E airspace listed in this document will be published
subsequently in the Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulations
establishes Class E airspace at Colstrip, Montana. The FAA has
determined that this regulation only involves an established body of
technical regulations for which frequent and routine amendments are
necessary to keep them operationally current. It, therefore, (1) is not
a ``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under DOT Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the FAA amends 14 CFR part 71 as
follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
[[Page 39318]]
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
ANM MT E5 Colstrip, MT [New]
Colstrip Airport, Colstrip, MT
(Lat. 45 deg.51'10'' N., long. 106 deg.42'34'' W.)
Billings Logan International Airport, MT
(Lat. 45 deg.48'30'' N., long. 108 deg.32'38'' W.)
That airspace extending upward from 700 feet above the surface
within a 13.5-mile radius of Colstrip Airport; that airspace
extending upward from 1,200 feet above the surface bounded on the
north by the south edge of V-2, on the east by the west edge of V-
254, on the south along lat. 45 deg.30'00'' N., and on the west by
the 60-mile arc centered on Billings Logan International Airport;
excluding the Forsyth and Miles City, MT Class E airspace areas.
* * * * *
Issued in Seattle, Washington, on July 11, 1996.
Helen Fabian Parke,
Manager, Air Traffic Division, Northwest Mountain Region.
[FR Doc. 96-19225 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-19215 Safety Zones, Security Zones, and Special Local Regulations
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39325-39326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19215]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 100 and 165
[CGD 96-036]
Safety Zones, Security Zones, and Special Local Regulations
AGENCY: Coast Guard, DOT.
ACTION: Notice of temporary rules issued.
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SUMMARY: This document provides required notice of substantive rules
adopted by the Coast Guard and temporarily effective between April 1,
1996 and June 30, 1996, which were not published in the Federal
Register. This quarterly notice lists temporary local regulations,
security zones, and safety zones, which were of limited duration and
for which timely publication in the Federal Register was not possible.
DATES: This document lists temporary Coast Guard regulations that
became effective and were terminated between April 1, 1996 and June 30,
1996, as well as several regulations which were not included in the
previous quarterly list.
ADDRESSES: The complete text of these temporary regulations may be
examined at, and is available on request, from Executive Secretary,
Marine Safety Council (G-LRA), U.S. Coast Guard Headquarters, 2100
Second Street, SW., Washington, DC 20593-0001.
FOR FURTHER INFORMATION CONTACT:
Commander Stephen J. Darmody, Executive Secretary, Marine Safety
Council at (202) 267-1477 between the hours of 8 a.m. and 3 p.m.,
Monday through Friday.
SUPPLEMENTARY INFORMATION: District Commanders and Captains of the Port
(COTP) must be immediately responsive to the safety needs of the waters
within their jurisdiction; therefore, District Commanders and COTPs
have been delegated the authority to issue certain local regulations.
Safety zones may be established for safety or environmental purposes. A
safety zone may be stationary and described by fixed limits or it may
be described as a zone around a vessel in motion. Security zones limit
access to vessels, ports, or waterfront facilities to prevent injury or
damage. Special local regulations are issued to enhance the safety of
participants and spectators at regattas and other marine events. Timely
publication of these regulations in the Federal Register is often
precluded when a regulation responds to an emergency, or when an event
occurs without sufficient advance notice. However, the affected public
is informed of these regulations through Local Notices to Mariners,
press releases, and other means. Moreover, actual notification is
provided by Coast Guard patrol vessels enforcing the restrictions
imposed by the regulation. Because mariners are notified by Coast Guard
officials on-scene prior to enforcement action, Federal Register notice
is not required to place the special local regulation, security zone,
or safety zone in effect. However, the Coast Guard, by law, must
publish in the Federal Register notice of substantive rules adopted. To
discharge this legal obligation without imposing undue expense on the
public, the Coast Guard periodically publishes a list of these
temporary special local regulations, security zones, and safety zones.
Permanent regulations are not included in this list because they are
published in their entirety in the Federal Register. Temporary
regulations may also be published in their entirety if sufficient time
is available to do so before they are placed in effect or terminated.
These safety zones, special local regulations and security zones have
been exempted from review under E.O. 12866 because of their emergency
nature, or limited scope and temporary effectiveness.
The following regulations were placed in effect temporarily during
the period April 1, 1996 and June 30, 1996, unless otherwise indicated.
Dated: July 23, 1996.
Stephen J. Darmody,
Commander, U.S. Coast Guard, Executive Secretary, Marine Safety
Council.
Quarterly Report
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Effective
Docket No. Location Type date
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Huntington 96-007...................... Ohio River, M. 249 to M. Safety Zone................... 5/19/96
251.
LA/Long Beach 96-012................... San Pedro Bay, CA......... Safety Zone................... 6/12/96
Miami 96-030........................... Fort Lauderdale, FL....... Safety Zone................... 4/11/96
Philadelphia 96-016.................... Salem River, NJ........... Safety Zone................... 4/5/96
San Diego 96-004....................... San Diego Bay, CA......... Safety Zone................... 5/7/96
San Diego 96-005....................... San Diego Bay, CA......... Safety Zone................... 6/4/96
San Diego 96-006....................... San Diego Bay, CA......... Safety Zone................... 7/18/96
San Francisco 96-001................... San Francisco Bay, CA..... Safety Zone................... 4/21/96
Savannah 96-029........................ Savannah, GA.............. Safety Zone................... 4/26/96
Savannah 96-035........................ Savannah, GA.............. Safety Zone................... 5/12/96
Tampa 96-027........................... Tampa, FL................. Safety Zone................... 4/9/96
01-96-027.............................. Norwalk, CT............... Safety Zone................... 5/4/96
01-96-029.............................. Upper New York Bay, NY and Safety Zone................... 6/25/96
NJ.
01-96-031.............................. Boston, MA................ Security Zone................. 4/19/96
01-96-032.............................. New London, CT............ Security Zone................. 9/11/96
01-96-036.............................. Liberty State Park, NJ.... Security Zone................. 5/7/96
01-96-038.............................. Queens, NY................ Security Zone................. 5/21/96
01-96-039.............................. Hudson River, NY.......... Security Zone................. 5/22/96
01-96-040.............................. Boston, MA................ Safety Zone................... 6/1/96
01-96-042.............................. Boston, MA................ Reg Nav Area.................. 6/10/96
01-96-043.............................. Hull, MA.................. Safety Zone................... 6/1/96
[[Page 39326]]
01-96-044.............................. Boston, MA................ Safety Zone................... 6/2/96
01-96-052.............................. Southampton, NY........... Safety Zone................... 6/29/96
01-96-060.............................. East River, NY............ Security Zone................. 6/24/96
01-96-061.............................. Branford, CT.............. Safety Zone................... 6/29/96
01-96-062.............................. Bridgeport, CT............ Safety Zone................... 6/28/96
02-96-005.............................. Illinois River, M. 162.5.. Special Local................. 6/1/96
02-96-007.............................. Ohio River, M. 461 to M. Reg Nav Area.................. 6/11/96
462.
02-96-009.............................. Ohio River, M. 603.5 to M. Special Local................. 6/15/96
604.5.
02-96-011.............................. Mississippi River, M. 583 Special Local................. 6/14/96/
to M. 579.3.
02-96-012.............................. Illinois River, M. 179.5 Special Local................. 6/23/96
to M. 180.5.
02-96-013.............................. Mississippi River, M. Special Local................. 6/8/96
415.5 to M. 416.
02-96-014.............................. Missouri River, M. 737 to Special Local................. 6/21/96
M. 733.
02-96-015.............................. Tennessee River, M. 463.5 Special Local................. 6/1/96
to M. 464.5.
05-96-020.............................. Salem River, NJ........... Safety Zone................... 4/24/96
05-96-022.............................. Salem River, NJ........... Safety Zone................... 4/22/96
5-96-023............................... Delaware River, DE........ Safety Zone................... 4/26/96
05-96-024.............................. Salem River, NJ........... Safety Zone................... 5/2/96
05-96-027.............................. Salem River, NJ........... Safety Zone................... 5/13/96
5-96-029............................... Delaware Bay, Delaware Safety Zone................... 5/15/96
River, DE.
05-96-035.............................. Atlantic City, NY......... Safety Zone................... 5/24/96
05-96-036.............................. Salem River, NJ........... Safety Zone................... 5/28/96
05-96-037.............................. Chester, PA............... Safety Zone................... 6/1/96
05-96-039.............................. James River, VA........... Safety Zone................... 6/18/96
05-96-040.............................. Salem River, NJ........... Safety Zone................... 6/6/96
05-96-044.............................. Chincoteague, VA.......... Special Local................. 6/22/96
05-96-047.............................. James River, VA........... Safety Zone................... 6/27/96
07-96-033.............................. Fort Lauderdale, FL....... Special Local................. 5/9/96
07-96-036.............................. Fajardo, PR............... Special Local................. 5/19/96
07-96-037.............................. Key West, FL.............. Special Local................. 5/19/96
07-96-038.............................. Old San Juan, PR.......... Special Local................. 5/26/96
07-96-040.............................. Fort Myers Beach, FL...... Special Local................. 6/1/96
08-96-013.............................. Cape Girardeau, MO........ Special Local................. 6/15/96
09-96-004.............................. Milwaukee River, Safety Zone................... 5/23/96
Milwaukee, WI.
13-96-013.............................. Portland, OR.............. Safety Zone................... 5/3/96
13-96-016.............................. Portland, OR.............. Safety Zone................... 5/31/96
13-96-017.............................. North Bend, OR............ Safety Zone................... 6/12/96
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[FR Doc. 96-19215 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-19207 International Fisheries Regulations; 1996 Halibut Report No. 5
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39362-39363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19207]
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DEPARTMENT OF COMMERCE
50 CFR Part 300
[Docket No. 960111003-6068-03; I.D. 072496A]
International Fisheries Regulations; 1996 Halibut Report No. 5
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Inseason action.
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SUMMARY: The Assistant Administrator for Fisheries, NOAA, on behalf of
the International Pacific Halibut Commission (IPHC), publishes these
inseason actions pursuant to IPHC regulations approved by the U.S.
Government to govern the Pacific halibut fishery. This action is
intended to enhance the conservation of the Pacific halibut stock.
EFFECTIVE DATE: Area 2A Non-treaty Commercial Fishery Reopening: 8:00
a.m., Pacific Daylight Time (PDT), July 24, 1996, until 6:00 p.m. PDT,
July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Steven Pennoyer, 907-586-7221; William
W. Stelle, Jr., 206-526-6140; or Donald McCaughran, 206-634-1838.
SUPPLEMENTARY INFORMATION: The IPHC, under the Convention between the
United States of America and Canada for the Preservation of the Halibut
Fishery of the Northern Pacific Ocean and Bering Sea (signed at Ottawa,
Ontario, on March 2, 1953), as amended by a Protocol Amending the
Convention (signed at Washington, DC, on March 29, 1979), has issued
this inseason action pursuant to IPHC regulations governing the Pacific
halibut fishery. The regulations have been approved by NMFS (60 FR
14651, March 20, 1995, and amended at 61 FR 11337, March 20, 1996). On
behalf of the IPHC, this inseason action is published in the Federal
Register to provide additional notice of its effectiveness, and to
inform persons subject to the inseason action of the restrictions and
requirements established therein.
[[Page 39363]]
Inseason Action
1996 Halibut Report No. 5
Incidental Commercial Halibut Catch in the Area 2A Salmon Troll Fishery
The total allowable incidental commercial catch of halibut
allocated to the salmon troll fishery was 16,068 lb (7.28 metric tons
(mt)). The salmon troll fishery closed June 30 with an estimated
halibut catch of 8,002 lb (3.62 mt). The remaining catch of 8,066 lb
(3.65 mt) is added to the directed commercial catch limit.
Area 2A Non-treaty Commercial Fishery to Reopen on July 24
The July 10 fishing period in Area 2A resulted in a catch of about
70,000 lb (31.75 mt), leaving 21,052 lb (9.54 mt) in the commercial
catch limit. The total catch limit remaining, including the additional
amount from the salmon troll fishery, is 29,118 (13.20 mt).
Area 2A will reopen on July 24 for 10 hours from 8:00 a.m. to 6:00
p.m. local time. The fishery is restricted to waters that are south of
Point Chehalis, Washington (46 deg.53 deg.18'' N. lat.) under
regulations promulgated by NMFS. Fishing period limits as indicated in
the following table will be in effect for this opening.
------------------------------------------------------------------------
Vessel class Fishing period
----------------------------------------------------- limit (pounds)
-------------------
Dressed,
Length Letter Dressed, head-
head-on off*
------------------------------------------------------------------------
0-25............................... A 225 200
26-30.............................. B 225 200
31-35.............................. C 285 250
36-40.............................. D 790 695
41-45.............................. E 850 750
46-50.............................. F 1,020 895
51-55.............................. G 1,135 1,000
56+................................ H 1,705 1,500
------------------------------------------------------------------------
* Weights are after 2% has been deducted for ice and slime if fish are
not washed prior to weighing.
The appropriate vessel length class and letter is printed on each
halibut license.
The fishing period limit is shown in terms of dressed, head-off
weight as well as dressed, head-on weight, although fishermen are
reminded that regulations require that all halibut from Area 2A be
landed with the head on.
The fishing period limit applies to the vessel, not the individual
fisherman, and any landings over the vessel limit will be subject to
forfeiture and fine.
Area 2B Commercial Fishery Update
Halibut landings from Area 2B total 5.57 million lb (2,526.53 mt)
through July 11, leaving 3.95 million lb (1,791.70 mt) of the catch
limit to be caught. The fishery will continue until all quotas have
been filled, or November 15, whichever is earlier.
Annette Island Reserve Fishery in Area 2C
The Metlakatla Indian community has been authorized by the U.S.
Government to conduct a commercial halibut fishery within the Annette
Island Reserve. Six 48-hour fishing periods occurred between April 27
and July 7, producing a total catch of 43,837 lb (19.88 mt).
Alaskan Commercial Fishery Update
It is estimated that the following catches and number of landings
were made in the Alaskan Individual Fishing Quota (IFQ) and Community
Development Quota (CDQ) fisheries through July 10, 1996.
------------------------------------------------------------------------
Catch
limit Catch Number
Area (000's (000's of
pounds) pounds) landings
------------------------------------------------------------------------
2C...................................... 9,000 5,529 1,640
3A...................................... 20,000 10,071 1,465
3B...................................... 3,700 1,278 182
4A...................................... 1,950 616 72
4B...................................... 2,310 677 120
4C...................................... 770 428 280
4D...................................... 770 346 37
4E...................................... 120 118 507
-------------------------------
Total............................. 38,620 19,063 4,303
------------------------------------------------------------------------
During the same time period in 1995, March 15 through July 14,
13.56 million lb (6,150.77 mt) were landed in the Alaskan IFQ and CDQ
fisheries.
Dated: July 24, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-19207 Filed 7-26-96; 8:45 am]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-19202 Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to the Tennessee State Implementation Plan Regarding Prevention of Significant Deterioration
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39332-39334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19202]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN 119-1-6379a; TN 172-1-9639a; FRL-5539-9]
Approval and Promulgation of Implementation Plans Tennessee:
Approval of Revisions to the Tennessee State Implementation Plan
Regarding Prevention of Significant Deterioration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving revisions to the Tennessee State
Implementation Plan (SIP) submitted by the State of Tennessee on
September 1, 1993, and June 10, 1996. These revisions pertain to the
Construction Permit chapter. The purpose of these revisions is to
correct certain deficiencies to satisfy the requirements of the Clean
Air Act (CAA) concerning Prevention of Significant Deterioration (PSD).
DATES: This final rule is effective September 12, 1996 unless notice is
received by August 28, 1996 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Scott M. Martin,
Regulatory Planning and Development Section, Air Programs Branch, Air,
Pesticides & Toxics Management Division, Region 4 Environmental
Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365.
Copies of the documents relative to this action are available for
public inspection during normal business hours at the following
locations. The interested persons wanting to examine these documents
should make an appointment with appropriate office at least 24 hours
before the visiting day.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
Tennessee Department of Environment and Conservation, Division of Air
Pollution Control, 9th Floor L & C Annex, 401 Church Street, Nashville,
Tennessee 37243-1531.
FOR FURTHER INFORMATION CONTACT: Scott M. Martin, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 345
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is
404/347-3555 extension 4216.
SUPPLEMENTARY INFORMATION: On September 1, 1993, and June 10, 1996, the
State of Tennessee submitted revisions to chapter 1200-3-9-.01
``Construction Permits'' of the Tennessee SIP to correct certain
deficiencies to satisfy the requirements of the CAA concerning PSD.
The revisions to chapter 1200-3-9-.01 ``Construction Permits''
contained in the September 1, 1993, submittal are as follows:
1. Subparagraphs (c), (d), (e), (f), (g), and (h) were added to
paragraph (1) ``Application for Construction Permit.'' These
subparagraphs were added to incorporate the requirements of Subpart I--
Review of New Sources and Modifications as published in the Code of
Federal Regulations (40 CFR part 51) specifically addressing legally
enforceable procedures and the public availability of information on
permit applications.
2. Paragraph (2) ``Definitions'' was amended to add definitions for
the terms ``Control strategy,'' ``National ambient air quality
standard,'' ``Best available control technology (BACT),'' and ``Lowest
achievable emission rate (LAER).'' These definitions are consistent
with requirements of 40 CFR part 51, Subpart I--Review of New Sources
and Modifications.
3. Paragraph (4) ``Prevention of Significant Air Quality
Deterioration'' was amended to clarify applicability.
The following definitions were amended:
``Major stationary source'';
``Major modification'';
``Net emission increases'';
``Building, structure, facility, or installation'';
``Pollutant'';
``Baseline area'';
``Baseline date'';
``Baseline concentration'';
``Secondary emissions'';
``Innovative control technology'';
``Fugitive emissions''; and
``Significant''.
The following definitions were added:
``Volatile Organic Compound (VOC)'';
``Dispersion technique''; and
``Good engineering practice (GEP).''
These definitions are consistent with requirements of 40 CFR part
51, Subpart I--Review of New Sources and Modifications. Requirements
relating to the control of nitrogen oxides (NOX) emissions as well
as requirements which were necessary to maintain delegation of
authority of the PSD programs were added.
The revisions to chapter 1200-3-9-.01 ``Construction Permits''
contained in the June 10, 1996, submittal are as follows:
1. Subparagraph (f) of paragraph (4) was amended by deleting
standards for Total Suspended Particulates (TSP) and replacing them
with standards for PM10.
2. Subparagraph (b) of paragraph (2) was amended by adding language
to the definition of ``Control Strategy'' stating that a prohibition of
a fuel or fuel additive used in motor vehicles may be implemented if
necessary to achieve a primary or secondary air standard.
3. Subparagraph (e) of paragraph (2) was amended by deleting the
terms ``major'' and ``or major modifications'' from the definition of
``Lowest achievable emission rate (LAER).''
4. Part 1. of subparagraph (a) of paragraph (4) was amended by
changing the phrase ``shall be constructed'' to ``shall begin actual
construction.''
5. Subparagraph (b) of paragraph (4) was amended by adding the
definition for ``Welfare.''
6. Part 7. of subparagraph (b) of paragraph (4) was amended by
adding the phrase ``except the activities of any
[[Page 39333]]
vessel'' to the first line in the definition of ``Building, structure,
facility, or installation.''
7. Subparts (iii), (vi), and (vii) of Part 7. of subparagraph (e)
of paragraph (4) were amended by inserting the phrase ``the Technical
Secretary determines'' to replace the words ``it is determined'' or
``it can be determined.''
8. Part 1. of subparagraph (n) of paragraph (4) was amended by
deleting the word ``significantly'' from the second sentence.
9. Part 2. of subparagraph (o) of paragraph (4) was amended by
making corrections to the introductory paragraph to be consistent with
the Federal rule.
10. Miscellaneous typographical errors were corrected throughout
the chapter.
Final Action
EPA is approving the above referenced revisions to the Tennessee
SIP because they meet the requirements of 40 CFR part 51, subpart I--
Review of New Sources and Modifications. This action is being taken
without prior proposal because the EPA views this as a noncontroversial
amendment and anticipates no adverse comments. However, in a separate
document in this Federal Register publication, the EPA is proposing to
approve the SIP revision should adverse or critical comments be filed.
This action will be effective on September 12, 1996 unless, by August
28, 1996, adverse or critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective September 27, 1996.
Under Section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions
for judicial review of this action must be filed in the United States
Court of Appeals for the appropriate circuit by (60 days from date of
publication). Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for purposes of judicial review nor does it extend the time within
which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
Section 307(b)(2) of the CAA, 42 U.S.C. 7607(b)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq, EPA must
prepare a regulatory flexibility analysis assessing the impact of any
proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under 110 and subchapter I, part D of the CAA do not
create any new requirements, but simply approve requirements that the
State is already imposing. Therefore, because the federal SIP-approval
does not impose any new requirements, I certify that it does not have a
significant impact on any small entities affected. Moreover, due to the
nature of the federal-state relationship under the CAA, preparation of
a regulatory flexibility analysis would constitute federal inquiry into
the economic reasonableness of state action. The CAA forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co. v.
U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. Section
7410(a)(2) and 7410(k)(3).
Unfunded Mandates
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 1995,
EPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 110 of the CAA.
These rules may bind State, local and tribal governments to perform
certain duties. EPA has examined whether the rules being approved by
this action will impose any mandate upon the State, local or tribal
governments either as the owner or operator of a source or as a
regulator, or would impose any mandate upon the private sector. EPA's
action will impose no new requirements; such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. Therefore, this final action
does not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APAA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Dated: July 2, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
[[Page 39334]]
Subpart RR--Tennessee
2. Section 52.2220 is amended by adding paragraph (c)(137) to read
as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(137) Revisions to the State of Tennessee Air Pollution Control
Regulations submitted by the Tennessee Department of Environment and
Conservation on September 1, 1993, and June 10, 1996. These consist of
revisions to Chapter 1200-3-9-.01 CONSTRUCTION PERMITS.
(i) Incorporation by reference.
(A) Chapter 1200-3-9-.01 CONSTRUCTION PERMITS of the Tennessee
Department of Environment and Conservation which became state effective
August 18, 1996.
(ii) Other material. None.
* * * * *
[FR Doc. 96-19202 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19200 Approval and Promulgation of Implementation Plans; State of Missouri
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39334-39335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19200]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-006-1006(a); FRL-5542-6]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This document takes final action to correct a previous action
published on February 29, 1996, that approved and incorporated multiple
amendments to Missouri rule 10 CSR 10-6.110 into the State
Implementation Plan (SIP) (see 61 FR 7714). Specifically, this action
corrects the EPA's inadvertent approval of section 5 (Emission Fees) of
Missouri rule 10 CSR 10-6.110 entitled, ``Submission of Emission Data,
Emission Fees, and Process Information'' as a SIP revision.
DATES: This action is effective September 27, 1996 unless by August 28,
1996 adverse or critical comments are received.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the:
Environmental Protection Agency, Air Planning and Development Branch,
726 Minnesota Avenue, Kansas City, Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp at (913) 551-7606.
SUPPLEMENTARY INFORMATION: On March 31, 1994, the state of Missouri
submitted multiple amendments to rule 10 CSR 10-6.110. These amendments
pertained to the submission of emission data and emission fees. The
amendments pertaining to the submission of emission data are approvable
as a revision to the SIP under section 110 of the Clean Air Act (CAA).
However, the emission fee provisions of section 5 were designed to meet
the requirements of section 502(b)(3) of the CAA, relating to
requirements for state operating permits programs, rather than the
requirements of section 110. Consequently, section 5 of Missouri rule
10 CSR 10-6.110 should not have been approved as a SIP revision.
However, rule 10 CSR 10-6.110, including section 5, was approved as an
integral part of the Missouri operating permit program on April 11,
1996 (see 61 FR 16063).
Under section 110(k)(6) of the CAA, the EPA may revise a previous
SIP approval action when it determines that the action was in error.
The EPA has determined that its approval of section 5 of 10 CSR 10-
6.110 was in error, for the reasons stated in this document.
EPA Action
Pursuant to section 110(k)(6) of the CAA, this is a direct final
action correcting the February 29, 1996, SIP approval, and clarifying
that section 5 of Missouri rule 10 CSR 10-6.110 is not approved as a
part of the Missouri SIP.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, the EPA certifies that
it does not have a significant impact on any small entities affected.
Moreover, due to the nature of the Federal-state relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids the EPA to base its actions concerning SIPs on such grounds
(Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2)).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, the EPA must undertake various actions in association with
proposed or final rules that include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate. The Missouri
revisions have no impact on tribal governments.
Through submission of this plan revision, the state has elected to
adopt the program provided for under section 110 of the CAA. These
rules may bind state and local governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules being finalized for approval by this action will
impose new requirements, sources are already subject to these
regulations under state law. Accordingly, no additional costs to state
or local governments, or to the private sector, result from this final
action. The EPA has also determined that this final action does not
include a mandate that may result in estimated costs of $100 million or
more to state or local governments in the aggregate or to the private
sector.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as
[[Page 39335]]
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, EPA submitted a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the General Accounting Office prior to
publication of the rule in today's Federal Register. This rule is not a
``major rule'' as defined by section 804(2) of the APA as amended.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 27, 1996.
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this rule for the purposes
of judicial review, nor does it extend the time within which a petition
for judicial review may be filed, and shall not postpone the
effectiveness of such rule or action. This action may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference.
Dated: July 5, 1996.
William Rice,
Acting, Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart AA--Missouri
2. Section 52.1320 is amended by modifying paragraph (c)(86) to
read as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(c) * * *
(86) A revision to the Missouri SIP to revise the Missouri Part D
new source review rules, update and add numerous definitions, revise
the maximum allowable increase for particulate matter under the
requirements for prevention of significant deterioration, address
emission statements under Title I of the CAA, and generally enhance the
SIP.
(i) Incorporation by reference.
(A) Revision to rules 10 CSR 10-6.020, Definitions and Common
Reference Tables, effective August 30, 1995; 10 CSR 10-6.060,
Construction Permits Required, effective August 30, 1995; 10 CSR 10-
6.110, Submission of Emission Data, Emission Fees, and Process
Information, except section 5, effective May 9, 1994; and 10 CSR 10-
6.210, Confidential Information, effective May 9, 1994.
* * * * * *
[FR Doc. 96-19200 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19198 Americans With Disabilities Act Accessibility Guidelines; Detectable Warnings
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39322-39325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19198]
=======================================================================
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[[Page 39323]]
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 36
[A.G. Order No. 2043-96]
ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1191
RIN 3014-AA18
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 37
Americans With Disabilities Act Accessibility Guidelines;
Detectable Warnings
AGENCIES: Architectural and Transportation Barriers Compliance Board,
Department of Justice, and Department of Transportation.
ACTION: Joint final rule.
-----------------------------------------------------------------------
SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board), the Department of Justice, and the Department of
Transportation are extending the suspension of the requirements for
detectable warnings at curb ramps, hazardous vehicular areas, and
reflecting pools in the Americans with Disabilities Act Accessibility
Guidelines (ADAAG) from July 26, 1996 to July 26, 1998. The Access
Board has established an advisory committee to conduct a comprehensive
review of ADAAG, including the detectable warning requirements, and
plans to initiate rulemaking to revise and update ADAAG after the
advisory committee issues a final report with its recommendations. The
suspension of the detectable warning requirements is extended so that
the Access Board can consider the advisory committee's recommendations
and address the detectable warning requirements in the rulemaking to
revise and update ADAAG.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Access Board: James J. Raggio, General Counsel, Architectural and
Transportation Barriers Compliance Board, 1331 F Street, NW., suite
1000, Washington, DC 20004-1111. Telephone (202) 272-5434 extension 16
or (800) 872-2253 extension 16 (voice), and (202) 272-5449 (TTY) or
(800) 993-2822 (TTY). Electronic mail address: [email protected].
Department of Justice: John L. Wodatch, the ADA Information Line,
Disability Rights Section, Civil Rights Division, U.S. Department of
Justice, Washington, DC 20530. Telephone (800) 514-0301 (voice) or
(800) 514-0383 (TTY).
Department of Transportation: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., room 10424, Washington, DC 20590.
Telephone (202) 366-9306 (voice) or (202) 755-7687 (TTY).
SUPPLEMENTARY INFORMATION:
Availability of Alternate Formats
Copies of this final rule are available in the following formats:
standard print, large print, Braille, audio cassette tape, and computer
disk. Single copies may be obtained at no cost by calling the Access
Board's automated publications order line (202) 272-5434 or (800) 872-
2253, pressing 1 on the telephone keypad, then 1 again and requesting
publication DW2 (Detectable Warnings Joint Final Rule). Persons using a
TTY should call (202) 272-5449 or (800) 993-2822. Please give your
name, address, and telephone number when ordering publications. Persons
who want a copy in large print, Braille, audio cassette tape, or
computer disk should specify the type of format they want.
The final rule is available on electronic bulletin board at (202)
272-5448 (Access Board) and (202) 514-6193 (Department of Justice).
These telephone numbers are not toll-free numbers.
The final rule is also available on the Internet. It can be
accessed with World Wide Web software (http://www.usdoj.gov).
Background
On April 12, 1996, the Access Board, the Department of Justice, and
the Department of Transportation published a joint notice of proposed
rulemaking (NPRM) to extend the suspension of the requirements for
detectable warnings at curb ramps, hazardous vehicular areas, and
reflecting pools in ADAAG from July 26, 1996 to July 26, 1998.1 61
FR 16232. As explained in the NPRM, the requirements were suspended
initially in April 1994 to allow the agencies to consider the results
of a research project conducted by Virginia Polytechnic Institute and
State University on the need for detectable warnings at vehicular-
pedestrian intersections. The research project showed that vehicular-
pedestrian intersections are very complex environments and that
pedestrians who are blind or visually impaired use a combination of
cues to detect and cross intersections. The research project found that
detectable warnings helped some pedestrians who are blind or visually
impaired locate and identify curb ramps. However, the detectable
warnings had only a modest impact on overall performance because, in
their absence, pedestrians who are blind or visually impaired used
whatever other cues were available to detect and cross the
intersection. The research project indicated that there may be a need
for additional cues at some types of intersections. The research
project did not identify the specific conditions where such cues should
be provided. The research project suggested that other technologies be
explored for providing information about intersections, which may be
less costly and equally or more effective than detectable warnings.
---------------------------------------------------------------------------
\1\ The Access Board is responsible for issuing guidelines to
assist the Department of Justice and the Department of
Transportation in establishing accessibility standards for newly
constructed and altered facilities under the Americans with
Disabilities Act (ADA). The Access Board issued ADAAG initially in
1991 (36 CFR part 1191, appendix A). The Department of Justice and
the Department of Transportation have adopted sections 1 through 10
of ADAAG as the accessibility standards for the ADA (28 CFR part 36,
appendix A; 49 CFR part 37, appendix A).
---------------------------------------------------------------------------
The Access Board subsequently established an advisory committee to
conduct a comprehensive review of ADAAG, including the detectable
warning requirements. The advisory committee is scheduled to issue a
final report with its recommendations in September 1996. The Access
Board plans to initiate rulemaking to revise and update ADAAG after the
advisory committee issues its report, and to address the requirements
for detectable warnings in that rulemaking. In the NPRM, the Access
Board, the Department of Justice, and the Department of Transportation
proposed to extend the suspension of the requirements for detectable
warnings at curb ramps, hazardous vehicular areas, and reflecting pools
from July 26, 1996 to July 26, 1998 so that the Access Board can
consider the advisory committee's recommendations and address the
requirements in the rulemaking to update and revise ADAAG.
Six comments were received in response to the NPRM. Five supported
extending the suspension and one opposed the action. The Council of
American Building Officials (CABO), the Illinois Department of
Transportation, the Airports Council International-North America (ACI-
NA), the Paralyzed Veterans of America (PVA), and the Eastern Paralyzed
Veterans Association (EPVA) submitted
[[Page 39324]]
comments in support of the extension. CABO and EPVA are members of the
advisory committee that is reviewing ADAAG and agreed that the
suspension should be extended so that the Access Board can consider the
advisory committee's recommendations and address the detectable warning
requirements in the rulemaking to update and revise ADAAG. The Illinois
Department of Transportation and ACI-NA recommended that research be
done on alternative technologies. PVA expressed concerns that
sufficient research has not been done on the durability and maintenance
of detectable warnings.
The comment in opposition to extending the suspension was submitted
on behalf of a manufacturer of detectable warnings. The commenter
believed that detectable warnings are critical to the safety of
individuals who are blind or visually impaired and that additional
research is not necessary. The commenter also noted that there have
been no reported accidents in this country as a result of detectable
warnings and that studies conducted by manufacturers have demonstrated
that their products can withstand various climatic conditions without
undue damage.
The Access Board, the Department of Justice, and the Department of
Transportation have decided to extend the suspension to July 26, 1998.
The agencies believe that the detectable warning requirements should be
addressed in the rulemaking to revise and update ADAAG. Extending the
suspension will allow the Access Board to consider the advisory
committee's recommendations, as well as available research data, and to
determine whether any changes in the detectable warning requirements
are warranted when ADAAG is revised and updated.
The requirements for detectable warnings at transit platform edges
in section 10 of ADAAG are not included in the suspension. Those
requirements remain in effect.
Pursuant to 5 U.S.C. 553(d)(3), the Access Board, the Department of
Justice, and the Department of Transportation find that good cause
exists for not postponing the effective date of this rule until 30 days
after publication in the Federal Register. The current suspension
expires on July 26, 1996. The rule is effective July 26, 1996 so that
there will be no interruption in the suspension period. The rule does
not require entities covered by the ADA to take any action.
Regulatory Process Matters
The Access Board, the Department of Justice, and the Department of
Transportation have determined independently that this rule is not a
significant regulatory action under Executive Order 12866. It is a
significant rule under the Department of Transportation's regulatory
policies and procedures since it amends the agency's ADA regulations,
which are a significant rule. The Department of Transportation expects
the economic impacts to be minimal and has not prepared a full
regulatory evaluation.
Executive Order 12875 prohibits agencies from promulgating any
regulation that is not required by statute and that creates a mandate
upon a State, local, or tribal government unless certain conditions are
met. This rule creates no new mandate. Consistent with the spirit of
Executive Order 12875, this rule continues the suspension of an
existing regulatory requirement to allow for further review of the
requirement.
The Access Board, the Department of Justice, and the Department of
Transportation independently certify under section 605(b) of the
Regulatory Flexibility Act that this rule is not expected to have a
significant economic impact on a substantial number of small entities
because it continues the suspension of an existing regulatory
requirement and does not impose any new requirement.
Text of Final Common Rule
The text of the common rule is revised to read as follows:
Sec. ________.________ Temporary suspension of certain detectable
warning requirements.
The detectable warning requirements contained in Secs. 4.7.7,
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily
until July 26, 1998.
Adoption of Final Common Rule
The agency specific proposals to adopt the final common rule, which
appears at the end of the common preamble, are set forth below.
List of Subjects in 28 CFR Part 36
Administrative practice and procedure, Alcoholism, Buildings and
facilities, Business and industry, Civil rights, Consumer protection,
Drug abuse, Historic preservation, HIV/AIDS, Individuals with
disabilities, Reporting and recordkeeping requirements, Transportation.
Authority and Issuance
By the authority vested in me as Attorney General by 28 U.S.C. 509,
510; 5 U.S.C. 301; and 42 U.S.C. 12186, and for the reasons set forth
in the common preamble, part 36 of chapter I of title 28 of the Code of
Federal Regulations is amended as follows:
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
1. The authority citation for 28 CFR part 36 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
Sec. 36.407 [Revised]
2. Section 36.407 is revised to read as set forth at the end of the
common preamble.
Dated: July 17, 1996.
Janet Reno,
Attorney General.
List of Subjects in 36 CFR Part 1191
Buildings and facilities, Civil rights, Individuals with
disabilities.
Authority and Issuance
For the reasons set forth in the common preamble, part 1191 of
title 36 of the Code of Federal Regulations is amended as follows:
PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY
GUIDELINES FOR BUILDINGS AND FACILITIES
1. The authority citation for 36 CFR part 1191 continues to read as
follows:
Authority: 42 U.S.C. 12204.
Sec. 1191.2 [Revised]
2. Section 1191.2 is revised to read as set forth at the end of the
common preamble.
Authorized by vote of the Access Board on May 15, 1996.
Judith E. Heumann,
Chair, Architectural and Transportation Barriers Compliance Board.
List of Subjects in 49 CFR Part 37
Buildings and facilities, Buses, Civil rights, Individuals with
disabilities, Mass transportation, Railroads, Reporting and
recordkeeping requirements, Transportation.
Authority and Issuance
For the reasons set forth in the common preamble, part 37 of title
49 of the Code of Federal Regulations is amended as follows:
[[Page 39325]]
PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES
(ADA)
1. The authority citation for 49 CFR part 37 continues to read as
follows:
Authority: The Americans with Disabilities Act of 1990 (42
U.S.C. 12101-12213); 49 U.S.C. 322.
Sec. 37.15 [Revised]
2. Section 37.15 is revised to read as set forth at the end of the
common preamble.
Dated: July 23, 1996.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-19198 Filed 7-24-96; 4:41 pm]
BILLING CODE 4410-01-P; 8150-01-P; 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-19194 Clean Air Act Reclassification; Arizona-Phoenix Area; Carbon Monoxide
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39343-39347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19194]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[AZR91-0003; FRL-5543-6]
Clean Air Act Reclassification; Arizona-Phoenix Area; Carbon
Monoxide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document EPA is making a final finding that the
Phoenix nonattainment area (Maricopa County, Arizona) has not attained
the carbon monoxide (CO) national ambient air quality standards (NAAQS)
by the applicable attainment date in the Clean Air Act (CAA) for
moderate CO nonattainment areas, December 31, 1995. This finding is
based on EPA's review of CO ambient air quality data. As a result of
this finding, the Phoenix area is reclassified as a serious CO
nonattainment area by operation of law. The intended effect of the
reclassification is to allow the State 18 months from the effective
date of this action to submit a new State Implementation Plan (SIP)
demonstrating attainment of the CO NAAQS as expeditiously as practical
but no later than December 31, 2000, the CAA attainment date for
serious areas.
EFFECTIVE DATE: This action is effective on August 28, 1996.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, Mobile Sources
Section, A-2-1, Air and Toxics Division, U.S. Environmental Protection
Agency, Region 9, 75 Hawthorne Street, San Francisco, California 94105,
(415) 744-1248.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Requirements and EPA Actions Concerning Designation,
Classification and Reclassification
The Clean Air Act Amendments of 1990 (CAA) were enacted on November
15, 1990. Under section 107(d)(1)(C) of the CAA, each carbon monoxide
(CO) area designated nonattainment prior to enactment of the 1990
Amendments, such as the Phoenix Area, was designated nonattainment by
operation of law upon enactment of the 1990 Amendments. Under section
186(a) of the Act, each CO area designated nonattainment under section
107(d) was also classified by operation of law as either ``moderate''
or ``serious'' depending on the severity of the area's air quality
problem. The Maricopa Area was classified as moderate. 40 CFR 81.303.
Moderate CO nonattainment areas were required to attain the CO national
ambient air quality standards (NAAQS) as expeditiously as practicable
but no later than December 31, 1995.
EPA has the responsibility, pursuant to sections 179(c) and
186(b)(2) of the CAA, of determining, within six months of the
applicable attainment date, whether the Phoenix area has attained the
CO NAAQS. Under section 186(b)(2)(A), if EPA finds that the area has
not attained the CO NAAQS, it is reclassified as serious by operation
of law. Pursuant to section 186(b)(2)(B) of the Act, EPA must publish a
document in the Federal Register identifying areas which failed to
attain the standard and therefore must be reclassified as serious by
operation of law. EPA makes attainment determinations for CO
nonattainment areas based upon whether an area has two years (or eight
consecutive quarters) of clean air quality data.
EPA has promulgated two NAAQS for CO: an 8-hour average
concentration and a 1-hour average concentration. Because there were no
violations of the 1-hour standard in the Phoenix area in 1994 and 1995,
this document addresses only the air quality status of the area with
respect to the 8-hour standard.
The reader should consult EPA's Notice of Proposed Rulemaking
(NPRM) for this action for a more detailed discussion of the applicable
CAA requirements, and EPA guidance on those requirements and on the
method of calculating CO NAAQS violations for reclassification
purposes. See 61 FR 21415 (May 10, 1996).
B. Effect of Reclassification
CO nonattainment areas reclassified as serious are required to
submit, within 18 months of the area's reclassification, SIP revisions
providing for attainment of the CO NAAQS as expeditiously as
practicable but no later than December 31, 2000. In addition, the State
must submit a SIP revision that includes: (1) a forecast of vehicle
miles travelled (VMT) for each year before the attainment year and
provisions for annual updates of these forecasts; (2) adopted
contingency measures; and (3) adopted transportation control measures
and strategies to offset any growth in CO emissions from growth in VMT
or number of vehicle trips. See CAA sections 187(a)(7), 187(a)(2)(A),
187(a)(3), 187(b)(2), and 187(b)(1). Finally, upon the effective date
of this reclassification, contingency measures in the moderate area
plan for the Phoenix area must be implemented.
C. Proposed Finding of Failure to Attain
On May 10, 1996 EPA proposed to find that the Phoenix area had
failed to attain the CO NAAQS by the applicable attainment date. 61 FR
21415. This proposed finding was based on CO monitoring data collected
by Maricopa County Environmental Services Department during the years
1994 and 1995. These data demonstrate violations of the CO NAAQS in
both years. For the specific data considered by EPA in making this
proposed finding, see 61 FR 21415.
II. Response To Comments on Proposed Finding
During the public comment period on EPA's proposed finding, the
Agency received a comment only from the Arizona Department of
Environmental Quality (ADEQ). ADEQ expressed its
[[Page 39344]]
concern that CAA section 107(d)(4)(A) (iv) and (v) could be construed
to mean that the Phoenix CO nonattainment area (which currently
includes only the urbanized area of Maricopa County) would be expanded
to include all of the Phoenix metropolitan statistical area (MSA) (the
entire County) upon reclassification to serious and stated that it
supports EPA's interpretation that this requirement applies only to the
initial designation and classification of an area to nonattainment.
CAA section 107(d)(4)(A)(iv) states that, if a carbon monoxide
nonattainment area located in a MSA is classified as serious, the
boundaries of such area are revised by operation of law to include the
entire MSA. A CO area is classified at the time it is designated as
nonattainment either (1) by operation of law on the date of enactment
of the 1990 Clean Air Act Amendments, or (2) after enactment if the
area was designated attainment or unclassifiable but later experiences
NAAQS violations. See section 186 (a)(1) and (b)(1). Therefore, section
107(d)(4)(A)(iv) applies only in these two situations and does not
apply to the reclassification of an already existing nonattainment area
that is based on a failure to attain. As a result, the boundaries of
the Phoenix CO nonattainment area are unaffected by the area's
reclassification to serious.1
---------------------------------------------------------------------------
\1\ Even if the boundary expansion provision of section
107(d)(4)(A)(iv) were deemed to apply to reclassified areas, EPA
believes that the State would likely qualify under section
107(d)(4)(A) (iv) and (v) for an exclusion from that requirement.
Section 107(d)(4)(A)(v) allows exclusion of areas in the MSA from
the nonattainment area where the Administrator finds that sources in
the those areas do not contribute significantly to violations of the
NAAQS. Cars represent the most significant contributor to CO
violations in metropolitan Phoenix. Data, however, indicate that
only a very small fraction of cars operating within the metropolitan
area are registered in Maricopa County but outside the current
nonattinment boundaries. Thus, EPA believes the State is likely to
be able to readily show that sources outside the current boundaries
do not contribute significantly to the area's CO violations.
---------------------------------------------------------------------------
III. Today's Final Action
EPA is today taking final action to find that the Phoenix area did
not attain the CO NAAQS by December 31, 1995, the CAA attainment date
for moderate CO nonattainment areas. As a result of this finding, the
Phoenix area is reclassified by operation of law as a serious CO
nonattainment area as of the effective date of this document.
IV. Executive Order (EO) 12866
Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to
determine whether regulatory actions are significant and therefore
should be subject to OMB review, economic analysis, and the
requirements of the Executive Order. The Executive Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may meet at least one of the four criteria identified in
section 3(f), including, under paragraph (1), that the rule may ``have
an annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.''
The Agency has determined that the finding of failure to attain
finalized today would result in none of the effects identified in
section 3(f). Under section 186(b)(2) of the CAA, findings of failure
to attain and reclassification of nonattainment areas are based upon
air quality considerations and must occur by operation of law in light
of certain air quality conditions. They do not, in-and-of-themselves,
impose any new requirements on any sectors of the economy. In addition,
because the statutory requirements are clearly defined with respect to
the differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local, or tribal governments or communities.
V. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
As discussed in section IV of this document, findings of failure to
attain and reclassification of nonattainment areas under section
186(b)(2) of the CAA do not in-and-of-themselves create any new
requirements. Therefore, I certify that today's final action does not
have a significant impact on small entities.
VI. Unfunded Mandates
Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, EPA
must assess whether various actions undertaken in association with
proposed or final regulations include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
State, local or tribal governments in the aggregate.
EPA believes, as discussed above, that the finding of failure to
attain and reclassification of the Maricopa Area are factual
determinations based upon air quality considerations and must occur by
operation of law and, hence, do not impose any federal
intergovernmental mandate, as defined in section 101 of the Unfunded
Mandates Act.
VII. Small Business Regulatory Enforcement Fairness Act (SBREFA)
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Carbon monoxide.
Dated: July 12, 1996.
Felicia Marcus,
Regional Administrator.
40 CFR part 81 is amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 81.303 is amended by revising the table for Arizona--
Carbon Monoxide to read as follows:
Sec. 81.303 Arizona.
* * * * *
[[Page 39345]]
Arizona--Carbon Monoxide
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------------------------------
Date Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phoenix Area:
Maricopa County (part)...................... 11/15/90 Nonattainment................ Aug. 28, 1996............... Serious.
Phoenix nonattainment area boundary:
1. Commencing at a point which is the
intersection of the eastern line of Range 7
East, Gila and Salt River Baseline and
Meridian, and the southern line of Township
2 South, said point is the southeastern
corner of the Maricopa Association of
Governments Urban Planning Area, which is
the point of beginning;
2. thence, proceed northerly along the
eastern line of Range 7 East which is the
common boundary between Maricopa and Pinal
Counties, as described in Arizona Revised
Statute Section 11-109, to a point where
the eastern line of Range 7 East intersects
the northern line of Township 1 North, said
point is also the intersection of the
Maricopa County Line and the Tonto National
Forest Boundary, as established by
Executive Order 869 dated July 1, 1908, as
amended and showed on the U.S. Forest
Service 1969 Planimetric Maps;
3. thence, westerly along the northern line
of Township 1 North to approximately the
southwest corner of the southeast quarter
of Section 35, Township 2 North, Range 7
East, said point being the boundary of the
Tonto National Forest and Usery Mountain
Semi-Regional Park;
4. thence, northerly along the Tonto
National Forest Boundary, which is
generally the western line of the east half
of Sections 26 and 35 of Township 2 North,
Range 7 East, to a point which is where the
quarter section line intersects with the
northern line of Section 26, Township 2
North, Range 7 East, said point also being
the northeast corner of the Usery Mountain
Semi-Regional Park;
5. thence, westerly along the Tonto National
Forest Boundary, which is generally the
south line of Section 19, 20, 21 and 22 and
the southern line of the west half of
Section 23, Township 2 North, Range 7 East,
to a point which is the southwest corner of
Section 19, Township 2 North, Range 7 East;
6. thence, northerly along the Tonto
National Forest Boundary to a point where
the Tonto National Forest Boundary
intersects with the eastern boundary of the
Salt River Indian Reservation, generally
described as the center line of the Salt
River Channel;
7. thence, northeasterly and northerly along
the common boundary of the Tonto National
Forest and the Salt River Indian
Reservation to a point which is the
northeast corner of the Salt River Indian
Reservation and the southeast corner of the
Fort McDowell Indian Reservation, as shown
on the plat dated July 22, 1902, and
recorded with the U.S. Government on June
15, 1902;
8. thence, northeasterly along the common
boundary between the Tonto National Forest
and the Fort McDowell Indian Reservation to
a point which is the northeast corner of
the Fort McDowell Indian Reservation;
9. thence, southwesterly along the northern
boundary of the Fort McDowell Indian
Reservation, which line is a common bondary
with the Tonto National Forest, to a point
where the boundary intersects with the
eastern line of Section 12, Township 4
North, Range 6 East.
10. thence, notherly along the eastern line
of Range 6 East to a point where the
eastern line of Range 6 East intersects
with the southern line of Township 5 North,
said line is the boundary between the Tonto
National Forest and the east boundary of
McDowell Mountain Regional Park;
11. thence, westerly along the southern line
of Township 5 North to a point where the
southern line intersects with the eastern
line of Range 5 East which line is the
boundary of Tonto National Forest and the
north boundary of McDowell Mountain
Regional Park;
12. thence, northerly along the eastern line
of Range 5 East to a point where the
eastern line of Range 5 East intersects
with the northern line of Township 5 North,
which line is the boundary of the Tonto
National Forest;
[[Page 39346]]
13. thence, westerly along the northern line
of Township 5 North to a point where the
northern line of Township 5 North
intersects with the easterly line of Range
4 East, said line is the boundary of Tonto
National Forest;
14. thence, northerly along the eastern line
of Range 4 East to a point where the
eastern line of Range 4 East intersects
with the northern line of Township 6 North,
which line is the boundary of the Tonto
National Forest;
15. thence, westerly along the northern line
of Township 6 North to a point of
intersection with the Maricopa-Yavapai
County line, which is generally described
in Arizona Revised Statute Section 11-109
as the center line of the Aqua Fria River
(Also the north end of Lake Pleasant);
16. thence, southwesterly and southerly
along the Maricopa-Yavapai County line to a
point which is described by Arizona Revised
Statute Section 11-109 as being on the
center line of the Aqua Fria River, two
miles southerly and below the mouth of
Humbug Creek;
17. thence, southerly along the center line
of Aqua Fria River to the intersection of
the center line of the Aqua Fria River and
the center line of Beardsley Canal, said
point is generally in the northeast quarter
of Section 17, Township 5 North, Range 1
East, as shown on the U.S. Geological
Survey's Baldy Mountain, Arizona Quadrangle
Map, 7.5 Minute series (Topographic), dated
1964;
18. thence, southwesterly and southerly
along the center line of Beardsley Canal to
a point which is the center line of
Beardsley Canal where it intersects with
the center line of Indian School Road;
19. thence, westerly along the center line
of West Indian School Road to a point where
the center line of West Indian School Road
intersects with the center line of North
Jackrabbit Trail;
20. thence, southerly along the center line
of Jackrabbit Trail approximately nine and
three-quarter miles to a point where the
center line of Jackrabbit Trail intersects
with the Gila River, said point is
generally on the north-south quarter
section line of Section 8, Township 1
South, Range 2 West.
21. thence, northeasterly and easterly up
the Gila River to a point where the Gila
River intersects with the northern
extension of the western boundary of
Estrella Mountain Regional Park, which
point is generally the quarter corner of
the northern line of Section 31, Township 1
North, Range 1 West;
22. thence, southerly along the extension of
the western boundary and along the western
boundary of Estrella Mountain Regional Park
to a point where the southern extension of
the western boundary of Estrella Mountain
Regional Park intersects with the southern
line of Township 1 South;
23. thence, easterly along the southern line
of Township 1 South to a point where the
south line of Township 1 South intersects
with the western line of Range 1 East,
which line is generally the southern
boundary of Estrella Mountain Regional
Park;
24. thence, southerly along the western line
of Range 1 East to the southwest corner of
Section 18, Township 2 South, Range 1 East,
said line is the western boundary of the
Gila River Indian Reservation;
25. thence, easterly along the southern
boundary of the Gila River Indian
Reservation which is the southern line of
Sections 13, 14, 15, 16, 17, and 18,
Township 2 South, Range 1 East, to the
boundary between Maricopa and Pinal
Counties as described in Arizona Revised
Statues Section 11-109 and 11-113, which is
the eastern line of Range 1 East;
26. thence, northerly along the eastern
boundary of Range 1 East, which is the
common boundary between Maricopa and Pinal
Counties, to a point where the eastern line
of Range 1 East intersects the Gila River;
27. thence, southerly up the Gila River to a
point where the Gila River intersects with
the southern line of Township 2 South; and
[[Page 39347]]
28. thence, easterly along the southern line
of Township 2 South to the point of
beginning which is a point where the
southern line of Township 2 South
intersects with the eastern line Range 7
East.
Tuscon Area:
Pima County (part).......................... 11/15/90 Nonattainment................ 11/15/90.................... Not classified.
Township and Ranges as follows: T11-12S, R12-
14E; T13-15S, R11-16E; and T16S, R12-16E
Gila and Salt River Baseline and Meridian
excluding portions of the Saguaro National
Monument and the Coronado National Forest.
Rest of State............................... 11/15/90 Nonclassifiable/............. ............................ ............................
Attainment
Apache County
Cochise County
Coconino County
Gila County
Graham County
Greenlee County
La Paz County
Maricopa County (part)
Area outside Phoenix Area:
Mohave County
Navajo County
Pima County (part)
Area outside Tucson Area:
Pinal County
Santa Cruz County
Yavapai County
Yuma County
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 96-19194 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19189 Implementation of Public Law 103-322, the Violent Crime Control and Law Enforcement Act of 1994Importation of Ammunition Feeding Devices With a Capacity of More Than 10 Rounds (94F-022P)
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39320-39322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19189]
[[Page 39320]]
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 178
[T.D. ATF-383; Ref: T.D. ATF-363 and Notice No. 807]
RIN 1512-AB35
Implementation of Public Law 103-322, the Violent Crime Control
and Law Enforcement Act of 1994--Importation of Ammunition Feeding
Devices With a Capacity of More Than 10 Rounds (94F-022P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Temporary rule (Treasury decision).
-----------------------------------------------------------------------
SUMMARY: This temporary rule amends the regulations by providing that
ammunition feeding devices with a capacity of more than 10 rounds
manufactured on or before September 13, 1994, the date of enactment of
Public Law 103-322, are eligible for importation into the United States
for general commercial sale. The temporary rule also provides guidance
on acceptable evidence that magazines sought to be imported were
manufactured on or before September 13, 1994. The temporary rule will
remain in effect until superseded by final regulations.
In the Proposed Rules section of this Federal Register, ATF is also
issuing a notice of proposed rulemaking inviting comments on the
temporary rule for a 90-day period following the publication date of
this temporary rule.
EFFECTIVE DATES: The temporary regulations are effective on July 29,
1996.
ADDRESSES: Send written comments to: Chief, Regulations Branch; Bureau
of Alcohol, Tobacco and Firearms; Washington, DC 20091-0221.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On September 13, 1994, Public Law 103-322 (108 Stat. 1796) was
enacted, amending the Gun Control Act of 1968 (GCA), as amended (18
U.S.C. Chapter 44). The provisions of Pub. L. 103-322, the Violent
Crime Control and Law Enforcement Act of 1994 (hereafter, ``the Act''),
became effective upon the date of enactment.
On April 6, 1995, ATF published in the Federal Register a temporary
rule (T.D. ATF-363, 60 FR 17446) implementing the provisions of the
Act. These regulations implement the law by restricting the
manufacture, transfer, and possession of certain semiautomatic assault
weapons and large capacity ammunition feeding devices. Except as
otherwise provided, the temporary regulations became effective upon the
date of publication in the Federal Register.
On April 6, 1995, the Bureau also published a notice of proposed
rulemaking cross-referenced to the temporary regulations (Notice No.
807, 60 FR 17494). The comment period for Notice No. 807 closed on July
5, 1995.
Large Capacity Ammunition Feeding Devices
The Act amended the GCA to create a new class of regulated items
termed ``large capacity ammunition feeding device.'' The Act defines
the term ``large capacity ammunition feeding device'' to mean:
[A] magazine, belt, drum, feed strip, or similar device
manufactured after the date of enactment of the [Act] that has the
capacity of, or that can be readily restored or converted to accept
more than 10 rounds of ammunition.
18 U.S.C. 921(a)(31).
The Act placed two new controls on these devices. First, it amended
18 U.S.C. 922 to make it unlawful, with certain exceptions, to transfer
or possess a large capacity ammunition feeding device. 18 U.S.C.
922(w)(1). Second, the Act imposed a requirement on manufacturers and
importers of the devices that they be marked with a serial number that
clearly shows that the devices were manufactured after the date of
enactment, and such other information as the Secretary may require by
regulations. 18 U.S.C. 923(i).
There are two exceptions to the general prohibition on transfer and
possession. The first is a ``grandfather clause'' that excepts the
possession or transfer of large capacity ammunition feeding devices
lawfully possessed on or before the date of enactment. 18 U.S.C.
922(w)(2). The second provides for, inter alia, the manufacture for,
transfer to, or possession by governmental entities and law enforcement
officers employed by such entities. 18 U.S.C. 922(w)(3)(A). Finally,
the statute establishes rules for prosecuting a person charged with an
unlawful transfer or possession of a device. If a person so charged
asserts that one of the two exceptions applies, the statute places the
burden of proof on the Government and provides that the lack of a
serial number is a presumption that the device is excepted. 18 U.S.C.
922(w)(4).
There are no exceptions to the marking requirements of section
923(i). The purpose of these temporary rules is to further implement
the marking requirements of section 923(i). These temporary regulations
are designed to ensure that only those imported devices manufactured
after the date of enactment are subject to the marking requirements.
Importation of Devices Under Current Regulations
The current temporary regulations generally prohibit the
importation of feeding devices with a capacity of more than 10 rounds
after the date of enactment. ATF has to date interpreted the
``grandfather clause'' as applying only to such devices lawfully
possessed in the United States on or before enactment. Thus, the only
devices allowed to be imported were under the governmental use
exception of section 922(w)(3). The current regulations require all
devices imported after the date of enactment to be marked ``RESTRICTED
LAW ENFORCEMENT/GOVERNMENT USE ONLY''. 27 CFR 178.92.
This interpretation failed to account for the date in the statutory
definition of ``large capacity ammunition feeding device.'' The
definition by its terms covers only devices manufactured after the date
of enactment. Consequently, a device manufactured on or before the date
of enactment is not a ``large capacity ammunition feeding device''
within the meaning of the statute, regardless of its size or capacity.
Therefore, these pre-enactment items are simply not subject to the
marking requirements or prohibition on transfer and possession.
Notice No. 807--Analysis of Comments--Large Capacity Ammunition Feeding
Device Issue
ATF received 129 comments in response to Notice No. 807. Comments
were submitted by Federal firearms licensees, nonlicensees, the medical
profession, religious groups and other organizations (e.g.,
Presbyterian Church (USA), Violence Policy Center, Coalition to Stop
Gun Violence, Handgun Control, Inc., and the National Rifle Association
of America), and members of Congress.
Fifty-two commenters, representing 40 percent of the total comments
received, objected to ATF's interpretation of the law as restricting
[[Page 39321]]
the importation of large capacity ammunition feeding devices after
September 13, 1994, regardless of the date of manufacture of such
devices. They also contended that the marking requirements prescribed
in Sec. 178.92(c) only apply to large capacity ammunition feeding
devices manufactured after the effective date of the statute. Similar
objections and arguments were raised in litigation challenging ATF's
interpretation of the law.
Amendment of Regulations Concerning Imported Magazines
The difficulty ATF faces in enforcing the marking requirements of
the statute is to identify those magazines manufactured after September
13, 1994, that are subject to the requirements. Although it is possible
in some cases to determine the date of manufacture based on physical
characteristics of particular magazines, in many cases pre-enactment
magazines are physically identical to post-enactment magazines. It is
impractical for the Government to conduct investigations abroad to
determine the date of manufacture of these foreign magazines.
After analyzing the comments received and in light of the above-
mentioned litigation, ATF has re-examined the Act and determined that
feeding devices with a capacity of more than 10 rounds manufactured on
or before September 13, 1994, are not subject to the restrictions of
the law. However, in order to facilitate the importation of such
devices, the regulations will require importers to provide certain
evidence with their import applications. The applications must state
that the devices are being imported for sale to government agencies or
qualified law enforcement officers or present reasonable evidence that
the devices were manufactured on or before September 13, 1994. Examples
of acceptable evidence are listed in the regulations and include (1)
permanent markings on the magazines or physical characteristics
indicating the date of manufacture; and (2) certifications from the
importer concerning the date of manufacture of the magazines, supported
by reasonable documentary evidence, such as commercial records. Any one
of these examples, which are not meant to be exhaustive, may be
sufficient to establish the time of manufacture. Recognizing the
legitimate business needs of the firearms industry in prompt action by
ATF on import applications, the regulations will require the Director
to act expeditiously on applications to import ammunition feeding
devices.
ATF's authority to require importers to obtain import permits for
ammunition feeding devices that were manufactured on or before
September 13, 1994, and to require importers to submit evidence of the
date of manufacture with the application for the import permit is based
on 18 U.S.C. 926(a). This section provides that the Secretary may issue
regulations necessary to carry out the provisions of the GCA.
The marking requirements of Sec. 178.92(c) are also being revised
to impose the marking requirements on persons who manufacture or import
any large capacity ammunition feeding device manufactured after
September 13, 1994. As indicated, the regulation currently imposes the
marking requirements on all devices imported after September 13, 1994,
regardless of the date of manufacture.
Finally, ATF is amending Sec. 178.116 to provide for the
conditional importation of an ammunition feeding device with a capacity
of more than 10 rounds for the purpose of examining and testing such
device in connection with the Bureau's determination as to whether the
importation of such device will be authorized.
Executive Order 12866
It has been determined that this temporary rule is not a
significant regulatory action as defined in E.O. 12866, because the
economic effects flow directly from the underlying statute and not from
this temporary rule. Therefore, a regulatory assessment is not
required.
Administrative Procedure Act
Because this document merely implements the law and because
immediate guidance is necessary to implement the provisions of the law,
it is found to be impracticable to issue this Treasury decision with
notice and public procedure under 5 U.S.C. 553(b), or subject to the
effective date limitation in section 553(d).
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this temporary rule because the agency was not
required to publish a notice of proposed rulemaking under 5 U.S.C. 553
or any other law. Accordingly, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
This regulation is being issued without prior notice and public
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).
For this reason, the collections of information contained in this
regulation have been reviewed and, pending receipt and evaluation of
public comments, approved by the Office of Management and Budget (OMB)
under control numbers 1512-0017, 1512-0018, and 1512-0019. The
estimated average annual burden associated with the collections of
information in this regulation is 6 minutes per respondent. For further
information concerning the collections of information, and where to
submit comments on the collections of information and the accuracy of
the estimated burden, and suggestions for reducing this burden, refer
to the preamble to the cross-referenced notice of proposed rulemaking
published elsewhere in this issue of the Federal Register.
Drafting Information
The author of this document is James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 178
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting requirements, Research,
Seizures and forfeitures, and Transportation.
Authority and Issuance
27 CFR Part 178--COMMERCE IN FIREARMS AND AMMUNITION is amended as
follows:
Paragraph 1. The authority citation for 27 CFR part 178 continues
to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.
3504(h).
Sec. 178.40a [Amended]
Par. 2. Section 178.40a(b)(1) is amended by removing the words ``in
the United States''.
Sec. 178.57 [Amended]
Par. 3. Section 178.57(c) is amended by removing the words ``or
imported''.
Sec. 178.92 [Amended]
Par. 4. Section 178.92 is amended by removing the words ``or
imported'' in paragraphs (c)(1) and (c)(1)(iii).
Par. 5. Section 178.116 is revised to read as follows:
Sec. 178.116 Conditional importation.
The Director shall permit the conditional importation or bringing
into the United States or any possession thereof of any firearm,
firearm barrel, ammunition, or ammunition feeding
[[Page 39322]]
device as defined in Sec. 178.119(b) for the purpose of examining and
testing the firearm, firearm barrel, ammunition, or ammunition feeding
device in connection with making a determination as to whether the
importation or bringing in of such firearm, firearm barrel, ammunition,
or ammunition feeding device will be authorized under this part. An
application on ATF Form 6 for such conditional importation shall be
filed, in duplicate, with the Director. The Director may impose
conditions upon any importation under this section including a
requirement that the firearm, firearm barrel, ammunition, or ammunition
feeding device be shipped directly from Customs custody to the Director
and that the person importing or bringing in the firearm, firearm
barrel, ammunition, or ammunition feeding device must agree to either
export the firearm, firearm barrel, ammunition, or ammunition feeding
device or destroy same if a determination is made that the firearm,
firearm barrel, ammunition, or ammunition feeding device may not be
imported or brought in under this part. A firearm, firearm barrel,
ammunition, or ammunition feeding device imported or brought into the
United States or any possession thereof under the provisions of this
section shall be released from Customs custody upon the payment of
customs duties, if applicable, and in the manner prescribed in the
conditional authorization issued by the Director.
Par. 6. Section 178.119 is revised to read as follows:
Sec. 178.119 Importation of ammunition feeding devices.
(a) No ammunition feeding device shall be imported or brought into
the United States unless the Director has authorized the importation of
such device.
(b) For purposes of this section, an ``ammunition feeding device''
is a magazine, belt, drum, feed strip, or similar device for a firearm
that has a capacity of, or that can be readily restored or converted to
accept, more than 10 rounds of ammunition. The term does not include an
attached tubular device designed to accept, and capable of operating
only with, .22 caliber rimfire ammunition, or a fixed device for a
manually operated firearm, or a fixed device for a firearm listed in 18
U.S.C. 922, Appendix A.
(c) An application for a permit, ATF Form 6, to import or bring an
ammunition feeding device into the United States or a possession
thereof under this section shall be filed, in triplicate, with the
Director. The application shall contain:
(1) The name and address of the person importing the device,
(2) A description of the device to be imported, including type and
cartridge capacity, model and caliber of firearm for which the device
was made, country of manufacture, and name of the manufacturer if
known,
(3) The unit cost of the device to be imported,
(4) The country from which to be imported,
(5) The name and address of the foreign seller and the foreign
shipper,
(6) Verification that such device will be marked as required by
this part, and
(7) A statement by the importer that the device is being imported
for sale to purchasers specified in Sec. 178.40a(b) or physical or
reasonable documentary evidence establishing that the magazine was
manufactured on or before September 13, 1994. Any one of the following
examples, which are not meant to be exhaustive, may be sufficient to
establish the time of manufacture:
(i) Permanent markings or physical characteristics which establish
that the magazine was manufactured on or before September 13, 1994;
(ii) A certification from the importer, under penalty of perjury,
that the importer maintained continuous custody beginning on a date
prior to September 14, 1994, and continuing until the date of the
certification. Such certification shall also be supported by reasonable
documentary evidence, such as commercial records;
(iii) A certification from the importer, under penalty of perjury,
that the magazines sought to be imported were in the custody and
control of a foreign Government on or before September 13, 1994, along
with reasonable documentary evidence to support the certification; or
(iv) A certification from the importer, under penalty of perjury,
that the magazine was in the possession of a foreign arms supplier on
or before September 13, 1994, along with reasonable documentary
evidence to support the certification.
(d) The Director shall act upon applications to import ammunition
feeding devices as expeditiously as possible. If the Director approves
the application, such approved application shall serve as the permit to
import the device described therein, and importation of such devices
may continue to be made by the person importing such devices under the
approved application (permit) during the period specified thereon. The
Director shall furnish the approved application (permit) to the
applicant and retain two copies thereof for administrative use. If the
Director disapproves the application, the person importing such devices
shall be notified of the basis for the disapproval.
