issue-1996-09-26•Federal Register final rules — 1996-09-26
Federal Register final rules — 1996-09-26
issue-1996-09-26Federal Register final rules — 1996-09-26Regulation
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. 96-24743 Safety Zone Regulations; Back River and Foster Creek; Charleston, SC
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50436-50437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24743]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[COTP Charleston 96-052]
RIN 2115-AA97
Safety Zone Regulations; Back River and Foster Creek; Charleston,
SC
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone for
the U.S. Border Patrol Training Academy Small Arms Range at the
Charleston Naval Weapons Station. The safety zone will become effective
at 6 a.m. Eastern Daylight Time (EDT) on September 1, 1996 and will
terminate at 12 a.m. Eastern Standard Time (EST) on December 1, 1996.
This safety zone is needed to protect vessels and personnel from safety
hazards associated with small arms fire.
EFFECTIVE DATES: The regulation is effective at 6 a.m. EDT on September
1, 1996 and will terminate at 12 a.m. EST on December 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Jeffrey T. Carter, Coast Guard Marine Safety Office
Charleston, at (803) 720-7701, between the hours of 7:30 a.m. and 4
p.m. EDT, Monday through Friday, except federal holidays.
SUPPLEMENTARY INFORMATION: In accordance with 5 U.S.C. 533, a notice of
proposed rulemaking was not published for this regulation and good
cause exists for making it effective in less than 30 days from the date
of publication. Following normal rulemaking procedures would have been
impractical. The information to commence firing at the small arms range
was not received with sufficient time to publish proposed rules prior
to the event or to provide for a delayed effective date.
Discussion of Regulations
The temporary safety zone is being established for the U.S. Border
Patrol
[[Page 50437]]
Training Academy Small Arms Range at the Charleston Naval Weapons
Station. This safety zone will become effective at 6 a.m. EDT on
September 1, 1996 and will terminate at 12 a.m. EST on December 1,
1996. The safety zone is needed to protect persons, vehicles and
vessels from safety hazards associated with small arms fire.
The safety zone will consist of those portions of unnamed
tributaries of the Back River and Foster Creek that are generally
described as lying south of the main shoreline and extending southward
to the northern shoreline of Big Island (U.S. Naval Reservation).
Specifically, the area beginning at a point on the main shoreline,
which is the northern shore of an unnamed tributary of Back River at
position 32 deg.59'19''N, 79 deg.56'52''W, southwesterly to a point on
or near the northern shoreline of Big Island at position
32 deg.59'11''N, 79 deg.56'59''W; thence northwesterly to a point on
the main shoreline, which is the northern shore of an unnamed tributary
of Foster Creek, at position 32 deg.59'16''N, 79 deg.57'11''W; thence
easterly along the main shoreline, which is the northern shore of the
unnamed tributaries of Foster Creek and Back River, back to the point
of beginning at position 32 deg.59'19''N, 79 deg.56'52''W. All
coordinates referenced use datum: NAD 1983. The Captain of the Port has
restricted vessel operations in this safety zone. No persons, vehicles
or vessels will be allowed to enter or operate within this zone, except
as may be authorized by the Captain of the Port, Charleston, South
Carolina. This regulation is issued pursuant to 33 U.S.C. 1231, as set
out in the authority citation of Part 165.
Regulatory Evaluation
The regulation is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040,
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Maritime traffic will not be significantly impacted because of the
small number of vessels expected to need the safety zone, and the
limited area affected by the zone.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) Small businesses and not-for-profit
organizations that are independency owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. Small entities will not be affected
significantly because of the limited duration of the zone and the
limited area affected by the zone. Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this rule will not have a significant
economic impact on a substantial number of small entities.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et eq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient Federalism implications to warrant
the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
rule and concluded that, under paragraph 2.B.2. of Commandant
Instruction M16475.1B, (as revised by 59 FR 38654, July 29, 1994), this
rule is categorically excluded from further environmental
documentation. Pursuant to COMDTINST M16475.1B, paragraph 2.B.2.
section 34(g), an environmental determination has been made that this
rule will not significantly affect the environment. A ``Categorical
Exclusion Determination'' and ``Categorical Exclusion Checklist'' are
available in the docket for inspection or copying.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Safety measures, Waterways.
Regulations
In consideration of the foregoing, the Coast Guard amends Subpart C
of Part 165 of Title 33, Code of Federal Regulations, as follows:
PART 165--[AMENDED]
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new temporary section 165.T07-052 is added to read as follows:
Sec. 165.T07-052 Safety Zone; Back River and Foster Creek, Charleston,
SC.
(a) Regulated area. Naval Weapons Station/U.S. Border Patrol
Training Academy Small Arms Range. The following area is a safety zone:
those portions of unnamed tributaries of the Back River and Foster
Creek lying south of the main shoreline and extending southward to the
northern shoreline of Big Island (U.S. Naval Reservation) beginning at
a point on the main shoreline at 32 deg.59'19''N, 79 deg.56'52''W, then
to 32 deg.59'11''N, 79 deg.56'59''W; then to 32 deg.56'16''N,
79 deg.57'11''W; then back to the point of beginning. All coordinates
referenced use datum: NAD 1983.
(b) Effective dates. This regulation is effective at 6 a.m. (EDT)
on September 1, 1996 and will terminate at 12 a.m. (EST) on December 1,
1996.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23 of this part, entry into the zone is subject to the
following requirements:
(1) This safety zone is closed to all persons, vehicles and
vessels, except as any be permitted by the Captain of the Port,
Charleston, SC.
(2) Persons desiring to enter or operate vehicles or vessels within
the safety zone shall contact the Captain of the Port to obtain
permission to do so. Persons given permission to enter or operate in
the safety zone shall comply with all directions given them by the
Captain of the Port.
(3) The Captain of the Port may be contacted via the Coast Guard
Group Charleston operations center at (803) 724-7619 or VHF-FM channel
16.
Dated: August 30, 1996.
M.J. Pontiff,
Commander, U.S. Coast Guard, Captain of the Port, Charleston, South
Carolina.
[FR Doc. 96-24743 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-24742 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50428-50430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24742]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28693; Amdt. No. 1754]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of
changes occurring in the National Airspace System, such as the
commissioning of new navigational facilities, addition of new
obstacles, or changes in air traffic requirements. These changes are
designed to provide safe and efficient use of the navigable airspace
and to promote safe flight operations under instrument flight rules at
the affected airports.
[[Page 50429]]
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matter incorporated by reference in the
amendment is as follows:
For Examination--
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport
is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description on each SIAP is contained in the appropriate FAA
Form 8260 and the National Flight Data Center (FDC)/Permanent (P)
Notices to Airmen (NOTAM) which are incorporated by reference in the
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the
Federal Aviations Regulations (FAR). Materials incorporated by
reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction of charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 of the Federal Aviation Regulations (14
CFR part 97) establishes, amends, suspends, or revokes SIAPs. For
safety and timeliness of change considerations, this amendment
incorporates only specific changes contained in the content of the
following FDC/P NOTAM for each SIAP. The SIAP information in some
previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration
as to be permanent. With conversion to FDC/P NOTAMs, the respective
FDC/T NOTAMs have been cancelled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are
based on the criteria contained in the U.S. Standard for Terminal
Instrument Approach Procedures (TERPS). In developing these chart
changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to
only these specific conditions existing at the affected airports. All
SIAP amendments in this rule have been previously issued by the FAA in
a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an
emergency action of immediate flight safety relating directly to
published aeronautical charts. The circumstances which created the need
for all these SIAP amendments requires making them effective in less
than 30 days.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the TERPS. Because of the close and immediate
relationship between these SIAPs and safety in air commerce, I find
that notice and public procedure before adopting these SIAPs are
impracticable and contrary to the public interest and, where
applicable, that good cause exists for making these SIAPs effective in
less than 30 days.
Conclusion
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air Traffic Control, Airports, Navigation (Air).
Issued in Washington, DC on September 20, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective Upon Publication.
----------------------------------------------------------------------------------------------------------------
FDC date State City Airport FDC No. SIAP
----------------------------------------------------------------------------------------------------------------
09/06/96... TX Houston........ Ellington Field 6/6948 ILS RWY 22, AMDT 1...
09/10/96... MO Camdenton...... Camdenton 6/7036 GPS RWY 33, ORIG...
Memorial.
[[Page 50430]]
09/10/96... MO Kaiser/Lake Lee C. Fine 6/7037 GPS RWY 21, ORIG...
Ozark. Memorial.
09/10/96... MO Osage Beach.... Grand Glaize- 6/7034 VOR OR GPS RWY 32, AMDT 4...
Osage Beach.
09/11/96... IN Bloomington.... Monroe County.. 6/7064 VOR/DME RWY 35 AMDT 14...
09/11/96... IN Bloomington.... Monroe County.. 6/7068 VOR OR GPS RWY 17 AMDT 11...
09/11/96... IN Bloomington.... Monroe County.. 6/7070 NDB OR GPS RWY 35 AMDT 4...
09/11/96... IN Bloomington.... Monroe County.. 6/7071 ILS RWY 35 AMDT 4...
09/11/96... IN Bloomington.... Monroe County.. 6/7072 VOR OR GPS RWY 24 AMDT 10...
09/11/96... MO Jefferson City. Jefferson City 6/7056 ILS RWY 30, AMDT 3...
Memorial.
09/11/96... MO Jefferson City. Jefferson City 6/7061 NDB OR GPS RWY 30, AMDT 8...
Memorial.
09/11/96... MS Greenville..... Mid Delta 6/7059 LOC BC RWY 36R, AMDT 8...
Regional.
09/12/96... IN Bloomington.... Monroe County.. 6/7123 VOR OR GPS RWY 6 AMDT 16...
09/12/96... NC Louisburg...... Louisburg/ 6/7142 VOR/DME OR GPS-A, ORIG-A...
Franklin
County.
09/13/96... FL Key West....... Key West Intl.. 6/7170 NDB OR GPS-A AMDT 14...
09/13/96... WI Appleton....... Outagamie 6/7038 NDB OR GPS RWY 3 AMDT 14...
County.
09/13/96... WI Appleton....... Outagamie 6/7039 VOR/DME RWY 3 AMDT 8...
County.
09/13/96... WI Appleton....... Outagamie 6/7122 ILS RWY 3 AMDT 16...
County.
09/17/96... CA Fresno......... Fresno Air 6/7243 NDB OR GPS RWY 29R AMDT 23...
Terminal.
09/17/96... CA Fresno......... Fresno Air 6/7245 ILS RWY 29R AMDT 33...
Terminal.
09/18/96... AZ Phoenix........ Phoenix Sky 6/7269 ILS RWY 8R AMDT 9...
Harbor Intl.
09/18/96... AZ Prescott....... Ernest A. Love 6/7282 VOR OR GPS RWY 11 AMDT 1...
Field.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-24742 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-24741 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50427-50428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24741]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28692; Amdt. No. 1753]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference--approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination--
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA forms are identified as FAA Forms
8260-3, 8260-4, and 8260-5. Materials incorporated by reference are
available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. Some SIAP amendments may
have been previously issued by the FAA in a National Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts. The
circumstances which created the need for some SIAP amendments may
require making them effective in less than 30 days. For the remaining
SIAPs, an effective date at least 30 days after publication is
provided.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the U.S. Standard for Terminal Instrument
Approach Procedures (TERPS). In developing these SIAPs, the TERPS
criteria were applied to the conditions existing or anticipated at the
affected airports. Because of the close and immediate relationship
between these SIAPs and safety in air commerce, I find that notice and
public procedure before adopting these SIAPs are impracticable and
contrary to the public interest and, where applicable, that good cause
exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
[[Page 50428]]
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (air).
Issued in Washington, DC on September 20, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14
CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; AND Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective October 10, 1996
Worcester, MA, Worcester Muni, NDB RWY 29, Orig
Worcester, MA, Worcester Muni, NDB OR GPS RWY 29, Amdt 12 CANCELLED
Worcester, MA, Worcester Muni, ILS RWY 29, Amdt 2
Minneapolis, MN, Minneapolis-St Paul Intl/Wold Chamberlain, NDB or
GPS RWY 4, Amdt 19
Minneapolis, MN, Minneapolis-St Paul Intl/Wold Chamberlain, ILS RWY
4, Amdt 25
Amarillo, TX, Amarillo Intl, LDA/DME RWY 22, Orig
* * * Effective November 7, 1996
Cornelia, GA, Habersham County, VOR/DME OR GPS RWY 6, Amdt 5
Chicago, IL, Chicago O'Hare Intl, NDB RWY 32L, Amdt 22, CANCELLED
Parsons, KS, Tri-City, VOR-A, Orig
Parsons, KS, Tri-City, VOR OR GPS RWY 13, Amdt 4, CANCELLED
Bar Harbor, ME, Hancock County-Bar Harbor, LOC/DME BC RWY 4, Amdt 1
Kennett, MO, Kennett Memorial, NDB OR GPS RWY 18, Amdt 3
New York, NY, John F. Kennedy Intl, ILS/DME RWY 22R, Orig-A,
CANCELLED
New York, NY, John F. Kennedy Intl, ILS RWY 22R, Orig
Rugby, ND, Rugby Muni, NDB RWY 30, Amdt 5
Rugby, ND, Rugby Muni, NDB or GPS RWY 12, Amdt 4
Oxford, OH, Miami University, NDB or GPS RWY 5, Amdt 10
Wapakoneta, OH, Neil Armstrong, LOC RWY 26, Amdt 3
Austin, TX, Austin-Bergstrom Intl, ILS RWY 17R, Orig
Austin, TX, Austin-Bergstrom Intl, ILS RWY 35L, Orig
Austin, TX, Austin-Bergstrom Intl, GPS RWY 17R, Orig
Austin, TX, Austin-Bergstrom Intl, GPS RWY 35L, Orig
Shell Lake, WI, Shell Lake Muni, VOR/DME RWY 32, Orig, CANCELLED
Shell Lake, WI, Shell Lake Muni, VOR/DME RWY 32, Orig
* * * Effective December 5, 1996
St Paul Island, AK, St Paul Island, ILS/DME RWY 36, Amdt 1
Hanford, CA, Hanford Muni, GPS RWY 32, Orig
Hayward, CA, Hayward Air Terminal, GPS Rwy 28L, Orig
Washington, DC, Washington Dulles Intl, NBD RWY 1R, Amdt 17
Washington, DC, Washington Dulles Intl, ILS RWY 1r, Amdt 22
Covington, GA, Covington Muni, VOR/DME OR GPS RWY 10, Amdt 3
Covington, GA, Covington Muni, NDB RWY 28, Amdt 1
Covington, GA, Covington Muni, GPS RWY 28, Orig
Moultrie, GA, Moultrie Muni, NDB-A, Orig
Iowa City, IA, Iowa City Muni, RNAV RWY 24, Amdt 1A CANCELLED
New Orleans, LA, Lakefront, VOR OR GPS-A, Amdt 16 CANCELLED
New Orleans, LA, Lakefront, VOR OR GPS-B, Amdt 8 CANCELLED
New Orleans, LA, Lakefront, VOR RWY 18R, Amdt 4
New Orleans, LA, Lakefront, VOR/DME OR GPS RWY 36L, Amdt 7
New Orleans, LA, Lakefront, ILS RWY 18R, Amdt 12
Reserve, LA, St John The Baptist Parish, GPS RWY 17, Orig
Gaylord, MI, Otsego County, VOR or GPS RWY 9, Orig
Kansas City, MO, Richards-Gebaur Memorial, ILS RWY 1, Amdt 4
Kansas City, MO, Richards-Gebaur Memorial, GPS RWY 1, Orig
Kansas City, MO, Richards-Gebaur Memorial, GPS RWY 19, Orig
Sikeston, MO, Sikeston Meml Muni, GPS RWY 20, Orig
Broken Bow, NE, Broken Bow Muni, GPS RWY 14, Orig
Columbus, NE, Columbus Muni, GPS RWY 14, Orig
Newburgh, NY, Stewart Intl, VOR RWY 27, Amdt 4
Mount Airy, NC, Mount Airy/Surry County, GPS RWY 36, Orig
Altus, OK, Altus Muni, GPS RWY 17, Orig
Altus, OK, Altus Muni, VOR/DME RNAV RWY 17, Amdt 1
Antlers, OK, Antlers Muni, GPS RWY 35, Orig
Boise City, OK, Boise City, GPS RWY 4, Orig
Durant, OK, Eaker Field, GPS RWY 35, Orig
Perry, OK, Perry Muni, GPS RWY 17, Orig
Sallisaw, OK, Sallisaw Muni, NDB OR GPS-A, Amdt 1
Sallisaw, OK, Sallisaw Muni, GPS RWY 35, Orig
Tulsa, OK, Richard Lloyd Jones Jr, GPS RWY 1L, Orig
Weatherford, OK, Thomas P Stafford, NDB RWY 17, Amdt 3
Weatherford, OK, Thomas P Stafford, GPS RWY 17, Orig
Weatherford, OK, Thomas P Stafford, GPS RWY 35, Amdt 1
Harrisburg, PA, Capital City, GPS RWY 26, Orig
Philadelphia, PA, Wings Field, GPS RWY 24, Orig
Big Lake, TX, Reagan County, NDG OR GPS RWY 16, Amdt 1, CANCELLED
Big Lake, TX, Reagan County, GPS RWY 16, Orig
Blacksburg, VA, Virginia Tech, LOC RWY 12, Amdt 4
Blacksburg, VA, Virginia Tech, GPS RWY 12, Orig
Winchester, VA, Winchester Regional, LOC RWY 32, Amdt 4
Winchester, VA, Winchester Regional, NDB OR GPS-B, Orig
[FR Doc. 96-24741 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-24733 Migratory Bird Hunting; Final Frameworks for Late-Season Migratory Bird Hunting Regulations
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50662-50681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24733]
[[Page 50661]]
_______________________________________________________________________
Part VIII
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 20
Final Frameworks for Late-Season Migratory Bird Hunting Regulations;
Final Rule
Federal Register / Vol. 61, No. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50662]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AD69
Migratory Bird Hunting; Final Frameworks for Late-Season
Migratory Bird Hunting Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule prescribes final late-season frameworks from which
States may select season dates, limits, and other options for the 1996-
97 migratory bird hunting season. These late seasons include most
waterfowl seasons, the earliest of which generally commence on or about
October 1, 1996. The effects of this final rule are to facilitate the
selection of hunting seasons by the States to further the annual
establishment of the late-season migratory bird hunting regulations.
State selections will be published in the Federal Register as
amendments to Secs. 20.104 through 20.107 and Sec. 20.109 of title 50
CFR part 20.
EFFECTIVE DATE: September 26, 1996.
ADDRESSES: Season selections from States are to be mailed to: Chief,
Office of Migratory Bird Management, U.S. Fish and Wildlife Service,
Department of the Interior, ms 634--ARLSQ, 1849 C Street, NW.,
Washington, DC 20240. Comments received are available for public
inspection during normal business hours in room 634, Arlington Square
Building, 4401 N. Fairfax Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, Office of
Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-
1714.
SUPPLEMENTARY INFORMATION:
Regulations Schedule for 1996
On March 22, 1996, the Service published in the Federal Register
(61 FR 11992) a proposal to amend 50 CFR part 20. The proposal dealt
with the establishment of seasons, limits, and other regulations for
migratory game birds under Secs. 20.101 through 20.107, 20.109, and
20.110 of subpart K. On June 13, 1996, the Service published in the
Federal Register (61 FR 30114) a second document providing supplemental
proposals for early- and late-season migratory bird hunting regulations
frameworks. The June 13 supplement also provided detailed information
on the 1996-97 regulatory schedule and announced the Service Migratory
Bird Regulations Committee and Flyway Council meetings. On June 14,
1996, the Service published in the Federal Register (61 FR 30490) a
third document describing the Service's proposed 1996-97 regulatory
alternatives for duck hunting and its intent to consider establishing a
special youth waterfowl hunting day.
On June 27, 1996, the Service held a public hearing in Washington,
DC, as announced in the March 22 and June 14 Federal Registers, to
review the status of migratory shore and upland game birds. The Service
discussed hunting regulations for these species and for other early
seasons. On July 22, 1996, the Service published in the Federal
Register (61 FR 37994) a fourth document specifically dealing with
proposed early-season frameworks for the 1996-97 season. This document
also extended the public comment period to August 1, 1996, for early-
season proposals. This rulemaking establishes final frameworks for
early-season migratory bird hunting regulations for the 1996-97 season.
On August 2, 1996, a public hearing was held in Washington, DC, as
announced in the March 22, June 14, and July 22 Federal Registers, to
review the status of waterfowl. Proposed hunting regulations were
discussed for these late seasons. On August 15, 1996, (61 FR 42506),
the Service published a fifth and sixth document on migratory bird
hunting. The fifth document dealt specifically with proposed frameworks
for the 1996-97 late-season migratory bird hunting regulations. The
sixth document proposed establishing a youth waterfowl hunting day for
the 1996-97 duck-hunting season. On August 29, 1996, the Service
published a seventh document containing final frameworks for early
migratory bird hunting seasons from which wildlife conservation agency
officials from the States, Puerto Rico, and the Virgin Islands selected
early-season hunting dates, hours, areas, and limits.
On August 30, 1996, the Service published in the Federal Register
(61 FR 45836) an eighth document consisting of a final rule amending
subpart K of title 50 CFR part 20 to set hunting seasons, hours, areas,
and limits for early seasons. This document, which establishes final
frameworks for late-season migratory bird hunting regulations for the
1996-97 season, is the ninth in the series.
Review of Comments and the Service's Response
Public-hearing and written comments received through September 6,
1996, relating to proposed late-season frameworks, are discussed and
addressed here. Two individuals presented statements at the August 2,
1996, public hearing. They were: Joe Kramer, representing the Central
Flyway Council and Bruce Barbour, representing National Audubon
Society. The Service received 28 written comments that specifically
addressed late-season issues. These late-season comments are summarized
and discussed in the subject order used in the March 22, 1996, Federal
Register. Only the numbered items pertaining to late seasons for which
comments were received are included. Flyway Council recommendations
shown below include only those involving changes from the 1995-96 late-
season frameworks. For those topics where a Council recommendation is
not shown, the Council supported continuing the same frameworks as in
1995-96.
General
Written Comments: The Humane Society of the United States (Humane
Society) expressed concern that the public was not well represented in
the regulations-development process and requested establishment of a
system directly involving the non-hunting public. In addition, they
recommended that the Service undertake efforts to obtain population
estimates for all hunted species. Finally, they recommended pre-sunrise
shooting be disallowed.
Service Response: When the preliminary proposed rulemaking document
was published in the Federal Register on March 22, 1996, the Service
announced the comment periods for the early-season and late-season
proposals and gave notice that the process of promulgating hunting
regulations ``must, by its nature, operate under time constraints.''
Ample time must be given to gather and interpret survey data, consider
recommendations and develop proposals, and to receive public comment.
Scheduled dates are set to give the greatest possible opportunity for
public input. The Service is obligated to, and does, give serious
consideration to all information received as public comment. The
Service has long recognized the problems associated with the length of
time necessary to establish the final frameworks, and in conjunction
with States, Flyway Councils, and the public, continues to seek new
ways to streamline and improve the regulatory process.
Regarding the Service's efforts to obtain population estimates, the
long-term objectives of the Service include providing opportunities to
harvest
[[Page 50663]]
portions of certain migratory game bird populations and to limit
harvests to levels compatible with each population's ability to
maintain healthy, viable numbers. Annually, the Service evaluates the
status of populations and considers the potential impacts of hunting.
The Service believes that the hunting seasons provided herein are
consistent with the current status of waterfowl populations and long-
term population goals.
In regard to shooting hours, the Service has compiled information
which demonstrates that shooting hours beginning one-half hour before
sunrise do not contribute significantly to the harvest of nontarget
species. Consistent with the Service's long-term strategy for shooting
hours, published in the September 21, 1990, Federal Register (55 FR
388898), the frameworks herein provide for shooting hours of one-half
hour before sunrise to sunset, unless otherwise specified.
1. Ducks
The categories used to discuss issues related to duck harvest
management are as follows: (A) General Harvest Strategy, (B) Framework
Dates, (C) Season Length, (E) Bag Limits, (F) Zones and Split Seasons,
and (G) Special Seasons/Species Management. Only those categories
containing substantial recommendations are included below.
A. General Harvest Strategy
Council Recommendations: The Atlantic Flyway Council, the Upper-
Region Regulations Committee of the Mississippi Flyway Council, the
Central Flyway Council, and the Pacific Flyway Council recommended
adopting the ``liberal'' alternative for the 1996-97 duck hunting
season.
The Lower-Region Regulations Committee of the Mississippi Flyway
Council recommended some specific modifications to the ``liberal''
alternative. These modifications are detailed in B. Framework Dates, C.
Season Length, and E. Bag Limits.
Written Comments: Senator John Breaux of Louisiana asked for
consideration of the Lower-Region Regulations Committee of the
Mississippi Flyway Council's recommendation.
Senators Thad Cochran and Trent Lott of Mississippi, John Breaux
and Bennett Johnston of Louisiana, and Richard Shelby of Alabama,
supported the recommendations of the Lower-Region Regulations Committee
of the Mississippi Flyway Council.
The Wildlife Management Institute (WMI) supported the Service's
proposed frameworks for late-season hunting regulations. WMI supported
adaptive harvest management (AHM) and believed that recent attempts by
some States to circumvent the established regulatory process threatens
the future of AHM as a useful process.
The National Wildlife Federation concurred with the Service's
proposal to generally maintain harvest levels similar to last year,
with some areas slightly increased.
Service Response: Beginning in 1995, the Service, Flyway Councils,
and States introduced a new approach to the regulation of duck
harvests, called Adaptive Harvest Management (AHM). An integral part of
this harvest-management approach is the cooperative establishment of a
set of regulatory alternatives that includes specified season lengths
and bag limits for restrictive, moderate, and liberal seasons. The
alternatives established for this year's hunting season are similar to
those of the 1995 season and are the result of extensive discussions
with the Flyway Councils and States since last January, as well as
involvement by the public during an open comment period.
The estimate of total ducks this year is 16 percent higher than the
long-term average and several species are at record levels. The outlook
for production is excellent and the 1996 fall flight will be comparable
to those observed during the 1970s. Based on favorable input, the
Service seeks to continue use of the AHM approach initiated last year.
The AHM strategy for 1996 prescribes the liberal regulatory alternative
based on high mallard and pond numbers.
The frameworks recommended by the Lower-Region Regulations
Committee of the Mississippi Flyway Council differed from those in the
``liberal'' alternative established earlier this year. The Service's
proposal is consistent with the ``liberal'' alternative outlined in the
July 22 Federal Register and was supported by the other three Flyway
Councils as well as the Mississippi Flyway Council's Upper-Region
Regulations Committee.
The Service recognizes the need to address the issue of harvest
opportunity for species other than mallards that may be at or above
objective population levels. Consequently, as part of the continuing
development of AHM, the Service and Flyway Councils will soon begin a
comprehensive review of regulatory alternatives, including all aspects
of duck hunting regulations, in preparation for the 1997-98 hunting
season.
Additionally, in the July 22, 1996, Federal Register, the Service
reported that all four Flyways continued to express support for the AHM
approach, but that the Mississippi and Central Flyway Councils had
recommended some specific modifications to the harvest-management
objective (objective function). The Service and Flyway Councils have
examined the role of the North American Waterfowl Management Plan
(NAWMP) in harvest management and have explored a range of possible
objectives designed to balance harvest and population goals. The
Service emphasizes that population goals are not necessary for ensuring
resource persistence if the basic objective is one of maximizing long-
term cumulative harvest. In this sense, the NAWMP is neither a system
for regulating harvest nor a substitute for Flyway management. However,
NAWMP goals do provide a means to reflect non-harvest conservation
values, an ecosystem context for management, and a potential vehicle
for future integration of harvest and habitat management.
Based on recommendations from the Flyway Councils, the Service has
decided to adopt a harvest-management objective that implements a
proportional decrease in harvest value when the mallard population is
expected to recede from the NAWMP goal. This change in harvest-
management objective results in a somewhat more liberal harvest
strategy than that used in 1995, all other things being equal. However,
the Service notes that: (1) a proportional decrease in harvest value
provides a reasonable balance of harvest and population goals, while
still calling for very restrictive seasons with low pond and mallard
numbers; and (2) the frequency of regulatory changes and potential for
closed seasons are expected to be lower when compared with the
objective function from 1995.
B. Framework Dates
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended fixed September 28 and
January 23 framework dates.
Written Comments: Senators Thad Cochran and Trent Lott of
Mississippi recommended an experimental January 31 framework closing
date for Mississippi.
The Delta Outfitters Association of Mississippi and the Delta
Wildlife Foundation of Mississippi requested a January 31 framework
closing date for Mississippi, citing scientific benefits, habitat
incentives, equal hunting opportunities, and additional economic income
for Mississippi.
An individual from Texas recommended extending the season through
the second week of February.
[[Page 50664]]
The Humane Society recommended that all seasons open at noon on
Wednesdays in order to reduce the high level of harvest associated with
traditional Saturday season openings. Furthermore, the Humane Society
recommended that season openings be delayed by two weeks in all
breeding areas in order to allow ducks time to leave natal marshes
before being subjected to hunting pressure.
Service Response: Regarding the Mississippi Flyway Council's Lower-
Region Regulations Committee recommendation of fixed framework dates,
the Service responded last year in the September 27, 1995, Federal
Register (60 FR 50042) that to maintain consistency among Flyways in
the procedures for selecting framework dates, and because floating
dates have been recommended annually for the Mississippi Flyway in
recent years, it returned to the traditional procedure using fixed
calendar dates for the Atlantic Flyway and floating dates for the
Mississippi, Central, and Pacific Flyways. All floating dates would be
oriented to the October 1 - January 20 period. Further, the Service
reiterated its previously-stated policy to retain the option of using
framework dates as a harvest-management tool. Traditionally, framework
opening and closing dates have been oriented to the period October 1 -
January 20, either as fixed calendar dates or ``floating'' dates, using
as a guideline the Saturday nearest October 1 and the Sunday nearest
January 20 to select opening and closing dates annually. In recent
years, the Service has established fixed calendar dates of October 1 -
January 20 for all Flyways. The fixed calendar dates of September 28 -
January 23 recommended for the Mississippi Flyway this year would
provide consistently wider frameworks over the years than the fixed
October 1 - January 20 dates for the Atlantic Flyway and the floating
dates for the Central and Pacific Flyways.
