issue-1996-05-21•Federal Register final rules — 1996-05-21
Federal Register final rules — 1996-05-21
issue-1996-05-21Federal Register final rules — 1996-05-21Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-12766 Defense Federal Acquisition Regulation Supplement; Institutions of Higher Education
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25407-25409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12766]
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[[Page 25408]]
DEPARTMENT OF DEFENSE
48 CFR Parts 209 and 243
[DFARS Case 96-D305]
Defense Federal Acquisition Regulation Supplement; Institutions
of Higher Education
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: The Director of Defense Procurement is amending the Defense
Federal Acquisition Regulation Supplement (DFARS) to implement a
statutory prohibition on providing funds to institutions of higher
education which have an anti-ROTC policy.
DATES: Effective date: May 21, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before July 22, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Mr. Michael Pelky, PDUSD
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, D.C.
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-
D305 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT: Michael Pelkey, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section 541 of the National Defense
Authorization Act for Fiscal Year 1996 (Public Law 104-106). Section
541 provides that no funds available to DoD may be provided by contract
or grant to institutions of higher education which have an anti-ROTC
policy.
B. Regulatory Flexibility Act
The Interim 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, 5 U.S.C. 601, et seq., because the rule
only applies to institutions of higher education which are determined
to have an anti-ROTC policy. An initial regulatory flexibility analysis
has therefore not been performed. Comments are invited from small
businesses and other interested parties. Comments from small entities
concerning the affected DFARS subparts will be considered in accordance
with Section 610 of the Act. Such comments must be submitted separately
and cite DFARS Case 96-D305 in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does
not impose any information collection requirements which require the
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense to issue this rule as an interim rule. Compelling reasons
exist to promulgate this rule without prior opportunity for public
comment. This rule implements Section 541 of the National Defense
Authorization Act for Fiscal year 1996 (Public Law 104-106), which was
effective upon enactment on February 10, 1996. However, comments
received in response to the publication of this rule will be considered
in formulating the final rule.
List of Subjects in 48 CFR Parts 209 and 243
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 209 and 243 are amended as follows:
PART 209--CONTRACTOR QUALIFICATIONS
The authority citation for 48 CFR Parts 209 and 243 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Sections 209.470-1 and 209.470-2 are revised to read as follows:
209.470-1 Policy.
(a)(1) Section 558 of the National Defense Authorization Act for
Fiscal Year 1995 (Public Law 103-337) provides that no funds available
to DoD may be provided by grant or contract to any institution of
higher education that has a policy of denying or that effectively
prevents the Secretary of Defense from obtaining for military
recruiting purposes--
(i) Entry to campuses or access to students on campuses; or
(ii) Access to directory information pertaining to students.
(2) Section 541 of the National Defense Authorization Act for
Fiscal Year 1996 (10 U.S.C. 983) provides that no funds appropriated or
otherwise available to DoD may be obligated by contract or by grant,
including a grant of funds to be available for student aid, to any
institution of higher education that, as determined by the Secretary of
Defense, has an anti-ROTC policy and at which, as determined by the
Secretary, the Secretary would otherwise maintain or seek to establish
a unit of the Senior Reserve Officer Training Corps, or at which the
Secretary would otherwise enroll or seek to enroll students for
participation in a unit of the Senior Reserve Officer Training Corps at
another nearby institution of higher education. This prohibition
applies to new contracts and all contract modifications. (See 243.105.)
This prohibition shall cease to apply to that institution upon a
determination by the Secretary that the institution no longer has an
anti-ROTC policy.
(b) Institutions of higher education that are determined under 32
CFR part 216 to have the policy or practice in paragraph (a)(1) or
(a)(2) of this subsection shall be listed as ineligible on the List of
Parties Excluded from Federal Procurement and Nonprocurement Programs
published by the General Services Administration. (See FAR 9.404.)
(c) In cases where a determination is made under 32 CFR part 216
that specific subordinate elements of an institution of higher
education, rather than the institution as a whole, have the policy or
practice in paragraph (a)(1) or (a)(2) of this subsection, 32 CFR part
216 provides that the prohibition on use of DoD funds applies only to
those subordinate elements.
209.470-2 Procedures.
(a) Agencies shall not solicit offers from, award contracts to, or
consent to subcontracts with ineligible contractors.
(b) After a determination of ineligibility under 209.470-1(a)(1),
departments and agencies shall make no further payments under existing
contracts with the institutions, and shall initiate termination action.
PART 243--CONTRACT MODIFICATIONS
3. Section 243.105 is revised to read as follows:
243.105 Availability of funds.
(a)(i) 10 U.S.C. 2405 prohibits adjustments in price under a
shipbuilding contract entered into after December 7, 1983, for a claim,
request for equitable adjustment, or demand for payment under the
contract, arising out of events occurring more than 18 months before
submission of the claim, request, or demand.
(ii) Section 558 of the National Defense Authorization Act for
Fiscal Year 1995 (Public Law 103-337)
[[Page 25409]]
provides that no funds available to DoD may be provided by contract or
contract modification, nor may contract payments be made, to an
institution of higher education that has a policy of denying or that
effectively prevents the Secretary of Defense from obtaining for
military recruiting purposes--
(A) Entry to campuses or access to students on campuses; or
(B) Access to directory information pertaining to students. (See
209.470.)
(iii) Pursuant to 10 U.S.C. 983, no funds may be obligated by
contract or contract modification to an institution of higher education
that has an anti-ROTC policy. (See 209.470.)
[FR Doc. 96-12766 Filed 5-20-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-12765 Defense Federal Acquisition Regulation Supplement; Direct Submission of Vouchers to Disbursing Office
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Page 25409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12765]
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DEPARTMENT OF DEFENSE
48 CFR Part 242
[DFARS Case 96-D007]
Defense Federal Acquisition Regulation Supplement; Direct
Submission of Vouchers to Disbursing Office
AGENCY: Department of Defense (DOD).
ACTION: Final rule.
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SUMMARY: The Director of Defense Procurement is amending the Defense
Federal Acquisition Regulation Supplement (DFARS) to allow the contract
auditor to authorize direct submission of interim vouchers for
provisional payment to the disbursing office, for contractors with
approved billing systems.
EFFECTIVE DATE: May 21, 1996.
FOR FURTHER INFORMATION CONTACT: Rick Layser, PDUSD(A&T)DP(DAR), IMD
3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telefax (703)
602-0350. Please cite DFARS Case 96-D007.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends DFARS 242.803 to reduce unnecessary review
and approval, by the contract auditor, of interim vouchers for
provisional payment under DoD contracts.
B. Regulatory Flexibility Act
This final rule does not constitute a significant DFARS revision
within the meaning of FAR 1.501 and Public Law 98-577 and publication
for public comment is not required. Therefore, the Regulatory
Flexibility Act does not apply. However, comments from small entities
concerning the affected DFARS subpart will be considered in accordance
with 5 U.S.C. 610. Such comments should cite DFARS Case 96-D007 in
correspondence.
C. Paperwork Reduction Act
This rule does not impose any new information collection
requirements which require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 242
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Part 242 is amended as follows:
PART 242--CONTRACT ADMINISTRATION
1. The authority citation for 48 CFR Part 242 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Section 242.803 is amended by redesignating paragraphs (b)(i)(C)
and (b)(i)(D) as paragraphs (b)(i)(D) and (b)(i)(E), respectively, and
by adding a new paragraph (b)(i)(C) to read as follows:
242.803 Disallowing costs after incurrence.
* * * * *
(b) * * *
(i) * * *
(C) Authorizing direct submission of interim vouchers for
provisional payment to the disbursing office for contractors with
approved billing systems.
* * * * *
[FR Doc. 96-12765 Filed 5-20-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-12762 Indirect Food Additives: Paper and Paperboard Components
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25392-25395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12762]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 176
[Docket No. 92F-0313]
Indirect Food Additives: Paper and Paperboard Components
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of diethanolamine as a
boiler water additive in paper mill boilers used in the manufacture of
paper and paperboard intended for use in contact with aqueous and fatty
food. This action is in response to a food additive petition filed by
Betz Laboratories, Inc.
DATES: Effective May 21, 1996; written objections and requests for a
hearing by June 20, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Diane E. Robertson, Center for Food
Safety and Applied Nutrition (HFS-216), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-418-3089.
[[Page 25393]]
SUPPLEMENTARY INFORMATION:
I. Background
In a notice published in the Federal Register of September 14,
1992 (57 FR 41944), FDA announced that a food additive petition (FAP
2B4329) had been filed by Betz Laboratories, Inc., 4636 Somerton Rd.,
Trevose, PA 19053-6783. The petition proposed to amend the food
additive regulations in Sec. 176.170 Components of paper and paperboard
in contact with aqueous and fatty foods (21 CFR 176.170) to provide for
the safe use of diethanolamine as a boiler water additive in paper mill
boilers.
In its evaluation of the safety of this additive, FDA has reviewed
the safety of the additive itself and the chemical impurities that may
be present in the additive resulting from its manufacturing process.
Although the additive itself has not been shown to cause cancer, it may
contain minute amounts of 1,4-dioxane and ethylene oxide, which are
carcinogenic impurities, resulting from the manufacture of the
additive. Residual amounts of reactants and manufacturing aids, such as
1,4-dioxane and ethylene oxide, are commonly found as contaminants in
chemical products, including food additives.
II. Determination of Safety
Under the so-called ``general safety clause'' of the Federal Food,
Drug, and Cosmetic Act (the act) (21 U.S.C. 348(c)(3)(A)),'' a food
additive cannot be approved for a particular use unless a fair
evaluation of the data available to FDA establishes that the additive
is safe for that use. FDA's food additive regulations (21 CFR 170.3(i))
define safe as ``a reasonable certainty in the minds of competent
scientists that the substance is not harmful under the intended
conditions of use.''
The food additives anticancer, or Delaney, clause of the act (21
U.S.C. 348(c)(3)(A)) provides that no food additive shall be deemed
safe if it is found to induce cancer when ingested by man or animal.
Importantly, however, the Delaney clause applies to the additive itself
and not to the impurities in the additive. That is, where an additive
itself has not been shown to cause cancer, but contains a carcinogenic
impurity, the additive is properly evaluated under the general safety
clause using risk assessment procedures to determine whether there is a
reasonable certainty that no harm will result from the proposed use of
the additive, Scott v. FDA, 728 F.2d 322 (6th Cir. 1984).
III. Safety of Petitioned Use of the Additive
FDA estimates that the petitioned use of the additive,
diethanolamine, will result in exposure to no greater than 5 parts per
billion (ppb) of the additive in the daily diet (3 kilograms (kg)) or
an estimated daily intake (EDI) of 15 micrograms per person per day
(/person/day) (Ref. 1) and that the cumulative dietary
concentration of the additive from all regulated uses is conservatively
58 ppb in the daily diet or an EDI of 170 /person/day.
FDA does not ordinarily consider chronic toxicological studies to
be necessary to determine the safety of an additive whose use will
result in such low exposure levels (Ref. 2), and the agency has not
required such testing here. However, the agency has reviewed the
available toxicological data on the additive and concludes that a small
increase in dietary exposure is safe.
FDA has evaluated the safety of this additive under the general
safety clause, considering all available data and using risk assessment
procedures to estimate the upper-bound limit of risk presented by 1,4-
dioxane and ethylene oxide, carcinogenic chemicals that may be present
as impurities in the additive. This risk evaluation of 1,4-dioxane and
ethylene oxide has two aspects: (1) Assessment of the worst-case
exposure to these impurities from the proposed use of the additive; and
(2) extrapolation of the risk observed in the animal bioassays to the
conditions of probable exposure to humans.
A. 1,4-Dioxane
FDA has estimated the hypothetical worst-case exposure to 1,4-
dioxane from the petitioned use of the additive in the manufacture of
paper to be 0.6 part per quadrillion (ppq) of the daily diet (3 kg), or
2 picograms (pg)/person/day (Ref. 3). The agency used data from a
carcinogenesis bioassay on 1,4-dioxane conducted by the National Cancer
Institute (Ref. 4), to estimate the upper-bound limit of lifetime human
risk from exposure to this chemical resulting from the proposed use of
the additive (Ref. 4). The results of the bioassay on 1,4-dioxane
demonstrated that the material was carcinogenic for female rats under
the conditions of the study. The test material caused significantly
increased incidence of squamous cell carcinomas and hepatocellular
tumors in female rats.
Based on the estimated worst-case exposure to 1,4-dioxane of 2 pg/
person/day, FDA estimates that the upper-bound limit of lifetime human
risk from the use of the subject additive is 6.9 x 10-14, or 6.9
in 100 trillion (Ref. 5). Because of the numerous conservative
assumptions used in calculating the exposure estimate, the actual
lifetime-averaged individual exposure to 1,4-dioxane is expected to be
substantially less than the worst-case exposure, and therefore, the
upper-bound limit of risk would be less. Thus, the agency concludes
that there is a reasonable certainty that no harm from exposure to 1,4-
dioxane would result from the proposed use of the additive.
B. Ethylene Oxide
FDA has estimated the hypothetical worst-case exposure to ethylene
oxide from the petitioned use of the additive in the manufacture of
paper to be 0.6 ppq of the daily diet (3 kg), or 2 pg/person/day (Ref.
3). The agency used data from a carcinogenesis bioassay on ethylene
oxide conducted for the Institute of Hygiene, University of Mainz,
Germany to estimate the upper-bound limit of lifetime human risk from
exposure to ethylene oxide resulting from the proposed use of the
additive (Ref. 6). The results of the bioassay on ethylene oxide
demonstrated that the material was carcinogenic for female rats under
the conditions of the study. The test material caused significantly
increased incidence of squamous cell carcinomas of the forestomach and
carcinomas in situ of the glandular stomach.
Based on the estimated worst-case exposure to ethylene oxide of 2
pg/person/day, FDA estimates that the upper-bound limit of lifetime
human risk from the use of the subject additive is 3.7 x 10-12, or
3.7 in 1 trillion (Ref. 5). Because of the numerous conservative
assumptions used in calculating the exposure estimate, actual lifetime-
averaged individual exposure to ethylene oxide is likely to be
substantially less than the worst-case exposure, and therefore, the
upper-bound limit of risk would be less. Thus, the agency concludes
that there is a reasonable certainty that no harm from exposure to
ethylene oxide would result from the proposed use of the additive.
C. Need for Specifications
The agency has also considered whether specifications are necessary
to control the amount of 1,4-dioxane and ethylene oxide present as
impurities in the additive. The agency finds that specifications are
not necessary for the following reasons: (1) Because of the low level
at which 1,4-dioxane and ethylene oxide may be expected to remain as
impurities following production of the additive, the agency would not
expect these impurities to
[[Page 25394]]
become components of food at other than extremely small levels; and (2)
the upper-bound limits of lifetime risk from exposure to these
impurities, even under worst-case assumptions, are very low, less than
6.9 in 100 trillion for 1,4-dioxane and less than 3.7 in 1 trillion for
ethylene oxide, respectively.
IV. Conclusion
FDA has evaluated the data in the petition and other relevant
material and concludes that the proposed use of the additive in paper
mill boilers used in the manufacture of paper and paperboard products
intended for use in contact with aqueous and fatty food is safe. Based
on this information, the agency has also concluded that the additive
will have the intended technical effect. Therefore, Sec. 176.170 should
be amended as set forth below.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in 21 CFR
171.1(h), the agency will delete from the documents any materials that
are not available for public disclosure before making the documents
available for inspection.
V. Environmental Impact
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
VI. Objections
Any person who will be adversely affected by this regulation may at
any time on or before June 20,1996, file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
VII. References
The following references have been placed on display in the
Dockets Management Branch (address above) and may be seen by interested
persons between 9 a.m. and 4 p.m., Monday through Friday.
1. Memorandum dated September 8, 1993, from the Chemistry Review
Branch (HFS-247), to the Indirect Additives Branch (HFS-216)
concerning ``FAP 2B4329 (MATS No. 654; M 2.1). Submission of 6/5/92;
Betz Laboratories. Diethanolamine in papermill boilers.''