(e) An ammunition feeding device imported or brought into the
United States by a person importing such a device may be released from
Customs custody to the person importing such a device upon showing that
such person has obtained a permit from the Director for the importation
of the device to be released. In obtaining the release from Customs
custody of such a device authorized by this section to be imported
through use of a permit, the person importing such a device shall
prepare ATF Form 6A, in duplicate, and furnish the original ATF Form 6A
to the Customs officer releasing the device. The Customs officer shall,
after certification, forward the ATF Form 6A to the address specified
on the form. The ATF Form 6A shall show the name and address of the
person importing the device, the name of the manufacturer of the
device, the country of manufacture, the type, model, caliber, size, and
the number of devices released.
(f) Within 15 days of the date of release from Customs custody, the
person importing such a device shall:
(1) Forward to the address specified on the form a copy of ATF Form
6A on which shall be reported any error or discrepancy appearing on the
ATF Form 6A certified by Customs, and
(2) Pursuant to Sec. 178.92, place all required identification data
on each imported device manufactured after September 13, 1994, if same
did not bear such identification data at the time of its release from
Customs custody.
(g) The Director may authorize the conditional importation of an
ammunition feeding device as provided in Sec. 178.116.
(Paragraphs (a), (c), and (d) approved by the Office of Management
and Budget under control numbers 1512-0017 and 1512-0018; paragraphs
(e) and (f) approved by the Office of Management and Budget under
control number 1512-0019)
Signed: March 18, 1996.
Bradley A. Buckles,
Acting Director.
Approved: June 19, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 96-19189 Filed 7-26-96; 8:45 am]
BILLING CODE 4810-31-P
Complete official Federal Register PDF
FR Doc. 96-19184 Removal of Chapter 201, Federal Information Resources Management Regulation, From Title 41Public Contracts and Property Management
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Page 39359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19184]
=======================================================================
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GENERAL SERVICES ADMINISTRATION
41 CFR Chapter 201
[FIRMR Amendment 9]
RIN 3090-AG04
Removal of Chapter 201, Federal Information Resources Management
Regulation, From Title 41--Public Contracts and Property Management
AGENCY: Office of Policy, Planning and Evaluation, GSA.
ACTION: Final rule.
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SUMMARY: This amendment removes Chapter 201, Federal Information
Resources Management Regulation (FIRMR), from Title 41--Public
Contracts and Property Management. This action is necessary because the
Information Technology Management Reform Act of 1996, (Pub. L. 104-106)
effectively removes most of the statutory basis for the FIRMR after
August 7, 1996.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT:
R. Stewart Randall, GSA, Office of Policy, Planning and Evaluation,
Strategic IT Analysis Division (MKS), 18th and F Streets, NW., Room
3224, Washington, DC 20405, telephone FTS/Commercial (202) 501-4469 (v)
or (202) 501-0657 (tdd), or Internet ([email protected]).
SUPPLEMENTARY INFORMATION: (1) The President signed S. 1124, the
National Defense Authorization Act (NDAA) For Fiscal Year 1996, (Pub.
L. 104-106) on February 10, 1996. Included in the NDAA was Division E,
the Information Technology (IT) Management Reform Act of 1996. Section
5105 of the said Act repeals section 111 of the Federal Property and
Administrative Services Act of 1949, as amended (the Brooks Act) (40
U.S.C. 759). The Brooks Act was the authority for most of the
provisions in the GSA's Federal Information Resources Management
Regulation so that the Brooks Act repeal effectively removes most of
the statutory basis for the FIRMR. Any FIRMR provisions that are still
needed, such as those regarding records management, are being removed
from the FIRMR and are being reestablished as appropriate.
(2) GSA has determined that this rule is not a significant rule for
the purposes of Executive Order 12866 of September 30, 1993, because it
is not likely to result in any of the impacts noted in Executive Order
12866, affect the rights of specified individuals, or raise issues
arising from the policies of the Administration. GSA has based all
administrative decisions underlying this rule on adequate information
concerning the need for and consequences of this rule; has determined
that the potential benefits to society from this rule outweigh the
potential costs; has maximized the net benefits; and has chosen the
alternative approach involving the least net cost to society.
List of Subjects in 41 CFR Parts 201-1 Through 201-39
Archives and records, Computer technology, Federal information
processing resources activities, Government procurement, Government
property management, Records management, Telecommunications.
CHAPTER 201--FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATION--
[REMOVED AND RESERVED]
Accordingly, under the authority of 40 U.S.C. 486(c) and 751(f),
Chapter 201 is removed and reserved.
Dated: July 17, 1996.
David J. Barram,
Acting Administrator of General Services.
[FR Doc. 96-19184 Filed 7-26-96; 8:45 am]
BILLING CODE 6820-25-M
Complete official Federal Register PDF
FR Doc. 96-19172 Visas: Passports and Visas Not Required for Certain Nonimmigrants
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39318-39319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19172]
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DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Part 41
[Public Notice 2415]
Visas: Passports and Visas Not Required for Certain Nonimmigrants
AGENCY: Bureau of Consular Affairs, State.
ACTION: Interim rule with request for comments.
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SUMMARY: Section 217 of the Immigration and Nationality Act (INA), 8
U.S.C. 1187, as amended, extends the Visa Waiver Pilot Program (VWPP)
to nationals of all countries that qualify
[[Page 39319]]
under the provisions of the Pilot Program and which are designated by
the Secretary of State and the Attorney General as countries whose
nationals benefit from the waiver of the nonimmigrant B-1/B-2 visa
requirement. The interim rule extends the Visa Waiver Pilot Program to
Australia which the Department has determined has met all of the
requirements for participation in the Program.
DATES: This interim rule is effective July 29, 1996. Written comments
are invited and must be received on or before August 28, 1996.
ADDRESSES: Written comments may be submitted, in duplicate, to the
Chief, Legislation and Regulations Division, Visa Services, Department
of State, Washington, DC 20520-0113.
FOR FURTHER INFORMATION CONTACT:
Stephen K. Fischel, Chief, Legislation and Regulations Division, Visa
Office, Department of State, Washington, DC 20522-0113 (202) 663-1204.
SUPPLEMENTARY INFORMATION: This interim rule amends Part 41, Title 22
of the Code of Federal Regulations concerning visas for nonimmigrants
pursuant to section 217 of the Immigration and Nationality Act, 8
U.S.C. 1187, as amended by Public Law 103-415, 108 Stat. 4299, October
25, 1994 and Public Law 103-416, 108 Stat. 4305, October 25, 1994.
Section 313 of the Immigration Reform and Control Act of 1986 (IRCA),
Public Law 99-603, added section 217 to the INA. Section 217, 8 U.S.C.
1187, established the nonimmigrant Visa Waiver Pilot Program which
waives the nonimmigrant visa requirement for the admission of certain
aliens into the United States for a period not to exceed ninety days.
That original provision authorized the participation of eight countries
in the VWPP to be designated by the Secretary of State and the Attorney
General, acting jointly. These original qualifying countries included:
France; the Federal Republic of Germany; Italy; Japan, the Netherlands;
Sweden; Switzerland; and the United Kingdom. (See Federal Register
publications 53 FR 24903-24904, June 30, 1988; 53 FR 50161-50162,
December 13, 1988; and 54 FR 27120-27121, June 27, 1989.)
Public Law 103-415 amended section 217 of the INA to extend the
Visa Waiver Pilot Program through September 30, 1995. Public Law 103-
416 amended section 217 of the INA to extend the Visa Waiver Pilot
Program to September 30, 1996, and to create a new probationary status
for certain countries which meet the requirements for that status under
the Visa Waiver Pilot Program and which are designated by the Secretary
of State and the Attorney General, acting jointly, as countries whose
nationals benefit from the waiver of the nonimmigrant B-1/B-2 visa
requirement.
On November 29, 1990, the President approved the Immigration Act of
1990 (Pub. L. 101-649, 104 Stat. 4978) [IA]). Section 201 thereof
revised the Visa Waiver Pilot Program set forth in section 313 of IRCA
(Sec. 217 INA, 8 U.S.C. 1187). It removed the eight-country cap and
extended its provisions to all countries that meet the qualifying
provisions of the Visa Waiver Pilot Program and are designated by the
Secretary of State and the Attorney General as Pilot Program countries
thereunder.
Effective October 1, 1991, Andorra, Austria, Belgium, Denmark,
Finland, Iceland, Liechtenstein, Luxembourg, Monaco, New Zealand,
Norway, San Marino, and Spain, having met all of the requirements for
participants in the nonimmigrant Visa Waiver Pilot Program, were added
as participants in the Program. (See 56 FR 46716-46717, September 13,
1991.) Brunei was designated as a participant in the Visa Waiver Pilot
Program by the Secretary of State and the Attorney General, acting
jointly through their designees, in an interim rule published at 58 FR
40581-40586 of the Federal Register of July 26, 1993. On March 28, 1995
the interim rule published at 59 FR 15872-15873 added Ireland as a Visa
Waiver Pilot Program country with probationary status. Argentina was
added as a Visa Waiver Pilot Program country on July 8, 1996 (see 61 FR
35628-35629).
Each of the above rules amended 22 CFR 41.2. This interim rule,
with request for comments, further amends Part 41, Title 22 to include
Australia as a Visa Waiver Pilot Program country.
For a country to qualify as a participant in the Visa Waiver Pilot
Program, the country must agree to waive the visa requirement for
nationals of the United States entering for ninety (90) days or less,
must meet statutorily prescribed limits on visa refusal rates for the
prior two year period as well as the prior year; must meet statutorily
prescribed limits on rates of exclusion at port of entry and on
overstay limits, and must have a machine readable passport program. The
Department has determined that Australia has met these requirements,
and Australia, therefore, is added effective (enter date of publication
in the Federal Register) as a participating country in the Visa Waiver
Pilot Program. (See the Immigration and Naturalization Service rule
also published in this issue of the Federal Register.)
Interim Rule
The implementation of this rule as an interim rule, with a 30-day
provision for post-promulgation public comments, is based upon the
``good cause'' exceptions set forth at 5 U.S.C. 553(b)(B) and
553(d)(3). Because this rule will facilitate U.S. tourist and business
travel to Australia, pre-promulgation public comment would be contrary
to the public interest. This rule will, therefore, become effective
upon publication in the Federal Register.
In accordance with 5 U.S.C. 605(b) [Regulatory Flexibility Act], it
is certified that this rule does not have a ``significant adverse
economic impact'' on a substantial number of small entities, because it
is inapplicable. This rule is exempt from E.O. 12866, but has been
coordinated with the Immigration and Naturalization Service because
joint action of the Secretary of State and the Attorney General is
required under section 217 of the INA, as amended.
The rule imposes no reporting or record-keeping action from the
public requiring the approval of the Office of Management and Budget
under the Paperwork Reduction Act. This rule has been reviewed as
required by E.O. 12988 and is certified to be in compliance therewith.
List of Subjects in 22 CFR Part 41
Aliens, Nonimmigrants, Visas, Passports, Temporary visitors,
Waivers.
In view of the foregoing, 22 CFR Part 41 is amended as follows:
PART 41--[AMENDED]
1. The authority citation for Part 41 continues to read:
Authority: 8 U.S.C. 1104, 66 Stat. 174; 8 U.S.C. 1187, 108 Stat.
4312 and 4313.
2. In Sec. 41.2 the last sentence of paragraph (l)(2) is amended by
removing the period and adding the following text at the end of the
sentence:
Sec. 41.2 Waiver by Secretary of State and Attorney General of
passport and/or visa requirements for certain categories of
nonimmigrants.
* * * * *
(l) * * * (2) * * * ``; and Australia effective July 29, 1996.''
* * * * *
Dated: July 23, 1996.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 96-19172 Filed 7-26-96; 8:45 am]
BILLING CODE 4710-06-M
Complete official Federal Register PDF
FR Doc. 96-19171 Government Contracting Assistance; Correction
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39304-39305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19171]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 125
Government Contracting Assistance; Correction
AGENCY: Small Business Administration.
ACTION: Correction to final regulation.
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SUMMARY: This document contains corrections to a final rule published
by the Small Business Administration (SBA) in the Federal Register on
Wednesday, January 31, 1996 (61 FR 3310). The regulation related to
small business prime contractor's performance. The correction is needed
to ensure consistency with other provisions contained in SBA's
regulations.
EFFECTIVE DATE: July 29, 1996.
FOR FURTHER INFORMATION CONTACT: Richard Sadowski, Acting Assistant
Administrator, Office of Industrial Assistance, (202) 205-6475.
SUPPLEMENTARY INFORMATION: On January 31, 1996, SBA published in the
Federal Register (61 FR 3310) a complete revision to the regulations
pertaining to SBA's procurement assistance programs. Included within
this final rule was a new section (Sec. 125.6) entitled ``Prime
contractor performance requirements (limitations on subcontracting).''
61 FR 3315. As published, the final regulation contains two errors that
may be misleading and need to be changed. First, Sec. 125.6(a)(2) uses
the term ``regular dealer.'' However, the definition of ``regular
dealer'' was abolished by section 7201 of the Federal Acquisition
Streamlining Act of 1994 (FASA). Specifically, FASA repealed the
``regular dealer'' or ``manufacturer'' eligibility requirements imposed
by the Walsh-Healey Public Contracts Act. Without a current definition
for the term ``regular dealer,'' SBA believes that its use in this
[[Page 39305]]
regulation would be confusing. As such, this correction rule
substitutes the term ``non-manufacturer'' for ``regular dealer'' in
Sec. 125.6(a)(2) to ensure consistency with other sections of 13 CFR
Part 125 and to remove the ambiguity created by the use of the term
``regular dealer.''
Second, as set forth in the January 31, 1996 final rule,
Sec. 125.6(c) stated that compliance with the Prime Contractor
Performance Requirements would be determined as of the date the bid was
submitted in a sealed bid procurement, and as of the date the concern
submits its best and final offer in a negotiated procurement. This
provision is inconsistent with the general responsibility requirements.
In determining an offeror's responsibility to perform a specific
contract as part of a Certificate of Competency review, SBA determines
whether the offeror is capable of performing the contract at the time
of award. The offeror can make changes to demonstrate that it can
perform the contract up until the time of award. Because the Prime
Contractor Performance Requirements are now to be considered an issue
of responsibility, compliance with them also should be able to be
demonstrated up until the time of award. Thus, this correction rule
eliminates Sec. 125.6(c) for internal consistency, and redesignates
paragraphs (d), (e), (f), and (g) as paragraphs (c), (d), (e), and (f),
respectively.
Correction of Publication
Accordingly, the publication on January 31, 1996, of the final
regulations that were the subject of FR Doc. 96-1157, is corrected as
follows:
Sec. 125.6 [Corrected]
1. On page 3315 in the third column, Sec. 125.6(a)(2), remove the
words ``regular dealer'' and add in their place the word ``non-
manufacturer''.
2. On page 3316, in the first column, section 125.6, remove
paragraph (c) in its entirety and redesignate paragraphs (d) through
(g) as (c) through (f), respectively.
Dated: July 16, 1996.
Ginger Lew,
Deputy Administrator.
[FR Doc. 96-19171 Filed 7-26-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-19169 Adding Australia to the List of Countries Authorized To Participate in the Visa Waiver Pilot Program
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39271-39273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19169]
=======================================================================
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 217
[INS No. 1782-96]
RIN 1115-AB93
Adding Australia to the List of Countries Authorized To
Participate in the Visa Waiver Pilot Program
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service
(``Service'') regulations by adding Australia to the list of countries
designated to participate in the Visa Waiver Pilot Program (VWPP),
thereby permitting nationals of Australia to apply for admission to the
United States for ninety (90) days or less as nonimmigrant visitors for
business or pleasure without first obtaining a nonimmigrant visa. This
action will facilitate travel to the United States and benefit United
States businesses.
DATES: This interim rule is effective July 29, 1996. Written comments
must be submitted on or before September 27, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling please reference INS number 1782-96 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
Tom Graber, Assistant Chief Inspector, Inspections Division,
Immigration and Naturalization Service, 425 I Street NW., Room 7228,
Washington, DC 20536, Telephone number: (202) 616-7496.
SUPPLEMENTARY INFORMATION: Section 313 of the Immigration Reform and
Control Act of 1986 (IRCA), Public Law 99-603, added section 217 to the
Immigration and Nationality Act (Act), 8 U.S.C. 1187, which established
the VWPP. The VWPP waives the nonimmigrant visa requirement for the
admission of certain aliens to the United States for a period not to
exceed ninety (90) days. That original provision authorized the
participation of eight countries in the Pilot Program. Accordingly, the
Service designated by regulations published in the Federal
[[Page 39272]]
Register, the following eight (8) countries to participate in the VWPP:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Country Effective date Federal Register citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) United Kingdom....................... July 1, 1988............................. 53 FR 24901, June 30, 1988.
(2) Japan................................ December 15, 1988........................ 53 FR 50161, December 13, 1988.
(3) France............................... July 1, 1989............................. 54 FR 27120, June 27, 1989.
(4) Switzerland.......................... July 1, 1989............................. 54 FR 27120, June 27, 1989.
(5) Germany.............................. July 15, 1989............................ 54 FR 27120, June 27, 1989.
(6) Sweden............................... July 15, 1989............................ 54 FR 27120, June 27, 1989.
(7) Italy................................ July 29, 1989............................ 54 FR 27120, June 27, 1989.
(8) Netherlands.......................... July 29, 1989............................ 54 FR 27120, June 27, 1989.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 201 of the Immigration Act of 1990 (IMMACT 90), Public Law
101-649, dated November 29, 1990, further amended the VWPP removing the
eight-country cap and extending the provisions to all countries that
met the qualifying provisions contained in section 217 of the Act. In
addition, section 201 of IMMACT 90 also extended the period for the
VWPP until September 30, 1994. Subsequently, the Service designated by
regulations published in the Federal Register, the following fifteen
(15) additional countries to participate in the VWPP:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Country Effective date Federal Register citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Andorra.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(2) Austria.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(3) Belgium.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(4) Denmark.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(5) Finland.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(6) Iceland.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(7) Liechtenstein........................ October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(8) Luxembourg........................... October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(9) Monaco............................... October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(10) New Zealand......................... October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(11) Norway.............................. October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(12) San Marino.......................... October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(13) Spain............................... October 1, 1991.......................... 56 FR 46716, September 13, 1991.
(14) Brunei.............................. July 29, 1993............................ 58 FR 40581, July 29, 1993.
(15) Argentina........................... July 8, 1996............................. 61 FR 35598, July 8, 1996.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 210 of the Immigration and Nationality Technical
Corrections Act of 1994, Public Law 103-416, dated October 25, 1994,
extended the expiration date of the VWPP until September 30, 1996.
Addition of Australia to the VWPP
Australia does not require visas for citizens and nationals of the
United States entering for ninety (90) days or less. Thus it meets the
requirement of providing reciprocal treatment for United States
citizens and nationals. Australia also meets the statutorily prescribed
limits on visa refusal rates for the prior 2-year period and for each
of those two years. Australia also has a machine-readable passport
program and the Attorney General has determined that law enforcement
interests would not be compromised by the designation of Australia.
Accordingly, this interim rule amends 8 CFR part 217 to extend the VWPP
to include the country of Australia, which meets all the requirements
for that status. Australia is, therefore, designated as a country
participating in the VWPP by the Secretary of State and the Attorney
General, acting jointly through their designees. [See the Department of
State rule published elsewhere in this issue of the Federal Register.]
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based upon the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reasons and the necessity for immediate implementation of this interim
rule without prior notice and comment are as follows: This interim rule
relieves a restriction and is beneficial to both the traveling public
and United States businesses.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule merely removes a restriction for both the
public and United States businesses.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation 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 rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 8 CFR Part 217
Administrative practices and procedures, Aliens, Nonimmigrants,
Passports and visas.
[[Page 39273]]
Accordingly, part 217 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 217--VISA WAIVER PILOT PROGRAM
1. The authority citation for part 217 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1187, 8 CFR part 2.
2. In Sec. 217.5, paragraph (a)(1) is revised to read as follows:
Sec. 217.5 Designated countries.
(a)(1) Visa Waiver Pilot Program Countries. United Kingdom
(effective July 1, 1988); Japan (effective December 15, 1988); France
and Switzerland (effective July 1, 1989); Germany and Sweden (effective
July 15, 1989); Italy and the Netherlands (effective July 29, 1989);
Andorra, Austria, Belgium, Denmark, Finland, Iceland, Liechtenstein,
Luxembourg, Monaco, New Zealand, Norway, San Marino, and Spain
(effective October 1, 1991); Brunei (effective July 29, 1993);
Argentina (effective July 8, 1996); and Australia [Insert date of
publication in the Federal Register] have been designated as Visa
Waiver Pilot Program countries based on the criteria set forth at
sections 217(a)(2)(A) and 217(c) of the Act.
* * * * *
Dated: July 24, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-19169 Filed 7-26-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-19143 Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to the Tennessee SIP and the Nashville/Davidson County Portion of the Tennessee SIP Regarding Nitrogen Oxides
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39326-39329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19143]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-113-6768a; TN-122-6767a; TN-133-6568a; TN-138-6766a; TN-163-9625a;
TN-170-9630a; FRL-5529-5]
Approval and Promulgation of Implementation Plans Tennessee:
Approval of Revisions to the Tennessee SIP and the Nashville/Davidson
County Portion of the Tennessee SIP Regarding Nitrogen Oxides
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, EPA is acting on revisions to the Tennessee
State Implementation Plan (SIP) submitted to EPA by Tennessee, through
the Tennessee Department of Air Pollution Control (TDAPC) which add a
new chapter to the Nashville/Davidson County and the State portion of
the Tennessee SIP for the control of nitrogen oxide (NOX)
emissions. Only the portions of the Tennessee NOX rule necessary
for the approval of Tennessee's ozone redesignation request are being
approved in this notice. EPA is granting an exemption to the area under
182(f) of the Clean Air Act (CAA) from NOX Reasonably Available
Control Technology (RACT) requirements in a separate action. The only
sources which will be subject to this rule are tangentially-fired coal
burning boilers which have a heat input capacity in excess of 600
million BTU per hour in the five county Nashville ozone nonattainment
area.
DATES: This final rule is effective September 27, 1996 unless adverse
or critical comments are received by August 28, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to
William Denman at the Environmental Protection Agency, Region 4 Air
Programs Branch, 345 Courtland Street, NE, Atlanta, Georgia 30365.
Copies of documents relative to this action are available for public
inspection during normal business hours at the following locations. The
interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day. Reference files TN113-01-6768, TN122-01-6767, TN133-01-
6568, TN138-01-6766, TN163-01-9625, and TN170-01-9630. The Region 4
office may have additional background documents not available at the
other locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365, William Denman, 404/347-
3555 extension 4208.
[[Page 39327]]
Tennessee Department of Environment and Conservation, Division of Air
Pollution Control, L & C Annex, 9th Floor, 401 Church Street,
Nashville, Tennessee 37243-1531, 615/532-0554.
FOR FURTHER INFORMATION CONTACT: William Denman 404/347-3555, extension
4208.
SUPPLEMENTARY INFORMATION: Tennessee submitted the State's NOX
chapter (1200-3-27) for incorporation into the State's portion of the
Tennessee SIP in submittals dated June 14, 1993, (reference file TN113-
01-6768) and May 26, 1994, (reference file TN133-01-6568). The State
then submitted revisions to chapter 1200-3-27 on July 29, 1994,
(reference file TN138-01-6766), February 23, 1996, (reference file
TN163-01-9625), and April 29, 1996, (reference file TN170-01-9630).
Tennessee submitted the NOX chapter (Regulation Number 14) for the
Nashville/Davidson County portion of the Tennessee SIP on September 28,
1993, (reference file TN122-01-6767). EPA is acting only on the
portions of these submittals necessary for the approval of the
Nashville ozone redesignation request. EPA is granting an exemption
from NOX RACT requirements for the five county nonattainment area
under 182(f) of the CAA. It is necessary for approval of the Nashville
ozone redesignation request to approve control measures into the SIP
for tangentially-fired coal burning boilers since some NOX
reductions were obtained from these sources prior to the attainment of
the ozone standard in the area. The rules are being approved into the
SIP as discussed below.
State of Tennessee NOX Chapter: Chapter 1200-3-27 ``Nitrogen
Oxides''
1200-3-27-.01 ``Definitions'': This section contains the
definitions for facility and nitrogen oxides and states that the
definitions in the Volatile Organic Compound chapter will apply to
terms not defined in chapter 1200-3-27. This section is being approved
into the Tennessee SIP.
1200-3-27-.02 ``General Provisions and Applicability'': This rule
contains six paragraphs. Paragraph (1) states that the standards and
requirements of rule 1200-3-27 will apply to certain sources of
nitrogen oxides. Paragraph (2) states that a more stringent emission
limit than otherwise specified may be established. Paragraph (3) states
that nothing in this chapter shall be used to exempt sources from
meeting other applicable requirements. Paragraph (4) prevents sources
from concealing emissions. Paragraph (5) requires sources to pay costs
associated with publishing required legal notices for source specific
compliance requests. EPA is approving the above paragraphs into the
Tennessee SIP. Paragraph (6) contains the emissions statement
requirement for NOX. In an amendment dated February 23, 1996, the
State proposed to remove Knox county from the emissions statement
requirement. Since Knox county applied for redesignation to attainment
for ozone prior to November 14, 1992, and since the State demonstrated
that the elimination of this requirement will not adversely affect the
area's maintenance of the ozone standard, EPA is approving the
emissions statement without Knox County in the applicability portion.
1200-3-27-.03 ``Standards and Requirements'': Paragraph (1) gives
the applicability requirements for NOX emission standards.
Subparagraph (1)(a) requires all sources located in the five county
ozone nonattainment area which have the potential to emit 100 tons per
year (tpy) or more of NOX to apply RACT. EPA is not approving
subparagraph (1)(a) into the Tennessee SIP. Subparagraph (1)(b)
requires all tangentially-fired coal burning boilers located in the
five county ozone nonattainment area with a heat input capacity in
excess of 600 million BTU per hour to not allow emissions of NOX
from that boiler in excess of 0.45 pounds per million BTU on a 30-day
rolling average. EPA is approving paragraph (1) and subparagraph (1)(b)
of this section into the Tennessee SIP.
Paragraph (2) states that for the purpose of determining
applicability to paragraph (1)(a), the NOX emissions from all
process emission sources and fuel burning equipment shall be totaled.
Paragraph (2) is not being approved into the Tennessee SIP because it
applies only to those sources subject to subparagraph (1)(a), which is
also not being approved into the SIP.
Paragraph (3) determines the compliance schedules for sources
subject to this chapter. Subparagraph (3)(a) contains the compliance
schedule for tangentially-fired coal burning boilers and is therefore
being approved into the Tennessee SIP. Subparagraph (3)(b) contains the
compliance schedule for the other sources subject to this rule and is
not being approved into the Tennessee SIP.
Paragraph (4) exempts certain sources from the requirements of
chapter 1200-3-27. This does not affect those sources subject to rule
1200-3-27-.03(1)(b) which are being approved into the SIP. Therefore,
EPA is not approving paragraph (4) into the SIP.
Nashville/Davidson County NOX Rule: Regulation Number 14--
``Regulation for the Control of Nitrogen Oxides''
Section 14-1 ``Definitions'': This section gives definitions for
terms used in this chapter and states that the definitions in Chapter
10.56.010 which is the definitions section of the Nashville/Davidson
County Air Pollution Control Chapter shall be used to define terms not
defined in this section. EPA is approving this section into the
Nashville/Davidson County portion of the Tennessee SIP.
Section 14-2 ``Emission Standards'': Paragraph (b) requires
tangentially-fired coal burning boilers in excess of 600 million BTU
per hour to not allow emissions from that boiler to exceed 0.45 pounds
per million BTU on a 30-day rolling average. EPA is approving this
paragraph (b) of this section into the SIP. The other paragraphs of
this section contain requirements for other sources and at this time
are not necessary to be SIP approved. Therefore, EPA is not approving
the other paragraphs into the SIP at this time.
Section 14-3 ``Procedure for Determining RACT'': Since EPA is
granting an exemption for Davidson County from NOX RACT
requirements in a separate action, this section is not being approved
into the SIP.
Section 14-4 ``Recordkeeping and Reporting Requirements'': This
section gives the recordkeeping and reporting requirements for this
regulation. EPA is approving this section into the SIP.
Section 14-5 ``Compliance Schedule'': This section contains the
compliance schedule for sources subject to this rule. EPA is approving
this section into the SIP.
As stated in the approval of the NOX RACT exemption request,
until the five county middle Tennessee ozone nonattainment area is
designated attainment, the continuation of the section 182(f) exemption
granted is contingent upon continued monitoring and continued
maintenance of the O3 NAAQS in the entire Middle Tennessee
nonattainment area. If there is a violation of the O3 NAAQS in any
portion of the Middle Tennessee nonattainment area, the exemption will
no longer be applicable as of the date of any such determination. A
determination that the NOX exemption no longer applies would mean
that the NOX RACT requirement is immediately applicable to the
affected area. EPA believes some reasonable period of notice is
necessary to provide major stationary sources subject to the RACT
requirement time to purchase, install, and operate any required
controls.
[[Page 39328]]
Accordingly, the State may provide sources a reasonable time period to
meet the RACT emission limits after the EPA determination that NOX
RACT requirement is necessary. EPA expects the time period to be as
expeditious as practicable, but in no case longer than 24 months. The
approval of this exemption from federal NOX requirements in no way
exempts sources from any NOX controls required by the State.
Final Action
The EPA is approving the aforementioned revisions to the Tennessee
SIP because they are consistent with the CAA and EPA policy. This rule
making is being published without a prior proposal for approval because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective September 27, 1996 unless, by August 28, 1996, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the separate proposed
rule. The EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective September 27, 1996.
Under section 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.
7607(b)(1), petitions for judicial review of this action must be filed
in the United States Court of Appeals for the appropriate circuit by
September 27, 1996. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
rule for purposes of judicial review nor does it extend the time within
which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2) of the CAA, 42 U.S.C. 7607(b)(2).)
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by
a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2) and 7410(k)(3).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Section 182 of the CAA.
These rules may bind State, local and tribal governments to perform
certain actions and also require the private sector to perform certain
duties. EPA has examined whether the rules being approved by this
action will impose any new requirements. Since such sources are already
subject to these regulations under State law, no new requirements are
imposed by this approval. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action, and therefore there will be no significant impact on a
substantial number of small entities.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements.
Dated: June 14, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart RR--Tennessee
2. Section 52.2220 is amended by adding (c)(139) to read as
follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(139) Addition of a new chapter 1200-3-27 ``Nitrogen Oxides''
submitted by the Tennessee Department of Air Pollution Control (TDAPC)
to EPA on June 14, 1993, September 28, 1993, May 26, 1994, July 29,
1994, February 23, 1996.
(i) Incorporation by reference.
(A) Regulation 1200-3-27 ``Nitrogen Oxides'', 1200-3-27-.01; 1200-
3-27-.02; 1200-3-27-.03 (1) introductory sentence, (1)(b), (3)
introductory sentence, (3)(a), effective as of October 28, 1995.
[[Page 39329]]
(B) Nashville/Davidson County regulation number 14 ``Regulation for
the Control of Nitrogen Oxides'', Section 14-1; Section 14-2 (b);
Section 14-4; Section 14-5; adopted on August 10, 1993.
(ii) Other material. None.
[FR Doc. 96-19143 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19141 Approval and Promulgation of Implementation Plans; Wisconsin
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39329-39330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19141]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI67-01-7276a; FRL-5539-1]
Approval and Promulgation of Implementation Plans; Wisconsin
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This action approves a State Implementation Plan (SIP)
revision for the State of Wisconsin which was submitted pursuant to the
EPA general conformity rules set forth at 40 CFR part 51, subpart W--
Determining Conformity of General Federal Actions to State or Federal
Implementation Plans. Section 51.851(a) of the general conformity rules
requires each State to submit to EPA a revision to its applicable SIP
which contains criteria and procedures for assessing conformity of
Federal actions to applicable SIPs. The general conformity rules,
except for the 40 CFR 51.851(a) language requiring State submission of
a SIP revision, are repeated at 40 CFR part 93, subpart B. Wisconsin's
SIP revision incorporates verbatim the criteria and procedures set
forth at 40 CFR part 93, subpart B. This general conformity SIP
revision will enable the State of Wisconsin to implement and enforce
the Federal general conformity requirements in the nonattainment and
maintenance areas at the State and local level.
This approval is limited only to the general conformity SIP
revision submitted pursuant to 40 CFR part 51, subpart W. SIP revisions
submitted under 40 CFR part 51, subpart T, relating to conformity of
Federal transportation actions funded or approved under Title 23 U.S.C.
or the Federal Transit Act, will be addressed in a separate document.
This action provides the rationale for the proposed approval and other
information.
DATES: This ``direct final'' rule is effective September 27, 1996
unless EPA receives adverse or critical comments by August 28, 1996. If
the effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the SIP revision, public comments and EPA's
responses are available for inspection at the following address: United
States Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. (It is
recommended that you telephone Michael Leslie at (312) 353-6680 before
visiting the Region 5 Office.)
A copy of this SIP revision is available for inspection at the
following location: Office of Air and Radiation (OAR) Docket and
Information Center (Air Docket 6102), room M1500, United States
Environmental Protection Agency, 401 M Street S.W., Washington, D.C.
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
353-6680.
SUPPLEMENTARY INFORMATION:
I. Background
Section 176(c) of the Clean Air Act (Act), 42 U.S.C. 7506(c),
provides that no Federal department, agency, or instrumentality shall
engage in, support in any way or provide financial assistance for,
license or permit, or approve any activity which does not conform to a
SIP that has been approved or promulgated pursuant to the Act.
Conformity is defined in section 176(c) of the Act as conformity to the
SIP's purpose of eliminating or reducing the severity and number of
violations of the National Ambient Air Quality Standards (NAAQS) and
achieving expeditious attainment of such standards, and that such
activities will not: (1) Cause or contribute to any new violation of
any standard in any area, (2) increase the frequency or severity of any
existing violation of any standard in any area, or (3) delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area.
Section 176(c)(4)(A) of the Act requires EPA to promulgate criteria
and procedures for determining conformity of all Federal actions to
applicable SIPs. Criteria and procedures for determining conformity of
Federal actions related to transportation projects funded or approved
under Title 23 U.S.C. or the Federal Transit Act are set forth at 40
CFR part 51, subpart T. The criteria and procedures for determining
conformity of other Federal actions, the ``general conformity'' rules,
were published in the November 30, 1993, Federal Register and codified
at 40 CFR part 51, subpart W--Determining Conformity of General Federal
Actions to State or Federal Implementation Plans. The general
conformity rules require the States and local air quality agencies
(where applicable) to adopt and submit a general conformity SIP
revision to the EPA not later than November 30, 1994.
II. Evaluation of the State's Submittal
Pursuant to the requirements under section 176(c)(4)(C) of the Act
the Wisconsin Department of Natural Resources (WDNR) submitted a
supplement to its November 30, 1994 general conformity SIP revision to
the EPA on October 18, 1995. In its submittal, the State provided ch.
NR 489, Wis. Adm. Code which adopts the EPA general conformity rule (40
CFR part 93, subpart B) verbatim. For the time period between the
original submittal and the supplemental submittal, the State of
Wisconsin was required to comply with 40 CFR part 93, subpart B.
General conformity is required for all areas which are designated
nonattainment or maintenance for any NAAQS criteria pollutant. The
State of Wisconsin currently has 11 counties designated ozone
nonattainment: Door, Keewaunee, Manitowoc, Sheboygan, Kenosha,
Milwaukee, Ozaukee, Racine, Walworth, Washington, and Waukesha. The
cities of Green Bay, Madison, and Milwaukee are sulfur dioxide
(SO2) maintenance areas. Four other areas: Rhinelander, Rib
Mountain, Rothchild, and Weston are SO2 nonattainment areas.
The WDNR held a public hearing on the general conformity submittal
on March 29, 1995. No substantive comments were made during the public
comment period and therefore, no modifications were made to the final
adopted rule.
III. EPA Criteria on Submittal
The State's SIP revision must contain criteria and procedures that
are no less stringent than the Federal rule. The revision incorporated
the provisions of the following sections of 40 CFR part 93, subpart B
in essentially verbatim form: Sections 93.150, 93.152, 93.153, 93.154,
93.155, 93.156, 93.157, 93.158, 93.159, 93.160. These sections
represent the Federal rule in total. Therefore the ch. NR 489, Wis.
Adm. Code meets the above requirement.
IV. EPA Action
The EPA is approving the general conformity SIP revision for the
State of
[[Page 39330]]
Wisconsin. The EPA has evaluated this SIP revision and has determined
that the State has fully adopted the provisions of the Federal general
conformity rules set forth at 40 CFR part 93, subpart B. The
appropriate public participation and comprehensive interagency
consultations have been undertaken during development and adoption of
this SIP revision. Because EPA considers this action to be
noncontroversial and routine, EPA is approving it without prior
proposal. This action will become effective on September 27, 1996.
However, if EPA receives adverse comments by August 28, 1996, EPA will
publish a document that withdraws this action.
V. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
D. Unfunded Mandates Reform Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
F. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 27, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2) of the Act).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, General
conformity, Hydrocarbons, Incorporation by reference, Intergovernmental
relations, Sulfur dioxide, Ozone, Volatile organic compounds.
Dated: June 24, 1996.
David A. Ullrich,
Acting Regional Administrator.
40 CFR part 52, is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart YY--Wisconsin
2. Section 52.2570 is amended by adding paragraph (c)(92) to read
as follows:
Sec. 52.2570 Identification of plan.
* * * * *
(c) * * *
(92) On October 18, 1995, the Wisconsin Department of Natural
Resources submitted a revision to the State Implementation Plan for
general conformity rules. The general conformity SIP revisions enable
the State of Wisconsin to implement and enforce the Federal general
conformity requirements in the nonattainment or maintenance areas at
the State or local level in accordance with 40 CFR part 93, subpart B--
Determining Conformity of General Federal Actions to State or Federal
Implementation Plans.
(i) Incorporation by reference.
(A) NR 489, as created and published in the (Wisconsin) Register,
September, 1995, number 477, effective October 1, 1995.
[FR Doc. 96-19141 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19140 Approval and Promulgation to State Implementation Plan; Michigan; 182(f) SIP Revision
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39330-39332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19140]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI47-01-7250; FRL-5541-1]
Approval and Promulgation to State Implementation Plan; Michigan;
182(f) SIP Revision
AGENCY: Environmental Protection Agency.
ACTION: Technical amendment.
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[[Page 39331]]
SUMMARY: The Environmental Protection Agency (EPA) is revising the Code
of Federal Regulations to acknowledge the fact that on the date that
the Detroit-Ann Arbor area was redesignated to attainment for ozone,
the NOX requirements found in the area's maintenance plan would
now apply and the NOX exemption that was granted on March 7, 1995
no longer applies.
DATES: This final rule is effective on August 28, 1996.
ADDRESSES: Copies of the Detroit-Ann Arbor area NOX exemption
request and the Detroit-Ann Arbor redesignation request, public
comments and EPA's responses are available for inspection at the
following address: United States Environmental Protection Agency, Air
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois
60604.
FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
Air and Radiation Division, United States Environmental Protection
Agency, Region 5, Chicago, Illinois 60604, Telephone Number (312) 353-
6960.
SUPPLEMENTARY INFORMATION:
I. Action
On November 12, 1993 the State of Michigan submitted a petition to
the U.S. EPA requesting that the Detroit-Ann Arbor ozone nonattainment
area be exempted from the requirement to implement NOX controls
pursuant to section 182(f) of the Act. The exemption request was based
on monitoring data which demonstrate that the average number of
exceedances of the ozone standard in the Detroit-Ann Arbor area during
the most recent 3 year period, 1991 through 1993, was fewer than one.
On March 7, 1995, a final rule was published in the Federal
Register approving Michigan's request for a NOX waiver for the
Detroit-Ann Arbor area. This final rule stated that on November 12,
1993, the State of Michigan also submitted an ozone redesignation
request for the Detroit-Ann Arbor area. Section 107(d)(3)(E) of the Act
requires submittal and full approval of a section 175(A) maintenance
plan for areas that are redesignating to attainment. This maintenance
plan must contain contingency measures that would be implemented if a
violation of the ozone standard were to occur. Consequently, if the
State's redesignation request is approved, the NOX requirements
found in the maintenance plan for that area would thereafter apply as
long as the area continues to be designated attainment for ozone.
On March 7, 1995, EPA approved in final Michigan's request for
redesignation to attainment. Because the Detroit-Ann Arbor area was
redesignated to attainment, the NOX waiver no longer applies and
was replaced by the NOX requirements found in the area's
maintenance plan.
This document serves to revise the Code of Federal Regulations to
acknowledge that on March 7, 1995, the NOX requirements found in
the maintenance plan for Detroit-Ann area became effective and that the
NOX waiver granted to the Detroit-Ann Arbor ozone nonattainment
area no longer applies. The NOX requirements in the area's
maintenance plan are applicable as long as the area continues to be
designated attainment for ozone.
II. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214), as revised by a July
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air
and Radiation. The Office of Management and Budget has exempted this
regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This technical amendment does not create any new requirements.
Therefore, I certify that this action does not have a significant
impact on any small entities affected. Moreover, due to the nature of
the Federal-State relationship under the Act, preparation of the
regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of the State action. The Act forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co. v.
U.S. EPA, 427 U.S. 246, 256-66 (1976).
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that this action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector.
This Federal action serves only as a public notification.
Accordingly, no additional costs to State, local, or tribal
governments, or the private sector, result from this action.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
F. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 27, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it
[[Page 39332]]
extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Oxides of nitrogen, Ozone,
Reporting and recordkeeping requirements.
Dated: July 2, 1996.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart X--Michigan
Sec. 52.1174 [Amended]
2. Section 52.1174 is amended by removing and reserving paragraph
(j).
[FR Doc. 96-19140 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19139 General Administrative Regulations; Reinsurance Agreement Standards for Approval
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39268-39270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19139]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 400
General Administrative Regulations; Reinsurance Agreement--
Standards for Approval
AGENCY: Federal Crop Insurance Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Crop Insurance Corporation (FCIC) hereby amends
its General Administrative Regulations by revising the Disputes clause.
The intended effect of this rule is to provide reinsured companies with
an informal reconsideration process through an administrative officer
of FCIC and the right to appeal the administrative officer's
determination to the Board of Contract Appeals.
EFFECTIVE DATE: July 29, 1996.
FOR FURTHER INFORMATION CONTACT: Diana Moslak, (202) 720-2832.
SUPPLEMENTARY INFORMATION:
Executive Order 12866 and Departmental Regulation 1512-1
This action has been reviewed under United States Department of
Agriculture (USDA) procedures established by Executive Order 12866 and
Departmental Regulation 1512-1. This action constitutes a review as to
the need, currency, clarity, and effectiveness of these regulations
under those procedures. The sunset review date established for these
regulations is March 31, 1999.
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
Paperwork Reduction Act of 1995
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. chapter 35).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, FCIC
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, or tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When such a statement is needed for a rule, section 205 of
the UMRA generally requires FCIC to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, more
cost-effective or least burdensome alternative that achieves the
objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments of the private sector. Thus, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Executive Order 12612
It has been determined under section 6(a) of Executive Order 12612,
Federalism, that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment. The
policies and procedures contained in this rule will not have a
substantial direct effect on States or their political subdivisions, or
on the distribution of power and responsibilities among the various
levels of government.
Regulatory Flexibility Act Analysis
This regulation will not have a significant impact on a substantial
number of small entities. The amount of work required of the insurance
companies should not increase because this action only changes the
forum which determines the validity of decisions rendered by the
agency. Therefore, this action is determined to be exempt from the
provisions of the Regulatory Flexibility Act (5 U.S.C. Sec. 605) and no
Regulatory Flexibility Analysis was prepared.
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372 which require intergovernmental consultation with State and local
officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order 12778
The Office of the General Counsel has determined that these
regulations meet the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order 12778. The provisions of this rule will
preempt State and local laws to the extent such State and local laws
are inconsistent herewith. The administrative appeal provisions
contained in these regulations and the appeal provisions promulgated by
the Board of Contract Appeals, 7 CFR part 24, subtitle A, must be
exhausted before action for judicial review may be brought.
Environmental Evaluation
This action is not expected to have any significant impact on the
quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review program to eliminate unnecessary or duplicative
regulations and improve those that remain in force.
Background
As a result of the Departmental reorganization mandated by the
Department of Agriculture Reorganization Act of 1994, FCIC must amend
its dispute provisions located at 7 CFR 400.169 to provide reinsured
companies with a mechanism to request reconsideration of appeal of
adverse decisions determined by FCIC.
On May 1, 1995, FCIC published an interim rule in the Federal
Register at 60 FR 21035 to amend the General Crop Insurance
Regulations, Subpart L, Reinsurance Agreement; Standards for Approval,
by revising the disputes clause to provide reinsured companies with an
informal appeal process through the FCIC, and a formal appeal process
through the United States Department of Agriculture Board of Contract
Appeals (BCA), for the purpose of resolving
[[Page 39269]]
disputes between the FCIC and reinsured companies on Standard
Reinsurance Agreement (SRA) issues. Following publication of that
interim rule, the public was afforded 60 days to submit written
comments, data, and opinions. On August 7, 1995, FCIC extended the
comment period for these regulations to August 18, 1995 (60 FR 40055).
Three comments, two from private law firms and one from a trade
association were received in response to the requests for comment on
the interim rule.
Comment: All three comments questioned the jurisdiction of the
United States Department of Agriculture BCA over SRA issues in dispute
since the SRA is not a typical Federal procurement contract.
Response: The BCA continues to function as the agency board
pursuant to the Contract Disputes Act of 1978 (Act), and as the agency
board pursuant to jurisdiction outside the Act as set forth in 7 CFR
Sec. 24.4. The BCA's jurisdiction is not, and never has been, limited
to procurement disputes. Section 24.4 has been expanded to specifically
cover appeals of final administrative determinations of FCIC pertaining
to the SRAs under 7 CFR Sec. 400.169(d). Since BCA has jurisdiction
over these issues, the disputes are not ``adverse decisions'' subject
to appeal before the National Appeals Division according to 7 U.S.C.
Sec. 6991. They also are specifically excluded from the scope of Farm
Service Agency informal appeal regulations published at 7 CFR part 780.
Disputes involving SRAs raise factual and legal questions of a
contractual nature which fall within the express expertise of the BCA.
The rules of procedure for these appeals are the same as for all others
under 7 CFR part 24. There is no longer a distinction between
``statutory'' and ``nonstatutory'' appeals.
Comment: All three comments expressed concern with respect to the
BCA's jurisdiction to hear appeals of final determinations rendered
under Sec. 400.169.
Response: The BCA amended its jurisdictional provisions on November
7, 1995 (60 FR 56206) to provide the BCA with jurisdiction over final
administrative determinations of the FCIC pertaining to SRAs under 7
CFR Sec. 400.169(d). That is separate from its jurisdiction to hear
contract disputes under the Contract Disputes Act. Therefore, no change
will be made.
Comment: Two commentors questioned the nonappealability of FCIC
decisions rendered under bulletins and directives and complained that
FCIC was limiting the companies' due process rights by limiting the
types of disputes appealable.
Response: The interim rule does not limit the companies' due
process rights or their right to appeal any decision of FCIC based on
any bulletin or directive that affects, interprets, explains or
restricts any term of the SRA. FCIC has the right to limit the appeal
of any decision that is solely within its discretion and not required
under the SRA. Bulletins or directives that do not affect, interpret,
explain or restrict any term of the SRA include, but are not limited
to, those that provide changes in crop insurance policies before the
contract change date, the addition of new crop insurance policies or
programs, granting relief from requirements or sanctions if such
requirements or sanctions are not required by the SRA, and requiring
companies to take actions to protect the integrity of the program, even
if such action may cause the company to incur additional costs,
provided such requirement is implemented before the start of the
reinsurance year. No change will be made to the rule.
Comment: All three commentors expressed concern with respect to the
propriety of permitting the Director of Compliance and the Director of
Insurance Services to render final administrative decisions.
Response: Section 400.169 provides an informal mechanism for
companies to challenge decisions rendered by FCIC. Reconsideration of
these decisions allows the division that rendered the decision the
opportunity to correct any error prior to an appeal to the BCA. The
Directors of Compliance and Insurance Services are persons with the
most knowledge of the programs they administer and are most qualified
to render final determinations. Therefore, there is no need to amend
the rule to have the Deputy Manager make final determinations.
Comment: One commentor questioned whether a FCIC decision of
appealability itself should be reviewable or appealable.
Response: Nothing in this rule prohibits a company from seeking a
review of a determination of nonappealability from the BCA. The issue
on appeal would be limited to a determination of whether the decision
of FCIC was based on a provision of the SRA, a compliance review, or a
bulletin or directive which affects, interprets, explains or restricts
a term of the SRA.
Comment: Two comments were received with respect to the definition
of ``contracting officer.'' The commentors suggested that the term be
amended to include the Directors of Insurance Services and Compliance
and that these persons be given authority to settle disputes.
Response: The term ``contracting officer'' is not defined in FCIC's
regulations. Further, the Manager of FCIC has the authority to
designate contracting officers and provide these persons with the
authority to resolve disputes between reinsured companies and FCIC.
This rule provides a delegation to these Directors to resolve such
disputes. Therefore, no change is necessary.
Comment: One comment suggested that the rule be amended to permit
companies to bypass the BCA and go directly to the district court or
the National Appeals Division (NAD).
Response: It has been determined that the BCA is the best forum to
hear these appeals. Although the BCA may not be an expert with respect
to the SRA, it has extensive experience in contract matters. Since NAD
does not have jurisdiction to hear any matter over which the BCA has
jurisdiction, the BCA acquired jurisdiction over these cases. FCIC has
no authority to permit any appeal to NAD. Further, administrative
appeals provide the valuable service of permitting the Department to
correct any errors and, therefore, conserving judicial resources.
Therefore, the rule will not be amended to permit companies to appeal
directly to the Federal courts or to NAD.
Comment: One comment suggested that the rule be amended to specify
the forum for an appeal of a BCA decision.
Response: An amendment to the rule is not necessary. The
administrative appeals process ends with a BCA decision. The Department
of Agriculture Reorganization Act provided that once the administrative
appeals process is complete, persons may bring suit. Section 506(d) of
the Federal Crop Insurance Act, as amended, states that the Federal
district court has exclusive original jurisdiction over any suit
brought against FCIC.
The comments did not result in any change to the final rule.
Therefore, the interim rule as published on May 1, 1995, at 60 FR 21035
is hereby adopted as a final rule.
List of Subjects in 7 CFR Part 400
Crop insurance.
Final Rule
Accordingly, pursuant to the authority contained in the Federal
Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.), and for the
reasons set forth in the preamble, the Federal Crop Insurance
Corporation hereby adopts as a final rule, the interim rule as
[[Page 39270]]
published at 60 FR 21035 on May 1, 1995.
Signed in Washington, DC, on July 18, 1996.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-19139 Filed 7-26-96; 8:45 am]
BILLING CODE 3410-FA-P
Complete official Federal Register PDF
FR Doc. 96-19132 Use of Trisodium Phosphate on Raw, Chilled Poultry Carcasses
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39273-39278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19132]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 381
[Docket No. 92-026F]
RIN 0583-AB65
Use of Trisodium Phosphate on Raw, Chilled Poultry Carcasses
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food Safety and Inspection Service (FSIS) is amending the
poultry products inspection regulations to permit the application of
trisodium phosphate (TSP) on raw, chilled poultry carcasses passed for
wholesomeness. The TSP solution will be permitted as an antimicrobial
agent on such poultry carcasses at a level of 8 to 12 percent. The
solution must be maintained at a temperature of 45 deg.F to 55 deg.F
and applied by spraying or dipping carcasses for up to 15 seconds.
Tests conducted by industry and FSIS have shown that the use of TSP, at
the above-stated concentration, temperature, and duration, reduces
microbial populations on raw, chilled poultry surfaces.
EFFECTIVE DATE: August 28, 1996.
ADDRESSES: Copies of the studies, reports, letters, and publications
referenced in this docket are available for public inspection in the
FSIS Docket Room, USDA, 14th and Independence Avenue, SW., Room 4352,
South Agriculture Building, Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT:
Dr. William O. James, Director, Slaughter Inspection Standards and
Procedures Division, Science and Technology, Food Safety and Inspection
Service, U.S. Department of Agriculture, Washington, DC 20250; (202)
720-3219.
SUPPLEMENTARY INFORMATION:
Background
FSIS was petitioned by Rhone-Poulenc, Inc., Cranbury, New Jersey,
to permit the use of food-grade TSP as a processing aid in post-chill
poultry slaughter operations. TSP is listed in the Food and Drug
Administration (FDA) regulations as generally recognized as safe (GRAS)
for multiple-purpose use in accordance with good manufacturing
practices (21 CFR 182.1778). The petitioner requested the use of a
treatment solution consisting of TSP dissolved in water to a
concentration of 10 percent, plus or minus 2 percent (8 to 12 percent).
The petitioner requested exposure of the poultry to the TSP treatment
solution for no more than 15 seconds, with the TSP treatment solution
being maintained at 50 deg.F, plus or minus 5 deg.F (45 deg.F to 55
deg.F).
The petitioner included data in its petition demonstrating that the
use of TSP is effective in reducing the levels of bacteria, including
pathogenic bacteria, found on raw, chilled poultry carcasses. FSIS also
conducted studies to determine the efficacy of TSP on raw, chilled
poultry carcasses. These studies demonstrate that the use of TSP on
raw, chilled poultry carcasses results in statistically significant
reductions in the levels of bacteria.
Additionally, FDA evaluated the petitioner's request for the use of
TSP as a processing aid in poultry and concluded that the treatment
leaves no residues on the product which could be harmful to consumers.
Therefore, in an August 25, 1992, letter to Rhone-Poulenc, Inc., FDA
approved the use of TSP as a processing aid on raw poultry, under
conditions to be established by FSIS.
FSIS determined that use of TSP requested by the petitioner was
suitable for the intended purpose and that the use of this substance on
raw, chilled poultry carcasses at the stated level would not render the
treated product adulterated, misbranded, or otherwise not in accordance
with the requirements of the Poultry Products Inspection Act.
On January 5, 1994, FSIS proposed to amend the poultry products
inspection regulations at 9 CFR 381.147(f)(4) to add antimicrobial
agents as a new class of substance for use on poultry products, and to
add TSP as an approved antimicrobial agent. FSIS proposed to permit the
use of TSP on raw, chilled poultry carcasses at a level of 8 to 12
percent. The TSP treatment solution would be maintained at 45 deg.F to
55 deg.F, and would be applied either by spraying or dipping the raw,
chilled poultry carcasses for up to 15 seconds.
Discussion of Comments
FSIS received 21 comments in response to the proposed rule. All but
2 commenters favored the proposal. In general, those favoring the
proposal stated that TSP treatment reduces bacterial levels on poultry
carcasses and decreases consumer exposure to pathogens. They believed
food-grade TSP has been proved safe. The following is a discussion of
the relevant issues raised in all of the comments.
One commenter believed FDA's GRAS affirmation of TSP did not apply
to the hydrous formulation of AvGard, a proprietary name for food-grade
TSP.
In a 1979 proposed rule, FDA specifically defined TSP as containing
``* * * 1 or 12 molecules of water of hydration'' (44 FR 74845, 74857).
AvGard contains 12 molecules of hydration and, therefore, is included
in the definition of TSP. Citing the report of the Select Committee on
GRAS Substances, FDA concurred that ``there is no evidence in the
available information on * * * sodium phosphate, tribasic [TSP] * * *
that demonstrates, or suggests reasonable grounds to suspect, a hazard
to the public when they [GRAS phosphates] are used at levels that are
now current or might reasonably be expected in the future'' (44 FR
74851-52).
It is within FDA's purview to affirm the multiple purpose GRAS
status of TSP, which FDA did in the previously noted August 25, 1992,
letter to Rhone-Poulenc. The Food Chemicals Codex, 3rd edition,
specifically lists anhydrous and hydrous formulations of TSP as meeting
the specifications for TSP.
[[Page 39274]]
One commenter questioned the validity of FSIS's TSP study conducted
in April 1992. Since the control and treated carcass bacterial counts
were low, this commenter wondered whether the results were
representative.
A statistically valid number of carcasses were randomly selected by
FSIS personnel over four consecutive days in April, 1992. Routine FSIS
quality control checks on the ability of the nutrient broth, agar, and
reagents to recover microorganisms were within normal limits. These
routine FSIS quality control checks verified the accuracy of the
results from the April 1992 study.
Additional data submitted with the petition, and available during
the comment period, demonstrated statistically significant reductions
of bacteria, including Salmonella, on poultry carcasses following post-
chill immersion in TSP. The data showed that Salmonella prevalence
after TSP treatment was consistently reduced from levels as high as 31
percent to levels below the laboratory limit of detection. Comparable
results were obtained whether the samples were refrigerated or frozen.
Similar results were found using prevalence or most probable number.
Inoculation studies with Salmonella typhimurium showed a reduction
between 95 and 100 percent. The Bender/Brodsky patented process for TSP
application references similar test results.
Independent scientific studies [1],[2] also demonstrate the
efficacy of TSP in reducing Salmonella on raw, chilled poultry
carcasses. A study on the effect of TSP on Salmonella typhimurium,
Campylobacter jejuni, E. coli 0157:H7, and Listeria monocytogenes
showed that TSP not only reduced bacterial counts on raw poultry, but
could potentially be used to reduce bacterial counts on other foods and
on food and non-food contact surfaces. [3]
Therefore, FSIS has determined that information submitted by the
petitioner, in the Agency's own studies, and in the scientific
literature substantiates the efficacy of TSP as an antimicrobial agent
on raw, chilled poultry carcasses.
On commenter questioned the petitioner's results due to unknown
testing methodology and asked whether FSIS will seek comment on the
experimental protocol.
Before any chemical not listed in 9 CFR 381 can be tested in
official poultry establishments, the proposed conditions of use are
reviewed by FSIS scientists. Only after acceptance of the testing
protocol by FSIS may a trial begin. Since these trials are conducted in
official establishments, supervised by FSIS personnel, and designed to
address FSIS information requirements, FSIS does not routinely seek
outside comment on the testing protocols.
One commenter questioned the relationship between the proposed
conditions of TSP use (8-12 percent solution maintained at a
temperature between 45 deg.F and 55 deg.F, and applied for up to 15
seconds) and the supporting studies.
FSIS and industry studies referenced in the proposed rule
demonstrate TSP efficacy against bacteria, including pathogenic
bacteria, at concentrations as low as 6 percent and temperatures as low
as 42 deg.F. The most consistent results were achieved at TSP
concentrations of 8-12 percent. Although efficacy of TSP is primarily
related to solution concentration, not solution temperature, an upper
55 deg.F temperature limit for post-chill TSP use is consistent with
the general chilling requirements in 9 CFR 381.66(b)(1), which permits
a maximum internal temperature of 55 deg.F in processing operations,
providing other requirements are met. Fifteen seconds was the time
necessary to adequately apply the TSP to raw, chilled poultry carcasses
on a moving line.
This commenter also asked whether these supporting studies used
AvGard, a proprietary name for food-grade TSP. All TSP studies
referenced in this docket used AvGard.
One commenter suggested TSP use may increase or decrease moisture
absorption in poultry carcasses. Under current industry practice,
broiler carcasses are chilled for approximately 60 minutes in immersion
chillers. FSIS and petitioner studies have demonstrated the additional
15 second application of TSP does not result in moisture violations. As
part of the poultry chilling process, poultry carcasses may gain
moisture up to the levels permitted in 9 CFR 381.66(d). Poultry
establishments using TSP are not exempted from the moisture absorption
and retention limits contained in 9 CFR 381.66(d). Federal
establishments applying TSP to raw, chilled poultry will include the
TSP application in their washing, chilling, and draining method as
outlined in 9 CFR 381.66(d)(8).
One commenter questioned the petitioner's claim that virtually no
residue remains on or in treated poultry carcasses. The commenter
referenced an abstract from an Agricultural Research Service (ARS)
study, ``Effect of TSP on Salmonella Attached to Chicken Skin'' that
seemed to refute the petitioner's claim. That abstract incorrectly
stated that a high residual skin pH indicated the presence of TSP
residue. In response to peer-review of the study, that assertion was
removed when the study was published in the Journal of Food Protection.
Testing carcasses for pH does not directly correlate with phosphate
residues. FSIS monitors meat and poultry for chemical residues by using
specific analytical tests for the chemical residue in question. The
1993 FSIS Food Chemistry Guidebook recommends the quimociac method for
phosphate determinations in meat and poultry. This analytical method
determines phosphate levels within 0.05 percent. The petitioner used
the FSIS recommended quimociac method, and, therefore, FSIS accepted
the petitioner's results of virtually no residue.
One commenter asked whether use of an ``* * * FSIS approved drag
through tank and attendant pump and filtration unit * * *,'' as
mentioned in the petition from Rhone-Poulenc, would be required. This
commenter also requested information on the significance of such
equipment.
FSIS believes that requiring specific application equipment would
not afford establishments sufficient flexibility in meeting good
manufacturing practices (GMP) for TSP application. The Agency believes
that the regulations in 9 CFR 381.53, regarding use of equipment in
official establishments, are sufficient to ensure that the proper
equipment is used for TSP application.
The equipment used was not significant in the results of the
studies. However, it is unlikely that establishments, using current
industry practices, will be able to apply TSP as a dip to raw, chilled
poultry on a moving line without use of a drag-through tank. The
process used in the studies is patented by Rhone-Poulenc, Inc.
One commenter expressed five concerns regarding the occupational
safety of TSP. First, this commenter referenced U.S. Coast Guard and
U.S. Department of Housing and Urban Development documents describing
non-food-grade TSP as potentially hazardous to worker safety.
These references referred to use of non-food-grade TSP as a paint
stripper on ocean vessels and for lead paint abatement in buildings.
This commenter did not document any hazards from the use of food-grade
TSP. TSP has been safely used for decades in a variety of food
manufacturing establishments producing processed cheeses, breakfast
cereals, and snack foods.
Second, the commenter referenced TSP workplace environmental
exposure limits from the American Industrial
[[Page 39275]]
Hygiene Association, an industry group without regulatory authority,
and incorrectly stated that the Occupational Safety and Health
Administration (OSHA) does not have general exposure limits for TSP.
Although OSHA does not list air contaminant limits specifically for
TSP, OSHA considers TSP a ``Particulate not otherwise regulated''
(PNOR) (29 CFR 1910.1000 Table Z-1). Additionally, OSHA has regulatory
authority over worker and workplace safety, including those in
federally inspected establishments. The OSHA regulations contained in
Title 29, Code of Federal Regulations, address worker and workplace
safety regarding the use of TSP.
Third, this commenter inquired about the nature of any
communication regarding TSP between OSHA and FSIS.
The OSHA workplace safety levels for TSP as a PNOR are clearly
codified in the above-referenced regulations, and FSIS has confirmed
with OSHA that TSP is regulated as a PNOR.
Fourth, this commenter referred to U.S. Coast Guard recommendations
for protective respiratory equipment for workers using non-food-grade
TSP, even though OSHA does not specifically require the use of such
protective respiratory equipment.
OSHA regulations state, in part, that accepted engineering control
measures, such as adequate ventilation, where feasible, may be
sufficient to prevent atmospheric contamination (29 CFR 1910.134).
To evaluate the safety of TSP use, FSIS contracted for industrial
hygiene studies at two federally inspected establishments that are
using TSP under interim approval. Because of the alkalinity of TSP,
these studies recommended use of protective eyeware and gloves for FSIS
employees monitoring the TSP application equipment. No medically
substantiated occupational illness related to TSP use was documented
from those two studies. Three TSP commercial poultry trials and 30 in-
plant demonstrations, totaling more than 1,000 combined days of TSP use
or testing, demonstrated no documented worker or workplace problems as
a result of working in, around, or with food-grade TSP treatment
facilities or TSP-treated product. As a result of the FSIS-initiated
industrial hygiene studies, FSIS requires establishment management to
provide FSIS employees with protective clothing or equipment. The
establishment's ``Material Safety Data Sheet,'' as required under OSHA
regulations, specifies the conditions under which establishment
management must provide protective gear. FSIS employees have access to
the Material Safety Data Sheet. The necessity of using protective
equipment, such as eye wear or latex gloves, will depend on OSHA
requirements (29 CFR 1910.133) and specific methods of TSP application
in individual establishments.
Fifth, this commenter expressed concern over the lack of a specific
antidote for any TSP-related industrial overexposure (e.g., dermal,
oral, ocular, or respiratory exposure).
In fact, most substances do not have specific antidotes for
overexposure. Therapy for most excessive exposures entails symptomatic
treatment. As with all chemicals, especially those used in an
industrial environment, caution should be exercised in handling.
Protective equipment suitable for the specific application and access
to means for diluting accidental chemical exposure, such as eyewashes
and emergency showers, are commonly available.
One commenter expressed concern regarding the effect of TSP, an
orthophosphate compound, on the environment, and referenced the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, Title 42 U.S.C. 9601 et seq.) and U.S. Department of
Transportation (DOT) requirements for notification of TSP release into
the environment.
TSP (sodium phosphate, tribasic) is classified as a Category D
hazardous substance under CERCLA (40 CFR 302.4). Category D substances,
being the safest of five hazardous substance categories, are subject to
CERCLA notification only for releases of 5,000 pounds. DOT regulations
(49 CFR 172.101, App. A), which are based on the Superfund Amendments
and Reauthorization Act of 1986 (Public Law 99-499), have an identical
requirement for reporting releases of 5,000 pounds of TSP into the
environment. This commenter also inquired about any communication and
coordination between the U.S. Environmental Protection Agency (EPA),
DOT, and FSIS on this rule. FSIS contacted EPA to affirm that CERCLA
notification for TSP was 5,000 lbs. and that individual states regulate
industrial effluent either directly or indirectly.
One commenter believed the disposal of TSP as an animal-feed
ingredient should be required by FSIS to minimize the potential for
phosphate release into the environment.
FDA, not FSIS, has the authority to determine whether TSP can be
disposed of by conversion into an animal-feed ingredient. In a July 13,
1992, letter to Rhone-Poulenc, Inc., FDA stated the conditions under
which it would permit TSP to be converted into an animal feed, and
stated that it will consider, on a case-by-case basis, requests for the
use of other by-products from the permitted recovery process.
Additionally, State and local authorities have the authority to
promulgate standards for phosphate discharge into the environment.
Establishment effluent is regularly monitored by State or local
officials with statutory authority over effluent discharge.
Another commenter questioned the safety of eating animals that have
consumed calcium phosphate derived from the conversion of spent TSP.
No supporting documentation accompanied that comment. FDA stated in
a July 9, 1992, letter to Rhone-Poulenc that precipitation of spent TSP
with tricalcium phosphate forms calcium phosphate in accordance with
the Association of American Feed Control Officials definition. FDA
partially based its decision allowing this conversion of spent TSP into
calcium phosphate on the known safety of the commonly used feed
additive calcium phosphate to humans and animals. FSIS is not aware of
any published study suggesting that use of calcium phosphate in animal
feeds is a human health hazard.
One commenter questioned the safe environmental disposal of TSP and
referenced a United Nations (U.N.) Environment Programme data profile
for chemicals, but incorrectly stated this document reflected U.N.
standards for TSP disposal. This U.N. document specifically states that
it does not necessarily reflect the views or official policies of the
U.N. Environment Programme. The U.N. data profiles for chemicals is
intended to be used by those professionally engaged in the management
of waste. The referenced data profile should not be considered on its
own merit, but merely as part of an integrated body of scientific
evidence. Local and state governments, not U.N. data profiles, have
statutory authority over phosphate release by official establishments.
One commenter raised questions regarding pre-chill uses of TSP.
Uses of TSP, other than those discussed in the proposed rule, as
appropriate, will be handled through separate rulemakings.
Three commenters noted that use of TSP should not be a substitute
for current inspection practices. FSIS agrees and views the use of TSP
as an addition to, not a substitute for, effective inspection and
process control.