Regarding the requests for a January 31 framework closing date in
Mississippi, we reiterate our long-standing concerns that hunting
disturbance in late winter may interfere with pair bonding and inhibit
nutrient acquisition and storage with subsequent impacts to
reproductive potential. However, we continue to support investigations
by the AHM technical working group to assess the suitability of all
aspects of the current regulatory alternatives, including framework
dates. Before the Service can consider changes to the timing of the
framework closing date, additional information to alleviate these
concerns is necessary.
Regarding the Humane Society's recommendation for Wednesday season
openings, the Service has previously stated in the Federal Register (58
FR 50190) that a State may choose to delay its opening date to
correspond with a particular day of the week or to close earlier to
maximize the number of weekends that hunting is allowed.
C. Season Length
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended a 53-day season.
Written Comments: Congressman Jimmy Hayes of Louisiana requested
the Service grant the Louisiana Department of Wildlife and Fisheries'
request to extend the season by 3 days.
Service Response: The Service responded in the July 22, 1996,
Federal Register that it believes that any modifications to season
length under the three regulatory alternatives must be approached
carefully, with due consideration to differences among Flyways. Current
differences in season length among the Flyways are predicated on
historic (ca. 1950) patterns of duck abundance and hunter activity,
with longer seasons available to Flyways with relatively more ducks and
fewer hunters. Further, the Service believes that a thorough review of
Flyway differences in season lengths is needed and is seeking technical
guidance from the Flyway Councils, the AHM technical working group, and
others. Current differences in hunter activity and duck abundance, as
well as the origin and status of duck stocks contributing to each
Flyway, should be investigated using recent data and current analytical
techniques. Until such analyses are conducted, the Service is concerned
that changes in season lengths contained in the regulatory alternatives
could alter the allocation of harvest in unpredictable, undesirable or
inappropriate ways. Therefore, the Service prefers to approach all
proposed changes to season length, regardless of the number of days
involved, in a systematic and comprehensive manner.
E. Bag Limits
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended a 6-duck daily bag limit,
including no more than 4 mallards (no more than 1 of which could be a
hen), 4 mottled ducks, 4 scaup, 4 ringnecks, 4 goldeneyes, 4
buffleheads, 2 wood ducks, 2 redheads, 2 canvasbacks, 1 pintail, and 1
black duck.
Written Comments: Senators Thad Cochran and Trent Lott of
Mississippi recommended an experimental 6-bird daily bag limit for
Mississippi.
The Delta Outfitters Association of Mississippi and the Delta
Wildlife Foundation of Mississippi requested a 6-bird daily bag limit
for Mississippi.
An individual from Texas recommended a 5-bird daily bag limit,
including at least 2 pintails and 2 redheads. Another individual from
Texas recommended a 5-bird daily bag limit, including 2 to 3 pintails.
Service Response: The Service responded in the July 22, 1996,
Federal Register that it cannot support the proposal of the Lower-
Region Regulations Committee of the Mississippi Flyway Council to
increase the overall bag limit in the ``liberal'' alternative from 5 to
6 in order to provide additional hunting opportunity on several
abundant species. The Service believes that major changes to the
regulatory alternatives should be addressed in a deliberate and
comprehensive manner. Historic efforts at species-specific management
have been predicated largely on the assumptions that: (a) mallard
harvest rates can be used as a standard by which to judge the
appropriateness of harvest rates for other species; (b) target stocks
of ducks can be isolated in time or space, or that hunters can shoot
selectively; and (c) that management costs are largely fixed, whether
managing one stock or many. Recent information has led the Service to
question the validity of these assumptions. The Service believes that a
number of issues must be addressed prior to major reforms in species-
specific harvest strategies: (1) how much must species or populations
differ in terms of their population dynamics to warrant differential
harvest regulations? (2) what are the relative costs and benefits of
managing individual duck stocks? (3) what is the ability of hunters to
harvest selectively? and (4) do hunters prefer the maximum hunting
opportunity afforded by complex regulations or simpler hunting
regulations that offer less hunting opportunity? The Service awaits
further guidance from the Councils and the AHM technical working group
before considering significant changes to species-specific bag limits.
F. Zones and Split Seasons
Council Recommendations: The Atlantic Flyway Council recommended
that the Service implement the proposed changes to guidelines for the
use of zones and split seasons, and determine if States could be
allowed to
[[Page 50665]]
have 3 zones, with split seasons in each, where the numbers of hunters
and ducks harvested in one or more zones would be very small.
The Upper-Region Regulations Committee of the Mississippi Flyway
Council recommended an additional option of 3 zones and 2-way splits be
provided as a regular option to all States in 1997.
Written Comments: The Illinois Department of Natural Resources, the
Ohio Division of Wildlife, and the Wisconsin Department of Natural
Resources requested the Service add the option of 3 zones and 2-way
splits in one or more zones to the 1996-2000 zones and splits
guidelines. Collectively, they believe that delay in the consideration
of this recommendation until the next open period in 2001 is
unreasonable and further request that States would have up to 1 year to
select this option (prior to the 1997 season).
The Wyoming Game and Fish Department (Wyoming) appreciated the
proposed approval of their zone/split configuration for the 1996-2000
period. However, they recommended the Service establish more detailed
requirements on the minimum acceptable zone width for use during the
next open season. Wyoming believed that guidelines should be
sufficiently clear to prevent unintended interpretations and explicit
regarding their intent. Finally, Wyoming believed that States with
diverse, non-contiguous physiography should be allowed exceptions to
the existing guidelines.
An individual from Wyoming requested the Service's guidelines allow
non-contiguous zones. One individual from Indiana desired for a fourth
zone in Indiana while another requested consideration for allowing
changes to Indiana's zone boundaries. An individual from Maine
recommended the Service consider Maine's proposal to change zone
boundaries and create an additional zone citing the loss of late season
hunting opportunities due to cold weather.
The Humane Society urges the Service to discontinue all split and
special seasons and recommends that any State establishing such seasons
reduce the total number of hunting days by a minimum of 10 days.
Service Response: For the 1996 open season, the Service provided
final guidelines on the use of zones and split seasons for the 1996-
2000 period in the July 22, 1996, Federal Register. As we previously
stated, the Service established these guidelines in 1990 (Federal
Register, 55 FR 38901) following extensive review and endorsement of
the Flyway Councils and Technical Sections. The primary purpose of the
guidelines was to provide a framework for controlling the proliferation
of changes in zone and split options, which compromise our ability to
measure impacts of various regulatory changes on harvest. The
guidelines were not developed preferentially according to the
geographic size of any State, but rather, were administered equally to
all States. We continue to believe that the guidelines must be applied
fairly and consistently to all States in order to prevent further
proliferations in zone/split configurations and that current guidelines
offer States sufficient flexibility to address unique differences in
physiograpy, climate, and biology. However, we will work with the
Flyway Councils to cooperatively review these guidelines, as well as
those concerns identified above, prior to the next scheduled open
season in 2001.
With respect to Wyoming's recommendation for increased levels of
detail in existing guidelines, we believe the guidelines should only be
as detailed as necessary to achieve the desired intent, while allowing
as much flexibility as possible in selecting a zone/split
configuration.
In regard to the recommendation that split and special seasons be
discontinued, the Service notes that States always have the option of
selecting a continuous season with no splits. Furthermore, the Service
is not aware of any information that split seasons are causing
detrimental impacts to populations.
G. Special Seasons/Species Management
Written Comments: WMI believes the Service must aggressively
develop processes for management of harvest programs for species that
do not easily fall under the existing scientific base for AHM.
Service Response: The Service is committed to working with the
Flyway Councils and States to address those species that may not be
managed optimally with the existing AHM framework. However, the Service
believes that species-specific harvest strategies should be developed
in a deliberate and comprehensive manner, and that a number of issues
must be addressed prior to major changes. These issues were described
in the July 22, 1996, Federal Register (61 FR 37999). The Service will
soon undertake a comprehensive review of species-specific harvest
management and will actively seek advice on appropriate approaches from
the Flyway Councils, States, and the public.
i. Black Ducks
Council Recommendations: The Atlantic Flyway Council recommended
that the individual Atlantic Flyway States achieve a 40 percent
reduction in their black duck harvest during the 1996-97 season
compared with the 1977-81 base-line harvest.
Written Comments: An individual from Maine questioned the need for
black duck harvest reductions.
Service Response: The Service agrees with the Atlantic Flyway
Council's recommendation and acknowledges the Council's concern for the
population status of black ducks. Black duck populations remain below
the NAWMP goal and while the decline seems to have halted, little
increase is evident. The Service believes the harvest restrictions
identified in the 1983 Environmental Assessment should be maintained
until a revised harvest strategy is developed.
ii. Canvasbacks
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended a daily bag limit of 2
canvasbacks.
Written Comments: An individual from Washington recommended a daily
bag limit of 2 canvasbacks.
Service Response: The Service continues to support the canvasback
harvest strategy adopted in 1994. Current population and habitat status
suggests that a daily bag limit of 1 canvasback during the 1996-97
season will result in a harvest within levels allowed by the strategy.
The Service believes that it has insufficient experience with this
harvest strategy to consider modifications at this time, and is
concerned that an overly aggressive strategy could precipitate a return
to closed seasons. The Service will continue to monitor the performance
of the current strategy for canvasbacks.
4. Canada Geese
Council Recommendations: The Upper-Region Regulations Committee of
the Mississippi Flyway Council recommended several changes in Canada
goose quotas, season lengths, etc., based on population status and
management plans.
The Upper-Region Regulations Committee of the Mississippi Flyway
Council recommended the Service allow 3-way splits for goose seasons.
The Council further recommended that 3-way split seasons for Canada
geese require both Council and Service
[[Page 50666]]
approval and a 3-year evaluation by each participating State.
The Lower-Region Regulations Committee of the Mississippi Flyway
Council recommended a dark goose daily bag limit of 3 Canada geese, 2
white-fronted geese, and 2 brant.
The Central Flyway Council recommended a 4-bird dark goose
aggregate bag limit in the west-tier States, except for the Western
Goose Zone of Texas.
The Pacific Flyway Council recommended a closing framework date in
the NW Oregon Special Permit Zone of the Sunday closest to February 28.
During the extended period, hunting would occur one day per week. The
Council also recommended the morphological definition of a dusky Canada
goose be defined as dark-breasted (Munsell 10YR color value of 5 or
less) with a culmen measurement of 40 to 50 millimeters.
Written Comments: The NWF supported the general suspension of the
regular season on Canada geese in the Atlantic Flyway.
Service Response: The Service concurs with the above
recommendations regarding bag limits in the Mississippi and Central
Flyways and the Pacific Flyway Council's recommendation for a framework
closing date of February 28 in the NW Oregon Special Permit Zone.
Further, the Service also concurs with the Upper-Region Regulations
Committee of the Mississippi Flyway Council's recommendation on 3-way
split seasons for Canada geese.
The Service concurs with the need for a uniform classification
procedure to determine the harvest of dusky Canada geese in the quota
zones in Washington and Oregon. The Service also agrees with the
criteria proposed by the Pacific Flyway Council for this purpose. The
Service would encourage the Pacific Flyway to continue to evaluate
these criteria to ensure that the harvest management objectives are
met.
C. Special Late Seasons
Council Recommendations: The Atlantic Flyway Council recommended
new experimental late seasons for resident geese in Maryland, Rhode
Island, and Virginia, and additional days and area modifications for
existing seasons in Georgia, Massachusetts, New Jersey, New York,
Pennsylvania, and South Carolina.
The Upper-Region Regulations Committee of the Mississippi Flyway
Council recommended the special late season in the Fergus Falls/
Alexandria Goose Zone of Minnesota be made operational.
The Pacific Flyway Council recommended a daily bag and possession
limit of 2 and 4 cackling Canada geese, respectively, in the SW
Washington Special Goose Zone during the February 5 to March 10 late
season.
Written Comments: The NWF stressed the importance of setting
regulations that would increase the harvest of resident geese in the
Atlantic Flyway while decreasing or eliminating harvest on migrant
populations.
The Humane Society opposed the proposed late season Canada goose
hunts, citing that such hunts fail to target the goose populations
ostensibly responsible for conflicts with humans.
Service Response: The Service concurs with the Atlantic Flyway
Council's recommendations to expand seasons in those areas that meet
existing criteria. Several new seasons were initiated this year and
many others were expanded to increase harvest of resident birds in lieu
of the closed season on the migrant Atlantic Population. However, these
seasons are experimental and the Service encourages all States to
initiate or continue existing evaluations to assess the potential
impacts on the migratory population.
The Service also concurs with the Mississippi Flyway Council's
Upper-Region Regulations Committee recommendation on the special late
season in the Fergus Falls/Alexandria Goose Zone of Minnesota and the
Pacific Flyway Council's recommendation on cackling Canada geese in the
SW Washington Special Goose Zone.
Regarding the Humane Society's comment that such hunts fail to
target specific populations, we recognize the problems caused by
increasing populations of resident geese and the continuing concern for
the status of certain migratory flocks. However, as we stated
previously, we remain committed to targeting these special seasons at
locally-breeding and/or injurious Canada goose populations. The Service
and the Flyway Councils have cooperatively reviewed and structured
these special seasons to protect migratory flocks and target specific
locally-breeding populations. The Service does not wish to increase the
composition of migrants in the harvest beyond that which is currently
identified in the criteria for these seasons.
6. Brant
Council Recommendations: The Atlantic Flyway Council recommended a
30-day Atlantic brant season with a 2-bird daily bag limit.
Service Response: The Service concurs with the Atlantic Flyway
Council's recommendation to reduce the season length as prescribed in
the interim hunt plan.
7. Snow and Ross's Geese
Council Recommendations: The Atlantic Flyway Council recommended a
March 10 framework closing date with a daily bag and possession limit
of 8 and 24, respectively. The Council also recommended allowing the
season to be split into three segments.
The Upper-Region and Lower-Region Regulations Committees of the
Mississippi Flyway Council recommended a March 10 framework closing
date with a daily bag and possession limit of 10 and 30, respectively.
The Central Flyway Council recommended a March 10 framework closing
date, except for Federal and State lands in the Rainwater Basin
counties in Nebraska, with a daily bag and possession limit of 10 and
40, respectively.
Written Comments: The Nebraska Game and Parks Commission (Nebraska)
recommended the closing framework for the 17 Rainwater Basin counties
in south-central Nebraska be extended from the Sunday nearest February
15 (February 16, 1997) to March 10, 1997, except for lands owned by the
Service and the Nebraska Game and Parks Commission. Nebraska believed
this mixture of open and closed areas would provide adequate protection
for other species of migratory birds and not impact the public from
viewing concentrations of migratory birds.
In a second alternative proposal, Nebraska recommended the proposed
county boundary be changed to existing roads, highways, and the Platte
River. This change would provide a more identifiable boundary for
hunters and allow some areas to be included for study in that portion
of the Basin that will be hunted until March 10. The results of these
studies would allow more objective establishment of late-season snow
goose regulations in the future.
An individual from Wyoming requested a March 10 framework closing
date. An individual from Nebraska recommended a March 10 framework
closing date and inclusion of the Rainwater Basin counties in the snow
goose hunt area.
Service Response: The Service concurs with the requests to extend
the framework closing date for light geese to March 10 in the Atlantic,
Mississippi, and Central Flyways, but believes that this extension
should be limited to areas
[[Page 50667]]
that do not pose a threat to the management and welfare of other
migratory bird species during the spring migration and nesting period.
In this regard, the Service appreciates the comments from Nebraska;
however, we do not support the original proposal that would allow for a
mixture of open and closed areas in the Rainwater Basin counties for
snow goose hunting until March 10. The Service believes hunting could
result in disturbance to other migratory birds and alter natural
distributions of waterfowl. This important spring staging area provides
critical habitat for many species of migratory birds, and the impacts
of hunting have not been adequately studied. In addition, potential
impacts to eco-tourism, endangered species, and disease management have
not been adequately addressed.
The alternative proposal which more clearly delineates the
boundaries according to existing roads and highways, is generally
acceptable to the Service. However, the Service continues to have
concerns over late-season snow goose hunting along the Big Bend reach
of the Platte River. The proposed east and south boundaries would allow
hunting on some of the southern-most basins and on Harlan County
Reservoir. These additional hunting opportunities will allow for
studies to assess the impact of hunting on distributions of migratory
birds.
Therefore, the Service will allow light goose hunting in Nebraska
until March 10 except in the area bounded by: the intersection of the
Platte River and U.S. Highway (Hwy) 92 in Polk County, east on Hwy 92
to NE Hwy 15, south on Hwy 15 to NE Hwy 4, west on NE Hwy 4 to U.S. Hwy
34, west on U.S. Hwy 34 to U.S. Hwy 283, north on U.S. Hwy 283 to U.S.
Hwy 30, east on U.S. Hwy 30 to U.S. Hwy 281, south on U.S. Hwy 281 to
NE Hwy 34 & 2, east on NE Hwy 34 to the Platte River, and then north
and east along the Platte River to the beginning. In this area, the
closing date will be the Sunday nearest February 15 (February 16,
1997).
8. Swans
Council Recommendations: The Atlantic Flyway Council recommended
that 5600 tundra swan permits be issued for the 1996-97 season. The
Council recommended that North Carolina receive 5,000 permits and
Virginia 600. The Council also recommended eliminating the requirement
that tundra swan seasons must be held during snow goose seasons.
Written Comments: The Humane Society requested that the Service
close all swan hunting seasons, citing that tundra swan seasons were
impeding, if not preventing, winter range expansion and recovery of
trumpeter swans.
Service Response: The Service concurs with the Atlantic Flyway
Council's recommendation to reduce the number of permits issued in the
Flyway to 5,600 and to eliminate the requirement that these seasons are
concurrent with the light goose season. The Service supports the
Flyway's effort to carefully monitor the harvest and status of the
Eastern Population of tundra swans and encourages the completion of the
revisions to the management plan.
In regards to the Humane Society's comment, we would refer to our
detailed response in the September 27, 1995, Federal Register (60 FR
50042) concerning the establishment of a general swan season. Enhancing
Rocky Mounting Population trumpeter swan range expansion while
retaining most aspects of tundra swan hunting were covered in detail in
our 1995 Environmental Assessment ``Proposal to Establish General Swan
Seasons in Parts of the Pacific Flyway for the 1995-99 Seasons''
(August 1995) which compares various alternative strategies for
reconciling conflicting swan management strategies. Copies are
available from the Service at the address indicated under the caption
ADDRESSES.
23. Other
Written Comments: The Concerned Coastal Sportsmen's Association, a
local organization in Massachusetts, requested compensatory days for
those States that prohibit Sunday hunting.
Service Response: The Service has previously stated its position on
this issue in the September 24, 1993, Federal Register (58 FR 50188),
but has recently agreed to work with the Atlantic Flyway Council to
review and clarify various technical and policy concerns. While this
assessment is still pending, the Service will continue its long-held
policy for the 1996-97 season that all States should be treated equally
under existing Federal regulations and allowed similar frameworks
within each Flyway to hunt migratory birds.
NEPA Consideration
NEPA considerations are covered by the programmatic document,
``Final Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with EPA on June 9, 1988. The Service published a Notice
of Availability in the June 16, 1988, Federal Register (53 FR 22582).
The Service published its Record of Decision on August 18, 1988 (53 FR
31341). Copies of these documents are available from the Service at the
address indicated under the caption ADDRESSES.
Endangered Species Act Consideration
As in the past, the Service designs hunting regulations to remove
or alleviate chances of conflict between migratory game bird hunting
seasons and the protection and conservation of endangered and
threatened species. Consultations have been conducted to ensure that
actions resulting from these regulatory proposals will not likely
jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of their critical
habitat. Findings from these consultations are included in a biological
opinion and may cause modification of some regulatory measures
previously proposed. The final frameworks reflect any modifications.
The Service's biological opinions resulting from its Section 7
consultation are public documents available for public inspection in
the Service's Division of Endangered Species and MBMO, at the address
indicated under the caption ADDRESSES.
Executive Order (E.O.) 12866
This rule is economically significant and was reviewed by the
Office of Management and Budget (OMB) under E.O. 12866.
Congressional Review
In accordance with Section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 8), this rule has been
submitted to Congress and has been declared major. Because this rule
establishes hunting seasons, this rule qualifies for an exemption under
5 U.S.C. 808(1); therefore, the Department determines that this rule
shall take effect immediately.
Regulatory Flexibility Act
These regulations have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq). In the March 22, 1996, Federal Register, the
Service reported measures it took to comply with requirements of the
Act. One measure was to prepare a Small Entity Flexibility Analysis
(Analysis) documenting the significant beneficial economic effects on a
substantial number of small entities. The Analysis estimated that
migratory bird hunters would spend between $254 and $592 million at
small businesses in 1996. Copies of the Analysis are
[[Page 50668]]
available upon request from the Office of Migratory Bird Management.
Paperwork Reduction Act
The Department examined these regulations under the Paperwork
Reduction Act of 1995. The various information collection requirements
are utilized in the formulation of migratory game bird hunting
regulations. OMB has approved these information collection requirements
and assigned clearance number 1018-0015.
Regulations Promulgation
The rulemaking process for migratory game bird hunting must, by its
nature, operate under severe time constraints. However, the Service
intends that the public be given the greatest possible opportunity to
comment on the regulations. Thus, when the preliminary proposed
rulemaking was published, the Service established what it believed were
the longest periods possible for public comment. In doing this, the
Service recognized that when the comment period closed, time would be
of the essence. That is, if there were a delay in the effective date of
these regulations after this final rulemaking, the States would have
insufficient time to select season dates and limits; to communicate
those selections to the Service; and to establish and publicize the
necessary regulations and procedures to implement their decisions.
Therefore, the Service, under authority of the Migratory Bird
Treaty Act (July 3, 1918), as amended, (16 U.S.C. 703-711), prescribes
final frameworks setting forth the species to be hunted, the daily bag
and possession limits, the shooting hours, the season lengths, the
earliest opening and latest closing season dates, and hunting areas,
from which State conservation agency officials may select hunting
season dates and other options. Upon receipt of season and option
selections from these officials, the Service will publish in the
Federal Register a final rulemaking amending 50 CFR part 20 to reflect
seasons, limits, and shooting hours for the conterminous United States
for the 1995-96 season.
The Service therefore finds that ``good cause'' exists, within the
terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and
these frameworks will, therefore, take effect immediately upon
publication.
Unfunded Mandates
The Service has determined and certifies in compliance with the
requirements of the Unfunded Mandates Act, 2 U.S.C. 1502 et seq., that
this rulemaking will not impose a cost of $100 million or more in any
given year on local or State government or private entities.
Civil Justice Reform - Executive Order 12988
The Department, in promulgating this rule, has determined that
these regulations meet the applicable standards provided in Sections
3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 1996-97
hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742
a--j.
Dated: September 17, 1996.
George T. Frampton, Jr.
Assistant Secretary for Fish and Wildlife and Parks.
Final Regulations Frameworks for 1996-97 Late Hunting Seasons on
Certain Migratory Game Birds
Pursuant to the Migratory Bird Treaty Act and delegated
authorities, the Department has approved frameworks for season lengths,
shooting hours, bag and possession limits, and outside dates within
which States may select seasons for hunting waterfowl and coots between
the dates of September 1, 1996, and March 10, 1997.
General
Dates: All outside dates noted below are inclusive.
Shooting and Hawking (taking by falconry) Hours: Unless otherwise
specified, from one-half hour before sunrise to sunset daily.
Possession Limits: Unless otherwise specified, possession limits
are twice the daily bag limit.
Definitions: For the purpose of hunting regulations listed below,
the collective terms ``dark'' and ``light'' geese include the following
species:
Dark geese - Canada geese, white-fronted geese, brant, and all
other goose species except light geese.
Light geese - snow (including blue) geese and Ross' geese.
Area, Zone, and Unit Descriptions: Geographic descriptions related
to late-season regulations are contained in a later portion of this
document.
Area-Specific Provisions: Frameworks for open seasons, season
lengths, bag and possession limits, and other special provisions are
listed below by Flyway.
Atlantic Flyway
The Atlantic Flyway includes Connecticut, Delaware, Florida,
Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New
York, North Carolina, Pennsylvania, Rhode Island, South Carolina,
Vermont, Virginia, and West Virginia.
Ducks, Mergansers, and Coots
Outside Dates: Between October 1 and January 20.
Hunting Seasons and Duck Limits: 50 days and daily bag limit of 5
ducks, including no more than 1 hen mallard, 1 black duck, 1 pintail, 1
mottled duck, 1 fulvous whistling duck, 2 wood ducks, 2 redheads, and 1
canvasback.
Closures: The season on harlequin ducks is closed.
Sea Ducks: In all areas outside of special sea duck areas, sea
ducks are included in the regular duck daily bag and possession limits.
However, during the regular duck season within the special sea duck
areas, the sea duck daily bag and possession limits may be in addition
to the regular duck daily bag and possession limits.
Merganser Limits: The daily bag limit of mergansers is 5, only 1 of
which may be a hooded merganser.
Coot Limits: The daily bag limit is 15 coots.
Lake Champlain Zone, New York: The waterfowl seasons, limits, and
shooting hours shall be the same as those selected for the Lake
Champlain Zone of Vermont.
Zoning and Split Seasons: Delaware, Florida, Georgia, Maryland,
North Carolina, Rhode Island, South Carolina, and Virginia may split
their seasons into three segments; Connecticut, Maine, Massachusetts,
New Hampshire, New Jersey, New York, Pennsylvania, Vermont, and West
Virginia may select hunting seasons by zones and may split their
seasons into two segments in each zone.
Canada Geese
Season Lengths, Outside Dates, and Limits: The Canada goose season
is suspended throughout the Flyway except as noted below. Unless
specified otherwise, seasons may be split into two segments.
Connecticut: A special experimental season may be held in the South
Zone between January 15 and February 15, with 5 geese per day.
Georgia: In specific areas, a 70-day experimental season may be
held between November 15 and February 15, with a limit of 5 Canada
geese per day.
Maryland: An experimental season may be held in designated areas of
[[Page 50669]]
western Maryland from January 15 to February 15, with 5 geese per day.
Massachusetts: In the Central Zone and a portion of the Coastal
Zone, a season may be held from January 15 to February 15, with 5 geese
per day.
New Jersey: An expanded experimental season may be held in
designated areas of North and South New Jersey from January 15 to
February 15, with 5 geese per day.
New York: An experimental season may be held between January 15 and
February 15, with 5 geese daily in Westchester County and portions of
Nassau, Orange, Putnam, and Rockland Counties.
Pennsylvania: Erie, Mercer, and Butler Counties - 70 days between
October 1 and January 31, with 1 goose per day through October 15; 2
geese per day thereafter; 1 goose per day for the first 8 days after
the opening.
Crawford County - 35 days between October 1 and January 20; with 1
goose per day.
An expanded experimental season may be held in the designated areas
of western Pennsylvania from January 15 to February 15 with 5 geese per
day.
Rhode Island: An experimental season may be held in a designated
area from January 15 to February 15, with 5 geese per day,
South Carolina: A 70-day special season may be held in the
designated areas during November 15 to February 15, with a daily bag
limit of 5 Canada geese per day.
Virginia: An experimental season may be held from January 15 to
February 15, with 5 geese per day, in all areas west of Interstate 95.
West Virginia: 70 days between October 1 and January 20, with 3
geese per day.
Light Geese
Season Lengths, Outside Dates, and Limits: States may select a 107-
day season between October 1 and March 10, with 8 geese per day and 24
in possession. States may split their seasons into three segments.
Brant
Season Lengths, Outside Dates, and Limits: States may select a 30-
day season between October 1 and January 20, with 2 brant per day.
States may split their seasons into two segments.
Mississippi Flyway
The Mississippi Flyway includes Alabama, Arkansas, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi,
Missouri, Ohio, Tennessee, and Wisconsin.
Ducks, Mergansers, and Coots
Outside Dates: Between the Saturday nearest October 1 (September 28
) and the Sunday nearest January 20 (January 19).
Hunting Seasons and Duck Limits: 50 days with a daily bag limit of
5 ducks, including no more than 4 mallards (no more than 1 of which may
be a female), 3 mottled ducks, 1 black duck, 1 pintail, 2 wood ducks, 1
canvasback, and 2 redheads.
Merganser Limits: The daily bag limit is 5, only 1 of which may be
a hooded merganser.
Coot Limits: The daily bag limit is 15 coots.
Zoning and Split Seasons: Alabama, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Michigan, Mississippi, Missouri, Ohio, Tennessee,
and Wisconsin may select hunting seasons by zones.
In Alabama, Indiana, Iowa, Kentucky, Louisiana, Michigan,
Mississippi, Ohio, Tennessee, and Wisconsin, the season may be split
into two segments in each zone.
In Minnesota and Arkansas, the season may be split into three
segments.
Pymatuning Reservoir Area, Ohio: The seasons, limits, and shooting
hours shall be the same as those selected in the adjacent portion of
Pennsylvania (Northwest Zone).
Geese
Split Seasons: Seasons for geese may be split into three segments.
Three-way split seasons for Canada geese require Mississippi Flyway
Council and U.S. Fish and Wildlife Service approval, and a 3-year
evaluation, by each participating State.