2. Kokoski, C. J., ``Regulatory Food Additive Toxicology,'' in
Chemical Safety Regulation and Compliance, edited by F. Homburger
and J. K. Marquis, S. Karger, New York, NY, pp. 24-33, 1985.
3. Memorandum dated April 28, 1994, from the Chemistry Review
Branch (HFS-247) to the Indirect Additives Branch (HFS-216)
concerning ``FAP 2B4329 (MATS No. 654; M 2.4): Diethanolamine. Paper
mill boiler additive. Betz Laboratories-Submission of 4/8/94.''
4. ``Bioassay of 1,4-Dioxane for Possible Carcinogenicity,''
National Cancer Institute, NCI-CG-TR-80, 1978.
5. Memorandum, Report of the Quantitative Risk Assessment
Committee, October 28, 1994.
6. Dunkelberg, H., ``Carcinogenicity of Ethylene Oxide and 1,2-
Propylene Oxide Upon Intragastric Administration to Rats,'' British
Journal of Cancer, 46:924, 1982.-
List of Subjects in 21 CFR Part 176
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and
under authority delegated to the Commissioner of Food and Drugs, 21 CFR
part 176 is amended as follows:
PART 176--INDIRECT FOOD ADDITIVES: PAPER AND PAPERBOARD COMPONENTS
1. The authority citation for 21 CFR part 176 continues to read as
follows:
Authority: Secs. 201, 402, 406, 409, 721 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321, 342, 346, 348, 379e).
2. Section 176.170 is amended in the table in paragraph (a)(5) by
revising the entry for ``Diethanolamine'' under the heading
``Limitations'' to read as follows:
Sec. 176.170 Components of paper and paperboard in contact with
aqueous and fatty foods.
* * * * *
(a) * * *
(5) * * *
------------------------------------------------------------------------
List of Substances Limitations
------------------------------------------------------------------------
* * * *
* * *
Diethanolamine....................... For use only:
1. As an adjuvant to control pulp
absorbency and pitch content in
the manufacture of paper and
paperboard prior to the sheet-
forming operation.
2. In paper mill boilers.
* * * *
* * *
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[[Page 25395]]
* * * * *
Dated: May 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-12762 Filed 5-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-12761 Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25395-25396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12761]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 178
[Docket No. 93F-0385]
Indirect Food Additives: Adjuvants, Production Aids, and
Sanitizers
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations to provide for the safe use of formaldehyde,
polymer with 1-naphthylenol, as a release agent, applied on the
internal parts of reactors employed in the production of polyvinyl
chloride and acrylic copolymers intended for food-contact applications.
This action is in response to a petition filed by Compagnia Italiana di
Ricerca e Sviluppo, srl (CIRS).
DATES: Effective May 21, 1996; written objections and requests for a
hearing by June 20, 1996.
ADDRESSES: Submit written objections to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Vir D. Anand, Center for Food Safety
and Applied Nutrition (HFS-216), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-418-3081.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of November 18, 1993 (58 FR 60859), FDA announced that a food
additive petition (FAP 3B4380) had been filed by Compagnia Italiana di
Ricerca e Sviluppo, srl (CIRS),
c/o AAC Consulting Group, 1730 Rhode Island Ave. NW., Washington, DC
20036. The petition proposed to amend the food additive regulations in
part 178 (21 CFR part 178) to provide for the safe use of formaldehyde,
polymer with 1-naphthylenol, as an antiscaling agent, applied on the
internal parts of reactors employed in the production of polyvinyl
chloride and acrylic copolymers intended for food-contact applications.
During its review, the agency determined that the use of the additive
as an antiscaling agent has essentially the same technical effect as
that of a release agent. This final rule reflects this conclusion and
therefore FDA is listing the additive in Sec. 178.3860 Release agents.
FDA has evaluated data in the petition and other relevant material.
The agency concludes that the proposed use of the additive is safe and
that the regulations in Sec. 178.3860 should be amended as set forth
below.
FDA's review of the petition indicates that the additive may
contain trace amounts of formaldehyde as an impurity. The potential
carcinogenicity of formaldehyde was reviewed by the Cancer Assessment
Committee (the Committee) of FDA's Center for Food Safety and Applied
Nutrition. The Committee noted that for many years, formaldehyde has
been known to be a carcinogen by the inhalation route, but it concluded
that these inhalation studies are not appropriate for assessing the
potential carcinogenicity of formaldehyde in food. The Committee's
conclusion was based on the fact that the route of administration
(inhalation) is not relevant to the safety of formaldehyde residues in
food and the fact that tumors were observed only locally at the portal
of entry (nasal turbinates). In addition, the agency has received
literature reports of two drinking water studies on formaldehyde: (1) A
preliminary report of a carcinogenicity study purported to be positive
by Soffritti et al. (1989), conducted in Bologna, Italy (Ref. 1); and
(2) a negative study by Til et al. (1989), conducted in The Netherlands
(Ref. 2). The Committee reviewed both studies and concluded that data
concerning the Soffritti study reported, ``* * * were unreliable and
could not be used in the assessment of the oral carcinogenicity of
formaldehyde'' (Ref. 3). This conclusion is based on a lack of critical
details in the study, questionable histopathological conclusions, and
the use of unusual nomenclature to describe the tumors. Based on the
Committee's evaluation, the agency has determined that there is no
basis to conclude that formaldehyde is a carcinogen when ingested.
In accordance with Sec. 171.1(h) (21 CFR 171.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Food Safety and Applied Nutrition by appointment with the
information contact person listed above. As provided in 21 CFR
171.1(h), the agency will delete from the documents any materials that
are not available for public disclosure before making the documents
available for inspection.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
Any person who will be adversely affected by this regulation may at
any time on or before June 20, 1996, file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Soffritti, M., F. Maltoni, and R. Biagi, ``Formaldehyde: An
Experimental Multipotential Carcinogen,'' Toxicology and Industrial
Health, vol. 5, No. 5:699-730, 1989.
2. Til, H. P., R. A. Woutersen, V. J. Feron, V. H. M.
Hollanders, H. E. Falke, and J. J. Clary, ``Two-Year Drinking Water
Study of Formaldehyde in Rats,'' Food Chemical Toxicology, vol. 27,
No. 2, pp. 77-87, 1989.
3. Memorandum of conference concerning ``formaldehyde;'' meeting
of the Cancer Assessment Committee, FDA; April 24, 1991, and March
4, 1993.
[[Page 25396]]
List of Subjects in 21 CFR Part 178
Food additives, Food packaging.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
178 is amended as follows:
PART 178--INDIRECT FOOD ADDITIVES: ADJUVANTS, PRODUCTION AIDS, AND
SANITIZERS
1. The authority citation for 21 CFR part 178 continues to read as
follows:
-Authority: Secs. 201, 402, 409, 721 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 321, 342, 348, 379e).
2. Section 178.3860 is amended in the table in paragraph (b) by
alphabetically adding a new entry under the headings ``List of
substances'' and ``Limitations'' to read as follows:
Sec. 178.3860 Release agents.
* * * * *
(b) * * *
------------------------------------------------------------------------
List of substances Limitations
------------------------------------------------------------------------
* * * *
* * *
Formaldehyde, polymer with 1-naphthylenol For use only as an
(CAS Reg. No. 25359-91-5). antiscaling or release
agent, applied on the
internal parts of reactors
employed in the production
of polyvinyl chloride and
acrylic copolymers, provided
that the residual levels of
the additive in the polymer
do not exceed 4 parts per
million.
* * * *
* * *
------------------------------------------------------------------------
Dated: May 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-12761 Filed 5-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-12758 Chlorofluorocarbon Propellants in Self-Pressurized Containers; Addition to List of Essential Uses
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25390-25392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12758]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 2
[Docket No. 95P-0088]
Chlorofluorocarbon Propellants in Self-Pressurized Containers;
Addition to List of Essential Uses
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) has granted the
petition of Bryan Corp. (Bryan) to add sterile aerosol talc to the list
of products containing a chlorofluorocarbon (CFC) propellant for an
essential use. Essential use products are exempt from FDA's ban on the
use of CFC propellants in FDA-regulated products and the Environmental
Protection Agency's (EPA's) ban on the use of CFC's in pressurized
dispensers. This document amends FDA's regulations governing use of
CFC's to include sterile aerosol talc as an essential use.
EFFECTIVE DATE: June 4, 1996.
[[Page 25391]]
FOR FURTHER INFORMATION CONTACT: Wayne H. Mitchell, Center for Drug
Evaluation and Research (HFD-7), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-1049.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of March 1, 1996 (61 FR 8002), FDA
published, in response to a citizen petition submitted by Bryan, a
proposed rule to amend Sec. 2.125 (21 CFR 2.125) to add sterile aerosol
talc administered intrapleurally by thoracoscopy for human use to the
list of products containing a CFC propellant for an essential use.
Under Sec. 2.125 (21 CFR 2.125), any food, drug, device, or
cosmetic in a self-pressurized container that contains a CFC propellant
for a nonessential use is adulterated, or misbranded, or both, under
the Federal Food, Drug, and Cosmetic Act. This prohibition is based on
scientific research indicating that CFC's may reduce the amount of
ozone in the stratosphere and thereby increase the amount of
ultraviolet radiation reaching the earth. An increase in ultraviolet
radiation may increase the incidence of skin cancer, change the
climate, and produce other adverse effects of unknown magnitude on
humans, animals, and plants. Section 2.125(d) exempts from the
adulteration and misbranding provisions of Sec. 2.125(c) certain
products containing CFC propellants that FDA determines provide unique
health benefits that would not be available without the use of a CFC.
These products are referred to in the regulation as essential uses
of CFC's and are listed in Sec. 2.125(e). Under Sec. 2.125(f), any
person may petition the agency to request additions to the list of uses
considered essential. To demonstrate that the use of a CFC is
essential, the petition must be supported by an adequate showing that:
(1) There are no technically feasible alternatives to the use of a CFC
in the product; (2) the product provides a substantial health,
environmental, or other public benefit unobtainable without the use of
the CFC; and (3) the use does not involve a significant release of
CFC's into the atmosphere or, if it does, the release is warranted by
the consequence if the use were not permitted.
EPA regulations implementing provisions of the Clean Air Act
contain a general ban on the use of CFC's in pressurized dispensers (40
CFR 82.64(c) and 82.66(d)). These regulations exempt from the general
ban ``medical devices'' that FDA considers essential and that are
listed in Sec. 2.125(e). Section 601(8) of the Clean Air Act (42 U.S.C.
7671(8)) defines ``medical device'' as any device (as defined in the
Federal Food, Drug, and Cosmetic Act), diagnostic product, drug (as
defined in the Federal Food, Drug, and Cosmetic Act), and drug delivery
system, if such device, product, drug, or drug delivery system uses a
class I or class II ozone-depleting substance for which no safe and
effective alternative has been developed (and where necessary, approved
by the Commissioner of Food and Drugs (the Commissioner)); and if such
device, product, drug, or drug delivery system has, after notice and
opportunity for public comment, been approved and determined to be
essential by the Commissioner in consultation with the Administrator of
EPA (the Administrator). Class I substances include CFC's, halons,
carbon tetrachloride, methyl chloroform, methyl bromide, and other
chemicals not relevant to this document (see 40 CFR part 82, appendix A
to subpart A). Class II substances include hydrochlorofluorocarbons
(HCFC's) (see 40 CFR part 82, appendix B to subpart A).
II. Petition Received by FDA
Bryan submitted a petition under Sec. 2.125(f) and 21 CFR part 10
requesting an addition to the list of CFC uses considered essential.
The petition is on file under the docket number appearing in the
heading of this document and may be seen in the Dockets Management
Branch (HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm.
1-23, Rockville, MD 20857. The petition requested that sterile aerosol
talc be included in Sec. 2.125(e) as an essential use of CFC's. The
petition contained a discussion supporting the position that there are
no technically feasible alternatives to the use of CFC's in the
product. It included information showing that no alternative delivery
systems (e.g., the pneumatic atomizer) can assure consistent sterility.
The petition also stated that Bryan is unaware of any appropriate
substitute propellants (e.g., compressed gases). Also, the petition
stated that the product provides a substantial health benefit that
would not be obtainable without the use of CFC's. In this regard, the
petition contained information to support the use of this product in
the treatment of malignant pleural effusions, a condition in which
fluid accumulates in the space between the outside surface of the lung
and the inside surface of the chest wall (pleural cavity) as a result
of involvement by an underlying cancer. The petition also provided
information indicating that use of the product would involve a limited
release of CFC's into the atmosphere and the release is warranted by
the health benefits of the product.
Based on the evidence before it in the petition and in Bryan's new
drug application for the drug product, the agency has determined that
for many patients suffering from pleural effusions, the use of sterile
aerosol talc provides a special benefit that would be unavailable
without the use of CFC's. FDA also agrees that the use of CFC's for
this product does not involve a significant release of CFC's into the
atmosphere. Therefore, FDA is amending Sec. 2.125(e) to include sterile
aerosol talc administered intrapleurally by thoracoscopy for human use
in the list of essential uses of CFC propellants.
A copy of the proposed rule was provided to the Administrator.
Interested persons were given 30 days to comment on the proposed rule.
FDA received no comments on the proposed rule.
Analysis of Impacts
FDA has examined the impacts of the final rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The agency believes that
this final rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the final
rule is not a significant regulatory action as defined by the Executive
Order and so is not subject to review under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because the agency is not aware of any adverse
impact this final rule will have on any small entities, the agency
certifies that the final rule will not have a significant economic
impact on a substantial number of small entities. Therefore, under the
Regulatory Flexibility Act, no further analysis is required.
List of Subjects in 21 CFR Part 2
Administrative practice and procedure, Cosmetics, Devices, Drugs,
Foods.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
[[Page 25392]]
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
2 is amended as follows:
PART 2--GENERAL ADMINISTRATIVE RULINGS AND DECISIONS
1. The authority citation for 21 CFR part 2 continues to read as
follows:
-Authority: Secs. 201, 301, 305, 402, 408, 409, 501, 502, 505,
507, 512, 601, 701, 702, 704 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321, 331, 335, 342, 346a, 348, 351, 352, 355, 357,
360b, 361, 371, 372, 374); 15 U.S.C. 402, 409.
2. Section 2.125 is amended by adding new paragraph (e)(15) to
read as follows:
Sec. 2.125 Use of chlorofluorocarbon propellants in self-pressurized
containers.
* * * * *
(e) * * *
(15) Sterile aerosol talc administered intrapleurally by
thoracoscopy for human use.
* * * * *
Dated: May 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-12758 Filed 5-21-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-12757 Secondary Direct Food Additives Permitted in Food for Human Consumption; Correction
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Page 25392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12757]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 173
[Docket No. 93F-0483]
Secondary Direct Food Additives Permitted in Food for Human
Consumption; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is correcting the final
rule that appeared in the Federal Register of March 3, 1995 (60 FR
11899). The document amended the food additive regulations to provide
for the safe use of chlorine dioxide to control the microbial
population in poultry process water. The document was published with
some errors. This document corrects those errors. Additionally, the
agency is revising some of the discussion in the preamble for
clarification. These changes are not substantive and do not affect the
agency's conclusion regarding the use of chlorine dioxide in poultry
process water. The codified regulation remains unchanged.
FOR FURTHER INFORMATION CONTACT: Robert L. Martin, Center for Food
Safety and Applied Nutrition (HFS-217), Food and Drug Administration,
200 C St. SW., Washington, DC 20204-0001, 202-418-3074.
In FR Doc. 95-5275, appearing on page 11899 in the Federal Register
of Friday, March 3, 1995, the following corrections are made:
1. On page 11899, in the second column, in the first full
paragraph, beginning in line 8, ``reaction of chlorine with sodium
chlorite'' is corrected to read ``oxidation of sodium chlorite''; in
the same paragraph, beginning in line 10, ``acidification of sodium
chlorite'' is corrected to read ``disproportionation of sodium chlorite
in the presence of acids (Ref. 1).''; and in the same paragraph,
beginning in line 16, ``(Ref. 1).'' is corrected to read ``Ref. 1a).''