One commenter stated that regular end-product testing should be
[[Page 39276]]
conducted to ensure the effectiveness of TSP.
FSIS does not currently plan to conduct routine microbiological
monitoring of TSP-treated product. Previously referenced studies
demonstrate the efficacy of TSP when applied with the FSIS-accepted
concentration, time, and temperature. Industry and FSIS will monitor
the TSP application process to ensure adherence to good manufacturing
practices.
One commenter preferred use of ``alternate methods to reduce
microorganisms,'' such as trimming contamination, slowing line speeds,
and utilizing air chilling, rather than either utilizing the current
method of immersion chilling or applying TSP. This commenter did not
provide evidence in support of these ``alternate methods.'' FSIS is
aware of several studies regarding these alternate methods. [4], [5],
[6], [7] None demonstrates that removing contamination solely by
trimming or line-speed reductions lowers levels of microorganisms on
poultry carcasses.
Regarding air chilling, studies conducted by the Commission of the
European Communities, [8] using birds from the same flock, showed that
immersion-chilled and air-chilled poultry carcasses had similar numbers
of Salmonella. However, unlike these alternate methods, use of a TSP
solution has demonstrated statistically significant reductions in
bacteria, including pathogenic bacteria, on poultry carcasses.
J. E. Thomson et al. [9] concluded that commercial immersion
chilling of broilers, with properly used equipment and adequate water
replacement, can reduce bacterial counts to lower levels than air-blast
chilling. Air-blast chilling does not significantly reduce bacterial
counts. Air chilling in chill-rooms or by continuous air-blast requires
low scald temperatures to minimize surface drying and does not have the
advantage of the washing effect of submersion chilling. Air chilling
does not reduce levels of Campylobacter contamination dramatically,
presumably because the carcass does not dry-out sufficiently on all
parts of the surface, either inside or out. Air-chilled carcasses are
always likely to have higher bacterial levels than those chilled in a
properly controlled immersion chiller. [10] Incidence of Campylobacter
jejuni/coli can be reduced significantly in establishments using
chlorinated chiller water, however the prevalence rates for this
organism have been reported in the range of 50 to 100 percent. [9]
The findings of most researchers indicate there is a potential for
cross-contamination during immersion chilling, but with properly used
equipment, and adequate chlorinated water replacement, the washing
effect of commercial immersion chilling of broilers will reduce total
bacterial counts. [11], [12], [13], [14] K.N. May [15] collected data
that found immersion chilling sanitary with reduction in total
bacterial counts. The work of Busta et al. [16] indicates that the
number of birds contaminated with pathogens is also reduced by
immersion chilling. J.E. Thomson et al. [17] and W.O. James et al. [13]
demonstrated that chlorination of chiller water reduced or eliminated
Salmonella cross-contamination. R.M. Blood and B. Jarvis [18] showed
that bacterial levels were inversely related to the amount of fresh
replacement water along with chlorine at 30-50 ppm added to the
chillers.
The commenter's concern over immersion chilling cannot be supported
by carefully conducted research on properly operated equipment. In the
few reports showing cross-contamination of microorganisms during
immersion chilling, one or more of the following existed: extremely
high level of initial carcass contamination, low water overflow rates,
and absence of chlorination. Air chilling is less efficient and does
not improve the sanitary quality of the carcasses. [19]
Lastly, a commenter stated that the use of TSP should be indicated
on the product label. TSP is classified by FDA as a multiple purpose
GRAS substance. TSP is a processing aid, not an ingredient, and it
leaves virtually no residue on or in poultry carcasses. FDA exempts
from label declaration requirements, at 21 CFR 101.100(a)(3)(ii)(c),
processing aids added for technical or functional effect at processing,
but not present in the finished food at significant levels and which do
not have any technical or functional effect in that food. Therefore,
declaring TSP on product labels is not required. However, as with an
optional labeling statements, FSIS would evaluate, on a case-by-case
basis, requests for optional labeling statements about the purpose of
TSP. Such statements must not be false or misleading.
On December 29, 1995, FSIS published in the Federal Register the
proposed rule, ``Substances Approved for Use in the Preparation of Meat
and Poultry Products,'' (60 FR 67459). The rule proposes to amend the
meat and poultry inspection regulations to harmonize and improve the
efficiency of the procedures used by FSIS and the FDA for reviewing and
approving the use of substances in meat and poultry products. Under the
proposed procedures, FSIS would no longer issue its own regulations
listing substances it finds suitable for use in meat and poultry
products. Instead, by agreement between USDA and the FDA, future FDA
regulations would specify whether a substance approved for use in foods
under the Federal Food, Drug, and Cosmetic Act (FFDCA) may be used in
or on meat or poultry products. Current FDA regulations that approve
the use of substances in foods generally, and do not preclude meat and
poultry uses, will confer authority to use such substances in meat and
poultry products unless expressly prohibited by USDA regulation.
Requests for meat and poultry uses of substances not permitted
under title 9 or title 21 of the Code of Federal Regulations (CFR)
would have to be made to FDA in the form of a petition for FDA
approval. Therefore, FDA simultaneously published its proposed rule,
``Substances Approved for Use in the Preparation of Meat and Poultry
Products; Food Standards of Identity, Quality and Fill of Container;
Common or Usual Name Regulations,'' (60 FR 67490). FDA's rule proposes
to amend FDA regulations governing the review of petitions for the
approval of food additives to provide for simultaneous review of such
petitions by FSIS when meat or poultry product uses are indicated. This
would permit FDA listings to specify whether, and if so under what
conditions, such substances may be used in USDA-inspected meat and
poultry products. Such listings would eliminate the need for separate
FSIS rulemaking.
FSIS would limit any future, substance-specific rulemaking to
prohibitions or limitations on meat or poultry uses of specific
substances that may be necessary to protect the public under the
Federal Meat Inspection Act (FMIA) or Poultry Products Inspection Act
(PPIA). FSIS would continue to provide evaluations upon request as to
whether substances permitted for general use under current regulations
are suitable for specific uses in meat and poultry products.
FSIS proposes to adopt the position that substances that are listed
in title 21, CFR, Parts 182 and 184, as generally recognized as safe
(GRAS) for use in food generally, with no limitation other than good
manufacturing practice, would be accepted by USDA as GRAS for use in
meat, meat food products, and poultry products generally, unless
otherwise restricted for such use by regulation in title 9, CFR. Other
GRAS substances currently permitted for general food use would be
evaluated by
[[Page 39277]]
FSIS as to their suitability for specified uses in meat food products
and poultry products on a case-by-case basis, in consultation with FDA
as appropriate.
Until that proposed rulemaking is complete and final rule issued,
FSIS will continue to initiate individual rulemaking to add substances
to its table of approved substances.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been determined to be not significant for purposes of
Executive Order 12866 and therefore has not been reviewed by the Office
of Management and Budget.
The Administrator, FSIS, determined this rule will not have a
significant economic impact on a substantial number of small entities.
The rule will permit establishments voluntary use of TSP.
Establishments choosing to use TSP as an antimicrobial agent will
incur a one-time expense for the necessary equipment and an ongoing
cost for purchasing TSP. In the proposed rule, the cost for equipment
was estimated at $45,000 per processing line, and the cost for the TSP
at \1/2\ cent per bird. Since the proposed rule was published,
additional analysis of the estimated cost of the equipment and of the
TSP has provided minor changes to the cost estimations. The cost for
equipment is now estimated to be $40,000 per processing line, and the
cost for the TSP is estimated to average about 0.3 cents per broiler
and 1.4 cents per turkey.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule will provide for the use of TSP as an
antimicrobial treatment on raw, chilled poultry carcasses passed for
wholesomeness.
States and local jurisdictions are preempted under the Poultry
Products Inspection Act (PPIA) from imposing any requirements with
respect to federally inspected premises and facilities, and operations
of such establishments, that are in addition to, or different than,
those imposed under the PPIA. States and local jurisdictions are also
preempted under the PPIA from imposing any marking, labeling,
packaging, or ingredient requirements on federally inspected poultry
products that are in addition to, or different than, those imposed
under the PPIA. States and local jurisdictions may, however, exercise
concurrent jurisdiction over poultry products that are outside official
establishments for the purpose of preventing the distribution of
poultry products that are misbranded or adulterated under the PPIA or,
in the case of imported articles, which are not at such an
establishment, after their entry into the United States. States and
local jurisdictions may also make requirements or take other actions
that are consistent with the PPIA, with respect to any other matters
regulated under the PPIA.
Under the PPIA, States that maintain poultry inspection programs
must impose requirements on State-inspected products and establishments
that are at least equal to those required under the PPIA. These States
may, however, impose more stringent requirements on such State-
inspected products and establishments.
In the event of its adoption, no retroactive effect will be given
to this rule, and applicable administrative procedures must be
exhausted before any judicial challenge to the application of these
provisions. Those administrative procedures are set forth in 9 CFR
381.35.
List of Subjects in 9 CFR Part 381
Poultry and poultry products.
For the reasons set forth in the preamble, FSIS is amending the
poultry products inspection regulations as follows:
PART 381--MANDATORY POULTRY PRODUCTS INSPECTION
1. The authority citation for part 381 continues to read as
follows:
Authority: 7 U.S.C. 138F; 7 U.S.C. 450; 21 U.S.C. 451-470; 7 CFR
2.18, 2.53.
2. In Table 1 of Sec. 381.147(f)(4), a new class of substance,
``Antimicrobial agents,'' is added, and the substance ``Trisodium
phosphate'' is added to the new class of substance, to read as follows:
Sec. 381.147 Restrictions on the use of substances in poultry
products.
* * * * *
(f) * * *
(4) * * *
----------------------------------------------------------------------------------------------------------------
Class of substance Substance Purpose Products Amount
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Anti-microbial agents Trisodium phosphate... To reduce microbial Raw, chilled poultry 8 to 12 percent;
levels. carcasses. solution to be
maintained at
45 deg.F. to
55 deg.F. and
applied by
spraying or
dipping
carcasses for
up to 15
seconds in
accordance with
21 CFR
182.1778.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Done at Washington, DC, on: July 20, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
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Attachment Model (SAM) to Determine the Antibacterial Activity of
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the Hygienic Problems Related to the Chilling of Poultry Carcasses.
Series: Information on Agriculture. No. 22.
[[Page 39278]]
9. Thomson, J.E.; Cox, N.A.; Whitehead, W.K.; Mercuri, A.J.; and
Juven, B.J. (1975) Bacterial counts and weight changes of broiler
carcasses chilled commercially by water immersion and air-blast.
Poultry Science. 54, 1452-1460.
10. Mead, G.C. (1989) Processing of Poultry, Chapter 6--Hygiene
Problems and Control of Process Contamination. 183-220.
11. Bailey, J.S., Thomson, J.E., Cox, N.A. (1987) The
Microbiology of Poultry Meat Products. Academic Press, Inc. 193-211.
12. James, W.O.; Williams, W.O. Jr.,; Prucha, J.C.; Johnston,
R.; and Christensen, W. (1992) Profile of selected bacterial counts
and Salmonella prevalence on raw poultry in a poultry slaughter
establishment. Journal of American Veterinarian Medical Association.
200:57-59.
13. James, W.O.; Brewer, R.L.; Prucha, J.C.; Williams, W.O.; and
Parham, D.R. (1992) Effects of chlorination of chill water on the
bacteriologic profile of raw chicken carcasses and giblets. Journal
of American Veterinarian Medical Association. 200:60-63.
14. Waldroup, A.L.; Rathgeber, B.M.; and Forsythe, R.H. (1992)
Effects of six modifications on the incidence and levels of spoilage
and pathogenic organisms on commercially processed postchill
broilers. Journal Applied Poultry Research. 1:225-234.
15. May, K.N. (1974) Changes in microbial numbers during final
washing and chilling of commercially slaughtered broilers. Poultry
Science. 53:1282-1285.
16. Busta, F.F.; Kottola, E.A.; Arnold, E.A.; and Hagberg, M.M.
(1973) Incidence and control of unwanted microorganisms in turkey
products. Research Report to Minnesota Turkey Research and Market
Development Board.
17. Thomson, J.E.; Bailey, J.S.; Cox, N.A.; Posey, D.A.; and
Carson, M.O. (1979) Salmonella on broiler carcasses as affected by
fresh water input rate and chlorination of chiller water. Journal of
Food Protection. Vol. 42, No. 12, pp 954-955.
18. Blood, R.M. and Jarvis, B. (1974) Chilling of poultry: the
effects of process parameters on the level of bacteria in spin-
chiller waters. Journal of Food Technology. 9, 157-169.
19. Brant, A.W. (1974) The current status of poultry chilling in
Europe. Poultry Science. 53:1291-1295.
[FR Doc. 96-19132 Filed 7-26-96; 8:45 am]
BILLING CODE 3410-DM-M
Complete official Federal Register PDF
FR Doc. 96-19129 Atlantic Tuna Fisheries; Fishery Closure and Reallocation
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39361-39362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19129]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 285
[I.D. 072396B]
Atlantic Tuna Fisheries; Fishery Closure and Reallocation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure and reallocation.
-----------------------------------------------------------------------
SUMMARY: NMFS has determined that the Atlantic bluefin tuna (ABT)
Harpoon category annual quota and the June/July period General category
quota for 1996 will be attained by July 24, 1996. Therefore, the 1996
Harpoon category fishery will be closed effective at 11:30 p.m. on July
24, 1996, and the General category fishery for June/July will be closed
effective at 11:30 p.m. on July 24, 1996. This action is being taken to
prevent overharvest of these categories. NMFS also announces a transfer
of 10 mt of ABT from the longline-south Incidental subcategory to the
longline-north Incidental subcategory. NMFS has determined that the
fisheries landing ABT under the longline-south Incidental subcategory
are not likely to achieve the full 1996 allocation. This reallocation
is being taken to extend the season for the longline-north Incidental
subcategory, ensure additional collection of biological assessment and
monitoring data, and prevent waste of ABT that might otherwise be
discarded dead.
EFFECTIVE DATES: The General category closure for the June/July period
is effective 11:30 p.m. local time on July
[[Page 39362]]
24, 1996, through July 31, 1996. The Harpoon category closure is
effective 11:30 p.m. local time on July 24, 1996, through December 31,
1996. The longline inseason transfer is effective July 23, 1996.
FOR FURTHER INFORMATION CONTACT: Chris Rogers, 301-713-2347, or Mark
Murray-Brown, 508-281-9260.
SUPPLEMENTARY INFORMATION: Regulations implemented under the authority
of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) governing
the harvest of ABT by persons and vessels subject to U.S. jurisdiction
are found at 50 CFR part 285. Section 285.22 subdivides the U.S. quota
recommended by the International Commission for the Conservation of
Atlantic Tunas (ICCAT) among the various domestic fishing categories.
General and Harpoon Category Closures
NMFS is required, under 285.20(b)(1), to monitor the catch and
landing statistics and, on the basis of these statistics, to project a
date when the catch of ABT will equal the quota and publish a Federal
Register announcement to close the applicable fishery.
Implementing regulations for the Atlantic tuna fisheries at 50 CFR
285.22 provide for a quota of 133 mt of large medium and giant ABT to
be harvested from the regulatory area by vessels permitted in the
General category during the period beginning June 1 and ending July 31.
Based on reported catch and effort, NMFS projects that this quota will
be reached by July 24, 1996. Therefore, fishing for, retaining,
possessing, or landing large medium or giant ABT by vessels in the
General category must cease at 11:30 p.m. local time July 24, 1996. The
General category will reopen August 1, 1996 with a quota of 186 mt for
the August period.
Implementing regulations for the Atlantic tuna fisheries at 50 CFR
285.22 provide for a quota of 53 mt of large medium and giant ABT to be
harvested from the regulatory area by vessels permitted in the Harpoon
category. Based on reported catch and effort, NMFS projects that this
quota will be reached by July 24, 1996. Therefore, fishing for,
retaining, possessing, or landing large medium or giant ABT by vessels
in the Harpoon category must cease at 11:30 p.m. local time July 24,
1996.
The intent of these closures is to prevent overharvest of the
quotas established for these categories.
Inseason Transfer
Under the implementing regulations at 50 CFR 285.22(f), NMFS has
the authority to make adjustments to quotas involving transfers between
vessel categories or, as appropriate, subcategories if, during a single
year quota period or the second year of a biannual quota period as
defined by ICCAT, it is determined, based on landing statistics,
present year catch rates, effort, and other available information, that
any category, or as appropriate, subcategory, is not likely to take its
entire quota as previously allocated for that year. Given that
determination, NMFS may transfer inseason any portion of the quota of
any fishing category to any other fishing category or to the reserve
after considering the following factors: (1) The usefulness of
information obtained from catches of the particular category of the
fishery for biological sampling and monitoring the status of the stock;
(2) the catches of the particular gear segment to date and the
likelihood of closure of that segment of the fishery if no allocation
is made; (3) the projected ability of the particular gear segment to
harvest the additional amount of ABT before the anticipated end of the
fishing season; (4) the estimated amounts by which quotas established
for other gear segments of the fishery might be exceeded.
At the current time, ABT have migrated to summer feeding grounds in
New England waters and incidental catch by longline vessels operating
south of 34 deg. N. lat. is no longer expected to occur. A total of 45
mt currently remain of the amount allocated to this southern
subcategory. The longline-north Incidental subcategory is expected to
reach its allocation of 23 mt for vessels fishing north of 34 deg. N.
lat. Once the quota is reached for this northern subcategory, any ABT
incidentally taken by longline vessels must be discarded at sea. In
order to prevent waste of ABT that might otherwise be discarded dead,
it is reasonable to transfer quota from the southern to the northern
subcategory.
Reallocating 10 mt from the Incidental longline-south category
responds to the criteria listed above as follows: Incidental category
landings are a major contributor to the collection of biological data
on this fishery; incidental catches by longline vessels in 1996 have
been high, and it would be necessary to close this subcategory of the
fishery unless additional quota allocation is made.
Classification
This action is taken under 50 CFR 285.20(b) and 50 CFR 285.22 and
is exempt from review under E.O. 12866.
Authority: 16 U.S.C. 971 et seq.
Dated: July 23, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-19129 Filed 7-23-96; 5:08 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-19107 Special Conditions: Embraer (Brazil) Aircraft Corporation Model EMB-145 Airplane; High-Intensity Radiated Fields
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39305-39306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19107]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM-123; Special Conditions No. 25-ANM-118]
Special Conditions: Embraer (Brazil) Aircraft Corporation Model
EMB-145 Airplane; High-Intensity Radiated Fields
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final special conditions.
-----------------------------------------------------------------------
SUMMARY: These special conditions are issued for the Embraer Model EMB-
145 airplane. This new airplane will utilize new avionics/electronic
systems that provide critical data to the flightcrew. The applicable
regulations do not contain adequate or appropriate safety standards for
the protection of these systems from the effects of high-intensity
radiated fields. These special conditions contain the additional safety
standards that the Administrator considers necessary to establish a
level of safety equivalent to that established by the existing
airworthiness standards.
EFFECTIVE DATE: August 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Gerry Lakin, FAA, Standardization Branch, ANM-113, Transport Airplane
Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW.,
Renton, Washington, 98055-4056; telephone (206) 227-1187; facsimile
(206) 227-1149.
SUPPLEMENTARY INFORMATION:
Background
On August 30, 1989, Embraer Aircraft Corporation, Caixa Postal 343,
12227-901 Sao Jose dos Campos, Sao Paulo SP Brasil, applied for a new
type certificate in the transport airplane category for the Model EMB-
145 airplane. The EMB-145 is a T-tail, low swept wing, small transport
airplane powered by two Allison GMA-3007A turbofan engines mounted on
pylons extending from the aft fuselage. Each engine will be capable of
delivering 7,040 pounds thrust. The flight controls will be powered and
capable of manual reversion. The airplane has a seating capacity of up
to 50 passengers, and a maximum takeoff weight of 42,328 pounds.
Type Certification Basis
Under the provisions of Sec. 21.17 of the FAR, Embraer must show
that the Model EMB-145 meets the applicable provisions of part 25,
effective February 1, 1965, as amended by Amendments 25-1 through 25-
75. In addition, the certification basis for the Model EMB-145 includes
part 34, effective September 10, 1990, plus any amendments in effect at
the time of certification; and part 36, effective December 1, 1969, as
amended by Amendment 36-1 through the amendment in effect at the time
of certification. No exemptions are anticipated. These special
conditions form an additional part of the type certification basis. In
addition, the certification basis may include other special conditions
that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness
regulations (i.e., part 25, as amended) do not contain adequate or
appropriate safety standards for the Embraer Model EMB-145 because of a
novel or unusual design feature, special conditions are prescribed
under the provisions of Sec. 21.16 to establish a level of safety
equivalent to that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice, as required by Secs. 11.28
and 11.29, and become part of the type certification basis in
accordance with Sec. 21.17(a)(2).
Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, the special conditions would also apply to the
other model under the provisions of Sec. 21.101(a)(1).
Novel or Unusual Design Features
The Model EMB-145 incorporates new avionic/electronic
installations, including a digital Electronic Flight Instrument System
(EFIS), Air Data System, Attitude and Heading Reference System (AHRS),
Navigation and Communication System, Autopilot System, and a Full
Authority Digital Engine Control (FADEC) system that controls critical
engine parameters. These systems may be vulnerable to high-intensity
radiated fields (HIRF) external to the airplane.
Discussion
There is no specific regulation that addresses protection
requirements for electrical and electronic systems from HIRF. Increased
power levels from ground-based radio transmitters and the growing use
of sensitive electrical and electronic systems to command and control
airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that
intended by
[[Page 39306]]
the regulations incorporated by reference, special conditions are
issued for the Embraer Model EMB-145, which would require that new
technology electrical and electronic systems, such as the EFIS, FADEC,
AHRS, etc., be designed and installed to preclude component damage and
interruption of function due to both the direct and indirect effects of
HIRF.
With the trend toward increased power levels from ground-based
transmitters, plus the advent of space and satellite communications,
coupled with electronic command and control of the airplane, the
immunity of critical digital avionics systems to HIRF must be
established.
It is not possible to precisely define the HIRF to which the
airplane will be exposed in service. There is also uncertainty
concerning the effectiveness of airframe shielding for HIRF.
Furthermore, coupling of electromagnetic energy to cockpit-installed
equipment through the cockpit window apertures is undefined. Based on
surveys and analysis of existing HIRF emitters, an adequate level of
protection exists when compliance with the HIRF protection special
condition is shown with either paragraphs 1 or 2 below.
1. A minimum threat of 100 volts per meter peak electric field
strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their
associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through
system test and analysis.
2. A threat external to the airframe of the following field
strengths for the frequency ranges indicated.
------------------------------------------------------------------------
Peak (V/ Average
Frequency M) (V/M)
------------------------------------------------------------------------
10 KHz-100 KHz........................................ 50 50
100 KHz-500 KHz....................................... 60 60
500 KHz-2000 KHz...................................... 70 70
2 MHz-30 MHz.......................................... 200 200
30 MHz-100 MHz........................................ 30 30
100 MHz-200 MHz....................................... 150 33
200 MHz-400 MHz....................................... 70 70
400 MHz-700 MHz....................................... 4,020 935
700 MHz-1000 MHz...................................... 1,700 170
1 GHz-2 GHz........................................... 5,000 990
2 GHz-4 GHz........................................... 6,680 840
4 GHz-6 GHz........................................... 6,850 310
6 GHz-8 GHz........................................... 3,600 670
8 GHz-12 GHz.......................................... 3,500 1,270
12 GHz-18 GHz......................................... 3,500 360
18 GHz-40 GHz......................................... 2,100 750
------------------------------------------------------------------------
As discussed above, these special conditions are applicable
initially to the Embraer Model EMB-145. Should Embraer apply at a later
date for a change to the type certificate to include another model
incorporating the same novel or unusual design feature, the special
conditions would apply to that model as well under the provisions of
Sec. 21.101(a)(1).
Discussion of Comments
Notice of proposed special conditions No. SC-96-2-NM was published
in the Federal Register on April 3, 1996 (61 FR 14684). One commenter
responded to the request for comments and concurs with the special
conditions as proposed.
Conclusion
This action affects only certain design features on the Embraer
Model EMB-145 airplane. It is not a rule of general applicability and
affects only the manufacturer who applied to the FAA for approval of
these features on the airplane.
List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting and recordkeeping
requirements.
The authority citation for these special conditions is as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
The Special Conditions
Accordingly, pursuant to the authority delegated to me by the
Administrator, the following special conditions are issued as part of
the type certification basis for the Embraer Model EMB-145 series
airplanes.
1. Protection from Unwanted Effects of High-Intensity Radiated
Fields (HIRF). Each electrical and electronic system that performs
critical functions must be designed and installed to ensure that the
operation and operational capability of these systems to perform
critical functions are not adversely affected when the airplane is
exposed to high-intensity radiated fields.
2. For the purpose of these special conditions, the following
definition applies: Critical Functions. Functions whose failure would
contribute to or cause a failure condition that would prevent the
continued safe flight and landing of the airplane.
Issued in Renton, Washington, on July 12, 1996.
Stewart R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service, ANM-100.
[FR Doc. 96-19107 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-19100 Funding of Administrative Law Judge Examination
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39267-39268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19100]
========================================================================
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. 146 / Monday, July 29, 1996 / Rules
and Regulations
[[Page 39267]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 930
RIN 3206-AH31
Funding of Administrative Law Judge Examination
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to require agencies employing administrative law judges to
reimburse OPM for the cost of developing and administering examinations
for judge positions. The regulations implement Public Law 104-52
(November 19, 1995), which amended 5 U.S.C. 1104 to authorize OPM to
delegate examining authority for all competitive service positions
except for administrative law judges, and to require employing agencies
to reimburse OPM for the cost of administrative law judge examinations.
DATES: Interim rules effective on July 29, 1996. Written comments will
be considered if received on or before August 28, 1996.
ADDRESSES: Send or deliver written comments to Donna Beecher, Deputy
Associate Director for Employment, Office of Personnel Management, Room
6F08, 1900 E Street, NW., Washington, DC 20415 (FAX 202-606-1768).
FOR FURTHER INFORMATION CONTACT: Richard A. Whitford on 202-606-2525,
TDD 202-606-0591, or FAX 202-606-1768.
SUPPLEMENTARY INFORMATION: The President's National Performance Review,
in its 1993 report From Red Tape to Results: Creating a Government That
Works Better 7 Costs Less, recommended that Federal agencies conduct
their own competitive examining, with the option of obtaining examining
services from OPM on a reimbursable basis. OPM's appropriations act for
FY 96 implements this recommendation.
The Treasury, Postal Service, and General Government Appropriations
Act, 1996 (Public Law 104-52, November 19, 1995) amended OPM's
authority in section 1104(a) of title 5, United States Code, to permit
it to delegate examining authority for all competitive service
positions except for administrative law judges. As a result, OPM will
continue to be responsible for the conduct of the administrative law
judge examination. Pub. L. 104-52 also requires agencies employing
administrative law judges to pay the cost of OPM-conducted examinations
for these positions.
OPM is reviewing 5 CFR Sec. 930.201, dealing with appointment of
administrative law judges, to reflect the new funding arrangement. The
revised regulation requires the affected agencies to reimburse OPM
annually for the cost of developing and administering administrative
law judge examinations. For FY 96, the fee will be prorated to cover
only the fourth quarter to reflect the level of examining conducted on
behalf of the employing agencies.
The amount of the reimbursement fee will be based on each employing
agency's proportionate share of the administrative law judge workforce.
Employment levels will be taken from OPM's Central Personnel Data File
(CPDF) as of March 31 of each year. In future years, OPM will need to
notify agencies of their share of the third quarter of the fiscal year
preceding the one in which reimbursement is due to allow for agency
budget planning. Because agencies transmit personnel actions to CPDF on
a quarterly basis, the most recent available data will be as of March
31 of each year.
For the future, OPM will establish a working group consisting of
officials form representative agencies and OPM to review the
effectiveness and efficiency of the program and make recommendations
for needed improvements. OPM will notify each affected agency annually
of the costs of the program, its obligation, and of payment procedures.
Waiver of Notice of Proposed Rulemaking and Delay in Effective Date
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking because the
statutory basis for these regulations (Pub. L. 104-52) was effective on
November 19, 1995, and OPM's reduced FY 96 appropriation necessitates
collection of the reimbursement fee beginning in fourth quarter of FY
96. It would be contrary to the public interest and impracticable to
delay implementation.
For the same reasons, and pursuant to 5 U.S.C. 553(d)(3), I find
that good cause exists to waive the delay in effective date and make
these regulations effective in less than 30 days.
Regulatory Flexibility Act
I certify that this regulation will not have a significant impact
on a substantial number of small entities because it pertains only to
Federal agencies.
Executive Order 12866 Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Part 930
Administrative practice and procedure, Government employees, Motor
vehicles.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending 5 CFR part 930 as follows:
PART 930--APPOINTMENT, PAY, AND REMOVAL OF ADMINISTRATIVE LAW
JUDGES
1. The authority citation for part 930 continues to read a follows:
Authority: 5 U.S.C. 1104(a)(2), 1305, 3323(b), 3344, 4301(2)(D),
5372, 7521.
2. In Sec. 930.201, paragraph (c) is added to read as follows:
Sec. 930.201 Coverage.
* * * * *
(c) In accordance with 5 U.S.C. 1104(a)(2), OPM shall conduct
competitive examinations for administrative law judge positions, and
agencies employing judges shall reimburse OPM for the cost of
[[Page 39268]]
developing and administering such examinations. Each employing agency's
share of reimbursement shall be based on its relative number of
administrative law judges as of March 31 of the preceding fiscal year.
OPM will work with employing agencies to review the examination program
for effectiveness and efficiency and identify needed improvements,
consistent with statutory requirements. Subsequently, OPM will annually
compute the cost of the examination program and notify each agency of
its share, along with a full accounting of the costs, and payment
procedures.
[FR Doc. 96-19100 Filed 7-26-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-19091 Clean Air Act Final Interim Approval of Operating Permits Programs; State of Tennessee and Memphis-Shelby County, Tennessee
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39335-39343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19091]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TN-96-01; TN-MEMP-96-01; FRL-5542-4]
Clean Air Act Final Interim Approval of Operating Permits
Programs; State of Tennessee and Memphis-Shelby County, Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
-----------------------------------------------------------------------
SUMMARY: EPA is promulgating interim approval of the operating permit
programs submitted by the State of Tennessee on behalf of the Tennessee
Department of Environment and Conservation and the Memphis-Shelby
County Health Department for the purpose of complying with Federal
requirements which mandate that authorized permitting authorities
develop, and submit to EPA, programs for issuing operating permits to
all major stationary sources and to certain other sources.
EFFECTIVE DATE: August 28, 1996.
ADDRESSES: Copies of the State of Tennessee and the Memphis-Shelby
County submittals and the other supporting information used in
developing the final interim approval are available for inspection
during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 4, 345 Courtland Street, NE.,
Atlanta, GA 30365. Interested persons wanting to examine these
documents, contained in EPA dockets numbered TN-96-01 and TN-MEMP-96-
01, should make an appointment at least 24 hours before the visiting
day.
FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Title V Program
Development Team, Air Programs Branch, Air Pesticides & Toxics
Management Division, U.S. Environmental Protection Agency, Region 4,
345 Courtland Street, NE., Atlanta, GA 30365, (404) 347-3555, Ext.
4223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'') and the implementing regulations at 40
Code of Federal Regulations (CFR) part 70 require that permitting
authorities develop and submit operating permits programs to EPA by
November 15, 1993, and that EPA act to approve or disapprove each
program within one year after receiving the submittal. If the program
submission is materially changed during the one-year review period, 40
CFR 70.4(e)(2) allows EPA to extend the review period for no more than
one year following receipt of the additional materials.
EPA received the State of Tennessee's (``the State'') title V
operating permit program submittal on November 10, 1994. The State
requested, under the signature of the Tennessee Governor's designee,
approval of its operating permit program with full authority to
administer the program in ninety-one of the State's ninety-five
counties. Four of the State's counties (Shelby, Davidson, Hamilton, and
Knox) are regulated by local air pollution control agencies operating
under certificates of exemption issued pursuant to Tennessee Code
Annotated (T.C.A.) Section 68-201-115. The State's jurisdiction also
does not extend to sources of air pollution over which an Indian Tribe
has jurisdiction. The State of Tennessee supplemented its initial title
V program submittal on December 5, 1994, August 8, 1995, January 17,
1996, January 30, 1996, February 13, 1996, April 9, 1996, June 4, 1996,
June 12, 1996, July 3, 1996, and July 15, 1996. Because the August 8,
1995 supplement materially changed the State's title V program
submittal, EPA extended the one-year review period.
On June 26, 1995, EPA received the Memphis-Shelby County (``the
County'') title V operating permit program submittal. The State
requested, under the signature of the Tennessee Governor's designee,
approval of the County's program on behalf of the Memphis-Shelby County
Health Department. The Memphis-Shelby County Health Department has
authority to administer the operating permit program in all areas of
Shelby County, Tennessee, including the incorporated municipalities of
Arlington, Bartlett, Collierville, Germantown, Lakeland, Memphis, and
Millington. The County's jurisdiction does not extend to sources of air
pollution over which an Indian Tribe has jurisdiction. The County
supplemented its initial program on August 22, 1995, August 23, 1995,
August 24, 1995, January 29, 1996, February 7, 1996, February 14, 1996,
March 5, 1996, and April 10, 1996.
EPA reviews title V operating permit programs pursuant to section
502 of the
[[Page 39336]]
Act and the part 70 regulations, which together outline criteria for
approval or disapproval. Where a program substantially, but not fully,
meets the requirements of part 70, EPA may grant the program interim
approval for a period of up to two years. If EPA has not fully approved
a program by November 15, 1995, or by the end of an interim program, it
must establish and implement a Federal operating permit program for
that State or local agency.
On March 11, 1996, EPA proposed interim approval of the State of
Tennessee and Memphis-Shelby County title V operating permit programs.
See 61 FR 9661. The March 11, 1996 notice also proposed approval of the
State and County interim mechanisms for implementing section 112(g) and
for delegation of section 112 standards and programs that are unchanged
from the Federal rules as promulgated. Public comment was solicited on
these proposed actions. EPA's detailed response to the comments is
contained in the Response to Comment Document, which can be found in
the dockets at the address given above. In this document, EPA is taking
final action to promulgate interim approval of the State of Tennessee
and Memphis-Shelby County operating permit programs.
II. Final Action and Implications
A. Analysis of Approval Action and Response to Public Comments
On March 11, 1996, EPA proposed interim approval of the State of
Tennessee and Memphis-Shelby County title V operating permit programs.
See 61 FR 9661. The program elements receiving approval in this action
are unchanged from those discussed in the proposal notice and continue
to substantially meet the requirements of title V and part 70. For
detailed information on EPA's analysis of the State and County program
submittals, please refer to the Federal Register notice cited above and
to the technical support documents (TSD) contained in the dockets at
the address noted above.
EPA received seven letters during the 30-day public comment period
held on the proposed interim approval of the State and County programs.
Comments were received from the following agencies, companies and
firms: TENNECO Packing; the Tennessee Department of Environment and
Conservation; the Department of Energy, Oak Ridge Operations Office;
Eastman Chemical Company; the Memphis Shelby County Health Department;
the Tennessee Association of Business; and Tuke Yopp & Sweeney,
Attorneys.
All of the comments received during the public comment period were
reviewed and considered by EPA prior to taking this final action. The
original comment letters can be found in the dockets for this action,
which are available at the address given above. EPA's response to the
comments can be found in the Response to Comment Document, which is
part of the dockets. In response to the comments, a few of the
conditions for full program approval discussed in the proposal notice
are being clarified or revised and are discussed below.
Both the State and County addressed each of EPA's nine proposed
interim approval issues in their comment letters and in most cases
provided proposed language changes to address the interim approval
issue and/or a commitment to adopt the necessary changes. EPA
appreciates the State's and County's responses on these issues and will
continue to work with these agencies to facilitate the adoption of
regulatory changes necessary for full approval.
1. Certification of Compliance With Applicable Requirements
Pursuant to 40 CFR 70.5(c)(9), a certification of compliance is a
binding, regulatory requirement upon a source subject to title V. While
the State's and County's application forms require a certification of
compliance, the regulatory provisions of both programs do not
specifically require the permit application to contain a compliance
certification. As a condition of full approval, EPA requested that the
State and County clarify in supplemental legal opinions that a source
submitting an application for a title V permit is legally obligated to
certify its compliance status with regards to all applicable
requirements. Alternatively, the State and County could revise their
regulations to directly incorporate this requirement.
On April 9, 1996, the State submitted to EPA, as part of the
State's response to EPA's proposal notice, a legal opinion supporting
the State's operating permit application-based compliance certification
approach as a method resulting in a binding, legally enforceable
compliance certification. As such, EPA is removing the proposed interim
approval issue regarding compliance certification for the State of
Tennessee.
This interim approval issue remains unchanged for Shelby County.
The County indicated in their comment letter, dated April 10, 1996,
that the County would develop a opinion letter on this issue and that
they expect a conclusion similar to that of the State would be reached.
2. Insignificant Activities
In the March 11, 1996 proposed interim approval notice, EPA
discussed interim approval issues related to the State and County
``exemptions'' rule, 1200-3-9-.04, that was included in the initial
State and County title V program submittals. Until recently, EPA was
unaware that when the State and County supplemented rule 1200-3-9-.04,
in August of 1995, with a new subparagraph 1200-3-9-.04(5), entitled
``Major Source Operating Permits Insignificant Emission Units,'' that
the original subparagraphs 1200-3-9.04(1)-.04(4) were revised to
exclude their applicability to the State and County title V programs.
Because these paragraphs are no longer applicable to the State and
County title V programs and are no longer State effective rules, EPA is
withdrawing those interim approval issues related to subparagraphs
1200-3-9-.04(1)-(4).
EPA received several comments regarding the proposal to list
certain aspects of the State's insignificant activities rule as grounds
for interim approval. These comments addressed the ``gatekeeper''
issues regarding the structure of the State's exemptions, the list of
exempted activities, and the State's exemptions from permit revision
procedures.
Regarding permit revision procedures, EPA proposed to require the
State and County to eliminate the provisions in subparagraph 1200-3-9-
.04(5)(h) which would exempt insignificant activities from permit
revision procedures. One commenter asserted that this exemption is
appropriate in light of recent revisions that EPA has proposed to part
70, and that it is therefore premature for the State to change its
rules until changes to part 70 are finalized. EPA does not agree that
this provision of the State's rules finds support in recent proposed
revisions to part 70, since that proposal does not contemplate outright
exemptions from the need for a permit revision for changes that trigger
applicable requirements. However, EPA has stated elsewhere that it
shares concerns regarding the need for separate rulemakings to address
interim approval deficiencies and changes to part 70. As stated in a
memorandum issued June 13, 1996, EPA plans to allow for the granting of
extensions for interim approval periods so that these rulemakings can
be combined. If this occurs, the State and County should be able to
combine rulemakings as it requested.
[[Page 39337]]
Regarding the list of insignificant activities in the State's
rules, EPA proposed that the State and County must either demonstrate
that exclusion from applications of activities on the list would not
interfere with the determination or imposition of applicable
requirements, or else impose an emissions cap on the activities that
would be eligible for exclusion. One commenter asserted that EPA should
not require such a demonstration, since the State's rule has the
appropriate ``gatekeeper'' providing that activities may not be
excluded from the application if they are subject to an applicable
requirement. The commenter pointed out that, since the effect of this
gatekeeper is that sources will always have to make the determination
that a listed activity is in fact not subject to applicable
requirements, it is inappropriate to require the State to make a
demonstration of non-applicability at the program approval stage.
EPA agrees that the gatekeeper language in 70.5(c), to the extent
it is reflected in the State's rule, should function in this manner.
Notwithstanding the existence of an insignificant activities list, a
source remains obliged to submit an application that properly accounts
for all applicable requirements, even where units subject to
requirements can be found on the list.1 Given that applicable
requirements may change, this will to some extent always be a
situation-specific exercise, and EPA does not believe it appropriate to
require States to show at program approval that conflicts between
applicable requirements and activities listed as insignificant could
never arise. At the same time, however, EPA believes that insignificant
activities lists should avoid the potential for confusion created when
an activity that is plainly subject to an applicable requirement is
included. In the TSD for the proposed approval, EPA noted instances
where it believes such a conflict exists, and other instances where the
listed activities are so vaguely described that conflicts with
applicable requirements appear likely. EPA believes that where problems
such as these can be identified at the time of program approval, their
correction should be a condition for receiving full approval.
---------------------------------------------------------------------------
\1\ As EPA explained in its first ``White Paper'' guidance, this
obligation to account for all applicable requirements in the
application does not necessarily entail a description of every
emissions unit that is subject. The more ``generic'' the
requirement, the less need there is for a detailed description of
the subject emissions units. For further explanation, see the White
Paper guidance on streamlined treatment of applications.
---------------------------------------------------------------------------
There is more than one way to remedy this deficiency. As suggested
in the proposal, the State may be able to retain its activities list as
is, but demonstrate that the listed items (at least those about which
EPA is concerned) do not in fact conflict with applicable requirements.
Preliminarily, EPA believes such a demonstration would have to account
for the size of these activities in terms of potential emissions. One
commenter pointed out that such a demonstration would be burdensome,
and that the applicability of requirements frequently does not depend
on size of the emissions unit. EPA does not rule out that such a
demonstration might be made in a manner that does not quantify
emissions. Whether this is possible will depend on the activity and the
applicable requirements potentially implicated. EPA is willing to work
with the State to arrive at a satisfactory method for such
demonstrations.
Another alternative proposed by EPA was that the State could impose
an emissions cap on the listed activities. In response to the comment
that the applicability of requirements does not necessarily depend on
the potential emissions, EPA notes that this is a valid point, and one
which underscores the need for appropriate gatekeeper language that
obliges the source to make a determination of applicability
notwithstanding the listing of an activity by the State as
insignificant, or, for that matter, the use of a generic insignificant
activities threshold like that found in Sec. 1200-3-9-.04(5)(a)(4)(i).
Again, EPA's main objection to activities on the State's list were that
several appeared on their face to implicate applicable requirements.
EPA believes a reasonable approach for limiting the confusion that
could result from this situation is to impose an emissions cap which,
in combination with the appropriate gatekeeper language, would help
ensure that applicable requirements are accounted for in the
application and permit. Again, EPA is not mandating this as the only
acceptable approach to resolving problems it perceives with the
existing list.
EPA's proposal for a quantification of emissions from the State,
and the alternative for a tons per year cap, was not solely due to a
concern over conflicts with applicable requirements, but also
encompassed a concern that some of the listed activities could be quite
large, possibly approaching major source levels. EPA is maintaining its
position that the State must demonstrate that very large activities are
not being listed as insignificant. Here again, EPA is willing to work
with the State to narrow the group of activities for which an emissions
quantification would be necessary.
The final insignificant activities issue concerns the State's
exemption from monitoring, recordkeeping, reporting, and compliance
certification requirements for insignificant activities that are
subject only to generic SIP requirements. EPA proposed that the State
must remove this exemption in order to receive full approval.
Commenters objected to this condition, asserting, first, that this
condition was inconsistent with guidance issued by EPA, second, that
the State rules did not create an exemption but instead were designed
to meet these part 70 requirements, and third, that elimination of this
exemption would create an unreasonable permitting burden.
The commenters are correct that EPA's guidance entitled ``White
Paper #2'' does specifically address the issue of how title V permits
may be written with regard to insignificant activities subject to
generally applicable SIP requirements.2 Briefly summarized, the
guidance states that it is within the permitting authority's discretion
to decide that no additional monitoring (beyond that provided in the
applicable requirement itself) will be required in the title V permit
for insignificant activities subject to generally applicable
requirements, if there is little or no likelihood that a violation
could occur from those activities. 3 However, this is in part a
factual finding, and so White Paper #2 contemplates that this
discretion would be exercised on a permit by permit basis, where the
finding can be reviewed in a context that is specific enough to be
meaningful. EPA does not rule out that a State might structure an
insignificant activities list narrowly enough that such a finding could
be made programmatically, thereby allowing for a categorical exemption
from part 70 monitoring, recordkeeping, and reporting. However, EPA
does not find this to be the case for the current Tennessee
insignificant activities provisions.
---------------------------------------------------------------------------
\2\ ``Generally applicable requirements'' are those that apply
universally to all emissions units and activities, as opposed to
requirements that focus on a category of units or activities.
\3\ If no monitoring is required, it would follow that the
permit can also dispense with recordkeeping and reporting for those
units, since there is no compliance data being regularly generated.
---------------------------------------------------------------------------
EPA thinks that more often than not it will be the case that part
70 monitoring, recordkeeping, and reporting requirements will not be
[[Page 39338]]
necessary where the State's insignificant activities are subject only
to generally applicable requirements. Therefore, Tennessee and Shelby
County may address this interim approval condition by modifying the
exemption from these requirements to a regulatory presumption that the
monitoring, recordkeeping, and reporting requirements will not apply in
those instances, but leaving the State with the authority to prescribe
those requirements as needed on a permit by permit basis.
White Paper #2 does not suggest that activities subject to
applicable requirements may be exempted from compliance certification,
even on a permit by permit basis. To the contrary, White Paper #2
discusses a streamlined way in which compliance certifications may be
made for these types of activities.
Industry commenters and the State assert that the provisions being
discussed here do not create an exemption from compliance
certification, but rather meet it by requiring a certification of
compliance to accompany applications for initial permit issuance,
revision, or renewal. EPA disagrees. Both title V and part 70 (at
Sec. 70.6(c)(5)(i)) require certification of compliance to be performed
at least annually. The commenters fail to explain how a certification
of compliance which could be as infrequent as once every five years
meets this requirement.
EPA also disagrees with the view, strongly asserted by State and
industry commenters, that title V permitting will be unreasonably
burdensome if an exemption of the sort currently contained in
Tennessee's rules is not allowed. The commenters may have been under
the impression that a strict monitoring, recordkeeping, and compliance
regime would be needed for each insignificant activity subject to a
generally applicable requirement. However, EPA has clarified in White
Paper #2 that part 70 does not mandate this result.
Part 70 does require sources to certify compliance at least
annually with all applicable requirements, even as they apply to
smaller activities subject to generally applicable requirements.
However, EPA fails to see how an additional burden is created when a
source must certify compliance with a requirement that it would be
legally obligated to comply with even in the absence of title V. A
burden would result only if, as a result of part 70, sources were
required to expend additional effort to determine compliance. As White
Paper #2 explains, if no additional compliance data is being generated,
then the source is not expending any additional effort to determine
compliance, and the compliance certification will be based on available
information. The commenters did not suggest anything to counter this
reasoning.
Since EPA proposed interim approval, the Ninth Circuit Court of
Appeals has decided a case addressing this same issue. Western States
Petroleum Association v. EPA, No. 95-70034 (June 17, 1996) (``WSPA'').
Because of the similarities between that case and this action, EPA
believes it appropriate to address here how it plans to respond to that
decision. EPA wishes to emphasize that the WSPA decision is very
recent, and that EPA is still in the process of developing a more
thorough response that addresses other title V programs. However, given
the State's desire to avoid imposition of the Federal Part 71 operating
permits program, EPA decided it is in the State's best interest not to
delay approval until a more thorough response could be articulated.
The WSPA case concerned EPA's approval of the Washington State
program, which also contained an exemption from permit content
requirements for insignificant activities subject to generic SIP
requirements. Industry petitioners challenged EPA's identification of
this exemption as grounds for interim approval, asserting that such an
exemption was allowed by part 70, and that EPA had acted inconsistently
by approving other title V programs with similar provisions. The 9th
Circuit did not opine on whether EPA's position was consistent with
part 70. It did, however, find that EPA had acted inconsistently in its
title V approvals, and had failed to explain the departure from
precedent that it perceived in the Washington approval.
EPA accepts the broader holding of the WSPA decision, namely, that
it should act consistently in its program approvals or else explain any
departures. However, EPA does not necessarily agree with the specific
findings of the Court regarding inconsistent actions in other State
programs. Nor does EPA necessarily agree that the Washington interim
approval constituted a departure from the precedent established
generally in the title V program approvals nationwide. Just as
importantly, EPA maintains that part 70 does not allow for outright
exemptions from permit content requirements for activities subject to
applicable requirements. EPA therefore plans to respond to the WSPA
decision by determining exactly where inconsistencies may exist among
title V programs and by addressing these programs as necessary to
arrive at a nationally consistent approach in harmony with the part 70
rule.
The WSPA court found that EPA had acted to approve title V programs
with exemptions from permit content requirements in eight instances.
EPA at this time does not necessarily agree with the Court's finding
that each of these eight programs represents an inconsistency. In some
cases, the Court based its conclusion on language in the State rules or
in EPA's approval notice that was merely ambiguous or imprecise. EPA is
now in the process of investigating whether these programs present true
inconsistencies. EPA expects that in some cases this will be answered
from the plain meaning of the State's regulations. Where the State
regulations at issue are ambiguous, EPA will seek confirmation from the
States themselves as to how these regulations have been interpreted.
EPA's investigation, though still in the early stages, has revealed
that of the eight States identified by the 9th Circuit as subject to
inconsistent treatment by EPA, three can be eliminated from this list
based on the language of the State rules alone. The North Dakota
program regulations contain no exemption from permit content
requirements for activities subject to applicable requirements, and so
EPA's statement in the approval notice, read by the Court as suggesting
otherwise, appears to have been merely an imprecise statement of the
effect of the State's insignificant activity provisions. Similarly,
since the Knox County, Tennessee, rules exempt insignificant activities
from permit applications but not permit content, EPA's statements in
that approval notice appear likewise overbroad.
The Massachusetts program does, in fact, exempt certain listed
insignificant activities as exempt from title V permitting altogether.
In analyzing this provision under its Part 70 regulations, EPA assessed
each of the listed activities and determined that they either named
activities that are not subject to applicable requirements, or that any
applicable requirement implicated by the activity was not designed to
be implemented by addressing emission units in the permit (i.e., open
burning). EPA has reexamined this assumption, and continues to believe
it is accurate.
The Florida program regulations also appear to exempt insignificant
activities from title V permitting. The Court concluded that EPA had
not identified this provision as grounds for interim approval. EPA does
not necessarily agree. In EPA's view, in order to remedy
[[Page 39339]]
the deficiencies identified by EPA in the Florida interim approval
notice, which included the State's failure to include gatekeeper
language that assured the completeness of permit applications, the
State would necessarily have to address the exemption created from
permit content requirements. It follows that, to the extent Florida's
regulations can be read as creating an exemption from permit content,
this should also be considered grounds for interim approval. EPA has
yet to reach a tentative conclusion regarding Ohio, Hawaii, North
Carolina, or Jefferson County, KY, all identified by the Court as
inconsistent with EPA's action in Washington State. EPA is including a
somewhat more detailed explanation of the preceding points in the
Response to Comments document for this action.
The WSPA opinion states that:
The EPA may not depart, sub silentio, from its usual rules of
decision to reach a different, unexplained result in a single case *
* * To the contrary, the EPA must clearly set forth the ground for
its departure from prior norms so that we may understand the basis
of the EPA's action and judge the consistency of that action with
EPA's mandate. Slip Op., at 6990 (emphasis added).
EPA reads this to mean that a regulatory interpretation proffered by
the Agency is not entitled to judicial deference if it conflicts with
the de facto policy established through the Agency's actions on
specific programs. That is, if the ``norms'' established through
program approvals are other than the Agency's articulated policy,
courts will not uphold the Agency's efforts to impose the latter.
EPA acknowledges that its investigation may reveal a small number
of inconsistencies on this issue among approved title V programs.
However, EPA believes that these inconsistencies, even when construed
liberally and aggregated together, still would represent a relatively
minor set of deviations from the normal policy manifested in the vast
majority of title V program approvals.
The Court in WSPA appeared to base its specific holding of
inconsistency on its assumption that EPA had approved eight programs
with exemptions from permit content, but had acted to impose the policy
against permit content exemptions in only two instances.4 This
assumption is incorrect. At the time the Washington State program
received interim approval, EPA had approved 22 State and 39 local
programs, and had proposed approval of another 13 State and 13 local
programs. As of today, EPA has approved 38 State and 55 local programs,
and has proposed approval of another seven State and four local
programs.5 Each program submitted to EPA necessarily addresses
this issue (though most do so simply by providing for permit content
language consistent with part 70--that is, by not affirmatively
establishing any permit content exemption). Of 104 title V programs
approved or in the process of approval, EPA believes that there are at
most four with regulations that present inconsistencies on this issue.
---------------------------------------------------------------------------
\4\ ``[T]he EPA has identified only two Title V programs that in
fact apply permitting requirements to IEU's * * *.'' Slip Op., at
6988.
\5\ Altogether, 116 State and local agencies will have title V
programs.
---------------------------------------------------------------------------
EPA believes it is clear from these totals that its ``prior norm''
has been to grant full approval only where activities subject to
applicable requirements are not exempted from the permit, and that its
interpretation of part 70, as manifested both in its articulated policy
and in actual program approvals, is consistent with the position being
taken in today's action. In those few instances where inconsistencies
are confirmed to exist, EPA plans to take appropriate action to follow
the WSPA Court's mandate that it act consistently or explain any
departures.
3. Applicable Federal Requirements
Subparagraph 1200-3-9-.02(11)(b) in the State and County programs
restricts the domain of applicable Federal requirements referenced in
Paragraph 1200-3-9-.02(11) to those in effect on December 15, 1993. As
a result, neither program ensures that title V permits will address all
applicable requirements in accordance with 40 CFR 70.6(a). As specified
in the proposal notice, subparagraph 1200-3-9-.02(11)(b) of the State
and County regulations must be revised so that the definition of
applicable requirements is consistent with part 70. The State and
County regulations must provide that all applicable requirements, as
defined in 40 CFR 70.2 and as provided generally in the Clean Air Act
and part 70, are included in the permit such that they can be
implemented and enforced by the State and County.
EPA received several comments on this interim approval issue, and
hence we believe further clarification is necessary. Several
commenters, including the State and County, concurred that the
indicated change was necessary for the program to meet the requirements
of part 70. However, one commenter stated that the regulation could not
be revised because the State has specific requirements that Federal
regulations cannot be adopted by reference to the Federal rule citation
and because all new Federal requirements must be adopted by the
Tennessee Air Pollution Control Board before becoming State effective.
Another commenter indicated that new Federal standards that have not
yet been adopted into State regulation and delegated to the State for
implementation are Federally enforceable but not State enforceable
unless the source has signed a mutual agreement letter giving the State
enforcement authority.
The commenters' statements are likely correct for new Federal
requirements that have not been adopted by the State and have not been
incorporated into a title V permit. Many State laws require that
Federal requirements be adopted by the State prior to implementation
and enforcement or may prevent incorporation by reference. Such
requirements are generally intended to provide the public and regulated
community with adequate notice of the new requirements and to allow the
State and regulated sources access to the State court system for
enforcement and appeals. However, the title V permitting program also
provides a mechanism for new Federal requirements to be implemented and
enforced by a State or local agency. In fact, one of the goals of title
V is to consolidate all of the various air pollution control
requirements that a source is subject to into one document that can be
enforced by the designated State or local air pollution control agency.
EPA would like to clarify that, although title V requires that
applicable requirements be enforceable as a matter of State law, it
does not require that they be adopted by the State or municipality
through rulemaking prior to incorporation into a title V permit.
State's generally have broad legal authority to incorporate permit
conditions into properly issued State (or local) permits. The public
notice and comment procedures, required by the title V permitting
programs, provide the mechanism to ensure that the permit terms are
necessary and reasonable; these procedures are in a sense analogous to
the notice and comment rulemaking procedures under State law, to which
the commenter alluded. In States with this broad authority, any permit
term or applicable requirement incorporated into a valid title V permit
can be enforced by the permitting agency. In any case, correction of
the applicable requirements definition to eliminate the cutoff date
will not constitute the adoption into State law of any additional
requirements. That adoption will only occur in a separate
[[Page 39340]]
process, either rulemaking or permit issuance, that should afford
whatever level of process is due.
In an opinion submitted to EPA, in support of the State's title V
program, the Tennessee Attorney General indicated that the State of
Tennessee has broad legal authority to incorporate all applicable
Federal requirements, as defined by part 70, into the title V permit
and to enforce those requirements. In a letter to EPA, dated June 12,
1996, the State reaffirmed that the State does indeed have such
authority and that during the interim approval period and until the
necessary changes are made to the State regulations, the State will use
such authority to include all applicable Federal requirements in the
title V permit and to enforce those requirements.
4. Implementation of Section 112(g) During Transition Period
As discussed in the proposal notice, on February 14, 1995, EPA
issued an interpretive notice which outlines the Agency's revised
interpretation of section 112(g) applicability (60 FR 8333). The notice
postpones the effective date of section 112(g) until after EPA has
promulgated a rule addressing that provision. The notice explains that
EPA is considering whether the effective date of section 112(g) should
be delayed beyond the date of promulgation of the Federal rule so as to
allow permitting authorities time to adopt rules implementing the
Federal rule, and that EPA will provide for any such additional delay
in the final section 112(g) rulemaking.
Unless and until EPA provides for an additional postponement of the
section 112(g) effective date, the State of Tennessee and Memphis-
Shelby County must have Federally enforceable mechanisms for
implementing section 112(g) during the period between promulgation of
the Federal section 112(g) rule and adoption of implementing State and
County regulations. Both program submittals contain Chapter 1200-3-31
entitled ``Case by Case Determinations of Hazardous Air Pollutant
Control Requirements'', which will serve as an adequate implementation
vehicle during the transition period.
The proposal notice also discussed that Chapter 1200-3-31 contains
several discrepancies with respect to the provisions of section 112(g)
of the Act. EPA proposed that as a condition of full title V program
approval, the State and the County must correct the identified
discrepancies. Several commenters indicated that, while they agreed
that these changes would likely be necessary for approval of the
State's and County's 112(g) programs, it is premature to condition the
title V program approvals on these changes. EPA concurs with the
commenters and is removing the proposed interim approval issues
regarding the 112(g) transition period.
EPA is approving the use of the State of Tennessee and Memphis-
Shelby County Chapter 1200-3-31 as a mechanism to implement section
112(g) during the transition period between promulgation of EPA's
section 112(g) rule and adoption by the State and County of rules
specifically designed to implement section 112(g). This action does not
approve Chapter 1200-3-31, in general, for purposes of 112(g), nor does
it imply that Chapter 112(g) will be consistent with the final Federal
112(g) rule, when it is promulgated. The duration of this approval is
limited to 18 months following promulgation by EPA of the section
112(g) rule to provide adequate time for the State and the County to
adopt regulations consistent with the Federal requirements. This
approval will be without effect if EPA decides in the final section
112(g) rule that sources are not subject to the requirements of the
rule until State or local regulations are adopted.
5. Conflict of Interest
The Clean Air Act requires that States implementing and enforcing
permitting programs approved pursuant to the Act must adopt
requirements regarding conflict of interest that are at least as
stringent as those set forth in the Act. CAA 128(a)(1)-(2), 129(e).
State law must provide that no State board or body that approves
operating permits, either in the first instance or upon appeal, shall
be constituted of less than a majority of members who represent the
public interest and who do not derive a significant portion of their
income from persons subject to operating permits. State law must also
provide that any potential conflicts of interest by members of such
board or body or the head of any executive agency with similar powers
be adequately disclosed. Pursuant to section 129(e) of the Act and
section 70.4(b)(3)(iv) of the Federal operating permit regulation,
State law must also provide that no permit for a solid waste
incinerator unit may be issued by an agency, instrumentality or person
that is also responsible, in whole or in part, for the design and
construction or operation of the unit.
In the State of Tennessee Attorney General's opinion that was
submitted to EPA as part of the State's application for the title V
program, and in a subsequent letter, dated September 29, 1994, the
State made a commitment to submit a Board adopted rule that would
satisfy the provisions of sections 128 and 129(e) of the Act to the
Tennessee Attorney General for approval no later than March 30, 1995.
In responding to a public comment addressing conflict of interest, it
was brought to EPA's attention that the State conflict of interest
rules are not yet State effective. While the necessary regulations were
reviewed by EPA and adopted by the Board in April 1995, the rules have
not yet been signed by the State Attorney General. The State has
indicated to EPA that they expect such regulations to be made State
effective in the near term. Hence, as a condition of full approval, the
State must complete the adoption procedure and submit to EPA
regulations that satisfy the provisions of section 128 and 129(e) of
the Act.
6. Third Party Standing
One commenter raised the issue of whether the State's title V
program met the program approval requirements for standing, as outlined
in Section 502(b)(6) of the Clean Air Act, 42 U.S.C. 7661a(b)(6).
Standing is a critical component of the title V program. The United
States Court of Appeals for the Fourth Circuit recently held, in the
title V context, that States at a minimum, must extend judicial review
rights to participants in the State public comment process who satisfy
the standards for standing for the purposes of Article III of the U.S.
Constitution. Commonwealth of Virginia v. Browner, 1996 U.S. App. LEXIS
5334, *23 (March 26, 1996).
In the commenter's opinion, the Tennessee Air Pollution Control
Board's (``the Board'') relatively recent decision in In the Matter of
Bayou Steel Corporation (Tennessee), Division of Air Pollution Control
Case No. 95-0132, Docket No. 04.09-45-10788A (October 2, 1995), holds
that the Board will require a party to demonstrate that the party had
suffered an actual injury before it could ``appeal'' a permit to the
Board, thereby effectively preventing third party ``appeals'' for
permit actions.
In response to the comment, EPA re-examined the State Attorney
General's opinion submitted with the State's title V program. In
addition, in a letter to the State dated May 22, 1996, EPA requested
further clarification of the State law and interpretation of the
State's standing requirements. The State's response to EPA's inquiries,
dated June 4, 1996 and July 3, 1996, clarified the State's position on
standing. These letters are available for public review in the dockets
for this
[[Page 39341]]
action. In brief, the State made clear that the law of standing in
Tennessee does anticipate situations where there is a threatened
injury. Based on the State's responses to EPA's inquiries and the State
Attorney General's opinion, EPA continues to believe that the State of
Tennessee meets the title V requirements for standing. This analysis
does not reflect an opinion on the State's Bayou Steel case.
B. Final Action
1. Title V Operating Permit Programs
EPA is promulgating interim approval of the operating permit
program submitted by the Tennessee Department of Environment and
Conservation on November 10, 1994, and supplemented on December 5,
1994, August 8, 1995, January 17, 1996, January 30, 1996, February 13,
1996, April 9, 1996, June 4, 1996, June 12, 1996, July 3, 1996, and
July 15, 1996. EPA is also promulgating interim approval of the title V
program submitted by the Memphis-Shelby County Health Department on
June 26, 1995, and supplemented on August 22, 1995, August 23, 1995,
August 24, 1995, January 29, 1996, February 7, 1996, February 14, 1996,
March 5, 1996, and April 10, 1996. The following changes must be made
for full approval of the State and County programs.
a. Opt-in Provision for Exempted Sources
Neither the State or the County program addressed 40 CFR
70.3(b)(3), which allows exempted sources to apply for a permit.
Justification of the omission of this part 70 provision is requested
from the State and the County.
b. Certification of Compliance With Applicable Requirements
The County must clarify in a supplemental legal opinion that the
County's permitting program requires a source submitting an application
for a title V permit to certify its compliance status with regards to
all applicable requirements. In the alternative, the County regulations
could be revised to directly incorporate this requirement.
c. Insignificant Activities
The State and the County must complete the following:
i. Remove the exemption from permitting requirements contained in
Subparagraph 1200-3-9-.04(5)(f).
ii. Revise subparagraph 1200-3-9-.04(5) to specify, consistent with
40 CFR 70.5(c), that the application may not omit information needed to
evaluate the fee amount required.
iii. Revise Subparagraph 1200-3-9-.04(5)(c)(3) to eliminate the
exemption from the certification requirements of 40 CFR 70.6(c) and to
allow the permitting authority to require additional monitoring,
recordkeeping, and reporting, as necessary, for sources subject to
generally applicable SIP requirements.
iv. Address EPA's concerns, as discussed in the TSD, about
potential conflicts of certain activities and emission units, listed in
Paragraph 1200-3-9-.04(5), with applicable requirements.
v. Provide a description of the activities and emission units, and
their associated emissions, listed in subparagraphs 1200-3-9-.04(5)(f)
and (g), sufficient to allow EPA to determine that exclusion of the
activities and units from permit applications will not interfere with
the determination and imposition of applicable requirements and
collection of fees. In the alternative, the State and the County could
specifically limit or ``cap'' the emissions from the listed activities
and emissions units to levels that are insignificant compared to the
level of emissions that are required to be permitted or subject to
applicable requirements.
vi. Subparagraph 1200-3-9-.04(5)(h) must be revised, consistent
with the criteria in 40 CFR 70.7 for administrative permit amendments
and permit modifications, to eliminate the provisions that would exempt
certain emission increases from permit amendment and modification
requirements.
d. Applicable Federal Requirements
Subparagraph 1200-3-9-.02(11)(b) in the State and County programs
restricts the domain of Federal requirements referenced in paragraph
1200-3-9-.02(11) to those in effect on December 15, 1993. Subparagraph
1200-3-9-.02(11)(b) must be revised, consistent with part 70.6(a), to
ensure that title V permits address all applicable requirements.
e. General Permits
Subparagraph 1200-3-9-.02(11)(e)4, which provides for the issuance
of general permits, allows a source to operate without a title V permit
and not be subject to enforcement action. This provision must be
revised in both the State and County programs to be consistent with the
requirements of 40 CFR 70.6(d)(1).
f. Excess Emissions Due to Malfunction, Startup, and Shutdown
The State must revise Chapter 1200-3-20 to make clear that it
applies only to requirements in the Tennessee SIP. The revised rule
must be submitted to EPA for approval in the SIP.
g. Permit Reopenings
Subparagraph 1200-3-31-.04(1)(a) must be revised in both the State
and County programs to be consistent with the permit reopening
requirements in 40 CFR 70.7(f)(1)(i), which requires completion of
permit reopenings not later than 18 months after promulgation of a new
applicable requirement in cases of permits with remaining permit terms
of three or more years.
h. Use of Title V Fees
Memphis-Shelby County's fee provisions allow for use of operating
permit fees for any purpose rather than solely for the funding of title
V program activities, as required by 40 CFR 70.9(a). In addition, the
County's program does not specify that the fees used to cover the
direct and indirect costs of the operating permit program will be
collected only from part 70 sources, as required by 40 CFR 70.9(a).
Memphis-Shelby County, therefore, must revise its fee provisions to be
consistent with the 40 CFR 70.9(a).
i. Conflict of Interest
The State must adopt regulations, which at a minimum, satisfy the
provisions of section 128 and 129(e) of the Act.
The scope of the State and County's title V programs approved in
this notice applies to all part 70 sources (as defined in the approved
programs) within the ninety-one counties under the State's jurisdiction
and in Shelby County, except any sources of air pollution over which an
Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18
(November 9, 1994).6
---------------------------------------------------------------------------
\6\ The term ``Indian Tribe'' is defined under the Act as ``any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village, which is Federally recognized
as eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.'' See
section 302(r) of the CAA; see also 59 FR 43956, 43962 (August 25,
1994); 58 FR 54364 (October 21, 1993).
---------------------------------------------------------------------------
This interim approval extends until August 31, 1998. During this
interim approval period, the State of Tennessee and Memphis-Shelby
County are protected from sanctions for failure to have a program, and
EPA is not obligated to promulgate, administer, and enforce Federal
operating permit programs in the State or the County. Permits issued
under a program with interim approval have full standing with respect
to part 70, and the one-year time period for submittal of permit
applications by subject sources begins
[[Page 39342]]
upon the effective date of this final interim approval, as does the
three-year time period for processing the initial permit applications.
