issue-1996-05-16•Federal Register final rules — 1996-05-16
Federal Register final rules — 1996-05-16
issue-1996-05-16Federal Register final rules — 1996-05-16Regulation
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FR Doc. 96-12357 Approval and Promulgation of Implementation Plan; Ohio
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24702-24706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12357]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH90-1-7255a; FRL-5500-5]
Approval and Promulgation of Implementation Plan; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: This document conditionally approves a revision to the Ohio
State Implementation Plan (SIP) to meet the requirements of the USEPA
transportation conformity rule. The transportation conformity SIP
revisions enable the State of Ohio to implement and enforce the Federal
transportation conformity requirements at the State or local level. The
Federal transportation conformity rule has been amended twice since the
original 1993 publication, and the Ohio SIP will need to be amended to
accommodate the changes. The purpose of transportation conformity is to
assure that transportation plans, programs and projects, approved by
the United States Department of Transportation conform to the purpose
of the SIP to attain and maintain the public health based air quality
standards. The rationale for this conditional approval and other
information are provided in this document.
DATES: This ``direct final'' rule is effective on July 15, 1996, unless
USEPA receives adverse or critical comments by June 17, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
Addresses: Copies of the SIP revision are available for inspection at
the following address: (It is recommended that you telephone Patricia
Morris at (312) 353-8656 before visiting the Region 5 Office.)
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch, (AR-18J), 77 West
Jackson Boulevard, Chicago, Illinois 60604.
[[Page 24703]]
FOR FURTHER INFORMATION CONTACT: Patricia Morris, 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)
353-8656.
SUPPLEMENTARY INFORMATION:
I. Background
Conformity provisions first appeared in the Clean Air Act (CAA)
amendments of 1977 (Public Law 95-95). Although these provisions did
not specifically define conformity, they provided that no Federal
department could engage in, support in any way or provide financial
assistance for, license or permit, or approve any activity which did
not conform to a SIP which has been approved or promulgated.
The CAA Amendments of 1990 expanded the scope and content of the
conformity provisions by defining conformity to an implementation plan.
Conformity is defined in section 176(c) of the CAA as conformity to the
SIP's purpose of eliminating or reducing the severity and number of
violations of the National Ambient Air Quality Standards 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.
The CAA requires USEPA to promulgate criteria and procedures for
determining conformity of all Federal actions (transportation and
general) to a SIP (42 U.S.C. 7506(c)). The USEPA published the final
transportation conformity rules in the Federal Register on November 24,
1993, and codified them at 40 CFR part 51, subpart T--Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Act. The conformity rules require the
States and local agencies to adopt and submit a transportation
conformity SIP revision to the USEPA not later than November 24, 1994
(40 CFR 51.396). This document does not address the conformity
requirements of general Federal actions as required pursuant to 40 CFR
part 51, subpart W. USEPA intends to take action on these requirements
in a separate document.
The federal transportation conformity rule was subsequently amended
on August 8, 1995, and again on November 14, 1995. The November 14,
1995, amendments allow 12 months from November 14, 1995, or until
November 14, 1996 for States to submit a transportation conformity SIP
revision consistent with these amendments. The submittal approved in
this document is not consistent with these November 14, 1995, federal
conformity amendments. However, Ohio has committed to submit another
transportation conformity SIP revision consistent with these recent
amendments by November 14, 1996. The OEPA has formalized their
commitment in a letter dated April 1, 1996, incorporated herein by
reference.
II. Evaluation of State Submittal
Pursuant to the requirements under section 176(c)(4)(C) of the
Clean Air Act, the Ohio Environmental Protection Agency (OEPA)
submitted a SIP revision to the USEPA on August 17, 1995. This
submittal was found to be complete on October 5, 1995. In its
submittal, the State adopted State rules to meet the requirements of 40
CFR part 51, subpart T, as published on November 24, 1993.
Transportation conformity is required for all nonattainment or
maintenance areas for any transportation related criteria pollutants
(40 CFR 51.394 (b)).
The State of Ohio currently has 28 counties which are ozone
nonattainment or ozone maintenance areas. The areas are identified as
follows: Toledo area (Lucas and Wood Counties), Cleveland/Akron area
(Lorain, Cuyahoga, Medina, Summit, Portage, Geauga, Lake, and Ashtabula
Counties), Youngstown area (Trumbull and Mahoning Counties), Canton
(Stark County), Columbus (Franklin, Delaware and Licking Counties),
Cincinnati (Hamilton, Butler, Clermont, and Warren Counties), Dayton
(Preble, Montgomery, and Greene Counties), Springfield (Miami and Clark
Counties), and Clinton County, and Columbiana County, and Jefferson
County. In addition to the ozone nonattainment and maintenance areas,
Cuyahoga County is also maintenance for carbon monoxide.
Section 51.396 of the final transportation conformity rule requires
that the majority of the Federal rules be incorporated in verbatim
form, with only a few exceptions. In addition, the rule states that the
State rules can not be more stringent than the Federal rules unless the
conformity provisions ``apply equally to non-Federal as well as Federal
entities'' (40 CFR 51.396(a)).
The OEPA held a public hearing on the transportation conformity
submittal on May 25, 1995. One comment was received by the OEPA and was
addressed in the submittal.
Consultation
The Federal rules require the SIPs to include processes and
procedures for interagency consultation among the Federal, State, and
local agencies and resolution of conflicts in accordance with the
criteria set forth in 40 CFR 51.402. Specifically, to implement the
requirements of Sec. 51.402, the SIP revisions must include processes
and procedures to be undertaken by Metropolitan Planning Organizations
(MPOs), State Department of Transportation (DOT), and the United States
Department of Transportation (USDOT) with State and local air quality
agencies and USEPA before making conformity determinations, and by
State and local air quality agencies and USEPA with MPOs, State
Department of transportation, and USDOT in developing applicable SIPs.
The consultation portion of the SIP is among the exceptions which
are not required to be incorporated in verbatim form. The consultation
section requires State and local (where applicable) air quality
agencies to develop their own consultation rules.
In order to satisfy these consultation requirements, the OEPA
developed consultation procedures by using the requirements of 40 CFR
51.402 and 23 CFR 450 (the metropolitan planning regulations), and by
integrating the local procedures and processes into the final
consultation rule. The consultation procedures outline the roles and
responsibilities of each of the responsible agencies for the process
for determining conformity. The consultation procedures further
document the process of conflict resolution in the transportation
conformity process, implementing the public participation process, and
the documentation to be submitted in a conformity determination. The
conformity SIP revision submitted has adequately addressed all
provisions of 40 CFR 51.402 and has met the USEPA SIP requirements.
Verbatim Sections and Amendments to the Federal Rule
Section 51.396 of transportation conformity rule states that to be
approved by the USEPA, the SIP revision submitted to USEPA must
``address all requirements of this subpart in a manner which gives them
full legal effect''. In particular, the revision shall incorporate the
provisions of the following sections in verbatim form, except insofar
as needed to give
[[Page 24704]]
effect to a stated intent in the revision to establish criteria and
procedure more stringent than the requirements stated in these
sections: 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 51.412,
51.414, 51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 51.430,
51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 51.448,
51.450, 51.460, and 51.462.'' The State of Ohio submittal incorporated
all of the above sections in verbatim form following the November 24,
1993, version of the Federal rules, with only clarifying changes.
It should be noted, however, that on February 8, 1995, USEPA
promulgated an interim final rule that amended certain provisions of 40
CFR 51.448 in the Federal transportation conformity rules. The rule was
made permanent with an August 7, 1995, final rule (60 FR 40098) after
the USEPA took public comment on the interim final rule. On November
14, 1995, the USEPA finalized a second set of amendments to the
conformity rule. It has not been USEPA's policy to approve sections
into the SIP where major inconsistencies exist between the submittal
and the final transportation conformity rule in terms of the portions
that are required to be verbatim. In some cases where the difference is
minor and has no weakening effect, the USEPA can approve the State
rule. However, in cases where the State rule is more stringent, Sec.
51.396 requires that the ``State's conformity provisions apply equally
to non-Federal as well as Federal entities.'' The second set of
amendments allows States until November 14, 1996, to revise the State
conformity SIP to comply with the Federal changes.
The USEPA believes that the OEPA has complied with the SIP
requirements and has adopted the Federal rules which were in effect at
the time that the transportation conformity SIP was due to the USEPA.
The OEPA in no way intentionally adopted rules that were not in
verbatim form or more stringent than the Federal rule. Therefore, it
would be unreasonable to discredit the agency's good faith effort in
submitting the transportation conformity SIP and disapprove the State's
SIP. The OEPA will be required to submit a SIP revision in the near
future to incorporate the amended portions of the Federal
transportation conformity rules and has committed to do so in its April
1, 1996, letter.
The first set of amendments (60 FR 40098-60 FR 40101) significantly
revises Sec. 51.448, to align the timing of the transportation
improvement program (TIP) lapsing provisions in cases of state air
quality planning failures with the imposition of Clean Air Act highway
sanctions. In the case of a conformity lapse, transportation projects
could not be approved or funded by the USDOT unless they were listed as
exempt. A conformity lapse is similar to a highway sanction in that it
can stop highway projects from being funded. The Ohio rule has not yet
incorporated this change and therefore is different and in this case,
more stringent than the current Federal transportation conformity rule.
The second set of amendments in 60 FR 57179, make the following
changes to the Federal conformity rule:
(1) transportation control measures (TCMs) from an approved SIP can
proceed during a conformity lapse;
(2) further amends Sec. 51.448 to align conformity lapses with the
date of application of CAA highway sanctions for any failure to submit
or submission of an incomplete control strategy SIP;
(3) extends the duration of the grace period for areas which must
determine conformity to a submitted control strategy implementation
plan;
(4) establishes a grace period before which transportation plan and
program conformity must be determined in newly designated nonattainment
areas; and
(5) corrects (or clarifies) the nitrogen oxides provisions of the
transportation conformity rule consistent with the CAA so that a
NOX budget test is required in areas which have been granted a
NOX waiver (60 FR 57179).
These changes result in the Federal rule and the Ohio rule being
different in sections that are required to be in verbatim form.
However, the USEPA believes that conditional approval is appropriate in
this situation. Although these changes may appear extensive, the
difference from the Ohio rules should have little effect during the
time period before the State amends the State conformity rules. Each of
the changes are discussed individually below:
(1) TCM's in the approved SIPs: Ohio does not currently have TCMs
in the approved SIP for the Ohio nonattainment and maintenance areas.
Therefore, this change to the Federal rule will have no effect on the
Ohio areas. However, any future selected contingency measures which may
include TCMs would not be able to proceed in the case of a conformity
lapse. If Ohio changes its rules by November 14, 1996, there should be
very little effect on the Ohio areas.
(2) Lapsing Provisions: The extensive changes to the Federal rule
in 40 CFR 51.448 make the Ohio rule more stringent than the Federal
rule, as amended. Section 51.448 deals with the time period before a
nonattainment area has an approved maintenance plan (the transition
from the ``interim period'' to the ``control strategy period''). Most
of the Ohio areas have approved maintenance plans and are now in the
control strategy period, and thus, are not affected by this section.
The only area which is still in the interim period is the Cincinnati
ozone nonattainment area. The Cincinnati area currently has a complete
15 percent rate of progress plan. Thus, this section would apply to the
Cincinnati area only if the 15 percent plan or other control strategy
plan were disapproved. Section 51.448(g)(2) applies to moderate ozone
nonattainment areas using photochemical dispersion modeling to
demonstrate reductions ``even if the area has submitted the 15 percent
emission reduction demonstration''. However, the USEPA has not started
any sanctions clocks due to a State's failure to submit as stated in
Sec. 51.448(b)(1) and therefore, the Cincinnati area is not a candidate
for a conformity lapse under this section, nor under OAC 3745-101-13,
at least not within the next 12 months.
The Federal conformity rule allows the State rule to be more
stringent when the State rule applies equally to non-Federal projects.
However, the Ohio rules do not extend to non-Federal projects. In the
case of a conformity lapse, transportation plans, programs and projects
could not be approved by USDOT. In some cases, non-Federal projects
which are regionally significant and need a Federal action such as a
National Environmental Protection Act (NEPA) decision would also be
unapproved because of the need for a Federal action. In other cases,
the non-Federal project could possibly proceed in the event of a lapse.
In the case of Texas (60 FR 56244) and New Mexico (60 FR 56241), the
Federal approval of State rules did not include the section
corresponding to the Federal Sec. 51.448. If USEPA were to approve this
State provision, Ohio would have a transportation conformity rule more
stringent than other areas of the nation. However, OEPA has committed
to submit a SIP revision to address this issue by November 14, 1996.
(3) Extending the grace period for conformity to a submitted
control strategy SIP: Extending the grace period for areas to determine
conformity to a control strategy SIP is not expected to significantly
affect the Ohio nonattainment and maintenance areas. Through excellent
consultation procedures, the Ohio areas have participated in the
control strategy mobile source budget development and it is USEPA's
evaluation that the areas
[[Page 24705]]
are aware of the need to show conformity to the budget where
appropriate.
(4) Conformity for newly designated nonattainment areas: This
change establishes a grace period for newly designated nonattainment
areas. There are no newly designated nonattainment areas in the State
of Ohio, nor does the USEPA anticipate newly designated nonattainment
areas in the near future.
(5) Conformity to a NOX budget in areas with a NOx
waiver: The correction (or clarification) of the need to show
conformity to the NOX mobile source budget in areas which have
NOX waivers is important to the many areas in Ohio which have been
granted NOX waivers. The Ohio conformity consultation process has
already confirmed that the correct interpretation of the rule is to
require a NOX budget test in these areas. Therefore, although this
clarification is important, the clarification in Ohio has been
accomplished through the consultation process.
Therefore, the USEPA believes that the Ohio rules can be
conditionally approved based on the State's commitment letter dated
April 1, 1996, and the above analysis.
III. USEPA Action
The USEPA conditionally approves the Ohio transportation conformity
SIP revision. This conditional approval is based, in part, on the
State's commitment, submitted in a letter on April 1, 1996, to submit
revised transportation conformity rules to incorporate the two
amendments to the federal transportation conformity regulations. The
State of Ohio committed to revise its transportation conformity rules
by November 14, 1996. If the State ultimately fails to meet its
commitment to meet these requirements within one year of final
conditional approval, then USEPA's action for the State's requested SIP
revision will automatically convert to a final disapproval. This
conditional approval is consistent with USEPA's authority under section
110(k)(4) of the Act.
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. This action will become
effective on July 15, 1996. However, if we receive adverse comments by
June 17, 1996, EPA will publish a document that withdraws this action.
IV. 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 D. 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., USEPA
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, USEPA 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 USEPA 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).
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA 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 USEPA 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 USEPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
The USEPA 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.
D. 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 July 15, 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, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Ozone, Transportation conformity, Transportation-air quality planning,
Volatile organic compounds.
Dated: April 19, 1996.
Valdas V. Adamkus,
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 KK--Ohio
2. Section 52.1919 is amended by adding and reserving paragraph
(a)(2) and by adding paragraph (a)(3) to read as follows:
Sec. 52.1919 Identification of plan-conditional Approval.
(a)* * *
(3) Conditional Approval--On August 17, 1995, the Ohio
Environmental Protection Agency submitted a revision to the State
Implementation Plan. The
[[Page 24706]]
submittal pertained to a plan for the implementation of the federal
transportation conformity requirements at the State or local level in
accordance with 40 CFR part 51, subpart T--Conformity to State or
Federal Implementation Plans of Transportation Plans, Programs, and
Projects Developed, Funded or Approved Under Title 23 U.S.C. or the
Federal Transit Act. This conditional approval is based, in part, on
the State's commitment, submitted in a letter on April 1, 1996, to
submit revised transportation conformity rules to incorporate the two
amendments to the federal transportation conformity regulations. The
State of Ohio committed to revise its transportation conformity rules
by November 14, 1996. If the State ultimately fails to meet its
commitment to meet these requirements within one year of final
conditional approval, then USEPA's action for the State's requested SIP
revision will automatically convert to a final disapproval.
(i) Incorporation by reference. August 1, 1995, Ohio Administrative
Code Chapter 3745-101, effective August 21, 1995.
* * * * *
[FR Doc. 96-12357 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12355 Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Approval of Source-Specific VOC and NOINFX RACT and Synthetic Minor Permit Conditions, and 1990 Baseyear Emissions for one Source
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24706-24709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12355]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 078-4019a; FRL-5467-6]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Approval of Source-Specific VOC and NOX RACT and
Synthetic Minor Permit Conditions, and 1990 Baseyear Emissions for one
Source
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania. This revision
establishes and requires reasonably available control technology (RACT)
on eleven major sources, establishes permit conditions to limit three
sources' emissions to below major source levels, and establishes 1990
baseyear VOC and NOX emissions for one source. This action affects
a total of 14 sources. The intended effect of this action is to approve
source-specific plan approvals, operating permits, and compliance
permit and emission inventory figures for emission units at one source,
which establish the above-mentioned requirements in accordance with the
Clean Air Act. This action is being taken under section 110 of the
Clean Air Act.
DATES: This action is effective July 1, 1996, unless notice is received
on or before June 17, 1996, that adverse or critical comments will be
submitted. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107;
the Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460;
Pennsylvania Department of Environmental Protection, Bureau of Air
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at
the EPA Region III office or via e-mail at
[email protected]. While information may be requested via
e-mail, comments must be submitted in writing to the above Region III
address.
SUPPLEMENTARY INFORMATION: On January 6, 1995, July 5, 1995 (as amended
on November 22, 1995), August 1, 1995, and September 20, 1995, the
Commonwealth of Pennsylvania submitted formal revisions to its State
Implementation Plan (SIP). The SIP revisions that are the subject of
this rulemaking consist of plan approvals, operating permits and a
compliance permit for ten individual sources of volatile organic
compounds (VOCs) and/or nitrogen oxides (NOX) located in
Pennsylvania. This rulemaking addresses the compliance permit and those
plan approvals and operating permits pertaining to the following
sources: (1) U.G.I. Utilities, Inc. (Luzerne Co.)--utility, (2) Solar
Turbines (York Co.)--cogeneration facility, (3) Columbia Gas
Transmission--Renovo Compressor Station (Clinton Co.)--natural gas
compressor station, (4) National Fuel Gas Supply Corporation--East Fork
Compressor Station (Potter Co.)--natural gas compressor station, (5)
York Resource Energy Systems, Inc. (York Co.)--municipal waste
combustion facility, (6) W.R. Grace & Co.--Formpac Division (Berks
Co.)--expandable polystyrene blowing facility, (7) CNG Transmission--
Cherry Tree Station (Indiana Co.)--natural gas transmission station,
(8) EPC Power Corporation of Bethlehem--Crozer Chester Cogeneration
plant (Delaware Co.)--cogeneration plant, (9) C-P Converters, Inc.
(York Co.)--flexographic printing operation, (10) Fisher Scientific Co.
International--Instrument Manufacturing Division (Indiana Co.). In
addition, the permits containing provisions limiting source emissions
to synthetic minor source levels (below RACT threshold level of 100
tons per year of potential NOX emissions) are being approved for
five sources: a) Adelphi Kitchens, Inc.--Robesonia factory (Berks
Co.)--wood furniture coating operation, b) Birchcraft Kitchens, Inc.
(Berks Co.)--wood furniture coating operation, and c) Glasgow, Inc.--
Bridgeport asphalt plant (Montgomery Co.)--asphalt plant. In addition,
on July 5, 1995 (as amended on November 22, 1995) and March 18, 1996,
Pennsylvania submitted a RACT determination and 1990 baseyear emission
inventory figures for General Glass--Jeannette Plant (Westmoreland Co.)
for EPA approval into the Pennsylvania SIP. Therefore, this rulemaking
will also address the approval of the RACT determination for the
emission units at General Glass--Jeannette plant and the establishment
of 1990 baseyear emissions for these emission units. The other plan
approvals and operating permits submitted together with these being
approved today will be addressed in another rulemaking notice.
Pursuant to sections 182(b)(2) and 182(f) of the Clean Air Act
(CAA), Pennsylvania is required to implement RACT for all major VOC and
NOX sources by no later than May 31, 1995. The major source size
is determined by its location, the classification of that area and
whether it is located in the ozone transport region (OTR), which is
established by the CAA. The Pennsylvania portion of the Philadelphia
ozone nonattainment area consists of Bucks, Chester, Delaware,
Montgomery, and Philadelphia Counties and is classified as severe. The
remaining counties in Pennsylvania are classified as either moderate or
marginal nonattainment areas or are designated attainment for ozone.
However, under section 184 of the CAA, at a minimum, moderate ozone
nonattainment area requirements (including RACT as specified in
sections 182(b)(2) and 182(f)) apply throughout the OTR.
[[Page 24707]]
Therefore, RACT is applicable statewide in Pennsylvania.
The January 6, 1995, July 5, 1995 (as amended on November 22,
1995), August 1, 1995, and September 20, 1995 Pennsylvania submittals
that are the subject of this notice, are meant to satisfy the RACT
requirements for 11 sources in Pennsylvania and to limit the potential
VOC emissions at three sources to below the major source size threshold
in order to avoid the RACT requirement.
Summary of SIP Revision
The details of the RACT requirements for the source-specific plan
approvals and operating permits can be found in the docket and
accompanying technical support document and will not be reiterated in
this document. Briefly, EPA is approving eight plan approvals, six
operating permits and one compliance permit as RACT and three operating
permits as revisions to the Pennsylvania SIP to limit three sources'
emissions to below the major source threshold. Several of the plan
approvals and operating permits contain conditions irrelevant to the
determination of VOC or NOX RACT. Consequently, these provisions
are not being included in this approval for VOC or NOX RACT. In
addition, a correction to the Pittsburgh area 1990 baseyear emissions
inventory for one source is being made through this rulemaking
document.
RACT
EPA is approving the plan approval (PA 40-0005A) and operating
permit (OP 40-0005) for U.G.I. Utilities, Inc., located in Luzerne
County. U.G.I. Utilities, Inc. is a utility and is considered a major
source of NOX emissions. EPA is approving the plan approval (PA
67-2009) and compliance permit (CP 67-2009) for Solar Turbines. Inc.,
located in York County. Solar Turbines, Inc. is a cogeneration plant
and is considered a major source of NOX emissions. Included in
Solar Turbines RACT determination is a compliance date extension until
December 31, 1997 for the installation of dual fuel dry low NOX
combustors on six natural gas turbines. EPA is approving the plan
approval (PA 18-0001) and operating permit (OP 18-0001) for Columbia
Gas Transmission Corporation--Renovo Compressor Station, located in
Clinton County. Columbia Gas Transmission Corporation--Renovo
Compressor Station is a natural gas compressor station and is
considered a major source of NOX emissions. EPA is approving the
plan approval (PA 53-0007A) and operating permit (OP 53-0007) for
National Fuel Gas Supply Corporation--East Fork Compressor Station,
located in Potter County. National Fuel Gas Supply Corporation--East
Fork Compressor Station is a natural gas compressor station and is
considered a major source of NOX emissions. EPA is approving the
plan approval (PA 67-2006) for York Resource Enery Systems, Inc.,
located in York County. York Resource Enery Systems, Inc. is a
municipal waste combustion facility and is considered a major source of
NOX emissions. EPA is approving the plan approvals (PA 06-1036 and
PA 06-315-001) for W.R. Grace & Co.--Formpac Division, located in Berks
County. W.R. Grace & Co.--Formpac Division is an expandable polystyrene
foam product manufacturer and is considered a major source of VOC
emissions. EPA is approving the plan approval (PA 32-000-303) for CNG
Transmission Corporation--Cherry Tree Station, located in Indiana
County. CNG Transmission Corporation--Cherry Tree Station is a natural
gas compressor station and is considered a major source of NOX
emissions. EPA is approving the operating permit (OP 23-0007) for EPC
Power Corporation of Bethlehem--Crozer-Chester Cogeneration plant,
located in Delaware County. EPC Power Corporation of Bethlehem--Crozer-
Chester Cogeneration plant is a cogeneration plant and is considered a
major source of NOX emissions. EPA is approving the operating
permit (OP 67-2030) for C-P Converters, Inc., located in York County.
C-P Converters, Inc. is a flexographic printing operation and is
considered a major source of VOC emissions. EPA is approving the
operating permit (OP 32-000-100) for Fisher Scientific Co.
International--Instrument Manufacturing Division, located in Indiana
County. Fisher Scientific Co. International--Instrument Manufacturing
Division is a coater of laboratory instruments and is considered a
major source of VOC emissions.
The specific emission limitations and other RACT requirements for
these sources are summarized in the accompanying technical support
document, which is available from the EPA Region III office.
Several of the plan approvals/operating permits contain a provision
that allows for future changes to the emission limitations based on CEM
or other monitoring data. Since EPA cannot approve emission limitations
that are not currently before it, any changes to the emission
limitations as submitted on January 6, 1995, July 5, 1995, August 1,
1995, and September 20, 1995 to EPA must be resubmitted to and approved
by EPA in order for these changes to be incorporated into the
Pennsylvania SIP. Consequently, the source-specific RACT emission
limitations that are being approved into the Pennsylvania SIP are those
that were submitted on the above-mentioned dates and are the subject of
this rulemaking document. These emission limitations will remain part
of the SIP unless and until a revised limitation is approved by EPA
pursuant to 40 CFR part 51 and approved by the U.S. EPA. In addition,
several of the plan approvals and operating permits contain a general
provision that would allow compliance date extensions at the request of
the source and approval by Pennsylvania without EPA approval. While EPA
does not automatically rule out the possibility of compliance date
extensions, EPA cannot pre-approve compliance date extensions that have
not been submitted to it for review through such general provision.
In addition, EPA is establishing RACT for the glass furnace (No. 2)
and kilns (#1 through 4) at the now shutdown General Glass--Jeannette
plant. These sources represent the only NOX emitting sources at
the plant at the time of its shutdown on July 8, 1993. All of these
sources ceased operation and had their permits revoked on July 8, 1993.
RACT for these sources is determined to be no additional controls. The
total post-RACT NOX emissions (based on a three year average of
operating conditions) for these sources is 518 tons per year. The 1990
baseyear VOC and NOX emissions for the above-named sources are
also being approved. The NOX 1990 emissions from the glass melting
furnace are 508.2 TPY. The NOX 1990 emissions from the four kilns
are 11.8 TPY. EPA is also using this document to recognize the 518 tons
of NOX per year emission reduction credits created by the shutdown
of this plant.
Synthetic Minor Permits
EPA is approving the operating permit (OP 06-1001) for Adelphi
Kitchens, Inc.--Robesonia factory, located in Berks County. Adelphi
Kitchens, Inc.--Robesonia factory is a wood furniture manufacturing
facility and had potential VOC emissions greater than 50 TPY. EPA is
approving the operating permit (OP 06-1005) for Birchcraft Kitchens,
Inc.--Reading factory, located in Berks County. Birchcraft Kitchens,
Inc.--Reading factory is a wood furniture manufacturing facility and
had potential VOC emissions greater than 50 TPY. The approval of the
conditions in each of these facilities' respective permits will limit
the emissions at those facilities to less than 50 TPY and would
[[Page 24708]]
allow them to avoid being considered major VOC sources, subject to the
major source RACT requirements of the Clean Air Act and the
Pennsylvania regulation. EPA is also approving the operating permit (OP
46-0044) for Glasgow, Inc.--Bridgeport Asphalt Plant, located in
Montgomery County. Glasgow, Inc.--Bridgeport Asphalt Plant is an
asphalt plant and had potential VOC and NOX emissions greater than
25 TPY. Montgomery County is part of the Philadelphia severe ozone
nonattainment area, to which the more stringent 25 TPY major source
threshold applies.
The technical support document contains the details of each of the
RACT determinations, synthetic minor permit conditions, and 1990
baseyear emissions calculations. It is available at the EPA Region III
office listed in the Addresses section of this document.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective July 1, 1996, unless, by June 17, 1996, adverse or critical
comments are received.
If 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. 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 on July 1, 1996. If adverse
comments are received that do not pertain to all documents subject to
this rulemaking action, those documents not affected by the adverse
comments will be finalized in the manner described here. Only those
documents that receive adverse comments will be withdrawn in the manner
described here.
Final Action
EPA is approving eight plan approvals, six operating permits, and
one compliance permit as RACT for ten individual sources, three
operating permits to limit emissions at three facilities to below major
source levels, and the RACT determination and the 1990 baseyear
emissions for the glass melting furnace and four kilns at General
Glass--Jeannette plant.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act 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
Administrator 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 flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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.
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 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to the approval of eleven
source-specific VOC and NOX RACT determinations, three synthetic
minor permits, and correction to the 1990 baseyear emissions inventory
in Pennsylvania, must be filed in the United States Court of Appeals
for the appropriate circuit by July 15, 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, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements.
Dated: April 19, 1996.
W.T. Wisniewski,
Acing Regional Administrator, Region III.
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 NN--Pennsylvania
2. Section 52.2020 is amended by adding paragraph (c)(108) to read
as follows:
Sec. 52.2020 Identification of plan.
* * * * *
(c) * * *
(108) Revisions to the Pennsylvania Regulations, Chapter 129.91
pertaining to VOC and NOX RACT, submitted on January 6, 1995, July
5, 1995, July 31, 1995, August 1, 1995, September 20, 1995, November
22, 1995, and March 18, 1996 by the Pennsylvania Department of
Environmental Resources (now known as the Pennsylvania Department of
Environmental Protection):
(i) Incorporation by reference.
(A) Seven letters, dated January 6, 1995, July 5, 1995, July 31,
1995, August 1, 1995, September 20, 1995, November 22, 1995, and March
18, 1996 from the
[[Page 24709]]
Pennsylvania Department of Environmental Resources (now known as the
Pennsylvania Department of Environmental Protection) transmitting
source specific VOC and/or NOX RACT determinations in the form of
plan approvals or operating permits for the following sources: U.G.I.
Utilities, Inc. (Luzerne Co.)--utility, Solar Turbines (York Co.)--
cogeneration facility, Columbia Gas Transmission--Renovo Compressor
Station (Clinton Co.)--natural gas compressor station, National Fuel
Gas Supply Corporation--East Fork Compressor Station (Potter Co.)--
natural gas compressor station, York Resource Energy Systems, Inc.
(York Co.)--municipal waste combustion facility, W.R. Grace & Co.--
Formpac Division (Berks Co.)--expandable polystyrene blowing facility,
CNG Transmission--Cherry Tree Station (Indiana Co.)--natural gas
transmission station, EPC Power Corporation of Bethlehem (Delaware
Co.)--Crozer Chester Cogeneration Plant, C-P Converters, Inc. (York
Co.)--flexographic printing operation, Fisher Scientific Co.
International--Instrument Manufacturing Division (Indiana Co.). In
addition, the permits containing provisions limiting source emissions
to synthetic minor sources levels (below RACT threshold level of 100
tons per year or 25 TPY of potential NOX emissions and 50 TPY or
25 TPY for potential VOC emissions) are being approved for three
sources: Adelphi Kitchens, Inc.--Robesonia factory (Berks Co.)--wood
furniture coating operation, Birchcraft Kitchens, Inc.--Reading factory
(Berks Co.)--wood furniture coating operation, and Glasgow, Inc.--
Bridgeport Asphalt Plant (Montgomery Co.)--asphalt plant.
(B) Plan approvals (PA), Operating permits (OP), Compliance permit
(CP):
(1) U.G.I. Utilities, Inc.--OP 40-0005, effective December 20, 1994
and PA 40-0005A, effective December 20, 1994, except the expiration
date of the plan approval and conditions # 18, 19, and 20 pertaining to
non-VOC or NOX emissions and ash and waste oil requirements.
(2) Solar Turbines--PA 67-2009, effective August 17, 1995, except
the expiration date of the plan approval and CP 67-2009, effective
August 17, 1995, except the expiration date of the compliance permit.
(3) Columbia Gas Transmission--Renovo Compressor Station--OP 18-
0001, effective July 18, 1995, except the expiration date of the
operating permit and condition #8, pertaining to compliance date
extensions and PA 18-0001, effective July 18, 1995, except the
expiration date of the plan approval and condition #14, pertaining to
compliance date extensions.
(4) National Fuel Gas Supply Corporation--East Fork Compressor
Station--OP 53-0007, effective July 17, 1995, except the expiration
date of the operating permit, including the corrections to condition #6
and 13 (from a letter dated July 31, 1995) and PA 53-0007A, effective
July 17, 1995, except the expiration date of the plan approval.
(5) York Resource Energy Systems, Inc.--PA 67-2006, effective
August 25, 1995, except the expiration date of the plan approval and
the non-VOC or non-NOX elements in conditions #4, 8, 9, 10 12, 18,
and 19.
(6) W.R. Grace & Co.--Formpac Division--PA 06-1036, effective May
12, 1995, except the expiration date of the plan approval and condition
#10 (d) and (e) pertaining to compliance date extensions and PA 06-315-
001, effective June 4, 1992, except the expiration date of the plan
approval.
(7) CNG Transmission Corporation--Cherry Tree Station--PA 32-000-
303, effective July 5, 1995, except the expiration date of the plan
approval, the elements in condition #6 pertaining to carbon monoxide,
and condition #16 D. and E. pertaining to compliance date extensions.
(8) EPC Power Corporation of Bethlehem--Crozer Chester Cogeneration
plant--OP 23-0007, effective June 8, 1995, except the expiration date
of the operating permit.
(9) C-P Converters, Inc.--OP 67-2030, effective August 30, 1995,
except the expiration date of the operating permit.
(10) Fisher Scientific--Instrument Manufacturing Division--OP 32-
000-100, effective July 18, 1995, except the expiration date of the
operating permit.
(11) Adelphi Kitchens, Inc.--Robesonia factory--OP 06-1001,
effective April 4, 1995, except the expiration date of the operating
permit.
(12) Birchcraft Kitchens, Inc.--Reading factory--OP 06-1005,
effective April 4, 1995, except the expiration date of the operating
permit.
(13) Glasgow, Inc.--Bridgeport Asphalt Plant--OP 46-0044, effective
June 7, 1995, except the expiration date of the operating permit.
(ii) Additional material.
(A) Remainder of January 6, 1995, July 5, 1995, August 1, 1995,
September 20, 1995, State submittals.
(B) Revision to the Pennsylvania SIP dated March 18, 1996,
submitted by the Pennsylvania Department of Environmental Protection,
pertaining to the 1990 emission inventory for General Glass--Jeannette,
Westmoreland County.
3. Section 52.2037 is amended by adding paragraph (d) to read as
follows:
Sec. 52.2037 Control Strategy: Carbon monoxide and ozone
(hydrocarbons).
* * * * *
(d) NOX RACT determination for the no. 2 glass melting furnace
and the four kilns at the General Glass--Jeannette plant, which
manufactured flat glass, is the current operation, consisting of no
additional controls.
4. Section 52.2036 is amended by adding paragraph (c) to read as
follows:
Sec. 52.2036 1990 Baseyear Emission Inventory.
* * * * *
(c) The 1990 NOX emissions for the no. 2 glass melting furnace
at the General Glass--Jeannette plant, located in Westmoreland County,
Pennsylvania is 508.2 tons per year. Westmoreland County is part of the
Pittsburgh moderate ozone nonattainment area. The 1990 NOX
emissions for the four kilns (no. 1 through 4) is 11.8 tons per year.
This facility does not contain any other NOX emitting units.
[FR Doc. 96-12355 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12353 Approval and Promulgation of Implementation Plans: Oregon
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24709-24712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12353]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR47-11-7052a; FRL-5504-8]
Approval and Promulgation of Implementation Plans: Oregon
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Environmental Protection Agency (EPA) approves Oregon's
Transportation conformity rules received on April 17, 1995, from the
Oregon Department of Environmental Quality (ODEQ). The Clean Air Act
(CAA or Act) requires the states to promulgate conformity rules to
ensure that Federal actions conform to the appropriate State
Implementation Plan (SIP). Conformity to a SIP is defined in the CAA,
as amended in 1990, as meaning conformity to a 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. The Federal agency
responsible for the action is required to determine if its actions
conform to the applicable SIP.
DATES: This action is effective on July 15, 1996 unless adverse or
critical comments are received by June 17, 1996. If the effective date
is delayed,
[[Page 24710]]
timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, EPA Region 10, Office of Air Quality (OAQ-107), OR47-11-
7052, 1200 Sixth Avenue, Seattle, WA 98101. Documents which are
incorporated by reference are available for public inspection at the
Air and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, SW, Washington, D.C. 20460. Copies of
material submitted to EPA may be examined during normal business hours
at the following locations: EPA Region 10, Office of Air Quality, 1200
Sixth Avenue (OAQ-107), Seattle, WA 98101, and the Oregon Department of
Environmental Quality, 811 S.W. 6th Avenue, Portland, OR 97204.
FOR FURTHER INFORMATION CONTACT: Wayne Elson, EPA Region 10, Office of
Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
1463.
SUPPLEMENTARY INFORMATION:
I. Background
The CAA section 176(c), as amended (42 U.S.C. 7401 et seq.),
requires states to submit to EPA revisions to their implementation
plans establishing transportation and general conformity criteria and
procedures. EPA regulation requires the states to submit SIP revisions
by November 25, 1994, and November 30, 1994. These conformity rules are
to ensure that all Federal actions conform to the appropriate SIP
developed pursuant to section 110 and part D of the CAA. Conformity to
a SIP is defined in the CAA, as amended in 1990, as meaning conformity
to a 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.
The CAA ties conformity to attainment and maintenance of the NAAQS.
Thus, Federal actions must not adversely affect the timely attainment
and maintenance of the NAAQS or emission reduction progress plans
leading to attainment. The Federal agency responsible for the action is
required to determine if its actions conform to the applicable SIP. The
Oregon transportation conformity rule establishes the criteria and
procedures governing the determination of conformity for all Federal
actions in nonattainment or maintenance areas in the State of Oregon
for Federal highway and transit actions. Therefore, the criteria and
procedures established in this rule apply only in areas that are
nonattainment or maintenance with respect to any of the criteria
pollutants under the CAA: carbon monoxide (CO), lead (Pb), nitrogen
dioxide (NO2), ozone (O3), particulate matter (PM10),
and sulfur dioxide (SO2). The rule covers direct and indirect
emissions of criteria pollutants or their precursors that are
reasonably foreseeable and caused by a Federal action.
The Oregon submittal contains transportation conformity regulations
that are consistent with the CAA requirements. These regulations are at
least as stringent as the Federal regulations and in some cases are
more stringent. Oregon's regulations establish procedural requirements
including interagency consultation procedures. They also require the
responsible agency to make their conformity determinations available
for public review. Notice of draft and final conformity determinations
must be provided directly to air quality regulatory agencies and to the
public by publication in a local newspaper. The conformity
determination examines the impacts of the direct and indirect emissions
from the Federal action. The regulations require the Federal action to
also meet any applicable SIP requirements and emission milestones. Each
Federal agency must determine that any actions covered by the rule
conform to the applicable SIP before the action is taken.
The Oregon rule includes interagency consultation procedures which
will occur during the development of transportation plans,
transportation improvement programs, and State Implementation Plans,
and before findings of conformity.
The rule includes a provision that ``regionally significant''
transportation projects meet the criteria of the rule regardless of the
funding source (OAR 340-20-720 (42) and OAR 340-20-760). The
determination of ``regionally significant'' projects will be made
through interagency consultation with affected parties.
The rule includes reduced time frames for compliance with mobile
source emissions budget once a maintenance SIP has been approved by the
Oregon Environmental Quality Commission (EQC). The rule also includes
reduced time frames for demonstrating timely implementation of
transportation control measures (TCMs) once the EQC adopts a SIP
revision which adds TCMs. The rule requires timely implementation of
all TCMs identified as necessary to where attainment or maintenance of
and air quality standard is jeopardized, regardless of their
eligibility for Federal funding.
II. This Action
This Action approves Oregon Administrative Rule (OAR) Sections 340-
2-700 to 1080 as an amendment to the Oregon SIP. Specifically these
rules are as follows:
340-20-700 Title.
340-20-710 Purpose.
340-20-720 Definitions.
340-20-730 Applicability.
340-20-740 Priority.
340-20-750 Frequency of conformity determinations.
340-20-760 Consultation.
340-20-770 Content of transportation plans.
340-20-780 Relationship of transportation plan and TIP conformity with
the NEPA process.
340-20-790 Fiscal constraints for transportation plans.
340-20-800 Criteria and procedures for determining conformity of
transportation plans.
340-20-810 Criteria and procedures: Latest planning assumptions.
340-20-820 Criteria and procedures: Latest emissions model.
340-20-830 Criteria and procedures: Consultation.
340-20-840 Criteria and procedures: Timely implementation of TCMs.
340-20-850 Criteria and procedures: Currently conforming
transportation plan and TIP.
340-20-860 Criteria and procedures: Projects from a plan and TIP.
340-20-870 Criteria and procedures: Localized CO and PM-10 violations
(hot spots).
340-20-880 Criteria and procedures: Compliance with PM-10 control
measures.
340-20-890 Motor vehicle emissions budget (transportation plan).
340-20-900 Criteria and procedures: Motor vehicle emissions budget
(TIP).
340-20-910 Criteria and procedures: Motor vehicle emissions budget
(project not from a plan and TIP).
340-20-920 Criteria and procedures: Localized CO violations (hot
spots) in the interim period.
340-20-930 Criteria and procedures: Interim period reductions in ozone
and CO areas (transportation plan).
[[Page 24711]]
340-20-940 Criteria and procedures: Interim period reductions in ozone
and CO areas (TIP).
340-20-950 Criteria and procedures: Interim period reductions for
ozone and CO areas (project not from a plan and TIP).
340-20-960 Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (transportation plan).
340-20-970 Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (TIP).
340-20-980 Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (project not from a plan and TIP).
340-20-990 Transition from the interim period to the control strategy
period.
340-20-1000 Requirements for the adoption or approval of projects by
recipients of funds designated under title 23 U.S.C. or the Federal
Transit Act.
340-20-1010 Procedures for determining regional transportation-related
emissions.
340-20-1020 Procedures for determining localized CO and PM-10
concentrations (hot-spot analysis).
340-20-1030 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
340-20-1040 Enforceability of design concept and scope and project-
level mitigation and control measures.
340-20-1050 Exempt projects.
340-20-1060 Projects exempt from regional emissions analyses.
340-20-1070 Special provisions for nonattainment areas which are not
required to demonstrate reasonable further progress and attainment.
340-20-1080 Savings provisions.
III. Administrative Review
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.
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).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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 of $100 million or more to State, local, or Tribal governments in
the aggregate; or to the private sector. 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 approval action promulgated 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 to the private sector, result from this
action.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
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 EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective July 15, 1996 unless, by June 17, 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 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 July 15, 1996.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 15, 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), 42 U.S.C.
7607(b)(2).
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
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, Sulfur oxides,
Volatile organic compounds.
Note: Incorporation by reference of the Implementation Plan for
the State of Oregon was approved by the Director of the Office of
Federal Register on July 1, 1982.
[[Page 24712]]
Dated: May 2, 1996.
Chuck Clarke,
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 MM--Oregon
2. Section 52.1970 is amended by adding paragraph (c) (113) to read
as follows:
Sec. 52.1970 Identification of plan.
* * * * *
(c) * * *
(113) On April 14, 1995, the Oregon Department of Environmental
Quality submitted a revision to its SIP for the State of Oregon to
include the Transportation Conformity: OAR 340-20-710 through 340-20-
1080.
(i) Incorporation by reference.
(A) April 14, 1995 letter from ODEQ director Lydia Taylor to EPA
Regional Administrator Chuck Clarke submitting a revision to the Oregon
SIP to include the Transportation Conformity: OAR 340-20-710 through
340-20-1080; Division 20, Air Pollution Control, Criteria and
Procedures for Determining Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects
Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,
effective March 29, 1995.
[FR Doc. 96-12353 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12352 Approval and Promulgation of State Implementation Plans: Alaska
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24712-24715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12352]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AK6-1-6587; FRL-5465-2]
Approval and Promulgation of State Implementation Plans: Alaska
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a State Implementation Plan (SIP) revision submitted
by the State of Alaska on March 24, 1994 which implements an oxygenated
gasoline program in the Municipality of Anchorage. This SIP revision
satisfies certain Federal requirements for carbon monoxide (CO)
nonattainment areas with a design value of 9.5 parts per million (ppm)
or greater to implement an oxygenated gasoline program. Motor vehicles
are significant contributors of CO emissions. An important measure for
reducing these emissions is the use of cleaner burning oxygenated
gasoline.