2. On page 11899, in the second column, in the second full
paragraph, in line 5, ``of chlorine'' is corrected to read ``with
chlorine''.
3. On page 11899, in the second column, in the fourth full
paragraph, in the 4th line from the bottom, ``studies'' is corrected to
read ``safety studies'' and in the 3rd line from the bottom
``petitioner were'' is corrected to read ``petitioner on poultry
were''.
4. On page 11899, in the third column, in the first paragraph, in
line 3, ``3 ppm'' is corrected to read ``100 ppm''.
5. On page 11899, in the third column, in the first paragraph,
beginning in line 5 and ending in line 21, ``These data show that
organic * * * in drinking water.)'' is corrected to read ``These data
show that comparable trace levels of chloroform and dichloromethane
were detected in both untreated and chlorine dioxide-treated poultry
process water and that chlorine dioxide treatment did not appear to
contribute to their formation.''
6. On page 11899, in the third column, in the first paragraph, in
line 23, ``20'' is corrected to read ``100'', and beginning in line 24,
``no mutagenic'' is corrected to read ``negligible mutagenic''.
7. On page 11899, in the third column, in the third paragraph,
beginning in line 8, ``(No chlorite or chlorate could * * * for the
method used).'' is removed.
(Note: The finding of no significant residues of chlorite and
chlorate was not based on chemical analysis. The agency determined that
any residues of chlorite and chlorate remaining on poultry would be
converted to chloride (a major component of table salt) during
cooking.)
8. On page 11900, in the first column, in the first full paragraph,
beginning in line 3, ``linoleic, linolenic, and arachidonic acid)'' is
corrected to read ``linoleic and linolenic acid)'', and in the same
paragraph, in line 11, ``levels 7 to 10 times'' is corrected to read
``levels 8 to 22 times''.
9. On page 11900, in the first column, in the second full
paragraph, in line 4, ``measurable'' is corrected to read
``significant''.
10. On page 11900, in the first column, in the third full
paragraph, in line 6, ``no'' is corrected to read ``negligible''.
11. On page 11900, in the third column, Ref. 1a is added to read
``1a. U.S. patent No. 4,247,531.'', and Ref. 6 is corrected to read
``6. CRC Handbook of Chemistry and Physics, 71st ed., 1990-1991, David
R. Lide, Editor-in-Chief, CRC Press, Boca Raton, FL. See Table of
Electrochemical Potentials (re chlorite and chlorate), sections 8-16.''
Dated: May 14, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-12757 Filed 5-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-12737 Availability of Information to Public
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Page 25390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12737]
=======================================================================
-----------------------------------------------------------------------
RAILROAD RETIREMENT BOARD
20 CFR Part 200
RIN 3220-AB19
Availability of Information to Public
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Railroad Retirement Board (Board) hereby amends its
regulations establishing fees to be assessed in connection with the
search for records and provision of documents by the Board. The
revision will eliminate the exemption from charge for the first 100
pages of reproduction and the first two hours of search time for
requesters of documents who are not included within the specific
categories provided in the regulations.
EFFECTIVE DATE: May 21, 1996.
ADDRESSES: Secretary to the Board, Railroad Retirement Board, 844 Rush
Street, Chicago, Illinois 60611.
FOR FURTHER INFORMATION CONTACT: Michael C. Litt, Bureau of Law,
Railroad Retirement Board, 844 Rush Street, Chicago, Illinois 60611,
(312) 751-4929, TDD (312) 751-4701.
SUPPLEMENTARY INFORMATION: Section 200.4(g)(2)(v) of the Board's
regulations provides for fees to be assessed in connection with the
production of documents for ``All other requesters'', i.e. those
requesters who do not fall within other categories provided for in the
regulation. Those other categories include requests by commercial
users, by educational and non-commercial scientific institutions, by
representatives of the news media, and by subjects of records in
Privacy Act Systems of Records. Currently Sec. 200.4(g)(2)(v) provides
that the Board does not charge ``other requesters'' for the first 100
pages of reproduction and the first two hours of search time.
The Board is authorized to charge for such costs of reproduction
and search time by section 12(d) of the Railroad Unemployment Insurance
Act (45 U.S.C. 362(d)) which provides, in pertinent part, that:
* * * the Board may furnish such information to any person or
organization upon payment by such person or organization to the
Board of the cost incurred by the Board by reason thereof; and the
amounts so paid to the Board shall be credited to the railroad
unemployment insurance administration fund established pursuant to
section 11(a) of this Act.
This provision is incorporated into the Railroad Retirement Act by
section 7(b)(3) of that Act (45 U.S.C. 231f(b)(3)).
The Board has been receiving an increasing number of genealogical
requests (almost 700 for the first six months of 1995 compared with
about 450 for the same period in 1994) with a current estimated cost
per request of $16.00. The Board has determined that it is more
equitable that the costs for provision of this information be borne by
the individuals who need the information, rather than the railroad
industry as a whole. Accordingly, the Board proposes to eliminate the
exemption from charge for the first 100 pages of reproduction and the
first two hours of search time for requesters covered by
Sec. 200.4(g)(2)(v).
This rule was published as a proposed rule on January 18, 1996,
inviting comments on or before March 18, 1996 (61 FR 1252). No comments
were received.
The Board, with the concurrence of the Office of Management and
Budget, has determined that this is not a significant regulatory action
for purposes of Executive Order 12866. Therefore, no regulatory impact
analysis is required. There are no information collections associated
with this rule.
List of Subjects in 20 CFR Part 200
Railroad employees, Railroad retirement, Railroad unemployment
insurance.
For the reasons set out in the preamble, title 20, chapter II, part
200 of the Code of Federal Regulations is amended as follows:
PART 200--GENERAL ADMINISTRATION
1. The authority citation for part 200 continues to read as
follows:
Authority: 45 U.S.C. 231f(b)(5) and 45 U.S.C. 362; Sec. 200.4
also issued under 5 U.S.C. 552; Sec. 200.5 also issued under 5
U.S.C. 552a; Sec. 200.6 also issued under 5 U.S.C. 552b; and
Sec. 200.7 also issued under 31 U.S.C. 3717.
2. Section 200.4 is amended by revising paragraph (g)(2)(v) to read
as follows:
Sec. 200.4 Availability of information to public.
* * * * *
(g) * * *
(2) * * *
(v) All other requesters. For requesters who do not fall within the
purview of paragraphs (g)(2) (i), (ii), (iii), or (iv) of this section,
the RRB will charge the full direct cost of searching for and
reproducing records that are responsive to the request. The RRB will
not charge for such costs to be assessed if the total is less than
$10.00. If the total is $10.00 or more, the RRB may waive the charge or
reduce it if it determines that disclosure of the information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
* * * * *
Dated: May 7, 1996.
By authority of the Board.
For the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 96-12737 Filed 5-20-96; 8:45 am]
BILLING CODE 7905-01-P
Complete official Federal Register PDF
FR Doc. 96-12718 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25400-25402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12718]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7180]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table below and revise the Flood Insurance Rate
Map(s) in effect prior to this determination for the listed
communities.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Acting Associate
Director for Mitigation reconsider the changes. The modified elevations
may be changed during the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based on knowledge of
changed conditions or new scientific or technical data.
The modifications are made pursuant to Section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR Part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program (NFIP).
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, State, or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director for Mitigation certifies that this
rule is exempt from the requirements of the Regulatory Flexibility Act
because modified base flood elevations are required by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to
maintain community eligibility in the NFIP. No regulatory flexibility
analysis has been prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of Section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR Part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for Part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona: Pima............... City of Tucson.............. Mar. 21, 1996, Mar. 28, 1996, The Honorable Feb. 22, 1996............... 040076
Arizona Daily Star. George Miller,
Mayor, City of
Tucson, P.O.
Box 27210,
Tucson,
Arizona 85710-
7210.
[[Page 25401]]
Colorado: Summit............ Unincorporated areas........ Mar. 6, 1996, Mar. 13, 1996, The Honorable Feb. 8, 1996................ 080290
Summit County Journal. Marsha Osborn,
Chairperson,
Summit County
Board of
Commissioners,
P.O. Box 68,
Breck-enridge,
Colorado 80424.
Kansas:
Johnson................. City of Olathe.............. Mar. 20, 1996, Mar. 27, 1996, The Honorable Feb. 23, 1996............... 200173
Johnson County Sun. Larry
Campbell,
Mayor, City of
Olathe, P.O.
Box 768,
Olathe, Kansas
66051-0768.
Johnson................. City of Overland Park....... Mar. 20, 1996, Mar. 27, 1996, The Honorable Feb. 23, 1996............... 200174
Johnson County Sun. Ed Eilert,
Mayor, City of
Overland Park,
P.O. Box 168,
Overland Park,
Kansas 66212.
Sedgwick................ Unincorporated areas........ Mar. 1, 1996, Mar. 8, 1996, The Honorable Feb. 12, 1996............... 200321
Daily Reporter. Mark
Schroeder,
Chairman,
Board of
County
Commissioners,
Sedgwick
County, 525
North Main
Street, Suite
320, Wichita,
Kansas 67203.
Maryland: Montgomery........ City of Gaithersburg........ Mar. 20, 1996, Mar. 27, 1996, The Honorable Feb. 27, 1996............... 240050
Gaithersburg Gazette. W. Edward
Bohrer, Jr.,
Mayor, City of
Gaithersburg,
31 South
Summit Avenue,
Gaithersburg,
Maryland 20877-
2098.
Montana: Fergus............. Town of Denton.............. Mar. 20, 1996, Mar. 27, 1996, The Honorable Feb. 23, 1996............... 300020
Lewistown News-Argus. Robert
Patterson,
Mayor, Town of
Denton, Office
of the Town
Clerk, Denton,
Montana 59430.
Oklahoma: Canadian.......... City of Oklahoma City....... Mar. 13, 1996, Mar. 20, 1996, The Honorable Feb. 26, 1996............... 405378
Journal Record. Ronald J.
Norick, Mayor,
City of
Oklahoma City,
200 North
Walker Avenue,
Oklahoma City,
Oklahoma 73102.
Texas:
Travis.................. City of Austin.............. Mar. 13, 1996, Mar. 20, 1996, The Honorable Jan. 19, 1996............... 480624
Williamson County Sun. Bruce Todd,
Mayor, City of
Austin, P.O.
Box 1088,
Austin, Texas
78767.
Tarrant................. City of Bedford............. Mar. 22, 1996, Mar. 29, 1996, The Honorable Mar. 5, 1996................ 480585
Fort Worth Star-Telegram. Rick D. Hurt,
Mayor, City of
Bedford, P.O.
Box 157,
Bedford, Texas
76095-0157.
El Paso................. City of El Paso............. Mar. 7, 1996, Mar. 14, 1996, El The Honorable Feb. 16, 1996............... 480214
Paso Times. Larry Francis,
Mayor, City of
El Paso, Two
Civic Center
Plaza, El
Paso, Texas
79901-1196.
Bexar, Comal, and City of Schertz............. Mar. 7, 1996, Mar. 14, 1996, The Honorable Feb. 14, 1996............... 480269
Guadalupe. Herald Newspaper. Earl W.
Sawyer, Mayor,
City of
Schertz, P.O.
Drawer I,
Schertz, Texas
78154.
[[Page 25402]]
Smith....................... City of Tyler............... Mar. 21, 1996, Mar. 28, 1996, The Honorable Feb. 20, 1996............... 480571
Tyler Morning Telegraph. Smith T.
Reynolds, Jr.,
Mayor, City of
Tyler, P.O.
Box 2039,
Tyler, Texas
75710-2039.
Williamson.................. Unincorporated areas........ Mar. 13, 1996, Mar. 20, 1996, The Honorable Jan. 19, 1996............... 481079
Williamson County Sun. John Doerfler,
Williamson
County Judge,
Williamson
County
Courthouse,
710 Main
Street,
Georgetown,
Texas 78626.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: May 13, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-12718 Filed 5-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-12716 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25402-25403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12716]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7178]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table and revise the Flood Insurance Rate
Map(s) (FIRMs) in effect prior to this determination for each listed
community.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Acting Associate
Director reconsider the changes. The modified elevations may be changed
during the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based upon knowledge of
changed conditions, or upon new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director, Mitigation Directorate, certifies
that this rule is exempt from the requirements of the Regulatory
Flexibility Act because modified base flood elevations are required by
the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are
required to maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
[[Page 25403]]
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Florida: Lake............... Unincorporated areas........ Mar. 26, 1996, Apr. 2, 1996 The Ms. Sue Mar. 18, 1996............... 120421 B
Lake Sentinel. Whittle, Lake
County
Manager, P.O.
Box 7800,
Tavares,
Florida 32778.
Georgia: Bryan.............. Unincorporated areas........ Mar. 27, 1996, Apr. 3, 1996, Mr. Thomas Mar. 19, 1996............... 130016 A
Richmond Hill-Bryan County News. Bacon,
Chairman of
the Bryan
County Board
of
Commissioners,
P.O. Box 430,
Pembroke,
Georgia 31321.
Illinois: McHenry County.... Lake-In-The-Hills (Village). Mar. 15, 1996, Mar. 22, 1996, Ms. Christine Mar. 7, 1996................ 170481 C
The Northwest Herald. Thornrose,
President of
the Village of
Lake-In-The-
Hills, 1115
Crystal Lake
Road, Lake-In-
The-Hills,
Illinois 60102.
Indiana: Lake............... Schererville (town)......... Mar 27, 1996, Apr. 3, 1996, Post- Mr. Stephen Z. July 2, 1996................ 180142 B
Tribune. Kil, Manager
of the Town of
Schererville,
833 West
Lincoln
Highway,
Schererville,
Indiana 46375.
New Jersey: Union........... Roselle (borough)........... Apr. 11, 1996, Apr. 18, 1996, The Honorable April 2, 1996............... 340472 A
Roselle Spectator. Joseph L.
Picaro, Mayor
of the Borough
of Roselle,
210 Chestnut
Street,
Roselle, New
Jersey 07203.
North Carolina: Dare........ Unincorporated areas........ Apr. 2, 1996, Apr. 9, 1996, The Mr. Robert V. Mar. 25, 1996............... 375348 E
Coastal Times. Owens,
Chairman of
the Dare
County Board
of
Commissioners,
P.O. Box 1000,
Manteo, North
Carolina 27954.
Puerto Rico................. Commonwealth................ Mar. 19, 1996, Mar. 25, 1996, El Ms. Norma N. Sept. 13, 1996.............. 720000 C
Nuevo Dia. Burgos-
Andujar,
Chairwoman of
the Puerto
Rico Planning
Board,
Minillas
Station, P.O.
Box 41119, San
Juan, Puerto
Rico 00940-
9985.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: May 13, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-12716 Filed 5-20-96; 8:45 am]
BILLING CODE 6718-03-P
Complete official Federal Register PDF
FR Doc. 96-12715 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25403-25405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12715]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATES: The effective dates for these modified base flood
elevations are indicated on the following table and revise the Flood
Insurance Rate Map(s) (FIRMs) in effect for each listed community prior
to this date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of modified base flood
elevations for each community listed. These modified elevations have
been published in newspapers of local circulation and ninety (90) days
have elapsed since that publication. The Acting Associate Director has
resolved
[[Page 25404]]
any appeals resulting from this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings. The changes in base flood elevations are in accordance with
44 CFR 65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director, Mitigation Directorate, certifies
that this rule is exempt from the requirements of the Regulatory
Flexibility Act because modified base flood elevations are required by
the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are
required to maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612 Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georgia: Cobb (FEMA Docket City of Marietta............ Dec. 1, 1995, Dec. 8, 1995, The Honorable Oct. 23, 1995............... 130226F
No. 7169). Marietta Daily Journal. Ansley
Meaders, Mayor
of the City of
Marietta, P.O.