If the State or the County fail to submit complete corrective
programs for full approval by March 2, 1998, EPA will start an 18-month
clock for mandatory sanctions. If the State or the County fail to
submit a corrective program that EPA finds complete before the
expiration of that 18-month period, EPA will be required to apply one
of the sanctions in section 179(b) of the Act, which will remain in
effect until EPA determines that the State or the County has corrected
the deficiency. If EPA disapproves the State or County corrective
programs, and has not granted full approval within 18 months after the
disapproval, the EPA must impose mandatory sanctions. In both cases, if
the State or County has not come into compliance within 6 months after
EPA applies the first sanction, a second sanction is required. In
addition, discretionary sanctions may be applied where warranted any
time after the expiration of an interim approval period. If EPA has not
granted full approval to an operating permit program by the expiration
of an interim approval and that expiration occurs after November 15,
1995, EPA must promulgate, administer, and enforce a Federal operating
permit program for that State or County.
2. Implementation of Section 112(g) During Transition Period
EPA is approving the use of the State of Tennessee and Memphis-
Shelby County Chapter 1200-3-31 as a mechanism to implement section
112(g) during the transition period between promulgation of EPA's
section 112(g) rule and adoption by the State and County of rules
specifically designed to implement section 112(g). This action does not
approve Chapter 1200-3-31, in general, for purposes of 112(g), nor does
it imply that Chapter 112(g) will be consistent with the final Federal
112(g) rule, when it is promulgated. The duration of this approval is
limited to 18 months following promulgation by EPA of the section
112(g) rule to provide adequate time for the State and the County to
adopt regulations consistent with the Federal requirements. This
approval will be without effect if EPA decides in the final section
112(g) rule that sources are not subject to the requirements of the
rule until State or local regulations are adopted.
3. Program for Delegation of Section 112 Standards as Promulgated
The requirements for title V program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of an
operating permit program for delegation of section 112 standards
promulgated by EPA as they apply to title V sources. Section 112(l)(5)
requires that operating permit programs contain adequate authorities,
adequate resources for implementation, and expeditious compliance
schedules, which are also requirements under part 70. Therefore, EPA is
also approving, under section 112(l)(5) and 40 CFR 63.91, the State of
Tennessee and Memphis-Shelby County programs for receiving delegation
of section 112 standards and programs that are unchanged from the
Federal rules as promulgated. In addition, EPA is delegating to the
State and the County all existing standards and programs under 40 CFR
parts 61 and 63 for part 70 sources and non-part 70 sources.7
---------------------------------------------------------------------------
\7\ The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. EPA will work with the State in the development of its
radionuclide program to ensure that permits are issued in a timely
manner.
---------------------------------------------------------------------------
III. Administrative Requirements
A. Docket
Copies of the State of Tennessee and Memphis-Shelby County
submittals and other information relied upon for the final interim
approval, including the comment letters received and reviewed by EPA on
the proposal notice and EPA's response to these comments, are contained
in the dockets numbered TN-96-01 and TN-MEMP-96-01 that are maintained
at the EPA Region 4 office. The dockets are organized and complete
files of all the information submitted to, or otherwise considered by,
EPA in the development of this final interim approval. The dockets are
available for public inspection at the location listed under the
ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permit programs submitted to
satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
D. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate, or to the private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the final interim approval action
promulgated today does not include a Federal mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate, or to the private sector. This Federal
action approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APAA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
[[Page 39343]]
Dated: July 16, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding paragraphs (a) and
(e) to the entry for Tennessee to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Tennessee
(a) Tennessee Department of Environment and Conservation: submitted
on November 10, 1994, and supplemented on December 5, 1994, August 8,
1995, January 17, 1996, January 30, 1996, February 13, 1996, April 9,
1996, June 4, 1996, June 12, 1996, July 3, 1996, and July 15, 1996;
interim approval effective on August 28, 1996; interim approval expires
August 31, 1998.
* * * * *
(e) Memphis-Shelby County Health Department: submitted on June 26,
1995, and supplemented on August 22, 1995, August 23, 1995, August 24,
1995, January 29, 1996, February 7, 1996, February 14, 1996, March 5,
1996, and April 10, 1996; interim approval effective on August 28,
1996; interim approval expires August 31, 1998.
* * * * *
[FR Doc. 96-19091 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19086 Final Authorization of State Hazardous Waste Management Program: Kansas
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39353-39356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19086]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5542-7]
Final Authorization of State Hazardous Waste Management Program:
Kansas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: Kansas has applied for final authorization of revisions to its
hazardous waste program under the Resource Conservation and Recovery
Act of 1976, as amended (hereinafter RCRA). The Kansas revisions
consist of provisions contained in federal rules promulgated between
July 1, 1986 to June 30, 1992. These requirements are listed in Section
B of this document. The EPA has reviewed the Kansas application and has
made a decision, subject to public review and comment, that the Kansas
hazardous waste program revisions satisfy all of the requirements
necessary to qualify for final authorization. Thus, the EPA intends to
approve the Kansas hazardous waste program revisions, subject to
authority retained by the EPA under the Hazardous and Solid Waste
Amendments of 1984 (hereinafter HSWA). The Kansas application for
program revision is available for public review and comment.
DATES: Final authorization for Kansas shall be effective September 27,
1996, unless the EPA publishes a prior Federal Register action
withdrawing this immediate final rule. All comments on the Kansas
program revision application must be received by the close of business
August 28, 1996.
ADDRESSES: Written comments should be sent to Ms. Pat Price, Iowa RCRA
& State Programs Branch, U.S. Environmental Protection Agency Region 7,
726 Minnesota Avenue, Kansas City, Kansas 66101 (913/551-7592). Copies
of the Kansas program revision application are available for inspection
and copying during normal business hours at the following addresses:
Bureau of Waste Management, Kansas Department of Health and
Environment, Forbes Field, Topeka, Kansas 66620-0001 (913/296-1600); U.
S. EPA Headquarters Library, PM 211A, 401 M Street, S.W., Washington,
D.C. 20460 (202/382-5926); U. S. EPA Region 7 Library, 726 Minnesota
Avenue, Kansas City, Kansas 66101 (913/551-7241).
FOR FURTHER INFORMATION CONTACT: Ms. Pat Price, U.S. EPA Region 7, 726
Minnesota Avenue, Kansas City, Kansas 66101 (913/551-7592).
SUPPLEMENTARY INFORMATION:
A. Background
States with final authorization under section 3006(b) of RCRA 42
U.S.C. 6926(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the federal hazardous waste program. The Hazardous and
Solid Waste Amendment of 1984 (Public Law 98-616, November 8, 1984,
hereinafter HSWA) allows states to revise their programs to become
substantially equivalent instead of equivalent to RCRA requirements
promulgated under HSWA authority. States exercising the latter option
receive ``interim authorization'' for the HSWA requirements under
section 3006(g) of RCRA, 42 U.S.C. 6926(g), and later apply for final
authorization for the HSWA requirements.
In accordance with 40 CFR 271.21, revisions to state hazardous
waste programs are necessary when federal or state statutory or
regulatory authority is modified or when certain other changes occur.
Most commonly, state program revisions are necessitated by changes to
the EPA's regulations in 40 CFR parts 124, 260-266, 268, 270, 273 and
279.
B. Kansas
Kansas initially received final authorization for its base RCRA
Program effective October 17, 1985 (50 FR 40377). Kansas received
authorization for a revision to its program effective on June 25, 1990,
for Non-HSWA Clusters I and II (55 FR 17273). Kansas received
additional approval for a revision to its program effective on August
15, 1994, for Non-HSWA Clusters III, IV, V, and HSWA Cluster I (59 FR
30528). Kansas submitted a final application for additional program
approval on April 16, 1996, for Non-HSWA Cluster VI, HSWA Cluster II,
and RCRA Clusters I and II. Kansas is seeking approval of its program
revisions in accordance with 40 CFR 271.21(b)(3).
The EPA has reviewed the Kansas application and has made an
immediate
[[Page 39354]]
final decision that the Kansas hazardous waste program revisions
satisfy all of the requirements necessary to qualify for final
authorization. Consequently, the EPA intends to grant final
authorization for the additional program modifications to Kansas. The
public may submit written comments on EPA's immediate final decision up
until August 28, 1996. Copies of the Kansas application for program
revisions are available for inspection and copying at the locations
indicated in the Addresses section of this document.
Approval of the Kansas program revisions shall become effective in
sixty (60) days, unless an adverse comment pertaining to the state's
revisions discussed in this document is received by the end of the
comment period. If an adverse comment is received, the EPA will publish
either: (1) a withdrawal of the immediate final decision, or (2) a
notice containing a response to comments which either affirms that the
immediate final decision takes effect or reverses the decision.
On September 27, 1996, Kansas will be authorized to carry out, in
lieu of the federal program, those provisions of the state's program
which are analogous to the following provisions of the federal program.
------------------------------------------------------------------------
Federal requirement Kansas regulation
------------------------------------------------------------------------
Checklist 39--California List Waste 28-31-2(a), 28-31-
Restrictions, July 8, 1987, 52 FR 25760- 4(b)(4), 28-31-8(a), 28-
25792, as amended on October 27, 1987, 52 FR 31-14, 28-31-9(a).
41295-41296.
Checklist 42--Exception Reporting for Small 28-31-4(f)(4).
Quantity Generators of Hazardous Waste,
September 23, 1987, 52 FR 35894-35899.
Checklist 44D--HSWA Codification Rule 2 28-31-9(a).
(Permit Modification), December 1, 1987, 52
FR 45788-45799.
Checklist 44E--HSWA Codification Rule 2 28-31-9(a).
(Permit as a Shield Provision), December 1,
1987, 52 FR 45788-45799.
Checklist 44F--HSWA Codification Rule 2 28-31-9(a).
(Permit Condition to Protect Human Health
and the Environment), December 1, 1987, 52
FR 45788-45799.
Checklist 44G--HSWA Codification Rule 2 (Post- 28-31-9(a).
Closure Permits), December 1, 1987, 52 FR
45788-45799.
Checklist 48--Farmer Exemptions; Technical 28-31-4(a), 28-31-8(a),
Corrections, July 19, 1988, 53 FR 27164- 28-31-14, 28-31-9(a).
27165.
Checklist 50--Land Disposal Restrictions for 28-31-8(a), 28-31-8(b),
First Third Scheduled Wastes, August 17, 28-31-14.
1988, 53 FR 31138-31222, as amended on
February 27, 1989, 54 FR 8264-8266.
Checklist 52--Hazardous Waste Management 28-31-2(a), 28-31-8(a),
System; Standards for Hazardous Waste 28-31-9(a).
Storage and Treatment Tank Systems,
September 2, 1988, 53 FR 34079-34087.
Checklist 62--Land Disposal Restrictions 28-31-14.
Amendments to First Third Scheduled Wastes,
May 2, 1989, 54 FR 18836-18838.
Checklist 63--Land Disposal Restrictions for 28-31-14.
Second Third Scheduled Wastes, June 23,
1989, 54 FR 26594-26652.
Checklist 64--Delay of Closure Period for 28-31-8(a), 28-31-9(a).
Hazardous Waste Management Facilities,
August 14, 1989, 54 FR 33376-33398.
Checklist 65--Mining Waste Exclusion I, 28-31-3(a).
September 1, 1989, 54 FR 36592-36642.
Checklist 66--Land Disposal Restrictions; 28-31-8(b), 28-31-14.
Correction to the First Third Scheduled
Wastes, September 6, 1989, 54 FR 36967, as
amended on June 13, 1990, 55 FR 23935.
Checklist 67--Testing and Monitoring 28-31-2(a), 28-31-3(a).
Activities, September 29, 1989, 54 FR 40260-
40269.
Checklist 68--Reportable Quantity Adjustment 28-31-3(a).
Methyl Bromide Production Wastes, October 6,
1989, 54 FR 41402-41408.
Checklist 69--Reportable Quantity Adjustment, 28-31-3(a).
December 11, 1989, 54 FR 50968-50979.
Checklist 70--Changes to Part 124 Not 28-31-9(a).
Accounted for by Present Checklists, April
1, 1983, 48 FR 14146-14295; June 30, 1983,
48 FR 30113-30115; July 26, 1988, 53 FR
28118-28157; September 26, 1988, 53 FR 37396-
37414; January 4, 1989, 54 FR 246-258.
Checklist 71--Mining Waste Exclusion II, 28-31-2(a), 28-31-3(a),
January 23, 1990, 55 FR 2322-2354. 28-31-4(b).
Checklist 72--Modification of F019 Listing, 28-31-3(a).
February 14, 1990, 55 FR 5340-5342.
Checklist 73--Testing and Monitoring 28-31-2(a), 28-31-3(a).
Activities; Technical Corrections, March 9,
1990, 55 FR 8948-8950.
Checklist 74--Toxicity Characteristic 28-31-3(a), 28-31-8(a),
Revisions, March 29, 1990, 55 FR 11798- 28-31-14.
11877, as amended on June 29, 1990, 55 FR
26986-26998.
Checklist 75--Listing of 1,1- 28-31-3(a).
Dimethylhydrazine Production Wastes, May 2,
1990, 55 FR 18496-18506.
Checklist 76--Criteria for Listing Toxic 28-31-3(a).
Wastes; Technical Amendment, May 4, 1990, 55
FR 18726.
Checklist 77--HSWA Codification Rule 2, 28-31-8(a).
Double Liners; Correction, May 9, 1990, 55
FR 19262-19264.
Checklist 78--Land Disposal Restrictions for 28-31-3(a), 28-31-4(a),
Third Third Scheduled Wastes, June 1, 1990, 28-31-4 (a) and (e), 28-
55 FR 22520-22720. 31-8(a), 28-31-14, 28-31-
9(a).
Checklist 79--Organic Air Emission Standards 28-31-2(a), 28-31-3(a),
for Process Vents and Equipment Leaks, June 28-31-8(a), 28-31-9(a).
21, 1990, 55 FR 25454-25519.
Checklist 80--Toxicity Characteristic; 28-31-3(a).
Hydrocarbon Recovery Operations, October 5,
1990, 55 FR 40834-40837, as amended on
February 1, 1991, at 56 FR 3978, and April
2, 1991, at 56 FR 13406-13411.
Checklist 81--Petroleum Refinery Primary and 28-31-3(a).
Secondary Oil/Water Solids Separation Sludge
Listings (F037 and F038), November 2, 1990,
55 FR 46354-46397, as amended on December
17, 1990 at 55 FR 51707.
Checklist 82--Wood Preserving Listings, 28-31-2(a), 28-31-3(a),
December 6, 1990, 55 FR 50450-50490. 28-31-4(a), 28-31-8(a),
28-31-9(a).
Checklist 83--Land Disposal Restrictions for 28-31-3(a), 28-31-4(a),
Third Third Scheduled Wastes; Technical 28-31-14.
Amendments, January 31, 1991, 56 FR 3864-
3928.
[[Page 39355]]
------------------------------------------------------------------------
Federal requirement Kansas regulation
------------------------------------------------------------------------
Checklist 84--Toxicity Characteristic; 28-31-3(a).
Chlorofluorocarbon Refrigerants, February
13, 1991, 56 FR 5910-5915.
Checklist 86--Removal of Strontium Sulfide 28-31-3(a).
from the List of Hazardous Wastes; Technical
Amendment, February 25, 1991, 56 FR 7567-
7568.
Checklist 87--Organic Air Emission Standards 28-31-8(a), 28-31-9(a).
for Process Vents and Equipment Leaks;
Technical Amendment, April 26, 1991, 56 FR
19290.
Checklist 88--Administrative Stay for K069 28-31-3(a).
Listing, May 1, 1991, 56 FR 19951.
Checklist 89--Revision to the Petroleum 28-31-3(a).
Refining Primary and Secondary Oil/Water/
Solids Separation Sludge Listings (F037 and
F038), May 13, 1991, 56 FR 21955-21960.
Checklist 90--Mining Waste Exclusion III, 28-31-3(a).
June 13, 1991, 56 FR 27300-27330.
Checklist 91--Wood Preserving Listings, June 28-31-3(a), 28-31-8(a).
13, 1991, 56 FR 27332-27336.
Checklist 92--Wood Preserving Listings; 28-31-3(a), 28-31-4(a),
Technical Corrections, July 1, 1991, 56 FR 28-31-4(g), 28-31-8(a),
30192-30198. 28-31-9(a).
Checklist 95--Land Disposal Restrictions for 28-31-3(a), 28-31-14.
Electric Arc Furnace Dust (K061), August 19,
1991, 56 FR 41164-41178.
Checklist 97--Exports of Hazardous Waste; 28-31-4(q).
Technical Correction, September 4, 1991, 56
FR 43704-43705.
Checklist 99--Amendments to Interim Status 28-31-2(a), 28-31-8(a).
Standards for Downgradient Ground-Water
Monitoring Well Locations, December 23,
1991, 56 FR 66365-66369.
Checklist 100--Liners and Leak Detection 28-31-2(a), 28-31-8(a),
Systems for Hazardous Waste Land Disposal 28-31-9(a).
Units, January 29, 1992, 57 FR 3462-3497.
Checklist 101--Administrative Stay for the 28-31-8(a).
Requirement that Existing Drip Pads Be
Impermeable, February 18, 1992, 57 FR 5859-
5861.
Checklist 102--Second Correction to the Third 28-31-8(a), 28-31-14.
Third Land Disposal Restrictions, March 6,
1992, 57 FR 8086-8089.
Checklist 103--Hazardous Debris Case-by-Case 28-31-14.
Capacity Variance, May 15, 1992, 57 FR 20766-
20770.
Checklist 104--Used Oil Filter Exclusion, May 28-31-3(a).
20, 1992, 57 FR 21524-21534.
Checklist 105--Recycled Coke By-Product, June 28-31-3(a).
22, 1992, 57 FR 27880-27888.
Checklist 106--Lead-Bearing Hazardous 28-31-14.
Materials Case-by-Case Capacity Variance,
June 26, 1992, 57 FR 28628-28632.
------------------------------------------------------------------------
The state will assume lead responsibility for issuing permits for
those program areas authorized today. For those HSWA provisions for
which the state is not authorized, the EPA will retain lead
responsibility. For those permits which will now change to state lead
from the EPA, the EPA will transfer copies of any pending applications,
completed permits, or pertinent file information to the state within 30
days of the effective date of this authorization. The EPA will be
responsible for enforcing the terms and conditions of federally issued
permits while they remain in force. The EPA will also be responsible
for enforcing the terms and conditions of RCRA permits regarding HSWA
requirements until the state has the authority to address the HSWA
requirements.
The state has agreed to review all state-issued permits and to
modify or reissue them as necessary to require compliance with the
currently approved state law and regulations. When the state reissues
federally issued permits as state permits, the state will take the lead
in enforcing such permits, with the exception of those HSWA
requirements for which the state has not received authorization. Kansas
is not authorized to operate the Federal Program on Indian Lands. This
authority remains with the EPA unless provided otherwise in a future
statute or regulation.
C. Decision
We conclude that the Kansas application for program revisions meets
all of the statutory and regulatory requirements established by RCRA
and its amendments. Accordingly, following the public comment period,
Kansas is granted final authorization to operate its hazardous waste
management program, as revised. Kansas now has responsibility for
permitting treatment, storage, and disposal facilities within its
borders and carrying out other aspects of the RCRA program described in
its revised program application, subject to the limitations of the
HSWA. Kansas also has primary enforcement responsibilities, although
the EPA retains the right to conduct inspections under Section 3007 of
RCRA and to take enforcement actions under Sections 3008, 3013 and 7003
of RCRA.
Incorporation by Reference
The EPA incorporates by reference, authorized state programs in 40
CFR Part 272, to provide notice to the public of the scope of the
authorized program in each state. Incorporation by reference of the
Kansas program will be completed at a later date.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal
mandates'' that may result in expenditures to state, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, Section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of Section 205 do not apply when they are
inconsistent with applicable law. Moreover, Section 205 allows the EPA
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before the
[[Page 39356]]
EPA establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under Section 203 of the UMRA a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of the EPA
regulatory proposals with significant federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
Today's rule contains no federal mandates for state, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``federal mandate'' duties that arise from
participation in a voluntary federal program, except in certain cases
where a ``federal intergovernmental mandate'' affects an annual federal
entitlement program of $500 million or more that are not applicable
here. The Kansas request for approval of revisions to its authorized
hazardous waste program is voluntary and imposes no federal mandate
within the meaning of the Act. Rather, by having its hazardous waste
program approved, the state will gain the authority to implement the
program within its jurisdiction, in lieu of the EPA thereby eliminating
duplicative state and federal requirements. If a state chooses not to
seek authorization for administration of a hazardous waste program
under RCRA Subtitle C, RCRA regulation is left to the EPA.
In any event, the EPA has determined that this rule does not
contain a federal mandate that may result in expenditures of $100
million or more for state, local, and tribal governments, in the
aggregate, or the private sector in any one year. The EPA does not
anticipate that the approval of the Kansas hazardous waste program
referenced in today's notice will result in annual costs of $100
million or more. The EPA's approval of state programs generally may
reduce, not increase, compliance costs for the private sector since the
state, by virtue of the approval, may now administer the program in
lieu of the EPA and exercise primary enforcement. Hence, owners and
operators of treatment, storage, or disposal facilities (TSDFs)
generally no longer face dual federal and state compliance
requirements, thereby reducing overall compliance costs. Thus, today's
rule is not subject to the requirements of Sections 202 and 205 of the
UMRA.
The EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The Agency recognizes that small governments may own and/
or operate TSDFs that will become subject to the requirements of an
approved state hazardous waste program. However, such small governments
which own and/or operate TSDFs are already subject to the requirements
in 40 CFR Parts 264, 265, and 270 and are not subject to any additional
significant or unique requirements by virtue of this program approval.
Once the EPA authorizes a state to administer its own hazardous waste
program and any revisions to that program, these same small governments
will be able to own and operate their TSDFs under the approved state
program, in lieu of the federal program.
Certification Under the Regulatory Flexibility Act
The EPA has determined that this authorization will not have a
significant economic impact on a substantial number of small entities.
The EPA recognizes that small entities may own and/or operate TSDFs
that will become subject to the requirements of an approved state
hazardous waste program. However, since such small entities which own
and/or operate TSDFs are already subject to the requirements in 40 CFR
Parts 264, 265 and 270, this authorization does not impose any
additional burdens on these small entities. This is because the EPA's
authorization would result in an administrative change (i.e., whether
the EPA or the state administers the RCRA Subtitle C program in that
state), rather than result in a change in the substantive requirements
imposed on small entities. Once the EPA authorizes a state to
administer its own hazardous waste program and any revisions to that
program, these same small entities will be able to own and operate
their TSDFs under the approved state program, in lieu of the federal
program. Moreover, this authorization, in approving a state program to
operate in lieu of the federal program, eliminates duplicative
requirements for owners and operators of TSDFs in that particular
state.
Therefore, the EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this authorization will not have a significant
economic impact on a substantial number of small entities. This
authorization effectively approves the Kansas program to operate in
lieu of the federal program, thereby eliminating duplicative
requirements for handlers of hazardous waste in the state. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
Submission to Congress and the General Accounting Office
Under Section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, the EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by Section 804(2) of the
APA as amended.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Authority: This rulemaking is issued under the authority of
Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act,
as amended [42 U.S.C. 6912(a), 6926, 6974(b)].
Dated: July 17, 1996.
Dennis Grams,
Regional Administrator.
[FR Doc. 96-19086 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19084 1,1-Difluoroethane; Tolerance Exemption
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39351-39353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19084]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 5E04443/R2258; FRL-5386-8]
RIN 2070-AB78
1,1-Difluoroethane; Tolerance Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes an exemption from the requirement of
a tolerance for residues of 1,1-difluoroethane (CAS Reg. No. 75-37-6)
when used as an inert ingredient (aerosol propellant) in aerosol
pesticide formulations used for insect control in food- and feed-
handling establishments and animals. The Dupont Company requested this
regulation pursuant to the Federal Food, Drug and Cosmetic Act (FFDCA).
EFFECTIVE DATE: This regulation becomes effective July 29, 1996.
ADDRESSES Written objections, identified by the document control
number, [PP 5E04443/R2258] may be submitted to: Hearing Clerk (1900),
Environmental Protection Agency, Rm. M3708, 401 M St., SW., Washington,
DC 20460. A copy of any objections and hearing requests filed with the
Hearing Clerk should be identified by the document control number and
submitted to: Public Response and Program Resources Branch, Field
Operations Division (7506C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
In person, bring copy of objections and hearing request to: Rm. 1132,
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. Fees
accompanying objections shall be labeled ``Tolerance Petition Fees''
and forwarded to: EPA Headquarters Accounting Operations Branch, OPP
(Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending electronic mail
(e-mail) to: [email protected]. Copies of objections and
hearing requests must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Copies of objections and
hearing requests will also be accepted on disks in WordPerfect in 5.1
file format or ASCII file format. All copies of objections and hearing
requests in electronic form must be identified by the docket number [PP
5E04443/R2258]. No Confidential Business Information (CBI) should be
submitted through e-mail. Electronic comments on this proposed rule may
be filed online at many Federal Depository Libraries. Additional
information on electronic submissions can be found below in this
document.
FOR FURTHER INFORMATION CONTACT By mail: Amelia M. Acierto,
Registration Support Branch, Registration Division (7505W), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location and telephone number: Westfield
Building North, 6th Fl., 2800 Crystal Drive, Arlington, VA 22202, (703)
308-8375; e-mail: [email protected].
SUPPLEMENTARY INFORMATION: In the Federal Register of June 4, 1996 (61
FR 28118), EPA issued a proposed rule (FRL-5371-5) that gave notice
that The Dupont Company, 1007 Market Street, Wilmington, DE 19898 had
submitted pesticide petition (PP) 5E04443 to EPA requesting that the
Administrator, pursuant to section 408(e) of the Federal Food, Drug,
and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e), propose to amend 40 CFR
180.1001(c) and (e) by establishing an exemption from the requirement
of a tolerance for residues of 1,1-difluoroethane (CAS Reg. No. 75-37-
6) when used as an inert ingredient (aerosol propellant) in pesticide
formulations used for insect control in food- and feed-handling
establishments and animals.
Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125, and include, but are
[[Page 39352]]
not limited to, the following types of ingredients (except when they
have a pesticidal efficacy of their own): Solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not intended to imply
nontoxicity; the ingredient may or may not be chemically active.
There were no comments or requests for referral to an advisory
committee received in response to the proposed rule.
The data submitted relevant to the proposal and other relevant
material have been evaluated and discussed in the proposed rule. Based
on the data and information considered, the Agency concludes that the
tolerance exemption will protect the public health. Therefore, the
tolerance exemption is established as set forth below.
Any person adversely affected by this regulation may, within August
28, 1996, file written objections and/or request a hearing with the
Hearing Clerk, at the address given above (40 CFR 178.20). A copy of
the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by 40
CFR 180.33(i). If a hearing is requested, the objections must include a
statement of the factual issue(s) on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the objector (40 CFR 178.27). A request for a hearing
will be granted if the Administrator determines that the material
submitted shows the following: There is a genuine and substantial issue
of fact; there is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
A record has been established for this rulemaking under docket
number (PP insert0 number) (including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI is available for public
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
A copy of electronic objections and hearing requests filed with the
Hearing Clerk can be sent directly to EPA at:
[email protected].
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the Virginia address in ``ADDRESSES'' at the
beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule (1) having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of the Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A statement
containing the factual basis for this certification was published in
the Federal Register of May 4, 1981 (46 FR 24950).
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: July 18, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR part 180 is amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.1001 the table to paragraph (c) and paragraph (e) is
amended by adding alphabetically the inert ingredient, to read as
follows:
Sec. 180.1001 Exemptions from the requirement of a tolerance.
* * * * *
[[Page 39353]]
(c) * * *
------------------------------------------------------------------------
Inert ingredients Limits Uses
------------------------------------------------------------------------
* * * * * * *
1,1-Difluoroethane (CAS Reg. For aerosol Aerosol propellant
No. 75-37-6). pesticide
formulations
used for insect
control in food-
and feed-
handling
establishments
and animals.
* * * * * * *
------------------------------------------------------------------------
(e) * * *
------------------------------------------------------------------------
Inert ingredients Limits Uses
------------------------------------------------------------------------
* * * * * * *
1,1-Difluoroethane (CAS Reg. For aerosol Aerosol propellant
No. 75-37-6). pesticide
formulations
used for insect
control in food-
and feed-
handling
establishments
and animals.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 96-19084 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19082 Norflurazon; Pesticide Tolerance
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39347-39351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19082]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 9F3766/R2254; FRL-5385-3]
RIN 2070-AB78
Norflurazon; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes tolerances for residues of the herbicide
norflurazon (4-chloro-5-(methylamino)-2-(alpha, alpha, alpha-trifluoro-
m-tolyl)-3-(2H)-pyridazinone) and its desmethyl metabolite (4-chloro-5-
(amino)-2-alpha, alpha, alpha-trifluoro-m-tolyl)-3(2H)-pyradazinone) in
or on the following raw agricultural commodities (RACs): alfalfa,
forage, alfalfa, hay, alfalfa, seed; and in or on meat by products
(except liver) of cattle, goats, hogs, horses, and sheep and in or on
liver of cattle, goats, hogs, horses and sheep resulting from the use
of norflurazon in the culture of alfalfa. This regulation to establish
a maximum permissible level for the residues of norflurazon was
requested in a petition submitted by Sandoz Agro, Inc. of 1300 East
Touhy Avenue Des Plaines, Illinois 60018-3300.
EFFECTIVE DATE: July 29, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket number, [PP 9F3766/R2254], may be submitted to: Hearing clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. A copy of any objections and hearing requests
filed with the Hearing Clerk should be identified by the docket number
and submitted to: Public Response and Program Resources Branch, Field
Operations Division (7506C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
In person, bring copy of objections and hearing requests to Rm. 1132,
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. Fees
accompanying objections shall be labeled ``Tolerance Petition Fees''
and forwarded to: EPA Headquarters Accounting Operations Branch, OPP
(Tolerance Fees), P.O. Box 36277M, Pittsburgh, PA 15251. Information
not marked confidential may be disclosed publicly by EPA without prior
notice. An electronic copy of objections and hearing requests filed
with the Hearing Clerk may be submitted to OPP by sending electonic
mail (e-mail) to: [email protected].
Copies of electronic objections and hearing requests must be
submitted as an ASCII file avoiding the use of special characters and
any form of encryption. Copies of electronic objections and hearing
requests will also be accepted on disks in Wordperfect 5.1 file format
or as ASCII file format. All copies of electronic objections and
hearing requests must be identified by the docket number [PP 9F3766/
R2254]. No Confidential Business Information (CBI) should be submitted
through e-mail. Copies of electronic objections and hearing requests on
this rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submissions can be found in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: By mail: Joanne Miller, Product
Manager (23) Registration Division (7505C), Office of Pesticide
Programs. Environment Protection Agency, 401 M St. SW., Washington, DC
20460. Office location and telephone number: Rm. 237, CM #2, 1921
Jefferson Davis Highway, Arlington, VA 22202. (703) 305-6224, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: EPA issued a notice of filing, published in
the Federal Register of June 29, l989 (54 FR 27423), which announced
that
[[Page 39348]]
Sandoz Crop Protection Corp., of 1300 East Touhy Avenue, Des Plaines,
IL 60018 had submitted a request for an EPA Pesticide Petition, PP
9F3766, for the purpose of amending 40 CFR part 180, pursuant to
section 408(d) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21
U.S.C. 346a(d), by establishing tolerances for combined residues of the
herbicide norflurazon, (4-chloro-5-(methylamino)-2-(alpha, alpha,
alpha-trifluoro-m-tolyl)-3-(2H)-pyridazinone) and its desmethyl
metabolite (4-chloro-5-(amino)-2-alpha, alpha alpha-trifluoro-m-tolyl)-
3(2H)-pyridazinone) in or on alfalfa, forage at 3.0 ppm, alfalfa, hay
at 5.0 ppm, alfalfa, seed at 0.1 ppm. The proposed analytical method of
determining residues was gas chromatography.
A second notice of filing was published in the Federal Register (61
FR 30238, June 14, l996) (FRL-5370-7). The notice announced that Sandoz
had revised requested tolerances for residues of norflurazon (4-chloro-
5-(methylamino)-2-alpha, alpha, alpha-trifluoro-m-tolyl)-3-(2H)-
pyridazinone) and its desmethyl (metabolite 4-chloro-5-(amino)-2-alpha,
alpha, alpha-trifluoro-m-tolyl)-3(2H)-pyridazinone) in or on the
following raw agricultural commodities: alfalfa, forage at 3.0 ppm,
alfalfa, hay at 5.0 ppm and alfalfa, seed at 0.1 ppm; and in or on
meat-by-products (except liver) of cattle, goats, hogs, horses, and
sheep at 0.1 ppm and in or on liver of cattle, goats, hogs, horses and
sheep at 0.25 ppm.
There were no comments received in response to the notices of
filing. The scientific data submitted in the petition and other
relevant material have been evaluated. The toxicological data
considered in support of the proposed tolerances include:
1. The following acute studies with norflurazon:
Acute Oral, Rat (Male) LD50: 9.3 g/kg, Toxicity Category
IV.
Acute Dermal, Rabbit: LC50 20,000 mg/kg,
Toxicity Category IV.
Acute Inhalation, Acceptable study unavailable.
Primary Eye Irritation, Rabbit: Toxicity Category IV.
Primary Dermal Irritation, Rabbit, non-irritating: Category IV.
Dermal Sensitization, Guinea Pig, technical norflurazon at 0.1
percent did not cause sensitization in males, a repeat study is
required because of flaws in the study.
2. A 90-day rat feeding study at nominal dosages of 0, 12.5, 25.0
and 125.0 mg/kg/day. There were no significant effects of norflurazon
on survival, body weight, body weight gain and food consumption in male
and female rats at any dose level. At the 125.0 mg/kg/day dose level,
the following effects were observed at 13 weeks: an increase in red
cell count of 19 percent in male rats; a decrease in alkaline
phosphatase activity of 38 percent and 42 percent in male and female
rats, respectively; a decrease in SGOT activity of 36 percent in female
rats; an increase in liver weight of 14 percent and 12 percent in male
and female rats, respectively; an increase in thyroid weight of 96
percent in male rats; and an increase in the incidence of hypertrophic
acinar epithelium and colloid depletion of the thyroid in male rats. At
the 25.0 mg/kg/day level after 13 weeks of treatment, thyroid weight
was increased by 20 percent in male rats with an increased incidence of
hypertrophic acinar epithelium and colloid depletion. In addition, red
cell count was increased by 14 percent in male rats, SGOT was decreased
by 10 percent in female rats, and liver weight was increased by 14
percent in males. The systemic no-observable-effect-level (NOEL) was
considered to be 12.50 mg/kg/day in male rats, and 25.0 mg/kg/day in
female rats. The systemic lowest-effect-level (LEL) was considered to
be 25.0 mg/kg/day in male rats based on increased red cell count,
increased thyroid and liver weight, and increased incidence of
hypertropic acinar epithelium and colloid deposition in the thyroid.
The systemic LEL was considered to be 125.0 mg/kg/day in female rats,
based on an increased liver weight and liver-to-body weight ratio. The
decreased alkaline phosphatase and SGOT activity observed in females at
this dose were of unknown biological significance.
3. A 6-month dog feeding study at dosages of 0, 1.53, 5.02 and
14.27 mg/kg/day for males and 0, 1.58, 4.77 and 17.75 mg/kg/day for
females, technical norflurazon (99.2 percent a.i.). At the mid-dose
level, liver weight was increased by 38 percent in male dogs and by 23
percent in female dogs. Thyroid weight was increased by 33 percent in
male dogs and 37 percent in female dogs at those dose levels. Also, as
noted at the mid-dose level there were increases of cholesterol in both
sexes (23 to 40 percent in males, 6 to 34 percent in females), a
decrease in SGPT (36 to 38 percent in males, 13 to 20 percent in
females) and SGOT (4 to 23 percent in males, 13 to 23 percent in
females). At the highest level, similar changes were observed in male
and female dogs, with the additional observation of a decrease in red
cell count in female dogs (79 to 92 percent of control). The systemic
NOEL was determined to be 1.53 mg/kg/day for males and 1.58 mg/kg/day
for females. The systemic LEL was determined to be 5.02 mg/kg/day for
males and 4.77 mg/kg/day for females, based on increased absolute and
relative liver weight and increased cholesterol in both sexes.
4. A 3-week rabbit dermal study with 80 percent norflurazon
wettable powder. Dermal applications were made at doses of 150 mg
(approximately 375 mg/kg/day) and 400 mg (approximately 1,000 mg/kg/
day) 5 days per week, 6 to 8 hours per day, for the 3-week study. The
systemic NOEL was 375 mg/kg/day for males and females, and the systemic
LEL was 1,000 mg/kg/day for males and females, based on increases in
alkaline phosphatase activity, liver weight and liver to body weight
ratio in both sexes. The dermal NOEL was also 375 mg/kg/day for both
sexes, and the dermal LEL was 1,000 mg/kg/day for both sexes, based on
slight erythema observed immediately after bandage removal.
5. A 28-day rat feeding study at dosages of 0, 25.0, 50.0 and 250.0
mg/kg/day with a NOEL of 50.0 mg/kg/day. The effect was hyperplasia and
hypertrophy of liver and higher liver, kidney, adrenal, and heart/body
weight ratios.
6. A 28-day mouse feeding study at dosages of 0, 10.5, 31.5, 63.0,
and 378.0 mg/kg/day with a NOEL of 63.0 and 378.0 mg/kg/day with a NOEL
of 63.0 mg/kg/day and a LEL of 378.0 mg/kg/day. The effect was diffused
and smooth granular livers and an increase in the liver/body weight
ratios.
7. A rat dermal absorption study at dosages of 0, 0.1, 1.0 and 10.0
mg/rat showing that no more than 0.1 percent of applied dose was
absorbed at doses up to 10 mg/rat.
8. Gene mutation assays in Salmonella typhimurium (strains TA98,
TA100, TA1535, TA1537 and TA1538), and Saccharomyces cerevisiae (strain
D4), in vitro, in the absence and presence of metabolic activation
(Aroclor 1254 induced rat liver S-9). Norflurazon technical at
concentrations of 0, 0.1, 1.0, 10, 100, or 500 g/plate (non-
activation) and concentrations of 0, 0.1, 1.0, 10.0, 100 or 500
g/plate activation) [1,000 g/plate for TA1537 in a
second assay] showed no evidence of mutagenicity in this study. There
was no evidence of cytotoxicity in any of the strains at any of the
dose concentrations used. Positive controls appeared adequate for all
strains except TA100, where positive controls in the absence and
presence of S-9 gave less than 2 times the number of revertants
observed in negative controls. In the absence of data demontrating
toxic effects, the highest concentration used in this study is
inadequate and higher concentrations
[[Page 39349]]
should have been assayed. In an in vitro chromosomal aberration assay,
norflurazon did not cause a clastogenic response at doses of 63 to 500
g/ml in the absence of liver S-9 and at doses of 125 to 1,000
g/ml in the presence of S-9. In an in vitro unscheduled DNA
synthesis assay, norflurazon at doses ranging from 1 to 333 g/
ml failed to induce unscheduled DNA synthesis in primary rat
hepatocytes.
9. A developmental study in rats at dosages of 0, 100, 200 and 400
mg/kg/day showed no maternal or developmental effects at 400 mg/kg/day.
Maternal NOEL was <100 mg/kg/day; maternal LEL was 100 mg/kg/day, based
on reductions in body weight for the period of dosing and for the
dosing plus post-dosing period.
10. A developmental study in rabbits at dosages of 0, 10, 30 and 60
mg/kg/day showed maternal body weight decreases at 60 mg/kg/day.
Developmental effects seen at 60 mg/kg/day were decreased fetal weight
and incomplete ossification of the skull, fore and hind limb middle
phalanx, metacarpal, and proximal epiphysis of the tibia. The NOEL for
maternal toxicity was 30 mg/kg/day. The NOEL for developmental toxicity
was 30 mg/kg/day.
11. A three generation reproduction study in rats at dosages of 0,
6.25, 18.75 and 51.25 mg/kg/day showed no apparent effects on
reproductive performance at any dose level tested.
12. A chronic toxicity and carcinogenicity study in Sprague-Dawley
rats at dosages of 0, 6.25, 18.75 and 51.25 mg/kg/day for 104 weeks. No
significant effects of technical norflurazon were evident for survival,
body weight, body weight gain, or food consumption in male or female
rats at any dose level tested. At the 18.75 mg/kg/day dose, liver
weight was increased by 17 percent and 13 percent in males and females
at 52 weeks and at 51.25 mg/kg/day by 24 percent and 27 percent in both
sexes. At 104 weeks, liver weight was increased by 12 to 14 percent in
both males and females, and kidney weight by 16 to 39 percent vs.
controls. The weight of the thyroid was also increased at the 51.25 mg/
kg/day dose in male rats at 104 weeks. An increased incidence of
hydronephrosis was observed in high dose male rats at 52 weeks vs.
control, while the incidence of nephritis was increased in male rats
(terminal sacrifice plus dying on test) at the 51.25 mg/kg/day dose.
The incidence of tubular casts was increased in female rats at the high
dose in those rats surviving to study termination. Other microscopic
alterations observed at the high dose included an increased incidence
of parathyroid hyperplasia (both sexes), hemosiderin pigment deposition
in the spleen (males only) and liver (both sexes), and endometritis and
squamous metaplasia of the uterus (females).
The systemic NOEL was determined to be 18.75 mg/kg/day for both
sexes. The systemic LEL was determined to be 51.25 mg/kg/day in both
sexes, based on the increased kidney weight and accompanying
microscopic pathologic changes, as well as the increase in liver weight
in male and female rats and the increase in thyroid weight in males.
There was no evidence of carcinogenicity for norflurazon.
13. A carcinogenicity study in CD-1 HaM/ICR Swiss mice at dosages
of 0, 12.8, 58.7 and 218.8 mg/kg/day technical norflurazon in the diet
for 100 to 104 weeks. No significant effects were observed on body
weight, body weight gain, clinical toxicity, and food consumption at
any dose. Liver weight was increased by 9 percent and 15 percent in
male and female mice at the 58.7 mg/kg/day dose, and by 27 percent and
21 percent at the 218.8 mg/kg/day dose, respectively. The liver to body
weight ratio was increased by 19 percent and 4 percent in male and
female mice at the 58.7 mg/kg/day dose, and by 43 percent and 19
percent at the 218.8 mg/kg/day dose, respectively. Increased incidence
of enlarged spleen, nephritis, swollen/enlarged liver, and nodular
enlargement of the liver were observed in high dose male mice, while
increased incidences of pyelonephritis, enlarged liver, and cystic
ovaries were observed in high dose female mice. Carcinogenic potential
was evidenced by an increased incidence of hepatic adenoma and combined
adenoma/carcinoma in high dose male mice.
The systemic NOEL was determined to be 12.8 mg/kg/day for male
mice, and 58.7 mg/kg/day for female mice. The systemic LEL was
determined to be 58.8 mg/kg/day for male mice, based on the increased
incidence of enlarged spleen, increased absolute and relative liver
weight, and increased incidence of nephritis. The systemic LEL was
determined to be 218.8 mg/kg/day for female mice, based on the
increased incidence of enlarged liver and cystic ovaries, the increased
absolute and relative liver weight, and the increased incidence of
pyelonephritis.
14. A rat metabolism study at single oral doses of 2 or 110 mg/kg,
a single i.v. dose of 2.0 mg/kg, or a single oral dose at 2 mg/kg after
animals had ingested 0.1 mg/kg for 14 days showed that less than 1.0
percent of the administrated dose remained 96 hours after dosing.
Thirteen metabolites were isolated. Norflurazon appears to be
metabolized by N-demethylation, displacement of the chlorine atom by
glutathione, glutatione attack on the aromatic ring, and replacement of
the chlorine atom with hydrogen. Norflurazon appears to be rapidly
absorbed from the gastrointestinal tract and extensively metabolized.
The Agency's Health Effects Division Peer Review Committee
classified norflurazon as a Group C, possible human carcinogen, based
on the criteria in the Agency's Guideline for the Classification of
Carcinogens (51 FR 33992-34003, September 24, l986) and the
statistically significant increase in comparison to controls in
hepatocellular adenomas and combined hepatocellular adenomas and
carcinomas in male CD-1 mice as well as the statistically significant
positive trend for hepatocellular adenomas and combined adenomas and
carcinomas.
That committee also recommended that for the purposes of risk
characterization the Reference Dose (RfD) approach should be used for
the quantification of human risk. This recommendation was supported by
the presence of only benign tumors in only one sex of one species at
one dose level, and adequate but negative mutagenicity data and no
positive analogues. EPA believes norflurazon poses a negligible cancer
risk to humans.
Since the committee's review, the Agency has reevaluated the gene
mutation assay in Salmonella typhimurium, strain TA100 and determined
that it was inadequate. Sandoz Agro, Inc. has agreed to submit a repeat
study by August 15, l996. The Agency does not believe that the study
would significantly change the risk analysis for the use of norflurazon
in the culture of alfalfa, as proposed in the subject petition.
Using a 100-fold safety factor and the NOEL of 1.53 mg/kg/day
determined by the most sensitive species (the 6-month dog feeding
study), the RfD is 0.02 mg/kg/bwt/day. The theoretical maximum residue
contribution (TMRC) from the established and the proposed tolerances is
0.002041 and utilizes 10.2 percent of the RfD for the overall U.S
population. The exposure of the most highly exposed subgroup in the
population, non-nursing infants, is 0.009356 mg/kg/bwt/day and utilizes
46.8 percent of the RfD.
In a worst case estimate of dietary exposure with all residues at
tolerance level and 100 percent of the commodities assumed to be
treated with norflurazon is minimal for alfalfa commodities and does
not exceed the RfD for any of the subgroups.
[[Page 39350]]
Because developmental effects were seen in the rabbit developmental
study, the Agency assessed acute dietary risk from developmental
effects for the subgroup females (13+ years) the only appropriate group
of acute dietary concern. The Margin of Exposure (MOE), a measure of
how closely the high-end exposure comes to the NOEL, was calculated as
the ratio of the NOEL to the exposure and determined to be 3,000. The
Agency is not generally concerned unless the MOE is below 100 when
based upon data generated in animal studies.
Previous tolerances have been established for norflurazon in
almonds, hulls and nutmeat; apples; apricots; asparagus; avocados;
blackberries; blueberries; cattle, fat, meat, and meat-by-products
(mbp); cherries; citrus fruit; cottonseed; cranberries; filberts;
goats, fat, meat and mbp; grapes; hogs, fat, meat, and mbp; hops,
green; horses, fat, meat, and mbp; milk; nectarines; peaches; peanuts;
peanut hay, hulls and vines; pecans; pears; plums (fresh prunes);
poultry, fat, meat and mbp; raspberries; sheep, fat, meat and mbp;
soybeans, forage and hay; and walnuts. The metabolism of norflurazon in
plants is adequately understood. Metabolism of norflurazon in livestock
has been studied and tolerances for livestock commodities have been
established. A ruminant study adequately identified the metabolites in
milk, liver and kidney. Norflurazon was not detected in ruminant milk
or tissue, and total radioactive residues in fat and muscle were <0.01
part per million (ppm).
The nature of the residue is adequately understood, and an adequate
analytical method, gas chromatography using electron capture detection,
is available for enforcement purposes. Because of the long lead time
from establishing these tolerances to publication of the enforcement
methodology in the Pesticide Analytical Manual, Vol. II, the analytical
methodology is being made available in the interim to anyone interested
in pesticide enforcement when requested from: Calvin Furlow, Public
Information Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location and telephone number: Rm. 242, CM
#2, 1921 Jefferson Davis Hwy., Arlington, VA 22202, (703) 305-4432.
The pesticide is considered useful for the purposes for which the
tolerances are sought. Based on the information and data considered,
the Agency concludes that the establishment of the tolerances will
protect the public health. Registration for use in the culture of
alfalfa will be conditioned on the basis that Sandoz Agro, Inc., the
registrant will submit an acute inhalation study, a mutagenicity study
and a dermal sensitization study. These studies are replacement studies
for studies that were determined to be inadequate during the Agency's
review of norflurazon for a Reregistration Eligibility Decision
(presently not issued). There are presently no actions pending against
the continued registration of this chemical. Therefore, the tolerances
are established as set forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by 40
CFR 180.33(i). If a hearing is requested, the objections must include a
statement of the factual issue(s) on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the objector (40 CFR 178.27). A request for a hearing
will be granted if the Administrator determines that the material
submitted shows the following: There is genuine and substantial issue
of fact; there is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
A record has been established for this rulemaking under docket
number [PP 9F3766/R2254] (including comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of electronic comments, which does
not include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-D[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will place the paper copies in the
official rulemaking record which will also include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the Virginia address in ``ADDRESSES'' at the
beginning of this document.
Under Executive Order 12866 (58 FR 51735, Oct. 4, 1993), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to all the requirements of the Executive Order (i.e.,
Regulatory Impact Analysis, review by the Office of Management and
Budget (OMB)). Under section 3(f), the order defines ``significant'' as
those actions likely to lead to a rule (1) having an annual effect on
the economy of $100 million or more, or adversely and materially
affecting a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also known as ``economically
significant''); (2) creating serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement, grants, user
fees, or loan programs; or (4) raising novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, l993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by
[[Page 39351]]
Executive Order 12898 (59 FR 7629, February 16, l994).
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A
certification statement explaining the factual basis for this
determination was published in the Federal Register of May 4, 1981 (46
FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: July 18, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR Part 180 be amended as follows:
PART 180--[AMENDED]
1. The authority citation for Part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371
2. In Sec. 180.356, the table is amended by adding alphabetically
the entries for Alfalfa, forage; Alfalfa, hay; Alfalfa, seed; Cattle,
liver; Goats, liver; Hogs, liver; Horse liver; and Sheep, liver, and by
revising the entries for Cattle, mbyp; Goats, mbyp; Hogs, mbyp; Horse,
mbyp; and Sheep, mbyp; to read as set forth below:
Sec. 180.356 Norflurazon; tolerances for residues.
* * * * *
------------------------------------------------------------------------
Parts per
Commodity million
------------------------------------------------------------------------
* * * * *
Alfalfa, forage............................................ 3.0
Alfalfa, hay............................................... 5.0
Alfalfa, seed.............................................. 0.1
* * * * *
Cattle, liver.............................................. 0.25
Cattle, mbyp (except liver)................................ 0.1
* * * * *
Goats, liver............................................... 0.25
Goats, mbyp (except liver)................................. 0.1
* * * * *
Hogs, liver................................................ 0.25
Hogs, mbyp (except liver).................................. 0.1
* * * * *
Horses, liver.............................................. 0.25
Horses, mbyp (except liver)................................ 0.1
* * * * *
Sheep, liver............................................... 0.25
Sheep, mbyp (except liver)................................. 0.1
* * * * *
------------------------------------------------------------------------
[FR Doc. 96-19082 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19076 Revocation of Pesticide Food Additive Regulations
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39528-39542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19076]
[[Page 39527]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 180 and 185
_______________________________________________________________________
Revocation of Pesticide Food Additive Regulations; Final Rule
Federal Register / Vol. 61, No. 146 / Monday, July 29, 1996 / Rules
and Regulations
[[Page 39528]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180 and 185
[OPP-300360B; FRL-5388-2]
RIN 2070-AB78
Revocation of Pesticide Food Additive Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is revoking six food additive regulations (tolerances) for
four pesticides. EPA is revoking four tolerances because they violate
the Delaney clause of the Federal Food, Drug, and Cosmetic Act, and the
other two tolerances because they are not needed to prevent adulterated
food.
EFFECTIVE DATE: This final rule is effective September 27, 1996.
Written objections, requests for a hearing, and/or requests for stays
identified by the docket number OPP-300360B, must be submitted by
August 28, 1996.
ADDRESSES Written objections and hearing requests, identified by the
docket number, [OPP-300360B], may be submitted to: Hearing Clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. Fees accompanying objections and hearing requests
shall be labeled ``Tolerance Petition Fees'' and forwarded to: EPA
Headquarters Accounting Operations Branch, OPP (Tolerance Fees), P.O.
Box 360277M, Pittsburgh, PA 15251. A copy of any objections and hearing
requests filed with the Hearing Clerk should be identified by the
docket number and submitted to: Public Response and Program Resources
Branch, Field Operations Division (7506C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. In person, bring copy of objections and hearing requests to:
Rm. 1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending electronic mail
(e-mail) to: [email protected]. Copies of objections and
hearing requests must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Copies of objections and
hearing requests will also be accepted on disks in WordPerfect in 5.1
file format or ASCII file format. All copies of objections and hearing
requests in electronic form must be identified by the docket number
[OPP-300360B]. No Confidential Business Information (CBI) should be
submitted through e-mail. Electronic copies of objections and hearing
requests on this rule may be filed online at many Federal Depository
Libraries. Additional information on electronic submissions can be
found below in this document.
Information submitted as a comment concerning this document may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR Part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public inspection in Rm. 1132 at
the address given above, from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT By mail: Jean M. Frane, Policy and
Special Projects Staff (7501C), Environmental Protection Agency, 401 M
St., SW., Washington, DC 20460. Office location and telephone number:
Rm. 1113, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA,
(703) 305-5944. e-mail: [email protected].
SUPPLEMENTARY INFORMATION: This document is divided into the following
areas for discussion: Table of Contents
I. Introduction
A. Regulated Entities
B. Terms and Acronyms
C. Statutory Background
D. Regulatory Background
E. EPA Actions Since Proposed Rule
F. Today's Action
II. Relevant Policy Changes Since the Proposal
A. Concentration Policy
B. Ready-to-Eat Definition
C. RAC Interpretation
III. Decision Framework
IV. Is a Processed Food Tolerance Needed?
A. Acephate in Food Handling Establishment
B. Imazalil in Citrus Oil
C. Iprodione on Dried Ginseng
D. Iprodione on Raisins
E. Triadimefon on Milled Fractions of Wheat (Wheat Bran)
F. Triadimefon on Milled Fractions of Barley (Barley Bran)
V. Do Needed Processed Food Tolerances Violate the Delaney
Clause?
VI. Revocations
A. Processed Food Tolerances That are Not Needed
B. Processed Food Tolerances That Violate the Delaney Clause
VII. General Comments Common to All Proposed Revocations.
VIII. Comments Related to Specific Pesticides
A. Acephate
B. Triadimefon
C. Iprodione
IX. Procedural Matters
A. Filing of Objections and Requests for Hearings
B. Effective Date
C. Request for Stays of Effective Date
X. Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act and Executive Order 12875
E. Review by Congress and the General Accounting Office
I. Introduction
A. Regulated Entities
------------------------------------------------------------------------
Examples of Regulated
Category Entities
------------------------------------------------------------------------
Industry.................................. Users of the pesticides
covered by this notice
........................................ Food processors
------------------------------------------------------------------------
This table is not exhaustive, but is a guide to the entities EPA
believes are regulated by this action.
B. Terms and Acronyms
In today's document, EPA uses a number of terms and acronyms that
may not be familiar to the reader. For the convenience of readers,
principal terms and acronyms used in this document are listed here.
Federal Food, Drug, and Cosmetic Act - FFDCA
Federal Insecticide, Fungicide and Rodenticide Act - FIFRA
408 tolerance - a raw food tolerance established under section 408
of the FFDCA.
409 tolerance - a processed food tolerance established under
section 409 of the FFDCA.
CF - concentration factor
DF - dilution factor
HAFT - highest average field trial
RAC - raw agricultural commodity
RTE - ready to eat
C. Statutory Background
The Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et
seq., authorizes the establishment by regulation of maximum permissible
levels of pesticides in foods. Such regulations are commonly referred
to as ``tolerances.'' Without such a tolerance or an exemption from the
requirement of a tolerance, a food containing a pesticide residue is
``adulterated'' under section 402 of the FFDCA and may not be legally
moved in interstate
[[Page 39529]]
commerce. 21 U.S.C. 331, 342. Monitoring and enforcement of pesticide
tolerances are carried out by the U.S. Food and Drug Administration
(FDA) and the U.S. Department of Agriculture. EPA can establish a
tolerance in response to a petition or on its own initiative.
The FFDCA has separate provisions for tolerances for pesticide
residues in raw agricultural commodities (RACs) and in processed food.
EPA establishes tolerances, or exemptions from tolerances when
appropriate, for RACs under section 408 (hereafter referred to as ``408
tolerances'' or ``RAC tolerances''). 21 U.S.C. 346a. EPA establishes
food additive regulations for pesticide residues in processed foods
under section 409, which pertains to ``food additives.'' 21 U.S.C. 348.
Food additive regulations under section 409 are referred to hereafter
as ``409 tolerances'' or ``processed food tolerances.''
Section 409 tolerances are needed, however, only for certain
pesticide residues in processed food. Under section 402(a)(2) of the
FFDCA, a pesticide residue in processed food generally will not render
the food adulterated if the residue results from application of the
pesticide to a RAC and the residue in the processed food when ready to
eat is below the RAC tolerance. This exemption in section 402(a)(2) is
commonly referred to as the ``flow-through'' provision because it
allows the RAC tolerance to flow through and apply to the processed
food forms as well. Thus, a 409 tolerance is only necessary to prevent
foods from being deemed adulterated when the level of the pesticide
residue in a processed food when ready to eat is greater than the
tolerance established for the RAC, or if the processed food itself is
treated or comes in contact with a pesticide.
If a 409 tolerance must be established, section 409 of the FFDCA
requires that the use of the pesticide will be ``safe'' (21 U.S.C.
348(c)(3)). Relevant factors in this safety determination include (1)
the probable consumption of the pesticide or its metabolites; (2) the
cumulative effect of the pesticide in the diet of man or animals,
taking into account any related substances in the diet; and (3)
appropriate safety factors to relate the animal data to the human risk
evaluation. Section 409 also contains the Delaney clause, which
specifically provides that ``no additive shall be deemed to be safe if
it is found, after tests which are appropriate for the evaluation of
the safety of food additives, to induce cancer in man or animal.''
D. Regulatory Background
1. On January 18, 1995 (60 FR 3602)(FRL-4910-8), EPA published in
the Federal Register a proposal to revoke six 409 tolerances for 4
pesticides. EPA's action was prompted by a decision of the Ninth
Circuit Court of Appeals, which ruled on July 8, 1992, in the case of
Les v. Reilly, 968 F.2d 985 (9th Cir.), cert. denied, 113 S.Ct. 1361
(1993), that the Delaney clause barred the establishment of a 409
tolerance for a pesticide which ``induces cancer,'' no matter how
infinitesimal the risk.
In response to the court's decision in Les v. Reilly, EPA
identified and proposed to revoke all 409 tolerances for pesticides
which it determined ``induce cancer in man or animals.'' EPA decided to
evaluate these pesticides in phases. The initial phase of revocations
included 26 uses of 7 pesticides and was finalized on March 22, 1996
(61 FR 11993)(FRL-5357-7). The second phase of revocations includes 6
uses of 4 pesticides and was proposed on January 18, 1995 (60 FR 3602).
Today's final revocations address those pesticides. A third set of
revocations was proposed on September 21, 1995 (60 FR 49141)(FRL-4977-
3) and will be finalized by March 1997.
E. EPA Actions Since Proposed Rule
1. Settlement of California v. Browner case. In a court-approved
settlement, entered on February 9, 1995, in the case of California v.
Browner, EPA agreed to make decisions regarding pesticides that may be
affected by the Delaney clause. This settlement agreement includes a
timetable for making the decisions. Today's revocations comply with the
timeframes in that settlement.
2. Revised tolerance-setting policies. In September 1993 the
National Food Processors' Association (NFPA) filed a petition with the
EPA, challenging a number of policies under which EPA administers its
tolerance-setting program, including the concentration policy, ready-
to-eat policy and coordination policy. Several of these policies are
relevant to today's revocation decisions. In the Federal Register of
June 14, 1995 (60 FR 31300)(FRL-4944-2) and January 25, 1996 (61 FR
2378)(FRL-4991-9), EPA responded to the NFPA petition by modifying or
establishing policies concerning concentration of residues, ready-to-
eat foods, raw agricultural commodities and coordination of its
regulatory authorities. Unit II of this document summarizes the policy
changes that are relevant to today's revocations.
F. Today's Action
EPA is revoking the 409 tolerances for six uses of four pesticides.
Table 1 below summarizes the revocations and their basis. Each of these
is discussed later in this notice.
----------------------------------------------------------------------------------------------------------------
CFR
Pesticide Citation Commodity Basis for Revocation
----------------------------------------------------------------------------------------------------------------
Acephate................................. 185.100 Food handling establishments Violates Delaney
Imazalil................................. 185.3650 Citrus oil Not needed
Iprodione................................ 185.3750 Dried Ginseng Violates Delaney
Iprodione................................ Do. Raisins Violates Delaney
Triadimefon.............................. 185.800 Barley, milled fractions Not needed
(except flour)
Do. Wheat, milled fractions Violates Delaney
(except flour)
----------------------------------------------------------------------------------------------------------------
The 409 tolerance revocations being finalized in this notice were
proposed on January 18, 1995, before EPA had responded to the NFPA
petition and adopted its new policies. In addition, EPA received
petitions from registrants of three pesticides requesting revocation of
four 409 tolerances (imazalil/citrus oil, iprodione/raisins and dried
ginseng, and triadimefon/barley milled fractions) on the basis that
they are not needed. For each petition, EPA published a notice of
availability in the Federal Register requesting comment. Although not
required to do so, where appropriate EPA has based its revocation
decision on the reasons cited by the petitioners rather than the
requirements of the Delaney clause as proposed.
[[Page 39530]]
II. Relevant Policy Changes Since the Proposal
A. Concentration Policy
In its June 1995 notice, EPA announced a new policy on how it would
determine whether a pesticide needs a 409 tolerance. To determine
whether the use of a pesticide on a growing crop needs a 409 tolerance
in addition to a 408 tolerance, EPA evaluates the likelihood that the
residue levels in the processed food when ready to eat will exceed the
408 tolerance level. In the past, EPA focussed almost exclusively on
the results of processing studies using treated crops in making this
determination. EPA now considers a greater range of information in
determining the likelihood that residues in processed food will exceed
the 408 tolerance. For example:
1. Mixing and blending of treated food commodities decreases the
likelihood that residues in processed food will exceed the 408
tolerance. EPA takes potential mixing and blending into account by
using information on the highest average field trial residue (referred
to as the HAFT).
2. If multiple processing studies demonstrate different
concentration factors (CFs), EPA now uses the average CF rather than
the highest CF to determine the expected level of concentration.
3. At the same time, EPA examines processing studies to ensure that
they reflect typical commercial practices. If a study does not include
a step (e.g., washing) that is considered typical practice in
processing a RAC, EPA may decide not to include that study in the
calculation of the average CF. EPA's concentration policy bears on
today's decision on triadimefon/wheat.
B. Ready-to-Eat Definition
In its June 1995 notice, EPA also adopted a definition of ``ready
to eat'' (RTE) as it applies to human food and animal feed. EPA stated
it would interpret the phrase ``RTE food'' as meaning food ready for
consumption ``as is'' without further preparation. If a food is not
RTE, EPA considers the degree of dilution that occurs in producing a
RTE food from the not-RTE food in determining the likelihood that
residues in RTE food will exceed the 408 tolerance. EPA's RTE
definition bears on today's decision on imazalil on citrus oil.
C. RAC Interpretation
On January 25, 1996 (61 FR 2386), EPA published its interpretation
of the term RAC as applied to dried commodities under the FFDCA. EPA
based its interpretation on the purpose of drying, such that
commodities dried for the purpose of creating a new marketable
commodity are treated as processed food, while those dried for storage
or transportation needs are treated as raw foods. EPA's RAC
interpretation bears on today's decision on iprodione on raisins.
III. Decision Framework
In analyzing whether the six 409 tolerances addressed in this
document should be revoked, EPA generally has used the following
decision framework. First, EPA determined whether a 409 tolerance was
necessary to prevent adulteration, applying its RAC, concentration, and
RTE policies. Unit IV.A. of this document discusses EPA's determination
for each chemical. If no 409 tolerance is needed, EPA in most cases has
revoked the 409 tolerance on that ground. If a 409 tolerance is needed,
then EPA has determined whether that 409 tolerance is permitted under
the Delaney clause. Unit IV.B. of this document discusses the Agency's
determinations on ``induce cancer'' for each chemical for which a 409
tolerance is needed. EPA does not believe that this decision hierarchy
is legally required under the FFDCA but has chosen this approach in its
discretion.
Under current policy, a 409 tolerance is needed when EPA determines
that some processed food can contain residues exceeding the section 408
tolerance. This determination is made on a case-by-case basis, taking
into account the sensitivity of the analytical method used to detect
the residues.
Before determining whether a 409 tolerance is needed, however, EPA
also examines whether available residue data indicate that the current
408 tolerance should be revised. EPA has received large amounts of
residue data as part of the pesticide reregistration program of section
4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Review of these data shows that, in one instance (triadimefon/wheat),
the existing 408 tolerance should be lowered.
EPA has decided that it should base its concentration decision upon
the most recent data on residues in raw crops. If those data indicate
that a 408 tolerance should be adjusted, EPA has used the adjusted 408
tolerance level as the basis for its determination whether a 409
tolerance is needed because the pesticide concentrates. The basis for
EPA's determination that a 408 tolerance should be adjusted is in the
docket.
In examining whether a 409 tolerance is needed, EPA followed a
stepwise process involving a series of questions. In brief, the
questions are:
1. Is there actual concentration of residues during processing? If
processing studies demonstrate that the level of residues in the
processed food is less than or equal to the level of residues in the
precursor crop (i.e., no ``concentration in fact''), residues in the
processed food would not be expected to exceed the 408 tolerance and no
409 tolerance is needed.
2. If there is actual concentration, what is the concentration
factor? If there are multiple processing studies, what is the average
CF? Does the use of an average CF in itself alter EPA's determination
of the likelihood of residues in processed food exceeding the RAC
tolerance?
3. Is the commodity mixed or blended during processing, such that
use of the HAFT value is appropriate?
4. Can the pesticide residue in the processed food exceed the
section 408 tolerance, taking into account the HAFT and CF (or average
CF if appropriate).
5. Is the processed food form a not RTE food? If the processed food
is not RTE, a 409 tolerance is not needed for that food. If residues in
a processed not RTE food can exceed the 408 tolerance, EPA will
establish a maximum residue level under FFDCA section 701.
6. What is the likelihood that residues in RTE food can exceed the
408 tolerance? If the dilution of residues in RTE food preparation is
greater than the concentration of residues in processing (DF > CF), it
is likely that the residues in the RTE food will be less than the 408
tolerance. In this case, no 409 tolerance would be necessary for the
RTE food. If, as is frequently the case, there is more than one RTE
food form, EPA must determine whether residues in the food form having
the highest level of expected residues (the lowest dilution factor) can
exceed the 408 tolerance.
If, after consideration of the above factors, EPA determined that a
409 tolerance is needed, EPA then examines whether the existing 409
tolerance violates the Delaney clause.
IV. Is a Processed Food Tolerance Needed?
EPA has determined that under its revised concentration, RTE, and
RAC policies, three 409 tolerances are not needed to prevent
adulterated food, while three 409 tolerances are needed. This unit
discusses the Agency's findings with respect to each pesticide and use.
[[Page 39531]]
A. Acephate in Food Handling Establishments
The current 409 tolerance for the use of acephate in food handling
establishments is 0.02 ppm. Acephate is directly applied in food
handling establishments and residues in processed food are likely to
result from application. Policies on RAC, concentration, and dilution
in RTE foods are not relevant to processed foods where residues result
from direct application rather than carryover from raw foods.
Therefore, a 409 tolerance is needed to prevent adulterated food.
B. Imazalil in Citrus Oil
The current 408 tolerance for residues of imazalil in citrus is 10
ppm (40 CFR 180.413) and the 409 tolerance is 25 ppm (40 CFR 185.3650).