Season Lengths, Outside Dates, and Limits: States may select
seasons for geese not to exceed 70 days for dark geese between the
Saturday nearest October 1 (September 28) and January 31, and 107 days
for light geese between the Saturday nearest October 1 (September 28)
and March 10. The daily bag limit is 10 light geese, 3 Canada geese, 2
white-fronted geese, and 2 brant. The possession limit for light geese
is 30. Specific regulations for Canada geese and exceptions to the
above general provisions are shown below by State.
Alabama: In the Southern James Bay Population (SJBP) Goose Zone,
the season for Canada geese may not exceed 35 days. Elsewhere, the
season for Canada geese may extend for 70 days in the respective duck-
hunting zones. The daily bag limit is 2 Canada geese.
Arkansas: The season for Canada geese may extend for 23 days in the
East Zone and 14 days in the West Zone. In both zones, the season may
extend to February 15. The daily bag limit is 2 Canada geese. In the
remainder of the State, the season for Canada geese is closed.
Illinois: The total harvest of Canada geese in the State will be
limited to 94,900 birds. Limits are 2 Canada geese daily and 10 in
possession.
(a) North Zone - The season for Canada geese will close after 93
days or when 11,000 birds have been harvested in the Northern Illinois
Quota Zone, whichever occurs first.
(b) Central Zone - The season for Canada geese will close after 93
days or when 17,600 birds have been harvested in the Central Illinois
Quota Zone, whichever occurs first.
(c) South Zone - The harvest of Canada geese in the Southern
Illinois and Rend Lake Quota Zones will be limited to 36,600 and 10,400
birds, respectively. The season for Canada geese in each zone will
close after 84 days or when the harvest limit has been reached,
whichever occurs first. In the Southern Illinois Quota Zone, if any of
the following conditions exist after December 20, the State, after
consultation with the Service, will close the season by emergency order
with 48 hours notice:
1. 10 consecutive days of snow cover, 3 inches or more in depth.
2. 10 consecutive days of daily high temperatures less than 20
degrees F.
3. Average body weights of adult female geese less than 3,200
grams as measured from a weekly sample of a minimum of 50 geese.
4. Starvation or a major disease outbreak resulting in observed
mortality exceeding 5,000 birds in 10 days, or a total mortality
exceeding 10,000 birds.
In the remainder of the South Zone, the season may extend for 84
days or until both the Southern Illinois and Rend Lake Quota Zones have
been closed, whichever occurs first.
Indiana: The total harvest of Canada geese in the State will be
limited to 24,200 birds.
(a) Posey County - The season for Canada geese will close after 65
days or when 4,350 birds have been harvested, whichever occurs first.
The daily bag limit is 2 Canada geese.
(b) Remainder of the State - The season for Canada geese may extend
for 65 days in the respective duck-hunting zones, except in the SJBP
Zone, where the season may not exceed 35 days. The daily bag limit is 2
Canada geese.
Iowa: The season may extend for 70 days. The daily bag limit is 2
Canada geese.
Kentucky
(a) Western Zone - The season for Canada geese may extend for 65
days
[[Page 50670]]
(80 days in Fulton County), and the harvest will be limited to 21,000
birds. Of the 21,000-bird quota, 13,650 birds will be allocated to the
Ballard Reporting Area and 3,990 birds will be allocated to the
Henderson/Union Reporting Area. If the quota in either reporting area
is reached prior to completion of the 65-day season, the season in that
reporting area will be closed. If this occurs, the season in those
counties and portions of counties outside of, but associated with, the
respective subzone (listed in State regulations) may continue for an
additional 7 days, not to exceed a total of 65 days (80 days in Fulton
County). The season in Fulton County may extend to February 15. The
daily bag limit is 2 Canada geese.
(b) Pennyroyal/Coalfield Zone - The season may extend for 35 days.
The daily bag limit is 2 Canada geese.
(c) Remainder of the State - The season may extend for 50 days. The
daily bag limit is 2 Canada geese.
Louisiana: The season for Canada geese may extend for 9 days.
During the season, the daily bag limit for Canada and white-fronted
geese is 2, no more than 1 of which may be a Canada goose. Hunters
participating in the Canada goose season must possess a special permit
issued by the State.
Michigan: The total harvest of Canada geese in the State will be
limited to 53,300 birds.
(a) North Zone - The framework opening date for all geese is
September 28 and the season for Canada geese may extend for 20 days.
The daily bag limit is 2 Canada geese.
(b) Middle Zone - The season for Canada geese may extend for 20
days. The daily bag limit is 2 Canada geese.
(c) South Zone
(1) Allegan County GMU - The season for Canada geese will close
after 51 days or when 2,200 birds have been harvested, whichever occurs
first. The daily bag limit is 1 Canada goose.
(2) Muskegon Wastewater GMU - The season for Canada geese will
close after 53 days or when 700 birds have been harvested, whichever
occurs first. The daily bag limit is 2 Canada geese.
(3) Saginaw County GMU - The season for Canada geese will close
after 50 days or when 2,000 birds have been harvested, whichever occurs
first. The daily bag limit is 1 Canada goose.
(4) Tuscola/Huron GMU - The season for Canada geese will close
after 50 days or when 750 birds have been harvested, whichever occurs
first. The daily bag limit is 1 Canada goose.
(5) Remainder of South Zone - The season for Canada geese may
extend for 30 days. The daily bag limit is 1 Canada goose.
(d) Southern Michigan GMU - An experimental special Canada goose
season may be held between January 4 and February 2. The daily bag
limit is 2 Canada geese.
Minnesota:
(a) West Zone
(1) West Central Zone - The season for Canada geese may extend for
30 days. In the Lac Qui Parle Zone, the season will close after 30 days
or when 16,000 birds have been harvested, whichever occurs first.
Throughout the West Central Zone, the daily bag limit is 1 Canada
goose.
(2) Remainder of West Zone - The season for Canada geese may extend
for 40 days. The daily bag limit is 1 Canada goose.
(b) Northwest Zone - The season for Canada geese may extend for 40
days. The daily bag limit is 1 Canada goose.
(c) Remainder of the State - The season for Canada geese may extend
for 70 days, except in the Twin Cities Metro Zone and Olmsted County,
where the season may not exceed 80 days. The daily bag limit is 2
Canada geese.
(d) Fergus Falls/Alexandria Zone - A special Canada goose season of
up to 10 days may be held in December. During the special season, the
daily bag limit is 2 Canada geese.
Mississippi: The season for Canada geese may extend for 70 days.
The daily bag limit is 3 Canada geese.
Missouri
(a) Swan Lake Zone - The season for Canada geese will close after
40 days or when 5,000 birds have been harvested, whichever occurs
first. The daily bag limit is 2 Canada geese.
(b) Schell-Osage Zone - The season for Canada geese may extend for
40 days. The daily bag limit is 2 Canada geese.
(c) Remainder of the State - The season for Canada geese may extend
for 70 days in the respective duck-hunting zones. The season may be
split into 3 segments, provided that one segment of at least 9 days
occurs prior to October 15. The daily bag limit is 2 Canada geese.
Ohio: The season may extend for 70 days in the respective duck-
hunting zones, with a daily bag limit of 2 Canada geese, except in the
Lake Erie SJBP Zone, where the season may not exceed 30 days and the
daily bag limit is 1 Canada goose. In the Pymatuning Reservoir Area,
the seasons, limits, and shooting hours for all geese shall be the same
as those selected in the adjacent portion of Pennsylvania.
Tennessee
(a) Northwest Zone - The season for Canada geese will close after
78 days or when 8,000 birds have been harvested, whichever occurs
first. The season may extend to February 15. All geese harvested must
be tagged. The daily bag limit is 2 Canada geese.
(b) Southwest Zone - The season for Canada geese may extend for 63
days, and the harvest will be limited to 700 birds. The daily bag limit
is 2 Canada geese.
(c) Kentucky/Barkley Lakes Zone - The season for Canada geese will
close after 50 days or when 1,800 birds have been harvested, whichever
occurs first. All geese harvested must be tagged. The daily bag limit
is 2 Canada geese.
(d) Remainder of the State - The season for Canada geese may extend
for 70 days. The daily bag limit is 2 Canada geese.
Wisconsin: The total harvest of Canada geese in the State will be
limited to 69,600 birds.
(a) Horicon Zone - The framework opening date for all geese is
September 21. The harvest of Canada geese is limited to 36,600 birds.
The season may not exceed 86 days. All Canada geese harvested must be
tagged. The daily bag limit is 1 Canada goose and the season limit will
be the number of tags issued to each permittee.
(b) Collins Zone - The framework opening date for all geese is
September 21. The harvest of Canada geese is limited to 1,100 birds.
The season may not exceed 68 days. All Canada geese harvested must be
tagged. The daily bag limit is 1 Canada goose and the season limit will
be the number of tags issued to each permittee.
(c) Exterior Zone - The framework opening date for all geese is
September 28. The harvest of Canada geese is limited to 27,400 birds,
with 500 birds allocated to the Mississippi River Subzone. The season
may not exceed 79 days and the daily bag limit is 1 Canada goose. In
that portion of the Exterior Zone outside the Mississippi River
Subzone, the progress of the harvest must be monitored, and the season
closed, if necessary, to ensure that the harvest does not exceed 26,900
birds.
Additional Limits: In addition to the harvest limits stated for the
respective zones above, an additional 4,500 Canada geese may be taken
in the Horicon Zone under special agricultural permits.
Quota Zone Closures: When it has been determined that the quota of
Canada geese allotted to the Northern Illinois, Central Illinois,
Southern Illinois, and Rend Lake Quota Zones in Illinois, Posey County
in Indiana, the Ballard and Henderson-Union Subzones in Kentucky, the
Allegan County, Muskegon Wastewater, Saginaw County, and Tuscola/Huron
Goose Management Units in Michigan, the Lac Qui Parle
[[Page 50671]]
Zone in Minnesota, the Swan Lake Zone in Missouri, the Northwest and
Kentucky/Barkley Lakes Zones in Tennessee, and the Exterior Zone in
Wisconsin will have been filled, the season for taking Canada geese in
the respective zone (and associated area, if applicable) will be closed
by either the Director upon giving public notice through local
information media at least 48 hours in advance of the time and date of
closing, or by the State through State regulations with such notice and
time (not less than 48 hours) as they deem necessary.
Central Flyway
The Central Flyway includes Colorado (east of the Continental
Divide), Kansas, Montana (Counties of Blaine, Carbon, Fergus, Judith
Basin, Stillwater, Sweetgrass, Wheatland, and all counties east
thereof), Nebraska, New Mexico (east of the Continental Divide except
the Jicarilla Apache Indian Reservation), North Dakota, Oklahoma, South
Dakota, Texas, and Wyoming (east of the Continental Divide).
Ducks, Mergansers, and Coots
Outside Dates: Between September 28 and January 19.
Hunting Seasons and Duck Limits:
(1) High Plains Mallard Management Unit (roughly defined as that
portion of the Central Flyway which lies west of the 100th meridian):
83 days and a daily bag limit of 5 ducks, including no more than 1
female mallard, 1 mottled duck, 1 pintail, 1 canvasback, 2 redheads,
and 2 wood ducks. The last 23 days may start no earlier than the
Saturday nearest December 10 (December 7).
(2) Remainder of the Central Flyway: 60 days and a daily bag limit
of 5 ducks, including no more than 1 female mallard, 1 mottled duck, 1
pintail, 1 canvasback, 2 redheads, and 2 wood ducks.
Merganser Limits: The daily bag limit is 5 mergansers, only 1 of
which may be a hooded merganser.
Coot Limits: The daily bag limit is 15 coots.
Zoning and Split Seasons: Kansas (Low Plains portion), Montana,
Nebraska (Low Plains portion), New Mexico, Oklahoma (Low Plains
portion), South Dakota (Low Plains portion), Texas (Low Plains
portion), and Wyoming may select hunting seasons by zones.
In Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma,
South Dakota, Texas, and Wyoming, the regular season may be split into
two segments.
In Colorado, the season may be split into three segments.
Geese
Season Lengths, Outside Dates, and Limits: States may select
seasons not to exceed 107 days; except for dark geese, which may not
exceed 86 days in Kansas, Nebraska, North Dakota, Oklahoma, South
Dakota, and the Eastern Goose Zone of Texas. For dark geese, outside
dates for seasons may be selected between the Saturday nearest October
1 (September 28) and January 31, except in the Western Goose Zone of
Texas, where the closing date is the Sunday nearest February 15
(February 16). For light geese, outside dates for seasons may be
selected between the Saturday nearest October 1 (September 28) and
March 10, except in the Rainwater Basin Light Goose Area of Nebraska
where the closing date is the Sunday nearest February 15 (February 16).
Seasons may be split into two segments. The daily bag and possession
limits for light geese are 10 and 40, respectively.
Dark goose daily bag limits in States and goose management zones
within States, may be as follows:
Kansas, Nebraska, Oklahoma, and South Dakota: 2 dark geese,
including no more than 1 white-fronted goose.
Colorado, Montana, New Mexico and Wyoming: 4 dark geese.
North Dakota: 2 dark geese.
Texas: For the Western Goose Zone, the daily bag limit is 5 dark
geese, including no more than 1 white-fronted and 4 Canada geese.
For the Eastern Goose Zone, the daily bag limit is 2 dark geese,
including no more than 1 white-fronted goose.
Pacific Flyway
Ducks, Mergansers, Coots, and Common Moorhens
Hunting Seasons and Duck Limits: Concurrent 93 days and daily bag
limit of 7 ducks, including no more than 1 female mallard, 2 pintails,
2 redheads and 1 canvasback.
The season on coots and common moorhens may be between the outside
dates for the season on ducks, but not to exceed 93 days. In the
Columbia Basin Mallard Management Unit, the seasons may be an
additional 7 days.
Coot and Common Moorhen Limits: The daily bag and possession limits
of coots and common moorhens are 25, singly or in the aggregate.
Outside Dates: Between the Saturday nearest October 1 (September
28) and the Sunday nearest January 20 (January 19).
Zoning and Split Seasons: Arizona, California, Idaho, Nevada,
Oregon, Utah, and Washington may select hunting seasons by zones.
Arizona, California, Idaho, Nevada, Oregon, Utah, and Washington
may split their seasons into two segments.
Colorado, Montana, New Mexico, and Wyoming may split their seasons
into three segments.
Colorado River Zone, California: Seasons and limits shall be the
same as seasons and limits selected in the adjacent portion of Arizona
(South Zone).
Geese
Season Lengths, Outside Dates, and Limits: Except as subsequently
noted, 100-day seasons may be selected, with outside dates between the
Saturday nearest October 1 (September 28), and the Sunday nearest
January 20 (January 19), and the basic daily bag limits are 3 light
geese and 4 dark geese, except in California, Oregon, and Washington,
where the dark goose bag limit does not include brant.
Brant Season - A 16-consecutive-day season may be selected in
Oregon and Washington, and a 30-consecutive day season may be selected
in California. In these States, the daily bag limit is 2 brant and is
in addition to dark goose limits.
Closures: There will be no open season on Aleutian Canada geese in
the Pacific Flyway. The States of California, Oregon, and Washington
must include a statement on the closure for that subspecies in their
respective regulations leaflet. Emergency closures may be invoked for
all Canada geese should Aleutian Canada goose distribution patterns or
other circumstances justify such actions.
Arizona: The daily bag limit for dark geese is 2 geese.
California
Northeastern Zone - White-fronted geese and cackling Canada geese
may be taken only during the first 23 days of the goose season. The
daily bag limit is 3 geese and may include no more than 2 dark geese;
including not more than 1 cackling Canada goose.
Colorado River Zone - The seasons and limits must be the same as
those selected in the adjacent portion of Arizona (South Zone).
Southern Zone - The daily bag and possession limits for dark geese
is 2 geese, including not more than 1 cackling Canada goose.
Balance-of-the-State Zone - A 79-day season may be selected, except
that white-fronted geese and cackling Canada geese may be taken during
only the first 65 days of such season. Limits may not include more than
3 geese per day and in possession, of which not more than 1 may be a
dark goose. The dark goose limits may be expanded to 2,
[[Page 50672]]
provided that they are Canada geese other than cackling Canada geese
for which the daily limit is 1.
Three areas in the Balance-of-the-State Zone are restricted in the
hunting of certain geese:
(1) In the Counties of Del Norte and Humboldt, there will be no
open season for Canada geese.
(2) In the Sacramento Valley Area, the season on white-fronted
geese must end on or before December 14, and, except in the Western
Canada Goose Hunt Area, there will be no open season for Canada geese.
(3) In the San Joaquin Valley Area, the hunting season for Canada
geese will close no later than November 23.
Colorado: The daily bag limit for dark geese is 2 geese.
Idaho
Northern Unit - The daily bag limit is 4 geese, including 4 dark
geese, but not more than 3 light geese.
Southwest Unit and Southeastern Unit - The daily bag limit on dark
geese is 4.
Montana
West of Divide Zone and East of Divide Zone - The daily bag limit
on dark geese is 4.
Nevada
Lincoln and Clark County Zone - The daily bag limit of dark geese
is 2 geese.
New Mexico: The daily bag limit for dark geese is 2 geese.
Oregon: Except as subsequently noted, the dark goose limit is 4,
including not more than 1 cackling Canada goose.
Harney, Lake, Klamath, and Malheur Counties Zone - The season
length may be 100 days. The dark goose limit is 4, including not more
than 2 white-fronted geese and 1 cackling Canada goose.
Western Zone - In the Special Canada Goose Management Area, except
for designated areas, there shall be no open season on Canada geese. In
the designated areas, individual quotas shall be established which
collectively shall not exceed 132 dusky Canada geese. See section on
quota zones. In those designated areas, the daily bag limit of dark
geese is 3, including not more than 2 cackling Canada geese.
Utah: The daily bag limit for dark geese is 2 geese.
Washington: The daily bag limit is 4 geese, including 4 dark geese
but not more than 3 light geese.
West Zone - In the Lower Columbia River Special Goose Management
Area, except for designated areas, there shall be no open season on
Canada geese. In the designated areas, individual quotas shall be
established which collectively shall not exceed 72 dusky Canada geese.
See section on quota zones.
Wyoming: The daily bag limit is 4 dark geese.
Quota Zones: Seasons on Canada geese must end upon attainment of
individual quotas of dusky Canada geese allotted to the designated
areas of Oregon and Washington. The September Canada goose season, the
regular goose season, any special late Canada goose season, and any
extended falconry season, combined, must not exceed 107 days and the
established quota of dusky Canada geese must not be exceeded. Hunting
of Canada geese in those designated areas shall only be by hunters
FR Doc. 96-24733 Migratory Bird Hunting; Final Frameworks for Late-Season Migratory Bird Hunting Regulations
possessing a State-issued permit authorizing them to do so. In a
Service-approved investigation, the State must obtain quantitative
information on hunter compliance of those regulations aimed at reducing
the take of dusky Canada geese and eliminating the take of Aleutian
Canada geese. The daily bag limit of Canada geese may not include more
than 2 cackling Canada goose.
In the designated areas of the Washington Quota Zone, a special
late Canada goose may be held between February 5 and March 10. The
daily bag limit may not include Aleutian Canada geese. In the Special
Canada Goose Management Area of Oregon, the framework closing date is
extended to February 28th.
Swans
In designated areas of Utah, Nevada, and the Pacific Flyway portion
of Montana, an open season for taking a limited number of swans may be
selected. Permits will be issued by States and will authorize each
permittee to take no more than 1 swan per season. The season may open
no earlier than the Saturday nearest October 1 (September 28). The
States must implement a harvest-monitoring program to measure the
species composition of the swan harvest. In Utah and Nevada, the
harvest-monitoring program must require that all harvested swans or
their species-determinant parts be examined by either State or Federal
biologists for the purpose of species classification. All States should
use appropriate measures to maximize hunter compliance in providing
bagged swans for examination or, in the case of Montana, reporting
bill-measurement and color information. All States must provide to the
Service by June 30, 1996, a report covering harvest, hunter
participation, reporting compliance, and monitoring of swan populations
in the designated hunt areas. These seasons will be subject to the
following conditions:
In Utah, no more than 2,750 permits may be issued. The season must
end no later than the first Sunday in December (December 1) or upon
attainment of 15 trumpeter swans in the harvest, whichever occurs
earliest.
In Nevada, no more than 650 permits may be issued. The season must
end no later than the Sunday following January 1 (January 5) or upon
attainment of 5 trumpeter swans in the harvest, whichever occurs
earliest.
In Montana, no more than 500 permits may be issued. The season must
end no later than December 1.
Tundra Swans
In Central Flyway portion of Montana, and in North Carolina, North
Dakota, South Dakota, and Virginia, an open season for taking a limited
number of tundra swans may be selected. Permits will be issued by the
States and will authorize each permittee to take no more than 1 tundra
swan per season. The States must obtain harvest and hunter
participation data. These seasons will be subject to the following
conditions:
In the Atlantic Flyway
--The season will be experimental.
--The season may be 90 days, from October 1 to January 31.
--In North Carolina, no more than 5,000 permits may be issued.
--In Virginia, no more than 600 permits may be issued.
In the Central Flyway
--The season may be 107 days and must occur during the light goose
season.
--In the Central Flyway portion of Montana, no more than 500
permits may be issued.
--In North Dakota, no more than 2,000 permits may be issued.
--In South Dakota, no more than 1,500 permits may be issued.
Area, Unit and Zone Descriptions
Ducks (Including Mergansers) and Coots
Atlantic Flyway
Connecticut
North Zone: That portion of the State north of I-95.
South Zone: Remainder of the State.
Maine
North Zone: That portion north of the line extending east along
Maine State Highway 110 from the New Hampshire and Maine border to the
intersection of Maine State Highway 11 in Newfield; then north and east
along Route 11 to the intersection of U.S. Route 202 in Auburn; then
north and east on Route 202 to the intersection of Interstate Highway
95 in Augusta; then north and east along I-95 to Route 15 in Bangor;
then east along Route 15 to Route 9; then east along Route 9 to Stony
Brook in Baileyville; then east along Stony Brook to the United States
border.
[[Page 50673]]
South Zone: Remainder of the State.
Massachusetts
Western Zone: That portion of the State west of a line extending
south from the Vermont border on I-91 to MA 9, west on MA 9 to MA 10,
south on MA 10 to U.S. 202, south on U.S. 202 to the Connecticut
border.
Central Zone: That portion of the State east of the Berkshire Zone
and west of a line extending south from the New Hampshire border on I-
95 to U.S. 1, south on U.S. 1 to I-93, south on I-93 to MA 3, south on
MA 3 to U.S. 6, west on U.S. 6 to MA 28, west on MA 28 to I-195, west
to the Rhode Island border; except the waters, and the lands 150 yards
inland from the high-water mark, of the Assonet River upstream to the
MA 24 bridge, and the Taunton River upstream to the Center St.-Elm St.
bridge shall be in the Coastal Zone.
Coastal Zone: That portion of Massachusetts east and south of the
Central Zone.
New Hampshire
Coastal Zone: That portion of the State east of a line extending
west from Maine border in Rollinsford on NH 4 to the city of Dover,
south to NH 108, south along NH 108 through Madbury, Durham, and
Newmarket to NH 85 in Newfields, south to NH 101 in Exeter, east to NH
51 (Exeter-Hampton Expressway), east to I-95 (New Hampshire Turnpike)
in Hampton, and south along I-95 to the Massachusetts border.
Inland Zone: That portion of the State north and west of the above
boundary.
New Jersey
Coastal Zone: That portion of the State seaward of a line beginning
at the New York border in Raritan Bay and extending west along the New
York border to NJ 440 at Perth Amboy; west on NJ 440 to the Garden
State Parkway; south on the Garden State Parkway to the shoreline at
Cape May and continuing to the Delaware border in Delaware Bay.
North Zone: That portion of the State west of the Coastal Zone and
north of a line extending west from the Garden State Parkway on NJ 70
to the New Jersey Turnpike, north on the turnpike to U.S. 206, north on
U.S. 206 to U.S. 1 at Trenton, west on U.S. 1 to the Pennsylvania
border in the Delaware River.
South Zone: That portion of the State not within the North Zone or
the Coastal Zone.
New York
Lake Champlain Zone: The U.S. portion of Lake Champlain and that
area east and north of a line extending along NY 9B from the Canadian
border to U.S. 9, south along U.S. 9 to NY 22 south of Keesville; south
along NY 22 to the west shore of South Bay, along and around the
shoreline of South Bay to NY 22 on the east shore of South Bay;
southeast along NY 22 to U.S. 4, northeast along U.S. 4 to the Vermont
border.
Long Island Zone: That area consisting of Nassau County, Suffolk
County, that area of Westchester County southeast of I-95, and their
tidal waters.
Western Zone: That area west of a line extending from Lake Ontario
east along the north shore of the Salmon River to I-81, and south along
I-81 to the Pennsylvania border.
Northeastern Zone: That area north of a line extending from Lake
Ontario east along the north shore of the Salmon River to I-81, south
along I-81 to NY 49, east along NY 49 to NY 365, east along NY 365 to
NY 28, east along NY 28 to NY 29, east along NY 29 to I-87, north along
I-87 to U.S. 9 (at Exit 20), north along U.S. 9 to NY 149, east along
NY 149 to U.S. 4, north along U.S. 4 to the Vermont border, exclusive
of the Lake Champlain Zone.
Southeastern Zone: The remaining portion of New York.
Pennsylvania
Lake Erie Zone: The Lake Erie waters of Pennsylvania and a
shoreline margin along Lake Erie from New York on the east to Ohio on
the west extending 150 yards inland, but including all of Presque Isle
Peninsula.
Northwest Zone: The area bounded on the north by the Lake Erie Zone
and including all of Erie and Crawford Counties and those portions of
Mercer and Venango Counties north of I-80.
North Zone: That portion of the State east of the Northwest Zone
and north of a line extending east on I-80 to U.S. 220, Route 220 to I-
180, I-180 to I-80, and I-80 to the Delaware River.
South Zone: The remaining portion of Pennsylvania.
Vermont
Lake Champlain Zone: The U.S. portion of Lake Champlain and that
area north and west of the line extending from the New York border
along U.S. 4 to VT 22A at Fair Haven; VT 22A to U.S. 7 at Vergennes;
U.S. 7 to the Canadian border.
Interior Zone: The remaining portion of Vermont.
West Virginia
Zone 1 : That portion outside the boundaries in Zone 2.
Zone 2 (Allegheny Mountain Upland): That area bounded by a line
extending south along U.S. 220 through Keyser to U.S. 50; U.S. 50 to WV
93; WV 93 south to WV 42; WV 42 south to Petersburg; WV 28 south to
Minnehaha Springs; WV 39 west to U.S. 219; U.S. 219 south to I-64; I-64
west to U.S. 60; U.S. 60 west to U.S. 19; U.S. 19 north to I-79, I-79
north to U.S. 48; U.S. 48 east to the Maryland border; and along the
border to the point of beginning.
Mississippi Flyway
Alabama
South Zone: Mobile and Baldwin Counties.
North Zone: The remainder of Alabama.
Illinois
North Zone: That portion of the State north of a line extending
east from the Iowa border along Illinois Highway 92 to Interstate
Highway 280, east along I-280 to I-80, then east along I-80 to the
Indiana border.
Central Zone: That portion of the State between the North and South
Zone boundaries.
South Zone: That portion of the State south of a line extending
east from the Missouri border along the Modoc Ferry route to Modoc
Ferry Road, east along Modoc Ferry Road to Modoc Road, northeasterly
along Modoc Road and St. Leo's Road to Illinois Highway 3, north along
Illinois 3 to Illinois 159, north along Illinois 159 to Illinois 161,
east along Illinois 161 to Illinois 4, north along Illinois 4 to
Interstate Highway 70, east along I-70 to the Bond County line, north
and east along the Bond County line to Fayette County, north and east
along the Fayette County line to Effingham County, east and south along
the Effingham County line to I-70, then east along I-70 to the Indiana
border.
Indiana
North Zone: That portion of the State north of a line extending
east from the Illinois border along State Road 18 to U.S. Highway 31,
north along U.S. 31 to U.S. 24, east along U.S. 24 to Huntington, then
southeast along U.S. 224 to the Ohio border.
Ohio River Zone: That portion of the State south of a line
extending east from the Illinois border along Interstate Highway 64 to
New Albany, east along State Road 62 to State 56, east along State 56
to Vevay, east and north on State 156 along the Ohio River to North
Landing, north along State 56 to U.S. Highway 50, then northeast along
U.S. 50 to the Ohio border.
South Zone: That portion of the State between the North and Ohio
River Zone boundaries.
Southern Illinois Quota Zone: Alexander, Jackson, Union, and
Williamson Counties.
Rend Lake Quota Zone: Franklin and Jefferson Counties.
Iowa
North Zone: That portion of the State north of a line extending
east from the Nebraska border along State Highway
[[Page 50674]]
175 to State 37, southeast along State 37 to U.S. Highway 59, south
along U.S. 59 to Interstate Highway 80, then east along I-80 to the
Illinois border.
South Zone: The remainder of Iowa.
Kentucky
West Zone: All counties west of and including Butler, Daviess,
Ohio, Simpson, and Warren Counties.
East Zone: The remainder of Kentucky.
Louisiana
West Zone: That portion of the State west of a line extending south
from the Arkansas border along Louisiana Highway 3 to Bossier City,
east along Interstate Highway 20 to Minden, south along Louisiana 7 to
Ringgold, east along Louisiana 4 to Jonesboro, south along U.S. Highway
167 to Lafayette, southeast along U.S. 90 to Houma, then south along
the Houma Navigation Channel to the Gulf of Mexico through Cat Island
Pass.
East Zone: The remainder of Louisiana.
Catahoula Lake Area: All of Catahoula Lake, including those
portions known locally as Round Prairie, Catfish Prairie, and Frazier's
Arm. See State regulations for additional information.
Michigan
North Zone: The Upper Peninsula.