Box 609,
Marietta,
Georgia 30061.
Indiana:
Hamilton (FEMA Docket City of Carmel.............. Nov. 8, 1995, Nov. 15, 1995, The Honorable Oct. 31, 1995............... 180081
No. 7169). Carmel News Tribune. James
Brainard,
Mayor of the
City of
Carmel, One
Civic Square,
Carmel,
Indiana 46032.
Johnson (FEMA Docket No. Unincorporated areas........ Oct. 18, 1995, Oct. 25, 1995, Mr. Joseph Jan. 23, 1996............... 180111C
7165). Daily Journal. Dettart,
Chairman of
the Johnson
County Board
of
Commissioners,
86 West Court
Street,
Courthouse
Annex,
Franklin,
Indiana 46131.
New Jersey: Bergen (FEMA Borough of Rockleigh........ Oct. 18, 1995, Oct. 25, 1995, The Honorable Oct. 13, 1995............... 340071F
Docket No. 7165). The Record. Roberta Adams,
Mayor of the
Borough of
Rockleigh, 26
Rockleigh
Road,
Rockleigh, New
Jersey 07647.
[[Page 25405]]
Pennsylvania: Clinton (FEMA Borough of Flemington....... Nov. 21, 1995, Nov. 28, 1995, Mr. Gerry Nov. 13, 1995............... 420326B
Docket No. 7169). The Lock Haven Express. Yanneralla,
President of
the Flemington
Borough
Council, 126
High Street,
Flemington,
Pennsylvania
17745.
Wisconsin: Juneau (FEMA Unincorporated areas........ June 1, 1995, June 8, 1995, Mr. James May 25, 1995................ 550580C
Docket No. 7165). Juneau County Star Times. Barrett,
President of
the Juneau
County Board,
220 State
Street,
Juneau,
Wisconsin
53948.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: May 13, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-12715 Filed 5-20-96; 8:45 am]
BILLING CODE 6718-03-P
Complete official Federal Register PDF
FR Doc. 96-12713 Final Flood Elevation Determinations
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25405-25407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12713]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the maps are available for inspection as indicated on the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street,
SW., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA or Agency) makes final determinations listed below of base flood
elevations and modified base flood elevations for each community
listed. The proposed base flood elevations and proposed modified base
flood elevations were published in newspapers of local circulation and
an opportunity for the community or individuals to appeal the proposed
determinations to or through the community was provided for a period of
ninety (90) days. The proposed base flood elevations and proposed
modified base flood elevations were also published in the Federal
Register.
This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67.
The Agency has developed criteria for floodplain management in
floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and Flood Insurance Rate Map
available at the address cited below for each community.
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director, Mitigation Directorate, certifies
that this rule is exempt from the requirements of the Regulatory
Flexibility Act because final or modified base flood elevations are
required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104,
and are required to establish and maintain community eligibility in the
National Flood Insurance Program. No regulatory flexibility analysis
has been prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
PART 67--[AMENDED]
1. The authority citation for part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
[[Page 25406]]
------------------------------------------------------------------------
# Depth in
feet above
ground. *
Source of flooding and location Elevation
in feet
(NGVD)
------------------------------------------------------------------------
ALABAMA
-------------------------------------------------------------
Oneonta (city), Blount County (FEMA Docket No. 7168)
Dry Creek:
Approximately 0.4 mile downstream of Pocoda Drive........... *785
At U.S. Route 231......................................... *850
Maps available for inspection at the Oneonta City Hall, 202
Third Avenue East, Oneonta, Alabama.
-------------------------------------------------------------
MASSACHUSETTS
-------------------------------------------------------------
Gay Head (town), Dukes County (FEMA Docket No. 7164)
Atlantic Ocean:
Approximately 0.7 mile west of the intersection of Black
Brook and Moshup Trail................................... *9
Approximately 1,400 feet southwest of the intersection of
Moshup Trail and South Road near Lighthouse Road......... *11
Menemsha Bight:
Approximately 600 feet north of the intersection of
Lobsterville Road and West Payson Road................... *12
Approximately 500 feet north of the intersection of
Lobsterville Road and West Payson Road................... *10
Vineyard Sound:
Approximately 0.4 mile north of the intersection of
Lighthouse Road and Moshup Trail........................... *11
Maps available for inspection at the Office of the Building
Inspector, 65 State Road, Gay Head, Massachusetts.
------
West Tisbury (Town), Dukes County (FEMA Docket No. 7164)
Atlantic Ocean:
Approximately 700 feet south of the end of Butlers Pond
Road..................................................... *10
Approximately 650 feet south of the intersection of Jennie
Athearn Road and Little Homer Pond Road.................. *9
Maps available for inspection at the West Tisbury Town Hall,
1059 State Street, West Tisbury, Massachusetts.
-------------------------------------------------------------
MICHIGAN
-------------------------------------------------------------
Hartland (township), Livingston County (FEMA Docket No.
7155)
North Ore Creek:
At Parshallville Road..................................... *909
At Fenton Road............................................ *966
Maps available for inspection at the Hartland Township
Office, 3191 Hartland Road, Hartland, Michigan.
-------------------------------------------------------------
MINNESOTA
-------------------------------------------------------------
Koochiching County (unincorporated areas) (FEMA Docket No.
7138)
Rainy River:
At downstream county boundary with the City of
International Falls...................................... *1,111
At Canadian National Railroad bridge...................... *1,112
Maps available for inspection at the Administration Office,
Koochiching County Courthouse, International Falls,
Minnesota.
-------------------------------------------------------------
NORTH CAROLINA
-------------------------------------------------------------
Williamston (town), Martin County (FEMA Docket No. 7164)
Roanoke River:
Approximately 0.3 mile downstream of U.S. Route 13........ *12
Approximately 0.4 mile upstream of U.S. Route 13.......... *12
Maps available for inspection at the Town Hall, 100 East
Main Street, Williamston, North Carolina.
-------------------------------------------------------------
NEW YORK
-------------------------------------------------------------
Dresden (town), Washington County (FEMA Docket No. 7164)
Lake George:
Entire shoreline within community......................... *321
Maps available for inspection at the Town Hall, Dresden
Center Road, RD 1, Whitehall, New York.
------
Elmira (town), Chemung County (FEMA Docket No. 7164)
Newtown Creek:
Approximately 0.5 mile downstream of confluence of Diven
Creek.................................................... *861
Approximately 0.51 mile upstream of confluence of Diven
Creek.................................................... *862
McCann's Tributary:
At confluence with Diven Creek............................ *861
Approximately 825 feet upstream of McCann's Boulevard..... *862
Maps available for inspection at the Elmira Town Hall, 1255
West Water Street, Elmira, New York.
------
Elmira Heights (village), Chemung County (FEMA Docket No.
7164)
McCann's Tributary:
At McCann's Boulevard..................................... *861
Approximately 1,000 feet upstream of McCann's Boulevard... *862
Maps available for inspection at the Elmira Heights Village
Hall, 215 Elmwood Avenue, Elmira Heights, New York.
------
Geneseo (town), Livingston County (FEMA Docket No. 7168)
Jaycox Creek:
At Lima Road.............................................. *815
Approximately 2.79 miles upstream of Lima Road............ *1001
Maps available for inspection at the Geneseo Town Office,
119 Main Street, Geneseo, New York.
------
Geneseo (village), Livingston County (FEMA Docket No. 7168)
Jaycox Creek:
Approximately 75 feet downstream of downstream corporate
limits................................................... *822
Approximately 330 feet upstream of Seminole Avenue........ *867
Genesee River:
At downstream corporate limit............................. *557
At upstream corporate limit............................... *558
Maps available for inspection at the Geneseo Village Office,
119 Main Street, Geneseo, New York.
------
Hague (town), Warren County (FEMA Docket 7168)
Lake George:
Entire shoreline within community......................... *321
Maps available for inspection at the Town of Hague Community
Center, Route 8, Hague, New York.
------
Hillburn (village), Rockland County (FEMA Docket No. 7164)
Ramapo River:
Approximately 550 feet downstream of the downstream
crossing of the Conrail.................................. *277
At upstream corporate limits.............................. *299
[[Page 25407]]
Maps available for inspection at the Village Hall, 31
Mountain Avenue, Hillburn, New York.
------
Horseheads (town), Chemung County (FEMA Docket No. 7164)
Beaver Brook:
At confluence with Newtown Creek.......................... *877
Approximately 1,035 feet upstream of East Mills Street.... *885
North Branch Newtown Creek:
At confluence with Newtown Creek.......................... *929
Approximately 325 feet upstream of confluence with Newtown
Creek...................................................... *932
Maps available for inspection at the Horseheads Town Hall,
150 Wygant Road, Horseheads, New York.
------
Horseheads (village), Chemung County (FEMA Docket No. 7164)
Newtown Creek:
Approximately 750 feet downstream of Route 14/17.......... *877
Approximately 535 feet upstream of East Franklin Street... *891
Maps available for inspection at the Horseheads Village
Hall, 202 South Main Street, Horseheads, New York.
------
Lake George (village), Warren County (FEMA Docket No. 7159)
Lake George:
Entire shoreline within community......................... *321
Maps available for inspection at the Village of Lake George
Administrative Building, Amherst Street, Lake George, New
York.
------
Lewis (town), Lewis County (FEMA Docket No. 7168)
East Branch Mohawk River:
Approximately 0.47 mile downstream of State Route 26...... *1457
Approximately 0.74 mile upstream of State Route 26........ *1499
Maps available for inspection at the Lewis Town Clerk's
Office, 791 Main Street, West Leyden, New York.
-------------------------------------------------------------
OHIO
-------------------------------------------------------------
Dayton (city), Montgomery County (FEMA Docket No. 7164)
Lilly Creek:
Approximately 0.15 mile upstream of confluence with Mad
River.................................................... *761
Approximately 0.60 mile upstream of Byesville Boulevard... *781
Shallow Ponding Area (Zone AH):
Just Southeast of Springfield Pike; approximately 900 feet
northeast of unnamed road................................ *767
Approximately 200 feet northwest of Springfield Pike...... *766
Maps available for inspection at the Dayton City Hall, 101
West Third Street, Dayton, Ohio.
------
Montgomery County (unincorporated areas) (FEMA Docket No.
7168)
Lilly Creek:
Approximately 100 feet downstream of downstream corporate
limits................................................... *780
At upstream corporate limits.............................. *786
Maps available for inspection at the County Planning
Commission, 451 North Third Street, Dayton, Ohio.
------
Riverside (city), Montgomery County (FEMA Docket No. 7168)
Lilly Creek:
Approximately 200 feet upstream of Byesville Boulevard.... *768
Approximately 132 feet downstream of Harshman Road........ *787
Shallow Ponding Area (Zone AH):
Approximately 700 feet northwest of the intersection of
Byesville Boulevard and Fairfax Avenue................... *766
Approximately 500 feet north of intersection of Glendean
Avenue and Springfield Avenue............................ *766
Just south of intersection of Springfield Pike and Fairfax
Avenue................................................... *767
North side of intersection of Fairfax Avenue and Derwent
Drive.................................................... *767
Shallow Flooding Area (Zone AO):
Southside of intersection of Fairfax Avenue and Derwent
Drive.................................................... #2
North side of intersection of Fairpark Avenue and Fairfax
Avenue................................................... #2
Shallow Ponding Area (Zone AH):
Approximately 700 feet northwest of the intersection of
Byesville Boulevard and Fairfax Avenue................... *766
Approximately 500 feet north of intersection of Glendean
Avenue and Springfield Avenue............................ *766
Maps available for inspection at the City Hall, 1791
Harshman Road, Riverside, Ohio.
-------------------------------------------------------------
PENNSYLVANIA
-------------------------------------------------------------
Shirley (Township), Huntingdon County (FEMA Docket No. 7164)
Aughwick Creek:
Approximately 1,090 feet upstream of U.S. Route 522....... *571
Approximately 1,775 feet upstream of U.S. Route 522....... *571
Maps available for inspection at the Shirley Township
Building, Shirleysburg, Pennsylvania.
-------------------------------------------------------------
PUERTO RICO
-------------------------------------------------------------
Commonwealth (FEMA Docket No. 7149)
Espiritu Santo River:
Approximately 0.65 kilometer upstream of the confluence
with the Atlantic Ocean.................................. *2.2
Approximately 4.61 kilometers upstream of the confluence
with the Atlantic Ocean.................................. *6.9
Rio Guanajibo:
Approximately 1,200 meters downstream of Puerto Rico
Highway 2................................................ *80.0
Approximately 870 meters downstream of Puerto Rico Highway
368...................................................... *100.8
*Elevation in meters (Mean Sea Level)
Maps available for inspection at the North Minillas
Building, Dediezo Avenue, 22 Top, Santurce, Puerto Rico.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: May 13, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-12713 Filed 5-20-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-12683 Availability of Funds and Collection of Checks
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25389-25390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12683]
========================================================================
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. 99 / Tuesday, May 21, 1996 / Rules
and Regulations
[[Page 25389]]
FEDERAL RESERVE SYSTEM
12 CFR Part 229
[Regulation CC; Docket No. R-0925]
Availability of Funds and Collection of Checks
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: The Board is publishing technical amendments to Appendices A
and B of Regulation CC. The amendments will conform the Appendices to a
realignment in Federal Reserve check-processing regions by adding the
routing numbers formerly assigned to the Jericho check-processing
region to the East Rutherford check-processing region in Appendix A,
and by eliminating the reference to routing numbers formerly assigned
to the Jericho office that were subject to a reduced availability
schedule for depositary banks in the East Rutherford check-processing
territory in Appendix B.
EFFECTIVE DATE: October 15, 1996.
FOR FURTHER INFORMATION CONTACT: Stephanie Martin, Senior Attorney
(202/452-3198), or Heatherun Allison, Attorney (202/452-3565), Legal
Division. For the hearing impaired only: Telecommunications Device for
the Deaf, Dorothea Thompson (202/452-3544).
SUPPLEMENTARY INFORMATION: The Board's Regulation CC (12 CFR part 229)
implements the Expedited Funds Availability Act (12 U.S.C. 4001 et
seq.) and requires banks 1 to make funds deposited into
transaction accounts available for withdrawal within specified time
frames. The Act and regulation allow banks to place longer holds on
nonlocal checks than on local checks. A nonlocal check is one for which
the paying bank 2 is located in a different check-processing
region than the depositary bank. Regulation CC defines ``check-
processing region'' as ``the geographical area served by an office of a
Federal Reserve Bank for purposes of its check-processing activities.''
3 Appendix A of Regulation CC lists the Federal Reserve check-
processing offices and the 4-digit routing number prefixes that are
local to each office. Appendix B of Regulation CC lists 4-digit routing
number prefixes to which reduced availability schedules apply in
certain cases.
---------------------------------------------------------------------------
\1\ The term bank refers to any depository institution,
including commercial banks, savings institutions, and credit unions.
\2\ The paying bank is the bank by, at, or through which a check
is payable. The depositary bank is the first bank to which a check
is transferred.
\3\ 12 CFR Sec. 229.2(m). The Act's definition is substantially
similar (12 U.S.C. 4001(9)).
---------------------------------------------------------------------------
Effective October 15, 1996, the Federal Reserve Bank of New York
will discontinue processing checks at its Jericho office and will
incorporate the Jericho check-processing region into the East
Rutherford check-processing region. This consolidation is part of a
larger effort by the Federal Reserve Bank of New York to achieve
greater efficiency in its check operations by consolidating systems,
equipment, and operations.4 Accordingly, the routing number list
in Appendix A is being changed to reflect the Jericho-East Rutherford
consolidation. The reference in Appendix B to routing numbers formerly
assigned to the Jericho office that were subject to a reduced
availability schedule for depositary banks in the East Rutherford
check-processing territory is also being deleted, because those routing
numbers are now all ``local'' with respect to the East Rutherford
check-processing territory.