On December 14, 1995, EPA published notice in the Federal Register (60
FR 64163)(FRL-4986-5) of a petition filed by Janssen Pharmaceutica
which sought to revoke the 409 tolerance because it is not needed.
Janssen maintained that citrus oil is not a RTE food, and submitted
data showing the maximum residue of imazalil in RTE foods to be below
the 408 tolerance.
EPA has reviewed the public comments and reconsidered the available
processing studies in light of its RTE policy. EPA agrees with Janssen
that citrus oil is not consumed ``as is,'' and is therefore not a
processed RTE food. Typically citrus oil is incorporated into food such
as candies as a flavoring agent. The minimum level of dilution of
citrus oil in RTE foods (its use in chewing gum) is 238X, and residues
in the RTE food items are not expected to exceed the 408 tolerance of
10 ppm. Therefore a 409 tolerance is not needed.
C. Iprodione on Dried Ginseng
The current 408 tolerance for ginseng is 2 ppm (40 CFR 180.399) and
the 409 tolerance for iprodione on dried ginseng is 4 ppm (40 CFR
185.3750). On June 5, 1996, EPA published notice in the Federal
Register (61 FR 28578)(FRL-5374-8) of a petition filed by Rhone-Poulenc
which sought to revoke the 409 tolerance because it is not needed.
Rhone-Poulenc claims that dried ginseng is not a RTE commodity, and
once diluted to its RTE form, the residues do not exceed the 408
tolerance. No comments were received on the petition.
EPA has concluded that the petition is moot. In response to
comments received on EPA's proposed revocation, EPA has determined that
dried ginseng meets the criteria for a RAC. Ginseng is dried not to
create a new marketable commodity, but as an essential step in
preventing rotting during storage and transportation. EPA's
determination that ginseng is a RAC means that EPA need not further
evaluate Rhone- Poulenc's petition.
However, EPA has not had time since its reclassification of dried
ginseng to provide notice and comment of the RAC classification as a
possible alternate ground for revocation. EPA is obligated under the
terms of its consent order in the California v. Browner case to issue a
final decision on iprodione on dried ginseng by July 18. The basis for
its original proposal has not changed: the current 409 tolerance for
dried ginseng violates the Delaney clause because iprodione induces
cancer within the meaning of the Delaney clause. EPA does not believe
it should simply announce its RAC determination in this final notice
without providing notice and comment. In its discretion, therefore, EPA
is revoking the current 409 tolerance for iprodione on ginseng on
Delaney grounds as proposed.
D. Iprodione on Raisins
The current 408 tolerance for iprodione on grapes is 60 ppm (40 CFR
180.399) and the 409 tolerance for raisins is 300 ppm (40 CFR
185.3750). In the same petition noted above for iprodione/ginseng,
Rhone-Poulenc sought to have EPA revoke the 409 tolerance for raisins
because it is not needed.
Rhone-Poulenc argues that the likelihood of iprodione residues in
raisins from application to grapes is minimal because iprodione use can
be limited to grapes grown for fresh table use by means of a label
statement (``Grapes treated with [iprodione] must not be used to
produce raisins''). The label statement, Rhone-Poulenc states, will be
enforceable for two reasons: First, because grapes intended for fresh
use versus raisin use have sufficiently different cultural practices
that a label limitation based upon ``market segregation'' is practical,
and second, because Rhone-Poulenc will undertake an educational program
to ensure that grape growers, pesticide applicators, State regulators
and raisin producers will be fully informed of the proposed label
prohibition against use of iprodione on grapes intended for raisins.
Rhone-Poulenc also asserts that current tracking systems for pesticide
use in California would provide adequate oversight over the use of
iprodione on grapes, and that contractual arrangements with raisin
producers also would preclude use on grapes intended for raisins.
With respect to the feasibility and effectiveness of ``market
segregation'' based on cultural practices, Rhone-Poulenc suggested that
differences in trellising systems, in pesticides used (use of the plant
hormone gibberellin for fresh grapes) and in irrigation practices would
ensure market segregation. However, Rhone-Poulenc provided no support
for these assertions, such as substantiating information from the
State, grape growers, or raisin producers.
Based on other information available to EPA, it appears that the
cultural practices cited in the petition do occur. However, based on
that information, EPA has concluded that the level of market
segregation between grapes grown for the fresh/wine/juice market and
grapes grown for the raisin market is insufficient to support a finding
that a 409 tolerance would not be necessary to protect the public
health.
The National Academy of Sciences, in their Report on ``Pesticides
in the Diets of Infants and Children'' (1993), states that children may
be a sensitive subpopulation; children differ significantly from adults
in their body systems and potential physiological and biological
responses to pesticide exposures. Information from the USDA National
Food Consumption Survey (1977-78) indicates that children age 1 to 6
consume more than 4 times the amount of raisins on a body weight basis
than the U.S. population at large. Because of this disproportionate
consumption, and the different sensitivities of children to pesticides
in their diet, EPA, as a policy matter, has concluded that it must have
a high degree of confidence that grapes treated with iprodione will not
be diverted to raisin production. The information currently available
to the Agency suggests that complete market segregation between grape
and raisin production cannot be achieved, and that Rhone-Poulenc's
proposed labeling restrictions and education program will not prevent
iprodione residues on raisins.
The Thompson seedless grape is by far the major grape grown for
both fresh table grapes and for raisin production. In addition, while
varietal wine grapes are not used to make raisins, a small percentage
of Thompson seedless grapes that are grown for the wine/juice market
may be made into raisins. Thus there is a significant potential for
crossover or diversion of grapes intended for fresh or wine/juice use
into raisin processing. While there are no data directly addressing the
amount of crossover between grape markets, information from experts and
extrapolated from the
[[Page 39532]]
California Agricultural Statistics Service (contained in the docket)
indicates that a low but relatively constant amount of grapes grown for
fresh use and wine/juice use are diverted into raisin production. The
following Table 2 sets out potential grape diversion to raisin
production.
Table 2.-- Diversion of Grapes to Raisin Production
------------------------------------------------------------------------
Maximum Percentage
Diversion from grapes intended Percentage of of Raisin
for: grapes diverted Production
------------------------------------------------------------------------
Fresh market use................ 1 to 4 percent 1.8 percent
Wine/juice use.................. 1 to 5 percent 1.9 percent
--------------------===================
Total......................... 3.7 percent
------------------------------------------------------------------------
Thus, market segregation based on the cultural practices cited by
Rhone-Poulenc, while substantial, clearly does not account for or
prevent some diversion of grapes to raisins.
EPA's concern about the lack of complete market segregation is
heightened by the fact that grapes for fresh use are likely to be
treated with iprodione more frequently and later in the growing season
than grapes intended for raisins. If diversion occurs late in the grape
season, residues in raisins produced from diverted fresh market grapes
could be significantly higher than in raisins from grapes grown for
raisin production. In years with heavy early rainfall, when natural
drying is not possible, fresh market grapes may be diverted into golden
raisin production (oven-dried) after iprodione application. The
potentially higher risk posed by raisins diverted from fresh/wine/juice
grape production reinforces EPA's belief that complete market
segregation is essential.
In its policy statement of June 14, 1995 (61 FR 31300), EPA
discussed the possibility that market segregation could be used to
determine that a 409 tolerance would not be needed. EPA said that it
believed that total market segregation would be difficult to achieve.
The information available to EPA on grapes/raisins illustrates this
difficulty. Without a clear demonstration that market segregation can
be achieved and monitored, EPA cannot conclude that a labeling
prohibition premised on market segregation would be an effective means
of ensuring that iprodione treated grapes are not used for raisins.
Rhone-Poulenc contends that contractual arrangements govern the
purchase of grapes for raisins and that limitations on iprodione use on
such grapes can therefore be enforced by raisin processors. Even if
true, and the petition provided no information to support this
assertion, contracts for raisin production would not affect the
production of, or pesticides used on, grapes grown for other uses.
Contracts between raisin processors and growers obligate the grower to
sell his grapes to a particular buyer, but may not necessarily be
brought to bear on a grower of fresh market grapes who sells his crop
to a non-contracted raisin processor.
In its June 1995 policy statement, EPA discussed the possibility
that processing industry practices could be taken into account in
determining the likelihood of residues in processed food. One of the
criteria that EPA would need to consider is whether residue levels in
the raw food (grapes) could be adequately monitored by the processing
industry such that EPA could be assured that there is no reasonable
expectation of residues in raisins. EPA has no information on the
residue monitoring practices of the raisin industry, and therefore
cannot evaluate whether grapes bearing iprodione residues could be
adequately detected.
For the same reasons, Rhone-Poulenc's proposed education/
information and labeling proposals, and existing systems for tracking,
authorizing and reporting pesticide use do not alleviate EPA's
concerns. All of these activities focus on ensuring that iprodione is
not used on grapes initially intended for raisins, but do not address
the possibility that grapes grown for fresh or wine/juice use (which
may also be Thompson seedless variety) may be diverted. By the time a
decision is made to divert grapes into raisin processing, iprodione may
have already been applied several times. Systems for tracking pesticide
use do not prevent a grower from selling grapes unusable for the fresh
market to a raisin processor directly. Other grapes may be sold to an
intermediary, who purchases cull grapes or ``strippings'' and funnels
the grapes into whichever processing stream offers the greatest return
(wine/juice or raisins). In this latter case, the grape grower may not
know the destination of his grapes, and the intermediary may not know
whether iprodione has been applied to the grapes.
In sum, EPA believes that complete market segregation is needed,
and is not persuaded on the basis of the available information that
market segregation of grapes can be achieved. EPA therefore denies the
Rhone-Poulenc petition with respect to raisins. Because raisins are a
processed RTE food under EPA's interpretation, a 409 tolerance is
needed.
E. Triadimefon on Milled Fractions of Wheat (Wheat Bran)
The current 408 tolerance for triadimefon on wheat grain is 1 ppm
(40 CFR 180.410) and the 409 tolerance for milled fractions of wheat,
except flour, is 4.0 ppm (40 CFR 185.800). Evaluation of new residue
data indicates that the 408 tolerance should be reduced to 0.2 ppm.
Based on the HAFT of 0.14 ppm for the wheat grain and an average CF of
3.7 in wheat bran, the expected residue in wheat bran is calculated as
0.52 ppm. (The HAFT multiplied by the CF is 0.14 ppm x 3.7 = 0.52
ppm.) Therefore, EPA believes that it is likely that some wheat bran
will contain residues exceeding an adjusted RAC tolerance at 0.2 ppm.
Milled fraction wheat bran is a processed RTE food and needs a 409
tolerance.
F. Triadimefon on Milled Fractions of Barley (Barley Bran)
The current 408 tolerance for triadimefon on barley grain is 1 ppm
(40 CFR 180.410) and the 409 tolerance for milled fractions of barley
(except flour) is 4.0 ppm (40 CFR 185.800). This use is no longer
registered and the 409 tolerance is no longer needed. On June 19, 1996,
EPA published a notice (61 FR 31081)(FRL-5379-7) proposing to revoke
the 408 tolerance for triadimefon on barley grain, forage and straw and
the 409 tolerance on milled fractions of barley because they are not
needed.
In its notice of June 19, 1996, EPA proposed to make the
triadimefon revocations effective as of May 23, 1997. However, the
registration was cancelled in August 1993, effective November 1993,
with provision for sale and distribution of existing stocks of
triadimefon labeled for use on barley until May 1995. More than a year
has passed since the last product bearing the barley use could be sold
and distributed. EPA now believes that this year is sufficient time for
barley treated with triadimefon to have cleared channels of trade.
Since no comments were received indicating that triadimefon is still
being used on barley, EPA is revoking the various barley tolerances on
the same day as the other revocations in this notice (effective 60 days
after publication in the Federal Register). EPA believes that since the
cancellations were at the request of the registrant in August 1993, it
is unlikely that significant amounts of triadimefon were being used on
barley even then. Therefore, this earlier revocation should not result
in economic impacts from loss of use or adulterated barley.
[[Page 39533]]
V. Do Needed Processed Food Tolerances Violate the Delaney Clause?
EPA has determined that 409 tolerances are needed for acephate/food
handling establishments, iprodione/raisins and triadimefon/wheat bran.
And although EPA has determined that a 409 tolerance is not needed for
iprodione/dried ginseng because dried ginseng is a RAC as explained in
Unit IV.C. of this document, EPA has chosen not to revoke the current
409 tolerance on that ground.
If a 409 tolerance is needed to prevent adulterated food, EPA must
determine whether the tolerance is permitted under the Delaney clause,
i.e., whether the pesticide induces cancer within the meaning of the
Delaney clause. In its January 18 proposal, EPA proposed to determine
that acephate, iprodione, imazalil and triadimefon ``induce cancer''
within the meaning of the Delaney clause. Copies of EPA's reviews of
each chemical and other references in this document are available in
OPP docket 300360.
In construing the ``induce cancer'' standard as to animals, EPA
follows a weight-of-the-evidence approach. In regard to animal
carcinogenicity, EPA, in general, interprets ``induces cancer'' to
mean:
The carcinogenicity of a substance in animals is established
when administration in an adequately designed and conducted study or
studies results in an increase in the incidence of one or more types
of malignant (or, where appropriate, benign or a combination of
benign and malignant) neoplasms in treated animals compared to
untreated animals maintained under identical conditions except for
exposure to the test compound. Determination that the incidence of
neoplasms increases as the result of exposure to the test compound
requires a full biological, pathological, and statistical
evaluation. Statistics assist in evaluating the biological
significance of the observed responses, but a conclusion on
carcinogenicity is not determined on the basis of statistics alone.
Under this approach, a substance may be found to ``induce cancer''
in animals despite the fact that increased tumor incidence occurs
only at high doses, or that only benign tumors occur, and despite
negative results in other animal feeding studies. (See 58 FR 37863,
July 14, 1993, 53 FR 41108, October 19, 1988, and 52 FR 49577,
December 31, 1987.)
EPA has considered the comments submitted on the proposed rule, and
has applied this interpretation to the 3 pesticides that need 409
tolerances.
Based on this analysis, EPA concludes that acephate, iprodione, and
triadimefon induce cancer within the meaning of the Delaney clause.
Because EPA has determined that the 409 tolerance for imazalil in
citrus oil should be revoked on grounds other than the Delaney clause,
the Agency is not issuing a final finding that imazalil induces cancer
within the meaning of the Delaney clause.
VI. Revocations
A. Processed Food Tolerances That Are Not Needed
Imazalil/citrus oil. EPA is revoking the 409 tolerance for imazalil
in citrus oil (40 CFR 185.3650). EPA is revoking this tolerance because
the Agency has determined that it is not needed to prevent adulterated
food. As discussed in Unit IV.B. of this document, EPA is revoking this
409 tolerance because citrus oil is not a processed RTE food, and
residues in RTE foods are not likely to exceed the 408 tolerance for
citrus.
Triadimefon/milled fractions of barley. EPA is revoking the 409
tolerance for triadimefon in or on milled fractions of barley (except
flour) (40 CFR 185.800). As discussed in Unit IV.F. of this document,
EPA is revoking this tolerance because the use is no longer registered.
For the same reason, EPA is revoking the 408 tolerances for triadimefon
on barley grain, straw and green forage.
B. Processed Food Tolerances That Violate the Delaney Clause
Acephate/food handling establishments. EPA is revoking the 409
tolerance for acephate in food-handling establishments (40 CFR
185.100). EPA is revoking this tolerance because the Agency has
determined that acephate induces cancer in animals. Thus, the 409
tolerance violates the Delaney clause.
Iprodione/dried ginseng. EPA is revoking the 409 tolerance for
iprodione in dried ginseng (40 CFR 185.3750). As discussed in Unit IV.C
of this document, although EPA has determined that dried ginseng is a
RAC, EPA has chosen to revoke the 409 tolerance because iprodione
induces cancer in animals. Thus the 409 tolerance violates the Delaney
clause.
Iprodione/raisins. EPA is revoking the 409 tolerance for iprodione
in raisins (40 CFR 185.3750). EPA is revoking this tolerance because
the Agency has determined that iprodione induces cancer in animals.
Thus, the 409 tolerance violates the Delaney clause.
Triadimefon/milled fractions of wheat. EPA is revoking the 409
tolerance for triadimefon in or on milled fractions of wheat (except
flour)(40 CFR 185.800). EPA is revoking this tolerance because the
Agency has determined that triadimefon induces cancer in animals. Thus,
the 409 tolerance violates the Delaney clause.
VII. General Comments Common to All Proposed Revocations
Because EPA's proposed revocation of these 409 tolerances was
published prior to EPA's issuance of its modified tolerance-setting
policies, a number of comments were received urging EPA to reconsider
many of those tolerance setting policies, including the coordination,
concentration, RTE and RAC policies. EPA has now adopted these
policies. EPA presumes that the comments pertaining to the
concentration, RTE, RAC and coordination policies were based on EPA's
previous policies, and not to its revised policies. Because these
comments were all previously raised in response to the petition
submitted by the National Food Processors' Association, EPA believes
that it has adequately addressed the comments in EPA's previous
notices, and so has not addressed them again in this document. Readers
should refer to EPA's policy statements of June 14, 1995 (60 FR 31300)
and January 25, 1996 (61 FR 2378, 2386) for a full discussion of the
issues.
Comment. Bayer, Valent, Rhone-Poulenc, and ACPA raised comments
that had previously been raised in response to EPA's proposed
revocation of 26 section 409 FARs, on the grounds that they violate the
Delaney Clause. (59 FR 33941, July 1, 1994). Many of the comments
suggested that EPA has incorrectly applied the legal standard ``induce
cancer'' because EPA failed to duplicate prior FDA practice. The
commenters contend that EPA's application of the standard was not
sufficiently thorough and that EPA had failed to consider relevant
evidence of biologic and mechanistic data, and the relevance of the
results of animal studies to humans. The commenters also assert that
EPA failed to take account of the fact that an ``induce cancer''
finding is appropriate only where the evidence is ``conclusive'', and
that this high standard cannot be met, by definition, where EPA has
classified a chemical as a Group C carcinogen. A Group C carcinogen is
one for which the evidence of carcinogenicity is based on limited
animal evidence that is normally judged to represent insufficient
evidence to support the determination that a chemical is known to cause
or can reasonably be anticipated to cause cancer in humans.
EPA response. EPA has previously responded at length to the issues
raised by the commenters. Rather than repeat the arguments and EPA's
response
[[Page 39534]]
verbatim, a summary of EPA's response follows. Readers should refer to
EPA's March 22, 1996, Final Revocation of Pesticide Food Additive
Regulations for a complete discussion of the issues. (61 FR 11994, and
12000-12002, March 22, 1996).
EPA believes its application of the ``induce cancer'' standard and
the weight of the evidence approach has sufficiently addressed all
relevant evidence. Where commenters have raised questions concerning
how specific data were considered for specific chemicals, EPA has in
this notice or in the docket responded to those comments.
EPA does not believe that it is required to conclude that the
carcinogenicity found in the animal studies is relevant to humans, in
order to conclude that the Delaney clause applies. Once a finding of
animal carcinogenicity is made the operation of the Delaney clause is
``automatic.'' Public Citizen v. Young, 831 F.2d 1108, 1121 (D.C. Cir.
1987), cert. denied, 485 U.S. 1006 (1988). The D.C. Circuit has
previously concluded that the Delaney clause indicates that ``Congress
did not intend the FDA to be able to take a finding that a substance
causes only trivial risk in humans and work back from that to a finding
that the substance does not 'induce cancer in . . . animals.'' Id.
Similarly, EPA may not work back from a conclusion that the results of
an animal study are irrelevant to humans to a finding that the
substance does not induce cancer in animals. Id.
EPA believes that mechanistic and biologic information may be
relevant to the Delaney clause determination on animal carcinogenicity
to the extent such information bears on the question of whether a
substance induces cancer in the test animal. Some mechanistic and
biologic information may have particular relevance to the issue of
causation. However, having said that, EPA recognizes that proper
evaluation under the Delaney clause of mechanistic and biologic
information poses difficult questions. EPA does not believe that EPA or
FDA has ever squarely decided this legal question in taking final
action on a substance under the Delaney clause. Nor does EPA believe
that question needs to be addressed in this notice. Although secondary
mechanism arguments have been raised as to several of the pesticides at
issue in this notice, as discussed below, EPA has decided either as a
factual matter those arguments are not adequately supported or that
there exists other evidence showing cancer induction independent from
any cancer produced through a secondary mechanism.
EPA also disagrees that section 409 and FDA precedent hold EPA to
an unusually high standard to support a finding that a substance
induces cancer for purposes of the Delaney clause. Neither the statute
nor FDA precedent support using any other than the general
administrative standard of proof which is generally described as a
preponderance of the evidence. The relevant words of the statute bar
the establishment of a regulation for a food additive ``found to induce
cancer when ingested by man or animal . . .'' The plain language of the
statute certainly does not impose some extraordinary level of proof.
Comment. Valent and Bayer argue that ``Congress, the courts and
FDA--the agency that has administered the clause the longest and most
often--have all recognized that the [Delaney] Clause simply does not
apply when the results of animal studies create merely the suggestion
that a substance induces cancer.'' The commenters argue that the
studies upon which EPA relied to make its determination that
triadimefon and acephate induce cancer in animals are so seriously
flawed that they merely ``suggest'' the induction of cancer. The
commenters further argue that the General Food Safety clause in section
409 would instead apply, and cites the legislative history of section
409 and FDA's decision regarding the artificial sweetener cyclamate as
support.
EPA Response. The commenters' argument is premised on the assertion
that the Delaney clause imposes an unusually high burden of proof. As
noted above, EPA disagrees with this assertion.
EPA also disagrees with the commenters' assertion that the studies
on which EPA based on its finding of animal carcinogenicity create
merely the suggestion that triadimefon and acephate induce cancer in
animals. EPA believes that the studies provide positive evidence to
support the finding that the pesticides induce cancer in animals.
However, if the commenters are correct that the data are fatally
flawed, then EPA lacks the data to demonstrate that acephate and
triadimefon are ``safe'' for purposes of either the general safety
clause or the Delaney clause. Since the FFDCA places the burden of
demonstrating the safety of the product on the proponent of the 409
tolerance, the lack of reliable data to support the tolerance would
still result in revocation of the 409 tolerance under either clause.
Comment. Bayer commented that EPA has denied them procedural due
process by proposing to revoke the 409 tolerance without simultaneously
proposing to revoke the corresponding 408 tolerances and to cancel the
corresponding pesticide use under FIFRA sec. 6. Bayer asserts that, as
a result of EPA's coordination policy, revoking a section 409 on
Delaney grounds is tantamount to a de facto revocation of the 408
tolerance and cancellation of the use under FIFRA, and that EPA has
failed to make the requisite findings and to comply with the procedural
requirements necessary to complete such actions.
EPA response. EPA disagrees that revoking a 409 tolerance is
tantamount to a de facto revocation of the underlying 408 tolerance and
to cancellation of the use. The revocation of a 409 tolerance does not,
in itself, affect the status of a 408 tolerance or a pesticide
registration. Nor does the revocation of a 409 tolerance have the
effect of revoking the 408 or cancelling the registration. Revocation
of a pesticide's 409 tolerance does not prevent raw food with residues
of the pesticide from travelling in commerce, nor does it prohibit
farmers from using the pesticide on a particular crop.
Moreover, it is not clear that revocation of a 409 tolerance would
necessarily have an effect on the processed commodity. A 409 tolerance
allows processed ready-to-eat food to travel within commerce when
pesticide residues exceed the levels permitted by a 408 tolerance. If
residues remain within the levels permitted by the 408 tolerance,
processed food may legally continue to travel in commerce under the
flow-through provision of section 402(a)(2), regardless of whether a
409 tolerance exists. Until EPA finally revokes the 408 tolerance or
cancels use on wheat, conceivably no impact may be felt from revocation
of the 409 tolerance.
With regard to triadimefon, it is unclear that revocation of the
409 tolerance would have any impact. Bayer asserted that triadimefon
residues in wheat bran fall within the 408 tolerance, and that no
triadimefon residues were found in routine FDA monitoring the processed
food; if that is accurate, then revocation of the 409 tolerance should
have no effect on the current status of wheat bran.
EPA has complied with all of the procedural requirements of the
FFDCA in revoking the 409 tolerance and in proposing to revoke the 408
tolerance for triadimefon on wheat. See 61 FR 8174 (March 1, 1996)(FRL-
5351-6). Further, EPA has clearly stated its policy on coordination
between FIFRA and the FFDCA (January 25, 1996, 61 FR 2378). Congress
has charged EPA with
[[Page 39535]]
administering two statutes with different procedural schemes. As
discussed in EPA's coordination policy, EPA has taken an approach which
harmonizes the two statutory standards to the extent possible. FIFRA
does not require EPA to take action under FIFRA before acting under the
FFDCA. Nor does EPA believe that the rulemaking procedures in the FFDCA
violate Constitutional due process.
Comment. Bayer also commented that EPA would bear the burden of
proof in any hearing under sections 409 or 408 of the FFDCA or under
section 6 of FIFRA. To support this, the commenter cited Director,
Office of Workers' Compensation Programs, Department of Labor v.
Greenwich Collieries, 114 S Ct 2251 (1994). According to the
commenters:
Section 7(c) of the APA is controlling in food additive
hearings, as the FFDCA is silent with regard to the burden of proof
and other procedural issues, and exemptions to the APA are not
lightly presumed. As such, the holding in Greenwich Collieries
applies with equal force and effect to hearings held by EPA under
section 409(f)(1) of the FFDCA. As the proponent of the revocation
action, the agency bears the burden of persuasion and cannot shift
that burden to Bayer or any other party objecting to the revocation
action. EPA's procedural rule, 40 CFR 179.91, which provides for a
contrary result is implicitly overruled by the holding in Greenwich
Collieries.... Indeed, the holding in Greenwich Collieries, supra,
applies with equal force and effect to hearings held pursuant to
FFDCA section 408 and FIFRA section 6. EPA's procedural rules 40 CFR
164.80 and 179.91, and case law which provide for a contrary result
are implicitly overruled. (Bayer Comments, 46-48)
EPA response. EPA disagrees that section 7(c) of the Administrative
Procedures Act (APA) governs the allocation of the burden of proof in
food additive hearings. EPA believes that both the FFDCA and FIFRA
clearly allocate the burden of persuasion to the proponent of the
registration or the tolerance. Consequently, EPA also disagrees that
the holding in Greenwich Collieries has implicitly shifted the ultimate
burdens of proof and persuasion in a hearing under either the FFDCA or
FIFRA, from the proponents of a tolerance or a registration.
The Supreme Court did not consider the FFDCA, FIFRA, or EPA's
regulations allocating the burden of proof in Greenwich Collieries. The
court only examined the question of whether section 7(c) of the APA, in
providing that the proponent of a rule or order has the burden of
proof, has allocated to the proponent merely the burden of going
forward or whether it has also allocated to the proponent the burden of
persuasion. The court also considered whether section 7(c)'s allocation
of the burden of proof applies to adjudications under the Longshore and
Harbor Workers' Compensation Act (LHWCA) and the Black Lung Benefits
Act (BLBA). The Court held that section 7(c) did allocate both the
burdens of production and persuasion, and that section 7(c)'s
allocation applied to both the LHWCA and the BLBA finding that both
statutes explicitly incorporated section 7(c) of the APA.
Section 7(c) of the APA provides that ``[e]xcept as otherwise
required by statute, the proponent of a rule or order has the burden of
proof.'' As both statutes place the burden squarely on the proponent of
registration and of permitting pesticide residues, of demonstrating
that the pesticide product and its residues meet the statutory
standards, both the FFDCA and FIFRA fall within the exception specified
in section 7(c).
The legislative histories of both statutes clearly demonstrate that
Congress intended to place the burden of demonstrating the safety of
the product on the proponents of a registration or a tolerance. e.g.,
H.R. Rep. No. 1125, 88th Cong., 1st Sess., 2 (1964); H.R. Rep. No.
1385, 83d Cong., 2d Sess., 5 (1954); S. Rep. No. 1635, 83d Cong., 2d
Sess., 4 (1954). Case law also supports EPA's interpretation that
section 7(c) of the APA does not apply to FIFRA or the FFDCA. e.g.,
Environmental Defense Fund v. EPA, 548 F.2d 1012, 1015 (D.C. Cir.
1976)(Supplemental Opinion on Petition for Rehearing)(``We hold that in
light of the legislative history of FIFRA, and the numerous cases
holding that its 1964 amendment was specifically intended to shift the
burden of proof from the Secretary to the registrant, this case is one
where the allocation of the burden of proof is, in the language of the
APA, 'otherwise provided by statute.''); Environmental Defense Fund v.
U.S. Dept. of Health Education and Welfare, 428 F.2d 1083,1087, 1092,
n.27 (``In light of Congress' strong concern about the safety of
pesticide residues and the congressional intent to place the burden of
persuasion on those proposing to permit a residue to remain, the fact
that the present petition seeks revocation of an existing tolerance
does not affect the burden of persuasion established by Congress....
Once new evidence bearing on the safety of pesticide residues has been
adduced or cited sufficient to justify reopening the validity of
existing tolerances, as in the present case, the burden of establishing
the safety of any tolerances remains on those who seek to permit a
residue.'').
Comment. Valent and Bayer assert that EPA has failed to conduct a
weight of the evidence review of their chemicals, but is merely relying
on the classification of acephate and triadimefon as ``C'' carcinogens,
which fails to meet the ``high degree of certainty necessary to
conclude that a chemical induces cancer within the meaning of the
Delaney clause, and is inconsistent with EPA's previous acknowledgment
that a Group C classification doesn't equate to a finding that a
chemical is either an animal carcinogen or induces cancer under the
Delaney clause. To support the statement that EPA's assessment is
inconsistent with previous statements, the commenters cite to EPA's
policy statement, Regulation of Pesticides in Food: Addressing the
Delaney Paradox (53 FR 41104, October 19, 1988) and the final rule
revoking the 409 tolerance for dicofol (59 FR 10994, March 9, 1994).
EPA response. EPA's determination that triadimefon and acephate
induce cancer is based on a weight-of-the-evidence review of all
available studies for triadimefon and acephate, not merely on the fact
that EPA had previously classified the chemicals as Group C
carcinogens. And as noted above, EPA does not agree that the Delaney
clause imposes a burden of certainty on the Agency greater than a
preponderance of evidence.
Moreover, the commenter's use of the two notices to support its
assertion is misleading. As EPA acknowledged in the dicofol revocation
cited by the commenter, EPA believes that the language from the 1988
Delaney policy statement referred to by the commenter has only limited
relevance to current decisions because that notice dealt primarily with
whether certain types of pesticides in Group C would come within a de
minimis exception to the Delaney clause. EPA continues to believe, as
acknowledged in the dicofol revocation notice referred to by the
commenters, that it is necessary to carefully examine pesticides
classified in Group C according to the Cancer Assessment Guidelines to
determine whether they meet the Delaney clause's induce cancer
standard, which is exactly what EPA has done in concluding that
triadimefon and acephate induce cancer.
Comment. Bayer and Valent assert that the proposed classifications
of triadimefon and acephate are inconsistent with previous EPA actions,
and are therefore, legally insupportable. The commenters point to more
recent reviews by EPA of pesticides with ``comparable data'' that have
classified those compounds as Group D
[[Page 39536]]
carcinogens, or that have ``otherwise resolved concerns.''
Specifically, the commenters cite EPA's decisions to establish
tolerances for primisulfuron-methyl (55 FR 21547, May 25, 1990),
hexazinone (55 FR 15104, March 22, 1995)(FRL-4935-1), quizalofop-p
ethyl ester (57 FR 24553, June 10 1992) and bromoxynil (60 FR 16111,
March 29, 1995)(FRL-4944-7).
EPA Response. The focus of both Bayer's and Valent's comments
appears to be that EPA has been inconsistent in how it classifies
pesticides with ``comparable'' data as carcinogens. Bayer suggests that
were triadimefon to be evaluated in the same manner as pesticides with
comparable data, or against current scientific standards, it would be
classified as a Group D (insufficient data to classify) rather than as
a Group C carcinogen. Bayer did not elaborate on what study
observations or Agency determinations for the cited pesticides it
considered ``comparable.'' However, its citations are presumably
intended to bolster its point.
Valent, in similar but more extensive comments, detailed the
Agency's findings on mouse liver tumors observed for quizalofop-ethyl,
primisulfuron-methyl and hexazinone (bromoxynil was not mentioned in
Valent's comment). Valent raised points concerning the type of tumors
(malignant/benign), the dose levels at which tumors were observed (the
MTD was exceeded), the historical incidence of liver tumors in mice,
the statistical significance of the findings (trends versus pairwise
comparisons), and other specific factors that it believes illustrate
EPA's lack of consistency in its cancer classifications.
As a scientific matter, a weight-of-the-evidence approach to
determining the classification of a carcinogen is inherently inexact. A
number of factors must be considered, including all those mentioned by
Valent, and these factors weighed against each other. Thus, even with
apparently comparable data, under a weight-of-the-evidence approach, it
is scientifically valid and even to be expected that EPA should arrive
at different conclusions that lead to different cancer classifications.
EPA's cancer peer review documents explain the relevance of each factor
in EPA's classification decision.
However, the finding that a pesticide ``induces cancer in man or
animals'' within the meaning of the Delaney clause is more
straightforward and less scientifically onerous, since it requires only
a finding of carcinogenicity in animals. Since cancer studies are
conducted using animals, the data can directly demonstrate whether a
pesticide does or does not result in cancer in animals. The cancer
classification system used by EPA since 1986, on the other hand,
focusses on cancer risk to humans. It is entirely possible that EPA
could determine that a pesticide classified as a Group D carcinogen
(insufficient data for humans) meets the ``induce cancer'' standard for
animals. Under the Delaney clause, this is all that is required.
Accordingly, EPA disagrees with comments purporting to find flaws
in EPA's ``induce cancer'' determination based on perceived
inconsistencies in cancer classification for humans or comparability of
cancer profiles within the classification system. Notwithstanding
differences in classification among acephate, triadimefon and other
chemicals apparently similarly situated, a preponderance of the
evidence demonstrates that both triadimefon and acephate induce cancer
in animals.
In the case of triadimefon and acephate, however, EPA classified
those chemicals as C carcinogens based upon stronger evidence of
carcinogenicity than was found with the four pesticides cited by Valent
and Bayer as having comparable cancer profiles but which were
classified only as Group D carcinogens. For both acephate and
triadimefon, liver tumors were observed in a pairwise manner at dosages
that were not determined to be excessive. In the case of acephate, the
tumors were heavily malignant in female mice. In the case of
triadimefon, although only benign adenomas were seen, they were found
in a pairwise comparison in both sexes at doses clearly under the MTD.
In each of the other cases, either the tumors were observed only at
excessive doses (primisulfuron-methyl and quizalofop-ethyl) or showed
only a trend for liver tumors that was not statistically significant
upon pairwise comparison (hexazinone). A trend for expression of tumors
is a less significant finding than a pairwise comparison and would not
in itself normally lead to a positive cancer classification. Although
Bayer claims that EPA had determined that bromoxynil is a Group D
carcinogen, EPA has always classified bromoxynil as a Group C
carcinogen. The FIFRA Scientific Advisory Panel recommended a Group D
classification, which EPA did not adopt.
Comment. Bayer also argued that EPA has applied a ``shifting
definition of what it means to 'induce cancer' for purposes of the
Delaney clause,'' citing the final regulation revoking 409 tolerances
for benomyl, mancozeb, phosmet and trifluralin (58 FR 37863, July 14,
1993), the proposed revocation for several 409 tolerances found to be
inconsistent with the Delaney clause (59 FR 33942, July 1, 1994), and
the proposed revocation for triadimefon (60 FR 3608, January 18, 1995).
EPA response. It is true that the definition of ``induce cancer''
in the first two notices referred to by the commenter do not include,
as cancer, the class in which only benign neoplasms occur. However, EPA
disagrees that this is a substantive change to its interpretation of
``induce cancer.'' EPA's interpretation is supported by the court in
California v. Browner, which agreed that the change was not
substantive. No.Civ. S-89-0752, slip op. at 5 (E.D. Cal. Feb. 1995)
VIII. Comments Related to Specific Pesticides
A. Acephate
Comment. Valent contended that acephate does not induce cancer
because the MTD was exceeded in the mouse study, and that testing at
lower dose levels which showed no evidence of carcinogenicity should be
used. Valent also proposes a secondary mechanism for carcinogenesis of
acephate, based on upon a theory that acephate at high doses alters the
homeostasis of female mice such that they are phenotypically similar to
male mice in their expression of liver tumors.
EPA Response. EPA believes that the high dose used in the study
represents an MTD that was well-tolerated by the test animals.
Moreover, the toxicity seen at the high dose level does not alter the
finding of malignant liver carcinomas at that dose. With respect to the
hypothesis that acephate causes female mice to respond as if they were
male mice, Valent provided little support for this hypothesis.
Moreover, it is uncertain that this hypothesis has been peer reviewed
or found acceptance in the scientific community. In the absence of any
data to support its contentions, EPA believes that the acephate induces
cancer in animals.
Comment. Valent also raised a number of points concerning the
individual mutagenicity studies for acephate, suggesting that they are
flawed by today's scientific standards, and thus do not support an
induce cancer determination.
EPA Response. Although individually, Valent's points may have
merit, the mutagenicity data base is considered in its entirety and
only in a supporting capacity to a determination of carcinogenicity.
That is, while positive evidence of genotoxicity may support a weight
of evidence finding that a pesticide is carcinogenic, the lack
[[Page 39537]]
of a complete mutagenicity data base, or deficiencies or negative
results in individual mutagenicity studies, do not negate positive
cancer findings in other studies. Acephate's mutagenicity studies,
while perhaps less than optimal by today's standards as noted by
Valent, overall showed consistently positive responses in in vitro
studies, and in any case do not negate the clear finding that acephate
induces cancer in animals.
Comment. Valent argued that the 409 tolerance for acephate is not
needed, for several reasons. Valent argues that EPA improperly requires
a 409 tolerance for every use in a food handling establishment without
regard to whether residues actually occur. They further state that use
of acephate does not result in finite residues, that no finite residues
have ever been found, and that EPA's establishment of the 409 tolerance
at the level of quantification implicitly recognizes that no residues
are expected to be present. Finally Valent states that, since the 409
tolerance is not needed, the use of acephate need not be cancelled, and
that it is in the public interest to retain the use.
EPA Response. Contrary to Valent's assertion, EPA does not
``automatically'' require a food additive tolerance for all pesticides
used in food handling establishments. EPA considers the nature of the
pesticide and how it is applied in determining whether residues are
likely to result in food, and therefore that a 409 tolerance is needed.
For example, an insecticidal bait enclosed in a ``bait station'' would
normally not require a 409 tolerance because the use is not likely to
result in residues in food. Bait station uses in which the pesticide is
contained are, however, a far cry from typical food handling
establishment insecticide applications, which are applied in an
relatively uncontained manner through sprays and dusts. While a crack
and crevice treatment (such as that for acephate) may be less likely to
result in residues in food than a broad general treatment, EPA believes
that there is sufficient likelihood that residues may occur from crack
and crevice treatments that the pesticide is a food additive for which
a 409 tolerance will normally be needed.
Valent goes on to assert that ``no detectable residues have ever
been found'' in food, and would not be expected to result from its use
pattern. Valent cited in support of its contention a 1981 study in
which acephate was applied at twice the maximum label rate, and
residues were not found above the limit of detection.
However, in this study, residues were found in some samples at
close to the detection limit. At an application rate of 1 percent
active ingredient, residues were found in lettuce at 0.02 ppm and in
cheese at 0.009 ppm, at or close to the limit of detection of 0.01 ppm.
At 2X rates, quantifiable residues were found in lettuce (0.034 ppm),
meat (0.016 ppm), bread (0.023 ppm) and apple juice (0.011 ppm), all
above the limit of detection. Thus at a 2X rate, finite residues at or
above the level of detection can be expected. Valent's study clearly
demonstrates that quantifiable residues can result in at least some
foods at label rates. It is difficult to argue that these data
demonstrate that residues are not likely to be present.
For several reasons, EPA believes that it needs a demonstration of
no residues using highly exaggerated rates (considerably higher than
2X) to be persuaded that there is no reasonable expectation of residues
in food such that a 409 tolerance is not needed. First, food handling
establishments cover a wide range of operations, from processing
facilities such as bakeries, canneries and dairies, to restaurants and
grocery stores. Thus the circumstances under which food might be
exposed to the pesticide may vary considerably in a manner that is
difficult to capture in a single residue study. Second, EPA requires
residue studies using a representative but relatively limited set of
foods, which is necessary given the number and variety of foods that
may be present in a food handling establishment and the impracticality
of determining residues for all foods individually.
Valent cites its label instructions and admonitions as further
support of their contention that the use pattern would not be expected
to lead to residues in food. Even within the permissible label
instructions, however, the actual application of the pesticide may
vary. Applicators may mix and apply the pesticide differently, using
application equipment and techniques that lend themselves to higher
amounts of actual pesticide deposited. Moreover, the applicator's
ability to physically control the application so as to comply with
label admonitions about food and surface contact may be highly
variable. While label instructions and warnings if followed will
minimize the possibility that the pesticide will contact food or food
surfaces, they still allow considerable judgment and skill on the part
of the applicator. The applicator cannot know the extent to which he
has been successful in his efforts to ``avoid contamination of food''
or to ``use care to avoid depositing the material onto exposed surfaces
or introducing the material into the air.'' EPA cannot rely on the fact
of label instructions as assurance of success in precluding residues in
food, particularly in light of data that demonstrate actual residues in
food from application according to label instructions.
Moveover, the presence of residues from a particular application is
not totally dependent on how well the applicator can comply with label
instructions. Factors unrelated to the application itself, and
therefore unrelated to label instructions, may contribute equally to
residues in food. Environmental factors such as temperature, humidity,
and ventilation, and product characteristics such as volatility cannot
be controlled by the applicator. Therefore, label instructions alone
are not sufficient proof that residues will not result from
application.
EPA categorically rejects Valent's claim that EPA's use of the
level of quantitation as the numerical tolerance level implies that EPA
believes that there is no reasonable expectation of residues from use
of acephate in food handling establishments. EPA has never so stated.
Moreover, the data cited by Valent in its comments indicate that
residues close to the detection limit of the analytical method are
possible under actual use conditions. The Agency believes it is
appropriate in these circumstances to set numerical tolerance limits,
especially co
FR Doc. 96-19076 Revocation of Pesticide Food Additive Regulations
nsidering the potential variability in foods, exposures,
and application that may result in quantifiable residues. Accordingly,
tolerances are established at the limit of quantitation of the
analytical method. This is a logical approach to the regulation of
residues generally in food handling establishments, and cannot be read
as supporting any EPA belief that residues are unlikely to occur.
Finally, since EPA believes that use of acephate requires a 409
tolerance which is not permitted under the Delaney clause, arguments
concerning public health considerations or the benefits of use are not
relevant to EPA's decision to revoke the FAR for acephate. The Delaney
clause does not permit such considerations.
B. Triadimefon
Comment. Bayer comments that a 409 tolerance on milled fractions of
wheat is unnecessary, because milled fractions of wheat are not ready-
to-eat.
EPA response: EPA considers that milled fractions of wheat, or
wheat bran, are ready-to-eat human food, as EPA noted in its notice
proposing to revoke
[[Page 39538]]
the 408 tolerance for wheat (61 FR 8189, March 1, 1996).
Comment. Bayer argues that the residues of triadimefon do not
concentrate above the 408 tolerance, and thus EPA should revoke the 409
tolerance on the grounds that it is unnecessary. Bayer asserts that EPA
based its determination that a 409 tolerance for triadimefon was
necessary on processing studies that do not reflect the current label
of the registered pesticide product, and that EPA has failed to
consider the degree to which triadimefon residues are further diluted
by mixing and blending with untreated wheat, and by further dissipation
of residues during the time the food leaves the processor until it
reaches the supermarket shelf.
To prove that residues in wheat bran do not exceed the 408
tolerance, Bayer relies on ``extensive monitoring data'' conducted by
industry and FDA to support its argument, and points generally to 27
FDA market basket surveys and samples collected under FDA's regulatory
monitoring program. More specifically, Bayer asserts that as part of
its routine monitoring, FDA tested 86 samples of whole grain wheat and
178 various food forms of wheat for levels of triadimefon between the
years of 1985-1992. None of the 264 samples contained residues of
triadimefon above the analytical limit of quantification. Bayer asserts
that these data are ``slanted towards high residue situations'' and
thus are ``worst case surveillance conditions.''
Finally, Bayer argues that EPA is legally required by the language
of the flow-through provision and the statutory definition of a food
additive to determine whether a 409 tolerance is needed based on the
measured residues on the actual commodities and not on theoretical
calculations that do not reflect actual use practices or label
requirements. All of the commenters raised some variant of this
argument in their comments. According to Bayer, the definition of a
food additive requires that the intended use of a substance must
actually result in, or reasonably be expected to result in, directly or
indirectly, the substance becoming a component of food. Based on the
current label for triadimefon and based on the likelihood of additional
dilution and degradation of residues from current processing methods,
Bayer asserts that EPA can have no reasonable expectation that
triadimefon residues will be present in processed foods at levels above
the 408 tolerance.
EPA Response. EPA disagrees with the commenter's assertion that EPA
improperly failed to consider several factors that could result in
significantly diluted residues in wheat bran and that EPA improperly
relied on studies that do not reflect current triadimefon use
practices. EPA based its determination that triadimefon residues in
wheat bran were likely to exceed the 408 tolerance on processing
studies demonstrating that triadimefon residues were present at higher
levels in wheat bran than in wheat.
EPA has considered that triadimefon residues will be diluted by
mixing and blending of treated wheat. In accordance with the policy
discussed in its June 1995 policy statement (60 FR 31305, June 14,
1995), EPA compared the highest average residue values from field
trials times the concentration factor to the 408 tolerance, and
determined that residues in wheat bran would likely exceed the 408
tolerance. As EPA noted above, the average concentration factor in the
processing of milled fractions of wheat is 3.7 and the HAFT for
triadimefon on wheat is 0.14 ppm. Because multiplying the average
concentration factor by the HAFT exceeds the adjusted section 408
tolerance for triadimefon on wheat (0.2 ppm), EPA believes that it is
likely that some milled fractions will contain residues exceeding the
408 tolerance.
It is true that EPA did not consider the extent to which farmers
may be applying triadimefon at lower rates, or the extent to which
wheat bran containing triadimefon residues is mixed with wheat
containing no residues, but for the reasons discussed at 60 FR 31302-
31306, EPA has determined that such considerations would be
inappropriate. It is also true that EPA did not consider further
degradation of residues during the time the food leaves the processor
until the moment it is actually eaten, but it is not apparent how EPA
could take this into account, other than to the extent the effects of
degradation are captured in the processing study. In any event, if
wheat bran at one stage of its production and marketing has residues
that exceed the 408 tolerance, it is no defense to a charge of
adulteration that at some later time in the production and marketing
scheme residues will be below the 408 tolerance. EPA has also
previously discussed the rationale for this decision at length in 60 FR
31305.
Further, EPA does not conduct studies to support the registration
or tolerance for a particular pesticide. FIFRA and the FFDCA clearly
place that responsibility on the manufacturer seeking to register or to
establish a tolerance for a pesticide product. To the extent that EPA
is relying on data that Bayer believes no longer reflects actual
conditions of triadimefon use, it is Bayer's responsibility to submit
new processing studies that accurately reflect whether triadimefon is
likely to concentrate above the 408 tolerance. Under the statutory
scheme, which requires EPA to rely on data conducted by manufacturers
to determine whether a tolerance level is safe, EPA is legally
justified in basing its regulatory decisions on the data presented to
it. Should Bayer submit new processing studies EPA will consider the
data, as appropriate.
As EPA has previously noted at 60 FR 31305-31306, the Agency bases
its concentration determinations primarily on whether processing
studies show that the processing of a commodity results in a level of
residues in the processed food which is greater than the level of
residues in the raw food. However, EPA has acknowledged that it would
consider data from marketplace studies and FDA monitoring, where
circumstances permit. The relevance of marketplace studies, however,
would depend on how the marketplace study was conducted. For example,
the principal reason marketplace studies have been conducted in the
past is to obtain better data concerning actual residue values close to
the point at which food is consumed. Thus, marketplace studies
generally involve sampling commodities in retail grocery stores. A
tolerance for processed food would not only apply to foods in retail
stores, but at all prior points at which the food moved in interstate
commerce. This fact would need to be taken into account in assessing
the relevance of a marketplace study in determining the likelihood of
residues in processed food in excess of the 408 tolerance.
Monitoring data can also be relevant to determining the likelihood
of processed food exceeding the 408 tolerance. However, FDA monitoring
data, especially monitoring data on processed foods, generally have
been limited and thus may not be a reliable predictor of the level of
residues of triadimefon in milled fractions of wheat. The monitoring
referred to by the commenter is not so thorough and reliable that it
would cause EPA to ignore the results of the processing studies.
Comment. Bayer contends that triadimefon does not induce cancer
because the high doses used in both rat and mice studies exceeded the
maximum tolerated dose (MTD), and thus tumors seen at these levels are
not related to administration of triadimefon. Bayer also asserted that
the mid-dose level of these studies did provide an adequate MTD for
purposes of
[[Page 39539]]
evaluating the carcinogenic potential of triadimefon. Therefore Bayer
argues that carcinogenic potential should be evaluated on the basis of
the findings at the mid-dose level rather than the purportedly
excessive high dose level. Bayer also cited the fact that mutagenicity
studies showed that triadimefon is not genotoxic or mutagenic.
EPA Response. EPA disagrees with Bayer that the data from the high
dose were not appropriate to consider in making the ``induce cancer''
determination, and also that the mid-dose was adequate in these
studies. In both the rat and mouse studies, the high dose (1800 ppm) is
considered adequate because there were no signs of excessive toxicity
at that level. Moreover, the mid-dose level in each study (300 ppm) was
not considered adequate as an MTD because the effects seen at that
level were relatively minor increases in liver enzyme levels and liver
weight, as well as slight to moderate liver hypertrophy and cell
changes. EPA does not consider these changes adequate to demonstrate
that an MTD has been achieved. By comparison, at the high dose level
(which still did not show excessive toxic effects), liver effects were
more pronounced, and included (in the rat) increased food consumption,
increased fat in the liver, significant physiological and cellular
changes in liver cells and formation of hyperplastic nodules. Similar
evidence of increased liver damage was seen in the mouse at the high-
dose level.
As stated in EPA's response on acephate, mutagenicity studies are
considered only supporting evidence of carcinogenicity and do not
negate clear evidence of carcinogenicity from other studies.
Comment. Bayer argued that the increase in follicular cell thyroid
adenomas seen in the rat study occurred as a result of a hormonal
effect, an increase in thyroid stimulating hormone, and thus is not
directly caused by the triadimefon.
EPA Response. In its final notice revoking tolerances for mancozeb
on oat bran (March 22, 1996, 61 FR 12003), EPA noted that the legal
relevance of secondary mechanisms claims to the Delaney clause ``induce
cancer'' finding has not been resolved. In that notice EPA also
specifically discussed whether thyroid tumors could be demonstrated to
occur via a secondary mechanism and the scientific information needed
to support such a contention. Bayer has submitted no such information.
EPA reiterates its position on thyroid tumors as stated in that notice.
With respect to triadimefon, EPA has determined that, independent of
any possible secondary mechanism that might be operating for the
thyroid adenomas, the hepatocellular adenomas were related to the
administration of triadimefon, and thus the question of a secondary
mechanism need not be addressed.
C. Iprodione
Comment. Rhone-Poulenc argued that a 409 tolerance for iprodione in
raisins is not required because (1) raisins should be classified as a
RAC; and (2) because, even if not a RAC, iprodione does not concentrate
in raisins above the 408 tolerance for grapes.
EPA Response. As noted in Unit VII, these revocations were proposed
before EPA modified its tolerance policies in June 1995 and January
1996. Comments on the RAC status of dried commodities have been
addressed in the Agency's interpretive policy of January 25, 1996 (61
FR 2386), in which EPA concluded that raisins are a processed food
because they are dried for the purpose of creating a new marketable
commodity, and not incidental to storage or transportation needs of the
raw agricultural commodity grapes.
With respect to the assertion that residues in grapes do not
concentrate in raisins, Rhone-Poulenc cited studies previously
submitted in 1982 and 1983 in which residues in raisins did not exceed
the current 60 ppm tolerance in grapes. Rhone-Poulenc, however, failed
to note in its comments that in 1994, it petitioned EPA to reduce the
tolerances for both grapes (from 60 ppm to 10 ppm) and raisins (from
300 ppm to 50 ppm). In conjunction with the petition and to satisfy
reregistration data requirements, Rhone-Poulenc submitted additional
residue data. These data show that the HAFT for grapes is 4.1 ppm, and
the average CF, based on 8 sets of processing studies, is 3.56. The
simple calculation of likely residues in raisins, therefore (4.1 ppm X
3.56 = 14.6 ppm), shows that residues would exceed the proposed 10 ppm
tolerance in grapes. As noted in Unit III, EPA is using its latest
residue data to inform its decisions on revocation of tolerances under
the Delaney clause.
Comment. Rhone-Poulenc raised secondary mechanism issues associated
with iprodione, namely that Leydig cell tumors seen in male rats are
caused by a ``mechanism operative only at the high test doses'' and the
ovarian tumors observed in female mouse studies are caused by ``a
prolonged and profound perturbation of sex hormone regulation at the
target organ level.'' Moreover, Rhone-Poulenc asserts that the Leydig
cell tumors have no relevance to humans.
EPA Response. In neither case were supporting data submitted to
demonstrate that these speculative mechanisms of action occur. In the
absence of any evidence of the plausibility of the secondary
mechanisms, EPA considers the observed tumors to be evidence that
iprodione induces cancer in animals. EPA cannot judge the argument that
Leydig cell tumors are not relevant to humans, since, from the data
currently available to EPA, no specific mechanism of action of any
hormonal alteration has been clearly characterized for iprodione. In
any event, whether tumors observed in animals are relevant to humans
has no bearing on a determination that iprodione induces cancer in
animals.
Comment. Finally, Rhone-Poulenc also contended that liver tumors in
mice were observed only at dose levels at the MTD.
EPA Response. EPA considers the dose level to be adequate (but not
excessive) in both rat and mouse studies for the purpose of assessing
carcinogenicity.
Commenters on acephate, iprodione and triadimefon all raised the
issue of the MTD, and suggested that tumors observed only at dosage
levels above the MTD should not be considered to support an ``induce
cancer'' finding. Indeed, each suggested that unless tumors result at
levels that do not express ``excessive'' non-cancer toxicity, EPA
should reverse its finding that the pesticide induces cancer.
EPA Response. EPA disagrees in each case with commenters that
dosage levels were excessive, and believes that the tumors are
attributable to the pesticide in question.
IX. Procedural Matters
A. Filing of Objections and Requests for Hearings
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by 40
CFR 180.33(i). If a hearing is requested, the objections must include a
[[Page 39540]]
statement of the factual issue(s) on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the objector (40 CFR 178.27). A request for a hearing
will be granted if the Administrator determines that the material
submitted shows the following: There is genuine and substantial issue
of fact; there is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
Any person wishing to comment on any objections or requests for a
hearing may submit such comments to the hearing Clerk on or before
September 12, 1996.
B. Effective Date
This final rule is effective September 27, 1996. In addition, if
EPA does not receive objections to this order, this order and the
factual and legal basis for this order, become final and are not
judicially reviewable. See section 409(g)(1), 21 U.S.C. 348(g)(1) and
Nader v. EPA: 859 F.2d 747 (9th Cir. 1988), cert. denied, 490 U.S. 1931
(1989). For example, if an interested person disagrees with a necessary
finding in this order but agrees with the outcome, that person must
file timely objections to that finding in this order; if no objection
to the finding is made, the finding will become final for purposes of
any future proceedings to which that finding is relevant.
C. Request for Stays of Effective Date
A person filing objections to this final rule may submit with the
objections a petition to stay the effective date of this final rule.
Such stay petitions must be submitted to the Hearing Clerk on or before
August 28, 1996. A copy of the stay request filed with the Hearing
Clerk shall be submitted to the Office of Pesticide Programs Docket
Room. A stay may be requested for a specific time period or for an
indefinite time period. The stay petition must include a citation to
this final rule, the length of time for which the stay is requested,
and a full statement of the factual and legal grounds upon which the
petitioner relies for the stay. In determining whether to grant a stay,
EPA will consider the criteria set out in the Food and Drug
Administration's regulations regarding stays of administrative
proceedings at 21 CFR 10.35. Under those rules, a stay will be granted
if it is determined that:
(1) The petitioner will otherwise suffer irreparable injury.
(2) The petitioner's case is not frivolous and is being pursued in
good faith.
(3) The petitioner has demonstrated sound public policy grounds
supporting the stay.
(4) The delay resulting from the stay is not outweighed by public
health or other public interests.
Under FDA's criteria, EPA may also grant a stay if EPA finds such
action is in the public interest and in the interest of justice.
Any person wishing to comment on any stay request may submit such
comments and objections to a stay request to the Hearing Clerk, on or
before September 12, 1996. Any subsequent decisions to stay the effect
of this order, based on a stay request filed, will be published in the
Federal Register, along with EPA's response to comments on the stay
request.
D. Public Docket
A record has been established for this rulemaking under the docket
number [OPP-300360B] (including any comments and data submitted
electronically). A public version of this record, including printed,
paper versions of electronic comments, which does not include any
information claimed as CBI, is available for inspection from 8 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The public
record is located in Room 1132 of the Public Response and Program
Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, Crystal Mall #2,
1921 Jefferson Davis Highway, Arlington, VA 22202.
Electronic comments can be sent directly to EPA at:
[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any copies of objections and hearing requests
received electronically into printed, paper form as they are received
and will place the paper copies in the official rule-making record
which will also include all comments submitted directly in writing. The
official rulemaking record is the paper record maintained at the
Virginia address in ``ADDRESSES'' at the beginning of this document.
X. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not ``significant.'' Nevertheless, EPA submitted this action
to the Office of Management and Budget (OMB) for an informal review.
Any changes made during that review have been documented in the public
record.
Three of the 409 tolerances being revoked today because they
violate Delaney (iprodione/raisins and ginseng and triadimefon/wheat)
also have 408 tolerances. If the uses and 408 tolerances remain in
effect without needed 409 tolerances (prohibited by the Delaney
clause), lawfully treated foods could potentially be adulterated, and
subject to seizure. In each case, however, EPA believes that there is
little likelihood of adulterated food.
Raisins. Grapes grown for raisins are generally not extensively
treated for Botrytis rot (the almost exclusive use of iprodione in
California). Grapes intended for fresh market are more likely to be
treated with iprodione because they may be exposed to late-season rain,
or need protection against rotting in post-harvest storage. A grower
whose grape crop is intended for raisins is likely to make that
decision early in the season because of the differing cultural
practices that are employed in fresh market production, and thus will
not typically use significant amounts of iprodione.
Iprodione is used on approximately 9 percent of the total grape
acreage in California. EPA has little information on use of iprodione
segregated by the intended use of grapes, but estimates that iprodione
is used on less than 4 percent of grapes intended for raisins, but up
to 20 percent of grapes for fresh market use.
In 1994, total California grape production was 5.253 million tons
of fresh grapes (California Agricultural Statistics Service, September
1995). Of that total, 36 percent was dried into raisins. If iprodione
were applied equally to all grapes, regardless of ultimate use, a
maximum of 170,200 tons of raisins containing iprodione residues could
be estimated (.09 x .36 x 5.253 million tons). However, as noted,
EPA believes this is a significant overestimate, since in typical years
grapes intended for raisins would seldom be treated with iprodione.
Similarly, in typical years, grapes grown for the fresh market would
not be
[[Page 39541]]
expected to be diverted to the raisin market in large quantities, and
all raisins produced from iprodione-treated grapes would not be
expected to contain residues above the RAC tolerance. Accordingly,
although EPA believes that revocation of the 409 tolerance for
iprodione on raisins would result in some raisins being subject to
seizure, the Agency estimates that the tonnage of raisins subject to
seizure would not be substantial taking into account annual production
figures. However, as noted earlier, evidence shows that some percentage
of the grape crop is diverted to raisin production.
Wheat. Today's action does not affect the current 408 tolerance for
wheat, which will remain in effect. As noted in Unit IV.E, EPA
estimates that residues in wheat bran based on recent residue data can
be expected to be as high as 0.5 ppm. While such residues would exceed
an adjusted 408 tolerance of 0.2 ppm, they are not likely to exceed the
existing 1 ppm tolerance. In any event, as noted in EPA's proposed
revocation of the 408 tolerance for wheat (March 1, 1996, 61 FR 8174),
triadimefon use on wheat is insignificant (generally in the range of 1
percent or less), and thus the potential for seizure of large amounts
of wheat bran is low.
Ginseng. Today's action does not affect the current 408 tolerance
for ginseng of 2 ppm (Sec. 180.399). EPA believes that, at this level,
there may be some adulterated ginseng, but does not have sufficient
information to estimate how much. Residue field trial data from
Wisconsin (which produces 90 percent of ginseng) conducted at the
maximum label rate and minimum pre-harvest interval (PHI) of 36 days
indicate that residues in fresh and dried ginseng were below the 2 ppm
RAC tolerance. Other data from North Carolina indicate that residues in
dried ginseng could be as high as 3.3 ppm, but these data were based on
a shorter PHI than allowed by the label. From this limited field trial
data, EPA cannot determine whether the existing 2 ppm tolerance is
adequate to cover residues in all dried ginseng.
Food handling establishments. For the purposes of this economic
analysis, EPA has assumed that revocation of the 409 tolerance for use
of acephate in food handling establishments results in the elimination
of this use. EPA estimates that discontinuing the use of acephate in
food handling establishments will cause negligible overall economic
impact, since there are numerous cost-effective alternatives for insect
control in food handling establishments.
Target pests in food handling establishments are cockroaches and
stored product pests. Any impacts that would occur would most likely be
where acephate is used for cockroach control, not for stored product
insect control. For cockroach control alternatives include, but are not
limited to, chlorpyrifos, cyfluthrin, boric acid, hydramethylnon,
diazinon, propetamphos, and bendiocarb. Acephate has quick
``knockdown'' capability, and less resistance problems than most quick
knockdown alternatives, but there are sufficient alternatives that EPA
believes economic impacts from the loss of acephate will not be
significant.
Barley. EPA is today revoking both raw food and processed food
tolerances for triadimefon on barley because they are not needed. The
impacts associated with the revocation of the 408 tolerance on barley
are expected to be minimal because the use of triadimefon on barley was
cancelled by the registrant in August 1993. EPA believes that the three
years that have elapsed are sufficient for existing stocks of product
and treated barley to clear channels of trade.
Citrus oil. For this 409 tolerance, the 408 tolerance and
registered use will remain effective, and therefore, no impact is
expected.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Agency must consider whether a regulatory action will have an adverse
economic impact on small entities. Section 605(b) requires the Agency
to either certify that the regulatory action will not have a
significant economic impact on a substantial number of small entities,
or prepare a regulatory flexibility analysis. For the reasons cited in
Unit X.A. of this document, EPA certifies that this regulatory action
does not impose significant adverse economic impacts on a substantial
number of entities, large or small. Therefore, a Regulatory Flexibility
Analysis is not required.
C. Paperwork Reduction Act
This order does not contain any information collection requirements
subject to review by Office of Management and Budget under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
D. Unfunded Mandates Reform Act and Executive Order 12875
Under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), this action does not result in the expenditure of $100 million
or more by any State, local or tribal governments, or by anyone in the
private sector, and will not result in any ``unfunded mandates'' as
defined by Title II.
Under Executive Order 12875 (58 FR 58093, October 28, 1993), EPA
must consult with representatives of affected State, local, and tribal
governments before promulgating a discretionary regulation containing
an unfunded mandate. This action does not contain any mandates on
States, localities or tribes and is therefore not subject to the
requirements of Executive Order 12875.
E. Review by Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects
40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, report and
recordkeeping requirements.
40 CFR Part 185
Food additive, Pesticides and pests.
Dated: July 18, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR Chapter I, Subchapter E, is amended as follows:
1. In part 180:
PART 180--[AMENDED]
a. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
Sec. 180.410 [Amended]
b. By removing from the table in Sec. 180.410 the entries for
``Barley, grain,'' ``barley, green forage,'' and ``barley, straw.''
2. In part 185:
PART 185--[AMENDED]
a. The authority citation for part 185 continues to read as
follows:
Authority: 2l U.S.C. 346a and 348.
[[Page 39542]]
Sec. 185.100 [Removed]
b. By removing Sec. 185.100.
Sec. 185.800 [Removed]
c. By removing Sec. 185.800.
Sec. 185.3650 [Removed]
d. By removing Sec. 185.3650.
Sec. 185.3750 [Removed]
e. By removing Sec. 185.3750.
[FR Doc. 96-19076 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19075 Diethyl Phthalate; Toxic Chemical Release Reporting; Community Right-to-Know
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39356-39359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19075]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400096A; FRL-5372-6]
Diethyl Phthalate; Toxic Chemical Release Reporting; Community
Right-to-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is deleting diethyl phthalate (DEP) from the list of
chemicals subject to the reporting requirements under section 313 of
the Emergency Planning and Community
[[Page 39357]]
Right-to-Know Act of 1986 (EPCRA) and section 6607 of the Pollution
Prevention Act of 1990 (PPA). Specifically, EPA is deleting DEP because
the Agency has concluded that DEP meets the deletion criterion of EPCRA
section 313(d)(3). By promulgating this rule, EPA is relieving
facilities of their obligation to report releases of and other waste
management information on DEP that occurred during the 1995 reporting
year, and for activities in the future.
DATES: This rule is effective July 29, 1996.
FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Acting Petitions
Coordinator, 202-260-3882, e-mail: [email protected], for
specific information on this final rule, or for more information on
EPCRA section 313, the Emergency Planning and Community Right-to-Know
Hotline, Environmental Protection Agency, Mail Code 5101, 401 M St.,
SW., Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and
Alaska: 703-412-9877 or Toll free TDD: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Affected Entities
Entities potentially affected by this action are those which
manufacture, process, or otherwise use diethyl phthalate (DEP) and
which are subject to the reporting requirements of section 313 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42
U.S.C. 11023 and section 6607 of the Pollution Prevention Act of 1990
(PPA), 42 U.S.C. 13106. Some of the affected categories and entities
include:
------------------------------------------------------------------------
Examples of affected
Category entities
------------------------------------------------------------------------
Industry Facilities that produce
soaps, detergents,
cleaners, perfumes,
cosmetics, other toilet
preparations, unsupported
film and sheet plastics,
other plastic products, and
miscellaneous industrial
organic chemicals.
------------------------------------------------------------------------
Federal Government Federal Agencies that
manufacture, process, or
otherwise use DEP.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your facility is affected by this action, you should carefully examine
the applicability criteria in part 372 subpart B of Title 40 of the
Code of Federal Regulations.
B. Statutory Authority
This action is taken under sections 313(d) and (e)(1) of EPCRA.
EPCRA is also referred to as Title III of the Superfund Amendments and
Reauthorization Act of 1986 (SARA) (Pub. L. 99-9499).
C. Background
Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report their
environmental releases of such chemicals annually. Beginning with the
1991 reporting year, such facilities must also report pollution
prevention and recycling data for such chemicals, pursuant to section
6607 of PPA. Section 313 established an initial list of toxic chemicals
that was comprised of more than 300 chemicals and 20 chemical
categories. DEP was included in the initial list of chemicals and
chemical categories. Section 313(d) authorizes EPA to add chemicals to
or delete chemicals from the list, and sets forth criteria for these
actions. Under section 313(e)(1), any person may petition EPA to add
chemicals to or delete chemicals from the list. EPA has added and
deleted chemicals from the original statutory list. Pursuant to EPCRA
section 313(e)(1), EPA must respond to petitions within 180 days either
by initiating a rulemaking or by publishing an explanation of why the
petition has been denied.