Middle Zone: That portion of the Lower Peninsula north of a line
beginning at the Wisconsin border in Lake Michigan due west of the
mouth of Stony Creek in Oceana County; then due east to, and easterly
and southerly along the south shore of, Stony Creek to Webster Road,
easterly and southerly along Webster Road to Stony Lake Road, easterly
along Stony Lake and Garfield Roads to Michigan Highway 20, east along
Michigan 20 to U.S. Highway 10 Business Route (BR) in the city of
Midland, east along U.S. 10 BR to U.S. 10, east along U.S. 10 to
Interstate Highway 75/U.S. Highway 23, north along I-75/U.S. 23 to the
U.S. 23 exit at Standish, east along U.S. 23 to Shore Road in Arenac
County, east along Shore Road to the tip of Point Lookout, then on a
line directly east 10 miles into Saginaw Bay, and from that point on a
line directly northeast to the Canada border.
South Zone: The remainder of Michigan.
Mississippi
Zone 1: Hancock, Harrison, and Jackson Counties.
Zone 2: The remainder of Mississippi.
Missouri
North Zone: That portion of Missouri north of a line running west
from the Illinois border along Interstate Highway 70 to U.S. Highway
54, south along U.S. 54 to U.S. 50, then west along U.S. 50 to the
Kansas border.
South Zone: That portion of Missouri south of a line running west
from the Illinois border along Missouri Highway 34 to Interstate
Highway 55; south along I-55 to U.S. Highway 62, west along U.S. 62 to
Missouri 53, north along Missouri 53 to Missouri 51, north along
Missouri 51 to U.S. 60, west along U.S. 60 to Missouri 21, north along
Missouri 21 to Missouri 72, west along Missouri 72 to Missouri 32, west
along Missouri 32 to U.S. 65, north along U.S. 65 to U.S. 54, west
along U.S. 54 to Missouri 32, south along Missouri 32 to Missouri 97,
south along Missouri 97 to Dade County NN, west along Dade County NN to
Missouri 37, west along Missouri 37 to Jasper County N, west along
Jasper County N to Jasper County M, west along Jasper County M to the
Kansas border.
Middle Zone: The remainder of Missouri.
Ohio
North Zone: The Counties of Darke, Miami, Clark, Champaign, Union,
Delaware, Licking (excluding the Buckeye Lake Area), Muskingum,
Guernsey, Harrison and Jefferson and all counties north thereof.
Pymatuning Area: Pymatuning Reservoir and that part of Ohio bounded
on the north by County Road 306 (known as Woodward Road), on the west
by Pymatuning Lake Road, and on the south by U.S. Highway 322.
Ohio River Zone: The Counties of Hamilton, Clermont, Brown, Adams,
Scioto, Lawrence, Gallia and Meigs.
South Zone: That portion of the State between the North and Ohio
River Zone boundaries, including the Buckeye Lake Area in Licking
County bounded on the west by State Highway 37, on the north by U.S.
Highway 40, and on the east by State 13.
Tennessee
Reelfoot Zone: All or portions of Lake and Obion Counties.
State Zone: The remainder of Tennessee.
Wisconsin
North Zone: That portion of the State north of a line extending
east from the Minnesota border along State Highway 77 to State 27,
south along State 27 and 77 to U.S. Highway 63, and continuing south
along State 27 to Sawyer County Road B, south and east along County B
to State 70, southwest along State 70 to State 27, south along State 27
to State 64, west along State 64/27 and south along State 27 to U.S.
12, south and east on State 27/U.S. 12 to U.S. 10, east on U.S. 10 to
State 310, east along State 310 to State 42, north along State 42 to
State 147, north along State 147 to State 163, north along State 163 to
Kewaunee County Trunk A, north along County Trunk A to State 57, north
along State 57 to the Kewaunee/Door County Line, west along the
Kewaunee/Door County Line to the Door/Brown County Line, west along the
Door/Brown County Line to the Door/Oconto/Brown County Line, northeast
along the Door/Oconto County Line to the Marinette/Door County Line,
northeast along the Marinette/Door County Line to the Michigan border.
South Zone: The remainder of Wisconsin.
Central Flyway
Kansas
High Plains Zone: That portion of the State west of U.S. 283.
Low Plains Early Zone: That portion of the State east of the High
Plains Zone and west of a line extending south from the Nebraska border
along KS 28 to U.S. 36, east along U.S. 36 to KS 199, south along KS
199 to Republic County Road 563, south along Republic County Road 563
to KS 148, east along KS 148 to Republic County Road 138, south along
Republic County Road 138 to Cloud County Road 765, south along Cloud
County Road 765 to KS 9, west along KS 9 to U.S. 24, west along U.S 24
to U.S. 281, north along U.S. 281 to U.S. 36, west along U.S. 36 to
U.S. 183, south along U.S. 183 to U.S. 24, west along U.S. 24 to KS 18,
southeast along KS 18 to U.S, 183, south along U.S. 183 to KS 4, east
along KS 4 to I-135, south along I-135 to KS 61, southwest along KS 61
to KS 96, northwest on KS 96 to U.S. 56, west along U.S. 56 to U.S.
281, south along U.S. 281 to U.S. 54, then west along U.S. 54 to U.S.
283.
Low Plains Late Zone: The remainder of Kansas.
Montana (Central Flyway Portion)
Zone 1: The Counties of Blaine, Carbon, Carter, Daniels, Dawson,
Fallon, Fergus, Garfield, Golden Valley, Judith Basin, McCone,
Musselshell, Petroleum, Phillips, Powder River, Richland, Roosevelt,
Sheridan, Stillwater, Sweet Grass, Valley, Wheatland, Wibaux, and
Yellowstone.
Zone 2: The remainder of Montana.
Nebraska
High Plains Zone: That portion of the State west of Highways U.S.
183 and U.S. 20 from the South Dakota border to Ainsworth, NE 7 and NE
91 to Dunning, NE 2 to Merna, NE 93 to Arnold, NE 40 and NE 47 through
Gothenburg to NE 23, NE 23 to Elwood, and U.S. 283 to the Kansas
border.
Low Plains Zone 1: That portion of the State east of the High
Plains Zone and north and east of a line extending from the South
Dakota border along NE 26E Spur to U.S. 20, west on U.S. 20 to NE 12,
west on NE 12 to the Knox/Keya Paha County line, south along the county
line to the Niobrara River and
[[Page 50675]]
along the Niobrara River to U.S. 183 (the High Plains Zone line). Where
the Niobrara River forms the boundary, both banks will be in Zone 1.
Low Plains Zone 2: That portion of the State east of the High
Plains Zone and bounded by designated highways and political boundaries
starting on U.S. 73 at the Kansas border, north to NE 67, north to U.S.
75, north to NE 2, west to NE 43, north to U.S. 34, east to NE 63;
north and west to U.S. 77; north to NE 92; west to U.S. 81; south to NE
66; west to NE 14; south to U.S. 34; west to NE 2; south to I-80; west
to Hamilton/Hall County line (Gunbarrel Road), south to Giltner Road;
west to U.S. 34; west to U.S. 136; east on U.S. 135 to NE 10; south to
the State line; west to U.S. 283; north to NE 23; west to NE 47; north
to U.S. 30; east to NE 14; north to NE 52; northeasterly to NE 91; west
to U.S. 281, north to NE 91 in Wheeler County, west to U.S. 183; north
to northerly boundary of Loup County; east along the north boundaries
of Loup, Garfield, and Wheeler County; south along the east Wheeler
County line to NE 70; east on NE 70 from Wheeler County to NE 14; south
to NE 39; southeast to NE 22; east to U.S. 81; southeast to U.S. 30;
east along U.S. 30 to U.S. 75, north along U.S. 75 to the Washington/
Burt County line; then east along the county line to the Iowa border.
Low Plains Zone 3: The area east of the High Plains Zone, excluding
Low Plains Zone 1, north of Low Plains Zone 2.
Low Plains Zone 4: The area east of the High Plains Zone and south
of Zone 2.
New Mexico (Central Flyway Portion)
North Zone: That portion of the State north of I-40 and U.S. 54.
South Zone: The remainder of New Mexico.
North Dakota
High Plains Unit: That portion of the State west of a line from the
South Dakota border along U.S. 83 and I-94 to ND 41, north to ND 53,
west to U.S. 83, north to ND 23, west to ND 8, north to U.S. 2, west to
U.S. 85, north to the Canadian border.
Low Plains: The remainder of North Dakota.
Oklahoma
High Plains Zone: The Counties of Beaver, Cimarron, and Texas.
Low Plains Zone 1: That portion of the State east of the High
Plains Zone and north of a line extending east from the Texas border
along OK 33 to OK 47, east along OK 47 to U.S. 183, south along U.S.
183 to I-40, east along I-40 to U.S. 177, north along U.S. 177 to OK
33, west along OK 33 to I-35, north along I-35 to U.S. 60, west along
U.S. 60 to U.S. 64, west along U.S. 64 to OK 132, then north along OK
132 to the Kansas border.
Low Plains Zone 2: The remainder of Oklahoma.
South Dakota
High Plains Unit: That portion of the State west of a line
beginning at the North Dakota border and extending south along U.S. 83
to U.S. 14, east along U.S. 14 to Blunt-Canning Road in Blunt, south
along Blunt-Canning Road to SD 34, south across a line over the
Missouri River to the northwestern corner of the Lower Brule Indian
Reservation, south along the Reservation Boundary to Lyman County Road,
south along Lyman County Road to I-90 at Presho, east on I-90 to U.S.
183, then south along U.S. 183 to Nebraska border.
North Zone: That portion of northeastern South Dakota east of the
High Plains Unit and north of a line extending east along US 212 to SD
15, then north along SD 15 to Big Stone Lake at the Minnesota border.
South Zone: That portion of Gregory County east of SD 47, Charles
Mix County south of SD 44 to the Douglas County line, south on SD 50 to
Geddes, east on the Geddes Hwy. to U.S. 281, south on U.S. 281 and U.S.
18 to SD 50, south and east on SD 50 to Bon Homme County line, the
Counties of Bon Homme, Yankton, and Clay south of SD 50, and Union
County south and west of SD 50 and I-29.
Middle Zone: The remainder of South Dakota.
Texas
High Plains Zone: That portion of the State west of a line
extending south from the Oklahoma border along U.S. 183 to Vernon,
south along U.S. 283 to Albany, south along TX 6 to TX 351 to Abilene,
south along U.S. 277 to Del Rio, then south along the Del Rio
International Toll Bridge access road to the Mexico border.
Wyoming (Central Flyway portion)
Zone 1: The Counties of Converse, Goshen, Hot Springs, Natrona,
Platte, Washakie, and that portion of Park County south of T58N and not
within the boundary of the Shoshone National Forest.
Zone 2: The remainder of Wyoming.
Pacific Flyway
Arizona--Game Management Units (GMU) as follows:
South Zone: Those portions of GMUs 6 and 8 in Yavapai County, and
GMUs 10 and 12B-45.
North Zone: GMUs 1-5, those portions of GMUs 6 and 8 within
Coconino County, and GMUs 7, 9, 12A.
California
Northeastern Zone: That portion of the State east and north of a
line beginning at the Oregon border; south and west along the Klamath
River to the mouth of Shovel Creek; south along Shovel Creek to Forest
Service Road 46N10; south and east along FS 46N10 to FS 45N22; west and
south along FS 45N22 to U.S. 97 at Grass Lake Summit; south and west
along U.S. 97 to I-5 at the town of Weed; south along I-5 to CA 89;
east and south along CA 89 to the junction with CA 49; east and north
on CA 49 to CA 70; east on CA 70 to U.S. 395; south and east on U.S.
395 to the Nevada border.
Colorado River Zone: Those portions of San Bernardino, Riverside,
and Imperial Counties east of a line extending from the Nevada border
south along U.S. 95 to Vidal Junction; south on a road known as
``Aqueduct Road'' in San Bernardino County through the town of Rice to
the San Bernardino-Riverside County line; south on a road known in
Riverside County as the ``Desert Center to Rice Road'' to the town of
Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on
this road to Wiley Well; southeast along the Army-Milpitas Road to the
Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley
paved road to the Ogilby and Tumco Mine Road; south on this road to
U.S. 80; east seven miles on U.S. 80 to the Andrade-Algodones Road;
south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding
the Colorado River Zone) south and east of a line extending from the
Pacific Ocean east along the Santa Maria River to CA 166 near the City
of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of
the Tehachapi Mountains at Tejon Pass; east and north along the crest
of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to
U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on
CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada
border.
Southern San Joaquin Valley Temporary Zone: All of Kings and Tulare
Counties and that portion of Kern County north of the Southern Zone.
Balance-of-the-State Zone: The remainder of California not included
in the Northeastern, Southern, and Colorado River Zones, and the
Southern San Joaquin Valley Temporary Zone.
Idaho
Zone 1: Includes all lands and waters within the Fort Hall Indian
Reservation, including private inholdings; Bannock County; Bingham
County, except that portion within the Blackfoot Reservoir
[[Page 50676]]
drainage; and Power County east of ID 37 and ID 39.
Zone 2: Includes the following Counties or portions of Counties:
Adams; Bear Lake; Benewah; Bingham within the Blackfoot Reservoir
drainage; those portions of Blaine west of ID 75, south and east of
U.S. 93, and between ID 75 and U.S. 93 north of U.S. 20 outside the
Silver Creek drainage; Bonner; Bonneville; Boundary; Butte; Camas;
Caribou except the Fort Hall Indian Reservation; Cassia within the
Minidoka National Wildlife Refuge; Clark; Clearwater; Custer; Elmore
within the Camas Creek drainage; Franklin; Fremont; Idaho; Jefferson;
Kootenai; Latah; Lemhi; Lewis; Madison; Nez Perce; Oneida; Power within
the Minidoka National Wildlife Refuge; Shoshone; Teton; and Valley
Counties.
Zone 3: Includes the following Counties or portions of Counties:
Ada; Blaine between ID 75 and U.S. 93 south of U.S. 20 and that
additional area between ID 75 and U.S. 93 north of U.S. 20 within the
Silver Creek drainage; Boise; Canyon; Cassia except within the Minidoka
National Wildlife Refuge; Elmore except the Camas Creek drainage; Gem;
Gooding; Jerome; Lincoln; Minidoka; Owyhee; Payette; Power west of ID
37 and ID 39 except that portion within the Minidoka National Wildlife
Refuge; Twin Falls; and Washington Counties.
Nevada
Lincoln and Clark County Zone: All of Clark and Lincoln Counties.
Remainder-of-the-State Zone: The remainder of Nevada.
Oregon
Zone 1: Clatsop, Tillamook, Lincoln, Lane, Douglas, Coos, Curry,
Josephine, Jackson, Linn, Benton, Polk, Marion, Yamhill, Washington,
Columbia, Multnomah, Clackamas, Hood River, Wasco, Sherman, Gilliam,
Morrow and Umatilla Counties.
Columbia Basin Mallard Management Unit: Gilliam, Morrow, and
Umatilla Counties.
Zone 2: The remainder of the State.
Utah
Zone 1: All of Box Elder, Cache, Daggett, Davis, Duchesne, Morgan,
Rich, Salt Lake, Summit, Unitah, Utah, Wasatch, and Weber Counties and
that part of Toole County north of I-80.
Zone 2: The remainder of Utah.
Washington
East Zone: All areas east of the Pacific Crest Trail and east of
the Big White Salmon River in Klickitat County.
Columbia Basin Mallard Management Unit: Same as East Zone.
West Zone: All areas to the west of the East Zone.
Geese
Atlantic Flyway
Connecticut
Same zones as for ducks.
Georgia
Special Area for Canada Geese: Statewide.
Maryland
Special Area for Canada Geese: Allegheny, Carroll, Frederick,
Garrett, Washington counties and the portion of Montgomery County south
of Interstate 270 and west of Interstate 495 to the Potomac River.
Massachusetts
Special Area for Canada Geese: Central Zone (same as for ducks) and
that portion of the Coastal Zone that lies north of route 139 from
Green Harbor.
New Hampshire
Same zones as for ducks.
New Jersey
Special Area for Canada Geese
North - that portion of the State within a continuous line that
runs east along the New York State boundary line to the Hudson River;
then south along the New York State boundary to its intersection with
Route 440 at Perth Amboy; then west on Route 440 to its intersection
with Route 287; then west along Route 287 to its intersection with
Route 206 in Bedminster (Exit 18); then north along Route 206 to its
intersection with Route 94: then west along Route 94 to the tollbridge
in Columbia; then north along the Pennsylvania State boundary in the
Delaware River to the beginning point.
South - that portion of the State within a continuous line that
runs west from the Atlantic Ocean at Ship Bottom along Route 72 to the
Garden State Parkway; then south along the Garden State Parkway to
Route 9; then south along Route 9 to Route 542; then west along Route
542 to the Mullica River (at Pleasant Mills); then north (upstream)
along the Mullica River to Route 206; then south along Route 206 to
Route 536; then west along Route 536 to Route 322; then west along
Route 322 to Route 55; then south along Route 55 to Route 553 (Buck
Road); then south along Route 553 to Route 40; then east along Route 40
to route 55; then south along Route 55 to Route 552 (Sherman Avenue);
then west along Route 552 to Carmel Road; then south along Carmel Road
to Route 49; then south along Route 49 to Route 50; then east along
Route 50 to Route 9; then south along Route 9 to Route 625 (Sea Isle
City Boulevard); then east along Route 625 to the Atlantic Ocean; then
north to the beginning point.
New York
Special Area for Canada Geese: Westchester County and portions of
Nassau, Orange, Putnam, Rockland, and Suffolk Counties--See State
regulations for detailed description.
Pennsylvania
Erie, Mercer, and Butler Counties: All of Erie, Mercer, and Butler
Counties.
Special Area for Canada Geese: Statewide except for the Counties of
Erie, Mercer, Butler, Crawford, and the area east of Interstate 83 from
the Maryland State line to the intersection of U.S. Route 30 to the
intersection of state Route 441, east of SR 441 to intersection of
Interstate 283, east of I-283 to I-83, east of I-83 to intersection of
I-81, east of I-81 to intersection of I-80, and south of I-80 to the
New Jersey State line.
Rhode Island
Special Area for Canada Geese: Kent and Providence Counties and
portions of the towns of Exeter and North Kingston within Washington
County (see State regulations for detailed descriptions).
South Carolina
Canada Goose Area: Statewide except for Clarendon County and that
portion of Lake Marion in Orangeburg County and Berkeley County.
Virginia
Back Bay Area--Defined for white geese as the waters of Back Bay
and its tributaries and the marshes adjacent thereto, and on the land
and marshes between Back Bay and the Atlantic Ocean from Sandbridge to
the North Carolina line, and on and along the shore of North Landing
River and the marshes adjacent thereto, and on and along the shores of
Binson Inlet Lake (formerly known as Lake Tecumseh) and Red Wing Lake
and the marshes adjacent thereto.
West Virginia
Same zones as for ducks.
Mississippi Flyway
Alabama
Same zones as for ducks, but in addition:
SJBP Zone: That portion of Morgan County east of U.S. Highway 31,
north of State Highway 36, and west of U.S. 231; that portion of
Limestone County south of U.S. 72; and that portion of Madison County
south of Swancott Road and west of Triana Road.
Arkansas
East Zone: Arkansas, Ashley, Chicot, Clay, Craighead, Crittenden,
Cross, Desha, Drew, Greene, Independence, Jackson, Jefferson, Lawrence,
Lee, Lincoln, Lonoke, Mississippi, Monroe, Phillips, Poinsett, Prairie,
Pulaski, Randolph, St. Francis, White, and Woodruff Counties.
West Zone: Baxter, Benton, Boone, Carroll, Cleburne, Conway,
Crawford,
[[Page 50677]]
Faulkner, Franklin, Fulton, Izard, Johnson, Madison, Marion, Newton,
Pope, Searcy, Sharp, Stone, Van Buren, and Washington Counties, and
those portions of Logan, Perry, Sebastian, and Yell Counties lying
north of a line extending east from the Oklahoma border along State
Highway 10 to Perry, south on State 9 to State 60, then east on State
60 to the Faulkner County line.
Illinois
Same zones as for ducks, but in addition:
North Zone:
Northern Illinois Quota Zone: The Counties of McHenry, Lake, Kane,
DuPage, and those portions of LaSalle and Will Counties north of
Interstate Highway 80.
Central Zone:
Central Illinois Quota Zone: The Counties of Grundy, Woodford,
Peoria, Knox, Fulton, Tazewell, Mason, Cass, Morgan, Pike, Calhoun, and
Jersey, and those portions of LaSalle and Will Counties south of
Interstate Highway 80.
South Zone:
Southern Illinois Quota Zone: Alexander, Jackson, Union, and
Williamson Counties.
Rend Lake Quota Zone: Franklin and Jefferson Counties.
Indiana
Same zones as for ducks, but in addition:
SJBP Zone: Jasper, LaGrange, Lake, LaPorte, Newton, Porter,
Pulaski, Starke, and Steuben Counties.
Iowa
Same zones as for ducks.
Kentucky
Western Zone: That portion of the State west of a line beginning at
the Tennessee border at Fulton and extending north along the Purchase
Parkway to Interstate Highway 24, east along I-24 to U.S. Highway 641,
north along U.S. 641 to U.S. 60, northeast along U.S. 60 to the
Henderson County line, then south, east, and northerly along the
Henderson County line to the Indiana border.
Ballard Reporting Area: That area encompassed by a line beginning
at the northwest city limits of Wickliffe in Ballard County and
extending westward to the middle of the Mississippi River, north along
the Mississippi River and along the low-water mark of the Ohio River on
the Illinois shore to the Ballard-McCracken County line, south along
the county line to Kentucky Highway 358, south along Kentucky 358 to
U.S. Highway 60 at LaCenter; then southwest along U.S. 60 to the
northeast city limits of Wickliffe.
Henderson-Union Reporting Area: Henderson County and that portion
of Union County within the Western Zone.
Pennyroyal/Coalfield Zone: Butler, Daviess, Ohio, Simpson, and
Warren Counties and all counties lying west to the boundary of the
Western Goose Zone.
Michigan
Same zones as for ducks, but in addition:
South Zone
Tuscola/Huron Goose Management Unit (GMU): Those portions of
Tuscola and Huron Counties bounded on the south by Michigan Highway 138
and Bay City Road, on the east by Colwood and Bay Port Roads, on the
north by Kilmanagh Road and a line extending directly west off the end
of Kilmanagh Road into Saginaw Bay to the west boundary, and on the
west by the Tuscola-Bay County line and a line extending directly north
off the end of the Tuscola-Bay County line into Saginaw Bay to the
north boundary.
Allegan County GMU: That area encompassed by a line beginning at
the junction of 136th Avenue and Interstate Highway 196 in Lake Town
Township and extending easterly along 136th Avenue to Michigan Highway
40, southerly along Michigan 40 through the city of Allegan to 108th
Avenue in Trowbridge Township, westerly along 108th Avenue to 46th
Street, northerly 1/2 mile along 46th Street to 109th Avenue, westerly
along 109th Avenue to I-196 in Casco Township, then northerly along I-
196 to the point of beginning.
Saginaw County GMU: That portion of Saginaw County bounded by
Michigan Highway 46 on the north; Michigan 52 on the west; Michigan 57
on the south; and Michigan 13 on the east.
Muskegon Wastewater GMU: That portion of Muskegon County within the
boundaries of the Muskegon County wastewater system, east of the
Muskegon State Game Area, in sections 5, 6, 7, 8, 17, 18, 19, 20, 29,
30, and 32, T10N R14W, and sections 1, 2, 10, 11, 12, 13, 14, 24, and
25, T10N R15W, as posted.
Special Canada Goose Seasons:
Southern Michigan GMU: That portion of the State, including the
Great Lakes and interconnecting waterways and excluding the Allegan
County GMU, south of a line beginning at the Ontario border at the
Bluewater Bridge in the city of Port Huron and extending westerly and
southerly along Interstate Highway 94 to I-69, westerly along I-69 to
Michigan Highway 21, westerly along Michigan 21 to I-96, northerly
along I-96 to I-196, westerly along I-196 to Lake Michigan Drive (M-45)
in Grand Rapids, westerly along Lake Michigan Drive to the Lake
Michigan shore, then directly west from the end of Lake Michigan Drive
to the Wisconsin border.
Minnesota
West Zone: That portion of the state encompassed by a line
beginning at the junction of State Trunk Highway (STH) 60 and the Iowa
border, then north and east along STH 60 to U.S. Highway 71, north
along U.S. 71 to Interstate Highway 94, then north and west along I-94
to the North Dakota border.
West Central Zone: That area encompassed by a line beginning at the
intersection of State Trunk Highway (STH) 29 and U.S. Highway 212 and
extending west along U.S. 212 to U.S. 59, south along U.S. 59 to STH
67, west along STH 67 to U.S. 75, north along U.S. 75 to County State
Aid Highway (CSAH) 30 in Lac qui Parle County, west along CSAH 30 to
County Road 70 in Lac qui Parle County, west along County 70 to the
western boundary of the State, north along the western boundary of the
State to a point due south of the intersection of STH 7 and CSAH 7 in
Big Stone County, and continuing due north to said intersection, then
north along CSAH 7 to CSAH 6 in Big Stone County, east along CSAH 6 to
CSAH 21 in Big Stone County, south along CSAH 21 to CSAH 10 in Big
Stone County, east along CSAH 10 to CSAH 22 in Swift County, east along
CSAH 22 to CSAH 5 in Swift County, south along CSAH 5 to U.S. 12, east
along U.S. 12 to CSAH 17 in Swift County, south along CSAH 17 to CSAH 9
in Chippewa County, south along CSAH 9 to STH 40, east along STH 40 to
STH 29, then south along STH 29 to the point of beginning.
Lac qui Parle Zone: That area encompassed by a line beginning at
the intersection of U.S. Highway 212 and County State Aid Highway
(CSAH) 27 in Lac qui Parle County and extending north along CSAH 27 to
CSAH 20 in Lac qui Parle County, west along CSAH 20 to State Trunk
Highway (STH) 40, north along STH 40 to STH 119, north along STH 119 to
CSAH 34 in Lac qui Parle County, west along CSAH 34 to CSAH 19 in Lac
qui Parle County, north and west along CSAH 19 to CSAH 38 in Lac qui
Parle County, west along CSAH 38 to U.S. 75, north along U.S. 75 to STH
7, east along STH 7 to CSAH 6 in Swift County, east along CSAH 6 to
County Road 65 in Swift County, south along County 65 to County 34 in
Chippewa County, south along County 34 to CSAH 12 in Chippewa County,
east along CSAH 12 to CSAH 9 in Chippewa County, south along CSAH 9 to
STH 7, southeast along STH 7 to Montevideo and along the municipal
boundary of Montevideo to U.S. 212; then west along U.S. 212 to the
point of beginning.
[[Page 50678]]
Northwest Zone: That portion of the state encompassed by a line
extending east from the North Dakota border along U.S. Highway 2 to
State Trunk Highway (STH) 32, north along STH 32 to STH 92, east along
STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north along
CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to STH 1,
east along STH 1 to CSAH 28 in Pennington County, north along CSAH 28
to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in Roseau
County, north along CSAH 9 to STH 11, west along STH 11 to STH 310, and
north along STH 310 to the Manitoba border.
Special Canada Goose Seasons:
Fergus Falls/Alexandria Zone: That area encompassed by a line
beginning at the intersection of State Trunk Highway (STH) 55 and STH
28 and extending east along STH 28 to County State Aid Highway (CSAH)
33 in Pope County, north along CSAH 33 to CSAH 3 in Douglas County,
north along CSAH 3 to CSAH 69 in Otter Tail County, north along CSAH 69
to CSAH 46 in Otter Tail County, east along CSAH 46 to the eastern
boundary of Otter Tail County, north along the east boundary of Otter
Tail County to CSAH 40 in Otter Tail County, west along CSAH 40 to CSAH
75 in Otter Tail County, north along CSAH 75 to STH 210, west along STH
210 to STH 108, north along STH 108 to CSAH 1 in Otter Tail County,
west along CSAH 1 to CSAH 14 in Otter Tail County, north along CSAH 14
to CSAH 44 in Otter Tail County, west along CSAH 44 to CSAH 35 in Otter
Tail County, north along CSAH 35 to STH 108, west along STH 108 to CSAH
19 in Wilkin County, south along CSAH 19 to STH 55, then southeast
along STH 55 to the point of beginning.
Missouri
Same zones as for ducks but in addition:
North Zone
Swan Lake Zone: That area bounded by U.S. Highway 36 on the north,
Missouri Highway 5 on the east, Missouri 240 and U.S. 65 on the south,
and U.S. 65 on the west.
Middle Zone
Schell-Osage Zone: That portion of the State encompassed by a line
extending east from the Kansas border along U.S. Highway 54 to Missouri
Highway 13, north along Missouri 13 to Missouri 7, west along Missouri
7 to U.S. 71, north along U.S. 71 to Missouri 2, then west along
Missouri 2 to the Kansas border.
Ohio
Same zones as for ducks but in addition:
North Zone
Pymatuning Area: Pymatuning Reservoir and that part of Ohio bounded
on the north by County Road 306 (known as Woodward Road), on the west
by Pymatuning Lake Road, and on the south by U.S. Highway 322.
Lake Erie SJBP Zone: That portion of the State encompassed by a
line extending south from the Michigan border along Interstate Highway
75 to I-280, south along I-280 to I-80, and east along I-80 to the
Pennsylvania border.
Tennessee
Southwest Zone: That portion of the State south of State Highways
20 and 104, and west of U.S. Highways 45 and 45W.
Northwest Zone: Lake, Obion and Weakley Counties and those portions
of Gibson and Dyer Counties not included in the Southwest Tennessee
Zone.
Kentucky/Barkley Lakes Zone: That portion of the State bounded on
the west by the eastern boundaries of the Northwest and Southwest Zones
and on the east by State Highway 13 from the Alabama border to
Clarksville and U.S. Highway 79 from Clarksville to the Kentucky
border.