---------------------------------------------------------------------------
\4\ In 1992 the Federal Reserve Bank of New York transferred its
head office check-processing operations to its Jericho office. The
Board made corresponding changes to Appendix A of Regulation CC at
that time. 58 FR 2, January 4, 1993. Similarly, the Federal Reserve
Bank of New York in 1994 discontinued check-processing at its
Buffalo office and incorporated the Buffalo check-processing region
into the Utica check-processing region. The Board made corresponding
changes to Appendices A and B-2 at that time. 59 FR 48789, September
23, 1994.
---------------------------------------------------------------------------
Although the substance of Regulation CC will be unaffected by the
amendments to Appendices A and B, the consolidation of check-processing
regions may require some banks to adjust their internal procedures for
assigning funds availability. For example, beginning on October 15,
1996, checks deposited in the former Jericho region will now be
considered local checks in the East Rutherford region (and vice versa).
Banks that now distinguish between the Jericho and East Rutherford
regions in assigning availability will need to realign their internal
operating systems to reflect the consolidation.
Banks also need to reflect any availability policy changes in their
disclosures, as the availability for certain checks may be improved.
Section 229.18(e) of Regulation CC provides that, in the case of an
availability policy change that expedites the availability of funds, a
bank shall send a notice of the change to holders of consumer accounts
not later than 30 days after implementation.
The amendments adopted by the Board are technical amendments that
reflect the realignment of Federal Reserve check-processing regions and
are required by the statutory and regulatory definitions of ``check-
processing region.'' Accordingly, 5 U.S.C. 553(b), requiring public
comment, does not apply.
Final Regulatory Flexibility Analysis
The amendment will apply to all banks, regardless of size. There is
no possible alternative rule for small banks, as ``check-processing
region'' is defined by the Expedited Funds Availability Act, which
applies to all banks. The amendment will affect only those banks in the
current Jericho and East Rutherford check-processing regions that
distinguish between checks drawn on paying banks located in those two
regions for purposes of assigning availability. The Board expects that
the majority of small institutions located in those two regions will be
unaffected by the amendment.
List of Subjects in 12 CFR Part 229
Banks, banking, Federal Reserve System, Reporting and recordkeeping
requirements.
For the reasons set out in the preamble, 12 CFR part 229 is amended
as follows:
PART 229--[AMENDED]
1. The authority citation for part 229 continues to read as
follows:
[[Page 25390]]
Authority: 12 U.S.C. 4001 et seq.
2. In Appendix A to part 229, under the heading ``SECOND FEDERAL
RESERVE DISTRICT,'' the numbers appearing directly under the subheading
``Jericho Office'' are transferred in numerical order under the
subheading ``East Rutherford Office'', and the subheading ``Jericho
Office'' is removed.
3. In Appendix B to part 229, the entry for ``East Rutherford'' is
removed.
By order of the Board of Governors of the Federal Reserve
System, May 15, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-12683 Filed 5-20-96; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 96-12475 State of California; Approval of Section 112(l) Authority for Hazardous Air Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning Facilities
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25396-25400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12475]
=======================================================================
-----------------------------------------------------------------------
[[Page 25397]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5444-6]
State of California; Approval of Section 112(l) Authority for
Hazardous Air Pollutants; Perchloroethylene Air Emission Standards for
Dry Cleaning Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The California Air Resources Board (CARB) requested approval,
under section 112(l) of the Clean Air Act (CAA), to implement and
enforce California's ``Airborne Toxic Control Measure for Emissions of
Perchloroethylene from Dry Cleaning Operations'' (dry cleaning ATCM) in
place of the ``National Perchloroethylene Air Emission Standards for
Dry Cleaning Facilities'' (dry cleaning NESHAP) for area sources. In
addition, to streamline the approval process for future CAA section
112(l) applications, CARB also requested approval of its demonstration
that California has adequate authorities and resources to implement and
enforce all CAA section 112 programs and rules, with the exception of
the accidental release prevention program to be promulgated pursuant to
CAA section 112(r). The Environmental Protection Agency (EPA) has
reviewed CARB's requests for approval and has found that these requests
satisfy all of the requirements necessary to qualify for approval, with
the exception of CARB's supplemental request for the authority to
determine equivalent emission control technology for dry cleaning
facilities. Thus, EPA is hereby granting California the authority to
implement and enforce its dry cleaning ATCM in place of the dry
cleaning NESHAP, except for those provisions of the dry cleaning NESHAP
that apply to major sources; disapproving CARB's supplemental request
for approval of the authority to determine equivalent emission control
technology for dry cleaning facilities; and approving CARB's
demonstration that California has adequate authorities and resources to
implement and enforce all CAA section 112 programs and rules, with the
exception of the accidental release prevention program to be
promulgated pursuant to CAA section 112(r).
EFFECTIVE DATE: This action is effective on 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: Copies of CARB's requests for approval are available for
public inspection at the following locations:
U.S. Environmental Protection Agency, Region IX, Rulemaking Section (A-
5-3), Air and Toxics Division, 75 Hawthorne Street, San Francisco,
California 94105-3901.
California Air Resources Board, Stationary Source Division, 2020 ``L''
Street, P.O. Box 2815, Sacramento, California 95812-2815.
U.S. Environmental Protection Agency, Air and Radiation Docket and
Information Center (Mail Code 6102), 401 M Street SW, Washington, D.C.
20460.
FOR FURTHER INFORMATION CONTACT: Mae Wang, Rulemaking Section (A-5-3),
Air and Toxics Division, U.S. Environmental Protection Agency, Region
IX, 75 Hawthorne Street, San Francisco, California 94105-3901, (415)
744-1200.
SUPPLEMENTARY INFORMATION:
I. Background
On September 22, 1993, the Environmental Protection Agency (EPA)
promulgated the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for perchloroethylene dry cleaning facilities (see
58 FR 49354), which has been codified in 40 CFR Part 63, Subpart M,
``National Perchloroethylene Air Emission Standards for Dry Cleaning
Facilities'' (dry cleaning NESHAP). On July 10, 1995, EPA received the
California Air Resources Board's (CARB) request for approval to
implement and enforce section 93109 of Title 17 of the California Code
of Regulations, ``Airborne Toxic Control Measure for Emissions of
Perchloroethylene from Dry Cleaning Operations'' (dry cleaning ATCM),
in place of the dry cleaning NESHAP for area sources. As part of its
dry cleaning ATCM application, CARB also requested approval of its
demonstration that California has adequate authorities and resources to
implement and enforce all Clean Air Act (CAA) section 112 programs and
rules, with the exception of the accidental release prevention program
to be promulgated pursuant to CAA section 112(r). The purpose of this
demonstration is to streamline the approval process for future CAA
section 112(l) applications. Finally, as a supplement to its request
for approval of the dry cleaning ATCM, CARB also requested approval of
the authority to determine equivalent emission control technology for
dry cleaning facilities in place of 40 CFR 63.325.
On October 17, 1995, EPA announced in the Federal Register (see 60
FR 53728) its receipt of CARB's requests and the availability for the
public to comment on CARB's application. This announcement included a
detailed discussion of the background and format of CARB's application.
II. Summary of Public Comments
EPA received letters from four commenters regarding CARB's
requests. All four commenters were in favor of granting California the
authority to implement and enforce its dry cleaning ATCM in place of
the dry cleaning NESHAP. One commenter also believed that California
has adequate authorities and resources to implement and enforce all CAA
section 112 programs and rules. Comments regarding CARB's supplemental
request for the authority to determine equivalency of control
technology for dry cleaning facilities is discussed in section III.A.3
below.
III. EPA Action
A. California's Dry Cleaning ATCM
Under CAA section 112(l), EPA may approve State rules or programs
to be implemented and enforced in place of certain otherwise applicable
CAA section 112 Federal rules, emission standards, or requirements. The
Federal regulations governing EPA's approval of State rules or programs
under section 112(l) are located at 40 CFR Part 63, Subpart E (see 58
FR 62262, dated November 26, 1993). Under these regulations, a State
has the option to request EPA's approval to substitute a State rule for
the applicable Federal rule. Upon approval, the State is given the
authority to implement and enforce its rule in place of the otherwise
applicable Federal rule. To receive EPA approval using this option, the
requirements of 40 CFR 63.91 and 63.93 must be met.
After reviewing CARB's request for approval of its dry cleaning
ATCM, EPA has determined that CARB's request meets all the requirements
necessary to qualify for approval under CAA section 112(l) and 40 CFR
63.91 and 63.93. Accordingly, with the exception of the dry cleaning
NESHAP provisions discussed in sections III.A.2 and III.A.3 below,
California is granted the authority to implement and enforce its dry
cleaning ATCM in place of the dry cleaning NESHAP. Although California
now has primary implementation and enforcement responsibility, EPA
retains the right, pursuant to CAA section 112(l)(7), to enforce any
applicable
[[Page 25398]]
emission standard or requirement under CAA section 112. As of the
effective date of this final notice, the dry cleaning ATCM is the
Federally-enforceable standard in California and is enforceable by the
Administrator and citizens under the CAA.
1. Stringency
When a State requests EPA's approval to substitute a State rule for
the applicable CAA section 112 Federal rule, EPA is required to make a
detailed and thorough evaluation of the State's submittal to ensure
that it meets the stringency and other requirements of 40 CFR 63.93.
During its evaluation of the dry cleaning ATCM, EPA noted that several
provisions of the dry cleaning NESHAP did not directly correlate with
provisions of the dry cleaning ATCM, including some of the equipment
installation compliance deadlines and some of the reporting and
recordkeeping requirements. On the other hand, EPA also noted that many
aspects of the dry cleaning ATCM afford greater overall emission
reductions than the dry cleaning NESHAP. In the final analysis, EPA
believes that approval of the dry cleaning ATCM will result in emission
reductions from each affected source that are no less stringent than
would result from the dry cleaning NESHAP.
2. Major Dry Cleaning Sources
Under the dry cleaning NESHAP, dry cleaning facilities are divided
between major sources and area sources. CARB's request for approval
included only those provisions of the dry cleaning NESHAP that apply to
area sources. Thus, dry cleaning facilities that are major sources, as
defined by the dry cleaning NESHAP, remain subject to the dry cleaning
NESHAP and the CAA Title V operating permit program.
3. Authority to Determine Equivalent Emission Control Technology for
Dry Cleaning Facilities
Under the dry cleaning NESHAP, any person may petition the EPA
Administrator for a determination that the use of certain equipment or
procedures is equivalent to the standards contained in the dry cleaning
NESHAP (see 40 CFR 63.325). As a supplement to its request for approval
of the dry cleaning ATCM, CARB also requested approval of the authority
to determine equivalent emission control technology for dry cleaning
facilities. This supplement included the following sections of the dry
cleaning ATCM that CARB requested to be approved in place of 40 CFR
63.325: sections 93109(a)(17); 93109(g)(3)(A)(5);
93109(g)(3)(B)(2)(iii); and 93109(h).
While one commenter was in favor of EPA delegating this authority
to California, another commenter, who also supported such delegation,
believed that EPA should retain some authority for the equivalency
determination to provide a minimum amount of consistency among the
various State programs; otherwise, according to this commenter,
manufacturers of alternative technologies may have to seek approval
from a number of State authorities in order to develop a national
market for their equipment. In its response to this latter comment,
CARB stated that the authority to approve alternative equipment relates
solely to alternative equipment offered for sale to the California
perchloroethylene dry cleaning industry. According to CARB, nationwide
consistency will be maintained for any equipment offered for sale both
in California and other States because EPA would continue to approve
that alternative equipment under the dry cleaning NESHAP; if other
States receive this authority, then the manufacturers of alternative
equipment who wish to target nationwide sales may have to design
alternative technologies that meet the most stringent standard, whether
it is a State or Federal standard.
EPA is disapproving CARB's supplemental request based on the
statutory language of CAA section 112(h)(3). This disapproval, however,
is limited only to those provisions within the dry cleaning ATCM (i.e.,
sections 93109(a)(17); 93109(g)(3)(A)(5); 93109(g)(3)(B)(2)(iii); and
93109(h)) that allow for the use of alternative emission control
technology without previous approval from EPA under CAA section
112(h)(3) and 40 CFR 63.325.
The delegation of authority to determine equivalent emission
control technology was discussed in EPA's notice of final rulemaking,
``Approval of State Programs and Delegation of Federal Authorities,''
published on November 26, 1993 (see 58 FR 62262). In that notice, it
was concluded that ``EPA does not delegate authority to determine
equivalency of emission control technologies to the States * * *
because these determinations require notice and opportunity for comment
and impact National [sic] consistency standards.'' 58 FR 62279. While
States may develop procedures for alternative control technology
demonstrations and make their own equivalency determinations under
State law, a source seeking permission to use an alternative means of
emission limitation under CAA section 112(h)(3) must also receive
approval, after notice and opportunity for comment, from EPA before
using such alternative means of emission limitation for the purpose of
complying with CAA section 112.
B. California's Authorities and Resources To Implement and Enforce CAA
Section 112 Standards
Any request for approval under CAA section 112(l) must meet the
approval criteria in 112(l)(5) and 40 CFR Part 63, Subpart E. To
streamline the approval process for future applications, a State may
submit a one-time demonstration that it has adequate authorities and
resources to implement and enforce any CAA section 112 standards. If
such demonstration is approved, then the State would no longer need to
resubmit a demonstration of these same authorities and resources for
every subsequent request for delegation of CAA section 112 standards.
However, EPA maintains the authority to withdraw its approval if the
State does not adequately implement or enforce an approved rule or
program.
As part of its dry cleaning ATCM application, CARB also requested
approval of its demonstration that California has adequate authorities
and resources to implement and enforce all CAA section 112 programs and
rules, with the exception of the accidental release prevention program
to be promulgated pursuant to CAA section 112(r). After reviewing
CARB's demonstration of California's authorities and resources, EPA is
approving this demonstration as meeting the approval criteria of 40 CFR
63.91(b) (1), (3), and (6). Although this approval will not result in
delegation of the CAA section 112 standards, it will obviate the need
for CARB to resubmit a demonstration of these same authorities and
resources for every subsequent request for delegation of CAA section
112 standards, regardless of whether CARB requests approval of rules
that are identical to or differ from the CAA section 112 standards as
promulgated.
Since the above demonstration is also required under 40 CFR Part
70, EPA will evaluate this demonstration as it applies to Part 70
sources when it evaluates the Part 70 program applications submitted by
the California air pollution control or air quality management
districts.
1. Penalty Authorities
As part of its request for approval, CARB submitted a finding by
California's Attorney General stating that ``State law provides civil
and criminal enforcement authority consistent with [40 CFR]
63.91(b)(1)(i), 63.91(b)(6)(i), and 70.11, including authority to
recover penalties and fines
[[Page 25399]]
in a maximum amount of not less than $10,000 per day per violation * *
*.'' [emphasis added]. In accordance with this finding, EPA understands
that the California Attorney General interprets section 39674 and the
applicable sections of Division 26, Part 4, Chapter 4, Article 3
(``Penalties'') of the California Health and Safety Code as allowing
the collection of penalties for multiple violations per day. In
addition, EPA also understands that the California Attorney General
interprets section 42400(c)(2) of the California Health and Safety Code
as allowing for, among other things, criminal penalties for knowingly
rendering inaccurate any monitoring method required by a toxic air
contaminant rule, regulation, or permit.
As stated in section III.A above, EPA retains the right, pursuant
to CAA section 112(l)(7), to enforce any applicable emission standard
or requirement under CAA section 112, including the authority to seek
civil and criminal penalties up to the maximum amounts specified in CAA
section 113.