EPA issued a statement of petition policy and guidance in the
Federal Register of February 4, 1987 (52 FR 3479), to provide guidance
regarding the recommended content and format for petitions. On May 23,
1991 (56 FR 23703), EPA issued a statement of policy and guidance
regarding the recommended content of petitions to delete individual
members of the section 313 metal compound categories. EPA has published
a statement clarifying its interpretation of the section 313(d)(2) and
(3) criteria for adding and deleting chemicals from the section 313
toxic chemical list (59 FR 61432, November 30, 1994) (FRL-4922-2).
II. Description of Petition and Proposed Action
On February 7, 1995, the Fragrance Materials Association petitioned
the Agency to delete DEP (Chemical Abstract Service (CAS) Registry No.
84-66-2) from the EPCRA section 313 list of toxic chemicals. The
petitioner contends that DEP, which is mainly used as a plasticizer,
should be deleted from the EPCRA section 313 list because it does not
meet any of the EPCRA section 313(d)(2) criteria.
Following a review of the petition, EPA granted the petition and
issued a proposed rule in the Federal Register of September 5, 1995 (60
FR 46076) (FRL-4970-5) proposing to delete DEP from the list of
chemicals subject to the reporting requirements under EPCRA section
313. EPA's proposal was based on its preliminary conclusion that DEP
meets the deletion criteria of EPCRA section 313(d)(3). With respect to
deletions, EPCRA provides at section 313(d)(3) that ``[a] chemical may
be deleted if the Administrator determines there is not sufficient
evidence to establish any of the criteria described in paragraph
[(d)(2)(A)-(C)].'' In the proposed rule, EPA preliminarily concluded
that the available toxicological data indicates that DEP does not cause
adverse acute human health effects at concentration levels that are
reasonably likely to exist beyond facility cite boundaries, and causes
systemic, developmental, and reproductive toxicities only at relatively
high doses and thus has low chronic toxicity. Furthermore, EPA
preliminarily concluded that DEP exhibits low toxicity to aquatic
organisms, and is not likely to bioconcentrate. EPA also preliminarily
concluded that releases of DEP will not result in exposures of concern.
Therefore, EPA preliminarily concluded that based on the total weight
of available data, DEP cannot reasonably be anticipated to cause a
significant adverse effect on human health or the environment.
III. Final Rule and Rationale for Delisting
In response to the petition from the Fragrance Materials
Association, EPA is deleting DEP from the list of chemicals for which
reporting is required under EPCRA section 313 and PPA section 6607. EPA
is delisting this chemical because the Agency has determined that DEP
satisfies the delisting criterion of EPCRA section 313(d)(3).
[[Page 39358]]
A. Response to Comments
EPA received four comments in response to the proposed rule, all in
support of the proposed deletion. EPA agrees with the commenters that
DEP satisfies the criterion for delisting. One commenter requests that
EPA make this action effective as of the date of the proposal,
September 5, 1995, in order for the deletion to apply for the 1995
reporting year. While this action is effective as of the date of
publication of this final rule, not the date of the proposal, EPA
agrees that DEP should not be reported for the 1995 calendar year. As
discussed in Unit IV. of this preamble, reporting for DEP is not
required for the 1995 reporting year, covering activities and releases
which occurred in 1995.
B. Rationale for Delisting and Conclusions
EPA has concluded that the assessment set out in the proposed rule
should be affirmed. Further, because of questions raised recently about
the ability of phthalates to produce hormone disruption, EPA has looked
at this issue as it relates to DEP. While EPA is aware of limited and
preliminary in vitro data indicating that some phthalates bind/activate
estrogen receptors at high concentrations, EPA has not located any such
information on DEP. Further, for those few phthalates tested in vitro,
there is no indication that any common structural feature of these
compounds is responsible for the observed activity. In addition, EPA is
not aware of any data that demonstrate that DEP produces estrogenic
effects in vivo. Accordingly, EPA has determined that there is
insufficient evidence, at this time, to demonstrate that DEP causes
hormone disruption. In summary, based on the total weight of available
data, EPA has concluded that DEP cannot reasonably be anticipated to
cause a significant adverse effect on human health or the environment,
and therefore DEP meets the delisting criterion of 313(d)(3). A more
detailed discussion of the rationale for delisting is given in the
proposed rule (60 FR 46076, September 5, 1995) (FRL-4970-5).
Based on current data, EPA concludes that DEP does not meet the
toxicity criterion of EPCRA section 313(d)(2)(A) because DEP exhibits
acute oral toxicity only at levels that greatly exceed estimated
exposures outside the facility. Specifically, DEP cannot reasonably be
anticipated to cause ``. . . significant adverse acute human health
effects at concentration levels that are reasonably likely to exist
beyond facility site boundaries as a result of continuous, or
frequently recurring, releases.''
EPA has concluded that there is not sufficient evidence to
establish that DEP meets the criterion of EPCRA section 313(d)(2)(B).
The lowest-observed-adverse-effect-level (LOAEL) for systemic toxicity
is 3,160 milligrams/kilogram/day (mg/kg/day) and the no-observed-
adverse-effect-level (NOAEL) is 750 mg/kg/day. The LOAEL for
developmental toxicity is 3,210 mg/kg/day and the NOAEL is 1,910 mg/kg/
day. The NOAEL for reproductive toxicity is approximately 3,750 mg/kg/
day, which was the highest dose tested. EPA has no information
indicating that DEP causes any other section 313(d)(2)(B) effects. EPA
considers the above doses where DEP caused adverse effects to be
relatively high and concludes that DEP has low chronic toxicity.
Therefore, EPA conducted an exposure assessment for chronic human
exposure and found that exposure to DEP at the estimated levels is not
likely to result in adverse health risks in humans. EPA has estimated
that releases of DEP will not result in exposures of concern.
Therefore, EPA has concluded that DEP does not meet the EPCRA section
313(d)(2)(B) listing criterion.
EPA has also concluded that DEP does not meet the toxicity
criterion of EPCRA section 313(d)(2)(C) because it cannot reasonably be
anticipated to cause adverse effects on the environment of sufficient
seriousness to warrant continued reporting. DEP exhibits low toxicity
to aquatic organisms (fish 96 hr median lethal concentration
(LC50), 12 to 100 milligrams/liter (mg/l); daphnid 48 hr
LC50, 50 to 90 mg/l; and algae 96 hr median effective
concentration (EC50), 30 to 86 mg/l, and is not likely to
bioconcentrate.
Thus, in accordance with EPCRA section 313(d)(3), EPA is deleting
DEP from the section 313 list of toxic chemicals. Today's action is not
intended, and should not be inferred, to affect the status of DEP under
any other statute or program other than the reporting requirements
under EPCRA section 313.
IV. Effective Date
This action becomes effective July 29, 1996. Thus, the last year in
which facilities had to file a Toxic Release Inventory (TRI) report for
DEP was 1995, covering releases and other activities that occurred in
1994.
Section 313(d)(4) provides that ``[a]ny revision'' to the section
313 list of toxic chemicals shall take effect on a delayed basis. EPA
interprets this delayed effective date provision to apply only to
actions that add chemicals to the section 313 list. For deletions, EPA
may, in its discretion, make such actions immediately effective. An
immediate effective date is authorized, in these circumstances, under 5
U.S.C. section 553(d)(1) because a deletion from the section 313 list
relieves a regulatory restriction.
EPA believes that where the Agency has determined, as it has with
DEP, that a chemical does not satisfy any of the criteria of section
313(d)(2)(A)-(C), no purpose is served by requiring facilities to
collect data or file TRI reports for that chemical, or, therefore, by
leaving that chemical on the section 313 list for any additional period
of time. This construction of section 313(d)(4) is consistent with
previous rules deleting chemicals from the section 313 list. For
further discussion of the rationale for immediate effective dates for
EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994).
V. Rulemaking Record
The record supporting this decision is contained in docket control
number OPPTS-400096A. All documents, including an index of the docket,
are available in the TSCA Nonconfidential Information Center (NCIC),
also known as, TSCA Public Docket Office from 12 noon to 4 p.m., Monday
through Friday, excluding legal holidays. TSCA NCIC is located at EPA
Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
VI. Regulatory Assessment Requirements
It has been determined that this action is not a ``significant
regulatory action'' within the meaning of Executive Order 12866 (58 FR
51735, October 4, 1993), because this action eliminates an existing
regulatory requirement. The Agency estimates the total cost savings to
industry from this action to be $124,000 per year. The cost savings to
EPA is estimated at $3,000 per year.
This action does not impose any Federal mandate on State, local or
tribal governments or the private sector within the meaning of the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). And, given its
deregulatory nature, I hereby certify pursuant to the Regulatory
Flexibility Act (5 U.S.C. 605(b)), that this action does not have a
significant economic impact on a substantial number of small entities.
As required, information to this effect has been forwarded to the Small
Business Administration.
This action does not have any information collection requirements
subject to the provisions of the
[[Page 39359]]
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The elimination
of the information collection components for this action is expected to
result in the elimination of 2,305 paperwork burden hours.
In addition, pursuant to Executive Order 12898 (59 FR 7629,
February 16, 1994), entitled ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' the
Agency has determined that there are no environmental justice related
issues with regard to this action since this final rule simply
eliminates reporting requirements for a chemical that, under the
criteria of EPCRA section 313, does not pose a concern for human health
or the environment.
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: July 19, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 372 is amended to read as follows:
1. The authority citation for part 372 continues to read as
follows:
Authority: 42 U.S.C. 11013 and 11028.
Sec. 372.65 [Amended]
Sections 372.65(a) and (b) are amended by removing the entire entry
for diethyl phthalate under paragraph (a) and removing the entire CAS
No. entry for 84-66-2 under paragraph (b).
[FR Doc. 96-19075 Filed 7-26-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19067 Cost Accounting Standards Board; Applicability of Cost Accounting Standards Coverage
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39360-39361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19067]
=======================================================================
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OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
48 CFR Part 9903
Cost Accounting Standards Board; Applicability of Cost Accounting
Standards Coverage
AGENCY: Cost Accounting Standards Board, Office of Federal Procurement
Policy, OMB.
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Cost Accounting Standards (CAS) Board is revising the
applicability criteria for application of CAS to negotiated Federal
contracts. This rulemaking is authorized pursuant to Section 26 of the
Office of Federal Procurement Policy Act, 41 U.S.C. 422. The Board is
taking action on this topic to adjust CAS applicability requirements in
accordance with Section 4205 of Pub. L. 104-106, the ``Federal
Acquisition Reform Act of 1996.''
EFFECTIVE DATES: This rule is effective July 29, 1996. Comments upon
this interim rule must be in writing and must be received by September
27, 1996.
ADDRESSES: Comments should be addressed to Richard C. Loeb, Executive
Secretary, Cost Accounting Standards Board, Office of Federal
Procurement Policy, 725 17th Street, NW., Room 9001, Washington, DC
20503. Attn: CASB Docket No. 96-01.
FOR FURTHER INFORMATION CONTACT: Richard C. Loeb, Executive Secretary,
Cost Accounting Standards Board (telephone: 202-395-3254).
SUPPLEMENTARY INFORMATION:
A. Background
Section 4205 of Pub. L. 104-106, the ``Federal Acquisition Reform
Act of 1996,'' amends 41 U.S.C. Sec. 422(f)(2)(B) to revise clause (i)
and delete clause (iii). The phrase ``contracts or subcontracts where
the price negotiated is based on established catalog or market prices
of commercial items sold in substantial quantities to the general
public'' has been substituted with the phrase ``contracts or
subcontracts for the acquisition of commercial items.'' The CAS Board
is today amending its applicability regulations, solicitation provision
and contract clauses in recognition of this change. As amended, firm
fixed-price contracts and subcontracts for the acquisition of
commercial items (see 48 CFR, Chap. 1, part 12) will be exempt from CAS
requirements. Consequently, the Board's December 18, 1995 ``Memorandum
for Agency Senior Procurement Executives'' authorizing CAS waivers for
individual firm fixed-price contracts for the acquisition of commercial
items when cost or pricing data is not obtained is hereby rescinded.
To accomplish these changes, the Board is amending Section
9903.201-1(b)(6) of its rules. Additionally, the solicitation provision
found at 9903.201-3, the contract clauses at 9903.201-4, and the
definition found at 9903.301 are amended to reflect this change.
The conference report to Pub. L. 104-106 directs the CAS Board, in
consultation with the Director of the Defense Contract Audit Agency, to
issue guidance, consistent with commercial accounting systems and
practices, to ensure that contractors appropriately assign costs to
commercial item contracts, other than firm fixed-price commercial item
contracts. At the present time, however, commercial item contracts are
limited by regulation to the fixed-price variety. Accordingly, after
consideration and review of this issue, the Board has concluded that
development of the requested guidance should appropriately await the
time when other than fixed-price commercial item contracts are
authorized, or until another need for such guidance arises. At the time
that a need arises for guidance to address the allocation of costs to
other than firm fixed-price commercial item contracts, the Board will,
of course, pursue the development of guidance to address the issue.
B. Paperwork Reduction Act
The Paperwork Reduction Act, Public Law 96-511, does not apply to
this
[[Page 39361]]
rulemaking, because this rule imposes no paperwork burden on offerors,
affected contractors and subcontractors, or members of the public which
require the approval of OMB under 44 U.S.C. 3501, et seq.
C. Executive Order 12866 and the Regulatory Flexibility Act
The economic impact of this rule on contractors and subcontractors
is expected to be minor. As a result, the Board has determined that
this final rule will not result in the promulgation of a ``major rule''
under the provisions of Executive Order 12866, and that a regulatory
impact analysis will not be required. Furthermore, this rule will not
have a significant impact on a substantial number of small businesses
because small businesses are exempt from the application of the Cost
Accounting Standards. Therefore, this rule does not require a
regulatory flexibility analysis under the Regulatory Flexibility Act of
1980.
D. Public Comments
Interested persons are invited to participate by submitting data,
views or arguments with respect to this interim rule. All comments must
be in writing and submitted to the address indicated in the Addresses
section.
List of Subjects in 48 CFR Part 9903
Cost accounting standards, Government procurement.
Richard C. Loeb,
Executive Secretary, Cost Accounting Standards Board.
For the reasons set forth in this preamble, chapter 99 of title 48
of the Code of Federal Regulations is amended as set forth below:
PART 9903--CONTRACT COVERAGE
Subpart 9903.2--CAS Program Requirements
1. The authority citation for part 9903 of chapter 99 of title 48
continues to read as follows:
Authority: Pub. L. 100-679, 102 Stat 4056, 41 U.S.C. Sec. 422.
2. Section 9903.201-1 is amended by revising paragraph (b)(6) to
read as follows:
9903.201-1 CAS applicability.
* * * * *
(b) * * *
(6) Firm fixed-price contracts and subcontracts for the acquisition
of commercial items.
* * * * *
3. Section 9903.201-3 is amended by revising the clause heading and
Part I (a) of the clause to read as follows:
9903.201-3 Solicitation provisions.
* * * * *
COST ACCOUNTING STANDARDS NOTICES AND CERTIFICATIONS (JULY 1996)
* * * * *
I. Disclosure Statement--Cost Accounting Practices and
Certifications
(a) Any contract in excess of $500,000 resulting from this
solicitation, except for those contracts which are exempt as
specified in 9903.201-1
* * * * *
4. Section 9903.201-4 is amended by revising the clause headings
and paragraphs (d) of the clause entitled Cost Accounting Standards;
(d)(2) of the clause entitled Disclosure and Consistency of Cost
Accounting Practices; and by revising paragraph (d)(2) and adding
paragraph (d)(3) to the clause entitled Cost Accounting Standards--
Educational Institutions, to read as follows:
9903.201-4 Contract clauses.
* * * * *
COST ACCOUNTING STANDARDS (JULY 1996)
* * * * *
(d) The Contractor shall include in all negotiated subcontracts
which the Contractor enters into, the substance of this clause, except
paragraph (b), and shall require such inclusion in all other
subcontracts, of any tier, including the obligation to comply with all
CAS in effect on the subcontractor's award date or if the subcontractor
has submitted cost or pricing data, on the date of final agreement on
price as shown on the subcontractor's signed Certificate of Current
Cost or Pricing Data. This requirement shall apply only to negotiated
subcontracts in excess of $500,000, except that the requirement shall
not apply to negotiated subcontracts otherwise exempt from the
requirement to include a CAS clause as specified in 9903.201-1.
(End of clause)
* * * * *
DISCLOSURE AND CONSISTENCY OF COST ACCOUNTING PRACTICES (JULY 1996)
* * * * *
(d) * * *
(2) This requirement shall apply only to negotiated subcontracts
in excess of $500,000.
* * * * *
COST ACCOUNTING STANDARDS--EDUCATIONAL INSTITUTIONS (JULY 1996)
* * * * *
(d) * * *
(2) This requirement shall apply only to negotiated subcontracts
in excess of $500,000.
(3) The requirement shall not apply to negotiated subcontracts
otherwise exempt from the requirement to include a CAS clause as
specified in 9903.201-1.
(End of clause)
Subpart 9903.3--CAS Rules and Regulations
Sec. 9903.301 Definitions.
5. Section 9903.301 is amended by deleting the definition for
Established catalog or market price of commercial items sold in
substantial quantities to the general public.
[FR Doc. 96-19067 Filed 7-26-96; 8:45 am]
BILLING CODE 3110-01-P
Complete official Federal Register PDF
FR Doc. 96-19031 Decommissioning of Nuclear Power Reactors
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39278-39304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19031]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 50, and 51
RIN 3150-AE96
Decommissioning of Nuclear Power Reactors
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission is amending its regulations
on the decommissioning procedures that lead to the termination of an
operating license for nuclear power reactors. The final amendments
clarify ambiguities in the current rule and codify procedures that
reduce the regulatory burden, provide greater flexibility, and allow
for greater public participation in the decommissioning process. Some
minor amendments pertain to non-power reactors and are for purposes of
clarification and procedural simplification. The Commission believes
that the final amendments will enhance efficiency and uniformity in the
regulatory process of decommissioning nuclear power plants.
EFFECTIVE DATE: August 28, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Carl Feldman, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-6194; or S. Singh Bajwa, Office of
Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-1013.
SUPPLEMENTARY INFORMATION:
Background
On June 27, 1988 (53 FR 24018), the Commission promulgated
decommissioning regulations. On July 20, 1995 (60 FR 37374), the
Commission issued proposed amendments to these regulations. A
discussion of the current requirements and proposed amendments follows.
Current Requirements
Within 2 years after a licensee permanently ceases operation of a
nuclear reactor facility, it must submit a detailed decommissioning
plan to the NRC for approval, along with a supplemental environmental
report that addresses environmental issues that have not already been
considered. Based on these submittals, the NRC reviews the licensee's
planned activities, prepares a Safety Evaluation Report (SER) and an
environmental assessment (EA), and either makes a negative declaration
of impact (the usual case) or prepares an environmental impact
statement (EIS). Upon NRC approval of the decommissioning plan, the
Commission issues an order permitting the licensee to decommission its
facility in accordance with the approved plan. As part of the approval
process, the opportunity for a hearing under subpart G of 10 CFR part
2, is made available to the public. Once the decommissioning process is
completed and the NRC is satisfied that the facility has been
radioactively decontaminated to an unrestricted release level, the NRC
terminates the license.
If the licensee chooses to place the reactor in storage and
dismantle it at a later time, the initial decommissioning plan
submittal need not be as detailed as a plan for prompt dismantlement.
However, before the licensee can begin dismantlement, a detailed plan
and environmental report must be submitted and approved by the
Commission.
Before the decommissioning plan is approved, the licensee cannot
perform major decommissioning activities. If a licensee desires a
reduction in requirements because of the permanent cessation of
operation, it must obtain a license amendment for possession-only
status. This is usually granted after the licensee indicates that the
reactor has permanently ceased operations and fuel has been permanently
removed from the reactor vessel.
A licensee is required to provide assurance that at any time during
the life of the facility, through termination of the license, adequate
funds will be available to complete decommissioning. For operating
reactors, the amount of decommissioning funding required is generically
prescribed in 10 CFR 50.75. Five years before license expiration or
cessation of operations, a preliminary decommissioning plan containing
a site-specific decommissioning cost estimate must be submitted and the
financial assurance mechanism must be appropriately adjusted. Finally,
the decommissioning plan, submitted within 2 years after permanent
cessation of operations, must provide a site-specific cost estimate for
decommissioning and a correspondingly adjusted financial assurance
mechanism. For delayed dismantlement of a power reactor facility, an
updated decommissioning plan must be submitted with the estimated cost
of decommissioning and the licensee must appropriately adjust the
financial assurance mechanism. Before approval of the decommissioning
plan, licensee use of these funds would be determined on a case-
specific basis for premature closure, when accrual of required
decommissioning funds may be incomplete.
Proposed Amendments
The degree of regulatory oversight required for a nuclear power
reactor during its decommissioning stage is considerably less than that
required for the facility during its operating stage. During the
operating stage of the reactor, fuel in the reactor core undergoes a
controlled nuclear fission reaction that generates a high neutron flux
and large
[[Page 39279]]
amounts of heat. Safe control of the nuclear reaction involves the use
and operation of many complex systems. First, the nuclear reaction must
be carefully controlled through neutron absorbing mechanisms. Second,
the heat generated must be removed so that the fuel and its supporting
structure do not overheat. Third, the confining structure and ancillary
systems must be maintained and degradation caused by radiation and
mechanical and thermal stress ameliorated. Fourth, the radioactivity
resulting from the nuclear reaction in the form of direct radiation
(especially near the high neutron flux areas around the reactor
vessel), contaminated materials and effluents (air and water) must be
minimized and controlled. Finally, proper operating procedures must be
established and maintained with appropriately trained staff to ensure
that the reactor system is properly operated and maintained, and that
operating personnel minimize their exposure to radiation when
performing their duties. Moreover, emergency response procedures must
be established and maintained to protect the public in the event of an
accident.
During the decommissioning stage of a nuclear power reactor, the
nuclear fission reaction is stopped and the fuel (spent fuel
assemblies) is permanently removed and placed in the spent fuel pool
until transferred offsite for storage or disposal. While the spent fuel
is still highly radioactive and generates heat caused by radioactive
decay, no neutron flux is generated and the fuel slowly cools as its
energetic decay products diminish. The spent fuel pool, which contains
circulating water, removes the decay heat and filters out any small
radioactive contaminants escaping the spent fuel assemblies. The spent
fuel pool system is relatively simple to operate and maintain compared
to an operating power reactor. The remainder of the facility contains
radioactive contamination and is highly contaminated in the area of the
reactor vessel. However, because the spent fuel is stored in a
configuration that precludes the nuclear fission reaction, no
generation of new radioactivity can occur. Safety concerns for a spent
fuel pool are greatly reduced regarding both control of the nuclear
fission process and the resultant generation of large amounts of heat,
high neutron flux and related materials degradation, and the stresses
imposed on the reactor system. Contaminated areas of the facility must
still be controlled to minimize radiation exposure to personnel and
control the spread of radioactive material. This situation is now
similar to a contaminated materials facility and does not require the
oversight that an operating reactor would require.
Based on the preceding discussion, it should be noted that during
the operating stage of the reactor a nuclear reaction must be sustained
that has the potential during an accident to generate significant
amounts of energy and radiation whose consequences can be severe.
Moreover, the nature of maintaining and controlling a nuclear reaction
and the complexity of systems and operations requirements necessary to
prevent and mitigate adverse consequences requires considerable
oversight by the NRC. During the decommissioning stage of the reactor,
the potential for consequences that could result from an inadvertent
nuclear reaction are highly unlikely. The systems required for
maintaining the spent fuel in the spent fuel pool as well as the
operations required to contain the remaining residual contamination in
the facility and spent fuel pool are relatively simple. Consequently,
the activities performed by the licensee during decommissioning do not
have a significant potential to impact public health and safety and
these require considerably less oversight by the NRC than during power
operations.
The amendments proposed in July 20, 1995 (60 FR 37374), were
intended to provide licensees with simplicity and flexibility in
implementing the decommissioning process, especially with regard to
premature closure. The proposed amendments were intended to clarify
ambiguities in the current regulations, codify procedures and
terminology that have been used in a number of specific cases, and
increase opportunities for the public to become informed about the
licensee's decommissioning activities. The amendments were designed to
establish a level of NRC oversight commensurate with the level of
safety concerns expected during decommissioning activities.
A. Initial activities. The decommissioning process outlined in the
proposed amendments was similar in approach to that in the current
decommissioning rule, but included flexibility in the type of actions
that can be undertaken without NRC approval. Once a licensee
permanently ceases operation of the power reactor, no major
decommissioning activities (as defined in the proposed rule) could be
undertaken until the public and the NRC were provided information by
the licensee. Information required from the licensee in a Post-Shutdown
Decommissioning Activities Report (PSDAR) consisted of the licensee's
proposed decommissioning activities and schedule through license
termination, an assessment of whether such proposed activities are
bounded by existing analyses of environmental impacts, and a general
decommissioning cost estimate for the proposed activities. The PSDAR
would be made available to the public for comment.
Ninety days after the PSDAR submittal to the NRC and approximately
30 days after a public information meeting is held in the vicinity of
the reactor site, the licensee could perform major decommissioning
activities if NRC does not offer an objection. Before undertaking these
activities, the licensee must provide certifications to the NRC that
operations have permanently ceased and fuel has been permanently
removed from the reactor vessel (elements not formally addressed in the
current rule). Once these certifications have been provided to the NRC,
the licensee could no longer operate the reactor.
Part 50 technical requirements would also be amended to properly
cover the transition of the facility from operating to permanent
shutdown status (which also is not explicitly covered in the current
rule). Thus, a licensee who has permanently ceased operations and
removed fuel from the reactor vessel would no longer need to obtain a
license amendment to proceed with certain decommissioning activities
within established regulatory constraints.
B. Major decommissioning activities. A major change from the
current rule is that power reactor licensees would no longer be
required to have an approved decommissioning plan before being
permitted to perform major decommissioning activities. Under the
proposed rule, licensees would be allowed to perform activities that
meet the criteria proposed in Sec. 50.59. Section 50.59 would be
amended to include additional criteria to ensure that concerns specific
to decommissioning are considered by the licensee. Based on NRC
experience with licensee decommissioning activities, the Commission
recognized that the Sec. 50.59 process used by the licensee during
reactor operations encompassed routine activities that are similar to
those undertaken during the decommissioning process. The Commission
concluded that the Sec. 50.59 process could be used by the licensee to
perform major decommissioning activities if licensing conditions and
the level of NRC oversight required during reactor operations are
continued, commensurate with the status of the facility being
decommissioned. These
[[Page 39280]]
objectives were considered in the proposed rule as follows.
(1) The proposed rule would clarify, modify, and extend certain
licensing conditions to decommissioning activities.
(2) Aside from changes to part 50, the final safety analysis report
(FSAR), which is a licensing basis document for performing activities
under Sec. 50.59, would need to be updated to cover decommissioning
activities.
(3) A PSDAR would be submitted to the NRC that would contain a
schedule of planned decommissioning activities and provide a mechanism
for timely NRC oversight. The licensee would provide written
notification to the NRC before performing any decommissioning activity
that is inconsistent with or makes significant schedule changes from
the PSDAR.
C. License termination. A licensee wishing to terminate its license
would submit a license termination plan for approval similar to the
approach that is currently required for a decommissioning plan.
However, the plan would be less detailed than the decommissioning plan
required by the current rule, because it would not need to provide a
dismantlement plan, and could be as simple as a final site survey plan.
The approval process for the termination plan, as in the current rule,
would provide for a hearing opportunity under 10 CFR part 2. The
proposed rule recognized that, if the spent fuel is either offsite or
in an independent spent fuel storage facility (ISFSI), that is covered
under a part 72 license, the remaining facility licensed under part 50
is similar to a materials facility and a less formal hearing, under
subpart L rather than subpart G of part 2, is more appropriate. As in
the current rule, a supplemental environmental report would be required
from the licensee that considers environmental impacts that are not
already covered in existing EISs. An additional requirement, proposed
for the purpose of keeping the public informed, is that a public
meeting be held, after the licensee submits the license termination
plan to the NRC, similar to the one held after the PSDAR submittal.
D. Financial assurance. The proposed rule would continue the same
degree of financial assurance as the current rule, but provide more
flexibility by allowing licensee's limited early use of decommissioning
funds. This provision was presented in a draft policy statement
entitled ``Use of Decommissioning Trust Funds Before Decommissioning
Plan Approval'' (59 FR 5216; February 3, 1994) that was published by
the Commission for comment and incorporated into the proposed rule.
Currently, licensee use of these funds is determined on a case-specific
basis for prematurely shutdown plants. However, the proposed rule
eliminated the requirement for a decommissioning plan and instead
required a PSDAR submittal, which requires a decommissioning cost
estimate. The proposed rule permitted some small percentage (3%) of the
generically prescribed decommissioning funds to be available to the
licensee for planning purposes (``paper studies'') before permanent
cessation of power reactor operations. Moreover, to permit the licensee
to accomplish major decommissioning activities promptly, an additional
generic funding amount would be made available (20%) before a site-
specific cost estimate, which must be submitted to the NRC within 2
years after permanent cessation of operations (as in the current rule).
The remainder of the funds would be made available after submittal of
the site-specific cost estimate, as in the current rule. When the
licensee submits the license termination plan, the same financial
considerations as those in Sec. 50.82(c) of the current rule would be
required to provide assurance that the licensee has adequate funds to
complete decommissioning and terminate the license.
E. License extension. The proposed rule clarified that a license
that has expired is not terminated until the Commission terminates it
and further clarifies what conditions prevail under such circumstances.
F. Grandfathering. The proposed rule applied to power reactor
licensees who do not have an approved decommissioning plan on the
effective date of the final rule. Licensees that already have an
approved plan could, at their option, follow the provisions of the
proposed rule.
G. Non-power reactors. There were some minor clarifications and
procedural simplifications in the proposed rule for the non-power
reactor decommissioning process. Otherwise, the current rule remained
essentially unchanged.
Response to Comments
Thirty-four comment letters were received on the proposed rule from
power reactor licensees, contractors, Government agencies, Agreement
States, citizens groups, and individuals. The comment letters have been
categorized into two groups representing commenters generally in favor
of the proposed rule and those generally not in favor of the proposed
rule. The commenters in favor of the rule (24) consisted of power
reactor licensees, contractors, Government agencies, and an Agreement
State. The commenters not in favor of the rule (10) consisted of
citizens groups, individuals, and an Agreement State. The comments have
been summarized and addressed through issue categories based on the
proposed rule.
Issue 1--Proposed Rule Approach.
Comments. Commenters in support of the proposed rule were, to
varying degrees, supportive of the proposed rule. There were a few
commenters in this group who fully supported the proposed rule because
it would facilitate efficient decommissioning of power plants by
reducing regulatory burden, clarifying the applicability of regulations
originally intended for operating reactors, allowing a phased approach
to decommissioning, and allowing early partial use of the
decommissioning trust fund. A few commenters supported the use of
lessons learned from ongoing decommissioning projects, expanding public
participation, and providing the rationale behind less formal NRC
policies and practices in a way that satisfies the requirements of the
Atomic Energy Act (AEA), Administrative Procedure Act (APA), and
National Environmental Policy Act (NEPA).
While many commenters were generally supportive of the general
concept of the proposed rule, they indicated that the proposed rule did
not go far enough in reducing unnecessary regulatory burden. They noted
that the existing NRC requirements regarding operating reactors were
more than adequate to encompass decommissioning activities and, if
anything, should be relaxed rather than expanded. These recommended
relaxations pertained to such items as a more liberal attitude toward
collection and use of decommissioning trust funds, elimination of
unnecessary criteria concerning the use of the proposed Sec. 50.59,
elimination of proposed mandatory public meetings, elimination of the
proposed Post-Shutdown Decommissioning Activities Report (PSDAR)
submittal, and elimination of the proposed license termination plan or
eliminating its inclusion into the license by amendment, including
elimination of the accompanying proposed Subpart L or G hearing
opportunity.
Commenters not in favor of the proposed rule were not supportive of
the proposed rule to varying degrees. Many of these commenters were
strongly opposed to the proposed rule and indicated that it allowed
nuclear power generators to have discretionary
[[Page 39281]]
powers to regulate themselves; that NRC was abdicating its
responsibility for protecting the health and safety of workers and the
public; that, in allowing the decommissioning plan to be included in
the Final Safety Analysis Report (FSAR) it could be revised without
license amendment, thereby excluding the public from the process; and
that major component removal should not be allowed before the
decommissioning plan is approved by the NRC. These commenters expressed
a variety of views indicating that the existing rule should be left
alone or that the current rule should be left basically in place but
made more efficient through better implementation and should include
greater opportunities for public participation. Finally, a few
commenters indicated that significantly greater public participation
and oversight are necessary than that prescribed in the proposed rule.
Response. The proposed rule was developed to allow more flexibility
in dealing with premature closures, the decommissioning process in
general, and the experience gained from recent decommissioning
activities such as those at Fort St. Vrain, Shoreham, and Rancho Seco,
as well as early component removal at Yankee Rowe and Trojan. The
justification and intent of the final rule is unchanged. The NRC's
primary concern, as the licensee transitions to decommissioning, is
that the licensee will have sufficient funds to complete
decommissioning and that the activities undertaken by the licensee will
protect the public and the environment. The intent of this final rule
is to streamline some of the decommissioning requirements for power
reactor licensees, especially in approval of the decommissioning plan
before major decommissioning activities can be undertaken and in early
use of decommissioning trust funds.
Specific issues addressed in the final rule are discussed in
greater detail below.
Issue 2--PSDAR, FSAR, and update requirements.
Comments. Commenters in favor of the rule had various comments
concerning the PSDAR, its required update, and the proposed update to
the FSAR. Several commenters indicated that the PSDAR requirement
should be eliminated because it is more stringent than requirements
imposed on operating reactors, that the PSDAR should only require
information (detailed schedule) pertaining to the current phase of
decommissioning because dismantlement and site restoration may not
occur for many years, that the word ``synopsis'' should be used to make
it clear that the PSDAR is a high-level summary, and that there should
be consistency in the criteria for assessing environmental impacts
between the PSDAR and the proposed Sec. 50.59 requirements. A few
comments suggested making the reporting requirements more efficient by
combining them and updating the PSDAR and FSAR together, requiring
updates no more than once every 36 months, or using a single PSDAR for
multi-reactor sites. Several comments suggested that the updating
requirement for the PSDAR be eliminated because Sec. 50.59 already
requires annual reporting requirements, that the term ``significant''
used in the proposed Sec. 50.82(a)(6) should be tied to the Sec. 50.59
safety evaluation, and that the extent of deviation in the PSDAR
schedule that is permissible without notice to the NRC should be
clarified. Finally, there was a comment that the final rule should make
it clear that, if prompt decommissioning (dismantlement) is being
pursued by the licensee, the PSDAR and license termination plan should
be permitted to be the same document.
Commenters not in favor of the rule did not specifically address
Issue 2. However, those commenters believed that the current rule
requirements should be followed and that an approved decommissioning
plan should be required before a licensee is permitted to perform major
decommissioning activities.
Response. The purpose of the PSDAR is to provide a general overview
for the public and the NRC of the licensee's proposed decommissioning
activities until 2 years before termination of the license. The PSDAR
is part of the mechanism for informing and being responsive to the
public prior to any significant decommissioning activities taking
place. It also serves to inform and alert the NRC staff to the schedule
of licensee activities for inspection planning purposes and for
decisions regarding NRC oversight activities. Because the final rule
eliminates the need for an approved decommissioning plan before major
decommissioning activities can be performed, the requirement to submit
a PSDAR is less stringent than existing requirements for power reactor
licensees.
The information required to be in the PSDAR is less detailed than
the information required in the FSAR. Therefore, the PSDAR should not
be combined with the FSAR because the two documents have different
purposes. The final rule requires a written notification if activities
are anticipated that would be inconsistent with the PSDAR activities
previously described. The licensee's consideration of such
inconsistency would include any milestone scheduling changes of
dismantlement tasks and significant increases in decommissioning costs
from those described in the PSDAR. The final rule will explicitly
include the requirement that activities that would result in
significant increases to decommissioning costs from those presented in
the PSDAR must be a consideration in the notification requirements of
Sec. 50.82(a)(7). It is intended that regulatory guidance addressing
the PSDAR Standard Format and Content will be issued soon after the
final rule is published.
Currently, FSAR updates are required annually or 6 months after a
refueling outage provided the interval between updates does not exceed
24 months. Because the FSAR is the basis for the use of Sec. 50.59, the
updates will need to be timely, so the final rule specifies a 24-month
FSAR update for decommissioning activities for those nuclear power
reactor licensees that have submitted the certifications of permanent
cessation of operation and permanent removal of the fuel from the
reactor vessel.
If prompt decommissioning is desired by the licensee, the licensee
could elect early submittal of the PSDAR, before cessation of
operation, and then use of Sec. 50.59 would be permitted at cessation
of operation, provided the certification of permanent fuel removal from
the reactor vessel has been received and the public meeting had been
held in advance. Although the PSDAR and license termination plan serve
different purposes, and a formal approval process is required of the
latter, the PSDAR and license termination plan can be combined. If a
licensee chooses to combine the PSDAR and the license termination plan,
the requirements for both would apply to the combined document,
including the requisite waiting period, public meeting, and approval by
amendment of the license termination plan. The procedure for approval
of a license termination plan is similar to that currently required for
approval of a decommissioning plan. For a multi-reactor site, the PSDAR
could address the activities for all the reactors at the site if
decommissioning of each will be undertaken at the same time.
Issue 3--Ninety-Day Time Period Prior to Undertaking Major
Decommissioning Activities.
Comment. Several commenters noted that the proposed 90-day waiting
period before major decommissioning activities could be undertaken did
not address a
[[Page 39282]]
health and safety concern and that there are potentially high costs
associated with such a delay because licensees could do a lot of
dismantlement during this time that would be more efficient and cost
advantageous. These commenters emphasized that all activities could be
carried out under Sec. 50.59 and the current licensing basis. They
further stated that, if the 90-day hold is retained, clarification is
needed regarding the NRC's opportunity to interpose an objection to
proceeding with major decommissioning and that the NRC review should be
based on areas of significant safety. Finally, one commenter expressed
a concern that the 90-day waiting period would not allow enough time
for public participation, including consideration of comments received
from the public after NRC notices the licensee's PSDAR submittal and
during a public meeting.
Commenters not in favor of the rule did not specifically address
Issue 3. However, those commenters believed that the current rule
requirements should be followed and that an approved decommissioning
plan should be required before a licensee is permitted to perform major
decommissioning activities.
Response. The commenters have correctly noted that the 90-day
waiting period does not just address a health and safety issue. The NRC
has chosen a 90-day waiting period prior to allowing major
decommissioning activities to occur as the minimal time necessary for
the NRC to evaluate the licensee's proposed activities and to conduct a
public meeting. The public meeting is informational and may be chaired
by a local official, with a presentation of the regulatory process for
decommissioning by the NRC, presentation of planned decommissioning
activities by the licensee, and participation by State representatives.
A question and answer period would follow the presentations. By
submitting the PSDAR before cessation of operation, a licensee could
reduce the need for a waiting period (see the response to Issue 2 for
an additional discussion on ways that the waiting period may be
reduced).
Issue 4--Proposed Rule Modifications to Sec. 50.59.
Comment. Many commenters approved of some form of the proposed
modifications to Sec. 50.59. Many of these commenters noted that
Sec. 50.59(e) in the proposed rule is more stringent than the existing
requirements for operating reactors. These commenters believed that the
existing Sec. 50.59 criteria are adequate. Several commenters stated
that the four proposed constraints contained in Sec. 50.59(e) are
somewhat redundant to the proposed requirements in Sec. 50.82; the
PSDAR content plus update and the 90-day waiting period envelopes
issues addressed by these criteria. These commenters believed that if
Sec. 50.59(e) criteria were kept they should be in a regulatory guide
and not in a rule. Comments specific to the four criteria and why they
should be eliminated follow.
Section 50.59(e)(1)(i) concerning foreclosure of the site for
unrestricted release. It was noted that any event that detracts from
this effort would be accidental in nature, and that the proposed rule
provided no explanation of the types of activities that could result in
foreclosing the site for unrestricted use.
Section 50.59(e)(1)(ii) concerning significantly increasing
decommissioning costs. It was noted that cost estimate information is
required prior to and through the decommissioning process, making this
requirement unnecessary. Moreover, it was asserted that there is no
logical correlation between the cost of a decommissioning activity and
whether a license amendment should be required for that activity and
that costs have never been a consideration in determining whether a
proposed activity is consistent with the licensing basis for a plant.
It was also noted that other regulatory bodies such as Public Utility
Commissions and the Federal Energy Regulatory Commission, as well as
economic pressure, will force a licensee to perform decommissioning
cost effectively. It was recognized that actions taken by a licensee
may diminish the decommissioning fund and it was suggested that the
wording be changed to deal with actions that would ``significantly
inhibit the ability to fund decommissioning costs which would prevent
successful decommissioning.''
Section 50.59(e)(1)(iii) concerned environmental impacts not
previously reviewed. It was noted that compliance with the operating
license, technical specifications, and Sec. 50.59 regarding unreviewed
safety questions adequately preclude having significant adverse
environmental impact that have not been reviewed. Moreover, the
requirement is redundant to the requirement concerning unreviewed
environmental impacts required in the content of the PSDAR specified in
Sec. 50.82.
Section 50.59(e)(1)(iv) concerned violating the terms of the
existing license. It was noted that this requirement is redundant with
language in Sec. 50.59(a) that allows licensees to proceed with an
activity so long as it does not violate technical specifications or
constitute an unreviewed safety question as defined by
Sec. 50.59(a)(2). Also, it was noted that a license amendment is
required for changes in technical specifications under the current
Sec. 50.59(c).
Most commenters who opposed the use of proposed Sec. 50.59 were not
in favor of the rule. One commenter stated that the analysis of the
dismantlement activities proposed under Sec. 50.59 to determine whether
or not the activity generates any unreviewed safety issue should be
provided to the NRC, rather than rely on an NRC audit as existing
regulations provide. This analysis would also provide this information
to the public for examination. Several of the commenters indicated that
an after-the-fact review of Sec. 50.59 activities would provide
insufficient regulatory protection. Finally, a commenter stated that
the presence of an NRC inspector is essential during decommissioning
activities.
Response. The Commission concluded that the proposed
Sec. 50.59(e)(1)(iv) is redundant and should be eliminated from the
final rule. The Commission reconsidered the need for the remaining
Sec. 50.59(e)(1) requirements and determined that placing them in
Sec. 50.82 would be more appropriate. The Commission also concluded
that the requirement ensuring that no major decommissioning activities
occur that would significantly increase decommissioning cost could be
overly burdensome. Instead, an appropriate constraint would be to
prohibit any decommissioning activities that result in there no longer
being reasonable assurance that adequate funds will be available for
decommissioning. However, the NRC needs to be aware of changes in
decommissioning activities that would result in significantly
increasing decommissioning costs and would require written notification
of such intended actions. The other paragraphs in Sec. 50.59(e) were
placed in Sec. 50.82(a) to ensure that they will be considered as
overall constraints on the licensee's decommissioning activities,
rather than separately for each contemplated activity as proposed in
Sec. 50.59(e).
The purpose of retaining these requirements is to ensure that no
decommissioning activities can occur that result in: (1) Eliminating
the potential for unrestricted release, (2) significant environmental
impacts not previously considered in EISs, and (3) there no longer
being reasonable assurance that adequate funds will be available for
decommissioning. The basis for this final rule permitting the
[[Page 39283]]
use of Sec. 50.59 activities to perform decommissioning activities is
that environmental impacts have already been considered and that such
consideration was for an unrestricted release condition where the
licensee has sufficient funds to complete decommissioning (see final
generic environmental impact statement (FGEIS), NUREG-0586).1 The
major considerations of licensee decommissioning activities that could
significantly affect the environment are at the license termination
stage when the licensee submits a license termination plan for
approval.
---------------------------------------------------------------------------
\1\ NUREG-0586, ``Final Generic Environmental Impact Statement
on Decommissioning of Nuclear Facilities,'' USNRC, August 1988.
Copies are available for inspection or copying for a fee from the
NRC Public Document Room 2120 L Street NW. (Lower Level),
Washington, DC; the PDR's mailing address is Mail Stop LL-6,
Washington, DC 20555-0001; telephone (202) 634-3273; fax (202) 634-
3343.
---------------------------------------------------------------------------
If a licensee contemplates decommissioning activities that would
violate these requirements, the licensee may not use the Sec. 50.59
process delineated in this rule to perform the activities. The licensee
would then be required to obtain a license amendment to perform the
activities.
The final rule prohibits licensees from performing any
decommissioning activities that foreclose release of the site for
possible unrestricted use, result in significant environmental impacts
not previously reviewed, or result in there no longer being reasonable
assurance that adequate funds will be available for decommissioning
(Sec. 50.82(a)(6)). Prior to the licensee's use of the Sec. 50.59
process to perform major decommissioning activities, the PSDAR
submittal and public information process must be completed. The
licensee is required to include a discussion that provides the reasons
for concluding that the environmental impacts that might occur during
decommissioning activities have already been considered in site-
specific or generic environmental impact statements, and to estimate
the amount of funds necessary to complete decommissioning (see
Sec. 50.82(a)(4)).
The licensee is also required to submit a site-specific cost
estimate within 2 years after permanent cessation of operations. Use of
decommissioning trust funds are subject to the requirements (in
Sec. 50.82(a)(8)) that adequate funds will be available to ultimately
release the site and terminate the license. Moreover, the final rule
requires the licensee to notify the NRC in writing before performing
any decommissioning activity inconsistent with, or making any
significant schedule change from, those actions and schedules described
in the PSDAR and states that this notification include consideration of
significant increases in decommissioning costs (Sec. 50.82(a)(7)).
The NRC intends to maintain an active inspection program to provide
the requisite level of oversight of licensee activities during
decommissioning. The PSDAR and any written notification of changes
required of a licensee will be used to schedule NRC inspection
resources for significant decommissioning activities.
In addition to continuing requirements that the licensee must
comply with, such as 10 CFR part 20, regarding protection of workers
and the public from radiation, and appendix B to 10 CFR part 50
regarding quality assurance, the final rule explicitly extends certain
technical requirements to cover decommissioning activities (e.g.,
Secs. 50.36, 50.36a, 50.36b, and Appendix I regarding technical
specifications for surveillance requirements, administrative controls,
control of effluents, and conditions to protect the environment). Thus,
there will be a licensing basis appropriate to the activities
undertaken using the Sec. 50.59 process during decommissioning. By
maintaining certain requirements throughout the decommissioning
process, licensees will be able to use the existing Sec. 50.59 process
to perform decommissioning activities and thus provide comparable
assurance that protection of the public health, safety, and the
environment will not be compromised.
Issue 5--Environmental Impact Considerations During the Initial
Phase of Decommissioning.
Comments. Many commenters in favor of the rule fully supported the
environmental impact considerations delineated in the proposed rule for
the PSDAR submittal, with no mandatory ER or subsequent EA requirement.
A few commenters suggested that no environmental impacts for
decommissioning need be addressed further because the FGEIS for the
1988 decommissioning rule (NUREG-0586, August 1988) \1\ and subsequent
environmental assessments (for various actual power reactor
decommissioning situations) demonstrate that decontamination and
dismantlement do not significantly affect the human environment and
have beneficial effects in restoring the site to an environmentally
acceptable condition. A few commenters suggested that decommissioning
should be considered a categorical exclusion as defined in 10 CFR
51.22.
Most of the commenters who were not in favor of the rule believed
that the NRC should define decommissioning as a major Federal action
requiring an EA or EIS. They further indicated that a generic
environmental impact statement cannot substitute for a site-specific EA
because the FGEIS does not consider all possibilities. A few of these
commenters further stated that the proposed environmental impact
consideration process is NRC's attempt to streamline the process for
utilities and deregulate NRC current requirements. A few commenters
stated that the process outlined in the proposed rule abdicates NRC's
responsibility to protect the health and safety of the workers, the
public, the environment, and it also undermines citizen's due process.
Response. While the FGEIS (NUREG-O586) \1\ for the 1988
decommissioning rule concluded that only minor negative environmental
impacts would result from decommissioning in addition to substantial
positive environmental impacts, it did not address site-specific
situations that could differ from the assumptions used in the FGEIS
analysis. However, it is expected that any site impacts will be minor.
Any site impact should be bounded by the impacts evaluated by previous
applicable GEISs as well as any site-specific EIS. To account for site-
specific situations that may occur outside these environmental impact
considerations, the final rule prohibits major decommissioning
activities that could result in significant environmental impacts not
previously reviewed. The review process for the PSDAR and the approval
process for the license termination plan requires licensees to review
the existing documents and address any discrepancies in their
submittals.
The environmental assessment conducted for this rulemaking relied
on the FGEIS for the decommissioning rule (NUREG-0586, August 1988) \1\
and determined that, insofar as the rule would allow major
decommissioning activities (dismantlement) to proceed without an
environmental assessment, application of the rule will not have a
significant impact on the environment. Although not required by NEPA,
NRC has required in this final rule that licensees indicate in the
PSDAR the reasons for concluding that the planned activities are
bounded by the FGEIS and previous site-specific environmental impact
statements. This requirement is consistent with one of the primary
goals of the PSDAR process, which is to promote public knowledge and
provide an opportunity to hear public views on decommissioning
activities before licensees commence decommissioning.
[[Page 39284]]
At the license termination stage, the Commission must make
decisions on the licensee-proposed actions described in the license
termination plan. The Commission must consider:
(1) The licensee's plan for assuring that adequate funds will be
available for final site release,
(2) Radiation release criteria for license termination, and
(3) The adequacy of the final survey required to verify that these
release criteria have been met.
Therefore, the NRC has determined that submittal of the license
termination plan should be treated as a license amendment. In addition,
under 10 CFR part 51, an environmental assessment or impact statement
would be required at the time the license is amended. Following
resolution of another ongoing NRC rulemaking activity that is
considering adoption of radiological release criteria, a categorical
exclusion may be adopted that would eliminate the requirement for an
environmental assessment or impact analysis, except in the case of a
restricted release of a site.
Issue 6--Public Participation.
Comment. Most commenters supporting the rule commented on the
public participation aspects of the proposed rule. They believed that
the participatory role given to the public was appropriate, excessive,
or in need of further clarification. Several questioned the need for
expanded public participation on matters of public health and safety
because the NRC regulatory framework already provides for such
participation (e.g., license amendment process). These commenters also
noted that the purpose of the public meeting following the PSDAR
submittal was not properly explained and that the final rule should
clearly state that the meeting is intended for exchange of information
only. Many commenters indicated that the NRC should limit the scope of
these meetings and hearings to issues that are related to health and
safety during the decommissioning process. These commenters also
indicated that the supplementary information should include a clear
statement of the purpose and participation guidelines for these
meetings and clearly identify NRC's role at these meetings (which
should be significant). A comment stated that it is essential that
adequate mechanisms be developed for addressing issues of concern
raised by members of the public and that, absent such closure, the
meeting would only compound frustrations felt by the interested public.
Finally, there was a comment that the 90-day waiting period (after the
submittal of the PSDAR to the NRC) before allowing licensees to
undertake major decommissioning activities may not allow enough time
for adequate public participation.
Most commenters who did not favor the rule believed that the public
participatory role proposed was inadequate. These commenters stated
that NRC should retain the possession-only license amendment (POLA) and
decommissioning plan approval required in the current rule to truly
enhance public participation. Public meetings were considered helpful,
but no substitute for an adjudicatory hearing that includes the rights
to discovery, to present evidence, and to cross examine. Along these
lines, a commenter stated that a meeting does not afford citizens the
level of institutional accountability necessary, given the dangers of
environmental-toxic contamination inherent in reactor decommissioning
activities and that citizens must have a substantive role in the
decommissioning process in order to clarify, negotiate, and protect
their community's interest. A few commenters suggested that site-
specific advisory boards (SSABs) should be established early in the
decommissioning process and that meaningful public involvement should
be required at every stage of the decommissioning process, not only at
the final termination stage.
Response. As discussed previously, initial decommissioning
activities (dismantlement) are not significantly different from routine
operational activities such as replacement or refurbishment. Because of
the framework of regulatory provisions embodied in the licensing basis
for the facility, these activities do not present significant safety
issues for which an NRC decision would be warranted. Therefore, it is
appropriate that the licensee be permitted to conduct these activities
without the need for a license amendment. However, the information
meetings will be beneficial in keeping the public informed of the
licensee's decommissioning activities. Although the primary purpose of
these meetings is to inform the public of the licensee's planned
activities, the NRC will consider public health and safety comments
raised by the public during the 90-day period before the licensee
undertakes decommissioning activities.
A more formal public participation process is appropriate at the
termination stage of decommissioning because the final disposition of
the site is determined at that time. Under the current rule, the
Commission issues an order permitting the reactor to be decommissioned,
based on the approved decommissioning plan, which amends the license.
NRC administrative procedures, in subpart G of 10 CFR part 2, now
provide an opportunity for persons to request a hearing regarding the
NRC's decision. A similar procedure will be followed in the final rule
for the license termination plan once the licensee has permanently
removed fuel from the site. However, the hearing will be less formal
because it will follow the procedures in Subpart L of 10 CFR part 2.
The role of the SSABs will be evaluated when the rulemaking regarding
radiological release criteria for license termination is finalized.
Issue 7--Establishment and Use of the Decommissioning Trust Fund.
Most of the commenters on this issue were in favor of the rule.
These commenters requested greater flexibility in what costs can be
included in the fund, such as disposal costs of radioactive waste from
plant operations, and greater flexibility in the use of the trust funds
prior to and during decommissioning. Specific comments that reflect the
full range of comments on financial issues are:
Comment a. The proposed Sec. 50.82(a)(7) proposes to regulate a
licensee's use of, and rate of withdrawal from, the decommissioning
trust fund. While NRC oversight is warranted to ensure that
decommissioning activities can be funded, regulating the rate of
withdrawal from the trust fund may unnecessarily impede the efficiency
of a licensee's decommissioning activities. Because the NRC's generic
estimates of decommissioning costs are substantially lower than most
recent site-specific cost estimates, licensees would be constrained to
withdraw small fractions of an unrealistically low estimate.
Response. Limiting initial withdrawals to 23 percent of the generic
cost estimate (using the Sec. 50.75 requirements), until the licensee
has submitted a site-specific decommissioning cost estimate, preserves
the integrity of the decommissioning trust accounts. The final rule
permits licensees to withdraw up to 3 percent of the generic formula
amount for planning at any time during the decommissioning planning
process, including planning that occurs while a plant is still
operating. This amount should be ample based on current planning costs
for licensees recently undergoing decommissioning. Likewise, allowing
withdrawals of 20 percent of the generic amount for decommissioning
activities would allow funding of certain activities before receipt of
a site-specific cost estimate. This amount is consistent with costs of
large component removal activities undertaken or contemplated by
[[Page 39285]]
licensees of shutdown plants (e.g., Yankee-Rowe and Trojan). Once the
NRC has received the site-specific decommissioning cost estimate, a
licensee would have access to the balance of trust fund monies for the
remaining decommissioning activities. Because the timing of the
submittal of a site-specific cost estimate is within the control of the
licensee, the Commission believes that unwarranted restraints on access
to funds are not imposed by the final rule.
Comment b. The scope of decommissioning-related activities that
licensees may collect funds for should include disposal of low-level
waste generated during operations, maintenance and storage of spent
fuel after cessation of operations, costs to maintain an independent
spent fuel storage installation, and non-radioactive demolition or
``greenfield.'' State Public Service Commissions and the Federal Energy
Regulatory Commission have authorized funding for these activities in
some cases because it is in the best interests of the utilities'
customers. The NRC regulation should not require segregation of these
funds in separate accounts; restrictions on the withdrawal of trust
funds in the proposed rule could lead utilities to create separate
trust accounts for each nuclear facility funding component (e.g.,
decommissioning, spent fuel management, and greenfield). Finally, the
rule should allow for the prudent and economic use, at the utility's
discretion, of decommissioning trust funds during the years of normal
plant operation even before end of life.
Response. The NRC's authority is limited to assuring that licensees
adequately decommission their facilities with respect to cleanup and
removal of radioactive material prior to license termination.
Radiological activities that go beyond the scope of decommissioning, as
defined in Sec. 50.2, such as waste generated during operations or
demolition costs for ``greenfield'' restoration, are not appropriate
costs for inclusion in the decommissioning cost estimate. Funds for
interim spent fuel storage and maintenance are addressed in
Sec. 50.54(bb).
The final rule does not prohibit licensees from having separate
sub-accounts for other activities in the decommissioning trust fund if
minimum amounts specified in the rule are maintained for radiological
decommissioning.
Comment c. Section 50.82(a)(7)(ii) of the proposed rule specifies
that a site-specific decommissioning cost estimate must be submitted to
the NRC prior to the licensee being permitted to use any funding in
excess of previously stipulated amounts. This could be interpreted to
mean that the NRC must approve the additional expenditures. If this
paragraph is retained, the intent of this ``permitting'' should be made
clear. Expenditures made in accordance with the PSDAR and the
decommissioning cost estimate should not require any additional NRC
authorization.
Response. The NRC's intent in the proposed rule was not to use a
formal approval mechanism for decommissioning expenditures once the
licensee submits its site-specific decommissioning cost estimate. The
final rule has been modified as suggested by the commenter.
Comment d. More guidance should be provided regarding what
constitutes a decommissioning ``planning'' expenditure. Changes in the
proposed rule regarding expenditure of funds from the NRC Draft Policy
Statement on use of decommissioning funds before decommissioning plan
approval (59 FR 5216; February 3, 1994), should be more fully
explained.
Response. The term ``planning'' used in Sec. 50.82(a)(8)(ii)
specifically means ``paper'' studies, not equipment removal.
Percentages are used in the final rule rather than specific dollar
amounts, as used in the Draft Policy Statement, to better allow for
inflation of costs in the future. Other changes to the Draft Policy
Statement are based on the response to comments, developed prior to
this rulemaking activity, and presented in the section on the
``Resolution of Comments on the Draft Policy Statement.''
Comment e. If a plant shuts down early, not only will there be
insufficient funds to pay for planned decommissioning (because not all
payments will have been made), but the actual cost of decommissioning
can be 2 to 3 times higher than planned. The NRC should require
external funds in the amount necessary to complete decommissioning
upfront. Moreover, the NRC does not have a procedure in place for
``replacing'' a reactor licensee that goes bankrupt. Finally, the NRC
should specifically allow the total financial approach to be made along
the lines of industry self-insurance.
Response. The revised regulations preserve the integrity of the
decommissioning funds by tying the rate of expenditure to specific
parts of the decommissioning process. At the same time they allow broad
flexibility once a licensee submits its site-specific decommissioning
cost estimate.
The issue of bankruptcy, as well as the requirement for power
reactor licensees to have the total amount of decommissioning funds
upfront, was considered during the development of the current rule and
found to be adequately addressed in current requirements. Bankruptcy
does not necessarily mean that a power reactor licensee will liquidate.
To date, the NRC's experience with bankrupt power reactor licensees has
been that they file under Chapter 11 of the Bankruptcy Code for
reorganization, not liquidation (e.g., Public Service Company of New
Hampshire, El Paso Electric Company, and Cajun Electric Cooperative).
In these cases, bankrupt licensees have continued to provide adequate
funds for safe operation and decommissioning, even as bondholders and
stockholders suffered losses that were often severe. Because electric
utilities typically provide an essential service in an exclusive
franchise area, the NRC staff believes that, even in the unlikely case
of a power reactor licensee liquidating, its service territory and
obligations, including those for decommissioning, would revert to
another entity without direct NRC intervention. However, the NRC
believes that with electric utility deregulation becoming more likely,
it may need to require additional decommissioning funding assurance for
those licensees that are no longer able to collect full decommissioning
costs in rates or set their own rates. Thus, the NRC proposed a
rulemaking plan to, in part, evaluate these developments in SECY-95-223
(September 1, 1995).
Issue 8--Court decision.
Comment. Most commenters who were in favor of the rule indicated
that the proposed rule did not conflict with the recent court decision
regarding the Yankee Rowe decommissioning (Citizens Awareness Network,
Inc. v. NRC, 59 F.3d 284 (1st Cir. 1995)). Most of the commenters who
were not in favor of the rule believed that the proposed rule violated
the court's decision, or the spirit of the decision, regarding Yankee
Rowe.
Response. A significant basis for the court's decision was that it
perceived that the Commission had not adequately provided the reasoning
for the NRC decision to allow decommissioning activities before NRC
approval of a licensee-submitted decommissioning plan (59 F.3d at 291-
292), a decision that the court considered to be a modification of the
Commission's decommissioning regulations. The court noted that the
Commission had failed to provide either a rulemaking proceeding or a
hearing to address what the court perceived to be NRC approvals of
licensee decommissioning activities (59 F.3d at 291-92, 294-95). By
initiation of
[[Page 39286]]
a notice of proposed rulemaking and solicitation of comment (July 20,
1995; 60 FR 37374), the Commission addressed the reasoning underlying
the proposed decommissioning process and allowed public review and
comment on that reasoning.
The final rule includes a public notice and meeting process,
prompted by the licensee's submission of a report describing planned
decommissioning activities, to hear public views before the licensee
undertakes major decommissioning activities. This process specifically
provides that licensees may not begin major decommissioning activities
until after they have submitted a PSDAR. The PSDAR will be made
available to the public for written comment and a public meeting will
be held to hear public views. Finally, the licensee is required to
submit a license termination plan before release of the site. The final
rule specifies that the license termination plan be approved by the NRC
through the license amendment process. This process provides the public
with hearing opportunities and ensures that any hearing on that plan
must be completed prior to release of the site. This procedural
framework assures that those citizens living near the site, potentially
for years or decades after the facility is shut down, will be provided
with information regarding the licensee's planned decommissioning
activities, have an opportunity to ask questions regarding those
activities at a public meeting early in the process, and have timely
input into the decision to release the site.
In its decision, the court also specifically addressed a concern
about decommissioning activities taking place prior to any NEPA
analysis (59 F.3d at 292-93). The final rule addresses this issue in
several respects. First, the final rule explicitly prohibits the
licensee from performing any major decommissioning activity that
results in significant environmental impacts not previously reviewed or
forecloses possible unrestricted release of the site.
Also, when the licensee submits the PSDAR, the licensee must
specifically include a section discussing how the planned activities
fit within the envelope of environmental effects included in either the
FGEIS (NUREG-0586, August 1988) \1\ or the facility's site-specific
environmental impact statement. Moreover, the licensee must provide
written notification if the intended decommissioning activities are
inconsistent with the PSDAR. This requirement helps ensure that, after
submittal and public comment on the PSDAR, any changes to the planned
decommissioning activities continue to be enveloped by the assessment
of environmental impacts in prior environmental reviews. Any activities
not meeting the environmental criteria would require the licensee to
file an application for amendment to the license and a supplement to
its environmental report under 10 CFR part 51. Finally, the rule
requires a formal license termination plan by the licensee. The
activities in the licensee's plan which do not meet the environmental
criteria must be approved by the NRC by a license amendment that
follows NRC procedures for amendments, including applicable hearing
rights (under either subpart L or subpart G of 10 CFR part 2, as
specified in the rule) and the preparation of environmental
assessments.
The court perceived that the agency ``approval'' of the expenditure
of funds from the decommissioning funds may be a basis for triggering
both NEPA reviews and hearing rights (59 F3d at 292-95). The final rule
addresses this issue by providing generic guidance as to what
expenditures can be made out of the decommissioning fund for
decommissioning activities before submittal of a site-specific cost
estimate. The revised regulations use generic criteria for expenditures
from the decommissioning funds and do not require prior NRC approval of
site-specific expenditures meeting the generic criteria (see
Sec. 50.82(a)(7)). These new provisions specifically require licensees
to maintain sufficient funds for release of the site and termination of
the license. The licensee will have to also include an updated, site-
specific analysis of remaining costs in the license termination plan
submittal.
In publishing this final rule, the Commission has explained the
rationale for the new decommissioning process, and has concluded that
nothing in the court decision dictates that the Commission take a
specific approach to this issue or otherwise raises questions
concerning the validity of the approach adopted in this rulemaking.
Issue 9--Definitions.
Comment. Regarding the definitions in Sec. 50.2, a few commenters
indicated that the definition of decommissioning should include the
concept of restricted release to accommodate the proposed rulemaking on
acceptable residual radioactive criteria for decommissioning. Several
commenters noted that the definitions of ``major radioactive
components'' and ``major decommissioning activities'' were unnecessary
because the use of the existing Sec. 50.59 process does not require
these considerations and is adequate to deal with decommissioning
activities. However, if a definition of ``major radioactive
components'' must be kept, the definition should only be relevant to
any components, that when dismantled for shipment, contain greater than
class C waste. During decommissioning activities, these waste disposals
have the greatest significance regarding environmental impacts and
adequate funding and are unrelated to the physical size of components.
Response. When the residual radiation criteria rule is final, the
definition of decommissioning in Sec. 50.2 will address use of the
restricted release. It is necessary to have definitions of ``major
radioactive components'' and ``major decommissioning activities'' to
clarify what decommissioning activities may not occur before the end of
the 90-day waiting period. However, the definition of ``major
radioactive components'' in the final rule has been clarified so that
large components, other than those named, are not prohibited Sec. 50.59
activities if they contain small amounts of radioactivity.
Dismantlement of these components is considered part of routine
operating nuclear power reactor activities.
Issue 10--Modifications to Specific Technical Requirements.
Comment. Most of the commenters addressing this issue were in favor
of the rule and indicated that there should be additional elimination
or modification of requirements beyond those presented in the proposed
rule. There was a spectrum of views on this issue: if a risk analysis
were performed, it would demonstrate that the proposed rule would
impose unnecessary burden on NRC licensees and NRC resources without
commensurate benefit to health and safety; appropriate technical
specifications for decommissioning would be for those activities for
which there is a significant hazard; the final rule should include a
discussion of the logic (i.e., philosophy) in making conforming
revisions to part 50, especially with respect to provisions that did
not change (e.g., Secs. 50.55a, 50.63, 50.72, and 50.73 applicability);
the study and survey by the NRC concerning additional amendments for
non-applicability should be completed before this rule is finalized
(one commenter); and that the proposed rule appears geared to
permanently shut down reactors with fuel onsite and does not
differentiate among the aspects that apply once fuel is removed from
the site, and the rule should consider such situations. Finally, one
commenter requested that environmental qualifications remain in place
for equipment important to safety
[[Page 39287]]
pertaining to spent fuel management and storage.
Response. This rulemaking is primarily directed toward the
procedural process for decommissioning, with particular emphasis on
premature closure situations. The modifications to technical
requirements in the final rule are based on a consequence analysis that
either leads to elimination of the requirement or extends its
applicability to decommissioning.
The modifications to the technical requirements in the final rule
are incomplete, as noted in the proposed rule, and as the information
base continues to develop, additional rulemaking actions to modify
other requirements will be conducted. In the interim, licensees that no
longer have fuel onsite may continue to request exemption for specific
requirements on a case-by-case basis. The information base will address
the storage of high-density packaging of hot spent fuel in the spent
fuel pool with special consideration given to potential radiological
consequences that could occur from loss of coolant in the pool.
Consideration for amending rule requirements is also being given to
situations in which the fuel is in dry storage at an Independent Spent
Fuel Storage Installation (ISFSI).
Comments on specific amendments were:
Comment: Part 26. The final rule should explicitly state that the
fitness for duty program does not apply to a permanently shut down and
defueled facility. If it must apply, then it should apply to persons
with unescorted access to the fuel storage building or buildings
containing equipment necessary for the safe storage and handling of
spent fuel.