Wisconsin
Horicon Zone: That area encompassed by a line beginning at the
intersection of State Highway 21 and the Fox River in Winnebago County
and extending westerly along State 21 to the west boundary of Winnebago
County, southerly along the west boundary of Winnebago County to the
north boundary of Green Lake County, westerly along the north
boundaries of Green Lake and Marquette Counties to State 22, southerly
along State 22 to State 33, westerly along State 33 to U.S. Highway 16,
westerly along U.S. 16 to Weyh Road, southerly along Weyh Road to
County Highway O, southerly along County O to the west boundary of
Section 31, southerly along the west boundary of Section 31 to the
Sauk/Columbia County boundary, southerly along the Sauk/Columbia County
boundary to State 33, easterly along State 33 to Interstate Highway 90/
94, southerly along I-90/94 to State 60, easterly along State 60 to
State 83, northerly along State 83 to State 175, northerly along State
175 to State 33, easterly along State 33 to U.S. Highway 45, northerly
along U.S. 45 to the east shore of the Fond Du Lac River, northerly
along the east shore of the Fond Du Lac River to Lake Winnebago,
northerly along the western shoreline of Lake Winnebago to the Fox
River, then westerly along the Fox River to State 21.
Collins Zone: That area encompassed by a line beginning at the
intersection of Hilltop Road and Collins Marsh Road in Manitowoc County
and extending westerly along Hilltop Road to Humpty Dumpty Road,
southerly along Humpty Dumpty Road to Poplar Grove Road, easterly and
southerly along Poplar Grove Road to County Highway JJ, southeasterly
along County JJ to Collins Road, southerly along Collins Road to the
Manitowoc River, southeasterly along the Manitowoc River to Quarry
Road, northerly along Quarry Road to Einberger Road, northerly along
Einberger Road to Moschel Road, westerly along Moschel Road to Collins
Marsh Road, northerly along Collins Marsh Road to Hilltop Road.
Exterior Zone: That portion of the State not included in the
Horicon or Collins Zones.
Mississippi River Subzone: That area encompassed by a line
beginning at the intersection of the Burlington Northern Railway and
the Illinois border in Grant County and extending northerly along the
Burlington Northern Railway to the city limit of Prescott in Pierce
County, then west along the Prescott city limit to the Minnesota
border.
Rock Prairie Subzone: That area encompassed by a line beginning at
the intersection of the Illinois border and Interstate Highway 90 and
extending north along I-90 to County Highway A, east along County A to
U.S. Highway 12, southeast along U.S. 12 to State Highway 50, west
along State 50 to State 120, then south along 120 to the Illinois
border.
Central Flyway
Colorado (Central Flyway Portion)
Northern Front Range Area: All lands in Adams, Boulder, Clear
Creek, Denver, Gilpin, Jefferson, Larimer, and Weld Counties west of I-
25 from the Wyoming border south to I-70; west on I-70 to the
Continental Divide; north along the Continental Divide to the Jackson-
Larimer County Line to the Wyoming border.
South Park/San Luis Valley Area: Alamosa, Chaffee, Conejos,
Costilla, Custer, Fremont, Lake, Park, Teller, and Rio Grande Counties
and those portions of Hinsdale, Mineral, and Saguache Counties east of
the Continental Divide.
North Park Area: Jackson County.
Arkansas Valley Area: Baca, Bent, Crowley, Kiowa, Otero, and
Prowers Counties.
Pueblo County Area: Pueblo County.
Remainder: Remainder of the Central Flyway portion of Colorado.
Eastern Colorado Late Light Goose Area: that portion of the State
east of Interstate Highway 25.
Kansas
Light Geese
Unit 1: That portion of Kansas east of KS 99.
[[Page 50679]]
Unit 2: The remainder of Kansas.
Dark Geese
Marais des Cygne Valley Unit: The area is bounded by the Missouri
border to KS 68, KS 68 to U.S 169, U.S. 169 to KS 7, KS 7 to KS 31, KS
31 to U.S. 69, U.S. 69 to KS 239, KS 239 to the Missouri border.
South Flint Hills Unit: The area is bounded by Highways U.S. 50 to
KS 57, KS 57 to U.S. 75, U.S. 75 to KS 39, KS 39 to KS 96, KS 96 to
U.S. 77, U.S. 77 to U.S. 50.
Central Flint Hills Unit: That area southwest of Topeka bounded by
Highways U.S. 75 to I-35, I-35 to U.S. 50, U.S. 50 to U.S. 77, U.S. 77
to I-70, I-70 to U.S. 75.
Southeast Unit: That area of southeast Kansas bounded by the
Missouri border to U.S. 160, U.S. 160 to U.S. 69, U.S. 69 to KS 39, KS
39 to U.S. 169, U.S. 169 to the Oklahoma border, and the Oklahoma
border to the Missouri border.
Montana (Central Flyway Portion)
Sheridan County: Includes all of Sheridan County.
Remainder: Includes the remainder of the Central Flyway portion of
Montana.
Nebraska
Dark Geese
North Unit: Keya Paha County east of U.S. 183 and all of Boyd
County, including the boundary waters of the Niobrara River, all of
Knox County and that portion of Cedar County west of U.S. 81.
East Unit: The area east of a line beginning at U.S. 183 at the
northern State line; south to NE 2; east to U.S. 281; south to the
southern State line, excluding the North Unit.
West Unit: All of Nebraska west of the East Unit.
Light Geese
Rainwater Basin Light Goose Area: The area bounded by the
intersection of the Platte River and U.S. Highway (Hwy) 92 in Polk
County, east on Hwy 92 to NE Hwy 15, south on Hwy 15 to NE Hwy 4, west
on NE Hwy 4 to U.S. Hwy 34, west on U.S. Hwy 34 to U.S. Hwy 283, north
on U.S. Hwy 283 to U.S. Hwy 30, east on U.S. Hwy 30 to U.S. Hwy 281,
south on U.S. Hwy 281 to NE Hwy 34 & 2, east on NE Hwy 34 to the Platte
River, and then north and east along the Platte River to the beginning.
Remainder of State: The remainder portion of Nebraska.
New Mexico (Central Flyway Portion)
Dark Geese
Middle Rio Grande Valley Unit: Sierra County and that portion of
Socorro County lying south of the Sevilleta National Wildlife Refuge
Boundary.
Remainder: The remainder of the Central Flyway portion of New
Mexico.
North Dakota
Dark Geese
Missouri River Zone: That area encompassed by a line extending from
the South Dakota border north on U.S. 83 and I-94 to ND 41, north to ND
53, west to U.S. 83, north to ND 23, west to ND 37, south to ND 1804,
south approximately 9 miles to Elbowoods Bay on Lake Sakakawea, south
and west across the lake to ND 8, south to ND 200, east to ND 31, south
to ND 25, south to I-94, east to ND 6, south to the South Dakota
border, and east to the point of origin.
Statewide: All of North Dakota.
South Dakota
Canada Geese
Unit 1: Statewide except for Units 2 and 3.
Unit 2: Brule, Buffalo, Campbell, Dewey, Hughes, Hyde, Lyman,
Potter, Stanley, Sully, and Walworth Counties and that portion of
Corson County east of State Highway 65.
Unit 3: Charles Mix and Gregory Counties.
Texas
West Unit: That portion of the State lying west of a line from the
international toll bridge at Laredo; north along I-35 and I-35W to Fort
Worth; northwest along US 81 and US 287 to Bowie; and north along US 81
to the Oklahoma border.
East Unit: Remainder of State.
Wyoming (Central Flyway Portion)
Area 1: Converse, Hot Springs, Natrona, and Washakie Counties, and
that portion of Park County south of T58N.
Area 2: Platte County.
Area 3: Albany, Big Horn, Campbell, Crook, Fremont, Johnson,
Laramie, Niobrara, Sheridan, and Weston Counties and those portions of
Carbon County east of the Continental Divide and Park County north of
T58N.
Area 4: Goshen County.
Pacific Flyway
Arizona
GMU 22 and 23: Game Management Units 22 and 23.
Remainder of State: The remainder of Arizona.
California
Northeastern Zone: That portion of the State east and north of a
line beginning at the Oregon border; south and west along the Klamath
River to the mouth of Shovel Creek; south along Shovel Creek to Forest
Service Road 46N10; south and east along FS 46N10 to FS 45N22; west and
south along FS 45N22 to U.S. 97 at Grass Lake Summit; south and west
along U.S. 97 to I-5 at the town of Weed; south along I-5 to CA 89;
east and south along CA 89 to the junction with CA 49; east and north
on CA 49 to CA 70; east on CA 70 to U.S. 395; south and east on U.S.
395 to the Nevada border.
Colorado River Zone: Those portions of San Bernardino, Riverside,
and Imperial Counties east of a line extending from the Nevada border
south along U.S. 95 to Vidal Junction; south on a road known as
``Aqueduct Road'' in San Bernardino County through the town of Rice to
the San Bernardino-Riverside County line; south on a road known in
Riverside County as the ``Desert Center to Rice Road'' to the town of
Desert Center; east 31 miles on I-10 to the Wiley Well Road; south on
this road to Wiley Well; southeast along the Army-Milpitas Road to the
Blythe, Brawley, Davis Lake intersections; south on the Blythe-Brawley
paved road to the Ogilby and Tumco Mine Road; south on this road to
U.S. 80; east seven miles on U.S. 80 to the Andrade-Algodones Road;
south on this paved road to the Mexican border at Algodones, Mexico.
Southern Zone: That portion of southern California (but excluding
the Colorado River Zone) south and east of a line extending from the
Pacific Ocean east along the Santa Maria River to CA 166 near the City
of Santa Maria; east on CA 166 to CA 99; south on CA 99 to the crest of
the Tehachapi Mountains at Tejon Pass; east and north along the crest
of the Tehachapi Mountains to CA 178 at Walker Pass; east on CA 178 to
U.S. 395 at the town of Inyokern; south on U.S. 395 to CA 58; east on
CA 58 to I-15; east on I-15 to CA 127; north on CA 127 to the Nevada
border.
Balance-of-the-State Zone: The remainder of California not included
in the Northeastern, Southern, and the Colorado River Zones.
Del Norte and Humboldt Area: The Counties of Del Norte and
Humboldt.
Sacramento Valley Area: That area bounded by a line beginning at
Willows in Glenn County proceeding south on I-5 to Hahn Road north of
Arbuckle in Colusa County; easterly on Hahn Road and the Grimes
Arbuckle Road to Grimes on the Sacramento River; southerly on the
Sacramento River to the Tisdale Bypass to O'Banion Road; easterly on
O'Banion Road to CA 99; northerly on CA 99 to the Gridley-Colusa
Highway in Gridley in Butte County; westerly on the Gridley-Colusa
Highway to the River Road; northerly on the River Road to the Princeton
Ferry; westerly across the Sacramento River to CA 45; northerly on CA
45 to CA 162; northerly on CA 45-162 to Glenn; westerly on CA 162 to
the point of beginning in Willows.
Western Canada Goose Hunt Area: That portion of the above described
[[Page 50680]]
Sacramento Valley Area lying east of a line formed by Butte Creek from
the Gridley-Colusa Highway south to the Cherokee Canal; easterly along
the Cherokee Canal and North Butte Road to West Butte Road; southerly
on West Butte Road to Pass Road; easterly on Pass Road to West Butte
Road; southerly on West Butte Road to CA 20; and westerly along CA 20
to the Sacramento River.
San Joaquin Valley Area: That area bounded by a line beginning at
Modesto in Stanislaus County proceeding west on CA 132 to I-5;
southerly on I-5 to CA 152 in Merced County; easterly on CA 152 to CA
165; northerly on CA 165 to CA 99 at Merced; northerly and westerly on
CA 99 to the point of beginning.
Colorado (Pacific Flyway Portion)
Gunnison/Saguache Area: Gunnison County and that portion of
Saguache County west of the Continental Divide.
West Central Area: Archuleta, Delta, Dolores, LaPlata, Montezuma,
Montrose, Ouray, San Juan, and San Miguel Counties and those portions
of Hinsdale and Mineral Counties west of the Continental Divide.
State Area: The remainder of the Pacific-Flyway Portion of
Colorado.
Idaho
Zone 1: Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai,
Latah, Lewis, Nez Perce, and Shoshone Counties.
Zone 2: The Counties of Ada; Adams; Boise; Canyon; those portions
of Elmore north and east of I-84, and south and west of I-84, west of
ID 51, except the Camas Creek drainage; Gem; Owyhee west of ID 51;
Payette; Valley; and Washington.
Zone 3: The Counties of Blaine; Camas; Cassia; those portions of
Elmore south of I-84 east of ID 51, and within the Camas Creek
drainage; Gooding; Jerome; Lincoln; Minidoka; Owyhee east of ID 51;
Power within the Minidoka National Wildlife Refuge; and Twin Falls.
Zone 4: The Counties of Bear Lake; Bingham within the Blackfoot
Reservoir drainage; Bonneville, Butte; Caribou except the Fort Hall
Indian Reservation; Clark; Custer; Franklin; Fremont; Jefferson; Lemhi;
Madison; Oneida; Power west of ID 37 and ID 39 except the Minidoka
National Wildlife Refuge; and Teton.
Zone 5: All lands and waters within the Fort Hall Indian
Reservation, including private inholdings; Bannock County; Bingham
County, except that portion within the Blackfoot Reservoir drainage;
and Power County east of ID 37 and ID 39.
In addition, goose frameworks are set by the following geographical
areas:
Northern Unit: Benewah, Bonner, Boundary, Clearwater, Idaho,
Kootenai, Latah, Lewis, Nez Perce, and Shoshone Counties.
Southwestern Unit: That area west of the line formed by U.S. 93
north from the Nevada border to Shoshone, northerly on ID 75 (formerly
U.S. 93) to Challis, northerly on U.S. 93 to the Montana border (except
the Northern Unit and except Custer and Lemhi Counties).
Southeastern Unit: That area east of the line formed by U.S. 93
north from the Nevada border to Shoshone, northerly on ID 75 (formerly
U.S. 93) to Challis, northerly on U.S. 93 to the Montana border,
including all of Custer and Lemhi Counties.
Montana (Pacific Flyway Portion)
East of the Divide Zone: The Pacific Flyway portion of the State
located east of the Continental Divide.
West of the Divide Zone: The remainder of the Pacific Flyway
portion of Montana.
Nevada
Lincoln Clark County Zone: All of Lincoln and Clark Counties
Remainder-of-the-State Zone: The remainder of Nevada.
New Mexico (Pacific Flyway Portion)
North Zone: The Pacific Flyway portion of New Mexico located north
of I-40.
South Zone: The Pacific Flyway portion of New Mexico located south
of I-40.
Oregon
Southwest Zone: Douglas, Coos, Curry, Josephine and Jackson
Counties.
Northwest Special Permit Zone: That portion of western Oregon west
and north of a line running south from the Columbia River in Portland
along I-5 to OR 22 at Salem; then east on OR 22 to the Stayton Cutoff;
then south on the Stayton Cutoff to Stayton and due south to the
Santiam River; then west along the north shore of the Santiam River to
I-5; then south on I-5 to OR 126 at Eugene; then west on OR 126 to
Greenhill Road; then south on Greenhill Road to Crow Road; then west on
Crow Road to Territorial Hwy; then west on Territorial Hwy to OR 126;
then west on OR 126 to OR 36; then north on OR 36 to Forest Road 5070
at Brickerville; then west and south on Forest Road 5070 to OR 126;
then west on OR 126 to the Pacific Coast.
Northwest Zone: Those portions of Clackamas, Lane, Linn, Marion,
Multnomah, and Washington Counties outside of the Northwest Special
Permit Zone.
Closed Zone: Those portions of Coos, Curry, Douglas and Lane
Counties west of US 101.
Eastern Zone: Hood River, Wasco, Sherman, Gilliam, Morrow,
Umatilla, Deschutes, Jefferson, Crook, Wheeler, Grant, Baker, Union,
and Wallowa Counties.
Harney, Klamath, Lake and Malheur Counties Zone: All of Harney,
Klamath, Lake, and Malheur Counties.
Utah
Washington County Zone: All of Washington County.
Remainder-of-the-State Zone: The remainder of Utah.
Washington
Eastern Washington: All areas east of the Pacific Crest Trail and
east of the Big White Salmon River in Klickitat County.
Area 1: Lincoln, Spokane, and Walla Walla Counties; that part of
Grant County east of a line beginning at the Douglas-Lincoln County
line on WA 174, southwest on WA 174 to WA 155, south on WA 155 to US 2,
southwest on US 2 to Pinto Ridge Road, south on Pinto Ridge Road to WA
28, east on WA 28 to the Stratford Road, south on the Stratford Road to
WA 17, south on WA 17 to the Grant-Adams County line; those parts of
Adams County east of State Highway 17; those parts of Franklin County
east and south of a line beginning at the Adams-Franklin County line on
WA 17, south on WA 17 to US 395, south on US 395 to I-182, west o I-182
to the Franklin-Benton County line; those parts of Benton County south
of I-182 and I-82; and those parts of Klickitat County east of U.S.
Highway 97.
Area 2: All of Okanongan, Douglas, and Kittitas Counties and those
parts of Grant, Adams, Franklin, and Benton Counties not included in
Eastern Washington Goose Management Area 1.
Area 3: All other parts of eastern Washington not included in
Eastern Washington Goose Management Areas 1 and 2.
Western Washington: All areas west of the East Zone.
Area 1: Skagit, Island, and Snohomish Counties.
Area 2: Clark, Cowlitz, Pacific, and Wahkiakum Counties.
Area 3: All parts of western Washington not included in Western
Washington Goose Management Areas 1 and 2.
Lower Columbia River Early-Season Canada Goose Zone: Beginning at
the Washington-Oregon border on the I-5 Bridge near Vancouver,
Washington; north on I-5 to Kelso; west on Highway 4 from Kelso to
Highway 401; south and west on Highway 401 to Highway 101 at the
Astoria-Megler Bridge; west on Highway 101 to Gray Drive in the City of
Ilwaco; west on Gray Drive to Canby Road; southwest on Canby Road to
the
[[Page 50681]]
North Jetty; southwest on the North Jetty to its end; southeast to the
Washington-Oregon border; upstream along the Washington-Oregon border
to the point of origin.
Wyoming (Pacific Flyway Portion): See State Regulations.
Bear River Area: That portion of Lincoln County described in State
regulations.
Salt River Area: That portion of Lincoln County described in State
regulations.
Eden-Farson Area: Those portions of Sweetwater and Sublette
Counties described in State regulations.
Swans
Central Flyway
South Dakota: Beadle, Brookings, Brown, Campbell, Clark, Codington,
Deuel, Day, Edmunds, Faulk, Grant, Hamlin, Hand, Hughes, Hyde,
Kingsbury, Marshall, McPherson, Potter, Roberts, Spink, Sully, and
Walworth Counties.
Pacific Flyway
Montana (Pacific Flyway Portion)
Open Area: Cascade, Chouteau, Hill, Liberty, and Toole Counties and
those portions of Pondera and Teton Counties lying east of U.S. 287-89.
Nevada
Open Area: Churchill, Lyon, and Pershing Counties.
Utah
Open Area: Those portions of Box, Elder, Weber, Davis, Salt Lake,
and Toole Counties lying south of State Hwy 30, I-80/84, west of I-15,
and north of I-80.
[FR Doc. 96-24733 Filed 9-25-96; 8:45 am]
BILLING CODE 4310-55-F
Complete official Federal Register PDF
FR Doc. 96-24726 Correction of Trading Records
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50431-50432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24726]
=======================================================================
-----------------------------------------------------------------------
COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 1
Correction of Trading Records
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule clarification.
-----------------------------------------------------------------------
SUMMARY: On June 6, 1996, the Commodity Futures Trading Commission
(``Commission'' or ``CFTS'') published a proposed rule amendment to its
regulation to clarify a procedure specified for the correction of
erroneous information on trading cards and to make that procedure
applicable to other trading records.\1\ After consideration of comments
received, the Commission published a final rule amendment on August 20,
1996.\2\ One comment letter inadvertently was not mentioned in that
release.
\1\ 61 FR 28806 (June 6, 1996).
\2\ 61 FR 42999 (August 20, 1996).
---------------------------------------------------------------------------
EFFECTIVE DATE: The final rule will become effective October 21, 1996.
FOR FURTHER INFORMATION CONTACT:
Duane C. Andresen, Special Counsel, Division of Trading and Markets,
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street, NW., Washington, DC 20581. Telephone: (202) 418-5490.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Commission amended Commission Regulation 1.35(d)(7), which
addresses the preparation, submission and correction of trading cards,
to make its provisions applicable to all trading records. The
Commission also amended the error correction procedures in paragraph
(d)(7)(ii) to state that a member may correct any errors by crossing
out erroneous information without obliterating or otherwise making
illegible any of the originally recorded information. The Commission
further amended paragraph (d)(7)(ii) to require that when errors on a
trading card are corrected by rewriting the trading card, the member
must submit a ply of the trading card, or in the absence of plies the
original trading card, that is subsequently rewritten in accordance
with contract market rules
[[Page 50432]]
which set forth the required collection schedule for trading cards.
II. Comment Received
The comment letter not previously addressed was received from the
Chicago Board of Trade (``CBT''). Many of the CBT's concerns were
mentioned by other commenters and were considered prior to publication
of the final rule amendment. Those concerns that were not specifically
addressed are discussed below.
A. Applicability
In its comment letter, the CBT stated that it is unclear what the
Commission means by ``trading records prepared for `flashed' orders''
and, further, that the amendment should not be applicable to broker
cards, which resemble trading cards and are used on a temporary basis
until a broker or his broker assistant has an opportunity to formally
endorse a written order ticket. The CBT stated that such cards are not
required to be used and not relied upon as an original source document
for clearing purposes. The CBT also stated that the amendment should
not be applicable to desk clerks recording customers' order
instructions.
The provisions of the amendment are applicable to trading records
prepared by a member of a contract market pursuant to contract market
rules. Thus, the provisions would be applicable to such trading records
as broker cards prepared for ``flashed'' orders if the broker cards
were prepared pursuant to contract market rules.\3\
---------------------------------------------------------------------------
\3\ For example, the amendment's provisions would be applicable
to broker cards prepared pursuant to the CBT's Notice: Documentation
Required to Comply with CFTC's Order Regarding Immediately
Executable Flashed Orders, submitted for Commission review by letter
dated August 5, 1996.
---------------------------------------------------------------------------
With regard to desk clerks recording customers' order instructions,
the provisions of the amendment are specifically applicable to order
tickets prepared under Regulation 1.35(a-1) (2), (3) or (4) or received
on the floor through electronic order routing systems. Desk clerks
correcting order instructions on the original order would be required
to correct the erroneous information, or reflect changed instructions
received from the customer, without obliterating or otherwise making
illegible any of the originally recorded information.
B. Trading Card Provision
The Commission specifically requested comment regarding the trading
card provision that permits correction of erroneous information by
rewriting the trading card. The CBT stated that the provision should be
retained, since members remain accountable for trading cards which are
subsequently rewritten.
The Commission determined to retain the provision that permits the
correction of erroneous information on trading cards by rewriting the
trading card. However, the Commission amended paragraph (d)(7)(ii) to
add the requirement that the member must submit a ply of the trading
card, or in the absence of plies the original trading card, that
subsequently is rewritten in accordance with contract market rules
which set forth the required collection schedule for trading cards.
III. Conclusion
The Commission has carefully reviewed and considered this comment
and believes that the commenter's concerns have been addressed.
Issued in Washington, DC, on September 20, 1996 by the
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 96-24726 Filed 9-25-96; 8:45 am]
BILLING CODE 6351-01-M
Complete official Federal Register PDF
FR Doc. 96-24722 International Meeting on Implementation
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Page 50425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24722]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 304, 308, 310, 320, 327, 381, 416, and 417
[Docket No. 93-016-4N]
International Meeting on Implementation
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: The Food Safety and Inspection Service (FSIS) is holding a
briefing, ``International Meeting on Implementation,'' to discuss with
representatives of foreign countries how the final rule, ``Pathogen
Reduction; Hazard Analysis and Critical Control Point (HACCP)
Systems,'' will be implemented in the United States.
DATES: The public hearing will be held on October 8, 1996, from 8:30
a.m. until 5:00 p.m. Registration will begin at 8:00 a.m.
ADDRESSES: The conference will be held at the U.S. Department of
Agriculture, 1400 Independence Avenue, SW, Back of the South Building
Cafeteria (between the 2nd and 3rd Wings).
FOR FURTHER INFORMATION CONTACT: To register for the conference, call
(703) 812-6299 for international calls; (800) 485-4429 for domestic
calls; FAX (202) 501-7642, or E-mail usdafsis/[email protected].
If you require a sign language interpreter or other special
accommodations, contact Ms. Shelia Johnson at (202) 501-7138 by October
1, 1996.
SUPPLEMENTARY INFORMATION: On July 25, 1996, FSIS published a final
rule, ``Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems'' (61 FR 38805). This rule introduced sweeping changes
to the U.S. meat and poultry inspection system. FSIS is holding a
series of meetings to discuss the implementation of the rule.
On October 8, 1996, FSIS officials will brief representatives of
foreign countries on how the Agency will implement the ``Pathogen
Reduction/HACCP'' final rule domestically. At the briefing, there will
be presentations about Sanitation Standard Operating Procedures, E.
coli verification testing, HACCP requirements, and Salmonella testing.
After the presentations, FSIS officials will answer questions.
Done at Washington, DC, on September 18, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-24722 Filed 9-23-96; 2:18 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-24721 Public Hearing on Criteria for Equivalence of Foreign Inspection Systems
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50425-50426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24721]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
9 CFR Parts 304, 308, 310, 320, 327, 381, 416, and 417
[Docket No. 93-016-5N]
Public Hearing on Criteria for Equivalence of Foreign Inspection
Systems
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of meeting.
-----------------------------------------------------------------------
SUMMARY: The Food Safety and Inspection Service (FSIS) will hold a
hearing, ``Public Hearing on Criteria for Equivalence of Foreign
Inspection Systems,'' to discuss issues related to the equivalence of
foreign inspection systems to the United States' system. At the
hearing, FSIS will provide material outlining the issues involved in
determining the equivalence of foreign inspection systems. Participants
will have the opportunity to discuss this material and present their
own information and views related to the
[[Page 50426]]
equivalence of foreign inspection systems.
DATES: The public hearing will be held on October 9 and 10, 1996, from
8:30 a.m. until 5:00 p.m. Registration and distribution of meeting
materials will begin at 8:00 a.m. on October 9, 1996.
ADDRESSES: The hearing will be held at the U.S. Department of
Agriculture, 1400 Independence Avenue, SW, Back of the South Building
Cafeteria (between the 2nd and 3rd Wings). Send an original and two
copies of comments on equivalence issues to: FSIS Docket Clerk, DOCKET
#93-016-5N, U.S. Department of Agriculture, Food Safety and Inspection
Service, Room 3806, 1400 Independence Avenue, S.W., Washington, DC
20250-3700.
FOR FURTHER INFORMATION CONTACT: To register for the hearing and obtain
advance copies of reference material, call (703) 812-6299 for
international calls; (800) 485-4429 for domestic calls; FAX (202) 501-
7642, or E-mail usdafsis/[email protected]. If you require a
sign language interpreter or other special accommodations, contact Ms.
Shelia Johnson at (202) 501-7138 by October 1, 1996.
SUPPLEMENTARY INFORMATION: On December 8, 1994, the President of the
United States signed into law the Uruguay Round Agreements Act, PL 103-
465 (108 Stat 4966). Among other things, this Act modified U.S. laws to
ensure consistency with the new agreements. For example, the Federal
Meat Inspection Act and the Poultry Products Inspection Act were
modified so that foreign countries wishing to export meat and poultry
products to the United States must have inspection system controls
``equivalent to'' those of the United States. To be consistent with the
new language in the Acts, FSIS published a direct final rule on July
28, 1995, amending its regulations pertaining to foreign countries
inspection systems by replacing the phrase ``at least equal to'' with
the words ``equivalent to'' (60 FR 38667).
FSIS has been examining the application of ``equivalence'' as it
relates to meat and poultry trade between countries. To gather
information from the public relating to issues of equivalence, FSIS
will hold a hearing, ``Public Hearing on Criteria for Equivalence of
Foreign Inspection Systems,'' on October 9 and 10. The hearing will
focus on such issues as: the definition of ``equivalence,'' risk
assessment, features of systems used to determine equivalence, sanitary
measures, Hazard Analysis and Critical Control Point (HACCP) systems,
microbiological standards, and inspection activities carried out by
parties other than Government officials. For hearing participants
wishing to receive advanced copies of reference material to be made
available at the hearing, see FOR FURTHER INFORMATION CONTACT.
At the hearing, there will be an opportunity for participants to
discuss the equivalence issues addressed in the reference material.
Also, written comments may be submitted to the FSIS Docket Room (See
ADDRESSES).
Done at Washington, DC, on September 20, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-24721 Filed 9-23-96; 2:18 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-24720 Safety Standards for First Aid at Metal and Nonmetal Mines
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50432-50436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24720]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56 and 57
RIN 1219-AA97
Safety Standards for First Aid at Metal and Nonmetal Mines
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises existing standards at metal and
nonmetal mines, requiring first aid capability to be available in the
event a miner is injured. The final rule provides operators more
flexibility and clarifies requirements for persons trained in first
aid.
EFFECTIVE DATE: December 26, 1996.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director; Office
of Standards, Regulations, and Variances, MSHA; 703-235-1910 (voice),
703-235-5551 (facsimile), [email protected] (Internet e-mail).
SUPPLEMENTARY INFORMATION:
I. Rulemaking Background
Sections 56/57.18010, requiring first aid training, were originally
promulgated as advisory standards on July 31, 1969, and made mandatory
on August 29, 1973. MSHA issued Program Policy Letter (PPL) No. P94-IV-
2 on October 3, 1994, to underscore the first aid requirements. MSHA
withdrew the PPL by notice in the Federal Register (60 FR 9986) on
February 22, 1995, and began a new procedure for formulating certain
policies with increased participation by the mining community. MSHA
asked the mining community to comment on the issues and to help with
development of a policy for the first aid standard.