EFFECTIVE DATE: This final rule is effective on June 17, 1996.
ADDRESSES: Copies of the State's request and other information
supporting this action are available for inspection during normal
business hours at the following locations: EPA, Office of Air Quality,
1200 Sixth Avenue, Seattle, Washington 98101, and the Alaska Department
of Environmental Conservation, 410 Willoughby, Suite 105, Juneau,
Alaska 99801-1795.
FOR FURTHER INFORMATION CONTACT: Ms. Montel Livingston, EPA, Office of
Air Quality, Seattle, Washington, (206) 553-0180.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 211(m) of the Clean Air Act, as amended (the
``Act''), Alaska was required to submit a revised SIP under section 110
and part D of title I that includes an oxygenated gasoline program for
its CO nonattainment areas (those areas with a design value of 9.5 ppm
or greater). The CO standard is 9 ppm and was established based on
criteria which allows for an adequate margin of safety to protect human
health. The 9 ppm standard is intended to keep carboxyhemoglobin levels
below 2.1% in order to protect the most sensitive members of the
general population (i.e. individuals with heart disease and other
physiological weaknesses).
Motor vehicles are significant contributors of CO emissions. An
important measure for reducing these emissions is the use of cleaner
burning oxygenated gasoline. Extra oxygen enhances fuel combustion and
helps to offset fuel-rich operating conditions, particularly during
vehicle starting which are more prevalent in the winter.
To comply with the Act, Alaska implemented an oxygenated gasoline
program containing methyl tertiary butyl ether (MTBE) as the oxygenate
in the early winter of 1992. Shortly thereafter, the State received
numerous health and driveability complaints from the public regarding
exposure to and use of MTBE blended gasoline. In December 1992 the
Governor of Alaska temporarily suspended the oxygenated fuel program,
and the suspension continued the following winter.
During this suspension, a series of studies began which examined
issues including health and driveability at cold temperatures using
oxygenated gasoline in climate fluctuations such as the Municipalities
of Anchorage and Fairbanks experience. These studies were initiated in
part by the Alaska Department of Environmental Conservation (ADEC) and
in part by State health officials in Alaska who invited the Centers for
Disease Control and Prevention and others to assist in investigation of
possible health effects. Studies concluded that pumping the ethanol
blend does not appear to increase the prevalence of acute adverse
health effects or unusual exposures when compared to pumping regular
gasoline. Data also showed there were no adverse driveability effects
utilizing ethanol in Anchorage during the study period.
In response to the public's concerns about MTBE, Anchorage, through
ADEC and the industry providers, agreed to implement an oxygenated fuel
program using ethanol as the oxygenate rather than MTBE by diluting
regular unleaded gasoline with ethanol to 10 percent ethanol by volume.
This oxygenated fuel program began in Anchorage in January 1995 and
lasted for about three months. This initial control period for
Anchorage using an ethanol blend was successful with the general public
and for air quality--there were no exceedances of the CO National Air
Ambient Quality Standards (NAAQS) during that period. The program
resumed again in the winter of 1995-96, November 1, 1995 through
February 29, 1996.
The State of Alaska submitted the Oxygenated Gasoline Requirements
(18 AAC 53.005-18 AAC 53.190) with amendments adopted through March 19,
1994, to EPA on March 24, 1994, as a revision to the Alaska SIP. EPA
reviewed the submittal and concluded that the revision met the
applicable requirements of the Act. In a direct final rule published
October 24, 1995, EPA approved the revision to be effective on December
26, 1995, unless EPA received adverse or critical comments by November
24, 1995 (see 60 FR 54435). In the same Federal Register, EPA also
published an accompanying proposed rule (see 60 FR 54465), explaining
that if EPA received adverse comments on the direct final rule
approving ADEC's submittal re the oxygenated gasoline program, then EPA
would withdraw the direct final rule and would respond to all comments
on the proposal in a subsequent final rule. The proposed action also
indicated that anyone wishing to comment should do so by November 24,
1995.
EPA received an adverse comment on November 22, 1995, pertaining to
its approval of Alaska's SIP submittal. The
[[Page 24713]]
direct final rule was withdrawn on December 14, 1995. See 60 FR 64135.
EPA has thoroughly considered the comment to determine the appropriate
action on the oxygenated gasoline program for Anchorage, Alaska and
responds below in the ``Response to Comments.''
In conclusion, EPA is approving the oxygenated gasoline
requirements submitted by the State of Alaska as described in the
October 24, 1995 Federal Register notice at 60 FR 54436 and proposed in
the October 24, 1995 Federal Register notice at 60 FR 54465.
II. Response to Comments
A. General Legal Authority
In objecting to several specific provisions in Alaska's
regulations, the commenter raised issues regarding approval into a SIP
of state provisions not required by section 211(m). EPA may approve
into a SIP any lawful provision concerning control of a criteria
pollutant that is submitted by a state and that otherwise meets the
requirements of section 110. As a general matter, apart from the
exceptions cited in section 116, the Clean Air Act (CAA) does not
restrict a state's authority to impose air pollution controls in
addition to those required under the Act. See CAA section 116. Section
211(m) establishes certain minimum requirements regarding oxygen
content, but does not itself prohibit states from adopting additional
requirements. While federal regulation of fuels under section 211(c)(1)
preempts certain state regulations regarding fuels, where there is no
federal ``control or prohibition applicable to [a] characteristic or
component of a fuel or fuel additive,'' a state is not preempted from
regulating such characteristic or component, such as oxygen content.
See section 211(c)(4). Under EPA's current interpretation of section
211(c)(4), there is no federal requirement applicable to oxygen content
in gasoline in the Anchorage area because the only federal regulation
applicable to oxygen content is for reformulated gasoline, which is not
required in the Anchorage area. Thus, EPA may approve as a SIP revision
a requirement by Alaska that goes beyond the requirements of section
211(m) in regulating oxygen content.
B. Temporary Suspension of the Regulation's Applicability to Fairbanks
The commenter stated that the provisions of section 211(m)
``Oxygenated Fuels'' of the Federal 1990 Clean Air Act applies to both
the Fairbanks and Anchorage CO nonattainment areas, that the former
Governor unilaterally suspended the regulation's applicability to the
Fairbanks' area, and there are no provisions in this regulation for
this action.
As explained in the ``Background'' section of this rulemaking,
there have been congressional actions in the past which did temporarily
exempt Fairbanks and Anchorage from the oxygenated programs requirement
while ongoing health and driveability studies were conducted. However,
in this action today, EPA is determining that Alaska's current
submittal of March 24, 1994, Fuel Requirements for Motor Vehicles, as
applied to the Anchorage area, meets the requirements of 211(m)
``Oxygenated Fuels'' and is fully approvable for inclusion into the
SIP. The fact that this submission does not encompass the Fairbanks
area does not affect EPA's authority to approve it for Anchorage, and
hence is not relevant to this rulemaking.
C. Oxygen Content
The commenter stated that fuel providers for Anchorage were under
no regulation to meet a blend with an oxygen content of 3.5 percent,
and this is correct. ADEC's regulation under Fuel Requirements for
Motor Vehicles, 18 AAC 53.020, Average Oxygen Content Standard,
submitted to EPA on March 24, 1994, states, ``All gasoline sold,
offered for sale, distributed, or dispensed by a CAR or blender CAR for
use in a control area during a control period must be oxygenated so
that each blend of gasoline has an average oxygen content of not less
than 2.7 percent by weight.'' EPA is approving this average oxygen
content of not less than 2.7 percent by weight as meeting the
requirements of 211(m) of the Act and is incorporating this revision
into the federally enforceable SIP.
D. Legal Authority--Expansion of Control Area
The commenter stated there are provisions in ADEC's 18 AAC 53 Fuel
Requirements for Motor Vehicles that go beyond the authority of Section
211(m), are unnecessary to satisfy the nonattainment plan provisions of
the Act, or go beyond the authority granted to ADEC under State law,
and therefore conflict with EPA's requirements that SIP amendments
comply with applicable State laws.
For example, the commenter does not believe ADEC has the authority
to expand the oxygenated gasoline program to areas other than the
officially designated CO nonattainment area. The commenter stated it is
not provided for in the Act and, therefore, is not required to be in
the SIP, and should not be part of the SIP.
As discussed above, the CAA does not restrict Alaska's authority to
regulate oxygen content in gasoline beyond what is required in section
211(m). In addition, EPA has determined that ADEC will satisfy certain
requirements of the Act by including in this SIP revision contingency
measures which provide for expansion of the control area. The Act
(section 172(c)(9)) requires a State to undertake specific measures to
be undertaken if the area fails to make reasonable further progress, or
to attain the national primary ambient air quality standard by the
(applicable) attainment date. ADEC has met this requirement by
specifying a contingency measure for Anchorage which provides for
expansion of its control area, if necessary. Expansion of the control
area may help a nonattainment area come into attainment by ensuring
that vehicles refueling outside the nonattainment area but driving
inside the area are also controlling emissions through use of
oxygenated gasoline. Oxygen-blended fuels have been shown to be a cost-
effective method for reducing CO emissions.
Alaska has also used expansion of the oxygenated fuels control area
as a contingency measure to satisfy another requirement of the Act.
Because Anchorage is a nonattainment area with a design value above
12.7 ppm, the Act (section 187(a)(3)) further requires implementation
of contingency measures if annual updates of the forecasted Vehicle
Miles Travelled (VMT), or annual estimates of actual VMT, exceed the
number predicted in the most recent prior forecast; or if the area
fails to attain the NAAQS by the (applicable) attainment date. ADEC met
this requirement through its VMT SIP revision, adopted on January 10,
1994, and approved by EPA on June 29, 1995 (60 FR 33727). The
contingency measure contained in the VMT revision, and approved by EPA,
is the expansion of the oxygenated fuels control area. This contingency
measure became effective and federally enforceable on August 28, 1995.
E. Oxygen Content Averaging and Associated Provisions
The commenter stated the averaging provisions and associated
requirements of ADEC's regulation are superfluous and can be replaced
with a more straightforward per-gallon oxygen content provision. The
commenter added that the provisions for averaging oxygen content method
of compliance, oxygen credits and debits, and
[[Page 24714]]
minimum oxygen content are all unnecessary and should not be approved.
As described in the October 24, 1995 Federal Register notice at 60
54436, EPA has determined that ADEC met the requirements of 211(m) of
the Act and was consistent with EPA guidance (57 FR 47769, October 20,
1992) by offering oxygen content averaging provisions as an option to
fuel providers. Fuel providers need only use these provisions if they
so choose. The commenter provides no legal or practical reason why EPA
should not approve these optional provisions, which are intended only
to give fuel providers greater compliance flexibility. Even if fuel
providers are not currently using this approach, including these
provisions allows for future flexibility in the program, which EPA
finds is appropriate here.
F. State Authority
The commenter stated there are no provisions under Alaska State law
authorizing ADEC to assess the ``CAR and Blender CAR Fees'' provided
under 18 AAC 53.080. Therefore, the commenter stated the fees
provisions do not belong in the SIP and are unnecessary to satisfy the
requirements of the Act.
EPA has determined that ADEC has fee authority to collect fees to
cover costs associated with permits, under AS 44.46.025. Revenues
generated from industry enable the program to be self-sufficient in the
future. EPA also notes that 18 AAC 53.080(c) requires ADEC to ``refund
fees in excess of those required to cover the costs for implementing
the requirements of this chapter.'' As an integral part of Alaska's
oxygenated gasoline program, which the State has authority to
implement, it is appropriate for EPA to approve these provisions into
the SIP.
G. Reporting; Product Transfer Document/Attest Engagements
The commenter stated that 18 AAC 53.1000 ``Reporting; Product
Transfer Document'' paragraph (b) requires a CAR or blender CAR to ``*
* * have an attest engagement conducted in accordance with 18 AAC
53.170, ``Attest Engagements,'' and that neither of these provisions is
necessary when compliance is demonstrated on a per-gallon basis. The
commenter stated they were superfluous.
As repeated above and described in the October 24, 1995 Federal
Register notice at 60 54436, EPA has determined that ADEC is following
EPA guidance published on October 20, 1992, by offering these
provisions as an option to fuel providers, and EPA finds this is an
appropriate option to offer fuel providers in this instance.
H. State Authority--``Dispenser Labeling''
The commenter stated that ADEC's label saying ``Caution: This fuel
may not be suitable for use in aircraft,'' goes beyond the authority
granted by EPA in its labeling requirements. The commenter also
questioned the State of Alaska's authority to require that the label on
fuel dispensers contain this cautionary statement. In response, the
State Attorney General's office has provided an opinion to EPA
explaining the legal basis for this provision.
Specifically, the Attorney General opinion cites to Title 46,
Chapter 3, entitled Environmental Conservation, which includes a
declaration of policy stating that it is the State's policy to control
air pollution to enhance the ``health, safety, and welfare'' of its
citizens (emphasis added). See AS 46.03.010(a). The opinion also cites
to AS 46.03.020(8), (9), and (10) which give ADEC the authority to
advise and cooperate with local and other state agencies to carry out
the pollution laws, to act as the official agency in all matters
affecting the purposes of ADEC under federal laws, and to adopt
regulations to effectuate the purposes of Chapter 3, including control
of air pollution and ``other purposes as may be required for the
implementation'' of Chapter 3's declaration of policy. In addition, AS
44.62.030 states that a regulation is effective if it is ``consistent
with and reasonably necessary'' to the purposes of State law.
Given ADEC's broad statutory authorities, and the opinion of the
Attorney General's office that these provisions give ADEC the authority
to promulgate the labeling requirement regarding aviation use of
oxygenated fuel, EPA is approving this requirement along with the
State's other labelling requirements. A more detailed discussion of
ADEC's authorities is contained in the State Attorney General's letter,
included in the record for this rulemaking.
EPA has determined that ADEC has complied with EPA regulations and
guidance for labeling requirements (57 FR 47770, October 20, 1992) and
as described in the October 24, 1995 Federal Register notice. As EPA
stated in the preamble to the labelling regulations, those regulations
are not meant to restrict states from imposing additional information
requirements, and there is no language in the regulations that would
impose such a restriction (See 57 FR 47771).
I. Suspension of Requirements
The commenter stated that section 211(m) provides only that the
oxygenated gasoline program be imposed in areas exceeding 9.5 ppm and
are adversely affected by vehicular emissions. The commenter stated
that 18 AAC 53.190, ``Suspension of Requirements'' provides that
oxygenated gasoline may be reimposed, after the program has been
suspended upon attainment, if the area exceeds an 8.5 ppm 8 hour
average concentration of CO. The commenter concluded that section
211(m) does not authorize a federally-enforceable oxygenated gasoline
program in an attainment area, as this provision of 18 AAC 53.190 would
require; therefore, this provision should not be part of the SIP.
Section 211(m) does not require an oxygenated gasoline program in
an area in attainment for CO, except as is necessary to maintain the
standard. However, as discussed above, there is also no Federal
restraint on Alaska imposing additional requirements on oxygen content
beyond what is required under section 211(m).
Moreover, EPA has determined that ADEC is complying with the
requirement under section 211(m)(6) of the Act that the program remain
in effect ``to the extent such program is necessary'' to maintain the
standard. The State has selected exceedance of 8.5 ppm in an 8 hour
average as the trigger point for reimplementation of the program. EPA
believes this is an appropriate trigger point. The CO NAAQS is 9 ppm;
and pursuant to EPA guidance, values from 8.5 ppm and up are rounded up
to 9. At 8.5 ppm, the area's air quality is considered to be just
meeting the standard. The purpose of the trigger point is to protect
the health and welfare of citizens by ensuring that the area maintains
compliance with the CO standard. The trigger point chosen by Alaska
provides for reimplementing oxygenated gasoline promptly upon a strong
indication that the area is in danger of violation of the standard,
rather than waiting for CO levels to violate the NAAQS before
instituting measures to bring the area back into attainment.
III. Significance of Today's Action
EPA is approving this plan revision submitted to EPA by the State
of Alaska on March 24, 1994 which implements an oxygenated gasoline
program in the Municipality of Anchorage. This SIP revision was
submitted by the State to satisfy certain Federal requirements for CO
nonattainment areas with a design value of 9.5 ppm or greater to
[[Page 24715]]
implement an oxygenated gasoline program.
IV. Administrative Review
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.
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).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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 approval action promulgated 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 to the private sector, result from this
action.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
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.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 15, 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), 42 U.S.C.
7607(b)(2)).
List of subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
Note: Incorporation by reference of the Implementation Plan for
the State of Alaska was approved by the Director of the Office of
Federal Register on July 1, 1982.
Dated: April 23, 1996.
Chuck Clarke,
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 C--Alaska
2. Section 52.70 is amended by adding paragraph (c) (25) to read as
follows:
Sec. 52.70 Identification of plan.
* * * * *
(c) * * *
(25) On March 24, 1994, ADEC submitted a revision to its SIP for
the State of Alaska addressing the attainment and maintenance of the
NAAQS for CO in the Anchorage CO nonattainment area.
(i) Incorporation by reference.
(A) March 24, 1994 letter from the Alaska Governor to the EPA
Regional Administrator including as a revision to the SIP the State of
Alaska, Department of Environmental Conservation, 18 AAC 53, ``Fuel
Requirements for Motor Vehicles,'' (Article 1, 18 AAC 53.005--18 AAC
53.190 and Article 9, 18 AAC 53.990, with the exception of 18 AAC
53.010(c)(2)), filed March 24, 1994 and effective on April 23, 1994.
* * * * *
[FR Doc. 96-12352 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12348 National Oil and Hazardous Substances Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12348]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5505-2]
National Oil and Hazardous Substances Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of Deletion of the Washington County Landfill Superfund
Site from the National Priorities List (NPL).
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SUMMARY: The U.S. Environmental Protection Agency (U.S. EPA) announces
the deletion of the Washington County Landfill site in Minnesota from
the National Priorities List (NPL). The NPL is Appendix B of 40 CFR
Part 300 which is the National Oil and Hazardous Substances Contingency
Plan (NCP), which EPA promulgated pursuant to Section 105 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), as amended. This action is being taken by EPA and the
State of Minnesota, because it has been determined that Responsible
Parties have implemented all appropriate response actions required.
Moreover, EPA and the State of Minnesota have determined that remedial
actions conducted at the site to date remain protective of public
health, welfare, and the environment.
EFFECTIVE DATE: May 16, 1996.
FOR FURTHER INFORMATION CONTACT: Lawrence Schmitt (312) 353-6565 (SR-
6J), Remedial Project Manager or Gladys Beard at (312) 886-7253,
Associate Remedial Project Manager, Superfund Division, U.S. EPA--
Region V, 77 West Jackson Blvd., Chicago, IL 60604. Information on the
site is available at the local information repository located at:
Minnesota Pollution Control Agency Public Library, 520 Lafayette Rd.,
St. Paul, MN 55155-4194 and Lake Elmo Branch of the Washington County
Public Library, 3459 Lake Elmo Avenue, Lake Elmo, MN. Requests for
comprehensive copies of documents should be directed formally to the
Regional Docket Office. The contact for the Regional Docket Office is
Jan Pfundheller (H-7J), U.S. EPA, Region V, 77 W. Jackson Blvd.,
Chicago, IL 60604, (312) 353-5821.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
Washington County Landfill Site located in Washington County,
Minnesota. A Notice of Intent to Delete for this site was published
April 1, 1996 (61 FR 14280). The closing date for comments on the
Notice of Intent to Delete was May 1, 1996. EPA received no comments
and therefore no Responsiveness Summary was prepared.
The U.S. EPA identifies sites which appear to present a significant
risk to public health, welfare, or the environment and it maintains the
NPL as the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund (Fund-) financed remedial
actions. Section 300.425(e)(3) of the NCP states that Fund-financed
actions may be taken at sites deleted from the NPL in the unlikely
event that conditions at the site warrant such action. Deletion of a
site from the NPL does not affect responsible party liability or impede
agency efforts to recover costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous Waste, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: May 7, 1996.
Valdas V. Adamkus,
Regional Administrator, U.S. EPA, Region V.
40 CFR part 300 is amended as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp.; p. 193.
Appendix B--[Amended]
2. Table 1 of Appendix B to part 300 is amended by removing the
Site ``Washington County Landfill Site, Lake Elmo County, Minnesota''.
[FR Doc. 96-12348 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12347 Clean Air Act Final Interim Approval Of Operating Permit Program; New Jersey
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24715-24720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12347]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[NJ001; FRL-5505-7]
Clean Air Act Final Interim Approval Of Operating Permit Program;
New Jersey
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating final interim approval of the
operating permit program which the State of New Jersey had submitted in
accordance with Title V of the Clean Air Act (the Act) and its
implementing regulations codified at Part 70 of Title 40 of the Code of
Federal Regulations (40 CFR Part 70). This approved interim program
allows New Jersey to issue federally enforceable operating permits to
all major stationary sources and to certain other sources for a period
of two years, at which time it must be replaced by a fully approved
program.
EFFECTIVE DATE: This interim program will be effective June 17, 1996.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval as well as
the Technical Support Document are available for inspection during
normal business hours at the following location: U.S. Environmental
Protection Agency, Region 2, 290 Broadway, 21st Floor,
[[Page 24716]]
New York, New York 10007-1866; Attention: Steven C. Riva.
FOR FURTHER INFORMATION CONTACT: Suilin Chan, Permitting and Toxics
Support Section, at the above EPA office in New York or at telephone
number (212) 637-4019.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
The Act and its implementing regulations at 40 CFR Part 70 require
that states develop and submit operating permit programs to the EPA by
November 15, 1993, and that the EPA act to approve or disapprove each
program within one year after receiving the complete submittal. The EPA
reviews state programs pursuant to Section 502 of the Act and the Part
70 regulations, which together outline the 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. Additionally, where a state can
demonstrate to the satisfaction of EPA that reasons exist to justify
the granting of a source category-limited interim approval, EPA may so
exercise its authority. A source category-limited interim program is
one that substantially meets the requirements of Part 70 and applies to
at least 60% of all affected sources which account for 80% of the total
emissions within the state. If a state does not have an approved
program by the end of an interim program, EPA must establish and
implement a federal operating permit program for that state.
On January 30, 1996, EPA proposed to approve the source category-
limited operating permit program submitted by New Jersey (see 61 FR
2983). During the 30-day public comment period which ended on February
29, 1996, six comment letters were received on the Proposed Approval
Notice. Five of the comments regarded the list of deficiencies that NJ
has to correct in order to receive full program approval. These
commenters opined that the NJ program is not deficient in those areas
and therefore should not be required to address them in the full
program submittal. One commenter argued that NJ has no authority to
collect emissions-based Title V fees from two Title IV-affected Phase I
units. A response to all of the comments received is included in
Section II.B. of this notice. Based upon EPA's review, none of the
comments received changes EPA's decision to approve NJ's source
category-limited interim program. Therefore, in this notice, the EPA is
taking final action to promulgate interim approval of the New Jersey
Operating Permit Program.
II. Final Action and Implications
A. Analysis of State Submission
On January 30, 1996, the EPA proposed interim approval of NJDEP's
Title V Operating Permit Program. The program elements discussed in the
proposed notice are unchanged from the analysis in the Interim Approval
Notice and continue to substantially meet the requirements of 40 CFR
Part 70.
B. Response to Public Comments
1. Deferral of Non-major Sources. Two comments were received on
this issue, from the Industrial Operating Permit Legislative/Regulatory
Workgroup (IOPLRW) and NJDEP.
IOPLRW argues that non-major sources subject to NJ's NSR program
should not be required to go through the ``formalities'' of obtaining
an operating permit because (1) it is inconsistent with EPA's ``White
Paper'' policies and (2) NJDEP already imposes substantial requirements
to control emissions of pollutants from such sources. The NJDEP,
however, acknowledges that its current rule is deficient in not
requiring non-deferred non-major sources subject to Section 111 of the
Act to obtain operating permits and agrees to amend its rule in the
next revision. NJDEP asserts that this deficiency, however, does not
exist for non-deferred non-major sources subject to Section 112 of the
Act since its rule (N.J.A.C. 7:27-22.26(b), (c), and (d)) contains the
necessary requirements.
Response. EPA agrees with NJDEP that its rule is adequate in
addressing the requirements for non-deferred non-major sources subject
to Section 112 of the Act. Therefore, in the final approval of NJ's
interim program, EPA is only requiring NJDEP to revise its rule to
address non-major sources subject to Section 111 of the Act. With
respect to the comments submitted by the IOPLRW, EPA disagrees with the
commenter that no rule revision was necessary. This comment conflicts
with the provision of 40 CFR Sec. 70.3(b)(2) which is not affected by
guidance established in EPA's ``White Paper''.
2. Definition of Prompt Reporting. Four comments were received on
this issue, from IOPLRW, Bayway Refining Company, National
Environmental Development Association (NEDA), and Du Pont Chemicals.
All four commenters echoed the same arguments; therefore, their
comments will be grouped together and responded to as a single comment.
The commenters argued that 40 CFR Sec. 70.6 provides the permitting
authority the flexibility to ``define prompt in relation to the degree
and type of deviation likely to occur and the applicable
requirements''. As such, the commenters questioned EPA's basis and
authority for requiring a 10-day reporting of deviations where the air
contaminants are released in a quantity or concentration that pose no
potential threat to the public health, welfare, or the environment and
the permittee does not intend to assert affirmative defense for the
deviation. All commenters felt that NJ's current requirement of
immediate reporting for deviation resulting in air contaminants
released in a quantity or concentration which poses a potential threat
to public health, welfare or the environment or which might reasonably
result in citizen complaints is adequate. Further, a two-day reporting
requirement was asserted to be adequate where the quantity or
concentration of the releases poses no potential threat to the public
health, welfare or environment and which will not likely result in
citizen complaints but that the permittee intends to assert an
affirmative defense. The ten-day reporting requirement is unilaterally
considered an unnecessary administrative burden to both NJDEP and the
regulated community resulting in no commensurate improvement to the
environment.
Response. EPA reconsidered its initial proposal to require a 10-day
reporting on deviations that do not pose a potential threat to the
public health, welfare, or the environment and for which the permittee
does not intend to assert an affirmative defense. Although EPA
acknowledges that NJ's reporting rules have worked fairly well in the
past, EPA does not find that to be grounds for ruling out the ten-day
reporting requirement altogether. There may be circumstances where such
reporting timeframe is warranted. Therefore, after considering the
concerns brought forth by the commenters, EPA has decided not to
require NJ to incorporate the 10-day reporting provision in its
operating permit rule. Rather, EPA will determine the appropriateness
of imposing this requirement on an as-needed basis.
3. Affirmative Defense. Five comments were received on this issue,
from IOPLRW, Bayway Refining Company, NEDA, NJDEP, and Du Pont
Chemicals.
Since all five commenters voiced the same concerns on this issue,
their comments are grouped together and treated as one. While EPA cited
the affirmative defense provisions found in N.J.S.A.26:2C-19.1 through
19.5 to be in conflict with the provisions of 40 CFR
[[Page 24717]]
Sec. 70.6(g), all five commenters asserted that the NJ provisions have
worked well in the past by allowing reasonable excursions during
startups, shutdowns, malfunctions, and equipment maintenance without
compromising protection to the environment and public health and
welfare. All commenters maintained that the NJ Law could be interpreted
to be in conformance with Part 70. In its proposed approval notice, EPA
stated that the NJ Law was deficient in (1) not restricting the use of
an affirmative defense to violations of technology-based emission
limitations which potentially allows the use of an affirmative defense
for violations of health-based emission limitations and (2) allowing an
affirmative defense for startups, shutdowns, malfunctions, and
equipment maintenance. The commenters argued that although the NJ Law
does not restrict the affirmative defense to technology-based emission
limitations, it nevertheless provides the same degree of protection for
health-based emission limitations by ensuring that the violations do
not potentially threaten the environment or public health or welfare.
For this same reason, the commenters argued that allowing an
affirmative defense for startups, shutdowns, malfunctions, and
equipment maintenance does not pose more of a threat to the environment
than what Part 70 provides.
Response. EPA has thoroughly reviewed the arguments presented by
the commenters and maintains that the inconsistencies between the NJ
Law and Part 70 must still be resolved in order for EPA to grant full
program approval on this provision. In promulgating the Part 70
regulations, EPA intended to restrict the emergency affirmative defense
to actions brought for noncompliance with a technology-based emission
limitation to ensure greater protection for health-based emission
standards (such as the National Ambient Air Quality Standards (NAAQS),
National Emissions Standards for Hazardous Air Pollutants (NESHAP),
etc.). The NJ Law, however, does not contain similar restrictions.
After reviewing the arguments presented by the commenters on this
particular issue, however, EPA agrees with the commenters that the NJ
Law may be interpreted to provide the same degree of protection for the
health-based emission limitations. Therefore, in lieu of making changes
to the NJ operating permit rule, EPA will accept an opinion from the
Attorney General which affirms that any violation resulting in a
``potential threat to public health'' as used in N.J.S.A. 26:2C-19.1
through 19.5 equates to a violation of a health-based emission
standard, such that the affirmative defense created in New Jersey's
legislation is not available for violations of health-based emission
limits. The Attorney General's opinion should point to either court
decisions or legislative history interpreting the ``potential threat to
public health'' language. With respect to the issue of restricting the
affirmative defense to emergency situations arising from sudden and
reasonably unforeseeable events that are beyond the control of the
source including the acts of God, NJ's Law is clearly inconsistent with
40 CFR 70.6(g). Although NJ's criteria for asserting an affirmative
defense in N.J.S.A. 26:2C-19.2 are similar to the criteria established
in 40 CFR Sec. 70.6(g), NJ's affirmative defense in N.J.S.A 26:2C-19.1
and 19.2 goes beyond sudden and unforeseeable events. As stated in the
proposed approval, 40 CFR Sec. 70.6(g) only allows an affirmative
defense for Title V purposes for sudden and unforeseeable events. NJ's
law not only applies to unforeseeable malfunctions, but also to
equipment start-up or shut-down and equipment maintenance, activities
of which are usually pre-scheduled. Therefore, EPA sees no grounds for
finding the NJ approach substantially equivalent to that in 40 CFR
Sec. 70.6(g). This is beyond the scope of 40 CFR Sec. 70.6(g) and must
be changed before full approval can be granted for this provision. NJ
may either change its legislation or its operating permit rule to
address this deficiency. As to the comments that Part 70 should be
changed to provide more flexibility on this issue, we appreciate the
commenters' desire for more flexibility, but program approval is judged
on the existing requirements of 40 CFR Part 70, not on any possible
future changes to Part 70. EPA is treating this issue consistently
nationally by only granting interim approval to states with similar
inconsistencies to 40 CFR Sec. 70.6(g). EPA is not aware of any other
state programs being treated differently on this issue.
4. R&D Support Facility Test. Two comments were received on this
issue, from NEDA and IOPLRW.
Both commenters argued that the issue of whether an R&D operation
is eligible for separate treatment under the operating permit program
should not depend on where the products and processes developed in the
R&D operation are used. Rather, eligibility for separate treatment
should simply depend on whether the R&D operation produces more than a
de minimis quantity of products for commercial use.
Response. In its proposal to approve NJ's program, EPA did not
identify the application of the support facility test in determining
the major source status of a stationary source with an R&D operation to
be a condition for full program approval. The support facility test
will ensure that only true R&D facilities are properly separated from
the source. Under the support facility test, even where neighboring,
commonly controlled sources have different 2-digit SIC codes, they
should be aggregated to determine whether a major source is present if
the output of one is more than 50 percent devoted to the support of the
other. However, EPA believes that R&D operations should not generally
be considered support facilities, since the ``support'' provided is
directed towards development of new processes or products and not to
current production. EPA acknowledges that the product of an R&D
operation is information potentially useful to create a new industrial
process or to improve the process ongoing at the facility, but not to
directly support the process in which the industrial activity is
currently engaged or capable of engaging in any significant commercial
fashion. To the extent an activity bears some resemblance to R&D but in
fact contributes to the ongoing product produced or service rendered at
a facility in a more than de minimis manner, those activities should be
considered part of the source. Pilot plants often present instances of
activities that are conducted on a trial basis, but which are
nevertheless dedicated to producing a product for commerce to a more
than de minimis extent, and so would not be considered R&D. Whether or
not an R&D facility meets the support facility test is a case-by-case
determination. As provided in the Preamble of Part 70, R&D operations
are not exempt from Title V requirements, but the state is given the
flexibility to treat the R&D facility separate from the manufacturing
facility with which it is co-located. The definition of R&D in N.J.A.C.
7:27-22-1 establishes the criteria for determining whether or not an
operation will be given separate treatment as an R&D facility and is
reflective of the federal definition as discussed in the foregoing.
Under N.J.A.C. 7:27-22.1, an R&D facility cannot be engaged in the
``manufacture of products for commercial sale, except in a de minimis
manner.'' This is a close approximation of the support facility test.
EPA is not adding any further burden of proof upon the facility in the
event of alleged noncompliance with 40 CFR Part 70,
[[Page 24718]]
than what is already established by the state in N.J.A.C. 7:27-22.1 and
7:27-22.2(d).
5. Administrative Amendment. Two comments were received on this
issue, from IOPLRW and NJDEP.
IOPLRW asserted that the administrative amendment section of NJ's
rule meets the requirements of Part 70. NJDEP clarified that the
interpretation EPA read into the language at N.J.A.C. 7:27-22.20(b)(7)
as explained in the proposed interim approval was not intended. NJDEP
agreed to revise its rule to address EPA's comments.
Response. EPA appreciates the comment from IOPLRW; however, a
revision to NJ's rule is nonetheless necessary.
6. Title IV Fees. One comment was received on this issue from
Atlantic Electric (AE).
AE argued that NJ should not be allowed to assess Title V
emissions-based fees during 1995 to 1999 from any Title IV-affected
Phase I units even if the emissions occurred outside of the 5-year
grace period (prior to 1/1/95).
Response. EPA agrees with the commenter and consequently hereby
corrects a statement made in the notice of proposed interim approval.
The language in the register incorrectly alluded to allowing a state to
collect during 1995 to 1999 Title V fees from Title IV-affected Phase I
units based on emissions that occurred prior to January 1, 1995. The
correct reading and the actual meaning of Section 408(c)(4) should be a
state is allowed to use emissions-based fees for Title V purposes
during 1995 and 1999 if such fees were already collected from the Phase
I units prior to January 1, 1995 for program ramp-up or the like.
Alternatively, the state may collect Title V emissions-based fees after
December 31, 1999 from the Phase I units. Finally, the state can
collect non-emissions based Title V fees from any Phase I units during
the 5-year period. Along with its comments, AE also urged EPA to
require NJDEP to submit adequate documentation confirming that the NJ
operating permit program will be sufficiently funded without accounting
fee revenues from the Phase I units in NJ. EPA appreciates AE's
concerns over the funding aspect of the NJ program. As EPA has
discussed in details in the proposed approval, NJ is required to re-
submit a more refined fee demonstration to assure sufficient funding
for the operating permit program before EPA would consider granting
full approval. EPA acknowledges that the Title V program is a new
program with many uncertainties and variables in the area of cost
assessment, in particular. Therefore, EPA finds it appropriate to allow
a state to put the program into practice for a short duration (during
an interim approval) so that the state may accurately determine the
amount of funding needed for successful program implementation provided
the state has collected sufficient fee revenues to start the program.
EPA's initial proposal to require a more refined fee demonstration in
the full program submittal remains unchanged.
C. Final Action
The EPA is promulgating interim approval of the Operating Permit
Program submitted by the NJDEP on November 15, 1993, as revised on
August 10, 1995, and supplemented on August 28, 1995, November 15,
1995, December 4, 1995, and December 6, 1995. Among other things, the
NJDEP has demonstrated that the program substantially meets the minimum
requirements for a state operating permit program as specified in 40
CFR Part 70 and the criteria for a source category-limited interim
program as discussed in EPA's Guidance entitled ``Interim Title V
Program Approvals'' issued by John S. Seitz, Director, Office of Air
Quality Planning and Standards on August 2, 1993. This interim approval
which may not be renewed, extends until June 16, 1998. Under the
approved interim operating permit program, New Jersey is allowed to
issue federally enforceable operating permits to all major stationary
sources and to certain other sources for the duration of this approval.
During this interim approval period, the State of New Jersey is
protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permit program in New
Jersey. Permits issued under a program with interim approval have full
standing with respect to Part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications. In order to ensure that
a fully approved program will be in place by the expiration date of the
interim approval, New Jersey must submit a modified program to EPA by
December 16, 1997 that addresses the following deficiencies:
1. Deferral of Non-Major Sources
New Jersey must revise its operating permit rule to require non-
major sources subject to Section 111 standards promulgated after July
21, 1992 to apply for an operating permit unless EPA exempts such
sources in future rulemaking or promulgation of future requirements.
Applications from these sources should be submitted in accordance with
the schedule found under N.J.A.C. 7:27-22.5(i).
2. Affirmative Defense
The New Jersey legislation as stated in N.J.S.A. 26:2C-19.1 through
19.5 and the New Jersey rule provisions on affirmative defenses as
stated in N.J.A.C. 7:27-22.3(nn) and 22.16(l) must be revised or
clarified to ensure conformance with 40 CFR Sec. 70.6(g). Specifically,
New Jersey needs to limit the use of affirmative defense to 1)
violations of technology-based emission limitations, not health-based
emission limitations and 2) to sudden and unforeseeable events. To
address the first deficiency, New Jersey has the option of either
changing its legislation at N.J.S.A.26:2C-19.1 through 19.5 to specify
that the affirmative defense can only be used in emergency situation
resulting in violations of technology-based emission limitations or
submitting an opinion from the State Attorney General (AG). The AG's
opinion must demonstrate how the State Law has clearly equated the term
``potential harm to public health'' to violations of health-based
emission limitations. The AG's opinion must also clarify that the NJ
Law prohibits the use of an affirmative defense for violations of
health-based emission limitations and must be supported by court
decisions or legislative history interpreting the ``potential threat to
public health'' language. To address the second deficiency, the NJ Law
at N.J.S.A.26:2C-19.1 through 19.5 and the NJ rule at N.J.A.C. 7:27-
22.3(nn) and 22.16(l) must be changed to limit the use of an
affirmative defense, for Title V purposes, to sudden and unforeseeable
events that are beyond the control of the source.
3. Administrative Amendments
New Jersey must revise its operating permit rule to ensure that the
administrative amendment procedure is properly used for incorporating
preconstruction permits into the operating permit. Specifically, New
Jersey must either:
i. specify in Sec. 7:27-22.20(b)(7) the procedures under which
preconstruction permits must have been issued (40 CFR Sec. 70.7 and 40
CFR Sec. 70.8) and permit content requirements the permit must meet (40
CFR Sec. 70.6) in order to be eligible for incorporation by
administrative amendment, or
ii. codify those procedural and permit content requirements into
the
[[Page 24719]]
preconstruction review regulations and obtain EPA's approval of those
regulations.
4. Permit Fees
In order to receive full program approval, New Jersey must submit a
revised fee demonstration showing that $9.51 million is adequate to
administer the operating permit program during the initial four years
of full program implementation. Should the cap of $9.51 million fall
short of the actual program costs, New Jersey must take all necessary
corrective actions (including legislative changes) prior to submitting
the corrected program.
If NJ fails to submit a complete corrective program for full
approval by December 16, 1997, EPA will start an 18-month clock for
mandatory sanctions. If NJ then fails to submit a complete corrective
program before the expiration of that 18-month period, EPA will apply
sanctions as required by Section 502(d)(2) of the Act, which will
remain in effect until EPA determines that NJ has corrected the
deficiencies by submitting a complete corrective program.
If EPA disapproves NJ's complete corrected program, EPA will apply
sanctions as required by Section 502(d)(2) on the date 18 months after
the effective date of the disapproval, unless prior to that date, NJ
has submitted a revised program and EPA has determined that it
corrected the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if NJ has
not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the NJ program by the expiration of this
interim approval, EPA must promulgate, administer and enforce a federal
operating permit program for the State of New Jersey upon interim
approval expiration.
It should be noted that this interim approval is granted based on
the information submitted by the NJDEP on August 10, 1995 and
supplements subsequently received. Should the program approvability
status of NJ's program change in the future for any reasons including
changes in state laws or regulations or procedures which limit the
NJDEP's enforcement authority or program administration and
enforcement, EPA will revisit this approval and exercise its authority
as provided under 40 CFR Sec. 70.10 (b) or (c) to afford NJ an
opportunity to correct its program deficiencies or withdraw program
approval.
Requirements for approval, specified in 40 CFR Sec. 70.4(b),
encompass Section 112(l)(5) requirements for approval of a program for
delegation of Section 112 standards as promulgated by the EPA as they
apply to Part 70 sources. Section 112(l)(5) requires that the state's
program contain adequate authorities, adequate resources for
implementation, an expeditious compliance schedule, and adequate
enforcement ability, which are also requirements under Part 70. In a
letter dated November 15, 1995, NJDEP requested delegation through
112(l) of all existing 112 standards for Part 70 sources and
infrastructure programs. With respect to future 112 standards, NJDEP
intends to accept delegation of most, if not all, of the standards.
NJDEP will review each standard within 45 days of receiving notice from
EPA prior to accepting delegation. In the letter, NJDEP demonstrated
that they have sufficient legal authorities, adequate resources, the
capability for automatic delegation of future standards, and adequate
enforcement ability for implementation of Section 112 of the Act for
all Part 70 sources. Therefore, the EPA is also promulgating interim
approval under Section 112(l)(5) and 40 CFR Part 63.91 to grant New
Jersey approval for its program mechanism for receiving delegation of
all existing and future Section 112(d) standards for all Part 70
sources, and Section 112 infrastructure programs that are unchanged
from federal rules as promulgated.
III. Administrative Requirements
A. Docket
Copies of the NJ submittal and other information relied upon for
the final interim approval, including the public comments received and
reviewed by EPA on the proposal, are contained in the docket maintained
at the EPA Regional Office. The docket is an organized and complete
file of all the information submitted to, or otherwise considered by,
EPA in the development of this final interim approval. The docket is
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
The EPA's actions under Section 502 of the Act do not create any
new requirements, but simply address operating permit programs
submitted to satisfy 40 CFR Part 70. Since these operating permit
programs were already adopted at the state level and today's action
does not introduce any additional requirements that are new to the
state program already in effect, no significant impact on a substantial
number of small entities is expected to occur as a result of today's
action.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), 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
annual 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 of the Unfunded Mandates Act
requires 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 annual
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 to the private sector,
result from this action.
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.
Dated: May 5, 1996.
Jeanne M. Fox,
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.
[[Page 24720]]
2. Appendix A to Part 70 is amended by adding the entry for New
Jersey in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permit Programs
* * * * *
New Jersey
(a) The New Jersey Department of Environmental Protection
submitted an operating permit program on November 15, 1993, revised
on August 10, 1995, with supplements on August 28, 1995, November
15, 1995, December 4, 1995, and December 6, 1995; interim approval
effective on June 17, 1996; interim approval expires June 16, 1998.
(b) (Reserved)
* * * * *
[FR Doc. 96-12347 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12346 Shrimp Fishery of the Gulf of Mexico; Texas Closure
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24728-24729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12346]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 658
[I.D. 050896B]
Shrimp Fishery of the Gulf of Mexico; Texas Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Adjustment of the beginning date of the Texas closure.
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SUMMARY: NMFS announces an adjustment of the beginning date of the
annual closure of the shrimp fishery in the exclusive economic zone
(EEZ) off Texas. The closure is normally from May 15 to July 15 each
year. This year the closure will begin on June 1, 1996. The Texas
closure is intended to prohibit the harvest of brown shrimp during the
major period of emigration from Texas estuaries to the Gulf of Mexico
so the shrimp may reach a larger, more valuable size and to prevent the
waste of brown shrimp that would be discarded in fishing operations
because of their small size.
EFFECTIVE DATE: The EEZ off Texas is closed to trawl fishing from 30
minutes after sunset, June 1, 1996, to 30 minutes after sunset, July
15, 1996, unless the latter date is changed through notification in the
Federal Register.
FOR FURTHER INFORMATION CONTACT: Michael E. Justen, 813-570-5305.
SUPPLEMENTARY INFORMATION: The Gulf of Mexico shrimp fishery is managed
under the Fishery Management Plan for the Shrimp Fishery of the Gulf of
Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery
Management Council and is implemented by regulations at 50 CFR part 658
under the authority of the Magnuson Fishery Conservation and Management
Act. The FMP implementing regulations at 50 CFR 658.26 describe the
Texas closure and provide for adjustments to the beginning and ending
dates by the Director, Southeast Region, NMFS, under specified
criteria.