Response. Consideration of this issue is ongoing and may result in
future rulemaking. However, until a decision is made, part 26 continues
to be applicable.
Comment: Section 50.36. Criteria are needed to ensure that
technical specifications are appropriate for the conditions of a plant
in a defueled state. The four criteria specified in Sec. 50.59(e) would
be appropriate additional guidance.
Response. Consideration will be given at a later time to the
development of additional guidance in the form of standardized
technical specifications for decommissioning. However, licensees may
apply for modification of their technical specifications on a case-by-
case basis.
Comment: Section 50.36 (c)(6) and (e). These requirements, which
appear to imply that a new set of technical specifications will be
developed for the plant decommissioning phase, are redundant and should
be eliminated because Sec. 50.51(b)(2), the requirement to conduct
activities in accordance with the specific part 50 license for the
facility, is sufficient to ensure effectiveness of the technical
specifications.
Response. As a reactor facility transitions from operational to
decommissioning status, numerous changes to technical specifications
are expected. The regulatory experience with revisions to the technical
specifications during this transition period has entailed case-specific
evaluations of individual licensee requests. This has resulted in some
inconsistency and variability of expectations among shutdown reactor
facility license requirements. This revision provides the basis for
developing a consistent framework for the development of ``standardized
technical specifications for decommissioning,'' as well as addresses
the uncertainty regarding the applicability of the existing regulation
to permanently shutdown reactors. Section 50.51 specifically addresses
the continued effectiveness of expired licenses and limitation of
licensee actions during any continued effectiveness period. As such,
Sec. 50.51 does not, nor is it intended to, provide specific license
conditions and requirements. Section 50.36 addresses this issue.
Comment: Section 50.36a(a)(1). This requirement should be clarified
and revised because radioactive waste systems will have to be removed
prior to license termination, and the present wording appears to
require that these systems be used and maintained. Moreover, temporary
systems are typically used for effluent treatment and the rule should
be modified to describe only those systems that are appropriate.
Response. Section 50.36a(a)(1) is intended to ensure that operating
procedures for any waste treatment systems used to control effluents be
maintained and used to existing release criteria, and not that the
systems be used and maintained when no longer necessary. However, in
response to the comment, Sec. 50.36a(a)(1) has been modified from the
proposed rule so that systems that are no longer necessary can be
eliminated from compliance requirements.
Comment: Section 50.47. A defueled plant that has ceased operation
warrants a material reduction in the scope of its offsite emergency
planning requirements because the credibility of any offsite
consequences are reduced. Beyond the spent fuel pool, there is not
sufficient source term to justify emergency plans. This also pertains
to appendix E to part 50 and the requirements in Sec. 50.54(t)
concerning periodic review (frequency and scope) of the licensee's
emergency preparedness program.
Response. Consideration of the potential radiological consequences
of hot, high-density packaged fuel in the spent fuel pool is still
ongoing. Modifications to this requirement, if made, will be developed
at a later time.
Comment: Section 50.48. While some commenters agreed with the
concept of a fire protection plan through the end of decommissioning,
one found the proposed language overly restrictive, vague, and
ambiguous. This commenter stated that once the permanently removed
spent fuel is certified to no longer be a fire protection concern, an
industrial fire protection program could be adequate in most cases.
Several other commenters noted that there are other ongoing NRC
activities to improve current fire protection regulations, and if
actions are taken now, they should only be based on ``significant
hazards'' considerations.
Response. These modified requirements have been coordinated with
ongoing NRC activities regarding the improvement of fire protection
regulations. Also, see the response to Sec. 50.47 regarding spent fuel
considerations. As presently configured, fire protection regulations
apply only to operating reactor facilities. The need for an ongoing
fire protection program, albeit a modified one, remains after the
facility has ceased reactor operations. The final rule provides a
performance-based program that can readily be modified during the
decommissioning process to address residual hazards.
Comment: Section 50.49. Electric equipment required for protection
of spent fuel outside the reactor does not meet the definition of
equipment defined by Sec. 50.49(b). The discussion in the final rule
should be corrected to note that the environmental qualifications
regulations apply to selected safety and non-safety related equipment
as described in Sec. 50.49(b).
Response. No modifications to the proposed rule are necessary.
However, the environmental qualifications regulations apply to selected
safety and non-safety related equipment as described in Sec. 50.49(b).
Comment : Section 50.51. Section 50.51(b) should be deleted because
it is redundant. If it is kept, the requirements on the continuation of
a license should be clarified to affirm that other operating reactors
would be unaffected
[[Page 39288]]
when the operating license of one reactor has been terminated at a
multi-reactor site. Section 50.51(b)(1) should be clarified to indicate
that, at sites that have an intervening reuse but do not require
decontamination to unrestricted release, decontamination would not need
to occur until the end of the reuse period.
Response. Section 50.51(b) is not redundant and will not be
deleted. This section in the final rule has been modified to clarify
that an expired license for a nuclear reactor facility that has
permanently ceased operations is not terminated until the Commission
terminates it. This provision further clarifies what conditions prevail
under such circumstances. At a multi-reactor site, each reactor is
individually licensed and actions are applied accordingly. The
FR Doc. 96-19031 Decommissioning of Nuclear Power Reactors
final
rule addressing the radiological criteria for decommissioning will
address the issue of restricted release options. Under the proposed
rule, such restrictions would have to ensure that members of the
public, in the event the restrictions fail, would not receive a dose in
excess of 100 mrem per year. Unless the facility remained under
license, individuals having access to the facility would be considered
members of the public.
Comment: Section 50.54(g). The antitrust law requirements for a
reactor that has permanently ceased operations and permanently defueled
should be reevaluated for applicability.
Response. Section 50.54(g) simply provides that the issuance of an
NRC license does not relieve the licensee from compliance with the
antitrust laws specified in Section 105 of the Atomic Energy Act, and
that the NRC may take appropriate action, including suspension or
revocation of the license, if a court finds the licensee to have
violated any provisions of such antitrust laws. This subsection of the
regulation is sufficiently flexible that there is no reason to modify
or delete it with respect to a facility that has ceased operations or
is permanently defueled.
Comment: Paragraphs (k), (l), and (m) of Sec. 50.54. The
requirement for licensed operators should be eliminated or reduced
because reactivity changes can only occur during the initial stages of
decommissioning in connection with repositioning fuel assemblies in the
spent fuel pool. With reference to Sec. 50.54(i), the scope of the
operator requalification program and limitations on a licensee's
freedom to modify it should be reduced at facilities undergoing
decommissioning.
Response. Consideration of these issues is ongoing and may result
in future rulemaking.
Comment: Section 50.54(w). Onsite property damage insurance for a
facility undergoing decommissioning should be eliminated or
substantially modified.
Response. Consideration of the potential radiological consequences
of hot, high-density packaged fuel in the spent fuel pool is still
ongoing. Modifications to this requirement, if made, will be developed
at a later time.
Comment: Section 50.55a. Pertaining to codes and standards
requirements, it should be noted that Secs. 50.55a (a), (f), and (g),
inservice testing requirements, do not apply to permanently defueled
reactors because the plant is not operating and there is no need to
apply the regulation.
Response. No change is necessary because these requirements provide
assurance that relevant portions of the facility are maintained
functional or operational to adequate standards so they are
operationally capable.
Comment: Section 50.63. The requirements on the loss of all ac
power should not apply to decommissioning because the potential for
significant radiological consequences is very low (there is a low
probability of incident and long recovery time).
Response. Consideration of the potential radiological consequences
of hot, high-density packaged fuel in the spent fuel pool is still
ongoing. Modifications to this requirement, if made, will be developed
at a later time.
Comment: Section 50.65. Monitoring maintenance for a permanently
shutdown and defueled facility on any of its structures, systems, or
components (SSC) to levels required by the current maintenance rule is
unnecessary. Permanently shutdown and defueled facilities can no longer
experience the levels of mechanical stresses associated with an
operating plant. Therefore, the industry interprets the proposed rule
to mean that the maintenance program only applies to the safe storage
of fuel. The relative risks from a shutdown plant allow requirements in
existing technical specifications and other administrative programs to
provide adequate assurance for safe fuel storage.
Response. The maintenance rule, Sec. 50.65, requires that the
performance or condition of all structures, systems, and components
(SSCs) described in Sec. 50.65(b) be included in the scope of the rule.
Under the current rule, licensees are permitted flexibility in the
goals that are established and the monitoring that is performed for
these SSCs. The NRC agrees that the stresses on most SSCs in an
operating plant are greater than those associated with a shutdown and
defueled plant. The final rule allows the scope to be limited to those
SSCs associated with the storage, control, and maintenance of spent
fuel in a safe condition in a manner that provides reasonable assurance
that the SSCs are capable of performing their intended function.
Comment: Section 50.72. The immediate notification requirements for
operating nuclear power reactors should not apply to permanently
defueled reactors or, if applicable, should be significantly modified.
Regarding Sec. 50.72(a)(i), there should be no requirement to use the
Emergency Notification System or Emergency Response Data Systems.
Response. The NRC did not adopt this comment. Notification
requirements for events such as abnormal releases and overexposures are
examples of required reports that are necessary.
Comment: Section 50.111. Criminal penalties should not be imposed
for decommissioning activities because they are not so important to
public health and safety that licensees need be subject to them.
Decommissioning activities for reactor licensees should not be treated
any differently than for other radioactive material licensees.
Response. The Commission believes that certain actions are
essential in initiating the decommissioning process (e.g., certifying
to permanent cessation of operation and permanent removal of fuel from
the reactor vessel, and submitting a PSDAR) and should, therefore, be
treated as substantive with respect to the criminal penalty provisions
of the Atomic Energy Act. Decommissioning actions, when initiated
improperly, have a potential for significant consequences regarding
health, safety, and the environment. Willful violations of, attempted
violations of, or conspiracy to violate, Sec. 50.82 would, therefore,
be a matter of significant concern to the NRC. Thus, the NRC is
retaining the addition of Sec. 50.82 to the list of regulations to
which criminal sanctions apply.
Comment: Section 140.11. Concerning Price Anderson financial
protection, permanently shutdown and defueled facility licensees should
be permitted to withdraw from the secondary financial protection layer,
and single units should be given a reduction in the primary level of
coverage (e.g., $100,000,000).
Response. Consideration of the potential radiological consequences
of hot, high-density packaged fuel in the spent fuel pool is still
ongoing. Modifications to this requirement, if made, will be developed
at a later time, as will considerations of fuel stored in an ISFSI.
Issue 10--Termination of License Requirements.
[[Page 39289]]
Most of the commenters in favor of the rule supported the
decommissioning requirements for termination of the license in the
proposed rule. However, several of these commenters stated that
approval of the license termination plan should not require an
amendment or opportunity for a hearing. They believe that if the plan
is made available for public comment, existing regulations provide
ample opportunity for public participation and the AEA does not require
a hearing. Another commenter noted that once the spent fuel is off the
site, the hazard is reduced so there is no safety, technical, or legal
basis for NRC approval of a detailed decommissioning plan or PSDAR. A
commenter pointed out that the use of the proposed Sec. 50.59, which
includes the four criteria (Sec. 50.59(e)), addresses the unique
circumstances associated with the decommissioning activities. If some
activities do not satisfy the requirements of Sec. 50.59 and a license
amendment is required, interested parties would have an opportunity to
request a hearing. The approval of the plan by amendment and the
opportunity for a hearing are not for reasons of health and safety;
moreover, any interested party could always petition for a hearing
under Sec. 2.206. Another commenter made similar comments and went even
further in stating that if standards for radioactive release are clear,
meeting the objective of terminating the license should be easily
demonstrated without the need for approval of a plan or license
amendment; and that the plan should be available to the NRC for
information only.
Response. The requirement for submittal of a termination plan is
retained in the final rule because the NRC must make decisions,
required in the current rule on the decommissioning plan, regarding (1)
the licensee's plan for assuring that adequate funds will be available
for final site release; (2) radiation release criteria for license
termination, and (3) adequacy of the final survey required to verify
that these release criteria have been met. A public meeting is
considered necessary at the license termination stage to inform the
public about the licensee's proposed termination activities and to
provide an opportunity for public comment on those proposed activities.
The NRC has also made the determination that license termination is an
action of sufficient significance as to warrant an opportunity for a
public hearing on NRC's decision regarding the licensee's proposed
termination activities.
Specific comments concerning the license termination plan were
provided by several commenters.
Comment a. The timing of the license termination plan is not
explicit in the proposed rule, Sec. 50.82(a)(8), and it is not clear
whether the rule permits dismantlement activities before submittal or
approval of the license termination plan.
Response. The final rule permits dismantlement activities 90 days
after PSDAR submittal unless the NRC interposes an objection. The
license termination plan must be submitted within 2 years of the
licensee's expected date of license termination (the date specified in
the PSDAR or supplement).
Comment b. The NRC does not explain or support the need for the
elements of the plan, discussed in proposed Sec. 50.82(a)(8)(ii) (A)-
(G). The current rule, under Sec. 50.82(d), simply requires updated,
detailed plans before the start of decommissioning.
Response. The final rule permits major decommissioning activities
(dismantlement) to be performed using the Sec. 50.59 process. Because a
decommissioning plan is no longer required, the requirements for the
license termination plan are less complex than those that are currently
required for a decommissioning plan. The license termination plan
provides documentation on the remaining activities necessary to
terminate the license and includes consideration of remediation aspects
that could involve license termination under either unrestricted or
restricted release conditions (once the rulemaking on acceptable
residual release criteria is final). The site characterization,
description of the remaining dismantlement activities and plans for
site remediation are necessary for the NRC to be sure that the licensee
will have adequate funds to complete decommissioning and that the
appropriate actions will be completed by the licensee to ensure that
the public health and safety will be protected. The language of
Sec. 50.82(8)(a)(ii) (B) and (F) in the proposed rule, now
Sec. 50.82(a)(9)(ii) (B) and (F) in the final rule, has been changed to
more clearly reflect the intent of these requirements. Thus, element
(A) now requires identification of remaining dismantlement activities,
and element (F) now requires an updated site-specific estimate of
remaining decommissioning costs.
Comment c. One commenter questioned how multiple sites will be
addressed. Another commenter stated that a single license termination
plan should be encouraged for multi-reactor sites.
Response. Reactors at a multi-reactor site are individually
licensed and licensing actions are applied to the individual licenses.
A licensee would not be prohibited from submitting a single license
termination plan for the multi-reactor site, but the NRC would address
terminating each license separately.
Issue 11--License Termination: Additional comments.
Comment. A commenter stated that the need for a hearing when the
licensee submits the license termination plan for approval should be
reconsidered. If the licensee meets the requirements of the termination
plan and applicable regulations, there would be no issues to
adjudicate. Another commenter stated that, concerning the subpart L
proceedings, the NRC should issue a clear statement of policy to
eliminate the potential for significant litigation. Several commenters
stated that if subpart L is to be used for hearings, it appears
necessary to change the title of subpart L to include Part 50
licensees. Finally, a commenter stated that the applicability of
Subpart L hearings should be incorporated into Sec. 2.700 as well as
Sec. 2.1201.
Response. With respect to the termination plan, the Commission
recognizes that ongoing rulemaking proceedings may result in
establishing criteria for the restricted release of sites. Even if a
hearing is not legally mandated at the termination stage as argued by
some commenters, the Commission views it as appropriate to use the
amendment process for approval of termination plans, including the
associated opportunity for a hearing, to allow public participation on
the specific actions required for license termination. In particular,
the Commission has determined that, if a hearing is requested on the
termination plan, the hearing must be completed before release of the
site. This action will help ensure meaningful public input on any
proposal for restricted release of the site. Given that a lengthy
period (up to 60 years) may pass between the PSDAR stage and the
termination stage, and given that final release criteria are still
being developed that may include restricted release of a site, the
Commission views a license amendment process as appropriate, along with
the associated opportunity for a hearing, whether or not such hearings
are mandated by legislation. Finally, the changes proposed by the
commenters concerning the change of title of subpart L to include part
50 licensees and the incorporation of
[[Page 39290]]
subpart L applicability into Secs. 2.700 and 2.1201 are unnecessary
because the rule already addresses these considerations.
Comment. Many commenters expressed confusion on when a subpart L or
subpart G hearing would be appropriate. One commenter noted that once
fuel is out of the reactor vessel and in dry storage, there is no
difference between storage on or off site and that reference to the
subpart G hearing should be deleted. Another commenter wanted a
clarification of what is meant by removing fuel from the site (i.e.,
under a part 72 license). Another commenter suggested that the wording
to Sec. 2.1201(a)(3) be clarified concerning permanent removal of fuel
from the site to an authorized facility. One commenter inquired as to
whether a license could be terminated if the licensee removed the fuel
to an onsite ISFSI.
Response. The final rule clearly indicates that once the fuel is
removed from the licensed part 50 facility the power reactor facility
can be treated as a materials facility where a subpart L hearing is
appropriate. If fuel remains at the facility, a subpart G hearing is
appropriate. If the fuel is in an ISFSI, that part of the affected site
is regulated under a part 72 license and would no longer be regulated
under the part 50 license. The wording in Sec. 2.1201(a)(3) has been
changed to ``removal of fuel from the part 50 facility,'' rather than
``from the site,'' and means either removal offsite to an authorized
facility or to an onsite facility (ISFSI) not under the part 50
license.
Comment. Many commenters did not see the need for an environmental
review at the license termination stage, and one suggested that it be
considered a categorical exclusion. Another commenter stated that if
there were to be an environmental review, its scope should be
restricted to whether the licensee's controls and methods for
mitigation of radiation will meet the standards adopted in Sec. 20.1405
of the proposed residual radiation criteria rule.
Response. At the license termination stage, an environmental
assessment or impact statement will be required when the license is
amended. Following resolution of another ongoing NRC rulemaking
activity that is considering adoption of radiological release criteria,
a categorical exclusion may be adopted that would eliminate the
requirement for an environmental assessment or impact analysis, except
in the case of a restricted release of a site.
Comment. A few comments addressed proposed changes to Sec. 51.53
concerning requirements for environmental impact considerations. One
commenter stated that the first sentence of the first paragraph of
Sec. 51.53(b) should be deleted to be consistent with the concept that
``a license amendment authorizing decommissioning activities'' is no
longer required. Revised wording should begin with ``each applicant for
a license amendment approving a license termination plan or
decommissioning plan.'' Another commenter stated that Sec. 51.53 should
be revised to reflect the fact that the proposed rule, if adopted,
would not require an amendment that authorizes the conduct of
decommissioning activities, because neither the existing nor the
proposed decommissioning process requires a license amendment to
approve a decommissioning plan. Therefore the first paragraph of this
section should be reworded as ``[E]ach applicant for license
termination upon submittal of the license termination plan under
Sec. 50.82 of this chapter either for unrestricted use or based on
continuing use restrictions applicable to the site, * * * shall submit
* * *'' A similar change was stated to be needed in Sec. 51.95 for the
same reasons. Finally, a commenter noted that Sec. 51.53(b) as well as
Sec. 51.95(b) refer to ``applicants * * * for a utilization facility,''
which does not seem to be an element of the proposed rule and should be
deleted; also, Sec. 51.95(b) does not mention approval of a license
amendment for license termination or a decommissioning plan, which is
an omission and should be consistent with Sec. 51.53(b).
Response. No change was made to this section because the non-power
reactor facilities are still required to submit a decommissioning plan.
For non-power reactors, the current rule remains essentially unchanged
and requires submittal of a decommissioning plan that is approved
through license amendment. The non-power reactor licensee must also
submit an appropriate supplemental environmental report and the NRC
must do an EA as part of the decommissioning plan approval process.
Comment. Most of the commenters who were not in favor of the rule
supported the license termination phase requirements but believe that
these requirements were not timely and should be implemented in some
manner at the initiation phase of decommissioning.
Response. During the initial phase of decommissioning, the
requirements in the final rule are designed to provide oversight
commensurate with the level of safety concerns experienced in
decommissioning, while providing additional opportunity for public
comment on the licensee's proposed activities. The final rule
requirements are based on NRC's experience with licensees' use of the
Sec. 50.59 process during operations and consideration of the types of
activities that licensees would undertake during the decommissioning
process. Where appropriate, licensing requirements are continued
through decommissioning and the NRC is informed of each licensee's
planned decommissioning activities. (Additional discussion can be found
in the response to Comment 5).
Issue 12--Regulatory Guides.
Comment. Several commenters requested regulatory guidance in the
form of regulatory guides. These requests pertained to a standard
format and content for the PSDAR and license termination plan as well
as to transition guidance for licensees who are shut down and choose to
adopt the new process. Additional guidance was also requested for a
regulatory guide that dealt with the decommissioning process, such as a
revision to Regulatory Guide 1.86, ``Termination of Operating Licenses
for Nuclear Reactors,'' that would include such topics as the objective
and implementation aspects of public meeting and hearings, guidance on
issues the NRC would consider in not giving negative consent approval
to the PSDAR after the 90-day waiting period, guidance on
interpretation and development of technical rule requirements, and
guidance, on the particulars of ``grandfathering.'' Additionally,
several commenters requested additional financial guidance, through a
regulatory guide, on the development and use of the decommissioning
trust fund.
Response. The NRC intends to issue regulatory guidance on the
initial phase of decommissioning. Guidance on the standard format and
content of the PSDAR will be issued after the final rule is published.
Other guidance on the license termination phase is also being
developed.
Issue 13--Elimination of the Possession-only License Amendment
(POLA).
Comment. Generally, commenters in favor of the rule agreed with
eliminating the POLA. Objections to POLA elimination from other
commenters were that distinct categories between reactor operation and
cessation of operation should be maintained and that eliminating the
POLA process would eliminate a hearing opportunity prior to reactor
decommissioning. Reflecting the views of many commenters against POLA
elimination, a State commenter said that by deleting
[[Page 39291]]
the POLA the NRC would eliminate the amendment process that expressly
provides for State consultation (Sec. 50.91(b)) and that no subpart G
hearing process would occur that would allow for discovery by parties
to the proceeding and provide a mechanism for intervention. The State
commenter held that the proposed rule delays the need for amendment to
the license termination stage when it is too late; it is needed before
major decommissioning activities are undertaken. Moreover, at the
license termination stage, only a subpart L hearing is proposed (no
discovery). Finally, a few commenters asked why non-power reactors,
which are less hazardous facilities (smaller and less contaminated),
can still request a POLA and still require decommissioning plan
approval while power reactors no longer have this option or
requirement.
Response. If fuel is removed from the licensed part 50 facility,
the activities undertaken during decommissioning are more like the
kinds of activities undertaken at a typical materials facility where
the subpart L process applies. The final rule requires that certain
procedures be satisfied before a licensee can perform major
decommissioning activities. These procedures include requiring a PSDAR
submittal, conducting a public meeting, and allowing a specified time
period for NRC review of the licensee's intended actions. Other final
rule requirements prohibit the licensee from performing any major
decommissioning activity that could result in significant environmental
impacts not previously reviewed or foreclose the release of the site
for unrestricted use. Written notification to the NRC is required for
licensee decommissioning activities that are inconsistent with those
described in the PSDAR, including significant changes in
decommissioning costs. Finally, the final rule extends certain
regulatory requirements to decommissioning. Thus, licensee activities
that would require approval under a POLA are no longer necessary. The
affected State(s) will be notified about the public information meeting
as well as consulted on the licensee's planned decommissioning
activities by the NRC prior to the public meeting. The final rule
requires that a copy of the PSDAR and any written notification of
inconsistent PSDAR activities be sent to the affected State(s). In
response to the comment concerning why non-power reactors are still
given the option of submitting a POLA and still require a
decommissioning plan, it is noted that such reactors are required to
immediately dismantle, except for extenuating circumstances, and are
not permitted a storage period (because there is no significant health,
safety or environmental reason for delay--see FGEIS, NUREG 0586).\1\
Issue 14--``Grandfathering'' Considerations.
Comment. There were several commenters who were concerned that the
proposed rule did not significantly address nor provide necessary
guidance for ``grandfathering'' issues. Specific comments in this area
were that recognition should be given to those plants whose
decommissioning plans have been approved on a case-by-case basis; that
if existing facilities are grandfathered from any part of the proposed
rule, it should clearly identify this; that the proposed rule does not
adequately implement the grandfathering option because the current
Sec. 50.82 would disappear from the rule and no explicit provisions
would exist to rely on. It is suggested that the NRC keep the old
provision as well as an applicable alternative and; that for
grandfathering, an implementation provision should be added to the rule
in a fashion similar to Sec. 20.1008. Several commenters also noted
that guidance needs to be given to those licensees who are in various
aspects of decommissioning based on the current rule requirements and
wish to switch to the proposed rule requirements.
Response. The Commission has reconsidered the issue of
``grandfathering'' and modified the language in the final rule to
provide more specific guidance for nuclear power reactor licensees
whose facilities are currently at certain stages of decommissioning.
The Commission has decided to eliminate the provision in the proposed
rule that would give those licensees that have an NRC approved
decommissioning plan, before the date when a final rule became
effective, the option of either complying with the final rule
requirements or continuing with the requirements of the currently
existing rule. All licensees will be required to comply with the
decommissioning procedures specified in the provisions of the final
rule, when it becomes effective. The final rule addresses the process
for converting from the existing rule requirements to those in the
final rule for those nuclear power reactor licensees whose facilities
are already at certain stages of decommissioning.
For power reactor licensees who, before the effective date of this
final rule, either submitted a decommissioning plan for approval or
possess an approved plan, the plan will be considered as the PSDAR
submittal and the licensee will be required to perform decommissioning
in conformance with these final rule requirements. However, for power
reactor licensees who are involved in subpart G hearings of 10 CFR part
2, conversion to the new rule will not be permitted until the hearing
process is completed. The public meeting and 90-day hold on
decommissioning activities required in Sec. 50.82(a) (4)(ii) and (5)
will not apply. Those licensees will be subject to any orders arising
from these subpart G hearings, absent any orders from the Commission.
For nuclear power reactor facility licensees whose licenses have
been modified, before the effective date of this rule, to allow
possession but not operation of the facility, the certifications
required in Sec. 50.82(a)(1) will be considered to have been submitted.
With regard to extending current rule requirements for
``grandfathering'' considerations, no current rule requirements need be
retained because the ``grandfathering'' provision in the proposed rule
has been eliminated in the final rule. The final rule covers conversion
from the existing requirements for approval of a submitted or approved
decommissioning plan, as described above, and is specific to existing
licensee decommissioning plan situations.
Issue 15--Miscellaneous Comments.
Comment. Several commenters stated that the backfit rule,
Sec. 50.109, should apply to decommissioning because a proper reading
of the intent of that rule should cover rulemaking dealing with
decommissioning. Otherwise, additional requirements could be imposed
without a benefit cost analysis.
Response. The Commission has concluded that the provisions
addressed in this rulemaking do not involve a backfit because they
address only reactors that have permanently ceased operations and
Sec. 50.109 only applies to design, construction and operation of a
facility. These regulations are primarily procedural in nature and, to
the extent they address nonprocedural matters, they are a codification
of existing process.
Comment. A few commenters noted that the regulatory analysis for
the proposed rule did not evaluate the alternatives to the proposed new
regulatory requirements and existing requirements do not require a
license termination plan or a license amendment to approve a license
termination plan. The regulatory
[[Page 39292]]
analysis does not accomplish the objective of ensuring that all
regulatory burdens are needed, justified, and minimal.
Response. The regulatory analysis did evaluate the alternatives to
the proposed new regulatory requirements. The license termination plan
is not a new requirement because, under the existing rule, licensees
are required to submit a proposed decommissioning plan for approval
within 2 years of permanent shutdown. Currently, licensees who plan to
delay decommissioning by including a period of storage must submit a
final decommissioning plan for approval before starting
decommissioning. Current NRC policy is to approve the decommissioning
plan by license amendment. Because the proposed rule would permit the
licensee use of the Sec. 50.59 process to perform major dismantlement
activities, the license termination plan is less complex than a
decommissioning plan and covers the remainder of activities requiring
completion to terminate the license, other than dismantlement
activities. The changes adopted in the rulemaking primarily provide
additional flexibility to licensees that reduces burden without
reducing safety by allowing licensees to undertake the majority of
decommissioning activities without first obtaining NRC approval.
Comment. Several commenters wanted the option of entombment to be
allowed because restricted release will be allowed when the residual
radiation criteria rule is final. Aside from the difficulty of
disposal, the money not spent on LLW burial is substantial. The
interest on this money would be more than adequate to provide for the
maintenance and surveillance required for the entombment option. The
public, including local communities, may be interested in not
transporting waste across state boundaries and in keeping funds that
would otherwise be spent on disposal within the community.
Response. The issue of entombment was not addressed in this rule.
The NRC position on entombment is the same as in the current rule.
Entombment would only be permitted for very special circumstances but
would involve a continued license on a case-by-case basis. The concept
of restricted release included in the proposed rule on residual
radiation criteria would involve termination of the license with
restrictions in place to limit the use of the facility by the public,
but certain radiological criteria for restricted release would have to
be met.
Comment. Several individual commenters wanted to know whether NRC
rules allow the optional period of storage of the reactor facility to
be longer than 60 years and does the 60-year completion date for
decommissioning specified in the current rule consider storage of fuel
in an ISFSI. One commenter stressed that spent fuel should not be
separated from any of the phases of decommissioning because this is a
piecemeal approach and inappropriate. Another commenter stated that the
licensee should be required to maintain capability to handle the fuel
for dry cask storage.
Response. The primary considerations of the proposed rule were
procedural, with emphasis on the issue of premature closure. Other
aspects of the existing rule were unchanged. A 60-year period for
completion of decommissioning is still imposed, subject to other
considerations delineated in the current rule requirements. The
existing rule, as well as the proposed rule, consider the storage and
maintenance of spent fuel as an operational consideration and provide
separate part 50 requirements for this purpose. Regarding maintaining
the capability to handle the fuel for dry cask storage, these
requirements are maintained in 10 CFR part 72.
Comment. Several commenters noted that the requirements of this
proposed rule and the proposed residual radiological criteria rule
should be coordinated to avoid redundancy.
Response. The two rules will be coordinated.
Comment. A few commenters noted that a complete site
characterization should be included at the initiation of
decommissioning activities and that mandatory site radiological surveys
should be required before issuing a new license to establish background
conditions.
Response. These considerations are being addressed during
finalization of the residual radiological criteria rule.
Comment. Finally, several commenters requested that the NRC
consider the impacts of the proposed ``safeguards for nuclear fuel or
high level radioactive waste'' rule (60 FR 42079; August 15, 1995)
(which affects parts 60, 72, 73, and 75) on this rule when that
proposed rule is issued in final form.
Response. This rule is primarily directed toward the procedural
requirements necessary for power reactor decommissionings. Therefore,
the requirements imposed by this rule can be treated independently from
the other ``safeguards'' rule under development. That rule, when final,
may modify some of the technical requirements imposed by this final
rule.
Resolution of Comments on the Draft Policy Statement
On February 3, 1994 (59 FR 5216), the NRC published in the Federal
Register a draft policy statement and accompanying criteria relating to
power reactor licensee use of decommissioning trust funds before NRC
approval of licensees' decommissioning plans. The proposed rulemaking
to amend the procedural aspects of decommissioning (60 FR 2210; July
20, 1995) codified the position embodied in the draft policy statement.
Based on the NRC's resolution of comments on the proposed rule and
incorporated into this final rule, the criteria in the draft policy
statement have been modified. No final policy statement will be issued.
Other changes in the final rule pertaining to licensee use of
decommissioning trust funds were discussed earlier in the section on
Response to Comments.
The NRC received comments on the draft policy statement from the
following individuals or organizations:
1. Michigan Department of Commerce
2. Citizens Awareness Network
3. Mary P. Sinclair
4. Detroit Edison Company
5. Committee for a Safe Energy Future
6. Jon Block
7. Nuclear Energy Institute
8. Yankee Atomic Electric Company
9. Virginia Power Company
10. New England Coalition on Nuclear Pollution
11. Winston & Strawn
12. Consolidated Edison Company
13. Maryland Department of the Environment
14. TU Electric Company
The public interest group, individual commenters, and one State
oppose allowing any withdrawals from decommissioning trust funds before
the NRC approves a licensee's decommissioning plan, a procedure that
this final rule has discontinued. The other commenters generally
supported the draft policy statement, although they disagreed with
certain provisions or took issue with the need for it. Specific
comments and observations, and the NRC analysis of and response to
them, are discussed below.
Specific Comments
Comment 1. The trust agreements may need to be modified to include
low-level radioactive waste storage and disposal (LLW) and interim
spent fuel storage as allowable decommissioning costs when these costs
are incurred as part of additional, temporary facilities at particular
sites. LLW disposal costs, in particular, should be able to be paid
from the decommissioning waste fund
[[Page 39293]]
without waiting 60 days for NRC approval. Provisions should be included
for decommissioning nonradioactive structures associated with the
reactor (Commenters 1 and 4).
Response. The policy statement and this rule were not intended to
address this issue. This issue is being addressed separately (see SECY
95-223; September 1, 1995). As provided in 10 CFR 50.75, financial
assurance for decommissioning includes the cost of disposal of LLW
associated with reactor decommissioning. If a temporary facility is
built to store LLW under the Part 50 reactor license, the trust
agreement should have been structured to include these costs. Although
the NRC definition of decommissioning excludes interim storage of spent
reactor fuel, a licensee is required to provide for the cost of interim
spent fuel storage under 10 CFR 50.54(bb).
With respect to the issue of waiving the 60-day NRC approval period
for withdrawals to pay for LLW shipments, this final rule eliminates
the procedure to which this comment referred.
Comment 2. The NRC should not allow decommissioning trust fund
withdrawals before an environmental assessment is performed while the
reactor licensee has a possession-only license because: (1) It will
allow large-scale decommissioning activities without a resident NRC
inspector on-site during the removal of irradiated components; (2) it
is inconsistent with the mandate of the NRC, which is to implement a
submitted, reviewed, publicly evaluated, and approved decommissioning
plan before large-scale decommissioning activities begin; (3) health
and safety of the workers and the public can not be adequately served
by the experimental process of the component removal process, and (4)
existing NRC regulations state that a licensee may only conduct limited
activities prior to approval of the decommissioning plan (e.g.,
decontamination, minor component disassembly, shipment and storage of
spent fuel). Reasonable interpretation of the rules does not require
expansion of 10 CFR 50.59 and/or activities permitted under a license
(Commenters 2, 3, 5, 6, and 10).
There could be insufficient financial resources remaining to
decommission Nuclear Power Plants thus, creating a potential burden
on the State and, serious impairment of radioactive material
licensee's ability to complete decommissioning. Most existing
decommissioning `certifications and funding plans' are generally
acknowledged by the NRC to already be severely UNDERFUNDED. This
rule would exacerbate that situation (Commenter 13).
Response. This final rule addresses the process that licensees are
to use for post-shutdown decommissioning activities, as well as the
limits on the amounts to be withdrawn from decommissioning trust funds.
By permitting a licensee to perform certain decommissioning
activities and to withdraw funds for those activities through use of
the PSDAR submittal process required in the final rule will allow the
licensee to reduce its overall decommissioning costs by taking
advantage of lower low-level radioactive waste disposal costs. This
will benefit the licensee and its ratepayers without adversely
affecting public health and safety.
Comment 3. The NRC should develop a similar policy for operating
plants and should allow licensees to withdraw decommissioning trust
funds to dispose of structures and equipment no longer being used for
operating plants (Commenters 7, 8 (by reference), and 14).
Footnote 2 of the policy statement should be revised to clarify
that the policy statement does not apply ``to licensee withdrawals from
decommissioning funds for operating plants'' rather than stating that
the policy statement does not apply ``to licensees with operating
nuclear reactors'' (Commenter 11).
Response. The NRC has concluded that allowing decommissioning trust
fund withdrawals for disposals by nuclear power plants that continue to
operate is not warranted. These activities are more appropriately
considered operating activities and should be financed in that way.
Footnote 2 is not included in this final rule.
Comment 4. The policy statement may become obsolete if the NRC
adopts a new definition of decommissioning as proposed on February 2,
1994 (59 FR 4868). This definition states, ``Decommissioning means to
remove a facility or site safely from service and reduce residual
radioactivity to a level that permits use of the property for
unrestricted use and termination of the license, or (2) release of the
property under restricted conditions and termination of the license.''
To avoid obsolescence of the policy statement as a result of changes in
the definition of decommissioning, the commenters recommend replacing
all references to release of the site for unrestricted use with
``decommissioning of the site consistent with the definition in
Sec. 50.2'' (Commenters 7, 8 (by reference), and 11).
Response. The NRC agrees with this recommendation and has changed
this final rule accordingly.
Comment 5. Two commenters disagree with a statement in the draft
policy statement, ``If a licensee of a permanently shut down facility
spends decommissioning trust funds on legitimate decommissioning
activities, the timing of these expenditures, either before or after
NRC approves a licensee's decommissioning plan, should not adversely
affect public health and safety, provided adequate funds are maintained
to restore the facility to a safe storage configuration in case
decommissioning activities are interrupted unexpectedly'' (Commenter
7's emphasis). The commenters state that maintaining a viable SAFSTOR
option beyond plan approval should not be required for cases where
another option has been approved by NRC (Commenters 7 and 8).
The draft policy statement misuses the term ``SAFSTOR'' to mean
maintenance of a site in a safe storage condition prior to receipt of
Decommissioning Plan approval and commencement of decommissioning
rather than a specific decommissioning alternative defined in NRC
regulations (Commenters 11 and 14).
Response. Commenter 7 has misinterpreted the intent of this
statement. First, this part of the policy statement was drafted to make
the point that any expenditures for decommissioning activities normally
viewed as necessary would not be detrimental to public health and
safety, notwithstanding the timing of these expenditures, unless they
were large enough to prevent the licensee from returning its facility
to a safe storage configuration if the decommissioning process were to
go awry. This is not the same as requiring a licensee to switch from
DECON (immediate dismantlement) to SAFSTOR after the NRC has approved
the licensee's decommissioning plan.
This final rule modifies use of the above-referenced criterion for
decommissioning trust fund withdrawals. However, the rule corrects any
references to SAFSTOR when it means to address the general ability of a
licensee to return its reactor to safe storage while awaiting further
decommissioning.
Comment 6. Criterion 4 is redundant of the other criteria
(Commenters 7 and 8). At a minimum, the statement should indicate that
items (c) and (d) of criterion 4 do not require NRC approval before a
licensee undertakes the proposed activities (Commenter 8). Redundancies
can be eliminated by
[[Page 39294]]
factoring the first three criteria into criterion 4. However, issuance
of the policy statement based on criterion 4 (or the other criteria) is
premature in that the NRC is currently considering more definitive
guidance on acceptable pre-plan-approval decommissioning activities
(Commenter 11).
Response. The NRC agrees that some confusion may have arisen by
including criterion 4 in the policy statement. The NRC included this
criterion to provide guidance on the allowed decommissioning activities
as opposed to the use of decommissioning trust funds for those
activities. Criterion 4 is a quote from Commission guidance in the SRM
of January 14, 1993, and, to some degree, overlaps the other criteria
of the policy statement. The NRC has removed criterion 4 as a separate
criterion in this final rule.
Comment 7. The ``ancillary issue'' in the draft policy statement
should be expanded to include a number of expenses that are paid out of
decommissioning trusts by operating plants well in advance of licensee
preparation and submission of the decommissioning plan. These expenses
include, but are not limited to, trust fees, investment manager fees,
income taxes, and periodic site-specific studies (Commenters 7, 8 (by
reference), 11, and 14).
The policy statement should be revised to state specifically that
if a licensee determines that it meets the criteria for de minimis
withdrawals, it need not request permission from the NRC to use these
funds (Commenter 8).
* * * The section dealing with `de minimis' withdrawals for
developing the decommissioning plan also seems to be outside the
original intent for use of these funds. These withdrawals may seem
to be a minor portion of funds allocated for decommissioning, but it
starts a process that would allow utilities to tap these funds, if
they can fit activities into the definition of decommissioning or
simply request to use these funds for other purposes * * * Other
uses are unacceptable, even if they are subject to prior regulator
approval (Commenter 13).
Response. The intent of the ancillary issue was to allow de minimis
withdrawals from decommissioning trust funds of up to $5 million for
decommissioning-related administrative and other expenses without prior
NRC consent notwithstanding the operating status of the plant. The
final rule has changed this withdrawal amount to up to 3 percent of the
generic amount specified in Sec. 50.75(c). This withdrawal amount is
for purposes of planning for decommissioning (paper studies) and
pertains to licensees of operating as well as permanently shut down
plants. Permission from the NRC to use these funds in de minimis
amounts is unnecessary as long as the amount and purpose of the
withdrawal is documented.
With respect to Commenter 13's concerns, the NRC has specified a
maximum limit for de minimis withdrawals. If a licensee were to exceed
this limit or use funds for non-decommissioning purposes, it would be
subject to NRC enforcement action.
Comment 8. ``* * * The NRC has neither articulated the reasons why
this detailed level of oversight (discussed in the policy statement) is
needed, nor has the NRC provided specific examples of potential waste
and misuse of funds that would warrant their proposed oversight * * *
Absent an appropriate justification for the implementation of this
policy statement, * * * this policy statement represents regulation
without benefit (and that NRC concerns expressed in the policy
statement) are not tangible for decommissioning.'' Thus, the policy
statement should not be issued (Commenter 9).
Also, ``the draft policy statement provides no basis for the NRC's
conclusion that prior NRC review of pre-plan-approval decommissioning
fund expenditures should be required.'' The draft policy statement may
satisfy the Commission's directive to the NRC staff to develop a policy
without including an approval mechanism (Commenter 11).
The draft policy statement is not clear as to the purpose of the
NRC review of decommissioning expenditures before decommissioning plan
approval. The only reason for the review, given in the statement of
policy, is to ensure the health and safety of the general public. There
are other regulatory mechanisms for evaluating the activity for which
the funds are withdrawn without reviewing the actual withdrawal from
the fund. The expenditure of decommissioning trust funds for legitimate
decommissioning activities is an economic and not a safety concern
(Commenter 14).
Response. Although the NRC did not include specific examples of
waste and misuse of funds in the policy statement, as with any
industrial process, costly mistakes can conceivably occur in
decommissioning. The NRC also disagrees that codifying decommissioning
trust fund withdrawals represents regulation without benefit. The NRC
has specifically promulgated decommissioning requirements in 10 CFR
50.82 that include licensee PSDAR submittal process that is intended
for keeping the NRC and public informed of the licensee's planned
decommissioning activities. The intent of the regulations is to require
licensees to maintain the entire amount of funds needed for
decommissioning in a specified assurance mechanism until the funds are
used for their intended decommissioning activities.
The PSDAR is closely tied to a licensee's provision of assurance to
fund the decommissioning activities adequately. Without any NRC
criteria for expenditures before the PSDAR submittal process is
completed, the decommissioning trust fund could become a shell and thus
defeat the purpose of NRC decommissioning funding assurance
regulations. Because of the safety implications of inadequate
decommissioning funds, the NRC believes it has responsibility for
specifying withdrawal rates, notwithstanding the reviews that rate
regulators may perform.
Comment 9. Trust fund withdrawals should also be permitted for
early decommissioning-related activities that, although not themselves
directly reducing radioactivity at the site, will significantly
facilitate such activities when they subsequently occur (Commenters 11
and 12).
Response. In this final rule, withdrawals for planning activities
are allowed before completion of the PSDAR process.
Comment 10. The NRC should clarify footnote 2 to indicate that it
applies to licensees of multi-unit sites. ``So long as usage of trust
withdrawals is identifiable with the shut down reactor and does not
diminish decontamination funding subsequently available for reactors
which are continuing to operate, there is no reason why multi-reactor
licensees should be treated differently than single-reactor licensees
for purposes of this policy statement'' (Commenter 12).
Response. The NRC agrees with this statement. However, footnote 2
is not included in this final rule.
Comment 11. ``If the NRC believes that NRC review and approval of
pre-plan-approval decommissioning expenditures is necessary, it should
act through rulemaking rather than policy * * * Since prior NRC review
of decommissioning fund withdrawals is not currently required, if the
NRC wishes to impose such a requirement, it should initiate rulemaking
to revise its decommissioning regulations accordingly'' (Commenter 11).
Response. This final rule codifies criteria for decommissioning
trust fund withdrawals. Thus, this commenter's concerns have been
addressed.
[[Page 39295]]
Comment 12. ``The `tacit consent' approach for reviewing licensee
expenditure plans is inappropriate'' and unsupported by the reasons the
NRC stated for its policy. By expressly preserving the possibility that
it would take action to prevent a fund withdrawal, the NRC blurs its
asserted distinction between review and approval. Also, it is not clear
that ``tacit consent'' and ``approval'' are legally distinguishable for
purposes of determining whether the NRC is engaged in a ``licensing
action'' that could involve public participation and environmental
review (Commenter 11).
Response. The NRC does not use ``tacit consent'' in this final
rule. Thus, the concerns expressed in this comment should be assuaged.
Comment 13. ``Criterion 1 * * * should be revised to eliminate the
provision that withdrawals must be for activities `that would
necessarily occur under most reasonable decommissioning scenarios.'''
This phrase adds nothing to the preceding provision that the withdrawal
must be for ``legitimate decommissioning activities.'' Because
licensees may face decommissioning expenditures for activities that are
within the NRC's definition of decommissioning but nonetheless unique
to their plant(s), the proposed provision is inappropriately
restrictive (Commenter 11).
Criterion 1 is overly restrictive and burdensome * * * If the
NRC wants to prevent activities that preclude release of the site
for (un)restricted use or are not in support of decommissioning
efforts it should require review of the activity itself through any
of the other available mechanisms such as 10 CFR 50.59 or special
rulemaking * * * The basic premise is that in the event that there
are circumstances or conditions which delay or preclude proceeding
with the decommissioning effort there will be funds available to
place the plant in a storage condition until the event or
circumstance is resolved. Thus, as long as the value of the fund
does not fall below the regulatory required amount in effect at the
time of the request the withdrawal should be allowed. Thus, the only
requirement should be that the utility document that [the] activity
was a legitimate decommissioning activity and the expenditure was
reasonable (Commenter 14).
Response. The NRC did not mean to imply that decommissioning
activities unique to one site would not be eligible for early trust
fund withdrawals. However, because we agree that the phrase,
``legitimate decommissioning activities,'' is sufficient, the NRC has
eliminated the phrase from this final rule.
Comment 14. ``* * * The explicit characterization as a
decommissioning `contingency' of the funding `necessary to maintain the
status quo' could be construed inappropriately to require that
licensees include funding for that purpose in their decommissioning
funds * * * If this criterion is retained, the language regarding
provisions for this contingency should be deleted from the policy
statement'' (Commenter 11).
Response. This terminology has been eliminated in this final rule.
Comment 15. ``It does not seem necessary that NRC approve requests
for the `withdrawal of decommissioning funds for early equipment
removal, prior to approval of the utilities['] decommissioning plans.
This does not seem in concert with the intent of the sample statement
under Background `* * * the fund trustee should only release funds upon
certification that decommissioning is proceeding pursuant to an NRC-
approved plan' '' (Commenter 13).
Response. This final rule does not continue the language in
question.
Comment 16. ``* * * This ruling may be judged as an item of
Compatibility (for Agreement States). Because Maryland regulations,
policies, etc., are expected to closely follow Federal rules and
procedures, we would be forced to adopt and allow our licensees to use
the same principle'' (Commenter 13).
Response. The NRC does not believe that this is an issue of State
compatibility because this final rule only applies to power reactor
licensees, which are exclusively NRC licensees.
Summary of Changes in the Final Rule
Based on the response to comments, a few changes were made in the
final rule. Otherwise, the final rule provisions are the same as those
presented in the ``background'' section under the section titled
proposed amendments. Specific changes made to the proposed rule in the
final rule are summarized as follows:
(1) Section 50.2. The definition of ``major radioactive
components'' has been clarified.
(2) Section 50.36a(a)(1). The amendment has been changed to exclude
systems that are no longer necessary for compliance.
(3) Section 50.59. Proposed Sec. 50.59(e) was eliminated. However,
three of the proposed rule requirements contained in Sec. 50.59(e) were
moved to Sec. 50.82(a) (6) and (7). Placing these requirements in
Sec. 50.82 as overall constraints, rather than specific requirements
for each Sec. 50.59 activity, required modification of the constraint
that the decommissioning activities not result in significantly
increasing decommissioning costs. Thus, the final rule
(Sec. 50.82(a)(6)(iii)) prohibits decommissioning activities that would
result in there no longer being reasonable assurance that adequate
funds will be available to complete decommissioning. In addition, the
final rule requires in Sec. 50.82(a)(7) that changes from those
specified in the PSDAR that would result in significantly increasing
decommissioning costs require written notification to the NRC. The
fourth requirement that the terms of the existing license not be
violated was eliminated. The requirement to consider environmental
impact in the PSDAR, Sec. 50.82(a)(4) was modified to explicitly
require the reasons for concluding that any environmental impacts will
be bounded by existing analysis.
(4) Section 50.71. Section 50.71(e)(4) was revised to permit
nuclear power reactor licensees that have submitted the certifications
required under Sec. 50.82(a)(1) to update the FSAR every 24-months.
(5) Sections 50.82(a)(4)(i) and (6). The licensee is required to
send a copy of the PSDAR and written notification of departure from the
PSDAR to the NRC and affected State(s).
(6) Section 50.82(a)(8)(ii). The phrase ``being permitted to use''
was removed from this section to avoid any incorrect interpretation
that the NRC must explicitly approve decommissioning funding
expenditures.
(7) Section 50.82. Specifies that once the rule is effective, all
power reactor licensees must comply with it. Power reactor licensees
that possess an approved plan as well as licensees that applied for
plan approval before the rule took effect would have the plan
considered a PSDAR submittal, and licensees would be permitted to
perform decommissioning activities in accordance with Sec. 50.82.
However, for power reactor licensees who are involved in subpart G
hearings of 10 CFR part 2, conversion to the new rule will not be
permitted until the hearing process is completed and those licensees
will be subject to any orders arising from these hearings absent any
orders from the Commission.
(8) Section 50.82(a)(1)(iii). Specifies that once the rule is
effective, power reactor licensees whose licenses have been modified,
before the effective date of this rule, to possess but not operate the
facility, will be considered to have submitted the certifications
required in Sec. 50.82(a)(1).
(9) To improve clarity, the first sentence in Sec. 2.1205(d)(1) has
been rewritten from that proposed to that found in the existing
regulation.
(10) To improve clarity and maintain parallelism of requirements,
the last
[[Page 39296]]
sentence of Sec. 51.53(b) has been rewritten from that found in the
proposed rule to correspond with the language found in Sec. 51.95(b) of
the proposed (and existing) rule.
(11) To improve clarity, Sec. 50.82(a)(9)(ii) (B) and (F) have been
rewritten.
Finding of No Significant Environmental Impact: Availability
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a
major Federal action significantly affecting the quality of the human
environment and therefore, an environmental impact statement is not
required. The final rule clarifies current decommissioning requirements
for nuclear power reactors in 10 CFR Part 50 and presents a more
efficient, uniform, and understandable process. The Commission has
analyzed the major environmental impacts associated with
decommissioning in the Generic Environmental Impact Statement (GEIS),
NUREG-0586, August 1988,\1\ published in conjunction with the
Commission's final decommissioning rule (53 FR 24018; June 27, 1988).
Insofar as this rule would allow major decommissioning
(dismantlement) to proceed without an environmental assessment, the
environmental impacts of this rule are within the scope of the prior
GEIS. The environmental assessment for the final rule and finding of no
significant impact on which this determination is based are available
for inspection and photocopying for a fee at the NRC Public Document
Room, 2120 L Street NW. (Lower Level), Washington, DC. Single copies of
the environmental assessment and the finding of no significant impact
are available from Carl Feldman, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, (301) 415-6194.
Paperwork Reduction Act Statement
This final rule amends information collection requirements that are
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). These requirements were approved by the Office of Management and
Budget, approval number 3150-0011.
Because the rule will relax existing information collection
requirements, the public burden for this collection of information is
expected to be decreased by 12,202 hours per licensee. This reduction
includes the time required for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed and
completing and reviewing the collection of information. Send comments
on any aspect of this collection of information, including suggestions
for further reducing this burden, to the Information and Records
Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission,
Washington, DC, 20555-0001, or by Internet electronic mail to
[email protected]; and to the Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202, (3150-0011), Office of Management and
Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Analysis
The NRC has prepared a regulatory analysis for this final rule. The
analysis qualitatively examines the costs and benefits of the
alternatives considered by the NRC. In the response to comments, the
NRC concluded that only some minor changes to the draft regulatory
analysis were necessary, corresponding to some minor procedural changes
in the final rule. The regulatory analysis is available for inspection
in the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC 20555-0001. Single copies of the analysis may be
obtained from Dr. Carl Feldman, Office of Nuclear Regulatory Research,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-6194.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
The final rule modifies requirements for timely decommissioning of
nuclear power plants. The companies that own these plants do not fall
within the scope of the definition of small entities as given in the
Regulatory Flexibility Act or the Small Business Size Standards
promulgated in regulations issued by the Small Business Administration
(13 CFR Part 121). This discussion constitutes the analysis for the
regulatory flexibility certification requirement.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs, OMB
Backfit Analysis
The Commission has determined that the backfit rule, 10 CFR 50.109,
does not apply to these final amendments, and therefore, a backfit
analysis has not been prepared for this rule. The scope of the backfit
provision in 10 CFR 50.109 is limited to construction and operation of
reactors. These final amendments would only apply to reactors that have
permanently ceased operations and, as such, would not constitute
backfits under 10 CFR 50.109.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 50
Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.
10 CFR Part 51
Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.
For reasons set out in the preamble and under the authority of the
Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of
1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the
following amendments to 10 CFR parts 2, 50, and 51.
PART 2-- RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409
[[Page 39297]]
(42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.
L. 97-425 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,
Pub. L. 91-190, 83 Stat 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued
under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83
Stat. 444, as amended (42 U.S.C. 2201(b), (i), (o), 2236, 2282);
sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also
issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42
U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780, also issued under 5 U.S.C. 557.
Section 2.764 and Table 1A of Appendix C also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553 and sec. 29, Pub. L. 85 256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560,
84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec.
10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et. seq.).
2. Section 2.1201, paragraph (a)(3) is added to read as follows:
Sec. 2.1201 Scope of subpart.
(a) * * *
(3) The amendment of a Part 50 license following permanent removal
of fuel from the Part 50 facility to an authorized facility for
licensees that have previously made declarations related to permanent
cessation of operations and permanent removal of fuel from the reactor
in accordance with Sec. 50.82(a)(1). Subpart L hearings for the license
termination plan amendment, if conducted, must be completed before
license termination.
* * * * *
3. Section 2.1203, paragraph (e) is revised to read as follows:
Sec. 2.1203 Docket; filing; service.
* * * * *
(e) A request for a hearing or petition for leave to intervene must
be served in accordance with Sec. 2.712 and Sec. 2.1205(f) and (R). All
other documents issued by the presiding officer or the Commission or
offered for filing are served in accordance with Sec. 2.712.
4. Section 2.1205, paragraphs (c) through (n) are redesignated as
paragraphs (d) through (o), a new paragraph (c) is added, and newly
designated paragraphs (d), (e)(2), (e)(4), the introductory text of
paragraph (h), (i), the introductory text of paragraph (j), the
introductory text of paragraph (k), (k)(3), the introductory text of
paragraphs (l)(1) and (l)(2) are revised to read as follows:
Sec. 2.1205 Request for a hearing; petition for leave to intervene.
* * * * *
(c) For amendments of Part 50 licenses under Sec. 2.1201(a)(3), a
notice of receipt of the application, with reference to the opportunity
for a hearing under the procedures set forth in this subpart, must be
published in the Federal Register at least 30 days prior to issuance of
the requested amendment by the Commission.
(d) A person, other than an applicant, shall file a request for a
hearing within--
(1) Thirty days of the agency's publication in the Federal Register
of a notice referring or relating to an application or the licensing
action requested by an application, which must include a reference to
the opportunity for a hearing under the procedures set forth in this
subpart. With respect to an amendment described in Sec. 2.1201(a)(3),
other than the one to terminate the license, the Commission, prior to
issuance of the requested amendment, will follow the procedures in
Sec. 50.91 and Sec. 50.92(c) to the extent necessary to make a
determination on whether the amendment involves a significant hazards
consideration. If the Commission finds there are significant hazards
considerations involved in the requested amendment, the amendment will
not be issued until any hearings under this paragraph are completed.
(2) If a Federal Register notice is not published in accordance
with paragraph (d)(1), the earliest of--
(i) Thirty days after the requester receives actual notice of a
pending application, or
(ii) Thirty days after the requester receives actual notice of an
agency action granting an application in whole or in part, or
(iii) One hundred and eighty days after agency action granting an
application in whole or in part.
(e) * * *
(2) How the interests may be affected by the results of the
proceeding, including the reasons why the requestor should be permitted
a hearing, with particular reference to the factors set out in
paragraph (h) of this section;
* * * * *
(4) The circumstances establishing that the request for a hearing
is timely in accordance with paragraph (d) of this section.
* * * * *
(h) In ruling on a request for a hearing filed under paragraph (d)
of this section, the presiding officer shall determine that the
specified areas of concern are germane to the subject matter of the
proceeding and that the petition is timely. The presiding officer also
shall determine that the requestor meets the judicial standards for
standing and shall consider, among other factors--
* * * * *
(i) If a hearing request filed under paragraph (b) of this section
is granted, the applicant and the NRC staff shall be parties to the
proceeding. If a hearing request filed under paragraph (c) or (d) of
this section is granted, the requestor shall be a party to the
proceeding along with the applicant and the NRC staff, if the NRC staff
chooses or is ordered to participate as a party in accordance with
Sec. 2.1213.
(j) If a request for hearing is granted and a notice of the kind
described in paragraph (d)(1) previously has not been published in the
Federal Register, a notice of hearing must be published in the Federal
Register stating--
* * * * *
(k) Any petition for leave to intervene must be filed within 30
days of the date of publication of the notice of hearing. The petition
must set forth the information required under paragraph (e) of this
section.
* * * * *
(3) Thereafter, the petition for leave to intervene must be ruled
upon by the presiding officer, taking into account the matters set
forth in paragraph (h) of this section.
* * * * *
(l)(1) A request for a hearing or a petition for leave to intervene
found by the presiding officer to be untimely under paragraph (d) or
(k) of this section will be entertained only upon determination by the
Commission or the presiding officer that the requestor or petitioner
has established that--
* * * * *
(2) If the request for a hearing on the petition for leave to
intervene is found to be untimely and the requestor or petitioner fails
to establish that it otherwise should be entertained on the paragraph
(l)(1) of this section, the request or petition will be treated as a
[[Page 39298]]
petition under Sec. 2.206 and referred for appropriate disposition.
* * * * *
5. Section 2.1211, paragraph (b) is revised to read as follows:
Sec. 2.1211 Participation by a person not a party.
* * * * *
(b) Within 30 days of an order granting a request for a hearing
made under Sec. 2.1205 (b)-(d) or, in instances when it is published,
within 30 days of notice of hearing issued under Sec. 2.1205(j), the
representative of the interested State, county, municipality, or an
agency thereof, may request an opportunity to participate in a
proceeding under this subpart. The request for an opportunity to
participate must state with reasonable specificity the requestor's
areas of concern about the licensing activity that is the subject
matter of the proceeding. Upon receipt of a request that is filed in
accordance with these time limits and that specifies the requestor's
areas of concern, the presiding officer shall afford the representative
a reasonable opportunity to make written and oral presentations in
accordance with S
FR Doc. 96-19031 Decommissioning of Nuclear Power Reactors
ecs. 2.1233 and 2.1235, without requiring the
representative to take a position with respect to the issues.
Participants under this subsection may notice an appeal of an initial
decision in accordance with Sec. 2.1253 with respect to any issue on
which they participate.
* * * * *
6. Section 2.1213 is revised to read as follows:
Sec. 2.1213 Role of the NRC staff.
If a hearing request is filed under Sec. 2.1205(b), the NRC staff
shall be a party to the proceeding. If a hearing request is filed under
Sec. 2.1205 (c) or (d), within 10 days of the designation of a
presiding officer pursuant to Sec. 2.1207, the NRC staff shall notify
the presiding officer whether or not the staff desires to participate
as a party to the adjudication. In addition, upon a determination by
the presiding officer that the resolution of any issue in the
proceeding would be aided materially by the staff's participation in
the proceeding as a party, the presiding officer may order or permit
the NRC staff to participate as a party with respect to that particular
issue.
7. Section 2.1233, paragraph (c) is revised to read as follows:
Sec. 2.1233 Written presentations; written questions.
* * * * *
(c) In a hearing initiated under Sec. 2.1205(d), the initial
written presentation of a party that requested a hearing or petitioned
for leave to intervene must describe in detail any deficiency or
omission in the license application, with references to any particular
section or portion of the application considered deficient, give a
detailed statement of reasons why any particular sections or portion is
deficient or why an omission is material, and describe in detail what
relief is sought with respect to each deficiency or omission.
* * * * *
8. Section 2.1263 is revised to read as follows:
Sec. 2.1263 Stays of NRC staff licensing actions or of decisions of a
presiding officer or the Commission pending hearing or review.
Applications for a stay of any decision or action of the
Commission, a presiding officer, or any action by the NRC staff in
issuing a license in accordance with Sec. 2.1205(m) are governed by
Sec. 2.788, except that any request for a stay of staff licensing
action pending completion of an adjudication under this subpart must be
filed at the time a request for a hearing or petition to intervene is
filed or within 10 days of the staff's action, whichever is later. A
request for a stay of a staff licensing action must be filed with the
adjudicatory decisionmaker before which the licensing proceeding is
pending.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
9. The authority citation for Part 50 continues to read as follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102 Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58,
50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939
(42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184,
68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
10. Section 50.2, the terms ``Certified fuel handler,'' ``Major
decommissioning activity,'' ``Major radioactive components,''
``Permanent cessation of operations,'' and ``Permanent fuel removal,''
are added to read as follows:
Sec. 50.2 Definitions.
* * * * *
Certified fuel handler means, for a nuclear power reactor facility,
a non-licensed operator who has qualified in accordance with a fuel
handler training program approved by the Commission.
* * * * *
Major decommissioning activity means, for a nuclear power reactor
facility, any activity that results in permanent removal of major
radioactive components, permanently modifies the structure of the
containment, or results in dismantling components for shipment
containing greater than class C waste in accordance with Sec. 61.55 of
this chapter.
Major radioactive components means, for a nuclear power reactor
facility, the reactor vessel and internals, steam generators,
pressurizers, large bore reactor coolant system piping, and other large
components that are radioactive to a comparable degree.
* * * * *
Permanent cessation of operation(s) means, for a nuclear power
reactor facility, a certification by a licensee to the NRC that it has
permanently ceased or will permanently cease reactor operation(s), or a
final legally effective order to permanently cease operation(s) has
come into effect.
Permanent fuel removal means, for a nuclear power reactor facility,
a certification by the licensee to the NRC that it has permanently
removed all fuel assemblies from the reactor vessel.
* * * * *
11. Section 50.4, paragraphs (b)(8) and (b)(9) are added to read as
follows:
Sec. 50.4 Written communications.
* * * * *
(b) * * *
(8) Certification of permanent cessation of operations. The
licensee's certification of permanent cessation of operations, pursuant
to Sec. 50.82(a)(1), must state the date on which operations have
ceased or will cease, and the signed and notarized original must be
submitted to: The Nuclear Regulatory Commission, Document Control Desk,
Washington, DC 20555-0001.
(9) Certification of permanent fuel removal. The licensee's
certification of
[[Page 39299]]
permanent fuel removal, pursuant to Sec. 50.82(a)(1), must state the
date on which the fuel was removed from the reactor vessel and the
disposition of the fuel, and the signed and notarized original must be
submitted to: The Nuclear Regulatory Commission, Document Control Desk,
Washington, DC 20555-0001.
* * * * *
12. Section 50.36, paragraphs (c)(6) and (c)(7) are redesignated as
(c)(7) and (c)(8) and new paragraphs (c)(6) and (e) are added to read
as follows:
Sec. 50.36 Technical specifications.
* * * * *
(c) * * *
(6) Decommissioning. This paragraph applies only to nuclear power
reactor facilities that have submitted the certifications required by
Sec. 50.82(a)(1) and to non-power reactor facilities which are not
authorized to operate. Technical specifications involving safety
limits, limiting safety system settings, and limiting control system
settings; limiting conditions for operation; surveillance requirements;
design features; and administrative controls will be developed on a
case-by-case basis.
* * * * *
(e) The provisions of this section apply to each nuclear reactor
licensee whose authority to operate the reactor has been removed by
license amendment, order, or regulation.
13. Section 50.36a is revised to read as follows:
Sec. 50.36a Technical specifications on effluents from nuclear power
reactors.
(a) In order to keep releases of radioactive materials to
unrestricted areas during normal conditions, including expected
occurrences, as low as is reasonably achievable, each licensee of a
nuclear power reactor will include technical specifications that, in
addition to requiring compliance with applicable provisions of
Sec. 20.1301 of this chapter, require that:
(1) Operating procedures developed pursuant to Sec. 50.34a(c) for
the control of effluents be established and followed and that the
radioactive waste system, pursuant to Sec. 50.34a, be maintained and
used. The licensee shall retain the operating procedures in effect as a
record until the Commission terminates the license and shall retain
each superseded revision of the procedures for 3 years from the date it
was superseded.
(2) Each licensee shall submit a report to the Commission annually
that specifies the quantity of each of the principal radionuclides
released to unrestricted areas in liquid and in gaseous effluents
during the previous 12 months, including any other information as may
be required by the Commission to estimate maximum potential annual
radiation doses to the public resulting from effluent releases. The
report must be submitted as specified in Sec. 50.4, and the time
between submission of the reports must be no longer than 12 months. If
quantities of radioactive materials released during the reporting
period are significantly above design objectives, the report must cover
this specifically. On the basis of these reports and any additional
information the Commission may obtain from the licensee or others, the
Commission may require the licensee to take action as the Commission
deems appropriate.
(b) In establishing and implementing the operating procedures
described in paragraph (a) of this section, the licensee shall be
guided by the following considerations: Experience with the design,
construction, and operation of nuclear power reactors indicates that
compliance with the technical specifications described in this section
will keep average annual releases of radioactive material in effluents
and their resultant committed effective dose equivalents at small
percentages of the dose limits specified in Sec. 20.1301 and in the
license. At the same time, the licensee is permitted the flexibility of
operation, compatible with considerations of health and safety, to
assure that the public is provided a dependable source of power even
under unusual conditions which may temporarily result in releases
higher than such small percentages, but still within the limits
specified in Sec. 20.1301 of this chapter and in the license. It is
expected that in using this flexibility under unusual conditions, the
licensee will exert its best efforts to keep levels of radioactive
material in effluents as low as is reasonably achievable. The guides
set out in appendix I, provide numerical guidance on limiting
conditions for operation for light-water cooled nuclear power reactors
to meet the requirement that radioactive materials in effluents
released to unrestricted areas be kept as low as is reasonably
achievable.
14. Section 50.36b is revised to read as follows:
Sec. 50.36b Environmental conditions.
Each license authorizing operation of a production or utilization
facility, and each license for a nuclear power reactor facility for
which the certification of permanent cessation of operations required
under Sec. 50.82(a)(1) has been submitted, which is of a type described
in Sec. 50.21(b) (2) or (3) or Sec. 50.22 or is a testing facility, may
include conditions to protect the environment to be set out in an
attachment to the license which is incorporated in and made a part of
the license. These conditions will be derived from information
contained in the environmental report and the supplement to the
environmental report submitted pursuant to Secs. 51.50 and 51.53 of
this chapter as analyzed and evaluated in the NRC record of decision,
and will identify the obligations of the licensee in the environmental
area, including, as appropriate, requirements for reporting and keeping
records of environmental data, and any conditions and monitoring
requirement for the protection of the nonaquatic environment.