By letter of August 25, 1995, the National Mining Association (NMA)
petitioned the Secretary of Labor requesting that MSHA institute
rulemaking, rather than develop policy on the first aid issue, and
suggested language for a new standard. The NMA recommended that MSHA
develop a new rule to require that an individual capable of providing
first aid be available on all shifts and that first aid training be
made available to all interested miners. The recommendation from NMA
addressed mutual concerns of MSHA and the mining industry.
In lieu of finalizing a first aid policy, MSHA used NMA's
recommendation as the basis for a proposed first aid rule published in
the Federal Register (60 FR 55150) on October 27, 1995. MSHA received
comments from organized labor, industry associations, mining
contractors, and medical personnel first aid trainers, all of which
were considered in developing the final rule. MSHA also reviewed and
considered written comments previously submitted to the Agency on its
draft policy letter. One request for a public hearing was received, but
it was subsequently withdrawn.
II. Discussion and Summary of the Final Rule
A. General Discussion
Mining has historically experienced one of the highest rates of
severe injuries among its employees of any major industry group in
America. Despite significant long-term improvements in safety and
health, in the three-year period from 1993 through 1995, mine operators
and independent contractors reported 226 amputations among the
approximately 225,000 miners in the metal and nonmetal industry. During
the same period, over 500 burns; 1500 fractures; and 1200 cuts,
lacerations, or punctures resulted in time lost from work. The
frequency and severity of injuries in the mining industry and the
remoteness of many operations and working places require a skilled
first aid response, the first level of care for many injured miners.
First aid is basic emergency treatment rendered on-site as soon as
possible
[[Page 50433]]
after an injury occurs and is intended to help a victim until medical
care arrives. In severe instances, first aid typically precedes two
subsequent care levels: a secondary level often performed by
paraprofessionals, such as emergency medical technicians (EMT's), and
full medical care performed by professionals, such as physicians and
nurses.
Existing MSHA standards at Secs. 56/57.18010 provide that:
``Selected supervisors shall be trained in first aid. First aid
training shall be made available to all interested employees.'' The
primary purpose of these standards is to assure that a responsible
person, trained to provide first aid, is available to render assistance
in the event a miner is injured. An additional purpose is to encourage
first aid education among miners so that they are able to help an
injured co-worker or even provide self-treatment.
The existing standards identify supervisors as the persons required
to receive first aid training. Supervisors are typically more mobile
than other workers. Companies often provide transportation to
supervisors so they can quickly access areas of the mine in the
performance of their duties. Traditionally, supervisors are present
where work is performed and injuries are most likely to occur.
Since the existing standards were first promulgated, however, there
has been significant progress in emergency response care and conditions
in the mining industry. At a number of mines, medical paraprofessionals
or professionals are members of mine workforces and able to render
skilled help at mine properties. This rulemaking takes into account
these developments.
B. Discussion of Final Rule
Final Secs. 56/57.18010 require that an individual capable of
providing first aid be available on all shifts. This individual must be
currently trained and have the skills to perform patient assessment and
artificial respiration; control bleeding; and treat shock, wounds,
burns, and musculoskeletal injuries. Operators must make first aid
training available to all interested miners.
The final rule adopts the proposal with two changes: it expressly
requires that the individual be currently trained and it deletes the
requirement for transportation and handling skills. MSHA received
comments that addressed many aspects of the proposal as discussed
below.
Individual With First Aid Skills
The final rule requires that operators have an individual capable
of providing first aid. Some commenters suggested that operators should
be allowed to use any medical personnel and paraprofessionals, such as
nurses or EMT's, to satisfy the first aid standard whether or not that
person is a supervisor. Another commenter said that the term
``individual'' should be interpreted to refer to any miner, even if the
miner is not a professional medical service provider. One commenter
asked whether a security guard could fulfill the requirements of the
proposal.
A primary reason for this rulemaking is to broaden the scope of the
rule to permit any person, regardless of title, to provide first aid.
Under the final rule, operators will have the flexibility to use anyone
who meets the requirements.
One commenter raised a concern that a miner could become an agent
of the company when the miner is available to provide first aid. The
final rule requires that operators have a capable individual available
who can perform first aid. The operator has the responsibility to
arrange for this first aid coverage. An individual's assignment for
purposes of this coverage does not make that person an ``agent'' in the
sense of being empowered to act as a representative of the operator.
Capability
One commenter was concerned that the proposed requirement for an
individual ``capable'' of performing first aid would be open to
subjective interpretation. This commenter asked how MSHA would
interpret such a requirement. Commenters generally pointed to training
as the means to establish capability and raised the issue of what type
of training was contemplated. While the existing rule requires that
supervisors ``be trained,'' the proposal contained no expressed
training requirement other than that first aid training be made
available to interested miners.
The final rule expressly provides that the individual must be
``currently trained'' and have certain specified first aid skills. The
individual who is so trained and skilled is ``capable.'' To be
``currently trained'' means that the individual must have received in-
depth first aid training which covers the specific skills in the final
regulation and that such training be up-to-date. Persons, such as
EMT's, nurses, and physicians, with current licenses or certifications
to practice, are considered ``currently trained'' under the final rule.
One commenter suggested that first aid training be provided
annually. Organizations with histories of successfully training
individuals in first aid skills differ in the frequency, breadth, and
depth of the retraining required to maintain competence. Some, such as
the American Red Cross, use a different interval from annual retraining
to maintain certification of competence. The American Red Cross's
current standard course is initially an 8-hour program to receive
certification. It requires retraining every three years to maintain a
current certification. Training offered by similar organizations, such
as local fire departments, also has varying retraining components.
Rather than exclude or constrain programs that have effectively
prepared individuals for rendering first aid, the final rule does not
incorporate an annual retraining requirement. MSHA will accept the
retraining requirements prescribed by the organization providing the
initial training.
One commenter said that first aid training taken to meet the
existing requirements of 30 CFR part 48 should qualify individuals as
``capable''. The commenter stated that part 48 training allows ample
time for adequate first aid training.
Part 48 training, however, may not automatically qualify an
individual as capable since part 48 is a different type of training
provision from the final rule. Part 48 requires basic first aid
training for all miners. The final rule for Secs. 56/57.18010 requires
that certain persons, trained and skilled in first aid, be available
and that the more in-depth first aid training to acquire those skills
be made available to interested miners.
Part 48 was promulgated in 1978. It implements Section 115 of the
Federal Mine Safety and Health Act of 1977 (Mine Act) 30 U.S.C. 825
which was intended by Congress to prevent miners from being put to work
before having received some safety and health training, including basic
first aid.
Part 48 requires training in many health and safety subjects. The
24-hour training required of new surface miners must cover at least
eleven other subjects besides first aid. The 8-hour annual refresher
training must cover at least ten other subjects. Operators have sought
flexibility to adjust the time spent on any one subject, particularly
during annual refresher training, according to the accident experience
and safety and health needs of the mine and the miners. An operator
with a high number of back injuries, for example, may determine that
miners need more training on proper lifting. To allocate
[[Page 50434]]
more time to lifting, first aid training might be curtailed. Under
these circumstances, a brief review of first aid would not adequately
train persons to maintain skills as required by Secs. 56/57.18010.
MSHA will accept part 48 training for compliance with the final
rule if it is sufficiently in-depth to develop the capability to
perform the necessary first aid skills. In all instances, training that
complies with this rule would satisfy the new miner training
requirements for first aid under part 48 and annual refresher training
requirements for the year in which it was received.
Availability
Commenters asked that MSHA clarify the meaning of the terms
``available'' and ``on all shifts.'' The concept of availability is
critical to the purpose of the final rule and is intended to have its
ordinary meaning--present and ready for use or at hand.
The final rule requires that, if an injury occurs, a person skilled
in first aid must be present at the site and must be able to be at the
scene quickly. Individuals on-site are able to respond sooner because
they are closer to the scene of an accident and know the mine. The
likelihood of survival for a seriously injured miner would be greatly
diminished if first aid treatment were not administered before off-site
medical personnel could provide it. Operators also will have to plan to
assure that this on-site coverage is provided during absences and
vacations.
One commenter questioned whether the person capable of providing
first aid would be required underground and, if so, must the person be
trained to go underground. The final rule revises current Sec. 57.18010
and expressly applies to underground mines where first aid availability
is a critical element of injury response planning. To be available, the
first aid person must be prepared to provide first aid to injured
miners promptly. An individual capable of first aid and located on the
surface at an underground mine would not be available for miners
underground in many cases because the time required to reach the
injured person would be too long. For example, reaching some areas of
an old underground mine may require traveling through a mile or more of
old workings and could take an hour or more, depending on the
availability of transportation. In those few cases where a first aid
person on the surface is available to miners injured underground, such
as some small adit mines, that person would have to be trained to go
underground to the extent required by other MSHA standards.
Similarly, to ensure availability under conditions of difficult
access and remote work areas, an underground mine operator may be
required to have more than one first aid person underground. This
concept of availability also applies to surface mines where miners may
be working in remote areas.
One commenter suggested that the term ``readily'' be inserted in
the standard before ``available'' to ensure a prompt response.
``Available'' is commonly defined to mean present and ready for use or
at hand. Adding the term ``readily'' would not increase miner
protection and, therefore, this suggestion is not adopted in the final
rule.
Another commenter suggested that availability be established either
by having the person present on-shift or reachable through radio
contact. While such factors as communication, transportation, and
presence on-shift help determine availability, they do not make a
person available to provide first aid. For example, radio communication
without the ability to reach an accident scene quickly would not meet
the requirements of the final rule.
The final rule provides that an individual skilled in first aid be
available ``on all shifts.'' Commenters questioned which shifts need to
be covered. One commenter said that only ``production'' shifts should
be covered. Another commenter stated that the standard should apply
``to all shifts where two or more miners are engaged in production,
extraction, or maintenance activities.''
Under the Mine Act, mining includes activities beyond those
suggested by the comments. Production (excavation, extraction, and
milling), development, stripping, construction, dismantling,
maintenance, and abandonment comprise mining activities according to
the Mine Act. All of these activities involve exposure to hazards that
may require the application of first aid skills. The final rule retains
the ``on all shifts'' wording to convey the breadth of these activities
while keeping the language as simple as possible. The final rule does
not apply, however, in the few instances when no mining activities
occur, for example, when only security, sales, or office work is
performed.
Independent Contractors
One commenter suggested that independent contractors should be
solely responsible for compliance with the rule for their own
employees. Another commenter said that the rule's requirements should
not apply when independent contractors are performing explosives-
related work, such as shot service, which can involve a single
employee.
Under the final rule, independent contractors will be treated the
same as under other MSHA safety and health standards. Independent
contractors working on mine property are responsible for compliance
with MSHA regulations. In some instances, the mine operator and
independent contractor are isolated from one another and a single
individual capable of first aid could not be available for both. In
those situations, each would be responsible for their own coverage. In
other instances, the mine operator and independent contractor work in
such close proximity that one can choose to provide first aid coverage
for the other. In those situations, it is the mine operator's and
independent contractor's responsibility to agree on the coverage and to
coordinate and communicate its implementation. Consistent with MSHA's
enforcement of the existing standard, mine operators and independent
contractors have the flexibility to use anyone at the mine with the
necessary skills and availability, regardless of employer.
Mining activity can present hazards to an employee whether the
employee is working alone or with another person. If an employee is
alone and becomes injured, the ability to provide self-treatment could
be critical to survival. The final rule, therefore, does not include an
exception for miners or contractor employees working alone.
First Aid Skills
Several commenters addressed the proposed first aid skills needed
to establish capability. One commenter suggested that the required
skills for those other than EMT's be limited to ``basic first aid such
as for breathing, bleeding, and shock.'' This recommendation would
exclude patient assessment and treatment of wounds, burns, breaks,
sprains, and strains. MSHA's experience is that the injuries that occur
in mines require assessment and treatment skills; the final rule,
therefore, retains the proposed skill requirements, except as discussed
below.
This commenter also said that a good procedure for obtaining
``outside medical assistance'' should be emphasized. Separate existing
standards, however, already require operators to have suitable
emergency communications and arrangements for obtaining medical
assistance (Secs. 56/57.18012, 18014).
One commenter suggested that cardiopulmonary resuscitation (CPR) be
[[Page 50435]]
added to the list of required skills. The commenter suggested that
firefighting, extrication, and evacuation also be included. The ability
to perform CPR competently can require additional patient assessment
skills, physical dexterity, and endurance. Traditionally, CPR training
has been a supplement to first aid training and is not always offered
with first aid.
The final rule does not require that first aid skills include CPR.
Mine operators are encouraged, however, to add skills which are
considered appropriate to their workforce and environment. Likewise,
the final rule does not include the suggestion that persons be
specially trained in firefighting, extrication, or evacuation. This
suggestion exceeds the scope of first aid. In addition, existing
standards require operators to train miners in these areas.
One commenter recommended that the individuals capable of providing
first aid be able to treat injuries from hazardous liquids and gases.
The final rule requires skills for treatment of injuries from any
source or cause. Skills in patient assessment and artificial
respiration and treatment of shock and burns would have direct
application to injuries from hazardous liquids and gases.
The proposed rule would have required an individual to have the
skills to handle and transport injured persons. One commenter stated
that transportation is no longer taught in the American Red Cross's
basic first aid course. The commenter pointed out that when
transporting an injured person, particularly one with a neck or spinal
injury, there is the potential to cause greater harm and possible
paralysis. The commenter suggested that the handling and transportation
of injured persons be deleted from the required skills under the final
rule.
MSHA agrees that mishandling and improper transportation of a
victim with a serious neck or spinal injury presents a high potential
to exacerbate the injury. The American Red Cross does not currently
include separate instruction on transportation and handling of the
injured in its standard first aid course, although it furnishes
guidance about these subjects in an informational section of its
textbook. The American Red Cross teaches that one of the most dangerous
threats to any seriously injured victim is unnecessary movement.
Further, the National Safety Council's course emphasizes that injured
persons should be moved only if they are in immediate danger from their
environment.
Special training, experience, dexterity, and strength are often
required to successfully handle or transport a victim with an injured
spine. Emergency medical personnel have the skills to successfully
handle and transport victims in these cases. Improvements in
transportation and communications, and the widespread availability of
emergency service present an alternative that MSHA believes is more
protective of miner safety. Under current regulations at Secs. 56/
57.18014, operators must make advance arrangements for obtaining
transportation for injured persons and emergency medical assistance
beyond first aid. The final rule, therefore, does not include the skill
requirements for transportation and handling of injured persons
contained in the proposal.
Interested Miners
The second sentence of the existing standard is revised in the
final rule to require that training be available to all interested
``miners'' rather than all interested ``employees.'' This is not a
substantive change and merely conforms the rule's terminology with
other MSHA standards. To comply with the rule, operators must inform
miners of the training in advance, so the miners can plan to attend.
One commenter questioned whether the operator must pay for first
aid training. Consistent with the existing standard, the final rule
requires the operator to make the training available to all interested
miners. Therefore, to encourage the miners' attendance at the course,
the operator must pay ordinary course expenses. The final rule, like
the existing rule, does not address the issue of compensation for the
miner's time.
III. Executive Order 12866 and the Regulatory Flexibility Act
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of intended regulations. MSHA has determined
that this rulemaking is not a significant regulatory action
representing additional costs in excess of $100 million to a segment of
the economy and, therefore, has not prepared a separate analysis of
costs and benefits. The Regulatory Flexibility Act requires regulatory
agencies to consider a rule's impact on small entities. For the purpose
of the Regulatory Flexibility Act, MSHA policy defines a small entity
as an operation employing fewer than 20 employees. This final rule
would not have a significant economic impact on a substantial number of
small entities. The analysis contained in this preamble meets MSHA's
responsibilities under Executive Order 12866 and the Regulatory
Flexibility Act.
A few commenters were concerned that the rule would expand training
and personnel requirements beyond part 48 and existing Secs. 56/
57.18010. One commenter stated that MSHA should prepare a regulatory
analysis before proceeding further with the rulemaking.
Operators are currently required to provide supervisors trained in
first aid who, by virtue of their position, work with and are available
to the workforce. There may be some operators, however, who have not
provided this first aid coverage for the miners on all shifts under the
existing rule. These operators may incur some additional costs to
comply with the final rule. These costs, however, would be minimal and
offset by the flexibility provided in the final rule.
The final rule incorporates the National Mining Association's
petition for rulemaking and broadens the scope of persons who can
provide the first aid capability required by the standard. A mine
operator can rely on existing, non- supervisory personnel who possess
these special skills. Accordingly, MSHA has determined that this rule
will not result in any significant costs to the mining industry.
IV. Paperwork Reduction Act
This final rule contains no information collection or paperwork
requirements subject to the Paperwork Reduction Act of 1995. The
compiling and maintaining of records or other documentation of a
miner's first aid training is incurred by mine operators in the normal
course of their business activities. The burden associated with such
usual and customary business records are excluded from the information
collection burden under 5 CFR 1320.3(b)(2) (60 FR 44985).
One commenter maintained that the rule would represent a
significant burden by virtue of increased paperwork. It was suggested
that MSHA accept a certification by the mine operator as sufficient
evidence of the training. Currently, MSHA determines compliance with
the existing requirements by reviewing documentation already kept by
the mine operator, particularly course records. MSHA accepts available
documentation, such as course completion certificates, diplomas,
letters from a qualified instructor, or similar evidence. Under the
final rule, MSHA would continue this practice.
V. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-
4,
[[Page 50436]]
requires each Federal agency to assess the effects of Federal
regulatory actions on state, local, and tribal governments and the
private sector, other than to the extent such actions merely
incorporate requirements specifically set forth in a statute, and to
determine if the rule might significantly or uniquely affect small
governments. MSHA has concluded that small governmental entities are
not significantly or uniquely impacted by this regulation. The final
rule will impact about 10,800 metal and nonmetal mining operations of
which about 400 sand and gravel or crushed stone operations are run by
state, local, or tribal governments for the construction and repair of
highways and roads. These entities may incur some additional costs to
comply with the final rule. These costs, however, would be minimal and
offset by the flexibility provided in the final rule. Notwithstanding
this conclusion, MSHA will mail a copy of the final rule to these 400
entities.
List of Subjects in 30 CFR Parts 56 and 57
Emergency medical services, Metal and nonmetal mines, Mine safety
and health.
Dated: September 18, 1996.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
Parts 56 and 57, subchapter N, chapter I, title 30 of the Code of
Federal Regulations are amended as follows:
PART 56--[AMENDED]
1. The authority citation for part 56 continues to read as follows:
Authority: 30 U.S.C. 811.
2. Section 56.18010 is revised to read as follows:
Sec. 56.18010 First aid.
An individual capable of providing first aid shall be available on
all shifts. The individual shall be currently trained and have the
skills to perform patient assessment and artificial respiration;
control bleeding; and treat shock, wounds, burns, and musculoskeletal
injuries. First aid training shall be made available to all interested
miners.
PART 57--[AMENDED]
3. The authority citation for part 57 continues to read as follows:
Authority: 30 U.S.C. 811.
4. Section 57.18010 is revised to read as follows:
Sec. 57.18010 First aid.
An individual capable of providing first aid shall be available on
all shifts. The individual shall be currently trained and have the
skills to perform patient assessment and artificial respiration;
control bleeding; and treat shock, wounds, burns, and musculoskeletal
injuries. First aid training shall be made available to all interested
miners.
[FR Doc. 96-24720 Filed 9-25-96; 8:45 am]
BILLING CODE 4510-43-P
Complete official Federal Register PDF
FR Doc. 96-24717 Administrative Offset
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50444-50445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24717]
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FEDERAL MARITIME COMMISSION
46 CFR Part 505
[Docket No. 96-15]
Administrative Offset
AGENCY: Federal Maritime Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule adopts, without change, the existing
regulations on administrative offset promulgated by the Department of
the Treasury as mandated by the Debt Collection Improvement Act of
1996. The rule allows the Commission to collect by administrative
offset any delinquent debt owed it and sets forth the minimum due
process rights that must be provided to the debtor when the Commission
seeks to collect a debt by administrative offset.
EFFECTIVE DATE: October 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert D. Bourgoin, General Counsel, Federal Maritime Commission, 800
North Capitol Street, NW., Washington, DC 20573, (202) 523-5740.
SUPPLEMENTARY INFORMATION: The Debt Collection Improvement Act of 1996,
Pub. L. 104-134, Chapter 10, section 31001, 101 Stat. 1321-358
(``Act''), requires that before collecting a claim by administrative
offset, a federal agency must either adopt, without change, regulations
on collecting by administrative offset promulgated by the Departments
of Justice or Treasury or the General Accounting Office, or prescribe
regulations on collecting by administrative offset consistent with the
aforementioned regulations. Administrative offset means the withholding
of funds otherwise payable by the United States to a person, or held by
the U.S. for a person, to satisfy a claim or debt.
In compliance with the Act, the Federal Maritime Commission adopts
as a final rule the existing regulations of the Department of the
Treasury set forth at 31 CFR 5.30 (1995), which incorporate the Federal
Claims Collection Standards on administrative offset issued jointly by
the Department of Justice and the General Accounting Office as set
forth in 4 CFR 102.3. The purpose of the regulations is to protect the
minimum due process rights that must be afforded to the debtor when an
agency seeks to collect a debt by administrative offset, including the
ability to verify, challenge, and compromise claims, and access to
administrative appeals procedures which are both reasonable and protect
the interests of the United States.
Notice and an opportunity for public comment are not necessary
prior to issuance of this final rule because it is interpretive in
nature and implements a definitive statutory scheme mandated by the
Act. In addition, notice and an opportunity for public comment are
unnecessary inasmuch as both were provided previously when the Federal
Claims Collection Standards were enacted, 49 FR 8897, March 9, 1984,
and when the Treasury regulations were implemented, 52 FR 52, January
2, 1987.
The Commission certifies pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 605(b), that this rule will not have a significant
economic impact on a substantial number of small entities, including
small businesses, small organizational units, and small governmental
jurisdictions because it merely facilitates collection of already
incurred debts.
The rule does not contain any collection of information
requirements as defined by the Paperwork Reduction Act of 1995, as
amended. Therefore, Office of Management and Budget review is not
required.
List of Subjects in 46 CFR Part 505
Administrative offset, Administrative practice and procedure,
Claims, Debt collections.
Part 505 of Title 46 of the Code of Federal Regulations is added to
read as follows:
PART 505--ADMINISTRATIVE OFFSET
505.1 Scope of regulations.
505.2 Definitions.
505.3 General.
505.4 Notification procedures.
505.5 Agency review.
505.6 Written agreement for repayment.
505.7 Administrative offset.
505.8 Jeopardy procedure.
Authority: 31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.
Sec. 505.1 Scope of regulations.
These regulations apply to the collection of debts owed to the
United States arising from transactions with the Commission, or where a
request for an offset is received by the Commission from another
agency. These regulations are consistent with the Federal Claims
Collection Standards on administrative offset issued jointly by the
Department of Justice and the General Accounting Office as set forth in
4 CFR 102.3.
Sec. 505.2 Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1),
means withholding money payable by the United States Government to, or
held by the Government for, a person to satisfy a debt the person owes
the Government.
(b) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate,
consortium, or other entity which is capable of owing a debt to the
United States Government except that agencies of the United States, or
of any State or local government shall be excluded.
Sec. 505.3 General.
(a) The Chairman or his or her designee, after attempting to
collect a debt from a person under section 3(a) of the Federal Claims
Collection Act of 1966, as assembled (31 U.S.C. 3711(a)), may collect
the debt by administrative offset subject to the following:
(1) The debt is certain in amount; and
(2) It is in the best interests of the United States to collect the
debt by administrative offset because of the decreased costs of
collection and the acceleration in the payment of the debt.
(b) The Chairman, or his or her designee, may initiate
administrative offset with regard to debts owed by a person to another
agency of the United States Government, upon receipt of a request from
the head of another agency or his or her designee, and a certification
that the debt exists and that the person has been afforded the
necessary due process rights.
[[Page 50445]]
(c) The Chairman, or his or her designee, may request another
agency that holds funds payable to a Commission debtor to offset the
debt against the funds held and will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) If the six-year period for bringing action on a debt provided
in 28 U.S.C. 2415 has expired, then administrative offset may be used
to collect the debt only if the costs of bringing such action are
likely to be less than the amount of the debt.
(e) No collection by administrative offset shall be made on any
debt that has been outstanding for more than 10 years unless facts
material to the Government's right to collect the debt were not known,
and reasonably could not have been known, by the official or officials
responsible for discovering and collecting such debt.
(f) These regulations do not apply to:
(1) A case in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute;
or
(2) Debts owed by other agencies of the United States or by any
State or local government.
Sec. 505.4 Notification procedures.
Before collecting any debt through administrative offset, a notice
of intent to offset shall be sent to the debtor by certified mail,
return receipt requested, at the most current address that is available
to the Commission. The notice shall provide:
(a) A description of the nature and amount of the debt and the
intention of the Commission to collect the debt through administrative
offset;
(b) An opportunity to inspect and copy the records of the
Commission with respect to the debt;
(c) An opportunity for review within the Commission of the
determination of the Commission with respect to the debt; and
(d) An opportunity to enter into a written agreement for the
repayment of the amount of the debt.
Sec. 505.5 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
debt, or the terms of repayment. A request to review a disputed debt
must be submitted to the Commission official who provided notification
within 30 calendar days of the receipt of the written notice described
in Sec. 505.4.
(b) If the debtor requests an opportunity to inspect or copy the
Commission's records concerning the disputed claim, 10 business days
will be granted for the review. The time period will be measured from
the time the request for inspection is granted or from the time the
copy of the records is received by the debtor.
(c) Pending the resolution of a dispute by the debtor, transactions
in any of the debtor's account(s) maintained in the Commission may be
temporarily suspended. Depending on the type of transaction the
suspension could preclude its payment, removal, or transfer, as well as
prevent the payment of interest or discount due thereon. Should the
dispute be resolved in the debtor's favor, the suspension will be
immediately lifted.
(d) During the review period, interest, penalties, and
administrative costs authorized under the Federal Claims Collection Act
of 1996, as amended, will continue to accrue.
Sec. 505.6 Written agreement for repayment.
A debtor who admits liability but elects not to have the debt
collected by administrative offset will be afforded an opportunity to
negotiate a written agreement for the repayment of the debt. If the
financial condition of the debtor does not support the ability to pay
in one lump-sum, reasonable installments may be considered. No
installment arrangement will be considered unless the debtor submits a
financial statement, executed under penalty of perjury, reflecting the
debtor's assets, liabilities, income, and expenses. The financial
statement must be submitted within 10 business days of the Commission's
request for the statement. At the Commission's option, a confess-
judgment note or bond of indemnity with surety may be required for
installment agreements. Notwithstanding the provisions of this section,
any reduction or compromise of a claim will be governed by 4 CFR part
103.
Sec. 505.7 Administrative offset.
(a) If the debtor does not exercise the right to request a review
within the time specified in Sec. 505.5 or if as a result of the
review, it is determined that the debt is due and no written agreement
is executed, then administrative offset shall be ordered in accordance
with these regulations without further notice.
(b) Requests for offset to other Federal agencies. The Chairman or
his or her designee may request that funds due and payable to a debtor
by another Federal agency be administratively offset in order to
collect a debt owed to the Commission by that debtor. In requesting
administrative offset, the Commission, as creditor, will certify in
writing to the Federal agency holding funds of the debtor:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the agency has complied with the requirements of 31 U.S.C.
3716, its own administrative offset regulations and the applicable
provisions of 4 CFR part 102 with respect to providing the debtor with
due process.
(c) Requests for offset from other Federal agencies. Any Federal
agency may request that funds due and payable to its debtor by the
Commission be administratively offset in order to collect a debt owed
to such Federal agency by the debtor. The Commission shall initiate the
requested offset only upon:
(1) Receipt of written certification from the creditor agency:
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise
of administrative offset; and
(iv) That the agency has complied with its own administrative
offset regulations and with the applicable provisions of 4 CFR part
102, including providing any required hearing or review.
(2) A determination by the Commission that collection by offset
against funds payable by the Commission would be in the best interest
of the United States as determined by the facts and circumstances of
the particular case, and that such offset would not otherwise be
contrary to law.
Sec. 505.8 Jeopardy procedure.
The Commission may effect an administrative offset against a
payment to be made to the debtor prior to the completion of the
procedures required by Secs. 505.4 and 505.5 of this part if failure to
take the offset would substantially jeopardize the Commission's ability
to collect the debt, and the time before the payment is to be made does
not reasonably permit the completion of those procedures. Such prior
offset shall be promptly followed by the completion of those
procedures. Amounts recovered by offset but later found not to be owed
to the Commission shall be promptly refunded.
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 96-24717 Filed 9-25-96; 8:45 am]
BILLING CODE 6730-01-M
Complete official Federal Register PDF
FR Doc. 96-24670 Fisheries of the Exclusive Economic Zone off Alaska; Northern Rockfish in the Western Regulatory Area
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Page 50458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24670]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 091996B]
Fisheries of the Exclusive Economic Zone off Alaska; Northern
Rockfish in the Western Regulatory Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Modification of a closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is opening directed fishing for northern rockfish in the
Western Regulatory Area of the Gulf of Alaska (GOA). This action is
necessary to fully utilize the total allowable catch (TAC) of northern
rockfish in that area.
EFFECTIVE DATE: 1200 hrs, Alaska local time (A.l.t.), October 1, 1996,
until 2400 hrs, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas Pearson, 907-486-6919.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
In accordance with Sec. 679.20(c)(3)(ii), the annual TAC for
northern rockfish in the Western Regulatory Area of the GOA was
established by the Final 1996 Harvest Specifications of Groundfish (61
FR 4304, February 5, 1996) as 640 metric tons (mt). The directed
fishery for northern rockfish in the Western Regulatory Area of the GOA
was closed to directed fishing under Sec. 679.20(d)(1)(iii) in order to
reserve amounts anticipated to be needed for incidental catch in other
fisheries (61 FR 37226, July 17, 1996). NMFS has determined that, as of
September 7, 1996, 527 mt remain in the directed fishing allowance.