Biological data collected by the Texas Parks and Wildlife
Department indicate
[[Page 24729]]
that brown shrimp will be leaving the Texas estuaries later than
normal. This information and other data meeting the FMP's criteria
indicate that beginning the closure on June 1, 1996, is necessary to
provide adequate protection of small brown shrimp emigrating from the
Texas estuaries.
Accordingly, the time and date as provided at 50 CFR 658.26(a) for
beginning the Texas closure is changed from 30 minutes after sunset May
15, 1996, to 30 minutes after sunset on June 1, 1996. During the
closure, the area described at 50 CFR 658.26(a) is closed to all trawl
fishing, except that a vessel may trawl for royal red shrimp beyond the
100-fathom (183-m) depth contour. The waters of Texas will also be
closed commencing at 30 minutes after sunset on June 1, 1996.
The termination date of the Texas closure may be adjusted to
conform to the termination date of the closure in the waters of Texas.
If adjusted, notification of the revised termination date will be
published in the Federal Register.
Classification
This action is authorized by 50 CFR 658.26(b) and is exempt from
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 10, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-12346 Filed 5-15-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12339 Groundfish of the Bering Sea and Aleutian Islands Area; Pacific Cod by Vessels Using Trawl Gear in the Bering Sea and Aleutian Islands Management Area
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12339]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 675
[Docket No. 960129019-6019-01, I.D. 051396A]
Groundfish of the Bering Sea and Aleutian Islands Area; Pacific
Cod by Vessels Using Trawl Gear in the Bering Sea and Aleutian Islands
Management Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for Pacific cod by
vessels using trawl gear in the Bering Sea and Aleutian Islands
management area (BSAI). This action is necessary to prevent exceeding
the first seasonal bycatch allowance of Pacific halibut apportioned to
the trawl Pacific cod fishery in the BSAI.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), May 14, 1996,
until 12 noon, A.l.t., October 25, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR parts 620 and 675.
The first seasonal bycatch allowance of Pacific halibut for the
BSAI trawl Pacific cod fishery category, which is defined at
Sec. 675.21(b)(1)(iii)(E), was established by the Final 1996 Harvest
Specifications of Groundfish (61 FR 4311, February 5, 1996) as 1,585
metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(c)(1)(iii), that the first seasonal bycatch allowance
of Pacific halibut apportioned to the trawl Pacific cod fishery in the
BSAI has been caught. Therefore, NMFS is prohibiting directed fishing
for Pacific cod by vessels using trawl gear in the BSAI.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 675.20(h).
Classification
This action is taken under 50 CFR 675.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 13, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-12339 Filed 5-13-96; 3:38 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12338 Groundfish of the Gulf of Alaska; Shallow-Water Species Fishery by Vessels Using Trawl Gear in the Gulf of Alaska
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24729-24730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12338]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 672
[Docket No. 960129018-6018-01; I.D. 051096D]
Groundfish of the Gulf of Alaska; Shallow-Water Species Fishery
by Vessels Using Trawl Gear in the Gulf of Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
[[Page 24730]]
SUMMARY: NMFS is prohibiting directed fishing for species that comprise
the shallow-water species fishery by vessels using trawl gear in the
Gulf of Alaska (GOA), except for vessels fishing for pollock using
pelagic trawl gear in those portions of the GOA open to directed
fishing for pollock. This action is necessary because the second
seasonal bycatch allowance of Pacific halibut apportioned to the
shallow-water species fishery in the GOA has been caught.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), May 13, 1996,
until 12 noon, A.l.t., July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas Pearson, 907-486-6919.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at 50 CFR parts 620 and
672.
In accordance with Sec. 672.20(f)(1)(i) the shallow-water species
fishery, which is defined at Sec. 672.20(f)(1)(i)(B)(1) was apportioned
100 mt of Pacific halibut prohibited species catch for the second
season, the period April 1, 1996, through June 30, 1996 (61 FR 4304,
February 5, 1996).
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 672.20(f)(3)(i), that vessels participating in the trawl
shallow-water species fishery in the GOA have caught the first seasonal
bycatch allowance of Pacific halibut apportioned to that fishery.
Therefore, NMFS is prohibiting directed fishing for each species and
species group that comprise the shallow-water species fishery by
vessels using trawl gear in the GOA, except for vessels fishing for
pollock using pelagic trawl gear in those portions of the GOA open to
directed fishing for pollock. The species and species groups that
comprise the shallow-water species fishery are: pollock, Pacific cod,
shallow-water flatfish, flathead sole, Atka mackerel, and ``other
species.''
After the effective date of this closure the maximum retainable
bycatch amounts, calculated using the retainable percentages at
Sec. 672.20(g), apply at any time during a trip.
Classification
This action is taken under 50 CFR 672.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 13, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-12338 Filed 5-13-96; 3:38 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12335 Disclosure to Participants
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24694-24696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12335]
=======================================================================
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
29 CFR Part 2627
RIN 1212-AA77
Disclosure to Participants
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the PBGC's regulation on disclosure to
participants (29 CFR part 2627) to describe changes in the way
participants can obtain the booklet ``Your Guaranteed Pension.''
EFFECTIVE DATE: May 16, 1996.
FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General
Counsel, or Catherine B. Klion, Attorney, Office of the General
Counsel, PBGC, 1200 K Street, NW., Washington, DC 20005-4026, 202-326-
4024 (202-326-4179 for TTY and TDD).
SUPPLEMENTARY INFORMATION: The PBGC's regulation on disclosure to
participants (29 CFR Part 2627) implements section 4011 of ERISA.
Section 4011 requires certain underfunded plans to provide notice to
plan participants and beneficiaries of the plan's funding status and
the limits on the PBGC's guarantee. Plans with more than 100
participants were first subject to the notice requirement for the 1995
plan year; plans with 100 or fewer participants will first be subject
to the requirement for the 1996 plan year.
The PBGC is amending the regulation to reflect the fact that the
booklet ``Your Guaranteed Pension'' can now be obtained without charge
by writing to the Consumer Information Center. (Previously, the booklet
cost $1.25.) The PBGC also is amending the regulation to
[[Page 24695]]
allow plan administrators to include a statement in the Participant
Notice that the booklet can be obtained on the PBGC's new Homepage on
the World Wide Web.
This rule also makes corresponding changes to the Model Participant
Notice (Appendix A to Part 2627). The PBGC is republishing the Model
Participant Notice and the Table of Maximum Guaranteed Benefits
(Appendix B to Part 2617) in their entireties. (Information on 1996
maximum guaranteed benefit amounts was added to this table on December
15, 1995 (60 FR 64324).)
In light of the minor nature of the changes, and plan
administrators' current need for a regulation that includes correct
information, the PBGC has for good cause found that notice and public
procedure are unnecessary and contrary to the public interest. The PBGC
also has determined for these reasons that good cause exists for making
these amendments effective immediately. For a reasonable time period,
the PBGC will treat a plan administrator that uses the existing
regulation (including the existing Model Participant Notice) as
satisfying the Participant Notice requirements.
The PBGC has determined that this action is not a ``significant
regulatory action'' under the criteria set forth in Executive Order
12866.
Because no general notice of proposed rulemaking is required for
this regulation, the Regulatory Flexibility Act does not apply (5
U.S.C. 601(2)).
List of Subjects in 29 CFR Part 2627
Pension insurance, Pensions.
Accordingly, 29 CFR Part 2627 is amended as follows:
PART 2627--DISCLOSURE TO PARTICIPANTS
1. The authority citation for part 2627 continues to read as
follows:
Authority: 29 U.S.C. 1302(b)(3), 1311.
2. Sec. 2627.10, paragraph (h) introductory text is republished and
paragraph (b)(9) is revised to read as follows:
Sec. 2627.10 Form of notice.
* * * * *
(b) Content. The Participant Notice for a plan year shall include--
* * * * *
(9) A statement that further information about the PBGC's guarantee
may be obtained by requesting a free copy of the booklet ``Your
Guaranteed Pension'' from Consumer Information Center, Dept. YGP,
Pueblo, Colorado 81009. The Participant Notice may include a statement
that the booklet may be obtained through electronic access via the
World Wide Web from the PBGC Homepage at http://www.pbgc.gov/ygp.htm.
* * * * *
3. Appendix A to Part 2627 is amended to read as follows (and
Appendix B is republished for the convenience of the public):
Appendix A to Part 2627--Model Participant Notice
The following is an example of a Participant Notice that
satisfies the requirements of Sec. 2627.10 when the required
information is filled in (subject to Secs. 2627.10(d)-(e), where
applicable).
NOTICE TO PARTICIPANTS OF [PLAN NAME]
The law requires that you receive information on the funding
level of your defined benefit pension plan and the benefits
guaranteed by the Pension Benefit Guaranty Corporation (PBGC), a
federal insurance agency.
YOUR PLAN'S FUNDING
As of [DATE], your plan had [INSERT NOTICE FUNDING PERCENTAGE
(DETERMINED IN ACCORDANCE WITH Sec. 2627.10(c))] percent of the
money needed to pay benefits promised to employees and retirees.
To pay pension benefits, your employer is required to contribute
money to the pension plan over a period of years. A plan's funding
percentage does not take into consideration the financial strength
of the employer. Your employer, by law, must pay for all pension
benefits, but your benefits may be at risk if your employer faces a
severe financial crisis or is in bankruptcy.
[INCLUDE THE FOLLOWING PARAGRAPH ONLY IF, FOR ANY OF THE PREVIOUS
FIVE PLAN YEARS, THE PLAN HAS BEEN GRANTED AND HAS NOT FULLY REPAID
A FUNDING WAIVER.]
Your plan received a funding waiver for [LIST ANY OF THE FIVE
PREVIOUS PLAN YEARS FOR WHICH A FUNDING WAIVER WAS GRANTED AND HAS
NOT BEEN FULLY REPAID]. If a company is experiencing temporary
financial hardship, the Internal Revenue Service may grant a funding
waiver that permits the company to delay contributions that fund the
pension plan.
[INCLUDE THE FOLLOWING WITH RESPECT TO ANY UNPAID OR LATE PAYMENT
THAT MUST BE DISCLOSED UNDER Sec. 2627.10(b)(6):]
Your plan was required to receive a payment from the employer on
[LIST APPLICABLE DUE DATE(S)]. That payment [has not been made] [was
made on [LIST APPLICABLE PAYMENT DATE(S)]].
PBGC GUARANTEES
When a pension plan ends without enough money to pay all
benefits, the PBGC steps in to pay pension benefits. The PBGC pays
most people all pension benefits, but some people may lose certain
benefits that are not guaranteed.
The PBGC pays pension benefits up to certain maximum limits.
The maximum guaranteed benefit is [INSERT FROM TABLE IN
APPENDIX B] per month or [INSERT FROM TABLE IN APPENDIX B] per year
for a 65-year-old person in a plan that terminates in [INSERT
APPLICABLE YEAR].
The maximum benefit may be reduced for an individual
who is younger than age 65. For example, it is [INSERT FROM TABLE IN
APPENDIX B] per month or [INSERT FROM TABLE IN APPENDIX B] per year
for an individual who starts receiving benefits at age 55. [IN LIEU
OF AGE 55, YOU MAY ADD OR SUBSTITUTE ANY AGE(S) RELEVANT UNDER THE
PLAN. FOR EXAMPLE, YOU MAY ADD OR SUBSTITUTE THE MAXIMUM BENEFIT FOR
AGES 62 OR 60 FROM THE TABLE IN APPENDIX B. IF THE PLAN PROVIDES FOR
NORMAL RETIREMENT BEFORE AGE 65, YOU MUST INCLUDE THE NORMAL
RETIREMENT AGE.]
[IF THE PLAN DOES NOT PROVIDE FOR COMMENCEMENT OF BENEFITS BEFORE
AGE 65, YOU MAY OMIT THIS PARAGRAPH.]
The maximum benefit will also be reduced when a benefit
is provided for a survivor.
The PBGC does not guarantee certain types of benefits.
[INCLUDE THE FOLLOWING GUARANTEE LIMITS THAT APPLY TO THE BENEFITS
AVAILABLE UNDER YOUR PLAN.]
The PBGC does not guarantee benefits for which you do
not have a vested right when a plan ends, usually because you have
not worked enough years for the company.
The PBGC does not guarantee benefits for which you have
not met all age, service, or other requirements at the time the plan
ends.
Benefit increases and new benefits that have been in
place for less than a year are not guaranteed. Those that have been
in place for less than 5 years are only partly guaranteed.
Early retirement payments that are greater than
payments at normal retirement age may not be guaranteed. For
example, a supplemental benefit that stops when you become eligible
for Social Security may not be guaranteed.
Benefits other than pension benefits, such as health
insurance, life insurance, death benefits, vacation pay, or
severance pay, are not guaranteed.
The PBGC does not pay lump sums exceeding $3,500.
WHERE TO GET MORE INFORMATION
Your plan, [EIN-PN], is sponsored by [CONTRIBUTING SPONSOR(S)].
If you would like more information about the funding of your plan,
contact [INSERT NAME, TITLE, BUSINESS ADDRESS AND PHONE NUMBER OF
INDIVIDUAL OR ENTITY].
For more information about the PBGC and the benefits it
guarantees, you may request a free copy of ``Your Guaranteed
Pension'' by
[[Page 24696]]
writing to Consumer Information Center, Dept. YGP, Pueblo, Colorado
81009.
[THE FOLLOWING SENTENCE MAY BE INCLUDED:]
``Your Guaranteed Pension'' is also available from the PBGC
Homepage on the World Wide Web at http://www.pbgc.gov/ygp.htm.
Issued: [INSERT AT LEAST MONTH AND YEAR]
Appendix B to Part 2627--Table of Maximum Guaranteed Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
The maximum guaranteed benefit for an individual starting to receive benefits at the age listed below
is the amount (monthly or annual) listed below:
-------------------------------------------------------------------------------------------------------
If a plan terminates in-- Age 65 Age 62 Age 60 Age 55
-------------------------------------------------------------------------------------------------------
Monthly Annual Monthly Annual Monthly Annual Monthly Annual
--------------------------------------------------------------------------------------------------------------------------------------------------------
1995............................................ $2,573.86 $30,886.32 $2,033.35 $24,400.20 $1,673.01 $20,076.12 $1,158.24 $13,898.88
1996............................................ 2,642.05 31,704.60 2,087.22 25,046.64 1,717.33 20,607.96 1,188.92 14,267.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
The maximum guaranteed benefit for an individual starting to
receive benefits at ages other than those listed above can be
determined by applying the PBGC's regulation on computation of
maximum guaranteeable benefits (29 CFR Sec. 2621.4).
Issued in Washington, DC, this 13th day of May, 1996.
Martin Slate,
Executive Director, Pension Benefit Guaranty Corporation.
[FR Doc. 96-12335 Filed 5-15-96; 8:45 am]
BILLING CODE 7708-01-P
Complete official Federal Register PDF
FR Doc. 96-12280 Removal of Obsolete Regulations Concerning Filing Quotations for Government Shipments
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12280]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Part 1330
[STB Ex Parte No. 547]
Removal of Obsolete Regulations Concerning Filing Quotations for
Government Shipments
AGENCY: Surface Transportation Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (the Board) is removing from
the Code of Federal Regulations obsolete regulations concerning the
filing of rate quotations for government shipments.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Beryl Gordon, (202) 927-7513. [TDD for the hearing impaired: (202) 927-
5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (ICCTA)
abolished the Interstate Commerce Commission (ICC) and established the
Board within the Department of Transportation. Section 204(a) of ICCTA
provides that ``[t]he Board shall promptly rescind all regulations
established by the [ICC] that are based on provisions of law repealed
and not substantively reenacted by this Act.''
Former 49 U.S.C. 10721(b)(1) expressly provided that a common
carrier could provide transportation for the United States government
without charge or at a reduced rate.\1\ That provision is retained in
new 49 U.S.C. 10721 (rail transportation), 15712 (transportation by
motor or water carriage and freight forwarders), and 15504 (pipeline
transportation). However, the ICCTA removed the requirement of former
49 U.S.C. 10721(b)(2) that common carriers generally file copies of
rate quotations or tenders with both the ICC and the department, agency
or instrumentality of the United States government for which they were
made. Therefore, the ICC regulations to implement the quotation filing
requirement, which were codified in part 1330 at 43 FR 59844 (December
22, 1978),\2\ have been rendered obsolete. Because the statutory basis
for the part 1330 regulations has been removed, we are eliminating
those rules.
---------------------------------------------------------------------------
\1\ Former section 10721 recodified section 22 of the Interstate
Commerce Act. Section 22 allowed common carriers to depart from
their tariffs in providing service to the government.
\2\ The regulations were later modified to exempt
nonagricultural rail rate quotations from the filing requirements.
Railroad Exempt.--Filing Quotations--Section 10721, 7 I.C.C.2d 325
(1991).
---------------------------------------------------------------------------
Because this action merely reflects, and is required by, the
enactment of the ICCTA and will not have an adverse effect on the
interests of any person, this action will be deemed to be effective as
of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1330
Freight, Government procurement, Motor carriers, Moving of
household goods, Pipelines, Railroads.
Decided: May 2, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
PART 1330--[REMOVED]
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended by removing part 1330.
[FR Doc. 96-12280 Filed 5-15-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-12262 New Animal Drugs For Use In Animal Feed; Halofuginone Hydrobromide and Bambermycins
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24693-24694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12262]
=======================================================================
-----------------------------------------------------------------------
[[Page 24694]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 558
New Animal Drugs For Use In Animal Feed; Halofuginone
Hydrobromide and Bambermycins
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of a new animal drug application
(NADA) filed by Hoechst-Roussel Agri-Vet Co. The NADA provides for
using approved single ingredient Type A medicated articles to make Type
C medicated turkey feeds containing halofuginone hydrobromide and
bambermycins.
EFFECTIVE DATE: May 16, 1996.
FOR FURTHER INFORMATION CONTACT: James F. McCormack, Center For
Veterinary Medicine (HFV-128), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1607.
SUPPLEMENTARY INFORMATION: Hoechst-Roussel Agri-Vet Co., P.O. Box 2500,
Route 202-206, Somerville, NJ 08876-1258, filed NADA 140-918 which
provides for use of approved Stenorol (2.72 grams (g) of
halofuginone hydrobromide activity per pound) and approved
Flavomycin (4 and 10 g of bambermycins activity per pound)
Type A medicated articles to make Type C medicated turkey feeds
containing 1.36 to 2.72 g of halofuginone hydrobromide and 2 g of
bambermycins per ton. The Type C medicated turkey feed is used for
prevention of coccidiosis caused by Eimeria adenoides, E.
meleagrimitis, and E. gallopavonis, and for increased rate of weight
gain in growing turkeys. The NADA is approved as of May 16, 1996, and
the regulations are amended in 21 CFR 558.265 by adding new paragraph
(c)(2)(iii) to reflect the approval. The basis of approval is discussed
in the freedom of information summary.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
This approval is for use of single ingredient Type A medicated
articles to make Type C medicated feeds. Halofuginone hydrobromide is a
Catagory II drug which, as provided in 21 CFR 558.4, requires an
approved form FDA 1900 for making a Type C medicated feed. Therefore,
use of halofuginone hydrobromide and bambermycins Type A articles to
make Type C medicated turkey feeds as in NADA 140-918 requires an
approved form FDA 1900.
Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), approval of this
application qualifies for 3 years of marketing exclusivity beginning
May 16, 1996, because the application contains reports of new clinical
or field investigations (other than bioequivalence or residue studies)
or human food safety studies (other than bioequivalence or residue
studies) essential to the approval and conducted or sponsored by the
applicant.
The agency has determined under 21 CFR 25.24 (d)(1)(ii) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
List of Subjects in 21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is
amended as follows:
PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS
1. The authority citation for 21 CFR part 558 continues to read as
follows:
Authority: Secs. 512, 701 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b, 371).
2. Section 558.265 is amended by adding new paragraph (c)(2)(iii)
to read as follows:
Sec. 558.265 Halofuginone hydrobromide.
* * * * *
(c) * * *
(2) * * *
(iii) Amount per ton. 1.36 to 2.72 grams of halofuginone
hydrobromide plus 2 grams of bambermycins.
(A) Indications for use. For the prevention of coccidiosis caused
by Eimeria adenoides, E. meleagrimitis, and E. gallopavonis, and for
increased rate of weight gain in growing turkeys.
(B) Limitations. Feed continuously as sole ration. Withdraw 7 days
before slaughter. Do not feed to laying chickens or waterfowl.
Halofuginone hydrobromide is toxic to fish and other aquatic life. Keep
out of lakes, ponds, and streams. Halofuginone hydrobromide is an eye
and skin irritant. Avoid contact with skin, eyes, and clothing.
* * * * *
Dated: May 1, 1996.
Michael J. Blackwell,
Acting Director, Center for Veterinary Medicine.
[FR Doc. 96-12262 Filed 5-15-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-12261 Migrant and Seasonal Agricultural Worker Protection Act
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24858-24866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12261]
[[Page 24857]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
Wage and Hour Division
_______________________________________________________________________
29 CFR Part 500
Migrant and Seasonal Agricultural Worker Protection Act; Final Rule
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules
and Regulations
[[Page 24858]]
DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 500
RIN 1215-AA93
Migrant and Seasonal Agricultural Worker Protection Act
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the regulations under the Migrant and
Seasonal Agricultural Worker Protection Act (MSPA) to implement
statutory changes to MSPA concerning the relationship between workers'
compensation benefits and the benefits available under the MSPA. The
statutory amendments to MSPA specifically require changes in the MSPA
regulations concerning disclosure of workers' compensation information
and additionally require reconsideration of the MSPA-required
transportation liability insurance. This document also amends existing
regulations to provide for expedited proceedings before an
Administrative Law Judge (ALJ) on actions initiated by the
Administrator of the Wage and Hour Division to revoke, suspend, or
refuse to issue or renew a Farm Labor Contractor Certificate of
Registration, and for expedited review by the Secretary of Labor in
such cases. Lastly, this document amends the regulations to indicate
that the Certificate of Registration issued to farm labor contractors
will reflect the maximum number of farm workers authorized to be
transported.
EFFECTIVE DATES: The amendments to the authority citation for part 500
and to Secs. 500.48, 500.121, and 500.122 are effective on May 16,
1996. See: Dates of Applicability below. The amendments to
Secs. 500.224, 500.262, and 500.268 are effective on July 15, 1996. The
amendments to Secs. 500.75 and 500.76 are effective on August 14, 1996.
FOR FURTHER INFORMATION CONTACT: Michael Hancock, Office of Enforcement
Policy, Farm Labor Team, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S-3510, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 219-7605. This is
not a toll-free number. Copies of this Final Rule in alternative
formats may be obtained by calling (202) 219-7605, (202) 219-4634
(TDD). The alternative formats available are large print, electronic
file on computer disk and audio-tape.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act of 1995
The paperwork requirements contained in the proposed regulations
were submitted for review to the Office of Management and Budget
pursuant to section 3507(d) of the Paperwork Reduction Act of 1995. OMB
has approved these requirements under OMB No. 1215-0187 through April
30, 1999.
Title: Worker Information, Form WH-516.
Summary: This Final Rule amends sections 500.75 and 500.76 of
Regulations, 29 CFR Part 500, to require disclosure to migrant and
seasonal agricultural workers of certain information regarding the
availability of workers' compensation insurance.
Need: Various sections of the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA), 29 U.S.C. 1801 et seq., require that each
farm labor contractor, agricultural employer and agricultural
association disclose in writing the terms and conditions of employment
to: (a) migrant agricultural workers at the time of recruitment
(section 201(a)(1)); (b) seasonal agricultural workers, upon request,
at the time of employment (section 301(a)(1)); and (c) seasonal
agricultural workers employed through a day-haul operation at the place
of recruitment (section 301(a)(2)). Sections 201(b) and 301(b), which
relate to posting in a conspicuous place at the place of employment a
poster provided by the Secretary setting forth the rights and
protections afforded covered workers under MSPA, also require that each
such employer provide to each worker (upon request in the case of
seasonal agricultural workers) a written statement of the terms and
conditions of employment. In addition, sections 201(g) and 301(f)
require that such information be provided in English, or as necessary
and reasonable, in a language common to the workers, and that the U.S.
Department of Labor (DOL) make forms available to provide such
information. Optional Form WH-516, Worker Information, is made
available by DOL for these purposes. As an alternative to use of the
Form WH-516, employers may disclose the terms and conditions of
employment in writing to migrant workers (or upon request to seasonal
workers), using any other format provided the required information is
contained within the disclosure.
Pub. L. 104-49 provides in section 4 for the disclosure to the
employee of certain additional information regarding workers'
compensation insurance, i.e., whether workers' compensation is provided
and if so, the name of the workers' compensation insurance carrier, the
name of the policyholder of such insurance, the name and the telephone
number of each person who must be notified of an injury or death, and
the time period within which this notice must be given. Optional Form
WH-516 has been revised to include this new statutorily-required
information. The workers' compensation disclosure requirement can
alternatively be met by the employer furnishing the worker with a
photocopy of any notice regarding workers' compensation insurance
required by law of the State in which such worker is employed. It is
important to note that the information on the terms and conditions of
employment required to be disclosed (including the workers'
compensation information) is to be disclosed to prospective employees.
Outside of an investigation context in which the employer is
specifically requested to provide a copy of any written disclosure made
to workers, this information is not to be forwarded to, nor will it be
maintained by, the Federal government.
The public was invited to provide comments regarding estimates of
the burden of the collection of information, the information collection
requirements, and the disclosure requirements during the comment period
for the Notice of Proposed Rulemaking (NPRM) published in the Federal
Register on Monday, March 18, 1996 (see 61 Federal Register No. 53, Pg.
10911-10918). The comment period for the NPRM ended on Wednesday, April
17, 1996. Comments were received concerning meeting the workers'
compensation disclosure requirement by providing a copy of any State-
mandated disclosure only if it included all the information required by
the optional DOL form. In response to these comments, this limitation
has been deleted from the final rule as discussed below in connection
with Secs. 570.75 and 570.76. The change does not, however, affect the
burden estimates.
II. Background
Public Law 104-49 amends the Migrant and Seasonal Agricultural
Worker Protection Act (MSPA) provisions dealing with the private right
of action, the regulatory process for setting minimum transportation
liability insurance requirements, and disclosure obligations to
agricultural workers. The
[[Page 24859]]
Act requires the Secretary to reexamine the current MSPA transportation
insurance regulations and to amend the regulations governing
disclosure. The insurance rulemaking must be completed and a final rule
published within 180 days of enactment, or no later than May 13, 1996.
The disclosure regulations, while under no statutory deadline, provide
important new information to agricultural workers and require
regulations before they become effective. In addition, the Department
has determined that it is necessary to modify Form WH-511 (Farm Labor
Contractor Certificate of Registration) to reflect the seating capacity
of any vehicle(s) authorized for use in transporting covered workers
(this modification will result in no additional burden or data
collection as the information is already collected on Form WH-510--the
Application for a Farm Labor Contractor Certificate of Registration).
The final regulation gives adjudication priority to administrative
actions denying, revoking, or suspending a farm labor contractor (FLC)
certificate. Currently, some FLCs continue to lawfully operate for
extended periods awaiting an administrative hearing and final order on
a certification action. This amended regulation establishes deadlines
for Administrative Law Judge and Secretarial review proceedings in MSPA
certificate actions.
The Department of Labor published a Notice of Proposed Rulemaking
in the Federal Register on March 18, 1996 (61 FR 10911-10918). The
public comment period on the proposed regulatory changes closed on
April 17, 1996.
III. Analysis of Comments
A. Comments to the Proposed Rule
Comments to the Notice of Proposed Rulemaking (NPRM) were received
from 27 organizations and individuals, representing the views of 69
organizations, public officials and individuals. Comments were received
from five growers, 12 agricultural associations (with three
organizations endorsing other's comments as well), two Congressional
letters on behalf of five Members of the U.S. House of Representatives,
four farmworker organizations (on behalf of 39 organizations and
individuals), two attorneys who have represented farmworkers injured in
traffic accidents, one individual, one insurance trade association, and
one State government agency.
The comments were primarily focused on three subjects: disclosure
of the terms and conditions of workers' compensation by providing
farmworkers with a photocopy of the State-mandated notice; the minimum
amount of vehicle liability insurance required under MSPA; and further
elaboration on the meaning of ``actual costs'' in determining whether
or not a ``carpool'' is subject to MSPA transportation and/or
registration obligations.
B. Summary of Comments
The comments submitted by two growers expressed displeasure with
any insurance obligation under MSPA. Three expressed the view that
insurance should be lowered from the current levels.
The comments submitted by most of the agricultural employer
associations raised certain common issues. First, these commenters
asserted that requiring the State-mandated workers' compensation notice
to contain all the information required in the MSPA disclosure was not
required by Pub. L. 104-49 and that the proposed regulations should be
changed to delete this provision. Second, these commenters contended
that DOL should retain the current MSPA insurance regulatory structure
of two classes of vehicles, those with seating capacities of 15 and
fewer and sixteen and more, and merely lower the minimum insurance
required for each vehicle category. The insurance trade association
echoed these views. Finally, most of the agricultural employer
associations and organizations suggested that the Department should
further explain the circumstances under which ``carpool'' arrangements
will be considered legitimate (therefore, outside the scope of MSPA
regulations) and when such arrangements will be considered not to be
carpools (therefore, within the scope of MSPA regulations).
In addition to these broad themes running through many of the
agricultural employer associations' comments, several commenters raised
insurance issues and suggested other changes. Florida Citrus Mutual
suggested a $10,000 to $25,000 per seat requirement because it would
more closely approximate insurance levels for privately-owned
noncommercial vehicles required under State laws. The California Grape
and Tree Fruit League recommended insurance minimums of either $100,000
per person/$300,000 per accident or $250,000 per person/$500,000 per
accident. The Nisei Farmers League recommended $300,000 to $500,000 for
vehicles transporting fewer than 14 workers and $500,000 to $1 million
for those transporting 15 or more workers. The New England Apple
Council recommended insurance coverage based on 6 different seating
capacity categories: $500,000 for up to 10 passengers; $600,000 for 11-
20; $700,000 for 21-30; $800,000 for 31-40; $900,000 for 41-50; and $1
million for 50 and above. The Florida Fruit and Vegetable Association
recommended $300,000 for vehicles transporting 12 or fewer, and
$500,000 for vehicles transporting more than 12.
Comments were submitted by four farmworker advocacy organizations
on behalf of a number of individuals and organizations, including labor
unions, State and county elected officials, religious service
organizations serving farmworkers, a college professor, a trial lawyer
organization, community organizations, and farmworker legal services
providers. These commenters were concerned that the disclosure of
workers' compensation information should be complete, timely and in a
language the workers can understand and that the minimum amount of
insurance necessary remain at the proposed $100,000 per seat in order
to insure against reasonably foreseeable risk. One farmworker advocate
sought clarification that transportation advances provided to a
farmworker would not subject the farm labor contractor, agricultural
employer or association providing the advance to the MSPA
transportation requirements. Two attorneys with experience representing
farmworkers involved in transportation accidents also commented in
favor of the Department's proposed insurance provisions.
Comments were also submitted by five Members of the U.S. House of
Representatives and one State agency, addressing three issues.
Regarding the Proposed Rule's provision that the state-mandated
workers' compensation poster would not satisfy MSPA disclosure
requirements if the poster lacked information specified in Pub. L. 104-
49, all five Members expressed the view that the proposal was contrary
to the statutory directive. Regarding the levels of vehicle liability
insurance prescribed in the Proposed Rule, two Members (the Honorable
Bill Goodling and Cass Ballenger) suggested that the Department should
either devise a different regulatory formula or set lower minimum
levels, and three Members (the Honorable Calvin M. Dooley, Gary A.
Condit and Vic Fazio) noted ``concerns that ICC insurance levels are
unnecessarily high for those in agriculture transporting workers'' and
urged that the MSPA regulation assure a balance between protection of
farmworkers and affordable insurance for transportation providers. All
five
[[Page 24860]]
Members requested further clarification regarding ``carpooling''. The
State agency (Virginia Department of Labor and Industry) expressed the
same views as the Members regarding the use of the state-mandated
workers' compensation poster and the desire for further ``carpooling''
guidance, and suggested a modification of the Proposed Rule's formula
for liability insurance levels.
As further explained below, the Final Rule has been revised to
incorporate some of the suggestions received from the comments. First,
the Rule on workers' compensation disclosure will make it clear that
the State-mandated notice used by the employer does not have to include
all the MSPA-specified information; the Rule will further provide that
if the state workers' compensation law mandates that supplemental
information be provided to the worker in the event of an injury, the
disclosure of such information is required for the employer's continued
compliance with the MSPA regulation. Second, the liability insurance
regulation will cap insurance requirements at $5 million regardless of
the seating capacity of the insured vehicle. Therefore, no transporter
will be required to purchase more insurance than under the current
regulation and most will be required to purchase less.
C. Workers' Compensation Disclosure Requirements
The MSPA was amended by Pub. L. 104-49 to require farm labor
contractors, agricultural employers and agricultural associations who
recruit or hire agricultural workers subject to the requirements of the
Act to provide the workers certain additional information about the
terms and conditions of workers' compensation coverage, if such
coverage is provided by the employer. This information must be in
written form, and that disclosure document must be given to each
agricultural worker to be retained in the event that the information
contained therein becomes useful or necessary.
Under current regulations, the information to be disclosed to
agricultural workers includes the place of employment, the period of
employment, wage rate(s), crops and activities, whether transportation
or other benefits are provided, housing and its cost (if provided),
information about any strike, work stoppage, slowdown, or interruption
in operations, and information about any employer charges for goods or
services provided by the employer. The disclosures required by MSPA,
including the new workers' compensation disclosure requirements under
Pub. L. 104-49, must be given to each migrant agricultural worker at
the time of recruitment. If the workers' compensation information
required to be disclosed is unavailable at the time of recruitment, it
must be disclosed to each worker at the earliest possible time that the
information becomes available - but in no event later than the
commencement of employment. Seasonal agricultural workers are entitled
to the same information in the same form upon request.
It is important to note that Pub. L. 104-49 does not alter the
requirement under MSPA that all other terms and conditions of
employment be disclosed to covered workers at the time of recruitment.
The provision added by Pub. L. 104-49 allowing an employer to delay
full disclosure of the required workers' compensation information until
it is available (but in no event later than the commencement of
employment), applies only to the disclosure of required workers'
compensation information.
Pub. L. 104-49 provides that migrant agricultural workers are
entitled to receive, in writing, the name of the workers' compensation
insurance carrier, the name of the policy holder of such insurance, the
name and telephone number of each person who must be notified of an
injury or death, and the time period within which such notice must be
given. Seasonal agricultural workers must also receive the same
workers' compensation information in writing if so requested by the
worker(s). This Final Rule amends Secs. 500.75 and 500.76 to include
these new statutorily-required disclosure items.
Pub. L. 104-49 provides that information concerning workers'
compensation may be given to the worker in one of two ways. The farm
labor contractor, agricultural employer, or agricultural association
may provide the specified information in writing. The March 18 NPRM
provided that this disclosure could be accomplished via the optional
written disclosure form (Optional Form WH-516) made available by the
Department. In the alternative, the farm labor contractor, agricultural
employer or agricultural association may communicate the necessary
workers' compensation information by giving the agricultural worker a
photocopy of any notice regarding workers' compensation insurance
required by the law of the State in which the worker is employed. To
remain consistent with the underlying intent for the disclosure
requirement, the Department included in its March 18 NPRM a proviso
that giving a copy of a State-required workers' compensation form (or
notice) to covered workers would be deemed to satisfy the disclosure
requirement so long as the copy contains all of the workers'
compensation information that must be disclosed.
During the comment period for the NPRM, five Members of Congress
(the Honorable Bill Goodling, Cass Ballenger, Calvin Dooley, Gary
Condit, and Vic Fazio), the Chairman of the Commonwealth of Virginia's
Interagency Migrant Worker Policy Committee (Theron J. Bell), the
American Insurance Association, and eleven grower associations
expressed concerns about the proposed regulation which would recognize
compliance with the workers' compensation disclosure requirement by
providing the worker a copy of a State-mandated workers' compensation
poster only if the poster contains the same workers' compensation
information specified in Pub. L. 104-49. These commenters took the
position that the proposed regulation was too restrictive, that it was
contrary to the language of Pub. L. 104-49 regarding the use of State-
mandated posters, and that it should provide employers more flexibility
relative to the disclosure of workers' compensation information.
Four worker advocacy groups writing on their own and on behalf of
thirty-five other worker assistance and advocacy groups, supported the
Department's proposal in the NPRM regarding the workers' compensation
information disclosure requirements.
After careful consideration of the comments received on the NPRM,
the Department has determined that the plain language of the statute
(Pub. L. 104-49) does not require that a State-mandated workers'
compensation notice must contain information not already required by
the State workers' compensation law. Accordingly, the NPRM proposal
that would have allowed the State-mandated notice to be used only if it
contained all of the information specified in Pub. L. 104-49 has been
deleted in the Final Rule. However, it should be noted that although
initial compliance with MSPA disclosure requirements can be met by
providing the State-mandated notice, many State workers' compensation
laws require additional disclosures to the worker if an injury occurs.
If an employer chooses to comply with the MSPA workers' compensation
disclosure obligations by providing the State-mandated notice but these
state-mandated supplemental disclosures are not made to a worker, the
failure to do so would constitute a failure to meet the workers'
compensation disclosure requirements. In such cases, in order to
[[Page 24861]]
remain in compliance with the MSPA disclosure requirements in the event
of an accident or some other event that would trigger the applicability
of workers' compensation, the State-mandated additional disclosures
must be made by the employer. It is the Department's view that this
interpretation imposes no new Federal requirements--rather, it provides
employers subject to the State's workers' compensation law(s) with an
added incentive to make full and accurate disclosures of the
information necessary in order for the worker to properly file a claim
for workers' compensation in the event of a covered injury or illness.
D. Transportation Insurance Under MSPA
Under the MSPA, agricultural employers, agricultural associations,
and farm labor contractors who use or cause to be used a vehicle to
transport agricultural workers subject to the Act must comply with
certain minimum transportation safety requirements and provide a
minimum level of financial security to insure against liability for
damage to persons or property of workers or third parties. Pub. L. 104-
49 amended the MSPA provision regarding the determination of the level
of financial security to be required.
MSPA provides three means by which farm labor contractors,
agricultural employers, or agricultural associations may insure against
liability for damage to persons or property arising from the ownership,
operation or causing to be operated a vehicle used to transport
agricultural workers. The security may be in the form of (1) a vehicle
liability insurance policy that insures employees and nonemployees; (2)
a workers' compensation policy along with a certificate of liability
insurance covering transportation whenever nonemployees and employees
may be transported under circumstances not covered by workers'
compensation; or (3) the posting of a $500,000 liability bond. Pub. L.
104-49 required the Secretary to re-examine the previous minimum
liability insurance requirement and make any changes indicated by May
13, 1996.
While the Final Rule modifies only the minimum liability insurance
levels per occurrence for such transportation, this discussion responds
to commenters' concerns for clarification regarding the obligations
under MSPA if a farm labor contractor, agricultural employer, or
agricultural association chooses workers' compensation as the primary
transportation insurance coverage for the agricultural workers being
transported. Further, in response to commenters and to the legislative
history of Pub. L. 104-49, which indicates a need to reaffirm and
further explain the circumstances under which carpooling arrangements
among workers fall outside of the scope of MSPA (Joint Statement of
Legislative Intention, Rep. William F. Goodling, E1943, Cong. Rec.,
Oct. 13, 1995), this discussion provides needed clarification on these
issues.
1. Workers' Compensation as Primary Transportation Insurance
Workers' compensation coverage is a partial alternative to meeting
transportation liability obligations under MSPA and the Department's
regulations. However, workers' compensation coverage alone does not
completely satisfy the legal obligations under MSPA. The regulations
also require that if an employer chooses workers' compensation as the
primary coverage, additional liability insurance in a specified minimum
amount must also be provided to compensate employees and nonemployees
for property damage and bodily injuries not covered by workers'
compensation benefits whenever there is a possibility that workers may
be transported under circumstances not covered by workers' compensation
insurance. Employers who are certain that the transportation will occur
only under circumstances covered by workers' compensation are not
obligated to secure additional bodily injury coverage but they do so at
their own risk. In such circumstances, the employer would be in
violation of the MSPA insurance obligations if they transport workers
outside the scope of workers' compensation coverage, and would be
exposed to suits for actual damages. The regulation at 29 CFR
500.122(c)(2) has required this supplemental coverage since MSPA was
enacted and nothing in this Final Rule is intended to alter this
obligation.
2. Transportation Under MSPA and Carpools
As stated previously, the legislative history of Pub. L. 104-49
indicated a need to reaffirm and clarify what constitutes a legitimate
carpool arrangement among workers, which would be beyond the scope of
the MSPA transportation requirements (including minimum insurance
obligations).
Carpooling is described in the regulation at Sec. 500.100(c). The
NPRM proposed no amendment to this regulation, and it remains unchanged
in this Final Rule. However, in the Preamble to the NPRM and in this
discussion, the Department has provided further guidance and
clarification.
Under the regulation, carpooling is a voluntary arrangement among
workers for transportation to and from work using a worker's own
vehicle. The workers may contribute to offset the costs of the
transportation to reasonably reflect the actual costs of the
transportation. Any compensation or other valuable consideration in
excess of the actual costs means the transportation provider is
considered a farm labor contractor and thereby subject to the
registration and transportation requirements of the Act and the
regulations. Likewise, any arrangement in which a farm labor contractor
participates will not be considered a carpool. If any agricultural
employer or association directs or requests such transportation
arrangements or provides money or other valuable consideration (other
than the travel advances discussed below) for the transportation
service, such an arrangement is not a carpooling arrangement among
workers.
Several commenters responding to the NPRM Preamble sought further
clarification of the circumstances under which a transportation
arrangement will be considered to be a ``carpool'' beyond the scope of
MSPA regulations or, on the other hand, when transportation will be
deemed not to be a ``carpool'' and therefore subject to MSPA
regulation.
A number of commenters raised questions about the scope of ``actual
costs'' for purposes of determining whether or not the transportation
arrangement is ``for any money or other valuable consideration paid or
promised to be paid,'' and therefore potentially subject to the farm
labor contractor provisions of the Act and regulations.
Some of the agricultural employer advocacy organizations expressed
the view that a transportation-providing worker operating the vehicle
should be entitled to receive remuneration from the passengers to
offset the cost of the transportation. Some stated that the worker
should be able to receive compensation for such transportation related
expenses as gas, oil, insurance, vehicle depreciation, wear on tires,
etc. and still be deemed to be a carpool. Others contended that if the
driver received no money from the farm labor contractor, agricultural
employer or agricultural association, the amount that was received from
the passengers should be of no legal consequence. One commenter
suggested that the driver should be able to accept from each passenger
whatever amount the passenger would pay for public transportation, if
public transportation were available.
[[Page 24862]]
Based in the language of MSPA itself, by definition, a farm labor
contractor is ``any person--other than an agricultural employer, an
agricultural association, or an employee of an agricultural employer or
agricultural association--who, for any money or other valuable
consideration paid or promised to be paid, performs any farm labor
contracting activity.'' 29 U.S.C.1802(7); 29 CFR 500.20(j).
Transporting any migrant or seasonal agricultural worker ``for any
money or other valuable consideration paid or promised to be paid''
thus constitutes performing a farm labor contracting activity. 29
U.S.C. 1802(6); 29 CFR 500.20(i). As stated above, the Department's
regulations recognize bona fide carpool arrangements among workers, and
exempt such arrangements from passengers, the driver must be able to
show how the charges were calculated and that the charges are
reasonable and directly related to the transportation provided to the
carpool. Guidance regarding making such showing may be found in the
regulations for the Fair Labor Standards Act provision allowing the
employer to claim wage credit for the ``reasonable cost'' of meals or
lodging furnished to employees, 29 CFR 531.3.
Another reasonable measure of actual costs is the reimbursement
rate for federal employees who use private automobiles for official
business. The federal government reimburses those employees at a rate
of 30 cents per mile to compensate for gas, wear and tear, and other
costs associated with the operation of the vehicle. If the operator of
a carpool multiplies the miles to and from the worksite by 30 cents and
charges each occupant of the vehicle a pro rata share of those costs,
those charges would be considered a sufficient approximation of
``actual costs'' to satisfy the carpooling regulations. (See 41 CFR
301-4; 59 FR 66626, Dec. 27, 1994. Transporters should note that the
amount of reimbursement changes periodically to reflect changes in
costs.)