15. Section 50.44, paragraph (a), is revised to read as follows:
Sec. 50.44 Standards for combustible gas control system in light-
water-cooled power reactors.
(a) Each boiling or pressurized light-water nuclear power reactor
fueled with oxide pellets within cylindrical zircaloy or ZIRLO
cladding, must, as provided in paragraphs (b) through (d) of this
section, include means for control of hydrogen gas that may be
generated, following a postulated loss-of-coolant accident (LOCA) by--
(1) Metal-water reaction involving the fuel cladding and the
reactor coolant,
(2) Radiolytic decomposition of the reactor coolant, and
(3) Corrosion of metals.
This section does not apply to a nuclear power reactor facility for
which the certifications required under Sec. 50.82(a)(1) have been
submitted.
* * * * *
16. Section 50.46, paragraph (a)(1)(i) is revised to read as
follows:
Sec. 50.46 Acceptance criteria for emergency core cooling systems for
light-water nuclear power reactors.
(a)(1)(i) Each boiling or pressurized light-water nuclear power
reactor fueled with uranium oxide pellets within cylindrical zircaloy
or ZIRLO cladding must be provided with an emergency core cooling
system (ECCS) that must be designed so that its calculated cooling
performance following postulated loss-of-coolant accidents conforms to
the criteria set forth in paragraph (b) of this section. ECCS cooling
performance must be calculated in accordance with an acceptable
evaluation model and must be calculated for a number of postulated
loss-of-coolant accidents of different sizes, locations, and other
properties sufficient to provide assurance that the
[[Page 39300]]
most severe postulated loss-of-coolant accidents are calculated. Except
as provided in paragraph (a)(1)(ii) of this section, the evaluation
model must include sufficient supporting justification to show that the
analytical technique realistically describes the behavior of the
reactor system during a loss-of-coolant accident. Comparisons to
applicable experimental data must be made and uncertainties in the
analysis method and inputs must be identified and assessed so that the
uncertainty in the calculated results can be estimated. This
uncertainty must be accounted for, so that, when the calculated ECCS
cooling performance is compared to the criteria set forth in paragraph
(b) of this section, there is a high level of probability that the
criteria would not be exceeded. Appendix K, Part II Required
Documentation, sets forth the documentation requirements for each
evaluation model. This section does not apply to a nuclear power
reactor facility for which the certifications required under
Sec. 50.82(a)(1) have been submitted.
* * * * *
17. Section Sec. 50.48, paragraph (f) is added to read as follows:
Sec. 50.48 Fire protection.
* * * * *
(f) Licensees that have submitted the certifications required under
Sec. 50.82(a)(1) shall maintain a fire protection program to address
the potential for fires which could cause the release or spread of
radioactive materials (i.e., which could result in a radiological
hazard).
(1) The objectives of the fire protection program are to--
(i) Reasonably prevent such fires from occurring;
(ii) Rapidly detect, control, and extinguish those fires which do
occur and which could result in a radiological hazard; and
(iii) Ensure that the risk of fire-induced radiological hazards to
the public, environment and plant personnel is minimized.
(2) The fire protection program must be assessed by the licensee on
a regular basis and revised as appropriate throughout the various
stages of facility decommissioning.
(3) The licensee may make changes to the fire protection program
without NRC approval if these changes do not reduce the effectiveness
of fire protection for facilities, systems, and equipment which could
result in a radiological hazard, taking into account the
decommissioning plant conditions and activities.
18. Section 50.49, paragraph (a) is revised to read as follows:
Sec. 50.49 Environmental qualification of electric equipment important
to safety for nuclear power plants.
(a) Each holder of or an applicant for a license for a nuclear
power plant, other than a nuclear power plant for which the
certifications required under Sec. 50.82(a)(1) have been submitted,
shall establish a program for qualifying the electric equipment defined
in paragraph (b) of this section.
* * * * *
19. Section 50.51, the section heading is revised, the existing
paragraph is designated paragraph (a), and new paragraph (b) is added
to read as follows:
* * * * *
Sec. 50.51 Continuation of license.
* * * * *
(b) Each license for a facility that has permanently ceased
operations, continues in effect beyond the expiration date to authorize
ownership and possession of the production or utilization facility,
until the Commission notifies the licensee in writing that the license
is terminated. During such period of continued effectiveness the
licensee shall--
(1) Take actions necessary to decommission and decontaminate the
facility and continue to maintain the facility, including, where
applicable, the storage, control and maintenance of the spent fuel, in
a safe condition, and
(2) Conduct activities in accordance with all other restrictions
applicable to the facility in accordance with the NRC regulations and
the provisions of the specific 10 CFR part 50 license for the facility.
20. Section 50.54, paragraphs (o) and (y) are revised to read as
follows:
Sec. 50.54 Conditions of licenses.
* * * * *
(o) Primary reactor containments for water cooled power reactors,
other than facilities for which the certifications required under
Sec. 50.82(a)(1) have been submitted, shall be subject to the
requirements set forth in appendix J to this part.
* * * * *
(y) Licensee action permitted by paragraph (x) of this section
shall be approved, as a minimum, by a licensed senior operator, or, at
a nuclear power reactor facility for which the certifications required
under Sec. 50.82(a)(1) have been submitted, by either a licensed senior
operator or a certified fuel handler, prior to taking the action.
* * * * *
21. Section 50.59, paragraphs (d) and (e) are added to read as
follows:
Sec. 50.59 Changes, tests and experiments.
* * * * *
(d) The provisions of this section apply to each nuclear power
reactor licensee that has submitted the certification of permanent
cessation of operations required under Sec. 50.82(a)(1)(i).
(e) The provisions of paragraphs (a) through (c) of this section
apply to each non-power reactor licensee whose license no longer
authorizes operation of the reactor.
22. Section 50.60, paragraph (a) is revised to read as follows:
Sec. 50.60 Acceptance criteria for fracture prevention measures for
light-water nuclear power reactors for normal operation.
(a) Except as provided in paragraph (b) of this section, all light-
water nuclear power reactors, other than reactor facilities for which
the certifications required under Sec. 50.82(a)(1) have been submitted,
must meet the fracture toughness and material surveillance program
requirements for the reactor coolant pressure boundary set forth in
appendices G and H to this part.
* * * * *
23. Section 50.61, paragraph (b)(1) is revised to read as follows:
Sec. 50.61 Fracture toughness requirements for protection against
pressurized thermal shock events.
* * * * *
(b) Requirements.
(1) For each pressurized water nuclear power reactor for which an
operating license has been issued, other than a nuclear power reactor
facility for which the certifications required under Sec. 50.82(a)(1)
have been submitted, the licensee shall have projected values of
RTPTS, accepted by the NRC, for each reactor vessel beltline
material for the EOL fluence of the material. The assessment of
RTPTS must use the calculation procedures given in paragraph
(c)(1) of this section, except as provided in paragraphs (c)(2) and
(c)(3) of this section. The assessment must specify the bases for the
projected value of RTPTS for each vessel beltline material,
including the assumptions regarding core loading patterns, and must
specify the copper and nickel contents and the fluence value used in
the calculation for each beltline material. This assessment must be
updated whenever there is a significant 2 change in projected
values of RTPTS, or
[[Page 39301]]
upon request for a change in the expiration date for operation of the
facility.
---------------------------------------------------------------------------
\2\ Changes to RTPTS values are considered significant if
either the previous value or the current value, or both values,
exceed the screening criterion prior to the expiration of the
operating license, including any renewed term, if applicable for the
plant.
---------------------------------------------------------------------------
* * * * *
24. Section 50.62, paragraph (a) is revised to read as follows:
Sec. 50.62 Requirements for reduction of risk from anticipated
transients without scram (ATWS) events for light-water-cooled nuclear
power plants.
(a) Applicability. The requirements of this section apply to all
commercial light-water-cooled nuclear power plants, other than nuclear
power reactor facilities for which the certifications required under
Sec. 50.82(a)(1) have been submitted.
* * * * *
25. Section 50.65, paragraph (a)(1) is revised to read as follows:
Sec. 50.65 Requirements for monitoring the effectiveness of
maintenance at nuclear power plants.
(a)(1) Each holder of a license to operate a nuclear power plant
under Secs. 50.21(b) or 50.22 shall monitor the performance or
condition of structures, systems, or components, against licensee-
established goals, in a manner sufficient to provide reasonable
assurance that such structures, systems, and components, as defined in
paragraph (b), are capable of fulfilling their intended functions. Such
goals shall be established commensurate with safety and, where
practical, take into account industry-wide operating experience. When
the performance or condition of a structure, system, or component does
not meet established goals, appropriate corrective action shall be
taken. For a nuclear power plant for which the licensee has submitted
the certifications specified in Sec. 50.82(a)(1), this section only
shall apply to the extent that the licensee shall monitor the
performance or condition of all structures, systems, or components
associated with the storage, control, and maintenance of spent fuel in
a safe condition, in a manner sufficient to provide reasonable
assurance that such structures, systems, and components are capable of
fulfilling their intended functions.
* * * * *
26. Section 50.71, paragraph (e)(4) is revised and paragraph (f) is
added to read as follows:
Sec. 50.71 Maintenance of records, making of reports.
* * * * *
(e) * * *
(4) Subsequent revisions must be filed annually or 6 months after
each refueling outage provided the interval between successive updates
does not exceed 24 months. The revisions must reflect all changes up to
a maximum of 6 months prior to the date of filling. For nuclear power
reactor facilities that have submitted the certifications required by
Sec. 50.82(a)(1), subsequent revisions must be filed every 24 months.
* * * * *
(f) The provisions of this section apply to nuclear power reactor
licensees that have submitted the certification of permanent cessation
of operations required under Sec. 50.82(a)(1)(i). The provisions of
paragraphs (a), (c), and (d) of this section also apply to non-power
reactor licensees that are no longer authorized to operate.
27. Section 50.75, paragraph (f) is revised to read as follows:
Sec. 50.75 Reporting and recordkeeping for decommissioning planning.
* * * * *
(f)(1) Each power reactor licensee shall at or about 5 years prior
to the projected end of operations submit a preliminary decommissioning
cost estimate which includes an up-to-date assessment of the major
factors that could affect the cost to decommission.
(2) Each non-power reactor licensee shall at or about 2 years prior
to the projected end of operations submit a preliminary decommissioning
plan containing a cost estimate for decommissioning and an up-to-date
assessment of the major factors that could affect planning for
decommissioning. Factors to be considered in submitting this
preliminary plan information include--
(i) The decommissioning alternative anticipated to be used. The
requirements of Sec. 50.82(b)(4)(i) must be considered at this time;
(ii) Major technical actions necessary to carry out decommissioning
safely;
(iii) The current situation with regard to disposal of high-level
and low-level radioactive waste;
(iv) Residual radioactivity criteria;
(v) Other site specific factors which could affect decommissioning
planning and cost.
(3) If necessary, the cost estimate, for power and non-power
reactors, shall also include plans for adjusting levels of funds
assured for decommissioning to demonstrate that a reasonable level of
assurance will be provided that funds will be available when needed to
cover the cost of decommissioning.
* * * * *
28. Section 50.82 is revised to read as follows:
Sec. 50.82 Termination of license.
For power reactor licensees who, before the effective date of this
rule, either submitted a decommissioning plan for approval or possess
an approved decommissioning plan, the plan is considered to be the
PSDAR submittal required under paragraph (a)(4) of this section and the
provisions of this section apply accordingly. For power reactor
licensees whose decommissioning plan approval activities have been
relegated to notice of opportunity for a hearing under subpart G of 10
CFR part 2, the public meeting convened and 90-day delay of major
decommissioning activities required in paragraphs (a)(4)(ii) and (a)(5)
of this section shall not apply, and any orders arising from
proceedings under subpart G of 10 CFR part 2 shall continue and remain
in effect absent any orders from the Commission.
(a) For power reactor licensees--
(1) (i) When a licensee has determined to permanently cease
operations the licensee shall, within 30 days, submit a written
certification to the NRC, consistent with the requirements of
Sec. 50.4(b)(8);
(ii) Once fuel has been permanently removed from the reactor
vessel, the licensee shall submit a written certification to the NRC
that meets the requirements of Sec. 50.4(b)(9) and;
(iii) For licensees whose licenses have been permanently modified
to allow possession but not operation of the facility, before the
effective date of this rule, the certifications required in paragraphs
(a)(1) (i)-(ii) of this section shall be deemed to have been submitted.
(2) Upon docketing of the certifications for permanent cessation of
operations and permanent removal of fuel from the reactor vessel, or
when a final legally effective order to permanently cease operations
has come into effect, the 10 CFR part 50 license no longer authorizes
operation of the reactor or emplacement or retention of fuel into the
reactor vessel.
(3) Decommissioning will be completed within 60 years of permanent
cessation of operations. Completion of decommissioning beyond 60 years
will be approved by the Commission only when necessary to protect
public health and safety. Factors that will be considered by the
Commission in evaluating an alternative that provides for completion of
decommissioning beyond 60 years of permanent cessation of operations
include unavailability of waste disposal capacity and other site-
specific factors affecting the licensee's capability to carry out
decommissioning, including presence of other nuclear facilities at the
site.
[[Page 39302]]
(4) (i) Prior to or within 2 years following permanent cessation of
operations, the licensee shall submit a post-shutdown decommissioning
activities report (PSDAR) to the NRC, and a copy to the affected
State(s). The report must include a description of the planned
decommissioning activities along with a schedule for their
accomplishment, an estimate of expected costs, and a discussion that
provides the reasons for concluding that the environmental impacts
associated with site-specific decommissioning activities will be
bounded by appropriate previously issued environmental impact
statements.
(ii) The NRC shall notice receipt of the PSDAR and make the PSDAR
available for public comment. The NRC shall also schedule a public
meeting in the vicinity of the licensee's facility upon receipt of the
PSDAR. The NRC shall publish a notice in the Federal Register and in a
forum, such as local newspapers, that is readily accessible to
individuals in the vicinity of the site, announcing the date, time and
location of the meeting, along with a brief description of the purpose
of the meeting.
(5) Licensees shall not perform any major decommissioning
activities, as defined in Sec. 50.2, until 90 days after the NRC has
received the licensee's PSDAR submittal and until certifications of
permanent cessation of operations and permanent removal of fuel from
the reactor vessel, as required under Sec. 50.82(a)(1), have been
submitted.
(6) Licensees shall not perform any decommissioning activities, as
defined in Sec. 50.2, that--
(i) Foreclose release of the site for possible unrestricted use;
(ii) Result in significant environmental impacts not previously
reviewed; or
(iii) Result in there no longer being reasonable assurance that
adequate funds will be available for decommissioning.
(7) In taking actions permitted under Sec. 50.59 following
submittal of the PSDAR, the licensee shall notify the NRC, in writing
and send a copy to the affected State(s), before performing any
decommissioning activity inconsistent with, or making any significant
schedule change from, those actions and schedules described in the
PSDAR, including changes that significantly increase the
decommissioning cost.
(8)(i) Decommissioning trust funds may be used by licensees if--
(A) The withdrawals are for expenses for legitimate decommissioning
activities consistent with the definition of decommissioning in
Sec. 50.2;
(B) The expenditure would not reduce the value of the
decommissioning trust below an amount necessary to place and maintain
the reactor in a safe storage condition if unforeseen conditions or
expenses arise and;
(C) The withdrawals would not inhibit the ability of the licensee
to complete funding of any shortfalls in the decommissioning trust
needed to ensure the availability of funds to ultimately release the
site and terminate the license.
(ii) Initially, 3 percent of the generic amount specified in
Sec. 50.75 may be used for decommissioning planning. For licensees that
have submitted the certifications required under Sec. 50.82(a)(1) and
commencing 90 days after the NRC has received the PSDAR, an additional
20 percent may be used. A site-specific decommissioning cost estimate
must be submitted to the NRC prior to the licensee using any funding in
excess of these amounts.
(iii) Within 2 years following permanent cessation of operations,
if not already submitted, the licensee shall submit a site-specific
decommissioning cost estimate.
(iv) For decommissioning activities that delay completion of
decommissioning by including a period of storage or surveillance, the
licensee shall provide a means of adjusting cost estimates and
associated funding levels over the storage or surveillance period.
(9) All power reactor licensees must submit an application for
termination of license. The application for termination of license must
be accompanied or preceded by a license termination plan to be
submitted for NRC approval.
(i) The license termination plan must be a supplement to the FSAR
or equivalent and must be submitted at least 2 years before termination
of the license date.
(ii) The license termination plan must include--
(A) A site characterization;
(B) Identification of remaining dismantlement activities;
(C) Plans for site remediation;
(D) Detailed plans for the final radiation survey;
(E) A description of the end use of the site, if restricted;
(F) An updated site-specific estimate of remaining decommissioning
costs; and
(G) A supplement to the environmental report, pursuant to
Sec. 51.53, describing any new information or significant environmental
change associated with the licensee's proposed termination activities.
(iii) The NRC shall notice receipt of the license termination plan
and make the license termination plan available for public comment. The
NRC shall also schedule a public meeting in the vicinity of the
licensee's facility upon receipt of the license termination plan. The
NRC shall publish a notice in the Federal Register and in a forum, such
as local newspapers, which is readily accessible to individuals in the
vicinity of the site, announcing the date, time and location of the
meeting, along with a brief description of the purpose of the meeting.
(10) If the license termination plan demonstrates that the
remainder of decommissioning activities will be performed in accordance
with the regulations in this chapter, will not be inimical to the
common defense and security or to the health and safety of the public,
and will not have a significant effect on the quality of the
environment and after notice to interested persons, the Commission
shall approve the plan, by license amendment, subject to such
conditions and limitations as it deems appropriate and necessary and
authorize implementation of the license termination plan.
(11) The Commission shall terminate the license if it determines
that--
(i) The remaining dismantlement has been performed in accordance
with the approved license termination plan, and
(ii) The terminal radiation survey and associated documentation
demonstrates that the facility and site are suitable for release.
(b) For non-power reactor licensees--
(1) A licensee that permanently ceases operations must make
application for license termination within 2 years following permanent
cessation of operations, and in no case later than 1 year prior to
expiration of the operating license. Each application for termination
of a license must be accompanied or preceded by a proposed
decommissioning plan. The contents of the decommissioning plan are
specified in paragraph (b)(4) of this section.
(2) For decommissioning plans in which the major dismantlement
activities are delayed by first placing the facility in storage,
planning for these delayed activities may be less detailed. Updated
detailed plans must be submitted and approved prior to the start of
these activities.
(3) For decommissioning plans that delay completion of
decommissioning by including a period of storage or surveillance, the
licensee shall provide that--
(i) Funds needed to complete decommissioning be placed into an
account segregated from the licensee's assets and outside the
licensee's
[[Page 39303]]
administrative control during the storage or surveillance period, or a
surety method or fund statement of intent be maintained in accordance
with the criteria of Sec. 50.75(e); and
(ii) Means be included for adjusting cost estimates and associated
funding levels over the storage or surveillance period.
(4) The proposed decommissioning plan must include--
(i) The choice of the alternative for decommissioning with a
description of activities involved. An alternative is acceptable if it
provides for completion of decommissioning without significant delay.
Consideration will be given to an alternative which provides for
delayed completion of decommissioning only when necessary to protect
the public health and safety. Factors to be considered in evaluating an
alternative which provides for delayed completion of decommissioning
include unavailability of waste disposal capacity and other site-
specific factors affecting the licensee's capability to carry out
decommissioning, including the presence of other nuclear facilities at
the site.
(ii) A description of the controls and limits on procedures and
equipment to protect occupational and public health and safety;
(iii) A description of the planned final radiation survey;
(iv) An updated cost estimate for the chosen alternative for
decommissioning, comparison of that estimate with present funds set
aside for decommissioning, and plan for assuring the availability of
adequate funds for completion of decommissioning; and
(v) A description of technical specifications, quality assurance
provisions and physical security plan provisions in place during
decommissioning.
(5) If the decommissioning plan demonstrates that the
decommissioning will be performed in accordance with the regulations in
this chapter and will not be inimical to the common defense and
security or to the health and safety of the public, and after notice to
interested persons, the Commission will approve, by amendment, the plan
subject to such conditions and limitations as it deems appropriate and
necessary. The approved decommissioning plan will be a supplement to
the Safety Analysis report or equivalent.
(6) The Commission will terminate the license if it determines
that--
(i) The decommissioning has been performed in accordance with the
approved decommissioning plan, and
(ii) The terminal radiation survey and associated documentation
demonstrates that the facility and site are suitable for release.
(c) For a facility that has permanently ceased operation before the
expiration of its license, the collection period for any shortfall of
funds will be determined, upon application by the licensee, on a case-
by-case basis taking into account the specific financial situation of
each licensee.
29. Section 50.91, the introductory text is revised to read as
follows:
Sec. 50.91 Notice for public comment; State consultation.
The Commission will use the following procedures for an application
requesting an amendment to an operating license for a facility licensed
under Sec. 50.21(b) or Sec. 50.22 or for a testing facility, except for
amendments subject to hearings governed by Secs. 2.1201-2.1263 of this
chapter. For amendments subject to Secs. 2.1201-2.1263 of this chapter,
the following procedures will apply only to the extent specifically
referenced in Sec. 2.1205 (c) and (d) of this chapter:
* * * * *
30. Section 50.111, paragraph (b) is revised to read as follows:
Sec. 50.111 Criminal penalties.
* * * * *
(b) The regulations in 10 CFR Part 50 that are not issued under
sections 161b, 161i, or 161o for the purposes of section 223 are as
follows: Secs. 50.1, 50.2, 50.3, 50.4, 50.8, 50.11, 50.12, 50.13,
50.20, 50.21, 50.22, 50.23, 50.30, 50.31, 50.32, 50.33, 50.34a, 50.35,
50.36b, 50.37, 50.38, 50.39, 50.40, 50.41, 50.42, 50.43, 50.45, 50.50,
50.51, 50.52, 50.53, 50.56, 50.57, 50.58, 50.81, 50.90, 50.91, 50.92,
50.100, 50.101, 50.102, 50.103, 50.109, 50.110, 50.111.
31. Appendix I to 10 CFR part 50 is amended by revising Section
(I), the introductory text of Section (IV), and Section (IV)(C) to read
as follows:
Appendix I to Part 50--Numerical Guides for Design Objectives and
Limiting Conditions of Operation to Meet the Criterion ``As Low As Is
Reasonably Achievable'' for Radioactive Material in Light-Water-Cooled
Nuclear Power Reactor Effluents
SECTION I. Introduction. Section 50.34a provides that an
application for a permit to construct a nuclear power reactor shall
include a description of the preliminary design of equipment to be
installed to maintain control over radioactive materials in gaseous
and liquid effluents produced during normal conditions, including
expected occurrences. In the case of an application filed on or
after January 2, 1971, the application must also identify the design
objectives, and the means to be employed, for keeping levels of
radioactive material in effluents to unrestricted areas as low as
practicable.
Section 50.36a contains provisions designed to assure that
releases of radioactive material from nuclear power reactors to
unrestricted areas during normal conditions, including expected
occurrences, are kept as low as practicable.
* * * * *
SEC. IV. Guides on technical specifications for limiting
conditions for operation for light-water-cooled nuclear power
reactors licensed under 10 CFR part 50. The guides on limiting
conditions for operation for light-water-cooled nuclear power
reactors set forth below may be used by an applicant for a license
to operate a light-water-cooled nuclear power reactor or a licensee
who has submitted a certification of permanent cessation of
operations under Sec. 50.82(a)(1) as guidance in developing
technical specifications under Sec. 50.36a(a) to keep levels of
radioactive materials in effluents to unrestricted areas as low as
is reasonably achievable.
Section 50.36a(b) provides that licensees shall be guided by
certain considerations in establishing and implementing operating
procedures specified in technical specifications that take into
account the need for operating flexibility and at the same time
assure that the licensee will exert his best effort to keep levels
of radioactive material in effluents as low as is reasonably
achievable. The guidance set forth below provides additional and
more specific guidance to licensees in this respect.
Through the use of the guides set forth in this section it is
expected that the annual release of radioactive material in
effluents from light-water-cooled nuclear power reactors can
generally be maintained within the levels set forth as numerical
guides for design objectives in Section II.
At the same time, the licensee is permitted the flexibility of
operations, compatible with considerations of health and safety, to
assure that the public is provided a dependable source of power even
under unusual conditions which may temporarily result in releases
higher than numerical guides for design objectives but still within
levels that assure that the average population exposure is
equivalent to small fractions of doses from natural background
radiation. It is expected that in using this operational flexibility
under unusual conditions, the licensee will exert his best efforts
to keep levels of radioactive material in effluents within the
numerical guides for design objectives.
* * * * *
C. If the data developed in the surveillance and monitoring
program described in paragraph B of Section III or from other
monitoring programs show that the relationship between the
quantities of radioactive material released in liquid and gaseous
effluents and the dose to individuals in unrestricted areas is
significantly different from that assumed in the calculations used
to determine design objectives pursuant to Sections II and III, the
Commission may modify the quantities in the technical
[[Page 39304]]
specifications defining the limiting conditions in a license to
operate a light-water-cooled nuclear power reactor or a license
whose holder has submitted a certification of permanent cessation of
operations under Sec. 50.82(a)(1).
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
32. The authority citation for Part 51 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842).
Subpart A also issued under National Environmental Policy Act of
1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C.
4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041;
and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C. 2243).
Sections 51.20, 51.30, 51.60, 51.80, and 51.97 also issued under
secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148,
Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168).
Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended
by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste
Policy Act of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy
Act of 1982, sec. 114(f), 96 Stat. 2216, as amended (42 U.S.C.
10134(f)).
* * * * *
33. Section 51.53, paragraph (b) is revised to read as follows:
Sec. 51.53 Supplement to environmental report.
* * * * *
(b) Post operating license stage. Each applicant for a license
amendment authorizing decommissioning activities for a production or
utilization facility either for unrestricted use or based on continuing
use restrictions applicable to the site; and each applicant for a
license amendment approving a license termination plan or
decommissioning plan under Sec. 50.82 of this chapter either for
unrestricted use or based on continuing use restrictions applicable to
the site; and each applicant for a license or license amendment to
store spent fuel at a nuclear power reactor after expiration of the
operating license for the nuclear power reactor shall submit with its
application the number of copies, as specified in Sec. 51.55, of a
separate document, entitled ``Supplement to Applicant's Environmental
Report--Post Operating License Stage,'' which will update ``Applicant's
Environmental Report--Operating License Stage,'' as appropriate, to
reflect any new information or significant environmental change
associated with the applicant's proposed decommissioning activities or
with the applicant's proposed activities with respect to the planned
storage of spent fuel. Unless otherwise required by the Commission, in
accordance with the generic determination in Sec. 51.23(a) and the
provisions in Sec. 51.23(b), the applicant shall only address the
environmental impact of spent fuel storage for the term of the license
applied for. The ``Supplement to Applicant's Environmental Report--Post
Operating License Stage'' may incorporate by reference any information
contained in ``Applicant's Environmental Report--Construction Permit
Stage,'' ``Supplement to Applicant's Environmental Report--Operating
License Stage,'' final environmental impact statement, supplement to
final environmental impact statement--operating license stage, or in
the records of decision prepared in connection with the construction
permit or the operating license for that facility.
* * * * *
34. Section 51.95, paragraph (b) is revised to read as follows:
Sec. 51.95 Supplement to final environmental impact statement.
* * * * *
(b) Post operating license stage. In connection with the amendment
of an operating license authorizing decommissioning activities at a
production or utilization facility covered by Sec. 51.20, either for
unrestricted use or based on continuing use restrictions applicable to
the site, or with the issuance, amendment or renewal of a license to
store spent fuel at a nuclear power reactor after expiration of the
operating license for the nuclear power reactor, the NRC staff will
prepare a supplemental environmental impact statement for the post
operating license stage or an environmental assessment, as appropriate,
which will update the prior environmental review. The supplement or
assessment may incorporate by reference any information contained in
the final environmental impact statement, the supplement to the final
environmental impact statement--operating license stage, or in the
records of decision prepared in connection with the construction permit
or the operating license for that facility. The supplement will include
a request for comments as provided in Sec. 51.73. Unless otherwise
required by the Commission, in accordance with the generic
determination in Sec. 51.23(a) and the provisions of Sec. 51.23(b), a
supplemental environmental impact statement for the post operating
license stage or an environmental assessment, as appropriate, will
address the environmental impacts of spent fuel storage only for the
term of the license, license amendment or license renewal applied for.
Dated at Rockville, MD, this 19th day of July, 1996.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 96-19031 Filed 7-26-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-19013 Airworthiness Directives; Airbus Model A320-200 Series Airplanes
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39306-39307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19013]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-267-AD; Amendment 39-9703; AD 96-16-03]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A320-200 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Airbus Model A320-200 series airplanes, that
requires modification of the shock absorber sub-assembly of the main
landing gear (MLG). This amendment is prompted by reports of internal
damage to the shock absorber sub-assembly due to loose screws in the
upper bearing dowels. The actions specified by this AD are intended to
prevent such damage, which could result in the overextension of the
shock absorber and failure of the torque link. This situation may lead
to the inability of the MLG to retract and subsequent collapse of the
MLG.
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Airbus Model A320-200
series airplanes was published in the Federal Register on April 29,
1996 (61 FR 18704). That action proposed to require modification of the
shock absorber sub-assembly of the main landing gear (MLG).
Interested persons have been afforded an opportunity to participate
in the
[[Page 39307]]
making of this amendment. Due consideration has been given to the three
comments received.
All three commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 115 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 24 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Required parts will be provided by the
manufacturer at no cost to the operator. Based on these figures, the
cost impact of the AD on U.S. operators is estimated to be $165,600, or
$1,440 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, 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:
96-16-03 Airbus Industries: Amendment 39-9703. Docket 95-NM-267-AD.
Applicability: Model A320-200 series airplanes on which Airbus
Modification 24594 (reference Airbus Service Bulletin A320-32-1144)
has not been installed, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent damage to the internal area of the shock absorber
sub-assembly, which could cause an overextension of the shock
absorber and failure of the torque link, accomplish the following:
(a) Prior to the accumulation of 6,000 total landings since the
shock absorber of the main landing gear (MLG) was removed, built, or
overhauled; or within 6 months after the effective date of this AD;
whichever occurs later: Modify the shock absorber assembly of the
MLG, in accordance with Airbus Service Bulletin A320-32-1144, dated
December 8, 1994.
Note 2: Airbus Service Bulletin A320-32-1144 references Dowty
Aerospace Service Bulletin 200-32-215, dated July 7, 1994, and Dowty
Aerospace Service Bulletin 200-32-216, Revision 1, dated November
18, 1994, as additional sources of service information for
modification of the shock absorber.
(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, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The modification shall be done in accordance with Airbus
Service Bulletin A320-32-1144, dated December 8, 1994. 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 Airbus Industrie, 1 Rond Point
Maurice Bellonte, 31707 Blagnac Cedex, France. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 22, 1996.
S.R Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-19013 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-19012 Airworthiness Directives; McDonnell Douglas Model DC-10-10 and DC-10-15 Series Airplanes
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39312-39314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19012]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-39-AD; Amendment 39-9701; AD 96-16-01]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-10-10 and
DC-10-15 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain McDonnell Douglas Model DC-10-10 and DC-10-15
series airplanes, that requires an inspection for evidence of missing
chrome and for corrosion on the chrome surfaces, or verification that
the forward trunnion bolts have been chrome plated in a specific
manner; and rework or replacement of the bolts, if necessary. This
amendment is prompted by a report of chrome flaking on the bearing
surface of the trunnion bolts due to improper cleaning of the base
material prior to chrome plating. The actions specified by this AD are
intended to prevent premature failure of the trunnion bolts and
subsequent collapse of the main landing gear (MLG) as a result of
chrome flaking and severe corrosion on the bearing surface and in the
mechanical fuse.
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Transport Airplane Directorate, Los Angeles
Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal
[[Page 39313]]
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Maureen Moreland or Ron Atmur,
Aerospace Engineers, Airframe Branch, ANM-120L, FAA, Los Angeles
Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood,
California 90712; telephone (310) 627-5238 or (310) 627-5224; fax (310)
627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
DC-10-10 and DC-10-15 series airplanes was published in the Federal
Register on April 10, 1996 (61 FR 15904). That action proposed to
require a visual inspection for evidence of missing chrome and for
corrosion on the chrome surfaces, or verification that the forward
trunnion bolts have been chrome plated in a specific manner; and rework
or replacement of the bolts, if necessary.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Both commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
There are approximately 139 McDonnell Douglas Model DC-10-10 and
DC-10-15 series airplanes of the affected design in the worldwide
fleet. The FAA estimates that 121 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $7,260, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, 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:
96-16-01 McDonnell Douglas: Amendment 39-9701. Docket 96-NM-39-AD.
Applicability: Model DC-10-10 and DC-10-15 series airplanes, as
listed in McDonnell Douglas Service Bulletin DC10-32-241, dated
December 13, 1995; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent premature failure of the trunnion bolts and
subsequent collapse of the main landing gear (MLG), accomplish the
following:
(a) For airplanes on which the forward trunnion bolts, part
number (P/N) ARG7557-501, installed on the left and right MLG's,
have accumulated 6,000 or more total flight hours, or 2,000 or more
total flight cycles, as of the date of the inspection or
verification required by paragraph (a)(1) or (a)(2), respectively,
of this AD: Within 18 months after the effective date of this AD,
accomplish either paragraph (a)(1) or (a)(2) of this AD, in
accordance with McDonnell Douglas Service Bulletin DC10-32-241,
dated December 13, 1995.
(1) Remove the bolts and perform a visual inspection for
evidence of missing chrome and for corrosion on the chrome surfaces,
in accordance with the service bulletin.
(i) If no evidence of missing chrome and no corrosion on the
chrome surfaces are found, no further action is required by this AD.
(ii) If any evidence of missing chrome or any corrosion on the
chrome surfaces is found, prior to further flight, accomplish either
paragraph (a)(1)(ii)(A) or (a)(1)(ii)(B) of this AD.
(A) Remove the chrome plating on the trunnion bolt in accordance
with the service bulletin; replace the plating in accordance with
the Component Maintenance Manual (CMM), Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a McDonnell Douglas Designated Engineering Representative (DER)
who has been given a special delegation by the Manager, Los Angeles
Aircraft Certification Office (ACO), FAA, Transport Airplane
Directorate, to make such a finding; and reinstall the reworked bolt
in accordance with the service bulletin.
(B) Replace the trunnion bolt with a serviceable part in
accordance with the service bulletin. -
(2) Verify whether the forward trunnion bolts, P/N ARG7557-501,
installed on the left and right MLG's, have been chrome plated since
original manufacture, in accordance with the CMM, Chapter 20-10-02,
Revision 31, dated September 1, 1991, or in accordance with a method
approved by a McDonnell Douglas DER who has been given a special
delegation by the Manager, Los Angeles ACO, to make such a finding.
(i) If the bolts have been chrome plated since original
manufacture, in accordance with the CMM, Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a McDonnell Douglas DER who has been given a special delegation
by the Manager, Los Angeles ACO, to make such a finding: No further
action is required by this AD.
(ii) If any bolt has not been chrome plated since original
manufacture, in accordance with the CMM, Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a
[[Page 39314]]
McDonnell Douglas DER who has been given a special delegation by the
Manager, Los Angeles ACO, to make such a finding: Prior to further
flight, accomplish the requirements of either paragraph
(a)(1)(ii)(A) or (a)(1)(ii)(B) of this AD in accordance with the
service bulletin.
(b) For airplanes other than those identified in paragraph (a)
of this AD: Within 18 months after the effective date of this AD,
verify whether the forward trunnion bolts, P/N ARG7557-501,
installed on the left and right MLG's, have been chrome plated since
original manufacture, in accordance with the CMM, Chapter 20-10-02,
Revision 31, dated September 1, 1991, or in accordance with a method
approved by a McDonnell Douglas DER who has been given a special
delegation by the Manager, Los Angeles ACO, to make such a finding.
(1) If the bolts have been chrome plated since original
manufacture, in accordance with the CMM, Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a McDonnell Douglas DER who has been given a special delegation
by the Manager, Los Angeles ACO, to make such a finding: No further
action is required by this AD.
(2) If any bolt has not been chrome plated since original
manufacture, in accordance with the CMM, Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a McDonnell Douglas DER who has been given a special delegation
by the Manager, Los Angeles ACO, to make such a finding: Prior to
further flight, accomplish the requirements of either paragraph
(b)(2)(i) or (b)(2)(ii) of this AD in accordance with McDonnell
Douglas Service Bulletin DC10-32-241, dated December 13, 1995. -
(i) Remove the chrome plating on the trunnion bolt in accordance
with the service bulletin; replace the plating in accordance with
the Component Maintenance Manual (CMM), Chapter 20-10-02, Revision
31, dated September 1, 1991, or in accordance with a method approved
by a McDonnell Douglas Designated Engineering Representative (DER)
who has been given a special delegation by the Manager, Los Angeles
ACO, to make such a finding; and reinstall the reworked bolt in
accordance with the service bulletin. Or -
(ii) Replace the trunnion bolt with a serviceable part in
accordance with the service bulletin. -
(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, Los Angeles ACO. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
-(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished. -
(e) The actions shall be done in accordance with McDonnell
Douglas Service Bulletin DC10-32-241, dated December 13, 1995. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from McDonnell Douglas Corporation, 3855
Lakewood Boulevard, Long Beach, California 90846, Attention:
Technical Publications Business Administration, Department C1-L51
(2-60). Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
FAA, Transport Airplane Directorate, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC. -
(f) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 22, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-19012 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-19011 Airworthiness Directives; McDonnell Douglas Model MD-11 Series Airplanes
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39314-39315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19011]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-211-AD; Amendment 39-9702; AD 96-16-02]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model MD-11 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain McDonnell Douglas Model MD-11 series airplanes,
that requires either replacement or modification of the inboard and
outboard flap actuators. This amendment is prompted by a report of
failure of the piston rod of the inboard flap actuator due to a
manufacturing process error. The actions specified by this AD are
intended to prevent failure of the piston rod, which could result in
uncommanded flap extension and could lead to an asymmetric flap
configuration, which could reduce controllability of the airplane.
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Transport Airplane Directorate, Los Angeles
Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Andrew Gfrerer, Aerospace Engineer,
Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood, California
90712; telephone (310) 627-5338; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
MD-11 series airplanes was published in the Federal Register on April
19, 1996 (61 FR 17259). That action proposed to require either the
replacement or modification of the inboard and outboard flap actuators.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the single comment received.
The commenter supports the proposed rule.
Conclusion
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
There are approximately 143 McDonnell Douglas Model MD-11 series
airplanes of the affected design in the worldwide fleet. The FAA
estimates that 52 airplanes of U.S. registry will be affected by this
AD.
To accomplish the required actions associated with Option 1
(replacement of flap actuators) will take approximately 9 work hours
per airplane, at an average labor rate of $60 per work hour. Required
parts will be supplied by the manufacturer at no cost to the operators.
Based on these figures, the cost impact of Option 1 required by this AD
on U.S. operators is estimated to be $540 per airplane.
To accomplish the required actions associated with Option 2
(modification
[[Page 39315]]
and reidentification of the inboard and outboard flap actuators) will
take approximately 25 work hours per airplane, at an average labor rate
of $60 per work hour. Required parts will be supplied by the
manufacturer at no cost to the operators. Based on these figures, the
cost impact of Option 2 required by this AD on U.S. operators is
estimated to be $1,500 per airplane.
To accomplish the required actions associated with Option 3
(modification and reidentification of the inboard flap inboard
actuator, the inboard flap outboard actuator, and the outboard flap
actuators) will take approximately 27 work hours per airplane, at an
average labor rate of $60 per work hour. Required parts will be
supplied by the manufacturer at no cost to the operators. Based on
these figures, the cost impact of Option 3 required by this AD on U.S.
operators is estimated to be $1,620 per airplane.
Based in the figures discussed above, the cost impact of this AD
action on U.S. operators is estimated to be between $28,080 and $82,240
for the affected fleet. These cost impact figures are based on
assumptions that no operator has yet accomplished any of the
requirements of this AD action, and that no operator would accomplish
those actions in the future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-16-02 McDonnell Douglas: Amendment 39-9702. Docket 95-NM-211-AD.
Applicability: Model MD-11 series airplanes, manufacturer's
fuselage numbers 0447 through 0589 inclusive, certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the piston rod, which could result in
uncommanded flap extension and resultant asymmetric flap
configuration, which could reduce controllability of the airplane,
accomplish the following:
(a) Within 6 months after the effective date of this AD,
accomplish either paragraph (a)(1), (a)(2), or (a)(3) of this AD, in
accordance with McDonnell Douglas Alert Service Bulletin MD11-
27A057, dated August 31, 1995. -
(1) Accomplish the actions specified as Option 1 (replacement of
the inboard and outboard flap actuators) in the Accomplishment
Instructions of the alert service bulletin; or
(2) Accomplish the actions specified as Option 2 (modification
and reidentification of the inboard and outboard flap actuators) in
the Accomplishment Instructions of the alert service bulletin; or
(3) Accomplish the actions specified as Option 3 (modification
and reidentification of the inboard flap inboard actuator, inboard
flap outboard actuator, and outboard flap actuators) in the
Accomplishment Instructions of the alert service bulletin.
(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, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The actions shall be done in accordance with McDonnell
Douglas Alert Service Bulletin MD11-27A057, dated August 31, 1995.
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from McDonnell Douglas Corporation, 3855
Lakewood Boulevard, Long Beach, California 90846, Attention:
Technical Publications Business Administration, Department C1-L51
(2-60). Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
FAA, Transport Airplane Directorate, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 22, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-19011 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-18996 Irish Potatoes Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon; Assessment Rate
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39270-39271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18996]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 945
[Docket No. FV96-945-1 IFR]
Irish Potatoes Grown in Certain Designated Counties in Idaho, and
Malheur County, Oregon; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule establishes an assessment rate for the
Idaho-Eastern Oregon Potato Committee (Committee) under Marketing Order
No. 945 for the 1996-97 and subsequent fiscal periods. The Committee is
responsible for local administration of the marketing order which
regulates the handling of potatoes grown in designated counties in
Idaho, and Malheur County, Oregon. Authorization to assess potato
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program.
DATES: Effective on August 1, 1996. Comments received by August 28,
1996, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,
telephone 202-720-9918, FAX 202-720-5698, or Dennis L. West, Marketing
Specialist, Northwest Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, Green-Wyatt Federal Building, room 369, 1220
Southwest Third Avenue, Portland, OR 97204, telephone 503-326-2724, FAX
503-326-7440. Small businesses may request information on compliance
with this regulation by contacting: Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 98 and Order No. 945, both as amended (7 CFR part 945),
regulating the handling of Irish potatoes grown in designated counties
in Idaho, and Malheur County, Oregon, hereinafter referred to as the
``order.'' The order is effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Idaho-Eastern
Oregon potato handlers are subject to assessments. Funds to administer
the order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
potatoes beginning August 1, 1996, and continuing until amended,
suspended, or terminated. This rule will not preempt any State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 2,100 producers of Idaho-Eastern Oregon
potatoes in the production area and approximately 61 handlers subject
to regulation under the marketing order. Small agricultural producers
have been defined by the Small Business Administration (13 CFR 121.601)
as those having annual receipts of less than $500,000, and small
agricultural service firms are defined as those whose annual receipts
are less than $5,000,000. The majority of Idaho-Eastern Oregon potato
producers and handlers may be classified as small entities.
The Idaho-Eastern Oregon potato marketing order provides authority
for the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Idaho-Eastern Oregon potatoes. They are familiar with the
Committee's needs and with the costs of goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on June 4, 1996, and unanimously recommended
1996-97 expenditures of $122,046 and an assessment rate of $0.0026 per
hundredweight of potatoes. In comparison, last year's budgeted
expenditures were $111,732. The assessment rate of $0.0026 is the same
as last year's established rate. Major expenditures recommended by the
Committee for the 1996-97 year include $63,896 for salaries, $7,000 for
the manager's travel, $5,500 for Federal payroll taxes, and $15,000 for
reserve/auto purchase. Budgeted expenses for these items in 1995-96
were $63,232, $6,000, $5,300, and $9,000, respectively.
[[Page 39271]]
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Idaho-Eastern
Oregon potatoes. Potato shipments for the year are estimated at
34,000,000 hundredweight, which should provide $88,400 in assessment
income. Income derived from handler assessments, along with funds from
interest income and the Committee's authorized reserve, will be
adequate to cover budgeted expenses. Funds in the reserve will be kept
within the maximum permitted by the order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period begins on August 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable potatoes handled during such fiscal period; (3) handlers
are aware of this action which was unanimously recommended by the
Committee at a public meeting and is similar to other assessment rate
actions issued in past years; and (4) this interim final rule provides
a 30-day comment period, and all comments timely received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 945
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 945 is
amended as follows:
PART 945--IRISH POTATOES GROWN IN CERTAIN DESIGNATED COUNTIES IN
IDAHO AND MALHEUR COUNTY, OREGON
1. The authority citation for 7 CFR part 945 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new Subpart--Assessment Rates consisting of a new Sec. 945.249
and a new subpart heading--Handling Regulations are added immediately
preceding Sec. 949.341, to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 945.249 Assessment rate.
On and after August 1, 1996, an assessment rate of $0.0026 per
hundredweight is established for Idaho-Eastern Oregon potatoes.
Subpart--Handling Regulations
Dated: July 22, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-18996 Filed 7-26-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18786 Airworthiness Directives; Boeing Model 747-400 Series Airplanes Equipped With BFGoodrich Evacuation Slide/Rafts
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39307-39309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18786]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-218-AD; Amendment 39-9698; AD 96-15-08]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 747-400 Series Airplanes
Equipped With BFGoodrich Evacuation Slide/Rafts
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Boeing Model 747-400 series airplanes, that
requires modification of door 5 evacuation slide/rafts. This amendment
is prompted by reports that the door 5 evacuation slide/raft failed to
deploy properly due to adverse loads caused by the geometry of this
evacuation slide/raft. The actions specified by this AD are intended to
prevent failure of the door 5 evacuation slide/raft to deploy properly,
which could contribute to injury of passengers on the slide and could
delay or impede the evacuation of passengers during an emergency.
[[Page 39308]]
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from BFGoodrich Company, Aircraft Evacuation Systems,
Department 7916, Phoenix, Arizona 85040. This information may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Transport Airplane Directorate, Los Angeles
Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Andrew Gfrerer, Aerospace Engineer,
Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood, California
90712; telephone (310) 627-5338; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Boeing Model 747-400
series airplanes was published in the Federal Register on April 29,
1996 (61 FR 18705). That action proposed to require modification of the
door 5 evacuation slide/rafts.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the single comment received.
The commenter supports the proposed rule.
Conclusion
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 150 BFGoodrich evacuation slide/rafts
installed on 75 Boeing Model 747-400 series airplanes (2 slides per
airplane) of U.S. registry will be affected by this AD, that it will
take approximately 1 work hour per slide to accomplish the required
actions, and that the average labor rate is $60 per work hour. Required
parts will cost approximately $84 per slide. Based on these figures,
the cost impact of the AD on U.S. operators is estimated to be $21,600,
or $144 per slide.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, 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:
96-15-08 Boeing: Amendment 39-9698. Docket 95-NM-218-AD.
Applicability: Model 747-400 series airplanes equipped with
BFGoodrich Evacuation Slide/Rafts at door 5; having slide/raft
assembly part number 7A1469-1, -2, -3, -4, -7, -8, -9, -10, -11, or
-12 (all unit serial numbers); certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the door 5 evacuation slide/raft to deploy
properly, which could contribute to injury of passengers on the
slide and could delay or impede the evacuation of passengers during
an emergency, accomplish the following:
(a) Within 36 months after the effective date of this AD, modify
the door 5 evacuation slide/rafts in accordance with BFGoodrich
Service Bulletin 7A1469-25-283, dated November 6, 1995.
Note 2: Modification previous to the effective date of this AD
in accordance with Boeing Alert Service Bulletin 747-25A3096, which
references BFGoodrich Service Bulletin 7A1469-25-283, dated November
6, 1995, is considered acceptable for compliance with the
modification requirements of paragraph (a) of this AD.
(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, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The modification shall be done in accordance with BFGoodrich
Service Bulletin 7A1469-25-283, dated November 6, 1995. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from BFGoodrich Company, Aircraft
Evacuation Systems, Department 7916, Phoenix, Arizona 85040. Copies
may be inspected at the FAA, Transport Airplane Directorate, 1601
Lind Avenue, SW., Renton,
[[Page 39309]]
Washington; or at the FAA, Transport Airplane Directorate, Los
Angeles Aircraft Certification Office, 3960 Paramount Boulevard,
Lakewood, California; or at the Office of the Federal Register, 800
North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 18, 1996.
Stewart R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-18786 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-18772 Airworthiness Directives; Fokker Model F28 Mark 0100 and 0070 Series Airplanes
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39311-39312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18772]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-171-AD; Amendment 39-9700; AD 96-15-10]
RIN 2120-AA64
Airworthiness Directives; Fokker Model F28 Mark 0100 and 0070
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Fokker Model F28 Mark 0100 and 0070 series
airplanes, that requires modification of the wheel brake assembly on
the main landing gear. This amendment is prompted by reports of
aluminum brake pistons that have ballooned and failed. The actions
specified by this AD are intended to prevent such failure of the
pistons, which could result in leakage of the hydraulic fluid,
resultant loss of braking capability, and a possible brake fire.
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street,
Alexandria, Virginia 22314. This information may be examined at the
Federal Aviation Administration (FAA), Transport Airplane Directorate,
Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ruth Harder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-1721; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Fokker Model F28 Mark 0100
and 0070 series airplanes was published in the Federal Register on
April 10, 1996 (61 FR 15908). That action proposed to require
modification of the wheel brake assembly on the main landing gear
(MLG).
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
One commenter supports the proposal.
Request To Withdraw the Proposal
The Air Transport Association (ATA) of America, on behalf of its
member operators, has no technical objection to the proposal, but
requests that the FAA withdraw the proposal if the entire affected U.S.
fleet has been modified already. The ATA states that its one member
operator affected by the proposal will accomplish the modification on
all of its fleet within a short time. Consequently, the ATA questions
the need for an AD when the fleet will be in compliance with the AD by
the time the final rule is adopted.
The FAA does not concur with the commenter's request to withdraw
the proposal. Even if the current U.S.-registered fleet may be in
compliance with the requirements of the AD, the issuance of the rule is
still necessary to ensure that any affected airplane that is imported
and placed on the U.S. register in the future will be required to be in
compliance as well. The manufacturer has advised the FAA that not all
of the affected airplanes, worldwide, have been modified; therefore,
the possibility exists that an unmodified airplane could be imported to
the U.S. at some future time. Issuance of this AD will ensure that the
airplane is modified prior to the time it is permitted to operate in
the U.S.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 122 airplanes of U.S. registry will be
affected by this AD.
The replacement of the brake pistons, if accomplished, will take
approximately 9 work hours per airplane (when accomplished as part of a
normal brake overhaul), at an average labor rate of $60 per work hour.
Required parts will be provided by the manufacturer at no cost to
operators. Based on these figures, the cost impact of this replacement
action on U.S. operators is estimated to be $540 per airplane.
The installation of the cylinder sleeve kit, if accomplished, will
take approximately 9 work hours per airplane (when accomplished as part
of a normal brake overhaul), at an average labor rate of $60 per work
hour. Required parts will cost approximately $4,400 per airplane. Based
on these figures, the cost impact of this installation action on U.S.
operators is estimated to be $4,940 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted. However, the FAA has been advised
that at least 40 affected airplanes already have been modified in
accordance with the requirements of this AD; therefore, the future cost
impact of the AD on U.S. operators is reduced by that amount.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does
[[Page 39312]]
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:
96-15-10 Fokker: Amendment 39-9700. Docket 95-NM-171-AD.
Applicability: Model F28 Mark 0100 and 0070 series airplanes;
equipped with Aircraft Braking Systems Corporation (ABSC) brake
assemblies having part number (P/N) 5008132-2, -3, -4, -5, -6, or -
7, all serial numbers; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent loss of braking capability and possible brake fire
due to failure of the brake pistons, accomplish the following:
(a) Within 9 months after the effective date of this AD, or at
the next scheduled or unscheduled brake overhaul, whichever occurs
first: Modify ABSC wheel brake assemblies having P/N 5008132-2, -3,
-4, -5, -6, or -7, all serial numbers, by accomplishing either
paragraph (a)(1) or (a)(2) of this AD.
(1) Replace the brake assemblies with modified units having
stainless steel pistons, in accordance with the Accomplishment
Instructions of Fokker Service Bulletin SBF100-32-092, dated January
11, 1995. Or
(2) Install a cylinder sleeve kit in accordance with Aircraft
Braking Systems Service Bulletin Fo100-32-63, dated January 13,
1995.
(b) As of the effective date of this AD, no person shall install
an ABSC brake assembly having part number 5008132-2, -3, -4, -5, -6,
or -7, on any airplane unless it has been modified in accordance
with Fokker Service Bulletin SBF100-32-092, dated January 11, 1995,
or Aircraft Braking Systems Service Bulletin Fo100-32-63, dated
January 13, 1995.
(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, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The actions shall be done in accordance with Fokker Service
Bulletin SBF100-32-092, dated January 11, 1995; and Aircraft Braking
Systems Service Bulletin Fo100-32-63, dated January 13, 1995. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Fokker Aircraft USA, Inc., 1199
North Fairfax Street, Alexandria, Virginia 22314. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 18, 1996.
Stewart R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-18772 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-18771 Airworthiness Directives; Airbus Model A320-111, -211, and -231 Series Airplanes
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39315-39317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18771]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-208-AD; Amendment 39-9699; AD 96-15-09]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A320-111, -211, and -231
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Airbus Model A320-111, -211, and -231 series
airplanes, that requires repetitive high
[[Page 39316]]
frequency eddy current inspections to detect cracks around the
fasteners of the lower forward corners of the sliding window frames,
and repair, if necessary. This amendment also requires the installation
of a modification for each affected fastener hole, which terminates the
repetitive inspections. This amendment is prompted by the results of
full- scale fatigue tests which indicated that fatigue cracking
occurred on the lower forward corner of the sliding window frames at
frame 4. The actions specified by this AD are intended to prevent such
fatigue cracking, which could result in rapid depressurization of the
airplane.
DATES: Effective September 3, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 3, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Airbus Model A320-111, -
211, and -231 series airplanes was published in the Federal Register on
March 28, 1996 (61 FR 13789). That action proposed to require
repetitive high frequency eddy current inspections to detect cracks
around the fasteners of the lower forward corners of the sliding window
frames, and repair, if necessary. That action also proposed to require
the installation of a modification for each affected fastener hole,
which would terminate the repetitive inspections.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
One commenter supports the proposal.
Request To Revise Proposed Compliance Time
One commenter requests that the compliance time for the inspection
specified in proposed paragraph (a) be revised. The commenter points
out that the proposal specifies that the initial inspection is to be
accomplished prior to the accumulation of 15,000 total landings, or
within 3 months after the effective date of the final rule, whichever
occurs first. ``The commenter requests that this compliance time be
changed to ``* * * whichever occurs later.'' Since the threshold for
the proposed action is at 15,000 total flight cycles, the 3-month
``grace period'' should follow rather than precede the threshold.
The FAA concurs. The compliance language that appeared in the
proposal was in error; it should have contained the phrase ``* * *
whichever occurs later,'' rather than ``* * * whichever occurs first.''
The FAA has revised the final rule accordingly.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the change previously
described. The FAA has determined that this change will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 21 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 5 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the inspection requirements of this AD on U.S. operators is estimated
to be $6,300, or $300 per airplane, per inspection cycle.
The modification will take approximately 10 work hours to
accomplish, at an average labor rate of $60 per work hour. Required
parts will cost approximately $311 per airplane. Based on these
figures, the cost impact of the modification requirements of this AD on
U.S. operators is estimated to be $19,131, or $911 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-15-09 Airbus Industrie: Amendment 39-9699. Docket 95-NM-208-AD.
Applicability: Model A320-111, -211, and -231 series airplanes;
manufacturer's serial numbers 002 through 008 inclusive, 010 through
014 inclusive, 016 through 078 inclusive, and 080 through 098
inclusive; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area
[[Page 39317]]
subject to the requirements of this AD. For airplanes that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must request
approval for an alternative method of compliance in accordance with
paragraph (c) of this AD. The request should include an assessment
of the effect of the modification, alteration, or repair on the
unsafe condition addressed by this AD; and, if the unsafe condition
has not been eliminated, the request should include specific
proposed actions to address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent fatigue cracking on the lower forward corner of the
sliding window frames at frame 4, which could result in rapid
depressurization of the airplane, accomplish the following:
(a) Prior to the accumulation of 15,000 total landings, or
within 3 months after the effective date of this AD, whichever
occurs later, perform a high frequency eddy current inspection to
detect cracks around the 5 fasteners of the lower forward corners of
the sliding window frames at frame 4, in accordance with the
procedures of Airbus Service Bulletin A320-53-1082, Revision 1,
dated November 9, 1994.
(1) If no cracks are detected, repeat the inspection thereafter
at intervals not to exceed 15,000 landings.
(2) If any crack is detected, prior to further flight, repair it
in accordance with a method approved by the Manager, Standardization
Branch, ANM-113, FAA, Transport Airplane Directorate.
(b) Prior to the accumulation of 30,000 total landings, or
within 5 years after the effective date of this AD, whichever occurs
later, accomplish Airbus Modification 23685P3199 for each fastener
hole, in accordance with Airbus Service Bulletin A320-53-1044, dated
February 8, 1994. Accomplishment of the modification constitutes
terminating action for the repetitive inspection requirements of
paragraph (a) of this AD.
(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, Standardization Branch, ANM-113.
Operators shall submit their requests through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The inspection shall be done in accordance with Airbus
Service Bulletin A320-53-1082, Revision 1, dated November 9, 1994,
which contains the following list of effective pages:
------------------------------------------------------------------------
Page No.- Revision level shown on page Date shown on page
------------------------------------------------------------------------
1, 3............. 1 -.............................. November 9, 1994.
2, 4-19-......... Original......................... February 8, 1994.
------------------------------------------------------------------------
The modification shall be done in accordance with Airbus Service
Bulletin A320-53-1044, dated February 8, 1994. The incorporation by
reference of these documents 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 Airbus Industrie, 1 Rond Point
Maurice Bellonte, 31707 Blagnac Cedex, France. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on September 3, 1996.
Issued in Renton, Washington, on July 18, 1996.
Stewart R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-18771 Filed 7-26-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-18765 Airworthiness Directives; Hartzell Propeller Inc. HC-B3TN, HC- B5MP, HC-E4A, and HC-D4N Series Propellers
[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39309-39311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18765]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-ANE-18; Amendment 39-9697; AD 96-15-04]
Airworthiness Directives; Hartzell Propeller Inc. HC-B3TN, HC-
B5MP, HC-E4A, and HC-D4N Series Propellers
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain propeller blades, identified by serial number,
installed on Hartzell Propeller Inc. HC-B3TN, HC-B5MP, HC-E4A, and HC-
D4N series propellers. This action requires, within specified hours
time in service after the effective date of this AD, a one-time
fluorescent dye penetrant inspection of a twelve-inch long area on both
the face and camber sides of propeller blade shanks for forging flaws
or cracks, and replacement of defective propeller blades with
serviceable parts. In addition, this action requires this inspection
prior to further flight for propellers that experience sudden or
unusual vibration. This amendment is prompted by a report of an
inflight propeller blade separation. The actions specified in this AD
are intended to prevent propeller blade separation caused by propeller
blade shank cracks emanating from forging flaws, which could result in
loss of control of the aircraft.
DATES: Effective July 29, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 29, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 27, 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-18, 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
Hartzell Propeller Inc., One Propeller Place, Piqua, OH 45356-2634,
ATTN: Product Support; telephone (513) 778-4388, fax (513) 778-4321.
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: Tomaso DiPaolo, Aerospace Engineer,
Chicago Aircraft Certification Office, FAA, Small Airplane Directorate,
2300 East Devon Ave., Des Plaines, IL 60018; telephone (847) 294-7031,
fax (847) 294-7834.
SUPPLEMENTARY INFORMATION: The Federal Aviation Administration (FAA)
received a report of an inflight blade separation of a Hartzell
Propeller Inc. Model HC-D4N-5C/D9327K propeller installed on a Short
Brothers plc S-312 Tucano military aircraft in the United Kingdom. The
investigation revealed that the propeller blade separation resulted
from a crack emanating from a forging flaw in the propeller blade. This
condition, if not corrected, could result in propeller blade separation
caused by propeller blade shank cracks emanating from forging flaws,
which could result in loss of control of the aircraft.
The FAA has reviewed and approved the technical contents of
Hartzell Propeller Inc. Alert Service Bulletin (ASB) No. HC-ASB-61-220,
dated July 8, 1996, that contains a list of affected propellers by
model and serial number, and describes procedures for a one-time
fluorescent dye penetrant inspection of a twelve-inch long area on both
the face and camber sides of propeller blade shanks for forging flaws
or cracks. The propeller blades identified by serial numbers are
limited to those manufactured between March 1992 and June 1996, and
represent a group of aluminum propeller blade designs, which are:
D9327(), D9512A(), LT10673(), LT10673()-2Q, M10282()+6, M10876(),
LT10876()-2Q, and E10477K.
Since an unsafe condition has been identified that is likely to
exist or develop on other propeller blades manufactured from the same
forging die and same forging process, this AD is being issued to
prevent propeller blade separation due to propeller blade shank cracks
emanating from forging flaws, which could result in loss of control of
the aircraft. This AD requires a one-time fluorescent dye penetrant
inspection of a twelve-inch long area on both the face and camber sides
of propeller blade shanks for forging flaws or cracks, and replacement
of flawed propeller blades with serviceable parts. For propellers
installed on agricultural or acrobatic aircraft, such as certain Air
Tractor, Inc., Ayres Corporation, Norman, Pilatus Aircraft Ltd., PZL,
and Short Brothers Ltd. aircraft, compliance is required within 10
hours TIS after the effective date of this AD. These agricultural and
acrobatic aircraft operate in an environment that subjects the
propeller to high loads. For all other propellers, regardless of
aircraft installation, compliance is required within 60 hours TIS after
the effective date of this AD. In addition, this AD requires the
fluorescent dye penetrant inspection prior to further flight for
propellers that have not been inspected in accordance with this AD,
which experience a sudden or unusual vibration. This compliance prior
to further flight is necessary because a timely investigation of such
conditions can prevent propeller failure. The actions are required to
be accomplished in accordance with the ASB described previously.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD
[[Page 39310]]
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-18.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket. A copy of it, if filed, may
be obtained from the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-15-04 Hartzell Propeller Inc.: Amendment 39-9697. Docket 96-ANE-
18.
Applicability: Hartzell Propeller Inc. HC-B3TN, HC-B5MP, HC-E4A,
and HC-D4N series propellers, equipped with propeller blades
identified by serial number in Hartzell Propeller Inc. Alert Service
Bulletin (ASB) No. HC-ASB-61-220, dated July 8, 1996. The propeller
blades identified by serial numbers are limited to those
manufactured between March 1992 and June 1996, and represent a group
of aluminum propeller blade designs, which are: D9327(), D9512A(),
LT10673(), LT10673()-2Q, M10282()+6, M10876(), LT10876()-2Q, and
E10477K. These propellers are installed on but not limited to the
following aircraft:
Aerospatiale Nord 262 series (STC modified),
Air Tractor, Inc. AT-502, AT-503, and AT-802 series,
Antonov AN-28 series,
Ayres S2R series,
McDonnell Douglas DC-3 series (STC modified),
Norman Aeroplane NAC 6 series,
Pilatus Aircraft Ltd. PC-7 mk II, PC-9, and PC-12 series,
PZL PZL-M18,
Short Brothers plc S-312 Tucano (military), SD3, and C-23 (military)
series.
Twin Commander Aircraft Corp. 690 and 695 series (STC modified).
Note 1: The above is not an exhaustive list of aircraft which
may contain the affected Hartzell Propeller Inc. Models HC-B3TN, HC-
B5MP, HC-E4A, and HC-D4N series propellers because of installation
approvals made by, for example, Supplemental Type Certificate or
field approval under FAA Form 337 ``Major Repair and Alteration.''
It is the responsibility of the owner, operator, and person
returning the aircraft to service to determine if an aircraft has an
affected propeller.
Note 2: This airworthiness directive (AD) applies to each
propeller 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 propellers that
have been modified, altered, or repaired so that the performance of
the requirements of this AD is affected, the owner/operator must
request approval for an alternative method of compliance in
accordance with paragraph (d) of this AD. The request should include
an assessment of the effect of the modification, alteration, or
repair on the unsafe condition addressed by this AD; and, if the
unsafe condition has not been eliminated, the request should include
specific proposed actions to address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent propeller blade separation caused by propeller blade
shank cracks emanating from forging flaws, which could result in
loss of control of the aircraft, accomplish the following:
(a) For propellers installed on agricultural or acrobatic
aircraft, such as Air Tractor, Inc., AT-502A, AT-503, AT-802; Ayres
Corporation S2R-T65, S2RHG-265; Norman Aeroplane NAC 6; Pilatus
Aircraft Ltd. PC-7 mk II, PC-9; PZL PZL-M18, and Short Brothers Ltd.
S-312 Tucano (military) aircraft, accomplish the following:
(1) Within 10 hours TIS after the effective date of this AD,
disassemble the propeller and perform a one-time fluorescent dye
penetrant inspection of a twelve-inch long area on both the face and
camber sides of propeller blade shanks for forging flaws or cracks,
in accordance with Hartzell Propeller Inc. ASB No. HC-ASB-61-220,
dated July 8, 1996.
(2) Prior to further flight, remove from service propeller
blades exhibiting forging flaws or cracks and replace with
serviceable parts.
(b) For all other propellers, regardless of aircraft
installation, accomplish the following:
(1) Within 60 hours TIS after the effective date of this AD,
disassemble the propeller and perform a one-time fluorescent dye
penetrant inspection of a twelve-inch long area on both the face and
camber sides of propeller blade shanks for forging flaws or cracks
in accordance with Hartzell Propeller Inc. ASB No. HC-ASB-61-220,
dated July 8, 1996.
(2) Prior to further flight, remove from service propeller
blades exhibiting forging flaws or cracks and replace with
serviceable parts.
(c) For propellers that have not been inspected in accordance
with this AD, which experience a sudden or unusual vibration,
accomplish the following:
(1) Prior to further flight, disassemble the propeller and
perform a one-time fluorescent dye penetrant inspection of a twelve-
inch long area on both the face and camber sides of propeller blade
shanks for forging flaws or cracks in accordance with Hartzell
Propeller Inc. ASB No. HC-ASB-61-220, dated July 8, 1996.
(2) Prior to further flight, remove from service propeller
blades exhibiting forging flaws or cracks and replace with
serviceable parts.
(d) 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, Chicago Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Maintenance Inspector, who may add comments and then send it to the
Manager, Chicago Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Chicago Aircraft Certification
Office.
(e) Except for propellers subject to paragraph (c) of this AD,
special flight
[[Page 39311]]
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.
(f) The actions required by this AD shall be done in accordance
with the following Hartzell Propeller Inc. service document:
------------------------------------------------------------------------
Document No. Pages Date
------------------------------------------------------------------------
ASB No. HC-ASB-61-220.............. 1-24 July 8, 1996.
Total pages: 24.
------------------------------------------------------------------------
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 Hartzell Propeller Inc., One
Propeller Place, Piqua, OH 45356-2634; telephone (513) 778-4388, fax
(513) 778-4321. 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.
(g) This amendment becomes effective on July 29, 1996.
Issued in Burlington, Massachusetts, on July 17, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-18765 Filed 7-24-96; 4:53 pm]
BILLING CODE 4910-13-P
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