The Administrator, Alaska Region, NMFS, has determined that the
1996 directed fishing allowance of northern rockfish in the Western
Regulatory Area of the GOA has not been reached. Therefore, NMFS is
terminating the previous closure and is opening directed fishing for
northern rockfish in the Western Regulatory Area of the GOA.
All other closures remain in full force and effect.
Classification
This action is taken under Sec. 679.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 20, 1996.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-24670 Filed 9-25-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-24669 1996 Marketing Quota and Price Support for Burley Tobacco
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50423-50425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24669]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 723
Commodity Credit Corporation
7 CFR Part 1464
RIN 0560-AE47
1996 Marketing Quota and Price Support for Burley Tobacco
AGENCIES: Farm Service Agency and Commodity Credit Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this final rule is to codify determinations
made by the Secretary of Agriculture (Secretary) with respect to the
1996 crop of burley tobacco. The Secretary determined the
[[Page 50424]]
1996 marketing quota for burley tobacco to be 633.8 million pounds, and
the 1996 price support level to be 173.7 cents per pound.
EFFECTIVE DATE: February 1, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Tarczy, FSA, USDA, room 5750,
South Building, P.O. Box 2415, STOP 0514, Washington, DC 20013-2415,
telephone 202 720-5346.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be significant for purposes
of Executive Order 12866 and has been reviewed by OMB under Executive
Order 12866.
Federal Assistance Program
The title and number of the Federal Assistance Program, as found in
the Catalog of Federal Domestic Assistance, to which this rule applies,
are Commodity Loans and Purchases--10.051.
Executive Order 12778
This final rule has been reviewed in accordance with Executive
Order 12778, Civil Justice Reform. The provisions of this rule do not
preempt State laws, are not retroactive, and do not involve
administrative appeals.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this final rule because the Farm Service Agency (FSA) is
not required by 5 U.S.C. 553 or any other provision of law to publish a
notice of proposed rulemaking with respect to the subject matter of
this rule.
Paperwork Reduction Act
The amendments to 7 CFR parts 723 and 1464 set forth in this final
rule do not contain any information collection requirements that
require clearance through the Office of Management and Budget under the
provisions of the Paperwork Reduction Act of 1995.
Statutory Background
This rule is issued pursuant to the provisions of the Agricultural
Adjustment Act of 1938 (the 1938 Act) and the Agricultural Act of 1949
(the 1949 Act.) Section 1108(c) of Public Law 99-272 provides that the
determinations made in this rule are not subject to the provisions for
public participation in rulemaking contained in 5 U.S.C. 553 or in any
directive of the Secretary.
On February 1, 1996, the Secretary announced the national marketing
quota and the price support level for the 1996 crop of burley tobacco.
A number of related determinations were made at the same time, which
this final rule also affirms.
Marketing Quota
Section 319(c)(3)(A)(B) of the 1938 Act provides, in part, that the
national marketing quota for a marketing year for burley tobacco is the
quantity of such tobacco that is not more than 103 percent nor less
than 97 percent of the total of: (1) The amount of burley tobacco that
domestic manufacturers of cigarettes estimate they intend to purchase
on U.S. auction markets or from producers, (2) the average quantity
exported annually from the U.S. during the 3 marketing years
immediately preceding the marketing year for which the determination is
being made, and (3) the quantity, if any, that the Secretary, in the
Secretary's discretion, determines necessary to adjust loan stocks to
the reserve stock level.
Section 319(c)(3)(C) further provides that, with respect to the
1995 and 1996 marketing years, any reduction in the national marketing
quota being determined shall not exceed 10 percent of the previous
year's national marketing quota. However, if actual loan stocks exceed
the prescribed reserve stock level by 50 percent the reduction limit
could be waived and the Secretary could then set the quota according to
the three-component formula (plus or minus 3 percent). The reserve
stock level is defined in section 301(b)(14)(D) of the 1938 Act as the
greater of 50 million pounds or 15 percent of the national marketing
quota for burley tobacco for the marketing year immediately preceding
the marketing year for which the level is being determined.
Section 320A of the 1938 Act provides that all domestic
manufacturers of cigarettes with more than 1 percent of U.S. cigarette
production and sales shall submit to the Secretary a statement of
purchase intentions for the 1996 crop of burley tobacco by January 15,
1996. Five such manufacturers were required to submit such a statement
for the 1996 crop and the total of their intended purchases for the
1996 crop is 424.0 million pounds. The 3-year average of exports is
155.4 million pounds.
The national marketing quota for the 1995 crop year was 549.0
million pounds (60 FR 27867). Thus, in accordance with section 301
(b)(14)(D), the reserve stock level for use in determining the 1996
marketing quota for burley tobacco is 82.4 million pounds.
As of January 26, 1996, the Burley Tobacco Growers Cooperative
Association and Burley Stabilization Corporation had in their
inventories 28.0 million pounds of burley tobacco (excluding pre-1994
stocks committed to be purchased by manufacturers and covered by
deferred sales). Accordingly, the adjustment necessary to maintain loan
stocks at the reserve supply level is an increase of 54.4 million
pounds.
The total of the three marketing quota components for the 1996-97
marketing year is 633.8 million pounds. USDA did not use its
discretionary authority to increase or decrease the three-component
total by up to 3 percent because the Secretary determined that the
1996/97 supply would be more than ample at the formula level.
Accordingly, the national marketing quota for the marketing year
beginning October 1, 1996, for burley tobacco is 633.8 million pounds.
In accordance with section 319(c) of the 1938 Act, the Secretary is
authorized to establish a national reserve from the national quota in
an amount equivalent to not more than 1 percent of the national quota
for the purpose of making corrections in farm quotas to adjust for
inequities and establish quotas for new farms. The Secretary has
determined that a national reserve for the 1996 crop of burley tobacco
of 2,429,000 pounds is adequate for these purposes.
Price Support
Price support is required to be made available for each crop of a
kind of tobacco for which quotas are in effect, or for which marketing
quotas have not been disapproved by producers, at a level determined in
accordance with a formula prescribed in section 106 of the 1949 Act.
With respect to the 1996 crop of burley tobacco, the level of
support is determined in accordance with sections 106 (d) and (f) of
the 1949 Act. Section 106(f)(7)(A) of the 1949 Act provides that the
level of support for the 1996 crop of burley tobacco shall be:
(1) The level, in cents per pound, at which the 1995 crop of burley
tobacco was supported, plus or minus, respectively,
(2) An adjustment of not less than 65 percent nor more than 100
percent of the total, as determined by the Secretary after taking into
consideration the supply of the kind of tobacco involved in relation to
demand, of:
(A) 66.7 percent of the amount by which:
(I) The average price received by producers for burley tobacco on
the United States auction markets, as
[[Page 50425]]
determined by the Secretary, during the 5 marketing years immediately
preceding the marketing year for which the determination is being made,
excluding the year in which the average price was the highest and the
year in which the average price was the lowest in such period, is
greater or less than:
(II) The average price received by producers for burley tobacco on
the United States auction markets, as determined by the Secretary,
during the 5 marketing years immediately preceding the marketing year
prior to the marketing year for which the determination is being made,
excluding the year in which the average price was the highest and the
year in which the average price was the lowest in such period; and
(B) 33.3 percent of the change, expressed as a cost per pound of
tobacco, in the index of prices paid by the tobacco producers from
January 1 to December 31 of the calendar year immediately preceding the
year in which the determination is made.
The difference between the two 5-year averages (i.e., the
difference between (A) (I) and (II)) is 1.8 cents per pound. The
difference in the cost index from January 1 to December 31, 1995, is
1.8 cents per pound. Applying these components to the price support
formula (1.8 cents per pound, two-thirds weight; 1.8 cents per pound,
one-third weight) results in a weighted total of 1.8 cents per pound.
As indicated, section 106 provides that the Secretary may, on the basis
of supply and demand conditions, limit the change in the price support
level to no less than 65 percent of that amount. In order to remain
competitive in foreign and domestic markets, the Secretary used his
discretion to limit the increase to 65 percent of the maximum allowable
increase. Accordingly, the 1996 crop of burley tobacco will be
supported at 173.7 cents per pound, 1.2 cents higher than in 1995.
List of Subjects
7 CFR Part 723
Acreage allotments, marketing quotas, penalties, reporting and
recordkeeping requirements, tobacco.
7 CFR Part 1464
Loan programs--agriculture, price support programs, tobacco,
reporting and recordkeeping requirements, warehouses.
Accordingly, 7 CFR parts 723 and 1464 are amended as follows:
PART 723--TOBACCO
1. The authority citation for 7 CFR part 723 continues to read as
follows:
Authority: 7 U.S.C. 1301, 1311-1314, 1314-1, 1314b, 1314b-1,
1314b-2, 1314c, 1314d, 1314e, 1314f, 1314i, 1315, 1316, 1362, 1363,
1372-75, 1421, 1445-1, and 1445-2.
2. Section 723.112 is amended by adding paragraph (d) to read as
follows:
Sec. 723.112 Burley (type 31) tobacco.
* * * * *
(d) The 1996 crop national marketing quota is 633.8 million pounds.
PART 1464--TOBACCO
3. The authority citation for 7 CFR part 1464 continues to read as
follows:
Authority: 7 U.S.C. 1421, 1423, 1441, 1445, 1445-1 and 1445-2;
15 U.S.C. 714b and 714c.
4. Section 1464.19 is amended by adding paragraph (d) to read as
follows:
Sec. 1464.19 Burley (type 31) tobacco.
* * * * *
(d) The 1996 crop national price support level is 173.7 cents per
pound.
Signed at Washington, DC, on September 17, 1996.
Bruce R. Weber,
Administrator, Farm Service Agency and Executive Vice President,
Commodity Credit Corporation.
[FR Doc. 96-24669 Filed 9-25-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-24663 Regulations Issued Under the Export Apple and Pear Act; Relaxation of Grade Requirements for Apples and Pears Shipped to Pacific Ports of Russia
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50421-50423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24663]
========================================================================
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. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50421]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 33
[Docket No. FV-96-33-1 IFR]
Regulations Issued Under the Export Apple and Pear Act;
Relaxation of Grade Requirements for Apples and Pears Shipped to
Pacific Ports of Russia
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This document relaxes the minimum grade requirements issued
under the Export Apple and Pear Act for U.S.-grown apples and pears
shipped to Pacific ports of Russia. Container marking provisions also
are relaxed for such shipments. These changes are designed to develop
Eastern Russia as an export market for apples and pears. This rule was
recommended by the Northwest Horticultural Council (Council), an
organization representing the Northwest fruit industry.
DATES: Effective September 27, 1996. Comments must be received by
October 28, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, Room 2525-S, PO Box
96456, Washington, DC 20090-6456, Fax # (202) 720-5698. All comments
should reference the docket number and the date and page number of this
issue of the Federal Register and will be made available for public
inspection in the Office of the Docket Clerk during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Dennis L. West, Marketing Specialist,
Northwest Marketing Field Office, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, 1220 SW Third Avenue,
room 369, Portland, Oregon 97204-2807; telephone: (503) 326-2724, Fax #
(503) 326-7440; or William R. Addington, Marketing Specialist,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, PO Box 96456, room 2523-S, Washington, DC 20090-6456;
telephone: (202) 720-2412, Fax # (202) 720-5698. Small businesses may
request information on compliance with this regulation by contacting:
Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, PO Box 96456, room 2523-S, Washington, DC 20090-
6456; telephone: (202) 720-2491, Fax # (202) 720-5698.
SUPPLEMENTARY INFORMATION: This interim final rule is issued under
authority of the Export Apple and Pear Act, as amended, (7 U.S.C. 581-
590), hereinafter referred to as the ``Act.'' This rule will amend
``Regulations Issued Under Authority of the Export Apple and Pear Act''
(7 CFR part 33).
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of this rule.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities. The purpose of the
RFA is to fit regulatory actions to the scale of business subject to
such actions in order that small businesses will not be unduly or
disproportionately burdened.
The Act and regulations effective thereunder apply to exporters and
export carriers of apples and pears. In the United States, there are
approximately 450 firms which pack and export apples and 300 firms
which pack and export pears that are potentially subject to regulations
under the authority of the Act. Small agricultural service firms, which
include firms that pack and export apples and pears, have been defined
by the Small Business Administration (13 CFR 121.601) as those having
annual receipts of less than $5,000,000. The majority of apple and pear
exporters regulated under the Act may be classified as small entities.
This interim final rule invites comments on changes to the regulations
currently issued under the Act. This rule relaxes the minimum grade
requirements issued under the Act for U.S.-grown apples and pears only
shipped to Pacific ports of Russia. Container marking provisions also
are relaxed for such shipments. This rule will provide all exporters
additional flexibility in marketing apples and pears of different
grades and quality in Russian port cities and areas along the Pacific
Ocean. These changes are designed to develop export markets for apples
and pears in these areas. This rule does not preclude shipments of
apples and pears of higher than the minimum quality from being shipped
to Russian Pacific ports. This should benefit both large and small
exporters of apples and pears. Therefore, the AMS has determined that
this action will not have a significant economic impact on a
substantial number of small entities. Interested persons are invited to
submit information on the regulatory and informational impacts of this
action on small businesses.
Section 33.10 of the ``Regulations Issued Under Authority of the
Export Apple and Pear Act'' establishes minimum grade and container
marking requirements for export shipments of apples and pears.
Currently, export shipments of apples must meet a minimum grade of U.S.
No. 1 or U.S. No. 1 Early as specified in the United States Standards
for Apples (7 CFR part 51, Secs. 51.300-51.323). Exports of summer and
fall pears must meet a minimum grade of U.S. No. 2 as specified in the
United States Standards for Summer and Fall Pears (7 CFR part 51,
Secs. 51.1260-51.1280). Exports of winter pears also must meet the
minimum grade of U.S. No. 2 as specified in the United States Standards
for Winter Pears (7 CFR part 51, Secs. 51.1300-51.1323). Additional
restrictions for apple maggot and San Jose scale apply to both apples
and pears.
[[Page 50422]]
This rule reduces the minimum grade requirements as follows.
The minimum grade for fresh apples exported to Russian Pacific
ports is reduced to U.S. Utility grade (7 CFR part 51, Sec. 51.303) or
U.S. No. 1 Hail (7 CFR part 51, Sec. 51.302(b)) for apples damaged by
hail.
The minimum requirements for summer and fall pears exported to
Russian Pacific ports are listed in the regulatory text of this
regulation. The requirements provide that the pears should be of one
variety that are mature, hand picked, clean, sound and free from hard-
end; and free from serious damage caused by broken skin, insects,
disease, hail marks, limbrubs, heavy russet, or other means; and shall
not be so excessively elongated or flattened as to preclude the cutting
of one good half. The requirements also include necessary definitions
and explanations of some provisions and a list of tolerances which are
applied to each lot at the time of packing.
Finally, the minimum requirements for winter pears exported to
Russian Pacific ports also are listed in the regulatory text of this
regulation. The requirements provide that the pears be of one variety
which are mature, hand picked, clean, sound, not very seriously
misshapen, free from black end, free from damage caused by hard end,
broken skins, and free from serious damage caused by cork spot or
bruises. ``Very seriously misshapen'' means that the pear is
excessively flattened, elongated for the variety, or is constricted or
deformed so it will not cut one good half or two fairly uniform
quarters. The requirements also include necessary definitions and
explanations of some provisions and a list of tolerances which are
applied to each lot at the time of packing.
Handlers may ship apples and pears of higher grade quality than the
minimum requirements established in this regulation.
Paragraph (d)(3) of Sec. 33.10 Minimum requirements of the
implementing regulations provides that each package of apples and pears
be marked plainly and conspicuously with the name of the U.S. grade or
the name of a State grade applicable to the product being exported.
However, the new minimum requirement for pears is not equivalent to a
U.S. grade, as required by paragraph (d)(3) and, thus, cannot be marked
on containers. Therefore the Department has determined that the marking
requirements of paragraph (d)(3) should not apply to shipments of pears
shipped to Pacific ports of Russia meeting minimum quality
requirements. This regulation adds a proviso to paragraph (d)(3).
Apples shipped according to the minimum grade standard in this
regulation are not exempt from the grade marking provisions and must be
properly marked pursuant to paragraph (d).
The additional restrictions for apple maggot and San Jose scale
continue to apply to apples and pears shipped to any foreign
destination.
The Council, an organization that represents a substantial portion
of the fruit industry in the Northwest States of Oregon, Washington,
and Idaho, recommended these changes in the current export regulations.
The Council advises that a change in requirements is needed to
develop export markets for apples and pears to Pacific ports of Russia.
According to the Council, exporters indicate that there is a demand in
this relatively new export market of Eastern Russia for apples and
pears of a lower grade than the current requirements allow. This change
is expected to increase sales opportunities in a market willing to
accept apples and pears that are lower in overall quality and less
uniform in appearance than most export markets will accept.
The Council reports that weather and growing conditions are
expected to adversely affect the appearance and quality of a
significant portion of the 1996 pear crop. The Council believes this
change will facilitate market development efforts for apples and pears
to Pacific ports of Russia. Apples and pears which are not shipped for
fresh consumption in either domestic or foreign markets are usually
disposed of in processing outlets, such as juice. Processing outlets
are not normally as profitable as fresh market outlets.
The Council and other industry groups conduct periodic meetings and
consider recommendations for modification, suspension, or termination
of the regulatory requirements under the Act. These meetings are open
to the public, and interested persons are given an opportunity to
express their views. The Department reviews recommendations and
information submitted by these and other industry groups as well as
other available information and determines whether such modification,
suspension, or termination of the regulatory requirements would tend to
effectuate the purposes of the Act.
After consideration of all relevant material presented, including
the Council's recommendation, and other available information, it is
found that this interim final rule, as hereinafter set forth, will tend
to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of the rule until 30 days after publication in the Federal Register
because: (1) This rule relaxes the current grade requirements for
apples and pears shipped to Pacific ports of Russia; (2) exporters have
indicated that sales opportunities exist in Eastern Russia and that
they would like to take advantage of these opportunities as soon as
possible; (3) apples and pears are shipped throughout the year, and
this rule should be in effect promptly so exporters can make marketing
plans; and (4) this rule provides a 30-day comment period and any
comments received will be considered prior to finalization of this
rule.
List of Subjects in 7 CFR Part 33
Administrative practice and procedure, Exports, Apples, Pears,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 33 is amended
as follows:
PART 33--EXPORT APPLES AND PEARS
1. The authority citation for 7 CFR part 33 continues to read as
follows:
Authority: Sec. 7, 48 Stat. 124; 7 U.S.C. 587.
2. In Sec. 33.10, paragraph (a), (b), and (d) are revised to read
as follows:
Sec. 33.10 Minimum requirements.
* * * * *
(a) Apples grade at least U.S. No. 1 or U.S. No. 1 Early: Provided,
That apples for export to Pacific ports of Russia shall grade at least
U.S. Utility or U.S. No. 1 Hail for hail-damaged apples, as specified
in the United States Standards for Apples (Secs. 51.300-51.323 of this
chapter): Provided further, That apples for export to any foreign
destination do not contain apple maggot, and do not have more than 2
percent, by count, of apples with apple maggot injury, nor more than 2
percent, by count, of apples infested with San Jose scale or scale of
similar appearance;
(b) Pears grade at least U.S. No. 2 as specified in the United
States Standards for Summer and Fall Pears, such as Bartlett, Hardy,
and other similar varieties (Secs. 51.1260-51.1280 of this chapter), or
in the United States Standards for Winter Pears, such as Anjou, Bosc,
Comice, and other similar
[[Page 50423]]
varieties (Secs. 51.1300-51.1323 of this chapter), do not contain apple
maggot, and do not have more than 2 percent, by count, of apples with
apple maggot injury, nor more than 2 percent, by count, of apples
infested with San Jose scale or scale of similar appearance: Provided,
That the minimum quality requirements for pears exported to Pacific
ports of Russia are as follows:
(1) Summer and fall pears shall be of one variety which are mature,
hand picked, clean, sound and free from hard-end; and free from serious
damage caused by broken skin, insects, disease, hail marks, limbrubs,
heavy russet, or other means; and shall not be so excessively elongated
or flattened as to preclude the cutting of one good half. Broken skin
must not exceed 1/4 inch in diameter. The following definitions shall
apply to all varieties:
Clean means reasonably free from dust, dirt, or honey dew.
Free from serious damage means defects when taken singly or
collectively shall not seriously affect the edible or culinary value of
the fruit.
Hand picked means that pears do not show evidence of rough handling
or of having been on the ground.
Hard-end means pears which show an abnormally yellow or green color
at the blossom end or an abnormally smooth rounded base with little or
no depression at the calyx, or if the flesh near the calyx is
abnormally dry and tough or woody. Pears affected by hard-end shall be
considered defects. Rat-tail shaped pears, or second bloom pears that
are tough or ridged shall be considered defects. At the time of
packing, not more than 10 percent, by count, of any lot may be below
the requirements of the grade, and not more than one-tenth of this
amount shall be allowed for decay and/or breakdown. Slight
imperfections which are not discernible in good commercial sorting
practice shall not be considered as defects. Small inconspicuous skin
breaks of less than 1/8 inch in diameter or depth shall not be
considered as damage, and not more than 15 percent of the pears in any
container may have not more than one skin break from 1/8 inch to 3/16
inch, inclusive, in diameter or depth. After pears have been placed in
storage, or in transit; scald, breakdown, decay, bitter pit, or
physical injury affecting keeping quality, which may have developed or
may only have become evident after pears are packed, are defined as
applying to condition rather than to grade. Pears also shall not
contain apple maggot, and shall not have more than 2 percent, by count,
of pears with apple maggot injury, nor more than 2 percent, by count,
of pears infested with San Jose scale or scale of similar appearance;
Mature means having reached the stage of maturity which will insure
a proper completion of the ripening process. Firmness of the flesh
shall be considered only in connection with other factors to determine
the degree of maturity. Sound means that pears at time of packing are
free from visible defects such as decay, breakdown, scald, bitter pit,
or physical injury affecting keeping quality. The following conditions
shall not be considered serious damage: healed insect depressions or
other surface blemishes which do not prevent the cutting of one good
half;
(2) Winter pears shall be of one variety which are mature, hand
picked, clean, sound, not very seriously misshapen, free from black
end, free from damage caused by hard end, broken skins, and from
serious damage caused by cork spot or bruises. The following
definitions shall apply to all varieties:
Black end is evidenced by an abnormally deep green color around the
calyx, or black spots usually occurring on one-third of the surface
nearest to the calyx, or by an abnormally shallow calyx cavity.
Clean means free from excessive dirt, dust, spray residue, or other
foreign material.
Damage by hard end means any injury or defect which materially
affects the appearance, edible or shipping quality. Any pear with one
skin break larger than \3/16\ inch in diameter or depth, or with more
than one skin break \1/8\ inch or larger in diameter or depth, shall be
considered damaged, and scored against the grade tolerance.
Handpicked means that the pears do not show evidence of having been
on the ground.
Hard end is an abnormal yellow color at the blossom end, or an
abnormally smooth, rounded base with little or no depression at the
calyx, or if the flesh near the calyx is abnormally dry and tough or
woody.
Mature means that the pear has reached the stage of maturity which
will insure the proper completion of the ripening process.
Overripe means dead ripe, very mealy or soft, past commercial
utility.
Serious damage by cork spot is when more than two cork spots are
visible externally, or when the visible external injury affects an
aggregate area of more than \1/2\ inch in diameter. Serious damage by
bruising is bruising which seriously affects the appearance, edible or
shipping quality. For a tolerance of 10 percent or more, individual
packages in any lot may contain not more than one and one-half times
the tolerance specified, except that when the package contains 15
specimens or less, individual packages may contain not more than double
the tolerance specified. For a tolerance of less than 10 percent,
individual packages in any lot may contain not more than double the
tolerance specified, provided at least one specimen which does not meet
the requirements shall be allowed in any one package. Pears also shall
not contain apple maggot, and shall not have more than 2 percent, by
count, of pears with apple maggot injury, nor more than 2 percent, by
count, of pears infested with San Jose scale or scale of similar
appearance;
* * * * *
(d) Each package of apples or pears is marked plainly and
conspicuously with:
(1) the name and address of the grower, packer, or domestic
distributor: Provided, That the name of the foreign distributor may be
placed on consumer unit packages shipped in a master container if such
master container is marked with the name and address of the grower,
packer, or domestic distributor;
(2) the variety of the apples or pears;
(3) the name of the U.S. grade or the name of a state grade if the
fruit meets each minimum requirement of a U.S. grade specified in this
section; and Provided further, That the marking requirements of this
paragraph shall not apply to pears meeting minimum quality requirements
of this section and shipped to Pacific ports of Russia.
Dated: September 20, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-24663 Filed 9-25-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-24642 Amendment of Class E Airspace; Prescott, AZ
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50426-50427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24642]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 96-AWP-17]
Amendment of Class E Airspace; Prescott, AZ
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends the Class E airspace area at Prescott, AZ.
The development of a Global Positioning System (GPS) Standard
Instrument Approach Procedure (SIAP) to Runways (RWYs) 12/21L has made
this action necessary. The intended effect of this action is to provide
adequate controlled airspace for Instrument Flight Rules (IFR)
operations at Ernest A. Love Field, Prescott, AZ.
EFFECTIVE DATE: 0901 UTC December 5, 1996.
FOR FURTHER INFORMATION CONTACT:
William Buck, Airspace Specialist, Operations Branch, AWP-530, Air
Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California 90261,
telephone (310) 725-6556.
SUPPLEMENTARY INFORMATION:
History
On July 29, 1996, the FAA proposed to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) by amending the Class E airspace
area at Prescott, AZ (61 FR 39369). This action will provide adequate
controlled airspace to accommodate a GPS SIAP to RWYs 12/21L at Ernest
A. Love Field, Prescott, AZ.
Interested parties were invited to participate in this rulemaking
proceeding by submitting written comments on the proposal to the FAA.
No comments to the proposal were received. Class E airspace
designations are published in paragraph 6005 of FAA Order 7400.9D dated
September 4, 1996, and effective September 16, 1996, which is
incorporated by reference in 14 CFR 71.1. The Class E airspace
designations listed in this document will be published subsequently in
this Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulations (14
CFR part 71) amends the Class E airspace area at Prescott, AZ. The
development of a GPS SIAP to RWYs 12/21L has made this action
necessary. The effect of this action will provide adequate airspace for
aircraft executing the GPS RWYs 12/21L SIAP at Ernest A. Love Field,
Prescott, AZ.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation--(1) is not a ``significant regulation
action'' under Executive Order 12866; (2) is not a ``significant rule''
under DOT Regulatory Policies and Procedures (44 FR 10034; February 26,
1979); an (3) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air)
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9D, Airspace Designations and
Reporting Points, dated September 4, 1996, and effective
[[Page 50427]]
September 16, 1996, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AWP AZ E5 Prescott, AZ [Revised]
Ernest A. Love Field, AZ
(Lat. 34 deg.39'06'' N, long. 112 deg.25'18'' W)
Drake VORTAC
(Lat. 34 deg.42'09'' N, long. 112 deg.28'49'' W)
That airspace extending upward from 700 feet above the surface
within a 6-mile radius of the Ernest A. Love Field and within 2.6
miles each side of Drake VORTAC 318 deg. radial extending from the
6-mile radius to 7.5 miles northwest of the Drake VORTAC and within
4.3 miles northwest and 3 miles southeast of the Runway 21 localizer
extending from the 6-mile radius to 8.7 miles northeast of Earnest
A. Love Field. That airspace extending upward from 1,200 feet above
the surface within a 18.2-mile radius of the Drake VORTAC, extending
clockwise from a line 4.3 miles south of and parallel to the Drake
VORTAC 252 deg. radial to a line 4 miles northwest of and parallel
to Drake VORTAC 318 deg. radial and within a 24-mile radius of the
Drake VORTAC, extending clockwise from a line 4 miles northeast of
and parallel to the Drake VORTAC 318 deg. radial to a line 4 miles
west of and parallel to the Drake VORTAC 003 deg. radial and with a
18.2-mile radius of Drake VORTAC, extending clockwise from a line 4
miles west of and parallel to the Drake VORTAC 003 deg. radial to a
line 4.3 miles west of and parallel to the Drake VORTAC 159 deg.
radial and within a 12.2-mile radius of Drake VORTAC, extending
clockwise from a line 4.3 miles west of and parallel to the Drake
VORTAC 159 deg. radial to a line 4.3 miles south of and parallel to
the Drake VORTAC 252 deg. radial.
* * * * *
Issued in Los Angeles, California, on September 12, 1996.
Leonard A. Mobley,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-24642 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-24641 Special Local Regulations for Marine Events; 18th Annual Wilmington Family YMCA-PHP Triathlon, Wrightsville Channel, Wrightsville Beach, NC
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Page 50436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24641]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD 05-96-042]
RIN 2115-AA97
Special Local Regulations for Marine Events; 18th Annual
Wilmington Family YMCA-PHP Triathlon, Wrightsville Channel,
Wrightsville Beach, NC
AGENCY: Coast Guard, DOT.
ACTION: Notice of implementation.
-----------------------------------------------------------------------
SUMMARY: This notice implements the regulations for the swim portion of
the 18th Annual Wilmington YMCA-Physicians Health Plan Triathlon, to be
held in Wrightsville Channel between daybeacon 18 (LLNR 28050) and
daybeacon 23 (LLNR 28065). These Special Local Regulations are needed
to control vessel traffic within the immediate vicinity of the event
due to the confined nature of the waterway. The effect will be to
restrict vessel traffic within the regulated area for the safety of the
participants in the event.
EFFECTIVE DATES: 33 CFR 100.513 is effective from 6 a.m. to 9:45 a.m.,
September 29, 1996.