Another issue raised by the commenters concerns employer
involvement in carpooling arrangements. A bona fide carpool is strictly
voluntary and is done for the convenience of the workers involved, not
at the direction of an FLC, agricultural employer or agricultural
association. An FLC, agricultural employer or agricultural association
may indicate to workers that there is no prohibition against carpooling
if any workers wish to make such arrangements, and may even encourage
workers to do so.
It was suggested by one agricultural association that encouraging
carpools is consistent with and perhaps even required by certain
pollution abatement laws and regulations. Nothing in the current
regulations nor in this discussion is intended to prevent agricultural
employers or associations from encouraging agricultural workers to
carpool in order to serve the laudable public policy goal of reducing
pollution. However, where the FLC, agricultural employer or
agricultural association organizes or helps to organize the carpool(s),
or makes carpooling a condition of employment, the activity is deemed
to be ``causing to be transported'' and requires compliance with MSPA.
All the commenters agreed with the Department's analysis of the
``raitero'' practice but some requested further clarification of the
employer's obligation, if any, when raiteros provide transportation.
Nothing in the carpool regulation nor in the discussion of raiteros in
the Preamble to the NPRM alters the test of employer responsibility for
transportation by third parties. Unless the agricultural employer or
association ``caused'' the transportation by the raiteros to occur, the
agricultural employer or association is not responsible for the
transportation.
Finally, a farmworker advocacy organization identified another
transportation-related practice that should be clarified. Where a farm
labor contractor, agricultural employer, or association provides the
worker a travel advance to cover travel expenses to the worksite, and
the worker is free to choose how to use that travel advance, the farm
labor contractor, agricultural employer, or agricultural association
will not be deemed to have ``caused'' the transportation used by the
worker and will not be subject to MSPA with regard to such
transportation.
3. Proposed Revision to the MSPA Minimum Transportation Liability
Insurance Regulation
Public Law 104-49 eliminated the MSPA requirement that the
liability insurance required by the Secretary in regulations must be at
least the amount required for the carriers of passengers under the
Interstate Commerce Act (hereinafter referred to as ICA). Instead, Pub.
L. 104-49 requires that the liability insurance amount is to be
determined by the Secretary through consideration of ``at least the
factors set out in [MSPA Sec. 401(b)(2)(B) regarding vehicle safety]
and similar farmworker transportation requirements under State law.''
Pub. L. 104-49 further requires the Secretary to establish insurance
levels under this law within 180 days of enactment (i.e., no later than
May 13, 1996).
The NPRM proposed to implement the insurance provisions of Pub. L.
104-49 by amending the MSPA minimum liability insurance regulations to
depart from the current ICA-based structure in favor of a more flexible
regulatory scheme. As explained in the Preamble to the NPRM, the
proposed amendment would eliminate the current vehicle capacity
categorization found in the ICA regulations (which may well relate to
general interstate passenger transportation patterns) while at the same
time ensuring adequate insurance levels to protect injured persons and
property when accidents occur. The proposal linked the required
insurance amount to the actual capacity of each vehicle, rather than
mandating one of two levels of insurance tied to vehicle capacity
categories of 15 and below or 16 and above. The proposal required that
the insurance be at least equal to $100,000 for each seat in a vehicle,
instead of the current flat requirement of $1.5 million and $5 million
for each vehicle category, respectively.
In developing the NPRM and this Final Rule, the Department adhered
to the requirements of Pub. L. 104-49. The Department carefully
considered the factors set out in MSPA Sec. 401(b)(2)(B). Additionally,
the Department searched for, but was unable to find, any similar
farmworker transportation requirements under State law; none were
identified by the commenters.
The overriding concern, as stated in Sec. 401(b)(2)(B) of MSPA, is
the protection of the health and safety of migrant and seasonal
agricultural workers. The legislative history of MSPA makes clear that
the requirements to provide safe vehicles and adequate levels of
vehicle insurance are key worker protections in the Act (Report of the
House Committee on Education and Labor, Rept. No. 97-885, 97th Cong.,
2d Sess.; 1982 U.S. Code Cong. and Ad. News 4547 (hereinafter referred
to as Report), at 4565). The House Education and Labor Committee Report
accompanying the original MSPA enactment noted that ``[t]he overriding
concern of the Secretary shall be the protection of the health and
safety of the workers.'' Id at 4565. The Committee also noted the ``* *
* often dangerous conditions under which agricultural workers are
transported.'' Id at 4566.
The statute directs that the Secretary should consider a number of
factors, including type and capacity of the vehicle and the extent to
which the
[[Page 24863]]
regulation will create an undue burden on the regulated community, in
determining both the substantive vehicle safety standards and the
required minimum insurance amounts. In the NPRM, the Department sought
ways to lessen the burden on the regulated community while still
maintaining adequate protection for workers. By departing from the
ICA's 15 and fewer and 16 and more seating capacity categories in favor
of a more flexible regulatory scheme, the proposal enables the
regulated community to structure its transportation practices without
regard to the arbitrary vehicle capacity distinction in the current
regulation, obtain insurance based on actual practices and
transportation needs, and in most cases, to realize a per vehicle
reduction in the minimum insurance required.
4. Data and Other Information Considered in NPRM and Final Rule
In developing the NPRM, the Department considered the reasonably
foreseeable risks to farmworkers from transportation accidents. As the
Preamble explained, the Department gathered information concerning the
incidence of fatalities and injuries, the damages resulting from such
injuries, and the likelihood that farmworkers would be made whole in
the absence of adequate insurance coverage. The Department also
considered whether or not the insurance could be made more flexible
and, consistent with the obligation to protect farmworkers, reduce the
level of required insurance.
The NPRM Preamble expressly requested information from the
commenters concerning certain factual matters that bear on the issues
of adequate insurance, transportation injuries to farmworkers, and
undue burden on the regulated community. Among the information
requested was specific information, with documentation, evidencing the
financial burden created by the insurance requirement; a comparison of
costs between the 1983 and 1992 insurance requirements; information
about individual accidents and the resulting damages; the extent to
which the 1992 minimum insurance requirement increases resulted in
transporters being unable to secure and/or afford insurance coverage;
and any similar State laws governing farmworker transportation. While
some commenters provided anecdotal information, and some commenters
gave general or conclusory information without the underlying
supporting data, most of the Department's requests for detailed
information received no response.
In commenting on the NPRM, the American Insurance Association
(hereinafter referred to as AIA) provided limited information about
average claims paid for accident years 1990 through April 1994. AIA
stated that the average claim paid for the 65 bodily injury claims
included in its data compilation for that period was $17,430. The AIA
comment did not disclose any underlying data, such as the range of
claims paid, the geographic scope of the data, whether or not the 65
referenced claims were the entirety of the accidents involving
agricultural workers, the circumstances of the accidents, and whether
or not the claims paid include all the damages in each incident or
merely the amount paid by an insurance carrier. The AIA summary
statement does suggest that the damages suffered by farmworkers in
accidents are extremely high when compared to average losses for other
occupational groups. Based on information which AIA provided to the
Department during the development of the Proposed Rule, the average
$17,430 claim for agricultural workers is approximately four times
higher than average claims paid for the next highest occupational
group, truck drivers, at $4,300 per claim paid.
AIA also provided summary information for ``a large group of risks
with severity characteristics similar to transporters of migrant
workers.'' AIA stated that its data show that, for the group surveyed,
the risk of loss greater than $500,000 is less than 0.3%. AIA did not
provide the underlying data which was summarized in this statement, and
did not describe or identify the ``large group'' or the ``severity
characteristics.'' It is therefore difficult to discern what is being
measured and whether or how the survey is relevant to the MSPA
liability insurance analysis. The Department made an informal request
to AIA for clarification of this information; apparently the survey
group are employees riding in van pools or other employer-provided
vehicles.
Farmworker advocates' comments also provided information concerning
risk of injury to farmworkers in transportation accidents and the
extent of damages when accidents occur. The comment from the Migrant
Farmworker Justice Project of Florida Legal Services included a chart
prepared by the Florida Department of Labor and Employment Security
listing accidents involving farm labor contractors from January 1,
1990, through March 1996. This chart shows that 59 accidents resulted
in 48 fatalities and 352 non-fatal injuries during this period. Also
included were media reports on farmworker accidents and an analysis of
agricultural accidents in Florida during 1990 by Prof. William J.
Becker of the University of Florida. According to that study, 38% of
the 39 agricultural work-related fatalities were the result of motor
vehicle accidents on public roads.
Finally, Florida Rural Legal Services also provided information
about specific recoveries for farmworkers represented by FRLS, and
excerpts from a data base showing settlements and verdicts awarded to
farmers in motor vehicle accidents. It is not clear to what extent the
information concerning farmers is comprehensive or selective. The
settlements/verdicts ranged from $843 to $6,000,000. The 59 cases
reported in the documents resulted in average settlements/verdicts of
$381,903.62.
The Department has carefully and fully considered the information
provided by the commenters in response to the requests in the NPRM. The
information concerning recoveries in specific cases involving
farmworkers and farmers, confirms the data previously compiled by the
Department concerning the extent of loss suffered in vehicular
accidents. The information provided by AIA was helpful but lacked the
detail or specificity to MSPA-regulated transportation practices to
persuade the Department to substantially change the insurance proposal.
5. Regulatory Structure and Minimum Level of Insurance
a. Delinking from the ICA vehicle capacity structure. A number of
commenters representing agricultural employers and one representing
insurance interests suggested that the Department erred in proposing to
delink the MSPA transportation insurance regulation from the ICA
structure that divides vehicles into two categories according to
seating capacity of 15 and fewer or 16 and more. It was suggested by
these commenters that the Department retain the ICA division and simply
lower the required minimum insurance amount for each vehicle class. The
American Insurance Association supported this position and further
asserted that abandoning the ICA structure would require the insurance
industry to change the process by which insurance companies write these
policies.
The farmworkers advocacy organizations, the two attorneys who have
represented farmworkers in transportation accident cases, and the
Pennsylvania Farm Bureau all commented favorably on the proposal to
delink from the ICA two-level structure
[[Page 24864]]
in favor of a structure based on individual vehicle seating capacity.
The farmworker advocacy organizations and the attorneys expressed the
view that the proposal struck an appropriate balance between creating
additional flexibility for the regulated community, reducing the
required minimum insurance amounts and associated costs, and ensuring
adequate levels of protection in the event of an accident.
The Pennsylvania Farm Bureau commented that the proposal was a
positive step in the ability of farmers and farm labor contractors to
control vehicle insurance cost, even if the savings may be modest. The
Bureau also requested clarification regarding the insurance
requirements for a transportation provider who operates a fleet of
vehicles. In response, the Department emphasizes that the Final Rule
establishes a minimum insurance requirement for each vehicle used to
transport farmworkers under MSPA. Therefore, each vehicle in a fleet
would have a separate requirement for minimum liability insurance
depending on the vehicle's seating capacity. For example, a six
passenger vehicle must be insured for $600,000, a 10 passenger vehicle
for $1 million, and a 25 passenger vehicle for $2.5 million. Even
though the aggregate requirement is $4.1 million, each vehicle is
insured individually, not at the $4.1 million aggregate amount. Under
the current two-level regulatory scheme, the same fleet of vehicles
would be required to be insured at an aggregate of $8 million.
After having carefully considered the comments, the Department has
concluded that the approach taken in the Proposed Rule delinking the
MSPA regulation from the ICA two-level structure is appropriate. The
legislation authorized the Department to reexamine this issue and to
depart from the ICA structure but did not change the fundamental
purpose of the MSPA transportation insurance requirement: to protect
the health and safety of agricultural workers. The Final Rule, which
sets the minimum liability amounts according to the actual seating
capacity of the vehicle being used, as was proposed, provides the
regulated community with additional flexibility to structure its
transportation practices according to its actual needs and lowers
insurance costs by eliminating the current regulation's mandate that
transporters purchase insurance above the level necessary to insure
against reasonable risk of harm. The Final Rule achieves the statutory
purpose of assuring the protection of health and safety of agricultural
workers by establishing levels of insurance on a per-seat standard
which would afford recovery for reasonably foreseeable risks.
It was suggested by AIA that changing from the ICA two-class
structure to a new structure, such as contained in the Proposed Rule,
will require insurance companies to change their underwriting and
information systems, thereby adding costs. AIA did not provide
information to support this assertion or to establish what the
additional costs would be. The Department therefore does not find this
to be a sufficient reason to reconsider the Proposed Rule.
b. The Minimum Level of Insurance. Agricultural employers,
agricultural employer advocates and the AIA suggested that the Proposed
Rule's minimum insurance requirement per seat be abandoned in favor of
a flat amount according to the class of vehicle, 15 passengers and
below or 16 and above. The overwhelming majority of these commenters
proposed $500,000 for the former and $1,000,000 for the latter. The
commenters asserted that these amounts of insurance are sufficient to
insure for damages suffered by farmworkers in transportation accidents
and would result in lower premiums for transportation providers.
The AIA asserted that Congress intended that the costs of insurance
be reduced. Other commenters echoed this assertion. However, neither
the legislative history nor Pub. L. 104-49 requires the Department to
issue a rule based on the sole consideration of the cost of insurance
to the regulated community. In fact, the legislation directs the
Department to consider the factors set out in MSPA Sec. 401(b)(2)(B)
concerning vehicle safety. That section of the Act makes clear that the
overriding purpose of MSPA transportation standards is the health and
safety of migrant and seasonal farmworkers, and further directs that,
in determining appropriate safety and insurance requirements, the
Department is to weigh any ``undue burden'' on transportation providers
as only one among several factors. In addition, it should be recognized
that, regardless of the regulatory structure adopted, it is not within
the Department's power to ensure the reduction of insurance premiums,
short of eliminating the insurance requirement entirely.
After thorough consideration of the comments, the Department has
concluded that the approach taken in the Proposed Rule is appropriate,
in that it provides adequate protection for agricultural workers while
lowering the minimum insurance levels (and presumably premium costs)
for most transportation providers. The Final Rule sets the minimum
amount of insurance not by arbitrary vehicle capacity divisions but by
the actual capacity (thus, actual risk of loss) of each insured
vehicle. A transporter using a six passenger vehicle would not be
required to purchase insurance in excess of its seating capacity.
Instead of the current regulation's $1.5 million (for vehicles with
capacities up to 15), only $600,000 in insurance would be required. The
operator of a 15 passenger vehicle has a risk exposure over twice that
of the 6 passenger vehicle, and would be required to have
proportionately higher insurance ($1,500,000). The insurance
requirements (and presumably the premium costs) reflect the difference
in risk exposure.
In light of available data as well as program experience regarding
the types of vehicles commonly used to transport agricultural workers,
the Department believes that the Final Rule will likely result in a
lower level of required insurance for the majority of transportation
providers. By way of illustration, under the current regulation, a
seven passenger vehicle would require $1.5 million in insurance; under
the Final Rule that same vehicle would require only $700,000 in
insurance. A 16 passenger bus currently must be insured at $5 million;
under the Proposed Rule, insurance would be lowered to $1.6 million. By
any reckoning, these examples show a significant reduction in required
insurance. It is beyond the scope of these regulations to mandate that
premiums for such insurance be reduced, but it would be logical to
expect that there would be a reduction in premiums as the amount of
insurance purchased is reduced.
Several commenters noted that the Proposed Rule would yield higher
insurance requirements for one class of vehicle, those with more than
50 seats. While vehicles with seating capacity in excess of 50 are not
common, it is not the Department's intention to increase the insurance
requirement in this rulemaking but rather to find reasonable, prudent,
and protective ways to reduce minimum requirements where possible.
Therefore, the Final Rule provides a cap of $5 million for required
insurance for any one vehicle. Thus, no vehicle will be required to
have increased levels of insurance and most vehicles could be insured
for less than under the current regulations.
In summary, therefore, the Department has concluded that the
available information--taken in its entirety and on balance--confirms
the proposal that $100,000 per seat is a reasonable measure of adequate
[[Page 24865]]
insurance in MSPA transportation cases. For the reasons stated above
and for the reasons previously discussed in the NPRM, the Department is
promulgating a Final Rule which is the same as the Proposed Rule except
for the addition of the $5 million cap on insurance.
E. Administrative Hearings on Denials, Suspensions, and Revocations of
Farm Labor Contractor Certificates
The NPRM proposed to establish expedited hearing and review
procedures for denial, suspension or revocation of farm labor
contractor certificates. All those who commented on this proposal,
including agricultural and farmworker advocacy organizations, favored
the proposal. The proposal will be adopted as a Final Rule without
change.
Executive Order 12866/Section 202 of the Unfunded Mandates Reform Act
of 1995
This Final Rule is not ``economically significant'' within the
meaning of Executive Order 12866, nor does it require a Sec. 202
statement under the Unfunded Mandates Reform Act of 1995. However,
because the rule provides initial regulations required to implement
provisions of Public Law 104-49 and may raise novel legal or policy
issues arising out of legal mandates, it was determined to be a
``significant regulatory action'' within the meaning of Sec. 3(f)(4) of
Executive Order 12866. The Final Rule addresses insurance and
disclosure obligations required under MSPA, as amended by Public Law
104-49. In addition, the rule revises the administrative proceedings
involving decisions to revoke, suspend, or refuse to issue or renew
Certificates of Registration under MSPA. No economic analysis is
required because the rule will not have a significant economic impact.
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L.104-
4), as well as Executive Order 12875, this rule does not include any
Federal mandate that may result in increased expenditures of $100
million in any one year by State, local, and tribal governments, or by
the private sector.
Regulatory Flexibility Analysis
This Final Rule will not have a significant economic impact on a
substantial number of small entities. The rule amends current
regulations at 29 CFR Part 500 to bring the regulations into conformity
with the statutory changes made to MSPA by the enactment of Pub. L.
104-49. Additionally, the Final Rule amends Secs. 500.224, 500.262, and
500.268 of the current rule to provide for expedited administrative
proceedings in matters where the Administrator has initiated action to
revoke, suspend, or refuse to issue or renew a farm labor contractor's
Certificate of Registration (including Farm Labor Contractor Employee
Certificates).
The proposed rule is likely to result in reduced insurance premiums
for some and will not result in increases for any transporter covered
by MSPA. Further, the Department anticipates that the portion of the
regulated community which provides transportation, and thus would be
affected by the minimum insurance requirements, is not substantial in
number in any event. According to the Department's farm labor
contractor registration data, only 975 of all registered contractors
(less than 9% of the total), provide transportation to agricultural
workers. It is believed that a similarly small percentage of
agricultural employers and agricultural associations provide MSPA-
covered transportation. Furthermore, the MSPA exempts from its coverage
small agricultural employers and associations which do not use more
than 500 man-days of agricultural labor in a calendar quarter during
the preceding year. Therefore, many small agricultural employers are
exempt from MSPA coverage and will be unaffected by these regulations.
Therefore, this Final Rule is not expected to have a ``significant
economic impact on a substantial number of small entities'' within the
meaning of the Regulatory Flexibility Act, and the Department has
certified to this effect to the Chief Counsel for Advocacy of the Small
Business Administration. Accordingly, a regulatory flexibility analysis
is not required.
Dates of Applicability
The Secretary has determined that the public interest requires an
immediate effective date for the regulations on liability insurance, in
order to comply with the requirement of Public Law 104-49 directing
that regulations establishing insurance levels under Sec. 401(b)(3) of
the MSPA (29 U.S.C. 1841(b)(3)) be promulgated within 180 days of the
date of enactment of Public Law 104-49. Accordingly, the Secretary for
good cause finds pursuant 5 U.S.C. Sec. 553(d)(3), that this rule
amending Secs. 500.48, 500.121 and 500.122 of the regulation must be
effective upon publication rather than thirty days thereafter.
Document Preparation
This document was prepared under the direction and control of Maria
Echaveste, Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 500
Administrative practice and procedure, Agricultural associations,
Agricultural worker, Aliens, Carpooling, Day-Haul, Farmer, Farm labor
contractor, Health, Housing, Housing standards, Immigration, Insurance,
Investigation, Migrant agricultural workers, Migrant labor, Motor
carriers, Motor vehicle safety, Occupational safety and health,
Penalties, Reporting requirements, Seasonal agricultural workers,
Transportation, Wages, Manpower training programs, Labor, Safety.
Signed at Washington, D.C., on this 13th day of May, 1996.
John R. Fraser
Deputy Administrator, Wage and Hour Division.
For the reasons set forth above, 29 CFR part 500 is amended as set
forth below:
PART 500--MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION
1. The authority citation for Part 500 is revised to read as
follows:
Authority: Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872);
Secretary's Order No. 6-84, 49 FR 32473; Sec. 210A(f), Pub. L. 99-
603, 100 Stat. 3359 (8 U.S.C. 1161(f)); and Pub. L. No. 104-49, 109
Stat. 432 (29 U.S.C. 1821, 1831 and 1841).
2. Section 500.48 is amended by revising paragraph (d) to read as
follows:
Sec. 500.48 Issuance of certificate.
* * * * *
(d) Authorize the activity of transporting a migrant or seasonal
agricultural worker, subject to the maximum number of workers
authorized to be transported under the vehicle liability policy and as
indicated on the face of the Certificate of Registration, only upon
receipt of:
(1) A statement in the manner prescribed by the Secretary
identifying each vehicle to be used, or caused to be used, by the
applicant for the transportation of any migrant or seasonal
agricultural worker during the period for which registration is sought;
(2) written proof that every such vehicle which is under the
applicant's ownership or control, is in compliance
[[Page 24866]]
with the vehicle safety requirements of the Act and these regulations;
and
(3) written proof that every such vehicle is in compliance with the
insurance requirements of the Act and these regulations;
* * * * *
3. In Sec. 500.75, paragraph (b)(6) is revised to read as follows:
Sec. 500.75 Disclosure of information.
(b) * * *
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the name(s) of the policyholder(s), the name and telephone number of
each person who must be notified of an injury or death, and the time
period within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may be satisfied by giving the worker a photocopy of any
workers' compensation notice required by State law;.
* * * * *
4. In Sec. 500.76, paragraph (b)(6) is revised to read as follows:
Sec. 500.76 Disclosure of information.
* * * * *
(b) * * *
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the name(s) of the policyholder(s), the name and telephone number of
each person who must be notified of an injury or death, and the time
period within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may satisfied giving the worker a photocopy of any workers'
compensation notice required by State law;
* * * * *
5. Section 500.121 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 500.121 Coverage and level of insurance required.
(a) Except where a liability bond pursuant to Sec. 500.124 of this
part has been approved by the Secretary, a farm labor contractor,
agricultural employer or agricultural association shall, in order to
meet the insurance requirements in Sec. 500.120, obtain a policy of
vehicle liability insurance.
(b) The amount of vehicle liability insurance shall not be less
than $100,000 for each seat in the vehicle, but in no event is the
total insurance required to be more than $5,000,000 for any one
vehicle. The number of seats in the vehicle shall be determined by
reference to Sec. 500.105(b)(3)(vi). See Sec. 500.122 regarding
insurance requirements where State workers' compensation coverage is
provided.
* * * * *
Sec. 500.122 [Amended]
6. Section 500.122 is amended by removing and reserving paragraph
(b), and revising paragraph (c) to read as follows:
* * * * *
(b) [Removed and Reserved]
(c) A farm labor contractor, agricultural employer or agricultural
association who is the employer of a migrant or seasonal agricultural
worker may evidence the issuance of workers' compensation insurance and
passenger insurance under paragraph (a) of this section by obtaining
and making available upon request to the Department of Labor:
(1) A workers' compensation coverage policy of insurance; and
(2) A certificate of liability insurance covering transportation of
all passengers who are not employees and of workers whose
transportation by the employer is not covered by workers' compensation
insurance. See Sec. 500.121.
* * * * *
7. Section 500.224 is amended by redesignating paragraph (b) as
paragraph (c), revising paragraph (c), and adding a new paragraph (b)
to read as follows:
Sec. 500.224 Referral to Administrative Law Judge.
* * * * *
(b) In cases involving a denial, suspension, or revocation of a
Certificate of Registration (Farm Labor Contractor Certificate; Farm
Labor Contractor Employee Certificate) or ``certificate action,''
including those cases where the farm labor contractor has requested a
hearing on civil money penalty(ies) as well as on the certificate
action, the date of the hearing shall be not more than sixty (60) days
from the date on which the Order of Reference is filed. No request for
postponement shall be granted except for compelling reasons.
(c) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Secretary upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
8. Section 500.262 is amended by redesignating paragraphs (b), (c),
(d), (e), (f), and (g) as (c), (d), (e), (f), (g), and (h)
respectively, and adding a new paragraph (b) to read as follows:
Sec. 500.262 Decision and order of Administrative Law Judge.
* * * * *
(b) In cases involving certificate actions as described in
Sec. 500.224(b), the Administrative Law Judge shall issue a decision
within ninety (90) calendar days after the close of the hearing.
* * * * *
9. Section 500.268 is amended by revising paragraph (a) to read as
follows:
Sec. 500.268 Final decision of the Secretary.
(a) The Secretary's final Decision and Order shall be issued within
120 days from the notice of intent granting the petition, except that
in cases involving the review of an Administrative Law Judge decision
in a certificate action as described in Sec. 500.224(b), the
Secretary's final decision shall be issued within ninety (90) days from
the date such notice. The Secretary's Decision and Order shall be
served upon all parties and the Chief Administrative Law Judge, in
person or by certified mail.
* * * * *
[FR Doc. 96-12261 Filed 5-15-96; 8:45 am]
BILLING CODE 4510-27-P
Complete official Federal Register PDF
FR Doc. 96-12260 Safety Zone: Greenwood Lake Powerboat Race, Greenwood Lake, NJ
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24701-24702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12260]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD01-96-020]
RIN 2115-AA97
Safety Zone: Greenwood Lake Powerboat Race, Greenwood Lake, NJ
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for a
powerboat race located on Greenwood Lake, New Jersey. This safety zone
is in effect from 10 a.m. until 7 p.m. on Saturday, May 18, and Sunday,
May 19, 1996. The safety zone temporarily closes a southern portion of
Greenwood Lake to protect racing participants and spectator craft from
the hazards associated with high speed powerboat racing.
EFFECTIVE DATE: This rule is effective from 10 a.m. until 7 p.m. on May
18, and May 19, 1996 unless extended or terminated sooner by the
Captain of the Port, New York.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander R. Trabocchi, Chief, Coordination and Analysis
Branch, Waterways Management Division, Coast Guard Activities New York
(212) 668-7906.
SUPPLEMENTARY INFORMATION:
Regulatory History
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation. Good cause exists for not
publishing an NPRM and for making this regulation effective less than
30 days after Federal Register publication. Due to the date the
application for the event was received, there was insufficient time to
draft and publish an NPRM. Any delay encountered in this regulation's
effective date would be contrary to public interest since immediate
action is needed to close this waterway and protect the maritime public
from the hazards associated with high speed power boats racing in
confined waters.
Background and Purpose
The Greenwood Lake Powerboat Association and the West Milford
Chamber of Commerce submitted an Application For Approval of Marine
Event to hold a powerboat race on the waters of Greenwood Lake. This
safety zone encompasses a southern portion of Greenwood Lake, New
Jersey, shore to shore, south of latitude 41 deg.09' N, and north of
latitude 41 deg.08' N (NAD 1983). The safety zone is rectangular in
shape with the northern and southern boundaries marked by four
temporary buoys. The safety zone is in effect from 10 a.m. until 7 p.m.
on May 18, and May 19, 1996, unless extended or terminated sooner by
the Captain of the Port, New York. This safety zone precludes all
vessels not participating in the event from transiting this portion of
Greenwood Lake and is needed to protect mariners from the hazards
associated with high speed powerboats racing in confined waters.
Participating vessels include race participants and race committee
craft. All other vessels, swimmers, and personal watercraft of any
nature are precluded from entering or moving within the safety zone.
Regulatory Evaluation
This regulation is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. It has been exempted from review by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Transportation
(DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the
economic impact of this regulation to be so minimal that a full
Regulatory Evaluation under paragraph 10(e) of the regulatory policies
and procedures of DOT is unnecessary. This safety zone closes a one
mile segment in the southern portion of Greenwood Lake to all vessel
traffic from 10 a.m. until 7 p.m. on May 18, and May 19, 1996, unless
extended or terminated sooner by the Captain of the Port, New York.
Although this regulation prevents traffic from transiting this area,
the effect of this regulation will not be significant for several
reasons: the limited duration of the race, the event is taking place on
an inland lake which has no commercial traffic, this is annual event
with local support, and the notifications that will be made to the
maritime community via local notices to mariners.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this regulation will have a
significant economic impact on a substantial number of small entities.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) government jurisdictions with
populations less than 50,000.
For the reasons given in the Regulatory Evaluation, the Coast Guard
certifies under 5 U.S.C. 605(b) that this regulation will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This regulation contains no collection-of-information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined that this regulation does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
regulation and concluded that, under section
[[Page 24702]]
2.B.2.e.(34)(g) of Commandant Instruction M16475.1B, (as revised by 59
FR 38654, July 29, 1994), the promulgation of this regulation is
categorically excluded from further environmental documentation. A
Categorical Exclusion Determination and Environmental Analysis
Checklist are included in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
Part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A temporary section 165.T01-020, is added to read as follows:
Sec. 165.T01-020 Safety Zone: Greenwood Lake Powerboat Race, Greenwood
Lake, New Jersey.
(a) Location. The waters of Greenwood Lake, New Jersey, shore to
shore, south of latitude 41 deg.09'N, and north of latitude 41 deg.08'N
(NAD 1983).
(b) Effective period. This section is effective from 10 a.m. until
7 p.m. on May 18, and May 19, 1996, unless extended or terminated
sooner by the Captain of the Port, New York.
(c) Reglations.
(1) The general regulations contained in 33 C.F.R. 165.23 apply to
this safety zone.
(2) Vessels not participating in this event, swimmers, and personal
watercraft or any nature are precluded from entering or moving within
the safety zone.
(3) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on scene patrol
personnel. U.S. Coast Guard patrol personnel include commissioned,
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel via siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
Dated: May 6, 1996.
T.H. Gilmour,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 96-12260 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-12259 Safety Zone: Fleet Week 1996 Parade of Ships, Port of New York and New Jersey
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24699-24701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12259]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD01-96-013]
RIN 2115-AA97
Safety Zone: Fleet Week 1996 Parade of Ships, Port of New York
and New Jersey
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary moving safety zone
on May 22, 1996, for the Fleet Week 1996 Parade of Ships. This moving
safety zone includes all waters 500 yards fore and aft, and 200 yards
on each side of the designated column of parade vessels as it transits
the Port of New York and New Jersey.
EFFECTIVE DATE: This rule is effective from 9:45 a.m. to 4:30 p.m. on
Wednesday, May 22, 1996, unless extended or terminated sooner by the
Coast Guard Captain of the Port, New York.
[[Page 24700]]
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander R. Trabocchi, Chief, Coordination and Analysis
Branch, Waterways Management Division, Coast Guard Activities, New
York, (212) 668-7906.
SUPPLEMENTARY INFORMATION:
Regulatory History
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation. Good cause exists for not
publishing an NPRM, and for making this regulation effective less than
30 days after Federal Register publication. Due to the date that
specific, detailed information on the arrival and departure plans of
the naval vessels visiting New York City was made available to the
Coast Guard, there was insufficient time to draft and publish an NPRM.
Immediate action is needed to protect the maritime public from the
hazards associated with large naval vessels transiting the Port of New
York and New Jersey in close proximity.
Background and Purpose
The Intrepid Museum Foundation is sponsoring a parade of U.S. Coast
Guard, U.S. Navy, and foreign naval ships through the Port of New York
and New Jersey on May 22, 1996. This regulation establishes a moving
safety zone to include all waters 500 yards forward of the lead parade
vessel, 500 yards aft of the last parade vessel, and 200 yards on each
side of the designated column of parade vessels as it transits the Port
of New York and New Jersey between the Verrazano Narrows Bridge and the
waters of the Hudson River west of Riverbank State Bank, between West
137th and West 144th Streets, Manhattan, New York. As the vessels turn
in the waters west of Riverbank State Park and proceed southbound in
the Hudson River, the moving safety zone will expand to include all
waters within a 200 yard radius of each vessel from its turning point
until it is safety berthed at various locations within the Port of New
York and New Jersey. The safety zone will also expand briefly to
include the waters of the Hudson River between Piers 84 and 88,
Manhattan, New York, from the parade vessel column east to the
Manhattan shoreline as the column passes in front of Piers 84 through
88. The purposes of this expansion is to allow the public an obstructed
view of the parade from the pierside reviewing stand. This regulation
is effective from 9:45 a.m. to 4:30 p.m. on May 22, 1996, unless
extended or terminated sooner by the Coast Guard Captain of the Port,
New York. No vessel will be permitted to enter or move within this
safety zone unless authorized by the Captain of the Port, New York.
This regulation is needed to protect the maritime public from
possible hazards to navigation associated with a parade of naval
vessels transiting the waters of New York harbor in close proximity.
These vessels have limited maneuverability and require a clear traffic
lane to safety navigate.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10(e) for the regulatory policies and procedures of DOT is
unnecessary. This moving safety zone prevents vessels from transiting
portions of Upper New York Bay and the Hudson River in the Port of New
York and New Jersey on Wednesday, May 22, 1996. Although there is a
regular flow or traffic through this area, there is not likely to be a
significant impact on recreational or commercial vessel traffic for
several reasons: Due to the moving nature of the safety zone, no single
location will be affected for a prolonged period of time; commercial
and recreational vessels could transit on either side of the moving
safety zone except along the Manhattan side between Piers 84 and 88 as
the parade passes in front of these Piers; and alternate routes are
available for commercial and recreational vessels that can safety
navigate the Harlem and East Rivers, Kill Van Kull, Arthur Kill, and
Buttermilk Channel. Similar safety zones have been established for
several past Fleet Week parades of ships and minimal or no disruption
to vessel traffic or other interests in the port. In addition,
extensive, advance notifications will be made to the maritime community
so mariners can adjust their plans accordingly.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of this
rule. ``Small entities'' may include (1) small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For reasons set forth in the Regulatory Evaluation, the Coast Guard
certifies under 5 U.S.C. 605(b) that this regulation will not have
significant impact on a substantial number of small entities.
Collection of Information
This proposal contains no collection-of-information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of the rule and
concluded that, under 2.B.2.e.(34)(g) of Commandant Instruction
M16475.1B (as revised by 59 FR 38654, July 29, 1994), this rule is
categorically excluded from further environmental documentation. A
Categorical Exclusion Determination and Environmental Analysis
Checklist are included in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A temporary section, 165.T01-013, is added to read as follows:
Sec. 165.T01-013 Safety Zone: Fleet Week 1996 Parade of Ships, Port of
New York and New Jersey.
(a) Location.
(1) This moving safety zone includes all waters within 500 yards
forward of the lead parade vessel, 500 yards aft of the last parade
vessel, and 200 yards on each side of the designated column of parade
vessels as it transits between the Verrazano Narrows Bridge and the
[[Page 24701]]
waters of the Hudson River west of Riverbank State Park, between West
137th and West 144th Streets, Manhattan, New York.
(2) The moving safety zone includes all waters within a 200 yard
radius of each parade vessel from its turning point near Riverbank
State Park until the vessel is safely berthed at various locations in
the Port of New York and New Jersey.
(3) The safety zone includes all waters of the Hudson River Piers
84 and 88, Manhattan, New York, from the parade vessel column east to
the Manhattan shoreline as the column passes in front of Piers 84
through 88.
(b) Effective period. This section is effective from 9:45 a.m. to
4:30 p.m. on May 22, 1996, unless extended or terminated sooner by the
Captain of the Port, New York.
(c) Regulations.
(1) The general regulations contained in 33 CFR 165.23 apply to
this safety zone.
(2) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on scene patrol
personnel. U.S. Coast Guard patrol personnel include commissioned,
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel via siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
Dated: May 6, 1996.
T.H. Gilmour,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 96-12259 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-12258 Safety Zone: National Ethnic Coalition of Organizations Fireworks, Upper New York Bay, NY and NJ
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24698-24699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12258]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD01-96-028]
RIN 2115-AA97
Safety Zone: National Ethnic Coalition of Organizations
Fireworks, Upper New York Bay, NY and NJ
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for
the National Ethnic Coalition of Organizations' fireworks program
located in Upper New York Bay, New York and New Jersey. The safety zone
is in effect from 10:15 p.m. until 11:30 p.m. on Sunday, May 19, 1996.
The safety zone temporarily closes all waters of Upper New York Bay
within a 300 yard radius of a fireworks barge anchored approximately
300 yards east of Liberty Island, New York.
EFFECTIVE DATE: This rule is effective from 10:15 p.m. until 11:30 p.m.
on Sunday, May 19, 1996, unless extended or terminated sooner by the
Captain of the Port, New York.
FOR FURTHER INFORMATION CONTACT:
Lieutenant (Junior Grade) C. Stevens, Coordination and Analysis Branch,
Coast Guard Activities New York, at (212) 668-7906.
SUPPLEMENTARY INFORMATION:
Regulatory History
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation. Good cause exists for not
publishing an NPRM and for making this regulation effective less than
30 days after Federal Register publication. Due to the date the
application for this event was received, there was insufficient time to
draft and published an NPRM. Any delay encountered in this regulation's
effective date would be contrary to public interest since immediate
action is needed to protect the maritime public from the hazards
associated with fireworks exploding from a barge in the waters of Upper
New York Bay.
[[Page 24699]]
Background and Purpose
On April 16, 1996, Fireworks by Grucci, Inc., submitted an
Application for Approval of Marine Event to hold a fireworks program on
the waters of Upper New York Bay in Federal Anchorage 20C. The
fireworks program is being sponsored by the National Ethnic Coalition
of Organizations. This regulation establishes a temporary safety zone
in all waters of Upper New York Bay within a 300 yard radius of the
fireworks barge anchored approximately 300 yards east Liberty Island,
New York, at approximately 40 deg.41'18'' N latitude, 074 deg.02'25'' W
longitude (NAD 1983). The safety zone is in effect fro 10:15 p.m. until
11:30 p.m. on May 19, 1996, unless extended or terminated sooner by the
Captain of the Port, New York. The safety zone prevents vessels from
transiting this portion of the Upper New York Bay, adjacent to the
eastern shoreline of Liberty Island, and is needed to project mariners
from the hazards associated with fireworks exploding from a barge in
the area.
Regulatory Evaluation
This regulation is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. It has been exempted from review by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Transportation
(DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the
economic impact of this regulation to be so minimal that a full
Regulatory Evaluation under paragraph 10(e) of the regulatory policies
and procedures of DOT is unnecessary. This regulation closes a portion
of Upper New York Bay off of Liberty Island, New York, in Federal
Anchorage 20C, to vessel traffic from 10:15 p.m. until 11:30 p.m. on
May 19, 1996, unless extended or terminated sooner by the Captain of
the Port, New York. Federal Anchorage 20C is mainly used by commercial
sightseeing vessels and recreational vessels. Although the regulation
prevents traffic from transiting this area, the effect of the
regulation will not be significant for several reasons: the duration of
the event is limited; the event is at a late hour; the zone is located
within a Federal Anchorage and does not impact a navigable channel;
vessel traffic may safely pass to the east of this area; and the
extensive, advance advisories which will be made. Accordingly, the
Coast Guard expects the economic impact of this regulation to be so
minimal that a Regulatory Evaluation is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this regulation will have a
significant economic impact on a substantial number of small entities.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are not independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For reasons set forth in the Regulatory Evaluation, the Coast Guard
certifies under 5 U.S.C. 605(b) that this regulation will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This regulation contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined that this regulation does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
regulation and concluded that under section 2.B.2.e. (34)(g) of
Commandant Instruction M16475.1B (as revised by 59 FR 38654, July 29,
1994), the promulgation of this regulation is categorically excluded
from further environmental documentation. A Categorical Exclusion
Determination and Environmental Analysis Checklist are included in the
docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
Part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A temporary section 165.T01-028, is added to read as follows:
Sec. 165.T01-028 Safety Zone: National Ethnic Coalition of
Organizations Fireworks, Upper New York Bay, New York and New Jersey.
(a) Location. The waters of Upper New York Bay within a 300 yard
radius of the fireworks barge anchored approximately 300 yards east of
Liberty Island, New York, in Federal Anchorage 20C, at approximately
40 deg.41'18'' N latitude, 074 deg.02'25'' W longitude (NAD 1983).
(b) Effective period. This section is effective from 10:15 p.m.
until 11:30 p.m. on May 19, 1996, unless extended or terminated sooner
by the Captain of the Port, New York.
(c) Regulations.
(1) The general regulations contained in 33 CFR 165.23 apply.
(2) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on scene patrol
personnel. U.S. Coast Guard patrol personnel include commissioned,
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel via siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
Dated: May 6, 1996.
T. H. Gilmour,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 96-12258 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-12257 Safety Zone: USS JOHN F. KENNEDY, Fleet Week 1996, Port of NY and NJ
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24697-24698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12257]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD01-96-021]
RIN 2115-AA97
Safety Zone: USS JOHN F. KENNEDY, Fleet Week 1996, Port of NY and
NJ
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary moving safety zone
on May 22, 1996, and May 29, 1996, and May 29, 1996, for the arrival
and departure of the USS JOHN F. KENNEDY during Fleet Week 1996. This
moving safety zone includes all waters 500 yards fore and aft, and 200
yards on each side of the USS JOHN F. KENNEDY as the vessel enters and
departs the Port of New York and New Jersey.
EFFECTIVE DATE: This rule is effective on May 22, 1996, from 7 a.m.
until 1 p.m., and on May 29, 1996, from 7:30 a.m. until 12:01 p.m.,
unless extended or terminated sooner by the Coast Guard Captain of the
Port, New York.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander R. Trabocchi, Chief, Coordination and Analysis
Branch, Waterways Management Division, Coast Guard Activities New York,
(212) 668-7906.
SUPPLEMENTARY INFORMATION:
Regulatory History
Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM)
was not published for this regulation. Good cause exists for not
publishing an NPRM, and for making this regulation effective less than
30 days after Federal Register publication. Due to the date that
specific, detailed information on the arrival and departure plans of
the USS JOHN F. KENNEDY's visit to New York City was made available to
the Coast Guard, there was insufficient time to draft and publish an
NPRM. Immediate action is needed to protect the maritime public from
the hazards associated with a large vessel with limited manueverability
transisting the Port of New York and New Jersey.
Background and Purpose
The Intrepid Museum Foundation is sponsoring the Fleet Week 1996
Parade of Ships. The USS JOHN F. KENNEDY has been designated as the
Fleet Week Flagship and will be entering the Port of New York and New
Jersey on May 22, 1996, to participate in the parade. USS JOHN F.
KENNEDY intends to depart the Port of New York and New Jersey following
the completion of Fleet Week 1996 on May 29, 1996. This regulation will
be effective during the arrival and departure of the USS JOHN F.
KENNEDY on May 22, 1996, from 7 a.m. until 1 p.m., and on May 29, 1996,
from 7:30 a.m. until 12:01 p.m. unless extended or terminated sooner by
the Coast Guard Captain of the Port, New York. This regulation
establishes a moving safety zone within 500 yards fore and aft and 200
yards on each side of the USS JOHN F. KENNEDY as it transits the Port
of New York and New Jersey between Ambrose Channel Lighted Whistle Buoy
``A'', at or near 40 deg.28.8' N latitude, 73 deg.53.7' W longitude
(NAD 1983), and Pier 88, Manhattan, New York, exclusive of the time it
is transiting as part of the Fleet Week 1996 Parade of Ships on May 22,
1996. This moving safety zone is maintained while the vessel is at
anchor in Federal Anchorage 23A on May 22, 1996; however, while at
anchor the moving safety zone is reduced to a radius of 300 yards
around the vessel. No vessels will be permitted to enter or move within
this moving safety zone unless authorized by the Captain of the Port,
New York.