2. Variances
Division 26, Part 4, Chapter 4, Articles 2 and 2.5 of the
California Health and Safety Code provide for the granting of variances
under certain circumstances. EPA regards these provisions as wholly
external to CARB's requests for approval to implement and enforce CAA
section 112 programs or rules and, consequently, is proposing to take
no action on these provisions of State law. EPA has no authority to
approve provisions of State or local law, such as the variance
provisions referred to, that are inconsistent with the CAA. EPA does
not recognize the ability of a State or local agency who has received
delegation of a CAA section 112 program or rule to grant relief from
the duty to comply with such Federally-enforceable program or rule,
except where such relief is granted in accordance with procedures
allowed under CAA section 112. As stated above, EPA retains the right,
pursuant to CAA section 112(l)(7), to enforce any applicable emission
standard or requirement under CAA section 112.
Similarly, section 39666(f) of the California Health and Safety
Code allows local agencies to approve alternative methods from those
required in the ATCMs, but only as long as such approvals are
consistent with the CAA. As mentioned in section III.A.3 above, a
source seeking permission to use an alternative means of emission
limitation under CAA section 112 must also receive approval, after
notice and opportunity for comment, from EPA before using such
alternative means of emission limitation for the purpose of complying
with CAA section 112.
IV. Administrative Requirements
A. Unfunded Mandates Reform Act
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995, EPA must undertake various actions in association with
proposed or final rules that include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
The rule being approved by this action will impose no new
requirements because affected sources are already subject to these
regulations under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final determination does not
include a mandate that may result in estimated costs of $100 million or
more to State, local, or tribal governments in the aggregate or to the
private sector.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. section 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. sections 603
and 604. Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
Approvals under 40 CFR 63.93 do not create any new requirements,
but simply approve requirements that the State is already imposing.
Therefore, because this approval does not impose any new requirements,
it does not have a significant impact on affected small entities.
C. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Incorporation by reference, Reporting and recordkeeping
requirements.
Authority: This action is issued under the authority of Section
112 of the Clean Air Act, as amended, 42 U.S.C. Section 7412.
Dated: March 1, 1996.
Felicia Marcus,
Regional Administrator.
Title 40, chapter I, part 63 of the Code of Federal Regulations is
amended as follows:
PART 63--[AMENDED]
1. The authority citation for Part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Section 63.14 is amended by adding paragraph (d) to read as
follows:
Sec. 63.14 Incorporation by Reference.
* * * * *
(d) State and Local Requirements. The materials listed below are
available at the Air and Radiation Docket and Information Center, U.S.
EPA, 401 M Street, SW., Washington, DC.
(1) California Regulatory Requirements Applicable to the Air Toxics
Program, March 1, 1996, IBR approved for Sec. 63.99(a)(5)(ii) of
subpart E of this part.
(2) [Reserved]
Subpart E--Approval of State Programs and Delegation of Federal
Authorities
3. Subpart E is amended by reserving Secs. 63.97 and 63.98; and by
adding Sec. 63.99 to read as follows:
Sec. 63.97 [Reserved]
Sec. 63.98 [Reserved]
Sec. 63.99 Delegated Federal Authorities.
(a) This section lists the specific source categories that have
been delegated to the air pollution control agencies in each State
under the procedures described in this subpart.
(1)-(4) [Reserved]
(5) California
(i) [Reserved]
(ii) Affected sources must comply with the California Regulatory
Requirements Applicable to the Air Toxics Program, March 1, 1996
(incorporated by reference as specified in Sec. 63.14) as described
below.
(A) The material incorporated in Chapter 1 of the California
Regulatory Requirements Applicable to the Air Toxics Program pertains
to the perchloroethylene dry cleaning source category, and has been
approved under the procedures in Sec. 63.93 to be implemented and
enforced in place of Subpart M--National Perchloroethylene Air Emission
Standards for Dry Cleaning Facilities, as it applies to area sources
only, as defined in Sec. 63.320(h).
(1) Authorities not delegated.
(i) California is not delegated the Administrator's authority to
implement
[[Page 25400]]
and enforce those provisions of Subpart M which apply to major sources,
as defined in Sec. 63.320(g). Dry cleaning facilities which are major
sources remain subject to Subpart M.
(ii) California is not delegated the Administrator's authority of
Sec. 63.325 to determine equivalency of emissions control technologies.
Any source seeking permission to use an alternative means of emission
limitation, under sections 93109(a)(17), 93109(g)(3)(A)(5),
93109(g)(3)(B)(2)(iii), and 93109(h) of the California Airborne Toxic
Control Measure, must also receive approval from the Administrator
before using such alternative means of emission limitation for the
purpose of complying with section 112.
[FR Doc. 96-12475 Filed 5-20-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-12273 Sale and Distribution of Tobacco Products
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Page 25396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12273]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Departmental Offices
31 CFR Part 12
Sale and Distribution of Tobacco Products
AGENCY: Departmental Offices, Department of the Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Section 636 of the Department of the Treasury's Appropriations
Act, Pub. L. 104-52, requires the Secretary of the Treasury to
promulgate regulations that restrict the sale of tobacco products in
vending machines and the distribution of free samples of tobacco
products in any Federal building under the jurisdiction of the
Secretary of the Treasury. Section 636 permits the Secretary to
designate areas not subject to these prohibitions, if such areas also
prohibit the presence of minors.
EFFECTIVE DATE: May 21, 1996.
FOR FURTHER INFORMATION CONTACT: Robert T. Harper, (202) 622-0500.
SUPPLEMENTARY INFORMATION: The Department of the Treasury has
determined that this rule is not a significant regulatory action for
the purposes of Executive Order 12866. Pursuant to 5 U.S.C. sec.
553(a)(2), this rule is not required to be published for notice and
comment. Therefore, the Regulatory Flexibility Act does not apply.
List of Subjects in 31 CFR Part 12
Concessions, Federal buildings and facilities, Vending machines.
For the reasons set forth in the preamble, 31 CFR part 12 is added
as follows:
PART 12--RESTRICTION OF SALE AND DISTRIBUTION OF TOBACCO PRODUCTS
Sec.
12.1 Purpose.
12.2 Definitions.
12.3 Sale of tobacco products in vending machines prohibited.
12.4 Distribution of free samples of tobacco products prohibited.
12.5 Prohibitions not applicable in areas designated by the
Secretary of the Treasury.
Authority: Sec. 636, Pub. L. 104-52, 109 Stat. 507.
Sec. 12.1 Purpose.
This part contains regulations implementing the ``Prohibition of
Cigarette Sales to Minors in Federal Buildings Act,'' Public Law 104-
52, Section 636, with respect to buildings under the jurisdiction of
the Department of the Treasury.
Sec. 12.2 Definitions.
As used in this part--
(1) the term Federal building under the jurisdiction of the
Secretary of the Treasury includes the real property on which such
building is located;
(2) the term minor means an individual under the age of 18 years;
and
(3) the term tobacco product means cigarettes, cigars, little
cigars, pipe tobacco, smokeless tobacco, snuff, and chewing tobacco.
Sec. 12.3 Sale of tobacco products in vending machines prohibited.
The sale of tobacco products in vending machines located in or
around any Federal building under the jurisdiction of the Secretary of
the Treasury is prohibited, except in areas designated pursuant to
Sec. 12.5 of this part.
Sec. 12.4 Distribution of free samples of tobacco products prohibited.
The distribution of free samples of tobacco products in or around
any Federal building under the jurisdiction of the Secretary of the
Treasury is prohibited, except in areas designated pursuant to
Sec. 12.5 of this part.
Sec. 12.5 Prohibitions not applicable in areas designated by the
Secretary of the Treasury.
The prohibitions set forth in this part shall not apply in areas
designated by the Secretary as exempt from the prohibitions, but all
designated areas must prohibit the presence of minors.
George Munoz,
Assistant Secretary for Management and Chief Financial Officer.
[FR Doc. 96-12273 Filed 5-20-96; 8:45 am]
BILLING CODE 4810-25-P
Complete official Federal Register PDF
FR Doc. 96-11935 Transportation for Individuals With Disabilities
[Federal Register Volume 61, Number 99 (Tuesday, May 21, 1996)]
[Rules and Regulations]
[Pages 25409-25416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11935]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Parts 37 and 38
[Docket No. 49658]
RIN 2105-AC13
Transportation for Individuals With Disabilities
AGENCY: Department of Transportation (DOT), Office of the Secretary.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department is amending several provisions of its rules
implementing the Americans with Disabilities Act (ADA). Some of the
changes are being made in response to petitions received by the
Department. The first change will ensure that the rule treats
independent private schools similarly to other schools. The second
change will apply the same gap standard to high speed automated
guideway transit (AGT) systems as is applied to other rapid and light
rail systems. The third petition granted in this rule will give local
jurisdictions more discretion with respect to advance reservation
systems for paratransit services. However, the Department is
withdrawing a proposal that would have permitted transit authorities to
determine that certain bus stops may be designated as non-accessible
stops.
This rule will also make six amendments that derive from the
Department's own proposals. The first will decrease the paperwork
burden of producing annual paratransit plan updates once the
paratransit system reaches full compliance with ADA regulations. The
second will clarify a visitor's eligibility for paratransit services.
The third will clarify the vehicle acquisition requirements for private
entities not primarily engaged in the business of transporting people.
The fourth amendment will remove ``inability to comply'' as a condition
of gaining a determination of equivalent facilitation. The final two
amendments will eliminate confusion in a cross reference within the
regulation and correct a typographical error. The Department has
concluded that no change is warranted in the regulatory definition of a
personal care attendant.
EFFECTIVE DATE: This final rule is effective June 20, 1996.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590.
(202) 366-9306 (voice); (202) 755-7687 (TDD); or Richard Wong, Office
of Chief Counsel, Federal Transit Administration, same street address,
Room 9316. (202) 366-4011.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Department published its notice of proposed rulemaking (NPRM)
on the issues covered by this rule on July 21, 1994. The NPRM included
proposed amendments that were petitioned for by the public on which the
Department took no initial position and proposals that the Department
generated internally. The Department received over 275 comments on the
NPRM, most of which came from individuals with disabilities,
organizations representing them and transit authorities. Additional
[[Page 25410]]
comments were received from state disability advocates, engineering
groups, paratransit providers and equipment manufacturers, as well as
others.
II. Petitions for Rulemaking
1. Bus Stops
This issue, raised in the NPRM on the basis of a petition from
Seattle Metro, was the most controversial in the rulemaking. Disability
community commenters were virtually unanimous in strongly opposing
Seattle's suggestion that transit authorities be authorized to declare
a bus stop ``off limits'' to wheelchair users, or in some cases, to all
lift users, on the basis that conditions at the stop made its use too
dangerous for such passengers. These commenters included disability
advocacy organizations, individuals, the U.S. Department of Justice,
and state and local government agencies. A few transit agencies also
shared their point of view.
The first point these commenters made was that individuals with
disabilities--not transit agencies--should decide when a given stop is
appropriate for them to use. Individuals with disabilities know their
own abilities better than anyone else, and can make reasonable choices
about what is or is not safe for them. Allowing other parties, such as
transit agencies, to make these choices smacks of paternalism and is
the sort of well-intended constraint on the activities of persons with
disabilities that the ADA is specifically intended to prevent.
Providing discretion to transit authorities to deny to passengers with
disabilities the use of facilities that other passengers are allowed to
use is a clear violation of the ADA's nondiscrimination mandate, many
commenters said.
What made the proposal additionally objectionable, many of these
commenters said, was that there was no empirical evidence that there
was a significant safety problem at bus stops. There might be
speculation that a safety problem existed, and worry about potential
liability, but there were few, if any, facts presented that the problem
was real. When there is a nondiscrimination mandate like that of the
ADA, any classification that denies services to the protected class
must be based on demonstrated facts, they said, not on fear. Many of
these commenters pointed to the ADA's ``direct threat'' concept as a
model for determining when it is acceptable to deny services or
facilities to individuals with disabilities based on a safety risk.
This concept, they noted, focuses on the individual situation of each
disabled person, not on the presumed abilities of a class of persons
with disabilities.
Finally, a number of these commenters noted that, if individuals
are denied use of stops, they will become eligible for paratransit,
which will increase costs to transit authorities. There could also be
situations in which people would be denied service altogether because
of limited capacity on paratransit systems, one commenter noted. (Two
transit authority commenters said, on the other hand, that transit
authorities' desire to avoid adding to paratransit costs would be a
deterrent to abuse of discretion to limit passengers' use of unsafe
stops.)
Many disability community commenters, and several transit
authorities as well, opposed the petition's suggestion that the
standard for determining the suitability of a stop for disabled
passengers be the new construction standard for bus stops in the
Americans with Disabilities Act Accessibility Guidelines (AADAG). This
standard, they said, was of questionable relevance to streetside bus
stops in mass transit systems, and was inappropriate for use in a
situation involving existing facilities in any event. The obligation
that public entities have for existing facilities, they noted, is to
make them program accessible, not necessarily to bring them up to new
construction standards. The new construction standard was never
intended to be a safety standard, or a criterion to determine when an
individual with disabilities would be allowed to use a facility. The
petitioner was the only commenter to support the proposal to use the
new construction standard.
A large majority of the transit providers that commented supported
the idea that they should have discretion to declare stops ``off
limits'' to lift users on the basis of safety. Because some stops had
hazards that affect passengers with disabilities in ways that other
passengers are not affected (e.g., stops that have a narrow area for
maneuvering that present a problem to wheelchair users but not
ambulatory persons, stops with a drop-off that can result in a
wheelchair overturning), it is rational to prevent accidents and
injuries by denying use of these stops to persons for whom the hazards
are serious. Concern about liability was another reason advanced by
many transit commenters. Seattle said it had experienced seven
accidents because of bus stop problems since 1987, including one
serious injury that resulted in a settlement of over $400,000.
While the transit community generally supported Seattle's petition,
there were a number of interesting nuances in transit provider
comments. Some emphasized the necessity of working with the disability
community on bus stop access issues, including public hearings or other
opportunities for public participation. Improving or moving existing
bus stops was a step mentioned by others. Differences among buses and
passengers need to be taken into consideration, others said. Prodding
the Department of Justice to issue regulations requiring local
governments to work on making bus stops under their control program
accessible was another suggestion. Better training for drivers on how
to deploy lifts safely in a variety of situations was also recommended.
Some commenters also mentioned (but apparently did not favor) the
possibility of closing stops to all passengers if they were not safely
usable by passengers with disabilities.
This is a case in which both sides of the debate have genuine
concerns. The petitioner and comments supporting its position worry, in
good faith, about potential safety problems facing wheelchair users at
some bus stops and about ensuing liability problems that may result for
transit providers. In the absence of legal constraints on the use of
classifications based on disability, it could arguably be rational for
transit providers to take the kind of action that the petition
proposes.
However, the ADA imposes strong legal constraints on the use of
classifications based on disability. Under the ADA, a proposed action
which treats a disability-based class of persons differently from the
rest of the public cannot be accepted merely because it may assuage a
party's good faith concerns about safety. This is a position that the
Department has taken consistently as it has developed and implemented
its ADA regulations.
For example, before and during the development of Part 37, there
was considerable discussion of transit providers' good-faith safety
concerns about transporting three-wheeled ``scooters.'' Many commenters
asserted that these devices were unstable and difficult to secure, and
asked that transit providers have the discretion to exclude them on the
basis of these safety-related concerns. The Department required that
providers carry such mobility devices, noting the absence of
``information in the record that would support a finding that carrying
non-traditional wheelchairs would constitute a `direct threat' to the
safety of others. * * *'' (56 FR 45617; September 6, 1991).
Subsequently, transit community commenters raised the issue of the
use
[[Page 25411]]
of lifts by standees, which the original version of Part 37 required.
The commenters expressed the concern that standees could fall off the
lifts or hit their heads, resulting in injury to passengers and
liability for providers. With one exception (concerning a particular
lift model that was no longer being manufactured), there was little
information in the record demonstrating that a real safety problem, as
distinct from speculation or fears concerning potential safety
problems, existed. The Department rejected the proposal, saying that--
[t]he ADA is a nondiscrimination statute, intended to ensure * *
* that people with disabilities have access to transportation
services. To permit a transportation provider to exclude a category
of persons with disabilities from * * * access to a vehicle on the
basis of a perceived safety hazard, absent information in the record
that the hazard is real, would be inconsistent with the statute. * *
* While we understand the concerns of transit agency commenters
about the potential safety risks that may be involved, the
Department does not have a basis in the rulemaking record for
authorizing a restriction on lift use by standees. (58 FR 63096;
November 30, 1993).
The Department's analysis of the Seattle petition is very similar
to its response to these two previous issues. The petition presents a
genuine, good-faith concern that a certain condition (here, terrain or
other problems at particular bus stops) may create a safety hazard for
a class of persons with disabilities. There is, in the comments
favoring the petition, agreement that difficult conditions at some
stops might, indeed, create some safety risks for wheelchair users or
other persons with disabilities. But there is little in the record to
suggest that there is substantial, pervasive, or strong evidence that a
real, as distinct from speculative, safety problem exists.
To its credit, the petitioner attempted to show the Department that
problem stops existed for which the petitioner's proposed remedy was
needed. The petitioner provided a videotaped demonstration of
wheelchair users attempting to get on and off buses using lifts at
several problem stops. After reviewing the tape, the Department
concluded that it is reasonable to believe that at such stops,
wheelchair users may well have greater difficulty, and take longer, in
using bus lifts than at other stops. In some of the situations, there
could be a higher risk to wheelchair users than at other, more
``normal,'' stops. The Department does not find this evidence
sufficient, however, to justify carving out an exception to the
nondiscrimination mandate of the ADA.
In thinking about situations in which safety reasons are advanced
for using disability-based classifications, the Department finds it
useful to consider the ``direct threat'' provisions that exist in other
provisions of the ADA. ``Direct threat'' permits exceptions--specific
to an individual--to be made to ADA nondiscrimination requirements on
the basis of safety. The Department of Justice (DOJ) rule implementing
Title III of the ADA in the context of public accommodations defines
the concept as follows:
Direct threat means a significant risk to the health or safety
of others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids or
services. In determining whether an individual poses a direct threat
to the health or safety of others, a public accommodation must make
an individualized assessment, based on a reasonable judgment that
relies on current medical knowledge or on the best available
objective evidence, to ascertain: the nature, duration, and severity
of the risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk. (28 CFR 36.208 (b)-(c)).
Very similar regulatory language appears in the Equal Employment
Opportunity Commission (EEOC) rules implementing Title I of the ADA in
the context of employment (29 CFR 1630.2(r); see also discussion 56 FR
35745; July 26, 1991). The Department of Justice regulation
implementing Title II of the ADA in the context of state and local
government programs does not include ``direct threat'' language in its
regulatory text, but the preamble applies the concept to the essential
eligibility requirements for participating in state and local programs
(56 FR 35701; July 26, 1991).
While the DOJ and EEOC language concerning ``direct threat'' does
not necessarily apply in its entirety to transportation issues, the
Department believes that it is appropriate, and in keeping with the
language and intent of the statute, to determine that disability-based
classifications in transportation having a safety rationale are
supportable only on the basis of analysis that incorporates the
essentials of the ``direct threat'' concept in a way consistent with
the nature of transportation programs. The petition at issue in this
rulemaking does not, in the Department's view, closely approach what is
necessary to be adopted under such an analysis.
As a general matter, the points raised by commenters opposed to the
proposal, as described above, have been more persuasive to the
Department than those points made by its proponents. These points add
to the discussion above as reasons for the Department's decision.
The Department believes that transit providers which, like Seattle,
sincerely desire both to provide nondiscriminatory service to
individuals with disabilities and to maximize bus stop safety have some
means available to achieve these objectives. For example, a transit
provider could provide information to lift users about potential
hazards at certain stops and offer informational on alternative stops
or routings to such passengers, where alternatives were available. The
provider could also offer paratransit to those passengers who chose to
avoid using the stops as a result.
The transit provider could make operational modifications to
mitigate potential hazards. For example, if there is limited space or a
potential hazard at a stop, the bus could let a wheelchair user board
at a nearby area that was easier to use or stop at a greater distance
from the curb. We are aware that transit providers are often reluctant
to depart from normal practices in this regard (although such
deviations appear commonplace during inclement weather, such as when
bottomless puddles, ``Blizzard of '96''-size snowbanks, or carnivorous
potholes make access to normal stops difficult for all passengers).
Nevertheless, these are among the kinds of ``reasonable modifications
of policies, practices, or procedures [to] mitigate the risk'' that the
ADA calls for.
Transit providers can also urge local governments to improve
accessibility to bus stops, mitigate hazards at stops, or, if need be,
move stops to better locations. The Department is aware that transit
providers often do not control the placement of stops or the land on
which they are located, though we believe that transit providers should
continue the effort to work with their local governments on these
matters.
For these reasons, the Department is withdrawing the proposal,
based on the Seattle petition, to permit transit providers to limit the
use of certain bus stops by lift users. The existing rule's language
(49 CFR 37.167(g)) will remain in effect, without change. Any transit
provider that may have instituted limits on the use of particular stops
by lift users, except as authorized by this provision, must cease
implementing the limits, as they are explicitly contrary to the
Department's ADA rule.
[[Page 25412]]
2. Requirements for Private School Transportation
The Department has decided to grant the petition of the National
Association of Independent Schools (NAIS) and adopt the proposed
private school exemption. In doing so, the Department emphasizes the
importance of ensuring that schools provide disabled students with
equal access to all of the schools' academic and extracurricular
programs. Private schools will therefore have to provide equivalent
transportation services to disabled students in order to be eligible
for the exemption. The final rule will apply the same standard for
equivalent service as is found in Sec. 37.105.
This change is being made because the current requirement that all
new buses purchased be lift equipped does not apply to most schools.
Public schools are exempt because their transportation services are
excluded from the ADA's definition of ``designated public
transportation.'' Schools with a religious affiliation are exempt based
on the ADA's exemption for religious organizations. Private elementary
and secondary schools that receive Federal financial assistance get the
same exemption as public schools if they provide equivalent
transportation services to students with disabilities and are covered
by section 504 of the Rehabilitation Act of 1973. By now, the
Department's regulation exempts all schools except private, non-
religious schools that receive no Federal financial assistance.
The NAIS petition pointed out the anomalous result of the
regulation applying more stringent and costly standards to schools that
receive no Federal financial assistance than is applied to schools that
do receive assistance. In response to the NAIS petition, the NPRM
proposed amending Sec. 37.27 to apply the same equivalent services
standard to independent schools as is applied to private schools that
receive Federal assistance. The majority of the comments received on
this aspect of the proposal supported extending the private school
exemption. However, many commenters did express concerns about disabled
students' access to school events. This concern was shared by the few
commenters who opposed the exemption.
The Department also shares these concerns. The independent private
schools will be subject to the same equivalent service standard that
other private schools must meet, namely that ``when viewed in [their]
entirety'' transportation services must be ``provided in the most
integrated setting appropriate to the needs of the individual and is
equivalent to the service provided other individuals * * *'' 49 C.F.R.
Sec. 37.105. Any test for equivalence under Sec. 37.105 would go beyond
providing equal access to transportation to and from school and include
transportation to and from all of the school's extracurricular
activities. This approach is consistent with the Department of
Education's requirement that non-academic and extracurricular
activities and services be provided in such a way as to ensure disabled
students an equal opportunity for participation. See 34 C.F.R.
Sec. 104.37(a)(1). In fact, the Department of Education goes so far as
to include transportation itself as a covered non-academic service. See
id. at Sec. 104.37(a)(2).
One commenter raised the possibility that a school that does not
purchase lift equipped buses because it has no disabled students might
exclude disabled applicants in the future to avoid the expense of
purchasing lifts. This concern could be valid. However, the possibility
of the rule change encouraging future discrimination in the admissions
process is speculative and the Department has neither the authority nor
the expertise to address admissions discrimination.
3. People Mover Gap Standards
The Department has decided to adopt the NPRM's proposal to allow
high speed AGT systems to comply with the same train door to platform
gap standard as other high speed rail systems. The petition was
submitted by the American Society of Civil Engineers (ASCE). ASCE cited
the wide variation in AGT system speed--5 to 80 miles per hour--and
requested that faster AGT systems be subjected to the less stringent
requirements applied to rapid and light rail systems. ASCE had studied
existing AGT systems and claimed that most do not meet current AGT
standards of one inch horizontal and half inch vertical gaps between
the train door and the platform edge. According to ASCE's analysis, AGT
systems that run at under 20 miles per hour can reasonably be expected
to meet the current gap standards. Faster AGT systems, however, require
vehicles with larger, more complicated suspensions that make it more
difficult to meet the smaller gap standard.
The proposal was not controversial. Only one of the 17 comments
received objected to the principle of a speed division and two objected
to the proposed 3-inch gap standard for the higher speed trains. The
proposal would allow AGT systems that operate at over 20 mph at any
point on the system to comply with the rapid/light rail gap standards
of a 3 inch horizontal gap and \5/8\ inch vertical gap. One commenter
suggested that the larger gap only be permitted on sections of the
track on which the AGT system actually ran at over 20 mph. The
suggestion is being rejected because it ignores the underlying
rationale for the speed division. If the AGT vehicle is to be capable
of traveling at higher speeds on other segments of the system, it will
require the more sophisticated suspension, which will in turn make the
smaller gap standard more difficult to meet at all stops.
ASCE pointed out that the Access Board's preamble discussion refers
to ``AGT vehicles that travel at slow speed,'' and subsequent Access
Board manuals suggest that the rapid/light rail gap standard should
apply to faster AGT vehicles. The Access Board has interpreted its
guidelines as permitting the construction that ASCE urges and the
Department's action today will prevent any conflict or confusion
between the guidelines and the rule.
4. 14-Day Advance Reservations
The proposal to remove the 14-day advance reservation requirement
generated significant interest among commenters of all types. While
approximately 130 commenters advocated keeping the reservation
requirement, most expressed dissatisfaction with current reservation
systems, suggested different reservation times, capacity allotments for
advanced reservations or demonstration projects before a change in the
requirement is made. Of the approximately 60 commenters who advocated
repealing the requirement, many made similar recommendations.
Approximately 45 commenters made 11 different suggestions for
changing the number of days allowed for advance reservations. Ten of
these commenters believed that the number of days should be flexible
and made no specific suggestion, five others suggested a range of 1 to
3 days, one commenter suggested 3 to 7 days and one suggested 7 to 8
days. Among the 27 commenters who endorsed a specific number of days,
there were seven different recommendations, ranging from 1 day to 10
days, with 7 days being the most popular (13 commenters).
Eight commenters suggested limiting the percentage of paratransit
capacity which could be reserved in advance. Most of these eight
commenters did not offer a specific percentage limit, those who did
were split between 40 and 50 percent. Three other commenters
[[Page 25413]]
suggested capping the number of trips an individual rider could reserve
in advance. Similarly, these commenters did not agree on any one
number.
The most common complaint about advance reservations was that they
caused an unmanageable number of cancellations and no-shows. Twenty one
commenters suggested penalties for riders who failed to show up for
scheduled rides. Twelve other commenters suggested that this problem
could be solved by requiring confirmation. Among these twelve comments
were three different suggestions for when the confirmation should be
made; there was also disagreement over whether the rider or the transit
provider should be responsible for making the confirmation call.
Finally, ten commenters complained that long reservation times
created prioritization, illegally favoring individuals with certain
types of disabilities or favoring certain types of trips. Eight
commenters pointed out that advance reservations drain the capacity of
paratransit systems, but seven others countered that the real problem
is limited capacity, which in turn causes reservation problems.
In light of the substantial dissatisfaction with the current 14-day
reservation requirement evident from the comments and the abundant and
varied suggestions for improving reservation systems, the Department
has decided to remove the requirement and allow local transit
providers, in conjunction with the riding public, the discretion to
establish reservation systems that best meet local needs. Under the
amended rule, transit systems can establish any reservation system that
meets the other requirements of this part, with a maximum 14-day
advance reservation period. Paratransit systems that wish to take
advantage of the flexibility provided by this amendment by changing
their reservation systems will have to ensure public participation in
the decision to change and local review of the functioning of the new
system. The public participation requirements of Sec. 37.137(b) will
apply.
One of the points commenters made in favor of retaining some
advance reservation capacity in paratransit systems was the added
security it affords concerning occasional, important, time-sensitive
trips. For example, if someone has airline reservations, the person
needs to be at the airport at a particular time on a particular day.
The person is likely to be more comfortable if he or she knows, prior
to the day before travel, that a paratransit reservation is confirmed.
While we do not believe that this kind of situation is sufficient,
given the downsides of an advance reservation requirement, to justify
mandating advance reservations, we suggest that, as transit providers
consult with their communities about reservation system changes, that
they explore means of addressing this concern.
It should be emphasized that, in order to meet Part 37
requirements, all paratransit systems must provide at least one-day
advance reservations at all times. One of the apparent reasons that
users take advantage of existing advance reservation systems in large
numbers is their apprehension that, if they wait until the day before
travel, the capacity of the system to serve them will have been
exhausted. This can lead, in turn, to the scheduling, no-show, and
cancellation problems cited in many comments. To make a short-term
reservation or real-time scheduling system work properly, transit
providers need to make sure that adequate vehicle and communications
capacity is available, such that systematic denials of service do not
exist to an extent that would constitute a capacity constraint (see
Sec. 37.131(f)(3)((i)(B)).
III. DOT-Proposed Adjustments to the Rule
1. Reduction of Paperwork for Paratransit Plan Updates
The NPRM proposed that transit authorities that had fully
implemented the paratransit requirements of the rule would no longer
have to send in annual updates to FTA. The thinking behind this
proposal was that, once full compliance had been achieved, annual
updates, and the process required to generate them, would become an
unnecessary administrative burden. Instead, there would be a simple
certification of compliance. If, for any reason, a transit authority
slipped out of full compliance, it would have to inform FTA and file
updates until it was once again in full compliance.
Transit agencies generally supported the proposed change, citing
the difficulty that many small providers have with annual paperwork
submissions. Some of these commenters said, however, that there should
be other means (e.g., additions to the National Transportation
Database) of monitoring and reporting data on paratransit costs and
service. Disability community commenters, on the other hand, favored
retention of the existing requirement. Some were suspicious of claims
by transit authorities that they were really in full compliance. A
common theme in these comments was that the public participation
requirements accompanying the annual update was a good opportunity for
the disability community to have input concerning service problems.
Indeed, some commenters said, public participation provisions should be
strengthened.
Some of the comments also pointed to a statutory issue. Section
233(c)(7)(B) of the ADA provides that the Department's regulations
shall require each public entity that operates fixed route service to
submit a paratransit plan to the Secretary within 18 months after the
effective date of the section and ``on an annual basis thereafter,
submit to the Secretary, and commence implementation of, a plan for
providing [paratransit] services.'' In its original ADA rule, the
Department implemented this requirement by establishing the annual plan
update requirement.
This requirement makes sense during the phase-in period for
paratransit service. While a transit authority is gradually building up
its paratransit service to the point where it meets all service
criteria, it is reasonable for the transit authority to send in annual
progress reports that have been developed through the public
participation process set forth in the rule. Once the transit authority
has fully met all the service criteria, however, there is no new
``progress'' to report. There is no implementation to ``commence,''
since the service required by the rule is already up and running, and
need only be continued for the transit authority to meet its ADA
paratransit obligations.
Once the transit authority is fully meeting all service criteria
(including the criterion concerning capacity constraints), submitting
an annual certification that it is continuing to meet all these
criteria as provided in its previously-approved plan meets the letter
and intent of Sec. 223(c)(7)(B). Of course, should the transit
authority fall below full compliance with all criteria, it would need
to inform FTA and resume substantive annual updates until it was once
again in full compliance.
In response to comments, the Department will make two modifications
to the proposed regulatory language. First, as noted above, there would
need to be a report to FTA if the transit authority fell out of
compliance. Second, we are adding a provision authorizing FTA to direct
a transit authority to conduct a public participation process and
submit a plan update if, in FTA's judgment (based, for example, on
consumer complaints about service), there is a reasonable basis for
[[Page 25414]]
concern about continuing full compliance.