This regulation is needed to protect the maritime public from
possible hazards to navigation associated with a large naval vessel
transiting the Port of New York and New Jersey with limited
maneuverability in restricted waters. It provides a clear traffic lane
in order for the USS JOHN F. KENNEDY to safely navigate to and from its
berth.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040,
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that
[[Page 24698]]
a full Regulatory Evaluation under paragraph 10(e) of the regulatory
policies and procedures of DOT is unnecessary. This moving safety zone
will prevent vessels from transiting portions of Upper New York Bay and
the Hudson River in the Port of New York and New Jersey on Wednesday,
May 22, 1996, and Wednesday, May 29, 1996. Although there is a regular
flow of traffic through this area, there is not likely to be a
significant impact on recreational or commercial traffic for several
reasons: due to the moving nature of the safety zone, no single
location will be affected for a prolonged period of time; the safety
zone distances are less than the typical safe passage distances
normally required for large vessels and aircraft carriers; vessels can
transit on either side of the safety zone; and alternate routes are
available to commercial and recreational vessels that can safely
transit the Harlem and East Rivers, Kill Van Kull, Arthur Kill, and
Buttermilk Channel. Similar safety zones have been established in the
past for the arrival and departure of large naval vessels with minimal
or no disruption to vessel traffic or other interests in the port. In
addition extensive, advance advisories will be made to the maritime
community so mariners can adjust their plans accordingly.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of this
rule. ``Small entities'' may include (1) small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For reasons set forth in the Regulatory Evaluation, the Coast Guard
certifies under 5 U.S.C. 605(b) that this regulation will not have a
significant impact on a substantial number of small entities.
Collection of Information
This proposal contains no collection-of-information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq).
Federalism
The Coast Guard analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of the rule and
concluded that, under 2.B.2.e. (34)(g) of Commandant Instruction
M16475.1B (as revised by 59 FR 38654, July 29, 1994), this proposal is
categorically excluded from further environmental documentation. A
Categorical Exclusion Determination and Environmental Analysis
Checklist are included in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
part 165 as follows:
PART 165--[AMENDED]
The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 2.46.
2. A temporary section, 165.T01/021, is added to read as follows:
Sec. 165.T01-021 Safety Zone: USS JOHN F. KENNEDY, Fleet Week 1996,
Port of New York and New Jersey.
(a) Location: (1) This moving safety zone includes all waters
within 500 yards fore and aft and 200 yards on each side of the USS
JOHN F. KENNEDY as it transits the Port of New York and New Jersey
between Ambrose Channel Lighted Whistle Buoy ``A'', at or near
40 deg.28.8'N latitude, 73 deg.53.7'W longitude (NAD 1983), and Pier
88, Manhattan, New York, exclusive of the time it is transiting as part
of the Fleet Week 2996 Parade of Ships.
(2) This moving safety zone is reduced to a radius of 300 yards
around the vessel while the vessel is at anchor in Federal Anchorage
23A on May 22, 1996.
(b) Effective period. This section is effective on May 22, 1996,
from 7 a.m. until 1 p.m., and on May 29, 1996, from 7:30 a.m. until
12:01 p.m., unless extended or terminated sooner by the Captain of the
Port, New York.
(c) Regulations. (1) The general regulations contained in 33 CFR
165.23 apply to this safety zone.
(2) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on scene patrol
personnel. U.S. Coast Guard patrol personnel include commissioned,
warrant, and petty officers of the Coast Guard. Upon being hailed by a
U.S. Coast Guard vessel via siren, radio, flashing light, or other
means, the operator of a vessel shall proceed as directed.
Dated: May 6, 1996.
T.H. Gilmour,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 96-12257 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-12249 Disposition of Federal Records; Correction
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12249]
=======================================================================
-----------------------------------------------------------------------
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1228
RIN 3095-AA65
Disposition of Federal Records; Correction
AGENCY: National Archives and Records Administration (NARA).
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final rule published
on Thursday, May 2, 1996. The regulation requires agencies to reimburse
NARA for certain records maintained in Federal records centers that
have exceeded the authorized disposal date. The corrections are
technical in nature and do not substantively change the provisions of
the rule.
EFFECTIVE DATE: June 3, 1996.
FOR FURTHER INFORMATION CONTACT:
Nancy Allard at 301-713-6730, extension 226.
SUPPLEMENTARY INFORMATION: As published, the final rule contains an
error in the numbering of paragraphs in Sec. 1228.54 and omits in
several places an article or punctuation that adds clarity to the
sentences.
Accordingly, the publication on May 2, 1996 (61 FR 19552) of the
final rule which was the subject of FR Doc. 96-10888 is corrected as
follows:
Sec. 1228.32 [Corrected]
On page 19554, in the second column, in the fifth line of paragraph
(a) of Sec. 1228.32, the word ``an'' is inserted after the word ``in''
so that the line reads ``in an approved SF 115 are automatically''.
Sec. 1228.54 [Corrected]
1. On page 19554, in the third column, in the eleventh line of
paragraph (g) of Sec. 1228.54, a comma is inserted after the first word
so that the line reads ``reason, the agency wishes to retain.''
2. On page 19554, in the third column, in Sec. 1228.54(h) the
second paragraph designated as ``(2)'' and the paragraph designated as
``(3)'' are corrected to be designated ``(3)'' and ``(4)'',
respectively.
3. In the second line of corrected paragraph (h)(3), the word ``a''
is inserted before the word ``temporary'' so that the line reads
``agree that a temporary extension is''.
Dated: May 9, 1996.
Nancy Y. Allard,
Alternate Federal Register Liaison.
[FR Doc. 96-12249 Filed 5-15-96; 8:45 am]
BILLING CODE 7515-01-M
Complete official Federal Register PDF
FR Doc. 96-12243 Endangered and Threatened Wildlife and Plants; Restarting the Listing Program and Final Listing Priority Guidance
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24722-24728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12243]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Restarting the
Listing Program and Final Listing Priority Guidance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of listing priority guidance.
-----------------------------------------------------------------------
SUMMARY: On March 11, 1996, the Fish and Wildlife Service (Service)
published a notice in the Federal Register describing interim guidance
for setting priorities in the listing program and solicited public
comments. The Service took this action in anticipation of receiving a
limited amount of funds to resume listing activities. Having received a
limited appropriation of listing funds for the remainder of fiscal year
1996, the Service announces final listing priorities that will govern
the expenditure of the available funds for the remainder of the fiscal
year.
DATES: This guidance takes effect May 16, 1996 and will remain in
effect until September 30, 1996, unless extended by further notice.
ADDRESSES: Questions about this guidance should be directed to the
Chief, Division of Endangered Species, U.S. Fish and Wildlife Service,
1849 C Street, N.W., Mailstop ARLSQ-452, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see
ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
Moratorium and Funding Constraints
Over the past thirteen months, the Service's Endangered Species
listing program, which operates under the authority of section 4 of the
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et
seq.), has been sharply curtailed by a variety of legislative and
funding restrictions. Public Law 104-6, which took effect April 10,
1995, rescinded $1.5 million from the Service's then-current listing
appropriation of $7.999 million and also stipulated that the remaining
listing funds could not be used to make final listing or critical
habitat designations. The net effect of Pub. L. 104-6 has been that no
new species have been added to the lists of endangered and threatened
[[Page 24723]]
wildlife and plants in more than a year and as a result, a backlog of
243 proposed listings has accrued.
From October 1, 1995, until April 26, 1996, the Department of the
Interior operated without a regularly enacted, full-year appropriations
bill. Instead, funding for most of the Department's programs, including
the endangered species listing program, was governed by the terms of a
series of thirteen ``continuing resolutions'' (CRs). The details of
these are complex, and are summarized in what follows. Their net effect
was essentially to shut down the listing program.
The CR for the period October 1, 1995, through November 13, 1995,
continued the moratorium on final listings and critical habitat
designations from the April 10, 1995, enactment. The listing program
was funded at a level equal to 95% of the average of the funding for
these activities provided in the appropriate appropriations bills then
pending before the House and Senate. For listing activities, the House
bill provided zero funds. The Senate bill provided only a token amount
($750,000) for the entire fiscal year. Averaging these two, and
apportioning 95% of the average across the six weeks the CR was in
effect meant that only $43,000 was available during this time period.
The Acting Director of the Service issued guidance on October 13,
1995, describing the activities on which these funds could be spent--
(1) completion of any comment periods and public hearings for pending
proposals; (2) completion of pending petition findings; and (3)
processing of any delistings or reclassifications that were in the
Washington Office awaiting approval. In the same memorandum the
Director also ordered each Regional Director to begin the orderly
transfer of listing personnel into other activities that were likely to
be funded during fiscal year 1996. This step was necessary because all
indications were that Congress would further restrict the listing
budget, which could have resulted in reductions-in-force. The resulting
loss of institutional and scientific expertise would have crippled the
listing program.
The listing program had to be shut down completely upon expiration
of the first continuing resolution. The CR in effect from mid-November
through December 15 provided no funds to the listing program and also
continued the moratorium provisions of Pub. L. 104-6. Therefore, on
November 22, 1995, the Director ordered the reassignment of all listing
staff to other duties until funds for these activities were restored.
Similar constraints applied during the governmental shutdown and the
CRs in effect from December 16, 1995, through January 26, 1996.
The CR that governed the period January 27 through March 15, 1996,
provided that funds would be available for the listing program based on
the rate established in the House-Senate conference report the
Department of the Interior's fiscal year 1996 Appropriations Act
(Section 126 of Pub. L. 104-99). This report included an annual rate of
$750,000 for listing activities and continued the moratorium. At an
annual rate of $750,000, about $100,000 were available for listing
activities during the period of this CR.
Short-term CRs covered the periods March 16-22, March 23-29, March
30-April 24, and April 24-26, 1996. These CRs continued the moratorium
on final listings and critical habitat designations, and altogether
provided the Service with very limited funding ($90,000) during this
period.
These very limited funds were quickly expended in paying for
Federal Register publication charges for a variety of listing documents
that were in the Washington Office awaiting publication (e.g.,
Vertebrate Population Policy, miscellaneous petition findings, and
delistings or reclassifications) and providing biological information
to the district courts.
On April 26, 1996, the appropriation for the Department of the
Interior for the remainder of fiscal year 1996 was finally enacted into
law. It provides approximately $4 million for the Service's listing
program over the entire fiscal year. The Service had already expended
$233,000 of the appropriation, leaving $3,767,000 for the remainder of
fiscal year 1996. This act also extends the moratorium on expenditure
of funds for final decisions on listings and critical habitat
designations, but it also empowered the President to waive the
moratorium provisions. The President issued a waiver of these
provisions on April 26, 1996, shortly after signing the Omnibus Budget
Reconciliation law.
Significant obstacles remain as the Service restarts its listing
program. The available funds fall far short of what is needed to clear
away the backlog that has built up. Currently the Service faces a
backlog of 243 proposed species, a far larger backlog than has existed
in recent times. This poses a particularly difficult problem for the
Service in light of the other Section 4 activities that require
attention such as resolving the conservation status of 182 candidate
species (see 61 FR 7596; February 28, 1996); addressing pending court
orders; and resolving petitions for 57 species. This highly irregular
situation demands that the Service establish biologically defensible
work priorities to guide expenditures of the limited listing
appropriations in a manner that best serves the purposes of the Act.
The Service is aware that the Department of Commerce and the
National Marine Fisheries Service (NMFS) have also faced a highly
irregular funding situation in fiscal year 1996 and may have different
priorities with respect to restarting their section 4 listing program.
This guidance and its priorities are not intended in any way to affect
the interpretation of the Act, the Secretary of Commerce's and NMFS'
decisions regarding implementation of the Act, Commerce's and NMFS'
budget priorities or Commerce's and NMFS' administration of its section
4 listing program. This guidance is intended only to reflect the
implementation difficulties faced by the Department of the Interior and
the Service, and not those of other agencies or Departments.
Principles for Restarting the Listing Program
The primary purposes of the Endangered Species Act are ``to provide
a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved, to provide a program for
the conservation of such endangered species and threatened species, and
to take such steps as may be appropriate to achieve the purposes of the
treaties and conventions set forth in subsection (a) of this section.''
16 U.S.C. 1531(b). It is long-standing Service policy that highest
priority be given to those species believed to face the greatest threat
of extinction. It is especially important to continue this policy with
the current financial constraints. In carrying out that policy, four
basic principles will govern the Service's implementation of the
listing process as the listing program is restarted:
(1) Highest priority will be given to protecting species most in
need, based on the priorities established by the listing priority
guidance finalized in this notice and the 1983 Listing Priority
Guidelines (48 FR 43098-43103; September 21, 1983);
(2) Biological need, not the preferences of litigants, should drive
the listing process. The Service will work closely with the Department
of Justice to defend its priority system in those cases where
plaintiffs, in pending or new cases, request actions that would cause
the Service to diverge from the principles discussed here, and
therefore,
[[Page 24724]]
in the judgment of the Service, would divert resources from providing
prompt protection to those species the Service believes to be in
greatest need of the protections of the Endangered Species Act;
(3) Sound science, including peer review, will form the foundation
of each and every listing action; and
(4) Public comment and participation in the petition and rulemaking
processes will be enhanced to ensure that the States, other Federal
agencies, and the affected public are provided with complete
explanations of the action and are provided every opportunity to
provide comments or information. All comments received will be
carefully evaluated and responded to.
Actions Required To Restart the Listing Program
The resumption of an effective listing program will require a
variety of actions. First, the budget interruptions described above
required the Service to reassign all personnel funded through the
listing program to other activities from mid-November 1995 through
April 26, 1996. Many of the listing biologists are in the process of
being returned to their regular duties. The tasks that these biologists
have been working on during the listing shutdown will require a period
of orderly shutdown or transfer. The Service estimates that it may
require as much as 45 days to fully reengage all listing personnel.
Where vacancies exist, steps are being taken to fill them.
As staff come back to the program, all listing packages will be
reviewed as quickly as possible to determine their priority placement
according to the listing priority guidance reconfirmed here.
Upon completion of this initial stage, the next step will be
determined by the facts involved in each package. The packages are in
various states of completeness, both as to substance and to process.
Some merely require a final review to ensure that they accurately
reflect the current situation, while others will require extensive
revision because the biological situation may have changed since the
proposal was issued. Still other proposals were issued shortly before
the funding interruption, so that requests for public hearings or to
extend the comment periods could not be acted upon. As a result of this
variety, final determinations on the pending proposed listings will
move through the system at very different rates. Those that still
require addressing public comments will take considerably more time to
bring to the stage of final decision.
The $4 million currently appropriated is substantially less than
what is needed to eliminate the current backlog of 243 proposed
species. Because the facts involved in each final listing determination
can vary widely, it is impossible to generate meaningful ``average''
costs for each listing activity. Processing a proposed final listing
may take only a few thousand dollars if basically all steps except
final approval and Federal Register publication are completed. But
processing may take many thousands of dollars if additional comment and
responses or public hearings are required. The economic analyses
required for critical habitat designations, for example, may require
substantial dollars as well as time.
Following completion of work by the Field Office, draft
recommendations on each package will be sent to the Regional Office for
policy review and, if appropriate, concurrence. Depending on the
remaining steps that must be completed, the above described steps may
take from 30-120 days.
Following approval by the Regional Office, the draft
recommendations will be sent to the Washington Office for technical and
policy review and approval by the Director. Including a brief review by
the Department's Office of Regulatory Affairs, review time in the
Washington Office may require 30 to 60 days, especially if changes are
necessary. Rules with critical habitat also require review by the
Office of Management and Budget and will take additional time to
complete.
Pending Litigation
The Service is presently involved in numerous cases in federal
court that involve proposed and final listings, petition findings, and
critical habitat designations. As of April 1, 1996, approximately 60
separate civil suits directed at the process of listing species under
the Act were pending against Federal officials or agencies. As of April
1, 1996, the Secretary of the Interior had received approximately 300
Notices of Intent to Sue (required under the Act before suit may be
filed (see 16 U.S.C. Sec. 1540(g))), on which litigation has not yet
been, but could be filed at any time. Many of these Notices of Intent
deal with the listing process.
During the moratorium on final listings and critical habitat
designation that was in effect for nearly thirteen months, the courts
generally agreed with the Service that it could not legally act to meet
deadlines without a lawful source of funds. See, e.g., Environmental
Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). Now that the
moratorium is no longer in effect, and funds, albeit limited, are
available for this task, the Service must decide how to best spend
these funds to carry out the purposes of the Act. The press of pending
and threatened new litigation could complicate this task immensely.
This pending and threatened litigation presents many competing and
conflicting claims, and in the current budgetary situation translates
into expensive demands on inadequate resources. Actions requested by
plaintiffs cover the entire spectrum of listing activities, from
petitions to add species to the list to requests to overturn existing
listings. Taken collectively, these pending and potential cases seek
different and sometimes diametrically opposed results.
Defending existing and any new lawsuits can divert considerable
resources away from the Service's efforts to conserve endangered
species. When the Service undertakes one listing activity, it
inevitably forgoes another. In some cases courts have ordered the
Service to complete activities that are simply not, in the Service's
expert judgment, among the highest biological priorities.
Development and Publication of Interim Listing Priority Guidance
and Its Relationship to the 1983 Priority Guidance
In 1983 the Service adopted guidelines to govern the assignment of
priorities to species under consideration for listing as endangered or
threatened under section 4 of the Endangered Species Act (48 FR 43098-
43105; September 21, 1983) The purpose of those guidelines was to
establish a rational system for allocating available appropriations to
the highest priority species when adding species to the lists of
endangered or threatened wildlife and plants or reclassifying
threatened species to endangered status. The system places greatest
importance on the immediacy and magnitude of threats, but also factors
in the level of taxonomic distinctiveness by assigning priority in
descending order to monotypic genera, full species, and subspecies (or
equivalently, distinct population segments of vertebrates).
The 1983 guidelines do not establish priorities among different
types of listing activities, which include processing pending proposed
listings, new proposed listings, delistings or reclassifications,
petition findings, and critical habitat determinations. The backlog of
proposed species created by the moratorium and the recent funding
[[Page 24725]]
constraints prompted the Service to establish priorities among the
various listing activities.
Accordingly, earlier this spring, in anticipation of facing a
possible lifting of the moratorium on final listings and critical
habitat designations but with only limited funds available to clear
away the large backlog of proposed species that had built up in the
interim, the Service published interim listing priority guidance in the
March 11, 1996 edition of the Federal Register (61 FR 9651-9653) and
solicited public comment on that guidance. Summaries of the interim
guidance and all comments received, and responses to the comments, are
included in the following sections.
The 1983 guidelines properly set priorities for the Service, under
a fully-funded Section 4 program, for making expeditious progress in
adding species to the Lists of Endangered and Threatened Wildlife and
Plants. They are not, however, sufficient to deal with the present
backlog of proposed species. The Service developed the Interim Listing
Priority Guidance, which in a slightly modified form is now republished
as final guidance, to provide a means to reconcile these competing and
conflicting demands in a biologically effective and efficient way to
best carry out the purposes of the Act. Specifically, after careful
deliberation, the Service has decided that, in order to focus
conservation benefits on those species in greatest need, processing
final determinations relative to the pending proposed listings should
receive higher priority than other actions required by section 4 (such
as petition findings, new proposed listings, reclassifications or
delistings, and critical habitat determinations). Publication of the
priority guidance is intended to explain to the public (including
litigants and reviewing courts) precisely how the Service believes it
should use its limited listing appropriations to maximum effect to
carry out the purposes of the Act.
The Department of Justice and the Department of the Interior
Solicitor's Office will generally ask litigants and the courts to defer
to this listing priority system. Near the end of fiscal year 1996, the
Service will review the extent of the remaining listing backlog and the
fiscal year 1997 budget situation to determine if an extension of this
guidance is necessary. For the reasons set out in the preamble of the
notice, the Service finds that good cause exists under 5 U.S.C. 553(d)
to make this guidance effective upon the date of publication in the
Federal Register.
Summary of Interim Listing Priority Guidance
The main principle underlying the listing priority guidance is to
focus the limited listing resources on those actions that will result
in the greatest conservation benefit for the species in most urgent
need of the Act's protections. Because only listed species receive the
full conservation benefits and substantive protections of the Act, and
because the vast majority of the proposed species face high-magnitude
threats to their continued survival, the Service decided to give
highest priority to handling emergency situations and resolving the
listing status of the 243 outstanding proposed listings. Highest
priority actions were assigned to Tier 1, lowest priority to Tier 5.
Tier 1--Emergency listings. Under section 4(b)(7) of the Act, the
Secretary may list a species on an emergency basis (without the usual
public notice and comment procedure) if an emergency exists that poses
``a significant risk to the well-being of any species of fish or
wildlife or plants. * * *'' Generally, an emergency listing rule
remains in effect for 240 days, during which time the Service typically
issues a proposed listing and makes a final determination as to whether
final listing is appropriate.
Tier 2--Preparation and processing of final decisions on
outstanding proposed listings. Within Tier 2, highest priority will be
given to species facing the highest magnitude and most imminent
threats. For species with equal listing priority assignments, the
following types of actions will receive subsequent priority--listing
packages that cover multiple species; listing packages that can be
quickly cleared (e.g., those with few public comments or factual
questions presented); and proposals that have been pending the longest.
Tier 3--Preparing and processing new proposed listings for species
facing high-magnitude threats; and screening petitions for emergency
situations.
Tier 4--Preparing and processing proposed listings for species
facing moderate- or low-magnitude threats; processing final decisions
on pending proposed reclassifications and delistings; preparing and
processing administrative findings for petitions.
Tier 5--Preparing and processing critical habitat determinations
and preparing or processing new proposed delistings or
reclassifications.
Summary of, and Responses to, Comments and Recommendations on the
Interim Listing Priority Guidance
Comments on the interim listing priority guidance were received
from the following organizations--BMI Marketing and Marine Services
Corp.; Arizona Game & Fish Department; the Marine Industries
Association of Florida, Inc.; and Messrs. Eric Glitzenstein, Michael
Sherwood, and William Snape, counsel for the plaintiffs in the Fund for
Animals v. Lujan, Civ. No. 92-800, D.D.C.
The comments from the Arizona Department of Game & Fish expressed
general support for the interim priority guidance, but recommended that
reclassifications and delistings should receive higher priority,
perhaps in Tier 2 of the interim guidance. The Service recognizes the
useful regulatory relief that delistings or reclassifications can
provide. The priority guidance provides that to the extent such actions
have been processed and approved through the Regional offices, these
actions will proceed while the subject guidance is in effect. However,
generation of new proposed delistings or reclassifications cannot be
justified in a time of extreme budget constraints and while there is an
extensive backlog of proposed species awaiting final determinations.
The Service regrets that the limited appropriations made available,
coupled with the backlog of new listings built up by the moratorium,
have delayed delistings and reclassifications. The Service has decided
to combine all activities that were assigned to Tiers 3, 4, and 5 and
place them collectively in a single Tier 3 for reasons explained below.
The Marine Industries Association of Florida, Inc. (MIA) expressed
a similar concern about the lower priority of delisting or
reclassification actions, responded to above. The MIA also commented
that the proposed guidance should not be used to ``rush new listings
thru'' for species that are highly scientifically controversial. In the
interim listing priority guidance, the Service noted that additional
public comment periods might be necessary before rules can be finalized
if there are unresolved questions or new information that must be
evaluated. (See 61 Fed. Reg. at 9653, section entitled ``Setting
Priorities Within Tier 2''). The Service will ensure that sound
science, including peer review, forms the foundation for all listing
decisions.
Comments submitted by BMI Marketing & Marine Services Corp.,
cautioned that final decisions on proposed listings should not be
rushed, advising the Service to take the same care and procedure as if
no time had been lost. The Service agrees with this comment. Each
pending proposal will be reviewed to ensure it contains current and
accurate information.
[[Page 24726]]
Where necessary, public comment periods will be reopened.
The attorneys representing the Fund For Animals (FFA) expressed
concern that they were not consulted prior to release of the interim
guidance, since it will substantially affect the Service's
implementation of a court-ordered settlement agreement with FFA dealing
with the processing of species regarded as candidates for listing under
the Act. The FFA attorneys also expressed concern that the Service
violated section 4(h) of the Act by failing to provide opportunity for
public comment prior to enactment of the priority guidance. The FFA
attorneys asserted that requiring completion of all final listings
before beginning new proposals is contrary to the settlement agreement
and inconsistent with sound administration of the Act. The FFA also
expressed concern that the Service has erected a series of
administrative hurdles that unnecessarily slow the speed at which
species can be added to the list.
On the objection to making the interim guidance effective
immediately, the Service believes it acted reasonably and responsibly
in so doing. More importantly, although the Service found, as stated in
the interim guidance (see 61 FR 9651), that good cause existed to make
the guidance effective immediately, it nonetheless solicited and
received comments from the public, and has taken them into account and
responded to them now in confirming the guidance. There was no
opportunity to implement the interim guidance anyway, because the
listing program was essentially unfunded and the moratorium was not
lifted until President Clinton approved a waiver of the moratorium on
April 26, 1996.
As discussed above, the limited appropriated funds for listing
activities now available are simply not sufficient to allow the Service
to meet all of its immediate responsibilities under Section 4 of the
Act. Thus the Service must make difficult decisions about how best to
allocate the limited funds. In anticipation of this situation, the
Service made the interim listing priority guidance effective
immediately upon publication on March 11, 1996 since it had no idea
when a full year appropriation might be enacted (Congress having
enacted several short-term Crs during this period) and the Service
wanted to have a plan for dealing with the situation it knew it would
face when the moratorium was lifted. Comments received in response to
the interim guidance were considered and are addressed in this notice.
Unless extended, the guidance is effective until the end of this
fiscal year on September 30, 1996. Given the magnitude of the backlog
and the limited funds available, however, it is highly unlikely that
the Service will complete processing of all of the pending proposed
listings within that time. Most of the outstanding proposed listings
are for species determined to face high-magnitude threats (priority 1-6
under the 1983 listing priority guidelines). Once the backlog of
proposed species that face high-magnitude threats has been brought
under control, the Service will rescind this guidance and return to a
more typical implementation of section 4 that also includes preparation
of proposed listings, delistings, and processing of petitions.
The court-approved Settlement Agreement in Fund for Animals v.
Lujan, Civ. No. 92-800 (GAG) (D.D.C., Dec. 15, 1992) discussed by
Glitzenstein et al. in their comments illustrates the problem posed by
competing resource demands. That agreement requires the Service to
resolve the conservation status of 443 candidate species (either by the
publication of a proposed listing rule or the publication of a notice
stating reasons why listing is not warranted) by September 30, 1996.
Resolution of their status would require, for each species, publication
of either a proposed listing rule or a notice stating reasons why
listing is not warranted. The agreement does not, of its own terms,
require final decisions on listings. Therefore, while it in a sense
advances the process of formally protecting species, full compliance
with the agreement will not bring the full protections of the Act to
any species.
Up to the time the funding for the listing program became severely
constrained, the Service was on track to achieve full compliance with
this agreement. The Service has published, during the period covered by
the agreement, proposed listing rules for 359 candidate species.
Despite this progress, the Service is now left with the following
dilemma. If it were to continue to expend money on moving candidate
species forward to the proposed listing state in order to comply with
the settlement agreement, it would deplete the entire $4 million
listing appropriation for fiscal year 1996. Processing of proposed
listing rules requires the investment of considerable time and
resources. It involves substantial research, status review,
coordination with State and local governments and other interested
parties, and conducting public hearings and peer review.
If the Service were to devote its entire budget for the remainder
of fiscal year 1996 to complying with the Fund for Animals Settlement
Agreement, the available funds would be insufficient. More important,
if the Service were to follow this course, it would be devoting no
resources to final listing decisions on the 243 species that have
already been proposed for listing. Being so close to receiving the full
protection of the Act, these species would remain unprotected under
this course of action, while all the Service's efforts in the listing
process would be bent toward deciding whether to move candidate species
closer to proposed listing, where they receive some limited procedural
protection (the section 7 conference requirement, see 16 U.S.C.
1536(a)(4)), but not the full substantive and procedural protections
offered by final listing. This course of action would also result in a
still larger backlog of proposed species awaiting final action.
Put a little differently, this one court-approved settlement
agreement, absent modification, would defeat a primary purpose of
lifting the listing moratorium. The Service is recommending, therefore,
that the Department of Justice seek appropriate relief from the courts
to allow the highest priority proposed species to be processed and, if
appropriate, added to the lists of endangered and threatened wildlife
and plants, consistent with the provisions of this listing priority
guidance.
The FFA also expressed concern that the Service has erected a
series of administrative hurdles that unnecessarily slow the speed at
which species can be added to the list. This comment does not pertain
to the subject matter of this notice, which deals with the relative
priority of various listing activities undertaken by the Service,
rather than the procedures used to accomplish those activities.
Nevertheless, the Service reaffirms it will process decisions on
proposed species as expeditiously as possible, consistent with the
substantive and procedural requirements of Section 4 of the Act.
The administrative ``hurdles'' noted by the FFA consist of joint
policy statements issued by the National Marine Fisheries Service and
the Fish and Wildlife Service on July 1, 1994 (59 FR 34270-34275).
Those joint policies are aimed at ensuring that the Act's requirement
to use the ``best available scientific and commercial data'' in the
decision-making process on petitions and proposed listing rules, see 16
U.S.C. 1533(b), is met and that appropriate coordination occurs with
State conservation agencies and the public.
[[Page 24727]]
Final Listing Priority Guidance
The Service has considered all comments and believes that some
revision of the interim guidance is appropriate. The Service has
decided to assign all activities other than emergency listings and
final review of pending proposals to Tier 3. This decision is based on
the reality that the fiscal year 1996 appropriation is insufficient to
fully dispense with the entire backlog of proposed species, such that
the Service is unlikely to undertake any actions below Tier 2 prior to
September 30, 1996. The Service adopts the revised listing priority
guidance as final guidance for assigning relative priorities to listing
actions conducted under section 4 of the Endangered Species Act, to
remain in effect until September 30, 1996, unless extended. This
guidance supplements, but does not replace, the current listing
priority guidelines (48 FR 43098; September 21, 1983), which are silent
on the matter of prioritizing among different types of listing
activities. The terms of this guidance are effective only on the
listing priorities of the Service. Listing actions under the
jurisdiction of the Department of Commerce, National Marine Fisheries
Service will be processed according to priorities established by that
agency.
Section 4(b)(1) of the Act requires the Service to use the ``best
available scientific and commercial information'' to determine those
species in need of the Act's protections. It has been long-standing
Service policy that the order in which species should be processed for
listing is based primarily on the immediacy and magnitude of the
threats they face. Given the large backlog of proposed species, the
backlog of pending petitions, and the list of candidate species
awaiting proposal, it will be extremely important for the Service to
focus its efforts on actions that will provide the greatest
conservation benefits to imperiled species in the most expeditious
manner.
The Service will base decisions regarding the order in which
species will be proposed or listed on the 1983 listing priority
guidelines and the priority guidance in this notice. These decisions
will be implemented by the Regional Office designated with lead
responsibility for the particular species. The Service allocates its
listing appropriation among the Regional Offices based primarily on the
number of proposed and candidate species for which the Region has lead
responsibility. This ensures that those areas of the country with the
largest percentage of known imperiled biota will receive a
correspondingly high level of listing resources. The 1983 listing
priority guidelines and this guidance will be applied at the National,
Regional, and local levels. Given the workload-based allocation, and
the fact that the $4 million is not sufficient to complete final
determinations on all pending proposed listings, the Service does not
anticipate undertaking any actions in Tier 3 prior to September 30,
1996.
To address the biological, budgetary, and administrative issues
noted above, the Service therefore adopts the following listing
priority guidance.
The following sections describe a multi-tiered approach that
assigns relative priorities, on a descending basis, to actions to be
carried out under section 4 of the Act. The various types of actions
within each tier (such as new proposed listings, administrative
petition findings, etc.) will be accorded roughly equal priority, but
the 1983 listing priority guidelines will be used as applicable. The
Service emphasizes that this guidance is effective until September 30,
1996 (unless extended by future notice) and the agency looks forward to
returning to a more typical implementation of the Act's listing
responsibilities, to concurrently process petition findings; proposed
and final listings, reclassifications, or delistings; and critical
habitat determinations, after the backlogs have been reduced.
Tier 1--Emergency Listing Actions
The Service will immediately process emergency listings for species
that face an imminent risk of extinction under the emergency listing
provisions of section 4(b)(7) of the Act and will prepare a proposed
listing immediately upon learning of the need to emergency list. The
Service will screen all petitions and other status information it
receives to determine if an emergency situation exists.
Tier 2--Processing Final Decisions on Proposed Listings
In issuing the pending proposed listings, the Service found that
the vast majority of the proposed species faced high-magnitude threats.
The Service believes that focusing efforts on making final decisions
relative to these proposed species will provide maximum conservation
benefits to those species that are in greatest need of the Act's
protections. Since only emergency or final listings provide substantive
protection, the Service is of the strong belief that this activity
should take precedence over new proposed listings, reclassifications or
delistings, petition findings, and critical habitat designations, which
in comparison to listing, provide limited conservation benefits.
Setting Priorities Within Tier 2
Most of the pending proposed listings deal with species that face
high-magnitude threats, such that additional guidance is needed to
clarify the relative priorities within Tier 2. Proposed rules dealing
with taxa deemed to face imminent, high-magnitude threats will have the
highest priority within Tier 2. The Service will promptly review the
backlog of 243 proposed species and each Region will reevaluate the
immediacy and magnitude of threats facing all species that have been
proposed for listing and revise the species' listing priority
assignments accordingly. Those with the highest listing priority will
be processed first.
To further prioritize among the Tier 2 actions, proposed listings
that cover multiple species will be processed based on the most urgent
listing priority of the component species and multi-species packages
will have priority over single-species proposed rules with equal
priority unless the Service has reason to believe that the single-
species proposal should be processed to avoid possible extinction.
Furthermore, in those cases where a proposed listing for a high-
priority species also includes other species with lower listing
priorities, the listing package will not be disassembled to deal only
with the high priority species.
Due to unresolved questions or to the length of time since
proposal, the Service may determine that additional public comment or
hearings are necessary before issuing a final decision for some Tier 2
actions. If the listing priorities are equal, proposed listings that
can be quickly completed (based on factors such as few public comments
to address or final decisions that were almost complete prior to the
moratorium) will have higher priority than proposed rules for species
with equivalent listing priorities that still require extensive work to
complete.
Given species with equivalent listing priorities and the factors
previously discussed being equal, proposed listings with the oldest
dates of issue should be processed first.
Tier 3--All Other Listing Actions, Including Processing
Reclassifications and Delistings, New Proposed Listings, Petition
Findings, and Critical Habitat Designations
While the backlog of candidate species has been reduced
substantially since 1992, the Service has determined that 182 species
warrant issuance of proposed listings. The Act directs the
[[Page 24728]]
Service to make ``expeditious progress'' in adding new species to the
lists and thereby necessitates steady work in reducing the number of
outstanding candidate species. Issuance of new proposed listings is the
first formal step in the regulatory process for listing a species.
However, this step provides only limited conservation benefits and the
Service believes that issuance of new proposed listings, even for
species facing imminent, high-magnitude threats, should therefore be
afforded lower priority so long as a large backlog exists of proposed
listings for species facing high-magnitude threats.
The Service will conduct a preliminary review of any petition to
list a species or change a threatened species to endangered status to
determine if an emergency situation exists or if the species would
probably be assigned a high listing priority upon completion of a
status review. If the initial screening indicates an emergency
situation the action will be elevated to Tier 1. The historical record
on listing petitions reveals that fewer than 25 percent of all
petitions are found to warrant listing.
Processing reclassifications and delistings can provide welcome
regulatory relief. The Service regrets that such activities must be
accorded Tier 3 priority due to the limited appropriations provided by
Congress and the need to devote scarce funds to carry out the overall
protective purposes of the Act.
Designation of critical habitat consumes large amounts of the
Service's listing appropriation and generally provides only limited
conservation benefits beyond those achieved when a species is listed as
endangered or threatened. Because critical habitat protections apply
only to Federal actions, situations where designating critical habitat
provides additional protection beyond that provided by the jeopardy
prohibition of section 7 are rare. It is critical during this period to
maximize the conservation benefit of every dollar spent in the listing
activity. The relatively small amount of additional protection that is
gained by designating critical habitat for species that are already
listed is greatly outweighed by providing the protections included in
sections 7 and 9 to newly-listed species. Therefore, the Service will
place higher priority on addressing species that presently have no
protection under the Act rather than devoting limited resources to the
expensive process of designating critical habitat for species already
protected by the Act.
Rules and Findings Currently Near Completion
The Headquarters Office will promptly process any draft final rules
to add species to or remove species from the lists, draft proposed
listings or delistings, draft petition findings, draft proposed or
final critical habitat determinations, and draft withdrawal notices
that were in the Washington Office prior to the date of this notice but
could not be processed because of the funding constraints or the
moratorium. These actions will require little additional work to
complete and the Service believes it to be cost-effective to finish up
these actions that were inadvertently delayed by the funding
constraints. The anticipated number of such actions is fewer than ten.
Notifying the Courts on Matters in Litigation
The Service will assess the relative priority of all section 4
petition and rule-making activities that are the subject of active
litigation using this guidance and the 1983 listing priority
guidelines. In many cases, simply identifying the tier in which an
activity falls will suffice to determine whether the Service will
undertake that action during the time this priority guidance is in
effect. The Service, through the Office of the Solicitor, will then
notify the Justice Department of its priority determination and request
that appropriate relief be requested from each district court to allow
those species with the highest biological priority to be addressed
first. To the extent that the courts do not defer to the Service's
priority guidance and the 1983 listing priority guidelines, the Service
will of course comply with court orders despite any conservation
disruption that may result.
The Service will not elevate the priority of proposed listings for
species simply because they are subjects of active litigation. To do so
would let litigants, rather than expert biological judgments, control
the setting of listing priorities. The Regional Office with
responsibility for processing such packages will need to determine the
relative priority of such cases based upon this guidance and the 1983
listing priority guidelines and furnish supporting documentation that
can be submitted to the relevant Court to indicate where such species
fall in the overall priority scheme.
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: May 10, 1996.
Mollie Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 96-12243 Filed 5-15-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-12240 Groundfish of the Gulf of Alaska; Recordkeeping and Reporting Requirements; General Limitations
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12240]
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DEPARTMENT OF COMMERCE
50 CFR Part 672
[Docket No. 950727194-6118-03; I.D. 062795C]
Groundfish of the Gulf of Alaska; Recordkeeping and Reporting
Requirements; General Limitations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a technical amendment to the final rule
implementing regulations for recordkeeping and reporting under the
authority of the Fishery Management Plan for Groundfish of the Gulf of
Alaska (GOA) and the Fishery Management Plan for the Groundfish Fishery
of the Bering Sea and Aleutian Islands Area (BSAI). This action
corrects the definition for ``fishing trip.''
EFFECTIVE DATE: May 16, 1996.
FOR FURTHER INFORMATION CONTACT: Patsy A. Bearden, 907-586-7228.
SUPPLEMENTARY INFORMATION: The final rule implementing recordkeeping
and reporting requirements for the GOA and BSAI was published in the
Federal Register on February 13, 1996 (61 FR 5608). The rule
consolidated and revised recordkeeping and reporting requirements for
the GOA and BSAI groundfish fisheries, including revisions to various
definitions for the term, ``fishing trip.'' Several very similar
definitions for the term had existed previously and were to be
reconciled and consolidated into one definition for the term in the
final rule. The definition for ``fishing trip'' used to calculate
maximum retainable bycatch amounts and retention of pollock roe in the
GOA were found at Sec. 672.20(h)(2) and (i)(4). Similar but slightly
different definitions for this term as it applied to the BSAI also were
found at Sec. 675.20(i)(2) and (j)(4). Inadvertently, the reconciled
definition in the final rule did not include some of the language of
the original definitions.
The final rule implementing the recordkeeping and reporting
requirements specified that an operator of a vessel is engaged in a
fishing trip from the time the harvesting, receiving, or processing is
begun or resumed until the transfer or offloading of all groundfish
product, the vessel leaves the area where fishing activity commenced,
or the end of a weekly reporting period, whichever occurs first. NMFS
is amending the regulation to correct that definition to specify that a
single fishing trip in an area continues until the offload or transfer
of all groundfish or groundfish product, the vessel enters or leaves an
area to which a directed fishing prohibition applies, or the end of a
weekly reporting period, whichever occurs first. This change is based
on language from earlier definitions and is designed to add additional
precision and clarity concerning when a fishing trip begins and ends.
Classification
Because this technical amendment makes only minor, non-substantive
corrections to an existing rule, notice and public procedure thereon
and a delay in effective date would serve no purpose. Accordingly,
under 5 U.S.C. 553(b)(B) and (d), notice and public procedure thereon
and a delay in effective date are unnecessary.
Because this rule is being issued without prior comment, it is not
subject to the Regulatory Flexibility Act requirement for a regulatory
flexibility analysis and none has been prepared.
This rule makes minor technical changes to a rule that has been
determined to be not significant under E.O. 12866. No changes in the
regulatory impact previously reviewed and analyzed will result from
implementation of this technical amendment.
List of Subjects in 50 CFR Part 672
Fisheries, Reporting and recordkeeping requirements
Dated: May 9, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For reasons set out in the preamble 50 CFR part 672 is amended to
read as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.20, paragraph (h)(2) is revised to read as follows:
Sec. 672.20 General limitations.
* * * * *
(h) * * *
(2) Fishing trip. For purposes of this section, an operator of a
vessel is engaged in a single fishing trip in an area from the time the
harvesting, receiving, or processing of groundfish is begun or resumed
until:
(i) The offload or transfer of all groundfish or groundfish product
from that vessel;
(ii) The vessel enters or leaves an area to which a directed
fishing prohibition applies; or
(iii) The end of a weekly reporting period, whichever comes first.
* * * * *
[FR Doc. 96-12240 Filed 5-15-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12227 Federal Republic of Yugoslavia (Serbia and Montenegro) and Bosnian Serb-Controlled Areas of the Republic of Bosnia and Herzegovina Sanctions Regulations; Suspension of Sanctions Against the Bosnian Serbs
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24696-24697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12227]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 585
Federal Republic of Yugoslavia (Serbia and Montenegro) and
Bosnian Serb-Controlled Areas of the Republic of Bosnia and Herzegovina
Sanctions Regulations; Suspension of Sanctions Against the Bosnian
Serbs
AGENCY: Office of Foreign Assets Control, Treasury.
ACTION: Final rule; amendments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Federal Republic of Yugoslavia (Serbia
and Montenegro) and Bosnian Serb-Controlled Areas of the Republic of
Bosnia and Herzegovina Sanctions Regulations to authorize prospectively
all transactions with respect to property and interests in property of
the Bosnian Serb forces and authorities and any dealing by U.S. persons
relating to trade with or in, and the exportation of services to, the
areas of the Republic of Bosnia and Herzegovina that the Bosnian Serb
forces control.
EFFECTIVE DATE: May 10, 1996.
FOR FURTHER INFORMATION CONTACT: Steven I. Pinter, Chief of Licensing,
tel.: 202/622-2480, Dennis P. Wood, Chief of Compliance Programs, tel.:
202/622-2490, or William B. Hoffman, Chief Counsel, tel.: 202/622-2410,
Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220.
SUPPLEMENTARY INFORMATION:
Electronic and Facsimile Availability
This document is available as an electronic file on The Federal
Bulletin Board the day of publication in the Federal Register. By
modem, dial 202/512-1387 and type ``/GO FAC,'' or call 202/512-1530 for
disk or paper copies. This file is available for downloading without
charge in WordPerfect 5.1, ASCII, and Adobe AcrobatTM readable
(*.PDF) formats. For Internet access, the address for use with the
World Wide Web (Home Page), Telnet, or FTP protocol is:
fedbbs.access.gpo.gov. The document is also accessible for downloading
in ASCII format without charge from Treasury's Electronic Library
(``TEL'') in the ``Business, Trade and Labor Mall'' of the FedWorld
bulletin board. By modem, dial 703/321-3339, and select the appropriate
self-expanding file in TEL. For Internet access, use one of the
following protocols: Telnet = fedworld.gov (192.239.93.3); World Wide
Web (Home Page) = http://www.fedworld.gov; FTP = ftp.fedworld.gov
(192.239.92.205). Additional information concerning the programs of the
Office of Foreign Assets Control is available for downloading from the
Office's Internet Home Page: http://www.ustreas.gov/treasury/services/
fac/fac.html, or in fax form through the Office's 24-hour fax-on-demand
service: call 202/622-0077 using a fax machine, fax modem, or touch
tone telephone.
Background
On January 16, 1996, the Treasury Department suspended
prospectively sanctions imposed against the Federal Republic of
Yugoslavia (Serbia and Montenegro) (the ``FRY (S&M)''). Sanctions
against the Bosnian Serb forces and authorities and the areas of the
Republic of Bosnia and Herzegovina that they control were to remain in
effect until their troop withdrawal to agreed borders, consistent with
the General Framework Agreement for Peace in Bosnia and Herzegovina and
the Annexes thereto (collectively the ``Peace Agreement''), which was
initialled on November 21, 1995, and signed on December 4, 1995, and
with paragraph 2 of United Nations Security Council Resolution 1022 of
November 22, 1995 (the ``Resolution'').
On February 26, in keeping with paragraph 2 of the Resolution, the
United Nations Secretary-General transmitted to the Security Council
the report of the commander of the international force deployed in
accordance with the Peace Agreement stating that all Bosnian Serb
forces had withdrawn behind the zones of separation established by that
Agreement. Accordingly, the Office of Foreign Assets Control is
amending the Federal Republic of Yugoslavia (Serbia and Montenegro) and
Bosnian Serb-Controlled Areas of the Republic of Bosnia and Herzegovina
Sanctions Regulations, 31 CFR part 585 (the ``Regulations''), by adding
Sec. 585.527 to the Regulations to authorize prospectively those
transactions previously prohibited with respect to the Bosnian Serb
forces and authorities and entities organized or located in those areas
of the Republic of Bosnia and Herzegovina under their control; entities
owned or controlled directly or indirectly by any person in, or
resident in, those areas; and any person acting for or on behalf of any
of the foregoing. U.S. persons are also authorized to engage in
transactions involving the areas of the Republic of Bosnia and
Herzegovina under the control of the Bosnian Serb forces, and services
may be exported either from the United States or by U.S. persons to
those areas. Property and interests in property previously blocked due
to an interest of any person described in Sec. 585.201 remain blocked.
Because the Regulations involve a foreign affairs function,
Executive Order 12866 and the provisions of the Administrative
Procedure Act, 5 U.S.C. 553, requiring notice of proposed
[[Page 24697]]
rulemaking, opportunity for public participation, and delay in
effective date, are inapplicable. Because no notice of proposed
rulemaking is required for this rule, the Regulatory Flexibility Act, 5
U.S.C. 601-612, does not apply.
List of Subjects in 31 CFR Part 585
Administrative practice and procedure, Banks, banking, Blocking of
assets, Bosnia and Herzegovina, Foreign investments in United States,
Foreign trade, Penalties, Reporting and recordkeeping requirements,
Securities, Specially designated nationals, Transportation, Yugoslavia.
For the reasons set forth in the preamble, 31 CFR part 585 is
amended as set forth below:
1. The authority citation for part 585 continues to read as
follows:
Authority: 3 U.S.C. 301; 22 U.S.C. 287c; 49 U.S.C. App. 1514; 50
U.S.C. 1601-1651; 50 U.S.C. 1701-1706; E.O. 12808, 57 FR 23299, 3
CFR, 1992 Comp., p. 305; E.O. 12810, 57 FR 24347, 3 CFR, 1992 Comp.,
p. 307; E.O. 12831, 58 FR 5253, 3 CFR, 1993 Comp., p. 576; E.O.
12846, 58 FR 25771, 3 CFR, 1993 Comp., p. 599; E.O. 12934, 59 FR
54117, 3 CFR, 1994 Comp., p. 930.
Subpart E--Licenses, Authorizations, and Statements of Licensing
Policy
2. Section 585.527 is added to subpart E to read as follows:
Sec. 585.527 Authorization of certain new transactions with respect to
the Bosnian Serbs.
(a) Notwithstanding the provisions of subpart B of this part,
transactions and activities otherwise prohibited by Secs. 585.201(c)
(blocked property), 585.217(b) (entry of U.S. vessels into riverine
ports), 585.218(a) (insofar as that paragraph relates to trade in
Bosnian Serb-controlled areas of Bosnia and Herzegovina), and
585.218(b) (services to Bosnian Serb-controlled areas), are hereby
authorized on or after May 10, 1996, provided that no such transaction
results in a debit to an account blocked prior to May 10, 1996, or a
transfer of property blocked prior to May 10, 1996, unless such debit
or transfer is independently authorized by or pursuant to this part.
(b) The authorizations contained in this section do not eliminate
the need to comply with regulatory requirements not administered by the
Office of Foreign Assets Control, including aviation, financial and
trade requirements administered by other federal agencies.
Dated: April 23, 1996.
R. Richard Newcomb,
Director, Office of Foreign Assets Control.
Approved: May 2, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff & Law Enforcement).
[FR Doc. 96-12227 Filed 5-10-96; 3:39 pm]
BILLING CODE 4810-25-F
Complete official Federal Register PDF
FR Doc. 96-12198 General Services Administration Acquisition Regulation; Acquisition of Leasehold Interests in Real Property
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24720-24722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12198]
=======================================================================
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 570
[APD 2800.12A, CHGE 71]
RIN 3090-AF92
General Services Administration Acquisition Regulation;
Acquisition of Leasehold Interests in Real Property
AGENCY: Office of Acquisition Policy, GSA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration Acquisition Regulation
(GSAR) is amended to revise sections 570.106 and 570.303 to authorize
the use of design-build selection procedures in section 303M of the
Federal Property and Administrative Services Act of 1949, as amended by
Pub. L. 104-106, February 10, 1996, for lease construction projects
when the statutory criteria for use are met.
DATES: Effective Date: May 16, 1996.
Comment Date: Comments should be submitted in writing to the
address shown below on or before July 15, 1996 to be considered in
formulating the final rule.
ADDRESSES: Interested parties should submit written comments to the
Office of Acquisition Policy (MV), General Services Administration,
Room 4010, 18th & F Streets, NW, Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT: Tom Wisnowski, GSA Acquisition Policy
Division, (202) 501-1224.
SUPPLEMENTARY INFORMATION:
A. Determination To Issue an Interim Rule
A determination has been made under the authority of the
Administrator of General Services that urgent and compelling reasons
exist to publish an interim rule prior to affording the public
opportunity for comment.
Section 4105 of Public Law 104-106 amended the Federal Property and
Administrative Services Act of 1949 to add a new section 303M on
design-build selection procedures. The law authorizes use of two-phase
selection
[[Page 24721]]
procedures for entering into a contract for the design and construction
of a public building, facility or work when certain criteria for use
are met. GSA has made a determination that the new authority may be
used for a contract for the design and construction of a building,
facility or work for lease to the Government.
The new two-phase selection process substantially reduces the cost
and time involved in such procurements for offerors and for the
Government. In the current environment of downsizing, it is critical
for both industry and Government to enhance the efficiency of the
contracting process.
Urgent and compelling reasons exist to make this rule effective
prior to full consideration of public comments. Proceeding with this
interim rule is required to permit GSA to take advantage of the
opportunity to use a more efficient contracting process for space
requirements that are currently pending and cannot be delayed, and to
cope with the continued downsizing of GSA and its customer agencies.
This interim rule only applies to the use of the new two-phase
selection process in the context of leases of real property. The
Federal Acquisition Regulation (FAR) will address the use of the
authority for direct Federal construction.
All public comments received in response to this interim rule will
be fully considered in formulating the final rule.
B. Executive Order 12866
This rule is not a significant rule as defined in Executive Order
12866.
This rule was submitted to the Office of Management and Budget
under Executive Order 12866, Regulatory Planning and Review.
C. Regulatory Flexibility Act
This interim rule is not expected to have a significant impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule will
apply to a very small number of leases per year (less than 25) and the
rule simplifies procedures and reduces the cost of competing in the
initial phases of a procurement. Therefore, the rule should have a
positive impact.
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared
and may be obtained from the address stated above. A copy of the IRFA
has been submitted to the Chief Counsel for Advocacy of the Small
Business Administration. Comments from small entities will be
considered in accordance with Section 610 of the Act.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or otherwise collect information from offerors,
contractors or members of the public that require approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule under 5 U.S.C. 804. This rule was
submitted to Congress and GAO under 5 U.S.C. 804.
List of Subjects in 48 CFR Part 570
Government procurement.
Accordingly, 48 CFR 570 is amended as follows:
PART 570--ACQUISITION OF LEASEHOLD INTERESTS IN REAL PROPERTY
1. The authority citation for 48 CFR 570 continues to read as
follows:
Authority: 40 U.S.C. 486(c).
2. Section 570.106 is amended by adding paragraph (c) to read as
follows:
570.106 Methods of contracting.
* * * * *
(c) The design-build selection procedures in section 303M of the
Federal Property and Administrative Services Act of 1949, as amended,
may be used for lease construction projects, including lease
construction projects with options to purchase the real property
leased. The design-build selection procedures may be used when the
lease involves the design and construction of a public building,
facility or work for lease to the Government if the contracting officer
makes a determination that:
(1) Three or more offers are likely to be received,
(2) Design work must be performed before an offeror can develop a
price or cost proposal, and
(3) The offeror will incur a substantial amount of expense in
preparing the offer.
3. Section 570.303 is amended by revising paragraph (a)(7), by
deleting paragraph (a)(8) and redesignating paragaphs (a)(9) and
(a)(10) as (a)(8) and (a)(9) to read as follows:
570.303 Solicitation for offers (SFO).
(a) * * *
(7) Describe the source selection procedures to be used.
(i) Unless the design-build selection procedures are being used as
authorized by 570.106(c), the solicitation must either:
(A) State that award will be made to the offeror that meets the
SFO's minimum requirements at the lowest cost or price, or
(B) Identify all factors, including price or cost, and any
significant subfactors that will be considered in awarding the lease
and state the relative importance the Government places on those
evaluation factors and subfactors. In describing the evaluation factors
to be considered, the SFO shall clearly disclose whether all evaluation
factors other than cost or price when combined, are significantly more
important than cost or price, approximately equal in importance to cost
or price, or significantly less important than cost or price. Numerical
weights, which may be employed in the evaluation of proposals, need not
be disclosed in the solicitation. The SFO must inform offerors of
minimum requirements that apply to the procurement. The other factors
that will be considered in evaluating proposals should be tailored to
each acquisition and include only those factors that will have an
impact on the award decision. The evaluation factors that apply to an
acquisition and the relative importance of those factors are within the
broad discretion of the contracting officer. However, price or cost to
the Government must be included as an evaluation factor in every case.
(ii) When the design-build selection procedures are being used as
authorized by 570.106(c), the solicitation must
(A) Identify the evaluation factors and subfactors to be used in
evaluating phase-one proposals and indicate their relative importance,
(B) State the maximum number of offerors that are to be selected to
submit competitive proposals in phase-two, and
(C) Identify the evaluation factors and subfactors, including cost
or price, to be used in evaluating phase-two proposals and selecting
the successful offeror. Evaluation factors to be used in evaluating
phase-one proposals must be stated in the solicitation. Phase-one
factors include specialized experience and technical competence,
capability to perform, past performance of the offeror's team
(including the architect-engineer and construction members of the team)
and other appropriate factors, such as site or location. In phase-one,
offerors will not be required to submit detailed design information or
cost or price information and use of cost related or price related
evaluation factors is not permitted. The maximum number of
[[Page 24722]]
offerors to be selected for phase-two must not exceed 5 unless the
contracting officer determines that specifying a number greater than 5
is in the Government's interest and is consistent with the purpose and
objectives of the two-phase selection process. For phase-two the
solicitation should identify all factors, including price or cost, and
any significant subfactors that will be considered in awarding the
lease and state the relative importance the Government places on those
evaluation factors and subfactors and otherwise comply with paragraph
(a)(7)(i) of this section.
* * * * *
Dated: May 10, 1996.
Ida M. Ustad,
Deputy Associate Administrator for Acquisition Policy.
[FR Doc. 96-12198 Filed 5-15-96; 8:45 am]
BILLING CODE 6820-61-P
Complete official Federal Register PDF
FR Doc. 96-12166 Termination or Transfer of Licensed Activities: Recordkeeping Requirements
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24669-24675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12166]
=======================================================================
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 20, 30, 40, 61, 70, and 72
RIN 3150-AF17
Termination or Transfer of Licensed Activities: Recordkeeping
Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations pertaining to the disposition of certain records when a
licensee terminates licensed activities or licensed activities are
transferred to another licensee. The final rule requires a licensee to
transfer records pertaining to decommissioning, and certain records
pertaining to offsite releases and waste disposal, to the new licensee
if licensed activities will continue at the same site, and it requires
the new licensee to forward these same records to the NRC before the
license is terminated.
EFFECTIVE DATE: June 17, 1996.
FOR FURTHER INFORMATION CONTACT: Mary L. Thomas, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington DC
20555-0001, telephone (301) 415-6230, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
While evaluating an incident involving some offsite contamination,
the NRC identified a deficiency in the current recordkeeping
requirements. The NRC was unable to determine how much radioactive
material was released to a sanitary sewerage system because records of
previous releases by the original holder of the license were not
available. In addition, the regulations were unclear with regard to the
final disposition of these records when licensed activities have ceased
and the license is terminated. A proposed rule requiring licensees to
forward certain records to the NRC once licensed activities ceased, or
to a new owner if they would be taking over licensed activities, was
published for comment in the Federal Register on December 28, 1994 (59
FR 66814).
[[Page 24670]]
II. Discussion of Comments and Summary of Requirements in the Final
Rule
This section includes a discussion of the significant issues raised
by public comment and how they were addressed. Six comment letters were
received on the proposed rule, 3 from Agreement States, 1 from a
licensee, and two from public interest groups. Three supported the
proposed rule, and three (from Agreement States) questioned the benefit
in adopting these requirements.
Public Comments
1. Need for the Rule and Expected Benefit
Comments. Two commenters stated that the NRC has not demonstrated
the need for the rule on the basis of one incident. They also stated
that the NRC did not demonstrate how the proposed regulations and their
commensurate costs would assist licensees, the NRC, and the Agreement
States in the analysis of the environmental impact from the site. They
requested that the NRC provide data that permits evaluation of the
actual impact of these regulations.
These same commenters stated that the usefulness of the records in
the decisionmaking process should also be demonstrated in each case.
They referred to the Objective Section of the Draft Regulatory
Analysis, which stated that these records ``* * * will provide the NRC
with the information needed to assess possible risks associated with
licensed activities once a licensee has terminated its license.'' They
believed that this assumption is generally false, and that even if
sewer release records were available, an independent evaluation of the
environment would still be required.
Response. The intent of the proposed rule was to ensure that
records that are required by current regulations to be retained by
licensees during licensed operations are available in the event that
safety concerns arise after license termination regarding any offsite
consequences found to have resulted from licensed operations. Since the
NRC may not be able to determine what problems will arise in the
future, the best course of action is to have the records available
after the license is terminated. The proposed rule specified that the
records used by the licensee to demonstrate compliance with the public
dose limits and limits on waste disposals were to be forwarded to the
NRC prior to license termination or to the new owner if licensed
operations were to continue at the site under a new or amended license.
In addition, the proposed rule specified that records important for
decommissioning be provided to the new licensee prior to license
reassignment or transfer. As discussed below, in addition to
decommissioning records, the records included in the final rule are:
results of offsite release measurements and calculations under
Sec. 20.2103(b)(4); and waste disposals authorized under Secs. 20.2202,
20.2203, 20.2204, and 20.2205.
In order for the NRC to determine that a licensee has effectively
decommissioned its facility, and to authorize license termination, the
NRC will review the licensee's evaluation of previous releases to the
environment and waste disposals to determine whether there is a need
for the licensee to remediate significant offsite contamination as a
result of past licensed activities prior to license termination.
Licensees are already required to keep these records until license
termination.
When transfer of a license to a new entity is approved by the
Commission, certain records related to offsite releases of material,
including waste disposals, would be needed by the new licensee prior to
decommissioning to determine areas where remediation may be needed. In
addition, there may be circumstances where it will be necessary for the
NRC or other government agencies to evaluate the effects of licensed
operations on the environment. Although other information would also be
needed to perform an environmental analysis, access to these records
would be useful in evaluating potential sources of contamination.
The NRC has re-evaluated the impact of this regulation in the
Regulatory Analysis. The records required to be transferred are the
records that the licensee is already required to retain until license
termination. The burden associated with this rulemaking relates to
transfer and subsequent storage of records, and as discussed in the
Regulatory Analysis, is not found to be significant.
The final rule has been modified to specify that only
decommissioning records and records of offsite releases and waste
disposals need to be forwarded to the new licensee in the event of
license transfer or re-assignment and that these are the only records
that need to be provided to the NRC at license termination. In
addition, only licensees authorized to possess unsealed source material
or unsealed byproduct material with half-lives greater than 120 days
(i.e., licensees that have a potential for significant contamination)
will be required to provide records to the new licensee in the event of
re-assignment or transfer and to the NRC at license termination. The
use of a 120 day half-life for byproduct material was chosen because
radioactive material with half-lives less than 120 days would be
completely decayed in a few years, and corresponds to the value
currently used to determine which licensees must have a decommissioning
funding plan. This change in the final rule was made to reduce the
burden on a number of licensees that routinely use only sealed sources
and, in the case of byproduct material, short-lived isotopes (less than
120 days). Licensees authorized to possess only sealed sources would
still be required to retain records of spills involving source
ruptures, under current decommissioning recordkeeping requirements. The
final rule will require all licensees to forward decommissioning
records to the NRC at license termination. Using this criteria the
number of licensees affected annually by this rulemaking has decreased
from approximately 1700 in the proposed rule to 960 in the final rule.
2. Agreement State Compatibility
Comment. One commenter stated (1) that there was no basis for a
Division 2 level of compatibility and (2) that an Agreement State could
use other methods, such as actual surveys, to confirm that there was no
offsite contamination. In addition, the commenter stated that other
costs associated with the proposed rule have not been considered, such
as costs associated with inspections, and while the NRC may be able to
absorb these costs in ``non-core portions of the inspection program,''
Agreement States do not have this luxury.
Response. The Commission still believes that this rule should be
assigned a Division 2 compatibility level for most of the new
requirements. The final rule assigns a Division 3 compatibility level
for the requirement that records be provided to the regulatory agency
prior to license termination. While the NRC believes that it would be
prudent for Agreement States to adopt a similar requirement, the final
rule assignment of a Division 3 compatibility level for this
requirement provides the flexibility for each State to determine which
records should be provided to the regulatory agency and retained by it
at license termination.
The NRC believes retention of these records will aid in the
resolution of potential safety concerns that may be identified after
license termination, and
[[Page 24671]]
also recognizes that an Agreement State without an equivalent
requirement for record retention has the ability to resolve potential
future safety concerns. However, this can be achieved by conducting
radiological surveys at the formerly licensed site. Without the
records, these surveys may need to be greater in number and may be more
costly, but the absence of retained records will not preclude an
Agreement State from adequately assessing future safety concerns.
Because the Commission has reduced the burden of this rule by
limiting the number of licensees affected by this rule, the inspection
burden on the Agreement States should not be significantly increased.
It is unlikely that any State will have more than 2-3 transfers per
year. With respect to other costs, the reporting burden reflects that
the time required to index, review, and store the required records has
been re-calculated to be an average of 5 hours per license termination
or transfer.
3. Regulatory Alternatives
Comment. Two commenters stated that the NRC failed to identify
regulatory alternatives that would be as effective as the proposed rule
while placing less burden on licensees, the NRC, and Agreement States.
As noted in the discussion of Issues 1 and 2, the commenters concluded
that any benefit from the proposed rule is questionable. They stated
that specific regulatory alternatives that should be considered
include, but are not limited to:
a. Perform separate evaluations for the utility of requiring
records for offsite releases and for waste disposal, and making
independent judgments.
b. Consider limiting the scope of the rules to address only those
facilities that possess unsealed sources with long half-lives.
c. Consider all records being provided to the NRC, rather than
requiring Agreement States to maintain the records.
d. Eliminate transferring 10 CFR 20.2005 type records (disposal of
specific wastes, in quantities less than or equal to 1.85
kilobecquerels per gram of tritium or carbon-14 in scintillation fluids
or animal tissue).
Response. The Commission considered possible alternatives to
rulemaking. These are addressed in the Regulatory Analysis prepared for
this rule. The following information is provided with respect to the
specific recommendations of the commenters:
(a) The NRC reconsidered the scope of the proposed rule and decided
to limit the records required to those needed to support
decommissioning. The Commission has already evaluated the impact and
need for decommissioning records in promulgating a final rule
addressing recordkeeping requirements for decommissioning (58 FR
39628).
The records included in the final rule are decommissioning records,
records of waste disposals that would be permitted under Secs. 20.2002
(including any burials authorized before January 28, 1981), 20.2003,
20.2004, 20.2005, and results of measurements and calculations used to
evaluate offsite releases (Sec. 20.2103(b)(4)). These records would be
helpful in evaluating the impact of a licensee's past activities. This
information can be used by the new licensee receiving the records in
developing decommissioning plans and by the regulatory agency to
evaluate the adequacy of the licensee's decommissioning activities.
With this change, the NRC concluded that for most licensees the overall
number of records that would be required to be transferred to the new
licensee should not exceed the capacity of several file drawers, even
for a license that has been in effect for some time and, therefore, the
overall burden associated with the transfer should be small. In
addition, the rule permits storage of this information electronically.
The final rule also requires that decommissioning records and certain
records pertaining to offsite releases and waste disposal be forwarded
to the NRC or the appropriate Agreement State prior to license
termination.
(b) The NRC has evaluated the suggestion to limit the scope of
licensees covered by the rule and has revised the final rule and the
Regulatory Analysis to reflect that, for licenses authorized under
Parts 30 or 40, the rule only affects those licensees authorized to
possess unsealed byproduct material with half-lives greater than 120
days or unsealed source material. Licensees that use and possess sealed
sources, or unsealed byproduct material with short half-lives, are no
longer affected by this rule. As a result of this change, most medical
licensees will not need to transfer records in the event of license
transfer, or re-assignment. Final records disposition for these
licensees and others excluded by this rule will still be determined on
a case-by-case basis by the NRC at the time of license termination.
(c) The purpose of this rulemaking is to assure that adequate
records are available to provide historical information on previous
licensed operations in the event significant offsite contamination is
detected after a licensee has ceased operation of their facility. To
provide flexibility to the Agreement States, the sections of the final
rule requiring transmittal of records to the NRC at license termination
have been designated Division 3 compatibility level. Because the NRC
has discontinued its regulatory authority in the Agreement States for
this material, it is appropriate that the Agreement States, rather than
the NRC, both determine which Agreement State licensee records should
be retained at license termination, and maintain those records.
(d) Records of waste disposals allowed by Sec. 20.2005 currently
are required by Sec. 20.2108(b) to be retained until the Commission
terminates each pertinent license requiring the record. The Commission
is currently evaluating a petition for rulemaking that requests a
revision to Sec. 20.2005 pertaining to waste disposal. This petition is
currently on hold until finalization of the rulemaking addressing
radiological criteria for decommissioning. In light of this, we will
consider this comment in resolving this petition.
4. Public Access To Information
Comment. One commenter was concerned that the Commission overlooked
the benefits which could result from simple, inexpensive-to-implement
requirements enhancing public access to information. This commenter
noted that enhanced public access to information is an important
(though not the only) reason for recordkeeping, in part because
informed members of the public can play a significant role in ensuring
that regulatory actions are appropriate and timely. This commenter
urged the Commission to consider enhanced public access to information
as part of a coherent policy to protect important documentary
information from loss.
Response. This rule requires that records pertaining to
decommissioning and certain records pertaining to offsite releases and
waste disposals be transferred to a licensee that takes over a previous
licensee's business and that these records be forwarded to the
cognizant regulatory body prior to license termination, thereby
protecting these records for future access. Once these records are
forwarded to the NRC, they will be available through the Freedom of
Information Act process, exclusive of any proprietary information.
5. Independent Spent Fuel Storage Installations and 10 CFR 72.30(d)
Requirements
Comment. One commenter stated that 10 CFR 72.30(d) addresses
recordkeeping requirements for
[[Page 24672]]
decommissioning for independent spent fuel storage installations and
that the NRC has proposed changes to this paragraph to address the
transfer of licensed activities. This commenter questions why 10 CFR
50.75(g), which contains the same type of recordkeeping requirements
for decommissioning for production and utilization facilities, was not
changed. The commenter believes this to be inconsistent and possibly an
inadvertent omission by the NRC.
Response. This rule only addresses materials licensees. The
Commission is currently evaluating the need for additional rulemaking
to address the broad issue of transfers of reactor licenses. Any such
rulemaking would also consider recordkeeping requirements.
Summary of Requirements of the Final Rule
The final rule requires transfer of certain records pertaining to
decommissioning, offsite releases, and waste disposal to a licensee
that takes over operation of licensed activities. These records
include: those waste disposals that would be permitted under
Secs. 20.2002 (including any burials authorized before January 28,
1981), 20.2003, 20.2004, 20.2005, and results of measurements and
calculations used to evaluate offsite releases (Sec. 20.2103(b)(4)).
The new licensee will need these records in order to perform an
adequate site characterization prior to decommissioning. Once the new
entity is granted a license and accepts these records, they become
subject to all regulations concerning termination and transfer. The
final rule also requires that these records be forwarded to the NRC
prior to license termination. In selecting records to include in this
rulemaking, the NRC focused attention on information that would be
needed by licensees to conduct decommissioning effectively and for the
NRC to evaluate offsite consequences from a licensee's operation. In
addition, for certain records of offsite releases and waste disposals,
the final rule has also been modified to apply to licensees only
authorized to possess source and byproduct material with half-lives
greater than 120 days, in an unsealed form.
Paragraph 20.2108(b) has been amended to state that there are
additional requirements for disposition of records in 10 CFR Parts 30,
40, 70, and 72. Paragraphs 30.35(g) and 40.36(f) specify records that
the Commission considers important to decommissioning. The NRC has
revised these paragraphs to require the transfer of records pertaining
to decommissioning to the new licensee. Paragraphs have been added to
Secs. 30.51, 40.61, 70.51, and 72.80 to clarify that records pertaining
to decommissioning, offsite releases, and certain records pertaining to
waste disposal be forwarded to the new licensee prior to license
transfer or re-assignment, or to the NRC prior to license termination.
Also, paragraphs have been added to Secs. 61.30(a)(3) and 61.31(c)(1)
to clarify that records required by Secs. 61.80 (e) and (f) are to be
transferred to the disposal site owner, or to the party responsible for
institutional control of the disposal site, respectively.
Finally, a new paragraph has been added to Secs. 30.36, 40.42,
70.38, and 72.54 to state that a license will not be terminated until
the NRC receives the records required by revised Secs. 30.51, 40.61,
70.51, and 72.80.
III. Agreement State Compatibility
This rulemaking will be a matter of compatibility between the NRC
and the Agreement States, thereby providing consistency of State and
Federal safety requirements. The NRC has determined that a Division 2
level of compatibility should be assigned to the changes to
Secs. 30.35, 40.36, and 61.31 because the records required by these
sections are important to assure protection of public health and
safety, and are important to ensure that facilities in Agreement States
are effectively decommissioned. Under this level of compatibility the
Agreement States will be expected to adopt recordkeeping requirements
that are as stringent as NRC's, but they will be permitted flexibility
in their requirements based on their radiation protection experience,
professional judgments, and community values.
Revisions to Secs. 30.51, 40.61, 70.51, and 72.80 that require
records to be forwarded to the new licensee whenever a license is
transferred or re-assigned will also be assigned a Division 2 level of
compatibility for the reasons cited above. Other revisions to these
sections addressing forwarding of records to the NRC prior to license
termination will be assigned a Division 3 compatibility level. Under
this level of compatibility the Agreement States will have the option
to adopt similar requirements regarding final disposition of the
records, but will not be required to adopt such requirements. While NRC
believes retention of these records will aid in the resolution of
potential safety concerns that may be identified after license
termination, it also recognizes that an Agreement State without an
equivalent requirement for record retention has the ability to resolve
potential future safety concerns. This can be achieved by conducting
radiological surveys at the formerly licensed site. Without the
records, these surveys may need to be greater in number and may be more
costly, but the absence of retained records will not preclude an
Agreement State from adequately assessing future safety concerns.
IV. Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described as a categorical exclusion in 10 CFR 51.22(c)(3)(ii),
recordkeeping requirements. Therefore, neither an environmental impact
statement nor an environmental assessment has been prepared for this
final rule.
V. 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 3150-0014, -0017, -0020, -0009, -0132, and -
0135.
The public reporting burden for this collection of information is
estimated to average 5 hours per response, including the time 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 reducing 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 at [email protected]; and to the Desk Officer,
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0014, -
0017, -0020, -0009, -0132, and -0135), 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.
VI. Regulatory Analysis
The NRC has prepared a regulatory analysis on this final rule. The
analysis examines the costs and benefits of the alternatives considered
by the NRC. The regulatory analysis is available for inspection at the
NRC Public Document Room, 2120 L Street NW. (Lower Level),
[[Page 24673]]
Washington, DC. Single copies of the analysis may be obtained from Mary
L. Thomas, Office of Nuclear Regulatory Research, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone: (301) 415-
6230; email: [email protected]
VII. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this final rule does not have a
significant economic impact on a substantial number of small entities.
The rulemaking imposes requirements on those licensees who are required
to have decommissioning funding assurance and on licensees who are
transferring their license to a new licensee. These changes require the
transfer of records pertaining to decommissioning, and certain records
of waste disposals and offsite releases, to the new licensee. In
addition, the rule requires forwarding these records to the NRC at
license termination. These records are already required to be
maintained until the license is terminated by the Commission, and are
needed to provide historical information of the impact of a previous
licensee activities on the environment and decommissioning.
VIII. 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 of OMB.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and, therefore, that a backfit analysis is
not required for this rule because these amendments do not involve any
provisions that would impose backfits as defined in 10 CFR
50.109(a)(1).
List of Subjects
10 CFR Part 20
Byproduct material, Criminal penalties, Licensed material, Nuclear
materials, Nuclear power plants and reactors, Occupational safety and
health, Packaging and containers, Radiation protection, Reporting and
recordkeeping requirements, Special nuclear material, Source material,
Waste treatment and disposal.
10 CFR Part 30
Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
10 CFR Part 61
Criminal penalties, Low-level waste, Nuclear materials, Reporting
and recordkeeping requirements, Waste treatment and disposal.
10 CFR Part 70
Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.
10 CFR Part 72
Manpower training programs, Nuclear materials, Occupational safety
and health, Reporting and recordkeeping requirements, Security
measures, Spent fuel.
For the 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 20, 30, 40, 61, 70, and 72.
PART 20--STANDARDS FOR PROTECTION AGAINST RADIATION
1. The authority citation for Part 20 continues to read as follows:
Authority: Secs. 53, 63, 65, 81, 103, 104, 161, 182, 186, 68
Stat. 930, 933, 935, 936, 937, 948, 953, 955, as amended, sec. 1701,
106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2093, 2095, 2111, 2133,
2134, 2201, 2232, 2236, 2297f), secs. 201, as amended 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
2. In Sec. 20.2108, paragraph (b) is revised to read as follows:
Sec. 20.2108 Records of waste disposal.
* * * * *
(b) The licensee shall retain the records required by paragraph (a)
of this section until the Commission terminates each pertinent license
requiring the record. Requirements for disposition of these records,
prior to license termination, are located in Secs. 30.51, 40.61, 70.51,
and 72.80 for activities licensed under these parts.
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
3. The authority citation for Part 30 continues to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
4. In Sec. 30.35, the introductory text of paragraph (g) is revised
to read as follows:
Sec. 30.35 Financial assurance and recordkeeping for decommissioning.
* * * * *
(g) Each person licensed under this part or parts 32 through 36 and
39 of this chapter shall keep records of information important to the
decommissioning of a facility in an identified location until the site
is released for unrestricted use. Before licensed activities are
transferred or assigned in accordance with Sec. 30.34(b), licensees
shall transfer all records described in this paragraph to the new
licensee. In this case, the new licensee will be responsible for
maintaining these records until the license is terminated. If records
important to the decommissioning of a facility are kept for other
purposes, reference to these records and their locations may be used.
Information the Commission considers important to decommissioning
consists of--
* * * * *
5. In Sec. 30.36, paragraph (k)(4) is added to read as follows:
Sec. 30.36 Expiration and termination of licenses and decommissioning
of sites and separate buildings or outdoor areas.
* * * * *
(k) * * *
(4) Records required by Sec. 30.51 (d) and (f) have been received.
6. In Sec. 30.51, paragraphs (d), (e), and (f) are added to read as
follows:
Sec. 30.51 Records.
* * * * *
[[Page 24674]]
(d) Prior to license termination, each licensee authorized to
possess radioactive material with a half-life greater than 120 days, in
an unsealed form, shall forward the following records to the
appropriate NRC Regional Office:
(1) Records of disposal of licensed material made under
Secs. 20.2002 (including burials authorized before January 28, 1981
1), 20.2003, 20.2004, 20.2005; and
---------------------------------------------------------------------------
\1\ A previous Sec. 20.304 permitted burial of small quantities
of licensed materials in soil before January 28, 1981, without
specific Commission authorization. See Sec. 20.304 contained in the
10 CFR, parts 0 to 199, edition revised as of January 1, 1981.
---------------------------------------------------------------------------
(2) Records required by Sec. 20.2103(b)(4).
(e) If licensed activities are transferred or assigned in
accordance with Sec. 30.34(b), each licensee authorized to possess
radioactive material, with a half-life greater than 120 days, in an
unsealed form, shall transfer the following records to the new licensee
and the new licensee will be responsible for maintaining these records
until the license is terminated:
(1) Records of disposal of licensed material made under
Secs. 20.2002 (including burials authorized before January 28, 1981
1), 20.2003, 20.2004, 20.2005; and
---------------------------------------------------------------------------
\1\ A previous Sec. 20.304 permitted burial of small quantities
of licensed materials in soil before January 28, 1981, without
specific Commission authorization. See Sec. 20.304 contained in the
10 CFR, parts 0 to 199, edition revised as of January 1, 1981.
---------------------------------------------------------------------------
(2) Records required by Sec. 20.2103(b)(4).
(f) Prior to license termination, each licensee shall forward the
records required by Sec. 30.35(g) to the appropriate NRC Regional
Office.
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
7. The authority citation for Part 40 continues to read as follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),
83, 84, Pub. L 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83
Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095,
2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L.
86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as amended, 202,
206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842,
5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 97-415, 96
Stat. 2067 (42 U.S.C. 2022).
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42
U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat.
939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68
Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
8. In Sec. 40.36, the introductory text of paragraph (f) is revised
to read as follows:
Sec. 40.36 Financial assurance and recordkeeping for decommissioning.
* * * * *
(f) Each person licensed under this part shall keep records of
information important to the decommissioning of a facility in an
identified location until the site is released for unrestricted use.
Before licensed activities are transferred or assigned in accordance
with Sec. 40.41(b) licensees shall transfer all records described in
this paragraph to the new licensee. In this case, the new licensee will
be responsible for maintaining these records until the license is
terminated. If records important to the decommissioning of a facility
are kept for other purposes, reference to these records and their
locations may be used. Information the Commission considers important
to decommissioning consists of--
* * * * *
9. In Sec. 40.42, paragraph (k)(4) is added to read as follows:
Sec. 40.42 Expiration and termination of licenses and decommissioning
of sites and separate buildings or outdoor areas.
* * * * *
(k) * * *
(4) Records required by Sec. 40.61(d) and (f) have been received.
* * * * *
10. In Sec. 40.61, paragraphs (d), (e), and (f) are added to read
as follows:
Sec. 40.61 Records.
* * * * *
(d) Prior to license termination, each licensee authorized to
possess source material, in an unsealed form, shall forward the
following records to the appropriate NRC Regional Office:
(1) Records of disposal of licensed material made under
Sec. 20.2002 (including burials authorized before January 28, 1981
1), 20.2003, 20.2004, 20.2005; and
---------------------------------------------------------------------------
\1\ A previous Sec. 20.304 permitted burial of small quantities
of licensed materials in soil before January 28, 1981, without
specific Commission authorization. See Sec. 20.304 contained in the
10 CFR, parts 0 to 199, edition revised as of January 1, 1981.
---------------------------------------------------------------------------
(2) Records required by Sec. 20.2103(b)(4).
(e) If licensed activities are transferred or assigned in
accordance with Sec. 40.41(b), each licensee authorized to possess
source material, in an unsealed form, shall transfer the following
records to the new licensee and the new licensee will be responsible
for maintaining these records until the license is terminated:
(1) Records of disposal of licensed material made under
Sec. 20.2002 (including burials authorized before January 28, 1981
1), 20.2003, 20.2004, 20.2005; and
(2) Records required by Sec. 20.2103(b)(4).
(f) Prior to license termination, each licensee shall forward the
records required by Sec. 40.36(f) to the appropriate NRC Regional
Office.
PART 61--LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE
WASTE
11. The authority citation for Part 61 continues to read as
follows:
Authority: Secs. 53, 57, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073, 2077,
2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat.
1244, 1246, (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601,
92 Stat. 2951 (42 U.S.C. 2021a and 5851) and Pub. L. 102-486, sec.
2902, 106 Stat. 3123, (42 U.S.C. 5851).
12. In Sec. 61.30, paragraph (a)(3) is revised to read as follows:
Sec. 61.30 Transfer of license.
(a) * * *
(3) That any funds for care and records required by Secs. 61.80 (e)
and (f) have been transferred to the disposal site owner;
13. In Sec. 61.31, paragraph (c)(3) is added to read as follows:
Sec. 61.31 Termination of license.
* * * * *
(c) * * *
(3) That the records required by Secs. 61.80(e) and (f) have been
sent to the party responsible for institutional control of the disposal
site and a copy has been sent to the Commission immediately prior to
license termination.
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
14. The authority citation for Part 70 continues to read as
follows:
Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended sec. 1701,
106 Stat. 2951, 2952, 2953 (42 U.S.C. 2071, 2073, 2201, 2232, 2233,
2282, 2297f); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242,
as amended, 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec.
[[Page 24675]]
10, 92 Stat. 2951 (42 U.S.C. 5851). Section 70.21(g) also issued
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also
issued under sec. 57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C.
2077). Sections 70.36 and 70.44 also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 70.61 also issued under
secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62
also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C.
2138).
15. In Sec. 70.25, the introductory text of paragraph (g) is
revised to read as follows:
Sec. 70.25 Financial assurance and recordkeeping for decommissioning.
* * * * *
(g) Each person licensed under this part shall keep records of
information important to the decommissioning of a facility in an
identified location until the site is released for unrestricted use. If
records important to the decommissioning of a facility are kept for
other purposes, reference to these records and their locations may be
used. Information the Commission considers important to decommissioning
consists of--
* * * * *
16. In Sec. 70.38, paragraph (k)(4) is added to read as follows:
Sec. 70.38 Expiration and termination of licenses and decommissioning
of sites and separate buildings or outdoor areas.
* * * * *
(k) * * *
(4) Records required by Sec. 70.51(b)(6) have been received.
17. In Sec. 70.51, footnotes 2 and 3 are re-designated as footnotes
3 and 4, paragraph (b)(6) is revised, and a new paragraph (b)(7) is
added to read as follows:
Sec. 70.51 Material balance, inventory, and records requirements.
* * * * *
(b) * * *
(6) Prior to license termination, licensees shall forward the
following records to the appropriate NRC Regional Office:
(i) Records of disposal of licensed material made under
Sec. 20.2002 (including burials authorized before January 28, 1981
2), 20.2003, 20.2004, 20.2005;
---------------------------------------------------------------------------
\2\ A previous Sec. 20.304 permitted burial of small quantities
of licensed materials in soil before January 28, 1981, without
specific Commission authorization. See Sec. 20.304 contained in the
10 CFR, parts 0 to 199, edition revised as of January 1, 1981.
---------------------------------------------------------------------------
(ii) Records required by Sec. 20.2103(b)(4); and
(iii) Records required by Sec. 70.25(g).
(7) If licensed activities are transferred or assigned in
accordance with Sec. 70.32(a)(3), the licensee shall transfer the
following records to the new licensee and the new licensee will be
responsible for maintaining these records until the license is
terminated:
(i) Records of disposal of licensed material made under
Sec. 20.2002 (including burials authorized before January 28, 1981
\2\), 20.2003, 20.2004, 20.2005;
(ii) Records required by Sec. 20.2103(b)(4); and
(iii) Records required by Sec. 70.25(g).
* * * * *
PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE
18. The authority citation for Part 72 continues to read as
follows:
Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183,
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953,
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat.
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
Pub. L. 95-601, sec. 10, 92 Stat. 2951, 106 Stat. 3123 (42 U.S.C.
5851); sec. 102 Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); Secs.
131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230,
2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C.
10151, 10152, 10153, 10155, 10157, 10161, 10168).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d),
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b),
10168(c), (d)). Section 72.46 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). Section 72.96(d) also issued under sec. 145(g), Pub.
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2244, (42 U.S.C. 10101,
10137(a), 10161(h)). Subparts K and L are also issued under sec.
133, 98 Stat. 2230 (42 U.S.C. 10153) and Sec. 218(a), 96 Stat. 2252
(42 U.S.C. 10198).
19. In Sec. 72.30, the introductory text of paragraph (d) is
revised to read as follows:
Sec. 72.30 Financial assurance and recordkeeping for decommissioning.
* * * * *
(d) Each person licensed under this part shall keep records of
information important to the decommissioning of a facility in an
identified location until the site is released for unrestricted use. If
records important to the decommissioning of a facility are kept for
other purposes, reference to these records and their locations may be
used. Information the Commission considers important to decommissioning
consists of--
* * * * *
20. In Sec. 72.54, paragraph (m)(3) is added to read as follows:
Sec. 72.54 Expiration and termination of licenses and decommissioning
of sites and separate buildings or outdoor areas.
* * * * *
(m) * * *
(3) Records required by Sec. 72.80(e) have been received.
21. In Sec. 72.80, paragraphs (e) and (f) are added to read as
follows:
Sec. 72.80 Other records and reports.
* * * * *
(e) Prior to license termination, the licensee shall forward
records required by Secs. 20.2103(b)(4) and 72.30(d) to the appropriate
NRC Regional Office.
(f) If licensed activities are transferred or assigned in
accordance with Sec. 72.44(b)(1), the licensee shall transfer the
records required by Secs. 20.2103(b)(4) and 72.30(d) to the new
licensee and the new licensee will be responsible for maintaining these
records until the license is terminated.
Dated at Rockville, Maryland, this 1st day of February 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-12166 Filed 5-15-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-12148 Airworthiness Directives; McDonnell Douglas MD-11 Series Airplane
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24686-24688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12148]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-191-AD; Amendment 39-9623; AD 96-10-16]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas MD-11 Series Airplane
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain McDonnell Douglas Model MD-11 series airplanes,
that requires inspections to detect damage of the sidewall vent box
diaphragms, and repair, if necessary. This amendment also requires the
eventual installation of stops on the vent box diaphragm, which
terminates the inspection requirements of the AD. This amendment is
prompted by reports of damage to sidewall vent box diaphragms, which
can result in non-functional diaphragms during a rapid decompression.
The actions specified by this AD are intended to prevent buckling of
the floor beams due to insufficient air flow of the cabin sidewall vent
box diaphragms during rapid decompression, and consequent reduction in
the controllability of the airplane.
DATES: Effective June 20, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 20, 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, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 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 February 21, 1996 (61 FR
6581). That action proposed to require repetitive inspections to detect
damage of the sidewall vent box assemblies. Initially, that action
proposed to permit continued flight if only a certain number of
assembleis are found to be damaged. However, once that number is
exceeded, the damaged assemblies would be required to be modified,
prior to further flight, until the remaining number of damaged
assemblies does not exceed a certain number. That amendment also
proposed to require the eventual installation of stop pads for all vent
box diaphragms and reidentification of the assemblies,
[[Page 24687]]
which, when accomplished, terminates the requirement for 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 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 123 Model MD-11 series airplanes of the
affected design in the worldwide fleet. The FAA estimates that 39
airplanes of U.S. registry will be affected by this AD.
To accomplish the required inspections will take approximately 2
work hours per airplane, per inspection, at an average labor rate of
$60 per work hour. Based on these figures, the cost impact of the
required inspections on U.S. operators is estimated to be $4,680, or
$120 per airplane, per inspection cycle.
To accomplish the requried installation and reidentification will
take a total of approximately 270 work hours per airplane. This figure
represents 3 work hours per vent box, and up to a maximum of 90 vent
boxes on an airplane. The average labor rate is $60 per work hour. The
cost of requried parts will be negligible; the parts may be fabricated
locally. Based on these figures, the cost impact of the required
installation on U.S. operators is estimated to be $631,800, or $16,200
per airplane.
The cost impact figures 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 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-10-16 McDonnell Douglas: Amendment 39-9623. Docket 95-NM-191-AD.