Because the regulation already requires a mechanism for continuing
public participation (see Sec. 37.137(c)), the Department is not
persuaded that the public participation process accompanying plan
updates is essential to provide public input to providers about
paratransit service. While changes to National Transit Database
reporting concerning paratransit are outside the scope of this
rulemaking, the Federal Transit Administration will consider whether
some modifications to this report to provide more data about
paratransit service are desirable.
2. Visitor Eligibility
The NPRM requested comment on its proposal to clarify the
eligibility of visitors to use paratransit services. The proposed
change would have specified that the 21 days that transit operators
must provide service to eligible visitors was 21 days within a year
period, as opposed to 21 continuous days. The proposed regulatory text
would have read: ``A public entity is not required to provide service
to a visitor for more than 21 days per year from the date of the first
paratransit trip used by the visitor.'' (emphasis added). The
Department has decided to clarify the provision by specifying that the
maximum amount of service which transit providers must provide eligible
visitors is 21 days per calendar year. The Department will further
amend the rule to allow local providers the option of restricting the
21 days of service use to 21 continuous service days following the
first trip.
Transit providers were split on whether visitors should be eligible
for 21 continuous days or 21 days per year. Approximately half of the
providers who commented complained of administrative difficulties
inherent in keeping track of 21 days of service spread out over an
entire year. It was also pointed out that with 21 days per year,
paratransit operators have more difficulty managing capacity because
they cannot predict demand. Other providers disagreed, reporting no
administrative burden or capacity drain from allowing visitors 21 days
per year. Capital Metro of Austin, Texas believes that 21 continuous
days of eligibility is insufficient to meet the needs of frequent
visitors, such as college students returning home on breaks, and
instead allows visitors six months of service before requiring them to
apply for local eligibility. Individuals with disabilities and advocacy
groups almost all favored 21 days per year.
When an individual with a disability travels to another city, it
remains the Department's policy that he or she have open and ready
access to local mass transit without any need to have planned the trip
in advance. Indeed, often the traveler will be unfamiliar with the new
city and have no way to know in advance what his or her travel needs
will be. For this reason, the Department's amendment to this provision
emphasizes that in no case may a transit provider require a visitor to
apply for or be granted eligibility certification before being able to
use the provider's paratransit service as provided in Sec. 37.127.
Given the desire commenters expressed for clarification of how the
visitor eligibility provision is intended to work, and the likelihood
that there may be many situations in which individuals (e.g., business
travelers, weekend trip visitors) will make repeat trips to a given
city during a year, the Department has decided to require that transit
authorities permit a visitor to use the service on any combination of
21 days throughout a 365-day period. For example, if Ms. Smith first
uses the service on April 1, she could use the service on April 2-6,
May 17, July 10-15, October 7, etc. until she had used the service on
21 days in the period extending through March 31 of the next calendar
year. The way that XYZ chooses to implement visitor eligibility should
be made part of its paratransit program and visitors should be provided
materials clearly explaining how XYZ's visitor policy works.
3. Vehicle Acquisition for ``Private Not Primarily Engaged'' Providers
Section 37.101 contains the vehicle acquisition requirements for
private entities not primarily engaged in the business of transporting
people. Paragraph (d) of the section applies to private entities which
operate demand responsive systems which purchase vehicles with seating
capacity over 16. When these entities purchase such a vehicle, it must
be accessible to individuals who use wheelchairs, unless the entity can
show that when viewed in its entirety, its system provides equivalent
service to individuals with disabilities. The standard for equivalent
service is found in Sec. 37.105, to which paragraph (d) refers the
reader.
Neither Sec. 37.101 nor the ADA has any vehicle acquisition
requirement for private entities not primarily engaged in transporting
people which operate demand responsive systems which purchase vehicles
with seating capacity of 16 or less. This has created the mistaken
impression that there are no service standards which apply to these
systems. The ADA does require private operators of demand responsive
systems to provide equivalent service to individuals with disabilities
regardless of whether or not they purchase any new vehicles. This
requirement is contained in Section 302(b)(2)(C) of the ADA and is
reflected in the Department's regulations in Sec. 37.171. Section
37.171 applies the same standard for overall equivalent service as is
found in Sec. 37.105.
To eliminate the confusion which has resulted from these
requirements, this final rule adds a new paragraph to Sec. 37.101 which
explicitly states that private entities operating demand responsive
systems that purchase vehicles with capacity of 16 or fewer must
provide equivalent service to individuals with disabilities. The new
paragraph refers the reader to both the requirement stated in
Sec. 37.171 and the standard articulated in Sec. 37.105.
4. Personal Care Attendants
The NPRM requested comments on the question of how to define a
personal care attendant (PCA), and whether further definition was
necessary, for the purposes of determining eligibility to ride
paratransit free while accompanying a paratransit eligible individual.
Half of all comments received on the NPRM addressed this issue.
Individuals with disabilities and advocacy groups were overwhelmingly
opposed to any attempt to further define a PCA, often expressing the
opinion that further definition would constitute an invasion of
privacy.
Transit authorities were divided on the question, with eight
believing that there was no problem and no further action warranted,
and more than a dozen believing that something should be done. Three
transit authorities suggested registering the PCAs themselves, and
three more believed that only PCAs needed for the trip should qualify,
not those whose services were required at the destination. Several
commenters suggested that individuals who needed PCAs should register
that need as part of the application process--something that the
Appendix already allows paratransit providers to require. Three of the
transit authorities that supported requiring riders to register the
need for a PCA went further to suggest that individuals who have
registered a need for a PCA be denied service when riding alone.
The Department has decided not to amend the regulatory text
regarding PCAs. We wish to reemphasize, however, that the existing
definition of
[[Page 25415]]
a PCA does not distinguish between PCAs whose services are required
during the paratransit ride and those required at the destination.
Limiting riders to PCAs who were required on the paratransit trip could
leave a rider unable to function at his or her destination, thereby
making the trip meaningless.
Finally, several commenters suggested requiring those who register
as using a PCA be denied service when riding alone. The Department did
not adopt this suggestion. Riders who use a PCA for destination needs
may well have varying needs depending on the trip purposes. Requiring
these riders to be accompanied by a PCA even when they do not expect to
require assistance will create unnecessary expenses for the rider and
further burden the seating capacity of the transit provider. Other
riders may have varying levels of assistance needs over time, and
requiring these riders to either further define their needs in advance
or always travel with a PCA is unjustifiably intrusive.
5. Equivalent Facilitation
The final substantive change proposed in the NPRM was to delete the
requirement that an entity demonstrate an inability to comply with
existing requirements as a condition of obtaining a determination of
equivalent facilitation. As explained in the NPRM, the original purpose
of the provision was to limit departures from established regulatory
standards and promote uniformity and predictability. The Department was
concerned, however, that requiring a showing of inability to comply was
having the effect of stifling innovation and discouraging the
development of new technologies that might provide equal or even
greater accessibility at a lower cost.
The discussion of this change that appeared in the preamble of the
NPRM addressed only whether a petitioning entity should have to
demonstrate its inability to comply. A drafting error in the proposed
regulatory text created the impression that the amendment would have
gone further, eliminating other reporting requirements associated with
the petition for equivalent facilitation. The Department apologizes for
the error and wishes to note that at no time were the other
requirements considered for removal.
Commenters were split on this proposal. All commenting transit
authorities and providers agreed with the proposal, as did a few other
commenters. Many of these commenters clearly conditioned their support
on the Department ensuring that the change did not allow any decrease
in accessibility. Members of the disability community voiced strong
dissent to the proposal. Almost all of the comments filed by
individuals with disabilities and their advocacy groups viewed the
change as a weakening of the ADA's accessibility standards and many
expressed distrust of the Department's ability to ensure legitimate
equivalence.
Recognizing that significant costs can be associated with ADA
compliance, the Department feels that to ensure the most widespread
long-term compliance, it must allow as much flexibility as possible and
encourage the development of new, more cost effective technologies.
Accordingly, the requirement that an entity show that it is unable to
comply with current standards is being eliminated from the petition for
equivalent facilitation. Petitioning entities must continue to show
that their alternative method actually provides equal or greater
accessibility. This point protects the interests of the disability
community concerning maintaining the strength of accessibility
requirements. The other reporting requirements of the petition found in
Sec. 37.7 and Sec. 37.9 will also remain, such as demonstrating the
effectiveness of the alternative measures for compliance and
documenting the public participation used in developing the alternative
method. The Department notes that the original purpose of the
requirement, encouraging uniformity and predictability, remains an
important goal.
6. Clarification of Appendix Statement on Vehicle Lift Dimensions
The NPRM proposed to clarify a reference to the Part 38 standards
for accessible vehicles. Appendix D to Part 37 contains explanatory
statements and guidelines for Part 37. In Appendix D, section 37.13,
the discussion of section 37.13 of the rule refers to the ``new 30'' by
48'' lift platform specifications.'' This statement was intended to
refer to the Part 38 standards for lift platforms. The reference
oversimplifies the Part 38 standard, which requires 30 x 48 inch
dimensions at a height of 2 inches above the platform base, but only
requires a width of 28.5 inches at the base itself. To eliminate the
confusion created by the reference, section 37.13 of Part 37, Appendix
D will be amended to replace the words ``new 30'' by 48'' '' with the
words ``Part 38''.
7. Typographical Errors
The typographical errors in Secs. 37.3 and 37.11(a) will be
corrected as described in the NPRM.
Regulatory Analyses and Notices
This final rule is not significant under Executive Order 12866. It
is significant under the Department's Regulatory Policies and
procedures, because it amends a significant rule having substantial
public interest. We expect economic impacts to be minimal, so we have
not prepared a regulatory evaluation. There are no Federalism impacts
sufficient to warrant the preparation of a Federalism assessment. The
Department certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
Issued this 7th day of March, 1996, at Washington, DC.
Federico Pena,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department proposes
to amend 49 CFR Part 37 and 49 CFR Part 38 as follows:
PART 37--[AMENDED]
1. The authority citation for 49 CFR Part 37 is proposed to
continue to read as follows:
Authority: Americans with Disabilities Act of 1990 (42 U.S.C.
12101-12213); 49 U.S.C. 322.
2. The authority citation for 49 CFR Part 38 is proposed to be
revised to read as follows:
Authority: Americans with Disabilities Act of 1990 (42 U.S.C.
12101-12213); 49 U.S.C. 322.
3. In part 37, Sec. 37.27(b) is proposed to be revised to read as
follows:
Sec. 37. 27 Transportation for elementary and secondary education
systems.
* * * * *
(b) The requirements of this part do not apply to the
transportation of school children to and from a private elementary or
secondary school, and its school-related activities, if the school is
providing transportation service to students with disabilities
equivalent to that provided to students without disabilities. The test
of equivalence is the same as that provided in Sec. 37.105. If the
school does not meet the requirement of this paragraph for exemption
from the requirements of this part, it is subject to the requirements
of this part for private entities not primarily engaged in transporting
people.
Sec. 37.3 [Amended]
4. In part 37, Sec. 37.3 the definition of the term ``Designated
public transportation'' is amended by replacing
[[Page 25416]]
the word ``containing'' with the word ``continuing.''
5. In Part 37, Sec. 37.7 is amended by revising paragraph
(b)(2)(ii) and removing and reserving (b)(2)(iii) to read as follows:
Sec. 37.7 Standards for accessible vehicles.
* * * * *
(b) * * *
(2) * * *
(ii) Specific provision of part 38 of this title concerning which
the entity is seeking a determination of equivalent facilitation.
* * * * *
6. In Part 37, Sec. 37.9 is amended by revising paragraph
(d)(2)(ii) to read as follows and removing and reserving (d)(2)(iii):
Sec. 37.9 Standards for accessible facilities.
* * * * *
(d) * * *
(2) * * *
(ii) Specific provision of Appendix A to Part 37 concerning which
the entity is seeking a determination of equivalent facilitation.
* * * * *
Sec. 37.11 [Amended]
7. In part 37, Sec. 37.11(a) is amended by replacing the words
``subpart F'' with the words ``subpart C.''
8. In Part 37, Sec. 37.101 is amended by adding a new paragraph
(e), to read as follows:
Sec. 37.101 Purchase or lease of vehicles by private entities not
primarily engaged in the business of transporting people.
* * * * *
(e) Demand Responsive System, Vehicle Capacity of 16 or Fewer.
Entities providing demand responsive transportation covered under this
section are not specifically required to ensure that new vehicles with
seating capacity of 16 or fewer are accessible to individuals with
wheelchairs. These entities are required to ensure that their systems,
when viewed in their entirety, meet the equivalent service requirements
of Secs. 37.171 and 37.105, regardless of whether or not the entities
purchase a new vehicle.
9. In Part 37, Sec. 37.127(e) is revised to read as follows:
Sec. 37.127 Complementary paratransit service for visitors.
* * * * *
(e) A public entity shall make the service to a visitor required by
this section available for any combination of 21 days during any 365-
day period beginning with the visitor's first use of the service during
such 365-day period. In no case shall the public entity require a
visitor to apply for or receive eligibility certification from the
public entity before receiving the service required by this section.
10. In part 37, Sec. 37.131(b)(4) is revised to read as follows:
Sec. 37.131 Service criteria for complementary paratransit.
* * * * *
(b)* * *
* * * * *
(4) The entity may permit advance reservations to be made up to 14
days in advance of an ADA paratransit eligible individual's desired
trips. When an entity proposes to change its reservations system, it
shall comply with the public participation requirements equivalent to
those of Sec. 37.131(b) and (c).
* * * * *
11. In Part 37, Sec. 37.135 is amended by revising paragraph (c) to
read as follows:
Sec. 37.135 Submission of paratransit plan.
* * * * *
(c) Annual Updates. Except as provided in this paragraph, each
entity shall submit an annual update to its plan on January 26 of each
succeeding year.
(1) If an entity has met and is continuing to meet all requirements
for complementary paratransit in Secs. 37.121-37.133 of this part, the
entity may submit to FTA an annual certification of continued
compliance in lieu of a plan update. Entities that have submitted a
joint plan under Sec. 37.141 may submit a joint certification under
this paragraph. The requirements of Secs. 37.137-37.139 do not apply
when a certification is submitted under this paragraph.
(2) In the event of any change in circumstances that results in an
entity which has submitted a certification of continued compliance
falling short of compliance with Secs. 37.121-37.133, the entity shall
immediately notify FTA in writing of the problem. In this case, the
entity shall also file a plan update meeting the requirements of
Secs. 37.137-37.139 of this part on the next following January 26 and
in each succeeding year until the entity returns to full compliance.
(3) An entity that has demonstrated undue financial burden to the
FTA shall file a plan update meeting the requirements of Secs. 37.137-
37.139 of this part on each January 26 until full compliance with
Secs. 37.121-37.133 is attained.
(4) If FTA reasonably believes that an entity may not be fully
complying with all service criteria, FTA may require the entity to
provide an annual update to its plan.
Appendix D [Amended]
12. In Part 37, Appendix D, the paragraph entitled ``Section 37.13
Effective Date for Certain Vehicle Lift Specifications'' is proposed to
be amended by replacing the words ``new 30'' by 48'''' with the words
``Part 38.''
Sec. 38.173 [Amended]
13. In part 38, Sec. 38.173(a) is amended by adding the words
``(i.e., at a speed of no more than 20 miles per hour at any location
on their route during normal operation)'' after the words ``slow
speed.''
14. In part 38, Sec. 38.173(d) is amended by adding the following
sentence at the end thereof, to read as follows:
Sec. 38.173 Automated guideway transit vehicles and systems.
* * * * *
(d) * * * AGT systems whose vehicles travel at a speed of more than
20 miles per hour at any location on their route during normal
operation are covered under this paragraph rather than under paragraph
(a) of this section.
[FR Doc. 96-11935 Filed 5-20-96; 8:45 am]
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