Applicability: Model MD-11 series airplane, as listed in
McDonnell Douglas Alert Service Bulletin MD11-25A181, dated
September 28, 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 buckling of the floor beams due to insufficient air
flow of the cabin sidewalk vent box diaphragms during rapid
decompression, and subsequent loss of airplane control capabilities,
accomplish the following:
(a) Within 90 days after the effective date of this AD, perform
an inspection to detect damage of the sidewalk vent box diaphragms,
in accordance with McDonnell Douglas Alert Service Bulletin MD11-
25A181, dated September 28, 1995. Based on the findings of the
initial inspection, or any repetitive inspection, accomplish the
requirements of paragraph (a)(1), (a)(2), or (a)(3) of this AD, as
applicable:
(1) Condition 1. If no damage is detected: Repeat the inspection
at intervals not to exceed 90 days.
(2) Condition 2. If damage is detected, but the number of
damaged sidewall vent box assemblies does not exceed the applicable
allowable number specified in Table 1 of the alert service bulletin:
Repeat the inspection at intervals not to exceed 90 days.
(3) Condition 3. If damage is detected, and the number of
damaged vent box assemblies exceeds the applicable number specified
in Table 1 of the alert service bulletin: Prior to further flight,
install stops on and re-identify as many damaged sidewall vent box
assemblies as necessary so that the total number of damaged vent box
assemblies does not exceed the applicable allowable number specified
in Table 1 of the alert service bulletin. Accomplish the
installation of the stops and reidentification of the assemblies in
accordance with the alert service bulletin. The installation of
stops on and reidentification of an assembly constitutes terminating
action for the repetitive inspections of that assembly only. All
other assemblies must continue to be inspected thereafter at
intervals not to exceed 90 days.
(b) Within 30 months after the effective date of this AD,
install stops on and reidentify all sidewalk vent box assemblies
that do not already have stops installed and have not been
reidentified in accordance with McDonnell Douglas Alert Service
Bulletin MD11-25A181, dated September 28, 1995. Accomplishment of
this action constitutes terminating action for the inspection
requirements 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, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspectors, 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 inspections and installations shall be done in
accordance with McDonnell Douglas Alert Service Bulletin MD11-
25A181, dated September 28, 1995. This incorporation by reference
was approved by
[[Page 24688]]
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, Los Angeles Aircraft Certification
Office, Transport Airplane Directorate, 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 June 20, 1996.
Issued in Renton, Washington, on May 9, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12148 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-12147 Airworthiness Directives; McDonnell Douglas Model DC-10-10, -15, and, -30 Series Airplanes and KC-10 (Military) Airplanes
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24688-24690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12147]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-108-AD; Amendment 39-9624; AD 96-10-17]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-10-10, -15,
and, -30 Series Airplanes and KC-10 (Military) 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, -15, and -30
series airplanes and KC-10A (military) airplanes, that requires
inspections to detect cracks of the upper aft mating bolt hole of the
wing pylon truss fittings, and various follow-on actions. This
amendment is prompted by reports of cracks found in the upper aft
mating bolt hole of the wing pylon truss fitting located near the
engine forward mount on Model DC-10-30 series airplanes, which were
caused by fatigue-related stress. The actions specified by this AD are
intended to prevent fatigue-related cracking, which could lead to
failure of the fitting, separation of a portion of the engine forward
mount truss from the pylon, and consequent separation of the engine
from the airplane.
DATES: Effective June 20, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 20, 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, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 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: Maureen Moreland, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification
Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone
(310) 627-5238; 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, -15, and -30 series airplanes and KC-10A (military) airplanes
was published in the Federal Register on September 27, 1995 (60 FR
49809). That action proposed to require repetitive ultrasonic or eddy
current inspections to detect cracks of the upper aft mating bolt hole
of the wing pylon truss fittings, and various follow-on actions.
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
Two commenters support the proposed rule.
Request for Extension of Compliance Time for Initial Inspection
One commenter requests that the compliance time for the initial
inspection be extended from the proposed 1,000 landings to 1,200
landings for Model DC-10-30 series airplanes. The commenter states such
a compliance time would follow the recommendations of McDonnell Douglas
DC-10 Service Bulletin 54-108, dated February 9, 1995. The commenter
also questions what data or analysis the FAA used to justify shortening
the threshold to 1,000 landings.
The FAA does not agree with the commenter's request to extend the
compliance time. The FAA points out that 1,000 landings is not the
inspection ``threshold,'' but a ``grace period'' that was established
to preclude unnecessarily grounding airplanes that have exceeded the
10,000-landing threshold or will exceed it within 1,000 landings. In
determining the appropriate ``grace period'' for this action, the FAA
not only considered the degree of urgency associated with addressing
the unsafe condition, but the amount of time necessary for operators to
accomplish the required inspection and other factors affecting the
ability of the operators to comply. In light of all these factors, the
FAA finds the 1,000 landing ``grace period'' for initiating the
required inspections to be warranted, in that it represents an
appropriate interval of time allowable for affected airplanes to
continue to operate without compromising safety.
Clarification of Requirements for Type of Inspection
One commenter points out that proposed paragraphs (a) and (b)
indicate that operators are to perform either ultrasonic or eddy
current inspections to detect the subject cracking. However, the
commenter states that the initial and repetitive eddy current
inspections are not an option if the upper aft and/or middle mating
bolt hole(s) have bushings installed from previous rework, in
accordance with McDonnell Douglas DC-10 Service Bulletin 54-108, dated
February 9, 1995.
The FAA finds that clarification of this point is necessary. As
paragraphs (a) and (b) of the proposed rule were worded, operators
could incorrectly interpret the requirements as meaning that they have
a choice between performing an ultrasonic inspection or an eddy current
inspection for all configurations of the bolt holes. However, the
intent of those requirements was to require operators to perform either
an ultrasonic inspection or an eddy current inspection, as appropriate,
depending upon the configuration of the subject area and as specified
in the service bulletin. Therefore, the commenter is correct in noting
that, for airplanes on which the upper aft and middle mating bolt holes
have bushings installed from previous rework (Condition 2), operators
must accomplish the inspection by using only the ultrasonic method. In
light of this, the FAA has revised the wording of paragraphs (a) and
(b) of the final rule to clarify this.
Clarification of Requirements for Repetitive Inspections
The same commenter asks if the repetitive ultrasonic inspection
intervals
[[Page 24689]]
are the same for bolt hole(s) that have bushings installed from
previous rework as well as for bolt hole(s) that do not have bushings
installed.
The FAA finds that clarification of this point is necessary. The
FAA points out that, for certain Model DC-10-15, and -30 series
airplanes, and KC-10A (military) airplanes, Service Bulletin 54-108
recommends that the compliance time for the repetitive ultrasonic
inspections be accomplished at intervals of 4,000 landings if the bolts
holes have bushings installed, and at intervals of 5,000 landings if
the bolt holes do not have bushings installed. However, for those
airplanes, paragraph (b)(1)(i) of the final rule differs from the
recommendations of the service bulletin in that it requires a
compliance time interval of 5,000 landings, whether or not the bolt
holes have bushings installed. In developing an appropriate compliance
time for that action, the FAA, along with McDonnell Douglas, reviewed
the damage tolerance analysis of the bolt hole, and determined that the
compliance time of 5,000 landings will not adversely affect safety.
McDonnell Douglas is planning to revise Service Bulletin 54-108 in the
future to be consistent with this AD
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 376 McDonnell Douglas Model DC-10-10, -15,
and -30 series airplanes and KC-10 (military) airplanes of the affected
design in the worldwide fleet. The FAA estimates that 228 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 AD on U.S. operators is estimated
to be $68,400, or $300 per airplane, per inspection.
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 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-10-17 McDonnell Douglass: Amendment 39-9624, Docket 95-NM-108-
AD.
Applicability: Model DC-10-10, -15, and -30 series airplanes and
KC-10A (military) airplanes; as listed in McDonnell Douglas DC-10
Service Bulletin 54-108, dated February 9, 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 modficiation, 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: Requried as indicated, unless accomplished
previously.
To prevent fatigue-related cracking, which could lead to failure
of the pylon truss fitting, separation of a portion of the engine
from the airplane, accomplish the following:
(a) For Model DC-10-15, and -30 series airplanes and KC-10A
(military) airplanes: Prior to the accumulation of 10,000 total
landings on the pylon truss fitting or within 1,000 landings on the
pylon truss fitting after the effective date of this AD, whichever
occurs later, perform either an ultrasonic inspection or an eddy
current inspection, as applicable, to detect cracks of the upper aft
mating bolt hole of the wing pylon truss fittings, in accordance
with McDonnell Douglas DC-10 Service Bulletin 54-108, dated February
9, 1995.
(1) If no cracks are detected, repeat the inspections in
accordance with paragraph (a)(1)(i) or (a)(1)(ii), as applicable:
(i) If inspecting using ultrasonic techniques repeat inspection
at intervals not to exceed 5,000 landings.
(ii) If inspection using eddy current techniques, repeat
inspection at intervals not to exceed 8,000 landings.
(2) Accomplishment of the actions specified in paragraphs
(a)(2)(i), (a)(2)(ii), and (a)(2)(iii) constitutes terminating
action for the repetitive inspections required by paragraph (a)(1)
of this AD:
(i) Accomplish the preventative modification in accordance with
Condition 1 (bushing not installed), Option III. or Condition 2
(bushing installed), Option II, of the service bulletin, as
applicable. And
(ii) Prior to the accumulation of 10,000 total landings on the
pylon truss fitting following accomplishment of the modification,
perform an ultrasonic inspection to detect cracks of the upper aft
mating bolt hole of the wing pylon truss fittings, in accordance
with the service bulletin. And
(iii) Thereafter, repeat the ultrasonic inspection at intervals
not to exceed 5,000 landings on the pylon truss fitting.
(3) If any crack is found in the pylon truss fitting during any
inspection required by this paragraph, prior to further flight,
repair it in accordance with the service bulletin. At the times
specified in the service bulletin, perform follow-on actions in
accordance with the service bulletin. In all cases, where the
service bulletin indicates ``contact Douglas for disposition,'' the
repair must be accomplished in accordance with a method approved by
the Manager, Los Angeles Aircraft Certification Office (ACO), FAA,
Transport Airplane Directorate.
(b) For Model DC-10-10 series airplanes: Prior to the
accumulation of 17,000 total landings on the pylon truss fitting or
within 1,500 landings on the pylon truss fitting after
[[Page 24690]]
the effective date of this AD, whichever occurs later, perform
either an ultrasonic inspection or an eddy current inspection, as
applicable, to detect cracks of the upper aft mating bolt hole of
the wing pylon truss fittings, in accordance with McDonnell Douglas
DC-10 Service Bulletin 54-108, dated February 9, 1995.
(1) If no cracks are detected, repeat the inspections in
accordance with paragraph (b)(1)(i) or (b)(1)(ii), as applicable:
(i) If inspecting using ultrasonic techniques, repeat the
inspection at intervals not to exceed 10,000 landings.
(ii) If inspecting using eddy current techniques, repeat the
inspection at intervals not to exceed 15,000 landings.
(2) Accomplishment of the actions specified in paragraphs
(b)(2)(i), (b)(2)(ii), and (b)(2)(iii) constitutes terminating
action for the repetitive inspections required by paragraph (b)(1)
of this AD:
(i) Accomplish the preventative modification in accordance with
Condition 1 (bushing not installed), Option III, or Condition 2
(bushing installed), Option II, of the service bulletin, as
applicable. And
(ii) Prior to the accumulation of 18,000 total landings on the
pylon truss fitting following accomplishment of the modification,
perform an ultrasonic inspection to detect cracks of the upper aft
mating bolt hole of the wing pylon truss fittings, in accordance
with the service bulletin. And
(iii) Thereafter, repeat the ultrasonic inspection at intervals
not to exceed 10,000 landings on the pylon truss fitting.
(3) If any crack is found in the pylon truss fitting during any
inspection required by this paragraph, prior to further flight,
repair it in accordance with the service bulletin. At the times
specified in the service bulletin, perform follow-on actions in
accordance with the service bulletin. In all cases, where the
service bulletin indicates ``contact Douglas for disposition,'' the
repair must be accomplished in accordance with a method approved by
the Manager, Los Angeles Aircraft Certification Office (ACO), FAA,
Transport Airplane Directorate.
(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 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.
(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 DC-10 Service Bulletin 54-108, dated February 9, 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, Los Angeles Aircraft Certification Office, Transport Airplane
Directorate, 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 June 20, 1996.
Issued in Renton, Washington, on May 9, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12147 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-12146 Airworthiness Directives; Airbus Model A320-111, -211, -212, and -231 Series Airplanes
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24690-24691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12146]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-198-AD; Amendment 39-9625; AD 96-10-18]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A320-111, -211, -212, 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, -212, and -231
series airplanes, that requires removing the existing forward pintle
nut and cross bolt on the main landing gear (MLG), and installing a new
nylon spacer and cross bolt and nut. This amendment is prompted by
results of fatigue testing which revealed that the cross bolt and nut
in the forward pintle pin of the MLG were damaged due to fatigue
cracking. The actions specified by this AD are intended to prevent such
fatigue cracking, which could result in collapse of the MLG.
DATES: Effective June 20, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 20, 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 series
airplanes was published in the Federal Register on March 6, 1996 (61 FR
8896). That action proposed to require removing the existing forward
pintle nut and cross bolt on the MLG; and installing a new nylon spacer
and cross bolt and nut.
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
The FAA estimates that 90 Airbus Model A320-111, -211, -212, and -
231 series 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.
Required parts will be supplied by the parts manufacturer at no cost to
the operators. Based on these figures, the cost impact of the AD on
U.S. operators is estimated to be $5,400, 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
[[Page 24691]]
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 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-10-18 Airbus: Amendment 39-9625. Docket 95-NM-198-AD.
Applicability: Model A320-111, -211, -212, and -231 series
airplanes, on which Airbus Modification 23573 (Airbus Service
Bulletin A320-32-1119, Revision 1, dated June 13, 1994), 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 collapse of the main landing gear (MLG) during
landing, due to failure of the forward pintle pin cross bolt,
accomplish the following:
(a) Remove the existing forward pintle nut and cross bolt; and
install a new nylon spacer and post-mod cross bolt and nut of the
MLG, in accordance with Airbus Service Bulletin A320-32-1119,
Revision 1, dated June 13, 1994, at the later of the times specified
in paragraphs (a)(1) and (a)(2) of this AD.
(1) Prior to the accumulation of 20,000 total landings, or at
the next main landing gear overhaul, whichever occurs first.
(2) Within 500 landings after the effective date of this AD.
Note 2: The Airbus service bulletin references Dowty Aerospace
Service Bulletin 200-32-194, Revision 1, dated October 4, 1993, as
an additional source of service information for accomplishment of
these procedures.
(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 removal and installation shall be done in accordance
with Airbus Service Bulletin A320-32-1119, Revision 1, dated June
13, 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 June 20, 1996.
Issued in Renton, Washington, on May 9, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12146 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12141 Airworthiness Directives; the New Piper Aircraft, Inc. (Formerly Piper Aircraft Corporation) Models PA31T, PA31T1, PA31T2, and PA31T3 Airplanes
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24691-24693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12141]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 90-CE-61-AD; Amendment 39-9620; AD 96-10-13]
RIN 2120-AA64
Airworthiness Directives; the New Piper Aircraft, Inc. (Formerly
Piper Aircraft Corporation) Models PA31T, PA31T1, PA31T2, and PA31T3
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes Airworthiness Directive (AD) 84-08-
06, which currently requires the following on certain The New Piper
Aircraft, Inc. (Piper) Models PA31T, PA31T1, PA31T2, and PA31T3
airplanes: repetitively inspecting the fuselage station (FS) 332
bulkhead for cracks, and reinforcing or replacing the FS 332 bulkhead
if cracks are found. The Federal Aviation Administration's policy on
aging commuter-class aircraft is to eliminate or, in certain instances,
reduce the number of certain repetitive short-interval inspections when
improved parts or modifications are available. This action retains the
current repetitive inspections contained in AD 84-08-06, and requires
incorporating a stabilizer forward spar attachment bulkhead
reinforcement kit or installing a reinforced bulkhead assembly as
terminating action for the repetitive inspection requirement. The
actions specified in this AD are intended to prevent structural failure
of the horizontal stabilizer and the aft fuselage attachment caused by
cracks in the FS 332 bulkhead, which, if not detected and corrected,
could result in loss of control of the airplane.
DATES: Effective June 27, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 27, 1996.
ADDRESSES: Service information that applies to this AD may be obtained
from The New Piper Aircraft, Inc., Customer Services, 2926 Piper Drive,
Vero Beach, Florida 32960. This information may also be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 90-CE-61-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106; or at the Office
of the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Christina Marsh, Aerospace Engineer,
[[Page 24692]]
FAA, Atlanta Aircraft Certification Office, Campus Building, 1701
Columbia Avenue, suite 2-160, College Park, Georgia 30337-2748;
telephone (404) 305-7362; facsimile (404) 305-7348.
SUPPLEMENTARY INFORMATION:
Events Leading to the AD
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to include an AD that would apply to Piper Models PA31T,
PA31T1, PA31T2, and PA31T3 airplanes was published in the Federal
Register on January 19, 1996 (61 FR 1303). The action proposed to
supersede AD 84-08-06 with a new AD that would (1) retain the
requirement of repetitively inspecting the FS 332 bulkhead for cracks,
reinforcing the FS 332 bulkhead (Piper Kit 764-983) if any crack is
found that does not exceed certain limits, and replacing the bulkhead
assembly with a reinforced bulkhead assembly (part number 45583-16 or
45583-17) if any crack is found that exceeds certain limits; and (2)
require incorporating a stabilizer forward spar attachment bulkhead
reinforcement (Piper Kit 764-983) or a reinforced bulkhead assembly
(part number 45583-16 or 45583-17) as terminating action for the
repetitive inspection requirement. Accomplishment of the proposed
inspections would be in accordance with Piper Service Bulletin No.
773A, dated May 3, 1984. The incorporation of Piper Kit 764-983 would
be accomplished in accordance with the instructions to this kit
(Revised June 18, 1990), and the reinforced bulkhead installations
would be accomplished in accordance with the applicable maintenance
manual.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposed rule or the FAA's determination of the cost to the public.
After careful review of all available information related to the
subject presented above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
minor editorial corrections. The FAA has determined that these minor
corrections will not change the meaning of the AD and will not add any
additional burden upon the public than was already proposed.
Cost Impact
The FAA estimates that 736 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 60 workhours per
airplane to accomplish the required replacement, and that the average
labor rate is approximately $60 an hour. Parts cost approximately $782
per airplane. Based on these figures, the total cost impact of this AD
on U.S. operators is estimated to be $3,225,152 or $4,382 per airplane.
This figure is based on the assumption that no affected airplane owner/
operator has accomplished the required replacement.
Piper has informed the FAA that parts have been distributed to
enough owners/operators to equip 348 of the affected airplanes.
Assuming that each set of parts has been installed on an affected
airplane, the cost impact of this AD upon U.S. owners operators of the
affected airplanes is reduced by $1,524,936 from $3,225,152 to
$1,700,216.
The FAA's Aging Commuter Class Aircraft Policy
This AD is part of the FAA's aging commuter class airplane policy,
which briefly states that, when a modification exists that could
eliminate or reduce the number of required critical inspections, the
modification should be incorporated.
The intent of the FAA's aging commuter airplane program is to
ensure safe operation of commuter-class airplanes that are in
commercial service without adversely impacting private operators. The
FAA believes that a large number of the remaining 388 affected
airplanes (736 affected airplanes--348 sets of parts distributed) that
will be affected by the required modification AD are operated in
various types of air transportation. This includes scheduled passenger
service, air cargo, and air taxi.
This AD allows 600 hours time-in-service (TIS) after the effective
date of this AD before mandatory accomplishment of the design
modification. The average utilization of the fleet for those airplanes
in air transportation is between 25 to 40 hours TIS per week. Based on
these figures, operators of commuter-class airplanes involved in
commercial operation will have to accomplish the required modification
within four to six months after this AD becomes effective. For private
owners, who typically operate between 100 to 200 hours TIS per year,
this will allow three to six years before the required modification
will be mandatory.
The FAA established the 600 hours TIS replacement compliance time
based on its engineering evaluation of the problem. Among the issues
examined in this engineering evaluation were analysis of service
difficulty reports, the difficulty level of the inspection, and how
critical the situation would be if cracks occurred in the subject area
despite accomplishment of the repetitive inspections.
Usually, the FAA establishes the mandatory design modification
compliance time on AD's affecting aging commuter-class airplanes upon
the accumulation of a certain number of hours TIS on the airplane. For
this action, the FAA is mandating the modification for all operators
``within the next 600 hours TIS after the effective date of this AD.''
The total TIS levels of the airplane fleet vary from under 1,000 hours
TIS to over 5,000 hours TIS, and annual accumulation rates vary from 50
hours TIS to over 1,000 hours TIS. Establishing a long-term set
compliance time of hours TIS accumulated on Piper Models PA31T, PA31T1,
PA31T2, and PA31T3 airplanes (such as 5,000 hours TIS) imposes an undue
burden on the manufacturer of having to maintain a supply of
replacement parts for the entire fleet when many airplanes in the fleet
may never reach this compliance time.
Instead, the FAA believes that Piper should maintain parts for
several years; in this case about six years to allow low-usage
airplanes time to accumulate the 600 hours after the effective date of
the AD. The FAA has determined that the compliance time of this rule
provides the level of safety required for commuter air service while
still minimizing the impact on the private airplane owners of Piper
Models PA31T, PA31T1, PA31T2, and PA31T3 airplanes.
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 copy of the final evaluation prepared for this
action is
[[Page 24693]]
contained in the Rules Docket. A copy of it may be obtained by
contacting 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 removing Airworthiness Directive
(AD) 84-08-06, Amendment 39-4851, and by adding a new AD to read as
follows:
96-10-13 The New Piper Aircraft, Inc. (formerly Piper Aircraft
Corporation): Amendment 39-9620; Docket No. 90-CE-61-AD. Supersedes
AD 84-08-06, Amendment 39-4851.
Applicability: The following model and serial number airplanes,
certificated in any category, that do not have either Piper Kit 764-
983 (stabilizer forward spar attachment bulkhead reinforcement)
incorporated at Fuselage Station (FS) 332 or have a part number (P/
N) 45583-16 or P/N 45583-17 bulkhead assembly installed:
------------------------------------------------------------------------
Models Serial No.
------------------------------------------------------------------------
PA31T.............................. 31T-7400002 through 31T-8120104.
PA31T1............................. 31T-7804001 through 31T-8104101,
31T-8304003, and 31T-1104004
through 31T-1104007.
PA31T2............................. 31T-8166001 through 31T-8166032,
31T-8166034 through 31T-8166065,
31T-8166067 through 31T-8166071,
and 31T-8166073 through 31T-
8166075.
PA31T3............................. 31T-8275001, 31T-8275003 through
31T-8275012, 31T-8275014 through
31T-8275017, 31T-8275025, and 31T-
8375001 through 31T-8375005.
------------------------------------------------------------------------
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 (h) 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 in the body of this AD, unless
already accomplished.
To prevent structural failure of the horizontal stabilizer and
the aft fuselage attachment caused by cracks in the FS 332 bulkhead,
which, if not detected and corrected, could result in loss of
control of the airplane, accomplish the following:
(a) Within the next 200 hours time-in-service (TIS) after the
effective date of this AD, unless already accomplished (compliance
with AD 84-08-06), and thereafter at intervals not to exceed 200
hours TIS until the modification required by paragraph (c), (d), or
(e) of this AD is incorporated, inspect (using dye penetrant
methods) the FS 332 bulkhead for cracks. Accomplish the inspections
in accordance with the INSTRUCTIONS section of Piper Service
Bulletin (SB) No. 773A, dated May 3, 1984.
(b) The initial dye penetrant inspection type must be utilized
for all future repetitive inspections. Dye penetrant inspection
types consist of Type I: fluorescent; Type II: non-fluorescent or
visible dye; and Type III: dual sensitivity.
(c) If cracks are found during any of the inspections required
in paragraph (a) of this AD and no crack exceeds the limitations
specified in Piper SB No. 773A, dated May 3, 1984, prior to further
flight, repair the cracks in accordance with Piper SB No. 773A,
dated May 3, 1984, and reinforce the FS 332 bulkhead by
incorporating Piper Kit 764-983 in accordance with the instructions
to Piper Kit 764-983, Revised June 18, 1990.
(d) If cracks are found during any of the inspections required
in paragraph (a) of this AD and any crack exceeds the limitations
specified in Piper SB No. 773A, dated May 3, 1984, prior to further
flight, replace the bulkhead assembly with a reinforced bulkhead
assembly, P/N 45583-16 or P/N 45583-17. Accomplish this replacement
in accordance with the applicable maintenance manual.
(e) Upon the accomplishment of the third repetitive inspection
required by this AD (600 hours TIS after the effective date of this
AD), unless already accomplished as required by paragraph (c) or (d)
of this AD, accomplish one of the following, as applicable:
(1) If cracks are found and no crack exceeds the limitations
specified in Piper SB No. 773A, dated May 3, 1984, repair the cracks
in accordance with Piper SB No. 773A, dated May 3, 1984, and
reinforce the FS 332 bulkhead by incorporating Piper Kit 764-983 in
accordance with the instructions to Piper Kit 764-983, Revised June
18, 1990;
(2) If cracks are found and any crack exceeds the limitations
specified in Piper SB No. 773A, dated May 3, 1984, replace the
bulkhead assembly with a reinforced bulkhead assembly, P/N 45583-16
or P/N 45583-17, in accordance with the applicable maintenance
manual; or
(3) If no cracks are found, either reinforce the FS 332 bulkhead
by incorporating Piper Kit 764-983 in accordance with the
instructions to Piper Kit 764-983, Revised June 18, 1990; or replace
the bulkhead assembly with a reinforced bulkhead assembly, P/N
45583-16 or P/N 45583-17, in accordance with the applicable
maintenance manual.
(f) Incorporating Piper Kit 764-983 or installing reinforced
bulkhead assembly, P/N 45583-16 or P/N 45583-17, as required by
paragraphs (c) and (d) or (e) of this AD is considered terminating
action for the repetitive inspection requirement of this AD.
(g) 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.
(h) An alternative method of compliance or adjustment of the
compliance time that provides an equivalent level of safety may be
approved by the Manager, Atlanta Aircraft Certification Office
(ACO), Campus Building, 1701 Columbia Avenue, suite 2-160, College
Park, Georgia 30337-2748. The request shall be forwarded through an
appropriate FAA Maintenance Inspector, who may add comments and then
send it to the Manager, Atlanta ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
Note 3: Alternative methods of compliance approved in accordance
with AD 84-08-06 (superseded by this action) are not considered
approved as alternative methods of compliance with this AD.
(i) The inspections and possible repair required by this AD
shall be done in accordance with Piper Service Bulletin No. 773A,
dated May 3, 1984. The reinforcement required by this AD shall be
done in accordance with the instructions to Piper Kit 764-983,
Revised June 18, 1990. 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 The New Piper
Aircraft, Inc., 2926 Piper Drive, Vero Beach, Florida 32960. Copies
may be inspected at the FAA, Central Region, Office of the Assistant
Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri,
or at the Office of the Federal Register, 800 North Capitol Street
NW., suite 700, Washington, DC.
(j) This amendment (39-9620) supersedes AD 84-08-06, Amendment
39-4851.
(k) This amendment (39-9620) becomes effective on June 27, 1996.
Issued in Kansas City, Missouri, on May 8, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12141 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-12137 Airworthiness Directives; Aviat Aircraft, Inc. Models S-1S, S-1T, S-2, S-2A, S-2S, and S-2B Airplanes (Formerly Known as Pitts Models S- 1S, S-1T, S-2, S-2A, S-2S, and S-2B Airplanes)
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24684-24686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12137]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-20-AD; Amendment 39-9619; AD 96-10-12]
RIN 2120-AA64
Airworthiness Directives; Aviat Aircraft, Inc. Models S-1S, S-1T,
S-2, S-2A, S-2S, and S-2B Airplanes (Formerly Known as Pitts Models S-
1S, S-1T, S-2, S-2A, S-2S, and S-2B Airplanes)
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to Aviat Aircraft, Inc. (Aviat) Models S-1S, S-1T, S-2, S-2A,
S-2S, and S-2B airplanes that are equipped with a flight control stick
with a wall thickness of .035 inch. This action requires repetitively
inspecting the flight control stick for cracks, and replacing any
cracked flight control stick with one with a wall thickness of .058
inch. An incident on an Aviat Model S-2A airplane where the flight
control stick fractured in flight prompted this action. The actions
specified by this AD are intended to prevent the inability to maneuver
the airplane because of a cracked flight control stick, which, if not
detected and corrected, could result in loss of control of the
airplane.
DATES: Effective June 7, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 7, 1996.
Comments for inclusion in the Rules Docket must be received on or
before July 19, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket 96-CE-20-AD, Room 1558, 601 E. 12th
Street, Kansas City, Missouri 64106.
Service information that applies to this AD may be obtained from
Aviat Aircraft, Inc., The Airport-Box 1240, South Washington Street,
Afton, Wyoming 83110. This information may also be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-20-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106; or
[[Page 24685]]
at the Office of the Federal Register, 800 North Capitol Street NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr. Roger Caldwell, Aerospace
Engineer, FAA, Denver Aircraft Certification Office, 5440 Roslyn
Street, suite 133, Denver, Colorado 80216; telephone (303) 286-5683;
facsimile (303) 286-5689.
SUPPLEMENTARY INFORMATION:
Events Leading to This Action
The FAA has received a report of the flight control stick
fracturing in flight on an Aviat Model S-2A airplane. Analysis of the
fractured flight control stick revealed fatigue cracking at the upper
weld above the pivot bearing. The flight control stick in the
referenced incident had a wall thickness of .035-inch. If not detected
and corrected, a cracked flight control stick could result in the
inability to maneuver the airplane with subsequent loss of control of
the airplane.
Aviat has issued Service Bulletin (SB) No. 23, dated March 29,
1996, which specifies procedures for (1) Inspecting, using dye
penetrant methods, the .035-inch wall thickness flight control stick;
and (2) installing a flight control stick with a wall thickness of .058
inch.
The affected airplane had accumulated 2,015 hours time-in-service
(TIS) when the incident occurred. The FAA has determined that cracking
in this area can develop after 1,000 hours TIS accumulated on a .035-
inch wall thickness flight control stick. All Model S-2A airplanes and
some Model S-2S airplanes were equipped with a .035-inch wall thickness
flight control stick at manufacture. Models S-1S, S-1T, S-2, S-2B and
certain Model S-2S airplanes were manufactured with control sticks with
a wall thickness greater than .035 inch, but could have .035-inch
flight control sticks installed through FAA-approved field
modification.
After examining the circumstances and reviewing all available
information related to the incident described above, the FAA has
determined that (1) flight control sticks with a wall thickness of .035
inch should be repetitively inspected for cracking after 1,000 hours
TIS; and (2) AD action should be taken to prevent the inability to
maneuver the airplane because of a cracked flight control stick, which,
if not detected and corrected, could result in loss of control of the
airplane.
Explanation of the Provisions of the AD
Since an unsafe condition has been identified that is likely to
exist or develop in other Aviat S-1S, S-1T, S-2, S-2A, S-2S, and S-2B
airplanes of the same type design that are equipped with a .035-inch
wall thickness flight control stick, this AD requires repetitively
inspecting the affected flight control stick for cracks, and replacing
any cracked flight control stick with one with a wall thickness of .058
inch. This action also allows the option of installing a .058-inch wall
thickness flight control stick as terminating action for the repetitive
inspection requirement if cracks were not found. Accomplishment of the
required actions are in accordance with Aviat SB No. 23, dated March
29, 1996.
Since a situation exists (possible inability to maneuver the
airplane with subsequent loss of control of the airplane) that requires
the immediate adoption of this regulation, it is found that notice and
opportunity for public prior 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 immediate flight safety and, thus, was not
preceded by notice and opportunity to 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 above. All communications
received on or before the closing date for comments will be considered,
and this rule may be amended in light of the comments received. Factual
information that supports the commenter's ideas and suggestions is
extremely helpful in evaluating the effectiveness of the AD action and
determining whether additional rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-CE-20-AD.'' The postcard will be date stamped and
returned to the commenter.
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.
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 (otherwise, an evaluation is
not required). A copy of it, if filed, may be obtained from the Rules
Docket.
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 a new airworthiness directive
(AD) to read as follows:
96-10-12 Aviat Aircraft, Inc.: Amendment 39-9619; Docket No. 96-CE-
20-AD.
Applicability: Models S-1S, S-1T, S-2, S-2A, S-2S, and S-2B
airplanes (formerly known as Pitts Models S-1S, S-1T, S-2, S-2A, S-
2S, and S-2B airplanes), all serial numbers, certificated in any
category, that are
[[Page 24686]]
equipped with a flight control stick with a wall thickness of .035
inch.
Note 1: All Model S-2A airplanes and some Model S-2S airplanes
were equipped with a .035-inch wall thickness flight control stick
at manufacture. Models S-1S, S-1T, S-2, S-2B and certain Model S-2S
airplanes were manufactured with control sticks with a wall
thickness greater than .035 inch, but could have .035-inch flight
control sticks installed through FAA-approved field modification.
Note 2: 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 (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 initially upon accumulating 1,000 hours
time-in-service (TIS) or within the next 25 hours TIS after the
effective date of this AD, whichever occurs later, unless already
accomplished, and thereafter as indicated in the body of this AD.
To prevent the inability to maneuver the airplane because of a
cracked control stick, which, if not detected and corrected, could
result in loss of control of the airplane, accomplish the following:
(a) Inspect, using dye penetrant methods, the .035-inch wall
thickness flight control stick for cracking in accordance with the
ACCOMPLISHMENT INSTRUCTIONS section of Aviat Service Bulletin (SB)
No. 23, dated March 29, 1996.
Note 3: Aviat SB No. 23, dated March 29, 1996, only references
the Model S-2A airplanes. The procedures included in this service
bulletin should be utilized for all of the airplanes affected by
this AD.
(1) If cracking is found, prior to further flight, replace the
.035-inch wall thickness flight control stick with one with a .058
inch wall thickness in accordance with the ACCOMPLISHMENT
INSTRUCTIONS section of Aviat SB No. 23, dated March 29, 1996.
(2) If no cracks are found, reinspect at intervals not to exceed
50 hours TIS. If cracking is found during any repetitive inspection,
prior to further flight, accomplish the replacement specified in
paragraph (a)(1) of this AD.
(b) Replacing the .035-inch wall thickness flight control stick
with one with a .058-inch wall thickness in accordance with the
ACCOMPLISHMENT INSTRUCTIONS section of Aviat SB No. 23, dated March
29, 1996, is considered terminating action for the repetitive
inspection requirement of this AD. This replacement may be
accomplished at any time, and must be accomplished prior to further
flight if cracking is found as required by paragraph (a)(1) of this
AD.
(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) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety may be approved by the Manager, Denver Aircraft
Certification Office, 5440 Roslyn Street, suite 133, Denver,
Colorado 80216. The request shall be forwarded through an
appropriate FAA Maintenance Inspector, who may add comments and then
send it to the Manager, Denver ACO.
Note 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Denver ACO.
(e) The inspection and replacement (if necessary) required by
this AD shall be done in accordance with Aviat Service Bulletin No.
23, dated March 29, 1996. This incorporation by reference was
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from Aviat
Aircraft, Inc., The Airport-Box 1240, South Washington Street,
Afton, Wyoming 83110. Copies may be inspected at the FAA, Central
Region, Office of the Assistant Chief Counsel, Room 1558, 601 E.
12th Street, Kansas City, Missouri, or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment (39-9619) becomes effective on June 7, 1996.
Issued in Kansas City, Missouri, on May 8, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12137 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12020 Airworthiness Directives; McDonnell Douglas Model DC-9 and DC-9- 80 Series Airplanes, Model MD-88 Airplanes, and C-9 (Military) Series Airplanes
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24675-24684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12020]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94-NM-92-AD; Amendment 39-9618; AD 96-10-11]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-9 and DC-9-
80 Series Airplanes, Model MD-88 Airplanes, and C-9 (Military) Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to McDonnell Douglas Model DC-9 and DC-9-80 series
airplanes, Model MD-88 airplanes, and C-9 (military) series airplanes,
that currently requires certain inspections and structural
modifications. This
[[Page 24676]]
amendment requires additional inspections and structural modifications.
This amendment is prompted by an evaluation conducted by the
Airworthiness Assurance Working Group, which identified additional
inspections and structural modifications for mandatory action. The
actions specified by this AD are intended to prevent degradation in the
structural capabilities of the affected airplanes.
DATES: Effective June 20, 1996.
The incorporation by reference of ``DC-9/MD-80 aging Aircraft
Service Action Requirements Document,'' McDonnell Douglas Report No.
MDC K1572, Revision B, dated January 15, 1993, as listed in the
regulations, is approved by the Director of the Federal Register as of
June 20, 1996.
The incorporation by reference of ``DC-9/MD-80 Aging Aircraft
Service Action Requirements Document,'' McDonnell Douglas Report No.
MDC K1572, Revision A, dated June 1, 1990, as listed in the
regulations, was approved previously by the Director of the Federal
Register as of September 24, 1990 (55 FR 34704, August 24, 1990).
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 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: David Y. J. Hsu, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Transport Airplane Directorate, Los
Angeles Aircraft Certification Office, 3960 Paramount Boulevard,
Lakewood, California 90712-4137; telephone (310) 627-5323; fax (310)
627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) was published in the Federal
Register on November 10, 1994 (59 FR 56011). The action proposed to
supersede AD 90-18-03, amendment 39-6701 (55 FR 34704, August 24,
1990), which is applicable to McDonnell Douglas Model DC-9 and DC-9-80
series airplanes, and Model MD-88 airplanes, and C-9 (military) series
airplanes. That action proposed to require certain additional
structural modifications and 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
Several commenters support the proposed rule.
Request for FAA to Review Future Revisions of the Service Action
Requirements Document (SARD)
One commenter requests that the FAA review all subsequent revisions
of service bulletins that are referenced in McDonnell Douglas Report
No. MDC K1572, ``DC-9/MD-80 Aging Aircraft Service Action Requirements
Document,'' Revision B, dated January 15, 1993 (hereafter referred to
as ``SARD, Revision B''), to determine acceptability for compliance
with the requirements of the proposal. The FAA concurs. Whenever the
FAA reviews and approves a service document, that document will
indicate that it has been approved by the FAA, and that if is
considered an acceptable alternative method of compliance for any
existing AD's. For example, two sources of service information
referenced in the final rule bear such a statement. (See page ii,
``Alternative Means of Compliance,'' of SARD, Revision B; and page 22,
paragraph 1.E. ``Approval,'' of McDonnell Douglas DC-9 Service Bulletin
53-230, Revision 1, dated January 12, 1993.)
Request to Permit Operators to Join in FAA's Review of Future Revisions
to the SARD
The same commenter also requests that the FAA, as part of the
review process, obtain input from affected operators prior to approving
any McDonnell Douglas service bulletin. The commenter states that this
would reduce the number of errors in service bulletins, which would
eliminate the need for revisions of service bulletins to correct any
errors in them.
The FAA does not concur. While the FAA recognizes the value of
operators' review of service bulletins, it considers their
participation to be more timely and appropriate during the development
of the service bulletin by the manufacturer, rather than after it has
been submitted to the FAA for approval. After the FAA has identified an
unsafe condition, the FAA relies upon the manufacturer to provide the
method to correct that unsafe condition. When that method of correction
of the unsafe condition results in the issuance of a service bulletin,
the FAA must review and approve that service bulletin based upon
whether that service bulletin positively addresses the identified
unsafe condition and whether that method of correction meets the
airworthiness requirements for the type design of the affected
aircraft. Further, operators may not be able to provide in- depth
engineering analysis, such as that performed by the FAA, since type
design data are proprietary and may not be available to all operators.
However, the Air Transport Association (ATA) of America has in
place a system whereby member operators are afforded the opportunity to
provide input to airworthiness concerns. The FAA encourages operators
to take advantage of this ATA system to effect changes to
manufacturer's service bulletins. Additionally, operators have the
option of contacting the manufacturer directly to resolve such
difficulties.
Request that Manufacturer Provide Alternative Rework Drawings to
Operators
The same commenter requests that, when an earlier version of a
rework drawing is referenced in any rulemaking action, the FAA ensure
that the manufacturer provide operators with the most recent revision
of that rework drawing if it has been approved by the FAA as an
alternative method of compliance for the requirements of that
rulemaking action.
The FAA does not concur. Section 21.99(b), of the Federal Aviation
Regulations [14 CFR 21.99(b)], ``Required design changes,'' requires
that the manufacturer make information on design changes that
contribute to the safety of the product available to all operators of
the affected product. However, the revised rework drawings may not
necessarily contribute to the safety of the product. The FAA encourages
operators to contact the manufacturer directly to obtain revisions of
rework drawings. However, in the event any operator finds it impossible
to accomplish the requirements of this AD due to the inability to
obtain necessary rework drawings, those operators are reminded of the
provisions of paragraph (h) of the final rule, which permit any
operator to apply for approval of an alternative method of compliance
with the requirements of the final rule.
[[Page 24677]]
Request for Removal of Certain Service Bulletins from Requirements
of the Rule
The same commenter requests that the proposed rule be revised by
removing McDonnell Douglas DC-9 Service Bulletins 53-174 and 53-147
from the requirements. These service bulletins are referenced in SARD,
Revision B, which is referenced in the proposal as the appropriate
source of service information. The commenter contends that these two
service bulletins do not fit within the parameters of the proposal
since they specify continual repetitive inspections after
accomplishment of the proposed modification. The commenter asserts that
this contradicts the stated purpose of the proposal, which is to
``reflect the FAA's decision that long term continued operational
safety should be assured by actual modification of the airframe.''
The FAA does not concur. The FAA finds that the commenter has
restated only a portion of the purpose of this rulemaking action; the
commenter omitted two key words from the Summary section of this
rulemaking action. The FAA's intent is to require ``modification of the
airframe, where feasible.'' Service Bulletin 53-174 specifies
replacement of a limited number of rivets with bolts and hi-lok
fasteners and installation of doublers in the non-ventral bulkhead web
and tee. Service Bulletin 53-147 specifies installation of an external
doubler and internal finger doublers between longerons (LN) 14L and 14R
in the aft pressure bulkhead skin splice doubler. Since fatigue testing
and service history have demonstrated that the location of the
modifications addressed in these two service bulletins is susceptible
to fatigue cracking, the FAA has determined that modification alone
cannot ensure safety of the fleet; therefore, repetitive inspections
must continue to be performed to prevent degradation in the structural
capabilities of the affected airplanes.
Along this same line, the same commenter states that it cannot
accomplish the inspections that are required to be performed following
accomplishment of the modification specified in McDonnell Douglas DC-9
Service Bulletin 53-174. The commenter notes that although the service
bulletin provides a method for accomplishing the modification, it does
not provide a method for accomplishing the inspections of the modified
structure. From this comment, the FAA infers that the commenter is
requesting a delay in issuance of the final rule until such time that
the manufacturer has developed an acceptable inspection method of the
modified structure. The FAA does not concur. The FAA does not consider
that delaying this action until that time is warranted since sufficient
technology currently exists to accomplish the follow-on inspections
within the compliance time. However, the FAA points out that for
airplanes on which modifications affect performing the required
inspections, operators must use the provisions of paragraph (h) of the
final rule to request, from the FAA, approval for an alternative method
of compliance.
Request to Reference Latest Revision of Service Bulletins
The same commenter requests a revision to the proposal to reference
two service bulletins that have been revised since issuance of the
notice. The commenter states that McDonnell Douglas DC-9 Service
Bulletin 57-129, Revision 3, dated November 6, 1987, has been re-issued
as two separate service bulletins: McDonnell Douglas DC-9 Service
Bulletin 57-129, Revision 5, dated November 10, 1994; and McDonnell
Douglas DC-9 Service Bulletin 57-200, dated November 10, 1994. The FAA
concurs. Three new notes have been added to the final rule: NOTE 4,
NOTE 11, and NOTE 12. These notes state that accomplishment of both of
these service bulletins is acceptable for compliance with the
requirement to accomplish Service Bulletin 57-129, Revision 3.
Request to Convert Compliance Time from Flight Hours to Flight
Cycles
The same commenter requests a revision to the proposal that would
provide further guidance for converting flight hours to an equivalent
number of flight cycles. The commenter notes that most operators track
rotatable components in terms of flight hours, rather than flight
cycles, as expressed in the service bulletins referenced in SARD,
Revision B. Further, the commenter contends that repairable components
are tracked neither by serial number nor by flight cycles/hours. The
commenter states that ten of the service bulletins listed in SARD,
Revision B, express thresholds in terms of flight cycles accumulated on
the affected component.
The FAA does not concur. In re-evaluating expressions of thresholds
in terms of flight cycles, the FAA has verified with several affected
operators (including the commenter) and has found that repairable and
rotatable components have been tracked by flight cycles, as well as
flight hours. Since this commenter did not submit utilization data for
each of its airplanes, the FAA could not provide an appropriate method
to convert flight hours to an equivalent number of flight cycles.
However, the FAA would address these unique circumstances, including
conversion of flight hours to flight cycles, under the alternative
method of compliance provisions of paragraph (h) of the final rule.
Request to Revise Compliance Threshold for One Service Bulletin
This same commenter requests a revision of the threshold specified
in McDonnell Douglas DC-9 Service Bulletin 53-60, Revision 1
(referenced in Table 2.3 of SARD, Revision B). The commenter states
that a more appropriate threshold would be ``prior to the accumulation
of 89,000 total landings,'' which would coincide with the threshold
specified in McDonnell Douglas DC-9 Service Bulletin 53-166 (referenced
in Table 2.1 of SARD, Revision B). The commenter notes that Service
Bulletin 53-166 recommends accomplishment of the modification described
in that service bulletin prior to the accumulation of 89,000 total
landings, while Service Bulletin 53-60 recommends accomplishment of the
modification described in that service bulletin prior to January 15,
1997. The commenter further states that Service Bulletin 53-60 must be
accomplished prior to the accomplishment of Service Bulletin 53-166.
The FAA does not concur. Service Bulletin 53-166 states that it
``assumes that Service Bulletins * * * 53-60 have been accomplished;''
it does not state that Service Bulletin 53-60 must be accomplished
prior to Service Bulletin 53-166. In fact, Service Bulletin 53-166 goes
on to state that ``if these service bulletins have not been
accomplished on applicable aircraft, contact the Douglas Aircraft
Company for special instructions.'' Further, the FAA points out that
the final rule does not require accomplishment of Service Bulletin 53-
60 prior to the accomplishment of Service Bulletin 53-166, but it would
permit such accomplishment. Therefore, no change to the final rule is
necessary.
Request to Revise Repair Approval Process
This same commenter questions why structural repairs accomplished
in accordance with the DC-9 Structural Repair Manual (SRM), which is an
FAA-approved document; and Douglas Service Rework Drawings, which, for
the most part, are FAA-approved documents, must be again approved by
the FAA for the purpose of this AD. The commenter notes that paragraph
(c) of
[[Page 24678]]
the proposal requires FAA-approval of structural repairs, including
those that are accomplished in accordance with either of these
documents, despite the fact that they are FAA-approved documents.
The FAA infers that the commenter is requesting that proposed
paragraph (c) be revised to allow repairs in accordance with the SRM
and Service Rework Drawings, without further approval by the ACO. The
FAA does not concur. The repairs required by paragraph (c) were not
intended to terminate the requirements for inspection contained in
paragraphs (a) and (b) of the AD. However, the inspection procedures
referenced in those paragraphs may not be appropriate for structure
repaired as required by paragraph (c). Therefore, it is necessary to
obtain ACO approval of such repairs in order to ensure that the
approval is conditioned upon identification of appropriate inspection
methods that will continue to meet the intent of paragraphs (a) and
(b). For example, if a crack identified as a result of an inspection
under paragraph (a) is within the limits specified for an appropriate
repair in the SRM, an operator would be required to obtain the ACO's
approval for that repair. The approval would be conditioned either on
the ACO's determination that the inspection required by paragraph (a)
continues to be appropriate, or on the operator's identification of an
acceptable alternative inspection method.
Request to Clarify Effect of Requirements on Supplemental Inspection
Document (SID) Program
The same commenter asks what effect the proposed requirement to
modify Principal Structural Elements (PSE) will have on AD 94-03-01,
amendment 39-8807 (59 FR 6538, February 11, 1994), which requires
implementation of a SID sampling program of structural inspections to
detect fatigue cracking. The commenter notes that, in many cases,
accomplishment of the terminating modifications required by the
proposal will affect the fleet-leader operator sampling (FLOS) program
of AD 94-03-01.
The FAA acknowledges that certain repair and modification
requirements of the final rule may affect the FLOS program of AD 94-03-
01. For this reason, standardization and continuity of repairs are
especially important in light of the complexity of the DC-9 SID
program. The FAA has determined that standardization and continuity of
repairs can best be maintained by having one single point of approval
[i.e., the Manager of the Los Angeles Aircraft Certification Office
(ACO)] for all repairs of cracks in Principal Structural Element (PSE),
including those required by this final rule.
Further, every repair of PSE structure requires a Damage Tolerance
Assessment (DTA) to be performed (of each repair) to establish its
effect on the original inspection requirements of the repaired
structure. The FAA considers that any repair of any cracked PSE without
the required DTA can only be considered temporary, and will eventually
need to be coordinated with the Manager of the Los Angeles ACO. A PSE
structure on which repairs are made without the required DTA and not
coordinated with the manufacturer and the Los Angeles ACO, becomes a
``discrepant PSE'' when the time arrives for that PSE to be re-
inspected. In these cases, the repair may need to be removed or
reworked at a later time. In either case, the Manager of the Los
Angeles ACO must ensure that all repairs of cracked PSE's comply with
the requirements of AD 94-03-01, as well as with the requirements of
this final rule.
Most methods of repair specified in the DC-9 SRM or in relevant
service bulletins, or Designated Engineering Representative (DER)-
designed repairs, do not include a continuing inspection program to
ensure that the repair is inspected at the same level of safety as the
original PSE structure. A DTA can be done most easily at the time of
repair, rather than at a later date when the details of the repair may
be hard to obtain and, undoubtedly, would be more costly. Currently,
the Manager and staff of the Los Angeles ACO are working very closely
with the manufacturer to expedite interim repair approval requests.
Such requests may be made under the provisions of paragraph (h) of the
final rule.
Request to Include Corrosion Inspections
Another commenter requests a revision to proposed paragraphs (a)
and (b) to include inspections to detect corrosion. The commenter
states that proposed paragraphs (a) and (b), as well as AD 90-18-03
only require inspections to detect cracking.
The FAA does not concur that revision is necessary. NOTE 4 of the
final rule (which was designated NOTE 2 in the proposal) and the Note
following paragraph A.1. of AD 90-18-03 state that corrective action is
required for discrepancies other than cracking. Additionally, on May
24, 1993, the FAA issued AD 92-22-08 R1, amendment 39-8591 (58 FR
32281, June 9, 1993), which requires the implementation of a corrosion
prevention and control program. Therefore, the FAA finds that it is
unnecessary to include in this final rule any additional inspections to
detect corrosion.
Request for Clarification of Requirements of Service Bulletin 55-31
The same commenter requests a revision to the proposal to clarify
the requirements specified in McDonnell Douglas DC-9 Service Bulletin
55-31, which is referenced in SARD, Revision B. The commenter notes
that confusion may arise because Service Bulletin 55-31 is listed in
various sections of SARD, Revision B.
The FAA concurs. Service Bulletin 55-31 is listed in Table 2.3 and
Table 2.4 of SARD, Revision B. Paragraph (b) of the final rule requires
inspections of aircraft structure specified in Table 2.3 or 2.4 of
SARD, Revision B, while paragraph (e) of the final rule requires
modifications of aircraft structure specified in Table 2.3 or 2.4 of
SARD, Revision B. A new NOTE 7 has been added to the final rule to
clarify that the revisions of the service bulletins that are listed
under ``Recommended Modification'' are acceptable for inspections
performed prior to the effective date of the final rule. Additionally,
NOTE 8 of the final rule (which was designated NOTE 5 in the proposal)
provides additional clarification by stating that only those revision
levels of the service bulletins listed in Tables 2.3 and 2.4 are
acceptable for compliance with the modification requirements of the
final rule. Therefore, the inspections described in Service Bulletin
55-31 are required to be performed in accordance with Revision 4, and
the modifications are required to be accomplished in accordance with
Revision 3 or Revision 4 of Service Bulletin 55-31.
Request to Delete FAA-Approval of Repair Methods
One commenter requests a revision to paragraph (c) of the proposal,
which requires repair of cracks prior to further flight in accordance
with a method approved by the Manager of the Los Angeles ACO. The
commenter states that this proposed requirement would impose a severe
hardship on operators since most operators work 365 days a year,
whereas, the Los Angeles ACO operates on a standard 5-day work week.
The commenter notes that this difference in hours of operation creates
a problem for operators to obtain FAA approvals for repair methods. As
an alternative to staffing the Los Angeles
[[Page 24679]]
ACO offices 24 hours a day, 7 days a week, the commenter suggests that
the FAA provide its engineers and managers in the Los Angeles ACO with
pagers.
The FAA does not concur. Since repairs are only required when
cracks are found during the inspections required by this final rule,
the FAA anticipates that operators will accomplish those inspections
and repairs at a maintenance base during regularly scheduled ``heavy''
maintenance visits. Therefore, the FAA anticipates that operators will
have ample time to obtain approvals from the Los Angeles ACO without
adversely affecting their operations.
Further, the FAA recognizes that the required modifications will
necessitate a large number of work hours to accomplish. However, the
thresholds specified in the service bulletins referenced in SARD,
Revision B, were developed only after extensive and detailed
consultations between a large number of operators of Model DC-9 series
airplanes and the manufacturer. Among other things, these consultations
were conducted in order to establish timeframes (for accomplishing
necessary actions) that would minimize the economic impacts on
operators to the maximum extent possible, while still maintaining
safety objectives. Consequently, where safety considerations allow, the
FAA attempts to impose thresholds that generally coincide with
operators' maintenance schedules.
Request for Clarification of When To Repair vs. When To Modify
The same commenter also requests clarification of the relationship
between proposed paragraph (c) and proposed paragraph (f). The
commenter points out that:
1. Paragraph (c) would require that, if any crack is found during
an inspection, it must either be repaired or the applicable terminating
modification must be installed; and
2. Paragraph (f) would require that the terminating modifications
be installed by the time the airplane accumulates a certain number of
landings.
The FAA concurs that clarification is warranted. Paragraph (c) of
the final rule is applicable to all airplanes, while paragraph (f) of
the final rule is applicable only to Model DC-9-10, -20, -30, -40, and
-50 series airplanes and C-9 (military) series airplanes.
Further, the repair or modification specified in paragraph (c) is
an ``on condition'' requirement; as such, the terminating modifications
required by paragraph (c) of the final rule are required to be
accomplished, prior to further flight, on the condition that cracking
is found. Paragraph (f) of the final rule, on the other hand, requires
the eventual modification of all applicable airplanes (prior to the
accumulation of 100,000 total landings), regardless of whether or not
cracking has been found.
Request for Clarification of the Rule's Relationship to Modification
Requirements of Other Related AD's
The same commenter points to an inconsistency that may exist
between several existing AD's that reference various service bulletins
(that are referenced in SARD, Revision B) and NOTE 6 of the proposal.
The commenter states that a majority of the service bulletins
referenced in SARD, Revision B, that describe procedures for
inspections, are required currently by various other existing AD's.
However, those AD's do not provide for termination of those inspections
by accomplishing the modifications described in those service
bulletins. Therefore, the commenter questions the intent of NOTE 6 of
the proposal, which states that the modifications required by
paragraphs (d) and (e) of the proposal do not terminate the inspection
requirement of other related AD's unless those other related AD's
specifically state so.
The FAA does not find any inconsistencies between proposed NOTE 6,
which is now designated as NOTE 14 in the final rule, and the
requirements of other related AD's. The NOTE clearly specifies that a
modification required by this final rule does not automatically
terminate inspections required by another AD, unless that other AD
specifically states that the modification does constitute terminating
action for that AD's inspection requirements (or unless this final rule
specifically states that the modification constitutes terminating
action for another AD).
Request for Alternatives to Modifications
Further, the same commenter supports the proposed modifications
specified in paragraph (e) of the proposal, but only in cases where:
1. A superior inspection technique is not subsequently developed;
2. There is no record, worldwide, of subsequent cracking of
aircraft structure that has had terminating action modification
incorporated;
3. Test data and service experience support that the terminating
action modification is, without a doubt, effective; and
4. The accomplishment of the modification would not pose the threat
of rework included damage/error, as evidenced by historical
catastrophic failures.
When these conditions do not exist, the commenter requests that the
FAA consider alternatives to the proposed modifications.
Since the commenter did not provide the specifics for any kind of
alternative, the FAA infers that the commenter is requesting that the
proposed inspections of paragraph (b) be continued repetitively,
without terminating modifications. In that case, the FAA does not
concur. The FAA has determined that the degree of assurance necessary
as to the adequacy of inspections needed to maintain the safety of the
aging transport airplane fleet, coupled with a better understanding of
the human factors associated with numerous repetitive inspections, has
caused the FAA to place less emphasis on repetitive inspections and
more emphasis on design improvements and material replacement. Thus, in
lieu of its previous position of allowing continual inspection, and
repair or modification on condition if cracking is found, the FAA has
decided to require, whenever practicable, airplane modifications that
remove the source of the particular aging phenomena.
Request to Supersede AD 88-24-08 R2
One commenter requests that the proposal be revised by deleting the
requirements of proposed paragraph (f), and including those
requirements in AD 88-24-08 R2, amendment 39-6469 (55 FR 1002, January
11, 1990). The commenter notes that proposed paragraph (f) refers to
McDonnell Douglas DC-9 Service Bulletin 53-230, Revision 1, dated
January 12, 1993; while AD 88-24-08 R2 refers to McDonnell Douglas DC-9
Alert Service Bulletin A53-230, Revision 3, dated September 28, 1989.
The commenter states that superseding AD 88-24-08 R2 would ease the
administrative burden on operators, in lieu of superseding the proposal
whenever the manufacturer issues new revisions of any of the service
bulletins that are referenced in the SARD.
The FAA does not concur. The modifications (specified in Service
Bulletin 53-230 and) required by paragraph (f) of the final rule
terminate the inspections (specified in Alert Service Bulletin A53-230
and) required by AD 88-24-08 R2. Alert Service Bulletin A53-230 does
not specify procedures for termination of the inspections described in
that service bulletin. Whereas, Service Bulletin 53-
[[Page 24680]]
230 describes procedures for modifications of the fuselage frames
between LN's 10L and 10R at various overwing stations between Y=484.000
and Y=851.000. As explained in paragraph (f) of the final rule,
accomplishment of the modifications specified in Service Bulletin 53-
230 terminates the inspection requirements of AD 88-24-08 R2. Further,
as stated in the Discussion section of the preamble to the notice,
although Service Bulletin 53-230 was not included in SARD, Revision B,
the FAA concurs with the recommendations of the Airworthiness Assurance
Working Group (AAWG), which recommended that modifications described in
it be made mandatory in order to prevent structural degradation of the
fleet. Therefore, the FAA finds it appropriate to include Service
Bulletin 53-230 in the modification requirements of the final rule.
However, the FAA will consider issuing separate rulemaking actions,
including supersedure of existing AD's, whenever the manufacturer
issues new revisions to the service bulletins referenced in those AD's.
Request To Delete Redundant Language Concerning Terminating
Modifications
One commenter asserts that proposed paragraph (g) is redundant to
proposed paragraphs (a) and (b), which state that the modifications in
the service bulletins terminate the inspection requirements. From this
comment, the FAA infers that the commenter is requesting the deletion
of proposed paragraph (g), which states that accomplishment of certain
modifications terminates certain inspection requirements. The FAA
concurs. Proposed paragraph (g) has been deleted from the final rule.
Request for Explanation for the Exclusion of Certain Service
Bulletins
This same commenter requests that proposed rule be revised to
include an explanation as to why MD-80 Service Bulletins 53-186 (which
is referenced in Tables 2.1 and 2.2 of SARD, Revision B) and 53-216
(which is referenced in Table 2.2 of SARD, Revision B) are excluded
from the proposed requirements. The FAA concurs and acknowledges that
the reason for excluding these service bulletins from the requirements
of the final rule was omitted unintentionally. AD 94-08-04, amendment
39-8875 (59 FR 18952, April 21, 1994) requires inspections to detect
cracking in the skin and doublers around the upper anticollision light
cutout, and repair, if necessary; and stress coining the plate nut
clearance holes; which are specified in those service bulletins.
Therefore, paragraph (g) of the final rule [which was designated
paragraph (h) in the proposal] has been revised to state that AD 94-08-
04 addresses the actions specified in Service Bulletins 53-186 and 53-
216; it is for this reason that the actions specified in those service
bulletins are excluded from the requirements of the final rule.
Along this same line, the FAA finds that the actions specified in
DC-9 Service Bulletin 54-30 are excluded from the requirements of the
final rule since AD 77-14-19, amendment 39-2971 (42 FR 36811, July 18,
1977), already addresses the actions specified in that service
bulletin. AD 77-14-19 requires repetitive inspections to detect fatigue
cracking of the engine pylon front spar attachments and upper cap; and
modification of cracked structure. Procedures for these actions are
described in DC-9 Service Bulletin 54-30. Paragraph (g) of the final
rule has been revised to reflect this change.
The FAA also finds that the actions specified in DC-9 Service
Bulletins 27-196 and 27-250 are excluded from the requirements of the
final rule since AD 92-11-10, amendment 39-8260 (57 FR 27149, June 18,
1992), already addresses the actions specified in these service
bulletins. AD 92-11-10 requires repetitive inspections to detect
cracking of the forward slat drive drums' bellcrank shafts, and
replacement, as applicable. Procedures for these actions are described
in DC-9 Service Bulletins 27-196 and 27-50. Paragraph (g) of the final
rule has been revised accordingly.
The FAA also finds that the actions specified in DC-9 Service
Bulletins 57-125 and 57-148 are excluded from the requirements of the
final rule since AD 96-01-05, amendment 39-9481 (61 FR 2403, January
26, 1996), already addresses the actions specified in those service
bulletins. DC-9 Service Bulletin 57-125 describes procedures for
replacement of the attach fittings of the main landing gear (MLG); and
DC-9 Service Bulletin 57-148 describes procedures for inspection and
modification of the attach fittings of the MLG. Since these actions
currently are required by AD 96-01-05, paragraph (g) of the final rule
has been revised to exclude these actions.
Additionally, paragraphs (a), (b), (d), (e) of the final rule have
been revised to note the exclusion provision of paragraph (g) of the
final rule.
Clarification of Provisions for Obtaining Alternative Methods of
Compliance (AMOC)
One commenter requests further guidance to determine exactly when
FAA-approval of an AMOC is necessary. The FAA acknowledges that
additional guidance may be warranted, and has added a new NOTE 1 to
provide this. The new note specifies that, when performance of the
requirements of the AD is ``affected,'' an operator should apply for
approval of an AMOC in order to show compliance with the AD. The
meaning of the term ``affected'' can be understood by applying it to
typical scenarios:
One scenario is when performance of the requirements of the AD is
``affected'' in such a way that the operator is unable to perform those
requirements in the manner described in the AD. An example of this is
when an AD requires a visual inspection in accordance with a certain
service bulletin, but the operator cannot perform that inspection
because of the placement of a repair doubler over the structure to be
inspected; in this case, ``performance of the AD is affected.''
Another scenario is when it is physically possible to perform the
requirements of an AD, but the results achieved are different from
those specified in the AD. An example of this is when an AD requires a
non-destructive test (NDT) inspection in accordance with a certain
service bulletin, and the operator is able to move the NDT probe over
the specified area in the specified manner, but the results are either
meaningless or inaccurate because of a repair doubler placed over that
area; in this case, ``performance of the AD is affected.''
While it is not possible to address every possible situation,
``affected'' is normally an easy standard to apply: either it is
possible to perform the requirements as specified in the AD and achieve
the specified results, or it is not possible. Therefore, if the
requirements of this AD cannot be performed, then operators must submit
a request for an approval of an AMOC from the FAA, in accordance with
the provision of paragraph (h) of the final rule.
Any requirement of an AD, such as a modification or repair doesn't
``affect performance of the AD;'' it is performance of the AD.
Accordingly, every AD includes a provision that states, ``Compliance
required as indicated, unless previously accomplished.'' If an operator
performs such a requirement before the AD is issued, the FAA is
confident that the operator will recognize that it has
[[Page 24681]]
already complied with the AD and no further action (including obtaining
approval of an AMOC) is required.
Request That FAA Publish Its Policies on Granting AMOC's for Aging
Aircraft AD's
One commenter requests a revision of the proposed rule to include
all FAA policies pertinent to granting approvals of alternative methods
of compliance for aging aircraft AD's. The commenter made specific
reference to an FAA memo, dated June 9, 1994, which outlined the
criteria that the Aircraft Certification Offices (ACO) would be using
to grant approvals for alternative methods of compliance with the aging
aircraft AD's. (The subject of the memo was ``Denial of Requests for
Extended Compliance Times with the Aging Aircraft Modification
Airworthiness Directives.'') The commenter notes that the FAA has been
inconsistent in granting approvals of alternative methods of compliance
for aging aircraft AD's.
The FAA does not concur. Part 39 of the Federal Aviation
Regulations (14 CFR part 39), ``Airworthiness Directives,'' is for the
purpose of correcting unsafe conditions that may exist or develop in
aircraft, not for the purpose of publishing FAA policy decisions. The
FAA points out that it will continue to use the criteria outlined in
the memo referenced by the commenter to review data substantiating
requests for alternative methods of compliance to the aging aircraft
AD's on a case-by-case basis. Since the commenter did not provide any
specific examples of inconsistencies in the approval of alternative
methods of compliance that have been granted by the FAA, the FAA cannot
address those inconsistencies. However, the FAA attempts, to the
maximum extent possible, to accommodate each operators' specific
operating conditions, aircraft configurations, maintenance practices,
and other variables, provided they do not adversely impact safety.
Requests to Clarify Validity of Previously Approved AMOC's
This same commenter requests a revision to the proposal to indicate
that alternative methods of compliance that were previously approved by
the FAA for the modification requirements of other related AD's
continue to be considered acceptable for compliance with the
requirements of the proposal. The commenter states that the proposal is
too limiting in that only those AMOC's that were previously approved
for the requirements of AD 90-18-03 are to be considered acceptable for
compliance with the requirements of the proposal. The commenter
contends that revising proposed rule to accept previously approved
AMOC's would preclude operators from needlessly resubmitting additional
requests for AMOC's for the inspections and modifications that are
required by proposed paragraphs (a), (b), (d), and (f).
The FAA does not concur. The intent of paragraph (i) of the final
rule [which was designated paragraph (j) in the proposal] is to have
approvals for alternative methods of compliance to AD 90-18-03 remain
in effect for this AD. The inspection requirements of paragraph (a) of
the final rule (contained in Table 2.1 and Table 2.2 of SARD, Revision
A and) is a restatement of paragraph A. of AD 90-18-03, and the
modification requirements of paragraph (d) of the final rule is a
restatement of paragraph B. of AD 90-18-03. However, other
modifications (contained in Table 2.3, Table 2.4, and Table 3.1 of
SARD, Revision B) that are required by this final rule provide for a
higher level of safety than that provided by other modifications
required by other related AD's. Therefore, alternative methods of
compliance that were previously approved by the FAA for those other
related AD's may not provide for an adequate level of safety as that
provided by the modifications required by the final rule; therefore,
they must be reviewed individually to determine their acceptability, as
provided in paragraph (i) of the final rule.
Request that Necessary Parts Be Available
This commenter further requests FAA's intervention to ensure that
the manufacturer take no longer than 15 days to provide required parts
to operators. This commenter states that it has taken up to 18 months
to obtain necessary parts for modifications required by AD's. The FAA
cannot concur with this commenter's request, since the FAA has no
regulatory requirement to ensure that manufacturers of aircraft produce
spare parts in a timely manner. Part 39 of the Federal Aviation
Regulations (14 CFR part 39), ``Airworthiness Directives,'' limits the
FAA's authority to correct findings of unsafe conditions that may exist
or develop in aircraft.
Regardless, the FAA has verified with the manufacturer that parts
necessary for the modifications required by the final rule will be
available to operators upon submission of a purchase order to the
manufacturer. Additionally, under the provisions of paragraph (h) of
the final rule, operators may apply for the approval of an alternative
method of compliance or adjustment of the compliance time if sufficient
parts are unavailable to operators to accomplish the requirements of
the final rule.
Request for Revision of Cost Estimate Figures
One commenter requests that the cost impact information of the
proposal be revised to reflect the ``true cost'' over the entire
``modification period.'' The commenter notes that, in the proposal, the
costs estimated ``over the initial 4-year time period,'' depicts an
inaccurately low figure, since only 33 percent of the service bulletins
referenced in SARD, Revision B, recommend a threshold of 4 years.
The FAA does not concur that revision is necessary. The economic
impact information, below, was developed with data provided by the
manufacturer. In this case, the cost estimate in the final rule was
developed by the McDonnell Douglas Corporation only after extensive and
detailed consultations with large numbers of operators of Model DC-9
and DC-9-80 series airplanes. The FAA acknowledges that only 33 percent
of the service bulletins referenced in the SARD recommend a threshold
of 4 years; the remaining 67 percent of the service bulletins recommend
a threshold based on the number of flight cycles the airplane has
accumulated or on the age of the airplane. Given the significant
differences in operators' usage of these airplanes, an accurate
assessment of when each airplane would reach that flight cycle
threshold would be nearly impossible to calculate accurately.
Additionally, there is no way of knowing how many airplanes will be
``phased'' out of service as they approach or exceed the original
economic life goal of these airplanes. Therefore, the FAA considers the
4-year time period as an appropriate baseline to calculate the
estimated costs for all of the actions required by the final rule.
Additionally, subsequent to the issuance of the notice, the FAA
reviewed the figures it used in calculating the cost of labor relevant
to accomplishing AD activity. In order to account for various
inflationary costs in the airline industry, the FAA finds it
appropriate to increase the labor rate used in these calculations from
$55 per work hour to $60 per work hour. The economic impact
information, below, has been revised to reflect this increase in the
specified hourly labor rate.
Editorial Changes to the Final Rule
For purposes of readability, the FAA has revised paragraphs (a),
(b), (d), and (e); NOTE 10 [which was designated
[[Page 24682]]
NOTE 4 in the proposal] and NOTE 13 [which was designated NOTE 5 in the
proposal] of the final rule to remove the parenthetical phrase that
describes the airplanes applicable to each Table in the SARD . A new
NOTE 2 has been added to the final rule to explain that Tables 2.1,
2.3, and 3.1 of the SARD are applicable to Model DC-9-10, -20, -30, -
40, and -50 series airplanes, and C-9 (military) series airplanes; and
Tables 2.2 and 2.4 of the SARD are applicable to Model DC-9-81, -82, -
83, and -87 (MD-81, -82, -83, and -87) series airplanes, and Model MD-
88 airplanes.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 892 Model DC-9 and C-9 (military) series
airplanes of the affected design in the worldwide fleet.
The FAA estimates that 568 Model DC-9 and C-9 (military) series
airplanes of U.S. registry were originally affected by AD 90-18-03. The
requirements of that AD were estimated to take approximately 946 work
hours to accomplish, at a current average labor rate of $60 per work
hour. The cost for required modification kits was estimated to be
$15,140 per airplane. Based on these figures, the FAA estimated that
the cost impact of AD 90-18-03 on U.S. operators of Model DC-9 and C-9
(military) series airplanes will be $40,839,200, or $71,900 per
airplane, over the initial 4-year time period. (These figures do not
include the cost of downtime, planning, set-up, familiarization, or
tool acquisition.)
The FAA estimates that 511 Model DC-9 and C-9 (military) series
airplanes of U.S. registry will be affected by the new requirements
specified in this AD. The new additional requirements of this AD action
will take approximately 638 additional work hours per airplane to
accomplish, at an average labor rate of $60 per work hour. Required
parts will cost approximately $37,027 per airplane. Based on these
figures, the cost impact of the AD on U.S. operators is estimated to be
$38,481,877, or $75,307 per airplane, over a 4-year time period. (These
figures do not include the cost of downtime, planning, set-up,
familiarization, and tool acquisition.)
There are approximately 1,090 Model DC-9-80 series airplanes and
Model MD-88 airplanes of the affected design in the worldwide fleet.
The FAA estimates that 173 Model DC-9-80 series airplanes and Model
MD-88 airplanes of U.S. registry were originally affected by AD 90-18-
03. The requirements of that AD were estimated to take approximately 47
work hours to accomplish, at a current average labor rate of $60 per
work hour. The cost for required modification kits was estimated to be
$752 per airplane. Based on these figures, the FAA estimated that the
cost impact of AD 90-18-03 on U.S. operators of Model DC-9-80 series
airplanes and Model MD-88 airplanes will be $617,956, or $3,572 per
airplane, over the initial 4-year time period. (These figures do not
include the cost of downtime, planning, set-up, familiarization, or
tool acquisition.)
The FAA estimates that a total of 615 Model DC-9-80 series
airplanes and Model MD-88 airplanes of U.S. registry will be affected
by the new requirements specified in this AD. This increase in the
number of affected airplanes is due to various reasons, including
transfer of ownership and the fact that additional airplanes have
accumulated time-in-service since the issuance of AD 90-18-03 and have
reached the threshold for modification/inspection. The new additional
requirements of this AD action will take approximately 13 additional
work hours per airplane to accomplish, at an average labor rate of $60
per work hour. Required parts will cost an additional $943 per
airplane. Based on these figures, the additional cost impact of this AD
on U.S. operators is estimated to be $1,059,645, or $1,723 per
airplane, over a 4-year time period. (These figures do not include the
cost of downtime, planning, set-up, familiarization, or tool
acquisition.)
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished the currently required or the newly
required actions of this AD; however, it can reasonably be assumed that
a majority of affected operators have already initiated the inspections
and structural modifications required by AD 90-18-03 [retained in
paragraphs (a) and (d) of this AD] and many may have already initiated
the additional inspections and structural modifications in this new AD
action.
The number of required work hours, as indicated above, is presented
as if the accomplishment of the actions proposed in this AD were to be
conducted as ``stand alone'' actions. However, in actual practice,
these actions for the most part would be accomplished coincidentally or
in combination with normally scheduled airplane inspections and other
maintenance program tasks. Therefore, the actual number of necessary
additional work hours would be minimal in many instances. Additionally,
any costs associated with special airplane scheduling would be minimal.
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 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-6701 (55 FR
34704, August 24, 1990), and by adding
[[Page 24683]]
a new airworthiness directive (AD), amendment 39-9618, to read as
follows:
96-10-11 McDonnell Douglas: Amendment 39-9618. Docket 94-NM-92-AD.
Supersedes AD 90-18-03, Amendment 39-6701.
Applicability: Model DC-9-10, -20, -30, -40, and -50 series
airplanes; Model DC-9-81 (MD-81), -82 (MD-82), -83 (MD-83), and -87
(MD-87) series airplanes; Model MD-88 airplanes; and C-9 (military)
series airplanes; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (h) 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.
Note 2: For purposes of this AD, references to Tables 2.1, 2.3,
and 3.1 of the Service Action Requirements Document (SARD) are
applicable to Model DC-9-10, -20, -30, -40, and -50 series
airplanes, and C-9 (military) series airplanes; and Tables 2.2 and
2.4 of the SARD are applicable to Model DC-9-81, -82, -83, and -87
(MD-81, -82, -83, and -87) series airplanes, and Model MD-88
airplanes.
Compliance: Required as indicated, unless accomplished
previously.
To prevent structural failure, accomplish the following:
Note 3: Paragraph (a) of this AD restates the requirements for
an initial inspection and the repetitive inspections contained in
paragraph A. of AD 90-18-03. Therefore, for operators who have
previously accomplished at least the initial inspection in
accordance with AD 90-18-03, paragraph (a) of this AD requires that
the next scheduled inspection be performed within the specified
repetitive inspection interval after the last inspection performed
in accordance with paragraph A. of AD 90-18-03.
(a) Except as provided by paragraph (g) of this AD, within the
threshold for inspections specified in the service bulletins listed
in either Table 2.1 or Table 2.2 , as applicable, of ``DC-9/MD-80
Aging Aircraft Service Action Requirements Document,'' McDonnell
Douglas Report No. MDC K1572, Revision A, dated June 1, 1990
(hereinafter referred to as ``SARD, Revision A''), or within one
repetitive inspection period specified in those service bulletins
after September 24, 1990 (the effective date of AD 90-18-03,
Amendment 39-6701); whichever occurs later: Inspect to detect cracks
in accordance with those service bulletins. Repeat these inspections
thereafter at the intervals specified in the service bulletins
listed in either Table 2.1, or Table 2.2, as applicable, of SARD,
Revision A, until the applicable terminating modification required
by paragraph (d) of this AD is accomplished.
Note 4: Table 2.1 of SARD, Revision A, includes the inspections
specified in DC-9 Service Bulletin 57-129, Revision 3, dated
November 6, 1987. Since issuance of the SARD, Revision A, that
service bulletin has been re-issued as two separate service
bulletins: DC-9 Service Bulletin 57-129, Revision 5, and DC-9
Service Bulletin 57-200; both dated November 10, 1994. Therefore,
accomplishment of both DC-9 Service Bulletins 57-129, Revision 5,
and 57-200 is considered acceptable for compliance with the
inspections specified in DC-9 Service Bulletin 57-129, Revision 3.
Note 5: The service bulletin revision levels list under
``Recommended Modification'' in either Table 2.1 or Table 2.2, as
applicable, of SARD, Revision A, are acceptable revisions for
inspections performed prior to September 24, 1994.
(b) Except as provided by paragraph (g) of this AD, within the
threshold for inspections specified in the service bulletins listed
in Tables 2.3 and 3.1, or Table 2.4, as applicable, of ``DC-9/MD-80
Aging Aircraft Service Action Requirements Document,'' McDonnell
Douglas Report No. MDC K1572, Revision B, dated January 15, 1993
(hereinafter referred to as ``SARD, Revision B''), or within one
repetitive inspection period specified in those service bulletins
after the effective date of this AD, whichever occurs later: Inspect
to detect cracks in accordance with those service bulletins. Repeat
these inspections thereafter at the intervals specified in the
service bulletins listed in either paragraph (b)(1) or (b)(2) of
this AD, as applicable, until the applicable terminating
modification required by paragraph (e) of this AD is accomplished.
Note 6: Accomplishment of the inspections in accordance with
McDonnell Douglas DC-9 Service Bulletin 57-129, Revision 5, dated
November 10, 1994; and McDonnell Douglas DC-9 Service Bulletin 57-
200, dated November 10, 1994; is acceptable for compliance with the
inspections described in McDonnell Douglas DC-9 Service Bulletin 57-
129, Revision 3, which is referenced in SARD, Revision B.
(1) For Model DC-9-10, -20, -30, -40, -50, and C-9 (military)
series airplanes: The service bulletins listed in Tables 2.3 and 3.1
of SARD, Revision B. Or
(2) For Model DC-9-81, -82, -83, -87 (MD-81, -82, -83, -87), and
Model MD-88 airplanes: The service bulletins listed in Table 2.4 of
SARD, Revision B.
Note 7: The service bulletin revision levels list under
``Recommended Modification'' or ``Recommended Inspection'' in Tables
2.3 and 3.1, or Table 2.4, as applicable, of SARD, Revision B, are
acceptable revisions for inspections performed prior to the
effective date of this AD.
(c) If any crack is found during any inspection required by this
AD, prior to further flight, either accomplish the applicable
terminating modification in accordance with paragraph (d) or (e) of
this AD, or repair in accordance with a method approved by the
Manager, Los Angeles Aircraft Certification Office (ACO), FAA,
Transport Airplane Directorate.
Note 8: Detection of any discrepancy, other than cracking,
necessitates appropriate corrective action in accordance with the
provisions of part 43 of the Federal Aviation Regulations (14 CFR
part 43).
(d) Except as provided by paragraph (g) of this AD, prior to
reaching the incorporation thresholds listed in either Table 2.1, or
Table 2.2, as applicable, of SARD, Revision A or Revision B; or
within 4 years after September 24, 1990 (the effective date of AD
90-18-03); whichever occurs later: Accomplish the structural
modifications specified in the service bulletins listed in either
Table 2.1, or Table 2.2, as applicable, of SARD, Revision A or
Revision B. Accomplishment of these modifications constitutes
terminating action for the applicable inspections required by
paragraph (a) of this AD.
Note 9: Paragraph (d) of this AD restates the modification
requirements of paragraph B. of AD 90-18-03. As allowed by the
phrase, ``unless accomplished previously,'' if the requirements of
paragraph B. of AD 90-18-03 have been accomplished previously,
paragraph (d) of this AD does not require that they be repeated.
Note 10: The service bulletin revision levels listed under
``Recommended Modification'' in either Table 2.1, or Table 2.2, as
applicable, of SARD, Revision A, are acceptable revisions for
modifications accomplished prior to September 24, 1994.
Note 11: Accomplishment of the modification in accordance with
McDonnell Douglas DC-9 Service Bulletin 57-129, Revision 5, dated
November 10, 1994; and McDonnell Douglas DC-9 Service Bulletin 57-
200, dated November 10, 1994; is acceptable for compliance with the
modifications described in McDonnell Douglas DC-9 Service Bulletin
57-129, Revision 3, which is referenced in SARD, Revision A.
(e) Except as provided by paragraph (g) of this AD, prior to
reaching the incorporation thresholds listed in either Table 2.3, or
Table 2.4, as applicable, of SARD, Revision B, or within 4 years
after the effective date of this AD, whichever occurs later:
Accomplish the structural modifications specified in the service
bulletins listed in either Table 2.3, or Table 2.4, as applicable,
of SARD, Revision B. Accomplishment of this modification constitutes
terminating action for the applicable inspections required by
paragraph (b) of this AD.
Note 12: Accomplishment of the modifications in accordance with
McDonnell Douglas DC-9 Service Bulletin 57-129, Revision 5, dated
November 10, 1994, and McDonnell Douglas DC-9 Service Bulletin 57-
200, dated November 10, 1994; is acceptable for compliance with the
modifications described in McDonnell Douglas DC-9 Service Bulletin
57-129, Revision 3, which is referenced in SARD, Revision B.
Note 13: The service bulletin revision levels listed under
``Recommended Modification'' in either Table 2.3, or Table 2.4 of
SARD, Revision B, are acceptable revisions for modifications
accomplished prior to the effective date of this AD.
[[Page 24684]]
Note 14: The modifications required by paragraphs (d) and (e) of
this AD do not terminate the inspection requirements of any other AD
unless that AD specifies that any such modification constitutes
terminating action for those specified inspection requirements.
(f) For Model DC-9-10, -20, -30, -40, -50, and C-9 (military)
series airplanes: Prior to the accumulation of 100,000 total
landings, accomplish the modifications specified in McDonnell
Douglas DC-9 Service Bulletin 53-230, Revision 1, dated January 12,
1993. Accomplishment of these modifications constitute terminating
action for the inspections required by AD 88-24-08 R2, amendment 39-
6469.
(g) The McDonnell Douglas service bulletins that are listed
below, are addressed in the following separate rulemaking actions.
Therefore, the actions specified in these service bulletins that are
referenced in the following tables of SARD, Revision A or Revision
B, are excluded from the requirements of this AD.
------------------------------------------------------------------------
McDonnell Douglas Service Amendment
Table(s) Bulletin AD No. No.
------------------------------------------------------------------------
3.1................ DC-9 Service Bulletin 54- 77-14-19 39-2971
30.
2.1................ DC-9 Service Bulletin 27- 92-11-10 39-8260
196.
2.1................ DC-9 Service Bulletin 27- 92-11-10 39-8260
250.
2.1 and 2.2........ MD-80 Service Bulletin 53- 94-08-04 39-8875
186.
2.2................ MD-80 Service Bulletin 53- 94-08-04 39-8875
216.
2.1................ DC-9 Service Bulletin 57- 96-01-05 39-9481
125.
2.3................ DC-9 Service Bulletin 57- 96-01-05 39-9481
148.
------------------------------------------------------------------------
(h) 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 15: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(i) Alternative methods of compliance previously granted for AD
90-18-03, amendment 39-6701, continue to be considered as acceptable
alternative methods of compliance for the relevant provisions of
this amendment.
(j) 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.
(k) The inspections and modifications shall be done in
accordance with ``DC-9/MD-80 Aging Aircraft Service Action
Requirements Document,'' McDonnell Douglas Report No. MDC K1572,
Revision A, dated June 1, 1990; and in accordance with ``DC-9/MD-80
Aging Aircraft Service Action Requirements Document,'' McDonnell
Douglas Report No. MDC K1572, Revision B, dated January 15, 1993,
which contains the following list of effective pages:
------------------------------------------------------------------------
Revision
letter
Page No. shown on Date shown on page
page
------------------------------------------------------------------------
List of Effective Pages............. B January 15, 1993.
Pages xi and xii....................
------------------------------------------------------------------------
The incorporation by reference of ``DC-9/MD-80 Aging Aircraft
Service Action Requirements Document,'' McDonnell Douglas Report No.
MDC K1572, Revision A, dated June 1, 1990, was approved previously
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51 as of September 24, 1990 (55 FR 34704,
August 24, 1990). The incorporation by reference of ``DC-9/MD-80
Aging Aircraft Service Action Requirements Document,'' McDonnell
Douglas Report No. MDC K1572, Revision B, dated January 15, 1993, is
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
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 90712; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(l) This amendment becomes effective on June 20, 1996.
Issued in Renton, Washington, on May 8, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12020 Filed 5-15-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-11974 United States Standards for Barley
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Page 24669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11974]
========================================================================
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. 96 / Thursday, May 16, 1996 / Rules
and Regulations
[[Page 24669]]
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and Stockyards Administration
7 CFR Parts 800 and 810
RIN 0580-AA14
United States Standards for Barley
AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA.
ACTION: Final rule; postponement of effective date.
-----------------------------------------------------------------------
SUMMARY: This document postpones the effective date of the final rule
(61 FR 18486) to revise the United States Standards for Barley from
June 1, 1996, until June 1, 1997. This action is being taken to
postpone the implementation of the United States Standards for Barley
from the beginning of the 1996 marketing season to the beginning of the
1997 marketing season. The extension of the effective date is being
taken to prevent disruption in the marketing of Barley on the domestic
and international markets. Postponing the effective date to the
beginning of the 1997 marketing session will allow adequate time for
the market to make adjustments to the changes being made in the
standards.
EFFECTIVE DATE: The effective date of the final rule is postponed from
June 1, 1996, to June 1, 1997.
FOR FURTHER INFORMATION CONTACT: George Wollam, USDA, GIPSA, Room 0623,
South Building, P.O. Box 96454, Washington, D.C. 20090-6454; Telephone
(202) 720-0292; FAX (202) 720-4628.
SUPPLEMENTARY INFORMATION: On March 22, 1995, the Grain Inspection,
Packers and Stockyards Administration (GIPSA), U.S. Department of
Agriculture, under authority of the United States Grain Standards Act,
as amended published a proposed rule (60 FR 15075) to revise the United
States Standards for Barley. The proposed rule was adopted, with
changes, and a final rule was published on April 26, 1996, (61 FR
18486), with an effective date of June 1, 1996.
Since the publication of the final rule, GIPSA has determined it is
in the best interest of the barley market to postpone the effective
date. Immediate implementation may not generate anticipated benefits to
the market but may adversely affect merchandisers of grain, especially
because of contracting concerns. After consultation with the trade and
taking into account trade views both for and against a change in the
effective date, GIPSA determined that it would be less disruptive if
the effective date for implementing the revisions to the United States
Standards for Barley were changed from June 1, 1996 to June 1, 1997.
Also providing a one year delay in implementing the standards would
allow for seasonal adjustment of markets.
Background
On page 18490, in the third column, second paragraph, the second
and third sentences ``Pursuant to that section of the Act, it has been
determined that in the public interest the revision becomes effective
June 1, 1996. This effective date will coincide with the beginning of
the 1996 crop year and facilitate domestic and export marketing of
barley'' are revised to read ``It has been determined that in the
public interest the revision becomes effective June 1, 1997. This
effective date will coincide with the beginning of the 1997 crop year
and facilitate domestic and export marketing of barley''.
Authority: Pub. L. 94-582, 90 Stat. 2867, as amended (7 U.S.C.
71 et seq.).
Dated: May 8, 1996.
David Orr,
Acting Administrator.
[FR Doc. 96-11974 Filed 5-15-96; 8:45 am]
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