FOR FURTHER INFORMATION CONTACT:
QMC C. Bush, marine events coordinator, Commander, Coast Guard Group
Fort Macon, PO Box 237, Atlantic Beach, NC 28512-0237, (919) 247-4554.
DISCUSSION OF REGULATIONS: The Wilmington Family YMCA will hold the
swim portion of the 18th Annual Wilmington Family YMCA-Physicians
Health Plan Triathlon at Wrightsville Beach, North Carolina. The event
will consist of approximately 700 swimmers racing in a section of
Wrightsville Channel between Wrightsville Channel daybeacon 18 (LLNR
28050) and Wrightsville Channel daybeacon 23 (LLNR 28065). Therefore,
to ensure the safety of the swimmers, 33 CFR 100.513 will be in effect
for the duration of the event. Under provisions of 33 CFR 100.513, a
vessel may not enter the area between daybeacons 14 and 25 without
permission from the Coast Guard patrol commander. Since the waterway
will not be closed for an extended period, commercial traffic should
not be severely disrupted.
Dated: June 24, 1996.
Kent H. Williams,
Vice Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 96-24641 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-24602 Withdrawal of Pesticide Tolerance Revocations
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50684-50685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24602]
[[Page 50683]]
_______________________________________________________________________
Part IX
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 180, et al.
Withdrawal of Pesticide Tolerance Revocations; Final Rule and Proposed
Rule
Federal Register / Vol. 61, No. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50684]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 185
[OPP-300438; FRL-5397-4]
RIN 2070-AC55
Withdrawal of Pesticide Tolerance Revocations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Rule.
-----------------------------------------------------------------------
SUMMARY: EPA is withdrawing final rules revoking 17 processed food
tolerances. The Agency is withdrawing these revocations because they
were based on two provisions of the Federal Food, Drug and Cosmetic Act
that no longer are applicable to pesticide residues in food,
specifically the Delaney clause and the ``ready-to-eat'' provision.
Since the enactment of the Food Quality Protection Act, the basis for
these revocations no longer exists as a matter of law. Accordingly, EPA
is withdrawing these final rules.
EFFECTIVE DATE: This rule is effective September 26, 1996.
FOR FURTHER INFORMATION CONTACT: By mail: Niloufar Nazmi-Glosson,
Special Review Branch, (7508W), Environmental Protection Agency, 401 M
St., SW., Washington, DC 20460; telephone number: (703) 308-8028. e-
mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Background
The Federal Food, Drug and Cosmetic Act (FFDCA) (21 U.S.C. 301 et
seq.) authorizes the establishment of maximum permissible levels of
pesticides in foods, which are referred to as ``tolerances'' (21 U.S.C.
346a). Without such a tolerance or an exemption from a tolerance, a
food containing a pesticide residue is ``adulterated'' under section
402 of the FFDCA and may not be legally moved in interstate commerce
(21 U.S.C. 342). Monitoring and enforcement of pesticide residues are
carried out by the U.S. Food and Drug Administration and the U.S.
Department of Agriculture.
The FFDCA's provisions governing pesticides were significantly
amended on August 3, 1996 by the enactment of the Food Quality
Protection Act of 1996 (FQPA) (Pub. L. 104-170, 110 Stat. 1489). The
FQPA amendments were effective immediately.
Among other things, the FQPA amends the FFDCA to bring all EPA
pesticide tolerance-setting activities under a single section of the
statute -- section 408 -- and added a new safety standard and new
procedures in that section. Previously, regulatory authority over
pesticides in the FFDCA had been divided between sections 408 and 409.
The division of pesticides between sections 408 and 409 had been the
subject of some controversy because of the differing safety standards
in the two sections. Of particular significance was the inclusion in
section 409, but not section 408, of the Delaney anti-cancer clause.
The FQPA converted all existing section 409 tolerances for pesticide
residues in processed food into section 408 tolerances. 21 U.S.C.
346a(j).
The FQPA also amended the so-called ``flow-through'' provision in
section 402(a)(2) that governed whether tolerances for pesticide
residues in raw agricultural commodities apply to pesticide residues in
processed foods. Before being amended, the FFDCA had specified that a
pesticide residue in a processed food would not render that food
adulterated if, among other things, the level of the residue in the
processed food ``when ready to eat'' is below the tolerance level for
the pesticide in the precursor raw agricultural commodity. The FQPA
maintained this flow-through concept that raw agricultural commodity
tolerances would apply to pesticides in processed food but modified
existing law by dropping the requirement that the level of residue in
the processed food be evaluated at the ready-to-eat stage. 21 U.S.C.
346a(a)(2)(A).
II. Regulatory Background
In response to the decision in Les v. Reilly, 968 F.2d 985 (9th
Cir.), cert. denied, 113 S.Ct. 1361 (1993), in which the U.S. Court of
Appeals, Ninth Circuit held there was no de minimis exception to the
Delaney clause, EPA began to initiate revocation actions against those
existing section 409 tolerances which were inconsistent with the
Delaney clause.
Further, on February 9, 1995, EPA entered into a court-approved
consent decree in which EPA agreed to a timetable for deciding whether
to revoke an extensive list of section 408 and 409 tolerances. Under
the consent decree, EPA has taken a number of revocation actions. In
the case of final revocations, many tolerances remain in effect because
either EPA has delayed the effective date to allow for the filing of
objections and hearing requests and to consider stay requests or EPA or
a court has granted requests for stays of the effective date of
revocation.
III. Today's Action
EPA is today withdrawing a total of 17 revocations issued in 5
separate actions. The tables in Unit IV of this notice list the
specific tolerance revocations in those five actions that are being
withdrawn. Revocations in those actions not listed in the table are not
affected.
1. Benomyl on tomato products and raisins. This final revocation
of section 409 tolerances (June 30, 1994, 59 FR 33685; July 14, 1993,
58 FR 37862) was stayed by the D.C. Court of Appeals and the Agency
reinstated the tolerances on September 12, 1994 (59 FR 46769). EPA is
withdrawing the revocations of the tolerances on tomato products and
raisins. Because EPA's reinstatement rule restablished the tomato
products and raisin tolerances in full force, no amendment to the Code
of Federal Regulations is ncessary inconjunction with the withdrawal of
these revocations.
2. Dichlorvos in bagged and packaged processed foods. This final
revocation of the section 409 tolerance (November 10, 1993, 58 FR
59663) was stayed by EPA on March 11, 1994 (59 FR 11556). EPA styled
this revocation as a revision to the tolerance because the revocation
had a delayed effective date. EPA is withdrawing that revision.
3. Dicofol on dried tea. This final revocation of the section 409
tolerance for dicofol (March 9, 1994, 59 FR 10993) was stayed by EPA on
May 9, 1994 (59 FR 23799). EPA is withdrawing this revocation.
4. March 1996 revocations. This group consists of final revocations
of 26 section 409 tolerances for 7 pesticides (March 22, 1996, 61 FR
11993)(FRL-5357-7). The revocations of 8 tolerances were stayed by EPA
(May 20, 1996, 61 FR 22153). The remaining revocations became effective
on May 21, 1996. EPA is today withdrawing the revocations of the 8
tolerances for which stays were granted.
5. July 1996 revocations. This group consists of final revocations
of six section 409 tolerances and three section 408 tolerances for four
pesticides (July 29, 1996, 61 FR 39527)(FRL-5388-2). These revocations
are not yet effective. EPA is today withdrawing the revocations of five
section 409 tolerances. The revocations of the remaining section 409
tolerance and the section 408 tolerances will become effective on
October 28, 1996.
EPA is withdrawing 16 of the 17 revocations because they were based
on the Delaney clause in section 409. Under the modified FFDCA,
pesticide residues are no longer governed by
[[Page 50685]]
section 409 or its Delaney clause and all of the section 409 tolerances
which were still in effect on August 3, 1996 were converted to section
408 tolerances. A section 408 processed food tolerance cannot be
revoked on the basis of the Delaney clause in section 409 and thus all
pending revocations premised solely on the Delaney clause are being
withdrawn as lacking any legal basis.
EPA is withdrawing one revocation (imazalil/citrus oil) because it
was based on EPA's conclusion that the tolerance in question is set on
a not ready-to-eat food. EPA had reasoned that once the dilution
associated with final processing of the ready-to-eat food is taken into
account the ready-to-eat food is unlikely to contain residues above the
tolerance for the precursor raw commodity and hence no section 409
tolerance is necessary to prevent the processed food from being deemed
adulterated. Because the FQPA removed the ready-to-eat factor from the
flow-through provision governing the applicability of raw agricultural
commodity tolerances to processed foods, revocations relying on the
dilution which occurs in processing a ready-to-eat food have no basis
in law and are therefore being withdrawn.
In withdrawing these actions, EPA would like to make clear two
points. First, because these revocations concerned legal requirements
no longer applying to pesticides, EPA will not assert a preclusive
effect as to any factual findings regarding such requirements. Second,
today's action should not be interpreted to mean that EPA has made a
``safety finding'' as to the pesticide tolerances in question under the
FFDCA, as amended by the FQPA. EPA will systematically review the
safety of all the tolerances within the next 10 years, as required
under the FQPA.
IV. Specific Revocations Being Withdrawn
The specific actions EPA is withdrawing are presented in the two
tables below.
Table 1 lists section 409 tolerances for which final rules were
issued on Delaney grounds.
Table 1.--Revocations Which Were Based on the Delaney Clause
------------------------------------------------------------------------
Pesticide Commodity 40 CFR Citation
------------------------------------------------------------------------
Acephate........................ food handling 185.100
establishments
Benomyl......................... tomato products, 185.350
raisins
Dichlorvos (DDVP)............... bagged and packaged 185.1900
processed foods
Dicofol......................... dried tea 185.410
Ethylene Oxide.................. ground spices 185.2850
Iprodione....................... dried ginseng, 185.3750
raisins
Mancozeb........................ bran of oats 185.6300
Propargite...................... dried figs, dried 185.5000
tea
Propylene oxide................. cocoa, gums, 185.5150
processed nutmeats
(except peanuts),
processed spices
Triadimefon..................... milled fractions of 185.800
wheat
------------------------------------------------------------------------
Table 2 lists section 409 tolerances for which a final rule was
issued on not ready-to-eat grounds.
Table 2.--Revocation Which Was Based on Not Ready-To-Eat Grounds
------------------------------------------------------------------------
Pesticide Commodity 40 CFR Citation
------------------------------------------------------------------------
Imazalil........................ citrus oil 185.3650
------------------------------------------------------------------------
List of Subjects in Part 185
Environmental protection, Food additives, Pesticides and pests
Dated: September 19, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Accordingly, 40 CFR chapter I, part 185 is amended as follows:
PART 185--[AMENDED]
The authority citation for part 185 continues to read as follows:
Authority: 21 U.S.C. 346a and 371.
Sec. 185.410 [Amendment and Stay Withdrawn]
2. The amendment removing Sec. 185.410, at 59 FR 10997, March 9,
1994 and the subsequent stay of the effective date of that amendment,
at 59 FR 23800, May 9, 1994 are withdrawn.
Sec. 185.1900 [Amendment and Stay Withdrawn]
3. The revision of Sec. 185.1900 at 58 FR 59667, November 10, 1993
and the subsquent stay of that revision at 59 FR 11556, March 11, 1994
are withdrawn.
Sec. 185.2850 [Amendment and Stay Withdrawn]
4. The amendment removing Sec. 185.2850 published at 61 FR 11993,
March 22, 1996, and the subsequent stay at 61 FR 25153, May 20, 1996
are withdrawn.
Secs. 185.5000, 185.5150 and 185.6300 [Amendment Withdrawn]
5. The amendment to the text of Sec. 185.5000, and the amended text
for Secs. 185.5150 and 185.6300, published at 61 FR 25153, May 20, 1996
as a result of a partial stay of the removals published at 61 FR 11993,
March 22, 1996 are confirmed as final.
Secs. 185.100, 185.800, 185.3650, 185.3750 [Amendment Withdrawn]
6. The amendments removing Secs. 185.100, 185.800, 185.3650, and
185.3750, at 61 FR 39542, July 29, 1996 are withdrawn.
[FR Doc. 96-24602 Filed 9-25-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-24598 Publication of Consent Agreements Accepted for Public Comment in the Federal Register
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50430-50431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24598]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Parts 2 and 3
Publication of Consent Agreements Accepted for Public Comment in
the Federal Register
AGENCY: Federal Trade Commission (FTC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission has revised Rule 2.34 and Rule
3.25(f) of its Rules of Practice, 16 CFR 2.34, 3.25(f) (1996), so that
the full text of consent agreements accepted for public comment will no
longer be published in the Federal Register. Instead, a summary of each
such agreement; the Analysis to Aid Public Comment that accompanies
each such agreement; and any Commission or Commissioner statements will
be published in the Federal Register after each such agreement is
placed on the public record. The Commission is not required by statute
to publish the full text of its consent agreements and related
documents in the Federal Register. Moreover, complete versions of these
materials are publicly available--from the Commission's Office of
Public Affairs, on its Internet World Wide Web Home Page (at ``http://
www.ftc.gov/os/actions.htm''), and from its Public Reference Room--
prior to the time they are published in the Federal Register. The
substantial expenditure of public funds required to publish full text
versions of consent agreements in the Federal Register therefore is not
warranted.
EFFECTIVE DATES: These rule amendments are effective on September 26,
1996. Comments may be filed with the Office of the Secretary until
October 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Donald S. Clark, Office of the Secretary, Federal Trade Commission,
Sixth Street and Pennsylvania Avenue N.W., Washington D.C. 20580 (202)
326-2514.
SUPPLEMENTARY INFORMATION: Section 2.34 of the Federal Trade Commission
Rules of Practice, 16 CFR 2.34 (1996), currently provides that when the
Commission accepts for public comment a consent agreement under Part 2
of its Rules of Practice, it ``will publish the agreement, order, and
explanation in the Federal Register.'' Similarly, section 3.25(f) of
the Rules, 16 CFR 3.25(f) (1996), provides that when the Commission
accepts for public comment a consent agreement under Part 3 of its
Rules of Practice, it ``will publish the agreement, order, and
explanation in the Federal Register.'' The Commission also places all
of the documents associated with each Part 2 or Part 3 consent
agreement--including the agreement itself, the complaint, the Analysis
to Aid Public Comment, any separate Commission or Commissioner
statements, and a news release--on the public record. The Commission
makes these documents available to the public in a number of locations,
including its Office of Public Affairs (in both paper and electronic
form), on its Internet World Wide Web Home Page (at ``http://
www.ftc.gov/os/actions/htm'') (in electronic form), and in its Public
Reference Room (in paper form).
The Commission estimates that it can save more than $60,000 each
year by instead printing only the following documents, for each consent
agreement, in the Federal Register: (1) A summary announcing the
commencement of the public comment period and indicating that the full
text of the consent agreement documents is available from the
Commission's Office of Public Affairs, on its Internet Home Page, and
from its Public Reference Room; (2) the analysis to aid public comment;
and (3) any Commission or Commissioner statements. The Commission
believes that this substantial reduction in expenditures can be
effected without any adverse effects on the public comment process. At
the time a particular consent agreement is placed on the public
record--that is, on the date on which the news release
[[Page 50431]]
describing it is issued--members of the public are fully informed both
of the terms of the agreement and of how they can file comments
concerning it. In addition, the news release and all of the consent
agreement documents typically are made public--in both paper and
electronic form--at least one week before the consent agreement and the
analysis appear in the Federal Register. As a result, most individuals
and entities first learn about the consent agreement from the news
release, or from news coverage of the agreement. Any member of this
group who wishes both to comment and to review the full text of the
agreement can request a copy from the Public Reference Room--using the
address and telephone number in the news release--or pick up a copy in
person. Moreover, members of the public can secure an electronic copy
of each consent agreement package from the Commission's Internet Home
Page (at ``http://www.ftc.gov/os/actions.htm'') or from the electronic
bulletin board maintained by the Commission's Office of Public Affairs.
Furthermore, the Federal Register notice announcing the agreement will
continue to provide--through the analysis to aid public comment--a
comprehensive description of both the agreement and the draft
complaint. As a result, Federal Register users will continue to be
informed of both the contours of the agreement and that they can, if
they wish, file comments concerning it. If they need additional detail
from the agreement itself, they can secure electronic copies and/or
paper copies from the above sources.
These rule revisions relate solely to agency practice and, thus,
are not subject to the notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. 553(a)(2), nor to the
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601(2). The
Paperwork Reduction Act, 44 U.S.C. 3501, does not apply because these
revisions do not contain requirements for information collection
subject to approval of the Office of Management and Budget. Although
the rule revisions are effective immediately, the Commission welcomes
comment on them and will consider further revision, as appropriate.
Such comments may be filed with the Office of the Secretary until
October 28, 1996.
List of Subjects in 16 CFR Parts 2 and 3
Administrative practice and procedure.
In consideration of the foregoing, the Commission hereby amends
Title 16, Chapter I, Subchapter A, Parts 2 and 3 of the Code of Federal
Regulations, as follows:
1. The authority for Parts 2 and 3 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721, 15 U.S.C. 46.
2. Section 2.34 is amended so that the third sentence after the
introductory text beginning with ``The Commission * * *'' and ending
with ``* * * Federal Register.'' is revised to read as follows:
Sec. 2.34 Disposition.
* * * * *
* * * The Commission will publish the explanation in the Federal
Register. * * *
3. Section 3.25(f) is amended so that the second sentence in the
concluding text beginning with ``The Commission * * *'' and ending with
``* * * Federal Register.'' is revised to read as follows:
Sec. 3.25 Consent agreement settlements.
* * * * *
(f) * * * The Commission will publish the explanation in the
Federal Register. * * *
* * * * *
By direction of the Commission, Commissioner Azcuenaga
dissenting.
Donald S. Clark,
Secretary.
Dissenting Statement of Commissioner Mary L. Azcuenaga Concerning
Commission Decision To Stop Publishing in the Federal Register the Full
Text of Consent Agreements Accepted for Public Comment
Today the Commission revokes its long held policy of publishing
in the Federal Register the full text of consent agreements accepted
for public comment. Instead, the Commission will publish a summary,
an analysis and any Commission or commissioner statements. In
announcing this decision, the Commission also advises that complete
versions of the consent agreement, including complaints and orders,
will continue to be available from the Commission's Office of Public
Affairs (the press office), the Commission's home page on the World
Wide Web and the Commission's Public Reference Room (the office that
serves the general public). In an ideal world, the attainment of
which is surely very near, these alternative sources should be
sufficient. Unless we can be confident, however, that the other
sources are adequately serving the wide audience that follows the
Commission's actions in the Federal Register, the abandonment of
that means of disseminating information seems premature.
The Commission has a long and admirable tradition of genuine
attentiveness to public comment and of seeking it out even when it
is not required by law to do so. Out of deference to the members of
the public whose interests we serve, many of whom have a keen
interest in and need to know about Commission decisions, I would
have preferred, before dispensing with our current practice, to have
greater reason for confidence in the adequacy of the alternative
sources of the information.
[FR Doc. 96-24598 Filed 9-25-96; 8:45 am]
BILLING CODE 6750-01-M
Complete official Federal Register PDF
FR Doc. 96-24529 Approval and Promulgation of Implementation Plans and Redesignation of Puget Sound, Washington for Air Quality Planning Purposes: Ozone
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50438-50443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24529]
[[Page 50438]]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[WA51-7124a; FRL-5613-3]
Approval and Promulgation of Implementation Plans and
Redesignation of Puget Sound, Washington for Air Quality Planning
Purposes: Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is announcing its determination that the Puget Sound
(parts of King, Pierce, and Snohomish Counties) Ozone Nonattainment
area has attained the public health-based National Ambient Air Quality
Standard (NAAQS) for ozone (O3). This determination is based upon
three years of complete, quality-assured, ambient air monitoring data
for the 1991 to 1993 ozone seasons that demonstrate that the ozone
NAAQS has been attained. The EPA is also approving the redesignation to
attainment of the Puget Sound Area and the associated maintenance plan.
DATES: This action will be effective November 25, 1996 unless adverse
or critical comments are received by October 28, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue,
Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Office of Air
Quality, EPA Region 10, 1200 6th Avenue, Seattle, WA 98101, (206) 553-
6917.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1990, the Clean Air Act Amendments of 1990 (CAA)
were enacted. (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C.
7401-7671q.) Under section 107(d)(1) of the CAA, in conjunction with
the Governor of Washington, EPA designated the Puget Sound Area as
nonattainment because the area violated the ozone standard during the
period from 1989-1991. The Puget Sound Area, which includes lands
within the Puyallup, Tulalip, Muckleshoot, Stillaguamish, and Nisqually
Reservations, was classified as ``marginal'' under section 181(a)(1) of
the CAA.
The Puget Sound Area has ambient monitoring data that show no
violations of the ozone NAAQS during the period from 1991 to the
present. On January 28, 1993 the State of Washington submitted a State
Implementation Plan (SIP) for compliance with the ozone NAAQS. Public
hearings were held respectively in Vancouver, SeaTac, and Spokane on
November 9, 10, and 12, 1992. Also, the State submitted an Ozone
Maintenance Plan and Redesignation Request on March 4, 1996. A public
hearing was held in Seattle on October 26, 1995.
II. Review of the State Submittal
The Puget Sound redesignation request for the nonattainment areas
meets the five requirements of section 107(d)(3)(E) of the CAA for
redesignation to attainment. EPA also finds that information and
requirements provided in the WDOE redesignation request and maintenance
plan for the Puget Sound nonattainment area demonstrate that the
107(d)(3)(E) of the CAA requirements have been met for the affected
tribal lands which include portions of the Stillaguamish Reservation,
Nisqually Reservation, Tulalip Reservation, Puyallup Reservation and
Muckleshoot Reservation. The Agency has not determined whether it is
bound to follow the formal requirements of section 107(d)(3)(E) of the
CAA when taking such redesignation actions for tribal lands. The action
to redesignate tribal lands to attainment is being taken today without
answering that question because information submitted by WDOE satisfies
each required element for redesignation.
The following is a brief description of how each of the
requirements of section 107(d)(3)(E) of the CAA is met. Because the
maintenance plan is a critical element of the redesignation request,
EPA will discuss its evaluation of the maintenance plan under its
analysis of the redesignation request.
A. The Area Must Have Attained the O3 NAAQS
The State of Washington's redesignation request is based on an
analysis of quality assured ambient air quality monitoring data which
is relevant to the maintenance plan and to the redesignation request.
The most recent ambient air quality monitoring data for calendar year
1991 through calendar year 1995 show an expected exceedance rate of
less than 1.0 per year of the ozone NAAQS in the Puget Sound area.
Because the Puget Sound area has complete quality-assured data showing
no violations of the standard over the most recent consecutive three-
calendar-year period, the area has met the first statutory criterion of
attainment of the ozone NAAQS. There are four ambient O3
monitoring stations in the Puget Sound nonattainment area, and the
State of Washington has committed to continue monitoring this area in
accordance with 40 CFR part 58.
B. The Area Has Met All Applicable Requirements Under Section 110, and
Part D of the Act
1. Section 110 Requirements
Although section 110 was amended in 1990 (CAAA or the Act), the
Washington SIP approved by EPA for the ozone marginal nonattainment
areas meets the requirements of amended section 110(a)(2). A number of
the requirements did not change in substance and, therefore, EPA
believes that the pre-amendment SIP met these requirements.
2. Part D Requirements
Before the nonattainment areas may be redesignated to attainment,
they must have fulfilled the applicable requirements of part D of the
CAA. Under part D, an area's classification indicates the requirements
to which it will be subject. Subpart 1 of part D sets forth the basic
nonattainment requirements applicable to all nonattainment areas,
classified as well as non-classifiable. Subpart 2 of part D establishes
additional requirements for O3 nonattainment areas classified
under table 1 of section 181(a).
(a). Subpart 1 of Part D. The State of Washington currently has a
fully approved New Source Review (NSR) program which was last revised
and approved June 2, 1995 (60 FR 28726). Upon redesignation of the
Puget Sound area to attainment, the Prevention of Significant
Deterioration (PSD) provisions contained in part C of title I are
applicable. EPA's PSD regulations in 40 CFR 52.21 will apply to the
Puget Sound area.
Under section 176(c) of the CAA, States were required to submit
revisions to their SIPs that include criteria and procedures to ensure
that Federal actions conform to the air quality planning goals in the
applicable SIPs. The requirement to determine conformity applies to
transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. of the Federal Transit Act
(``transportation conformity''), as well as all other Federal actions
(``general conformity''). Congress provided for the State revisions to
be submitted one year after the date of promulgation of final EPA
conformity regulations. EPA promulgated final transportation conformity
regulations on November 24, 1993 (58 FR 62188) and final general
[[Page 50439]]
conformity regulations on November 30, 1993 (58 FR 63214). These
conformity rules require that the States adopt both transportation and
general conformity provisions in the SIP for areas designated
nonattainment or subject to a maintenance plan approved under CAA
section 175A. Pursuant to 40 CFR Sec. 51.396 of the transportation
conformity rule, the WDOE was required to submit a SIP revision
containing transportation conformity criteria and procedures consistent
with those established in the Federal rule by November 25, 1994.
Similarly, pursuant to 40 CFR 51.851 of the general conformity rule,
the WDOE was required to submit a SIP revision containing general
conformity criteria and procedures consistent with those established in
the Federal rule by December 1, 1994. The WDOE submitted its
transportation conformity SIP revision to EPA on December 1, 1995. This
SIP has not been fully approved by EPA. The WDOE has not submitted its
general conformity SIP revision.
Although this redesignation request was submitted to EPA after the
due dates for the SIP revisions for transportation conformity (58 FR
62188) and general conformity (58 FR 63214) rules, EPA believes it is
reasonable to interpret the conformity requirements as not being
applicable requirements for purposes of evaluating the redesignation
request under section 107(d). The rationale for this is based on a
combination of two factors. First, the requirement to submit SIP
revisions to comply with the conformity provisions of the Act continues
to apply to areas after redesignation to attainment. Therefore, the
State remains obligated to adopt the transportation and general
conformity rules even after redesignation and would risk sanctions for
failure to do so. While redesignation of an area to attainment enables
the area to avoid further compliance with most requirements of section
110 and part D, since those requirements are linked to the
nonattainment status of an area, the conformity requirements apply to
both nonattainment and maintenance areas. Second, the federal
conformity rules require the performance of conformity analyses in the
absence of state-adopted rules. Therefore, a delay in adopting State
rules does not relieve an area from the obligation to implement
conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment, and must implement
conformity under Federal rules if State rules are not yet adopted, EPA
believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
Therefore, EPA has modified its national policy regarding the
interpretation of the provisions of section 107(d)(3)(E) concerning the
applicable requirements for purposes of reviewing an ozone
redesignation request. (See 61 FR 2918, January 30, 1996). Under this
policy, for the reasons just discussed, EPA believes that the ozone
redesignation request for the Puget Sound area may be approved
notwithstanding the lack of submitted and approved state transportation
and general conformity rules.
(b). Subpart 2 of Part D. The CAA was amended on November 15, 1990,
Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q.
EPA was required to classify O3 nonattainment areas according to
the severity of their problem. The Puget Sound area (parts of King,
Pierce, and Snohomish Counties) was designated as marginal O3
nonattainment. Because this area is marginal, the area must meet the
requirements of section 182(a) of the CAA. EPA has analyzed the SIP and
determined that it is consistent with the requirements of amended
section 182. Below is a summary of how the area has met the
requirements of these sections.
(i) Emissions Inventory. The CAA required an inventory of all
actual emissions from all sources, as described in section 172(c)(3) by
November 15, 1992. As part of the redesignation request submitted on
March 4, 1996, WDOE submitted a base year 1993 emission inventory for
the Puget Sound area. With this notice, EPA is approving the base year
inventory for the Puget Sound area.
(ii) Reasonably Available Control Technology (RACT). The CAA also
amended section 182(a)(2)(A), in which Congress statutorily adopted the
requirement that O3 nonattainment areas fix their deficient
Reasonably Available Control Technology (RACT) rules for O3. Areas
designated nonattainment before amendment of the CAA and which retained
that designation and were classified as marginal or above as of
enactment are required to meet the RACT fix-up requirement. The Puget
Sound area was designated nonattainment after 1990, and therefore, this
area is not subject to the RACT fix-up requirement.
(iii) Emissions Statements. The CAA required that the SIP be
revised by November 15, 1992, to require stationary sources of oxides
of nitrogen (NOX) and VOCs to provide the state with a statement
showing actual emissions each year. The WDOE submitted an Emission
Statement program as part of its O3 SIP on January 28, 1993, and
EPA approved the program on November 14, 1994.
C. The Area Has a Fully Approved SIP Under Section 110(k) of the CAA
EPA has determined that Washington has a fully approvable O3
SIP under section 110(k) for the ozone marginal nonattainment areas,
which also meets the applicable requirements of section 110 and part D
as discussed above.
D. The Air Quality Improvement Must Be Permanent and Enforceable
Several control measures have been put into place since the
nonattainment area violated the O3 NAAQS. One control measure is
the improvement in tailpipe emissions associated with the Federal Motor
Vehicle Control Program (FMVCP). This program reduces VOC and NOx
emissions as newer, cleaner vehicles replace older, high emitting
vehicles. Additionally, in 1993 the state expanded and intensified its
vehicle inspection and maintenance (I/M) program. Implementation of
this control measure has led to additional reductions in emissions.
This I/M program meets EPA's low enhanced performance standard.
In association with the emission inventory discussed below, the
State of Washington has demonstrated that actual enforceable emission
reductions are responsible for the recent air quality improvement.
E. The Area Must Have a Fully Approved Maintenance Plan Pursuant to
Section 175A of the CAA
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The plan must demonstrate continued attainment of the applicable NAAQS
for at least ten years after the Administrator approves a redesignation
to attainment. Eight years after the redesignation, the state must
submit a revised maintenance plan which demonstrates attainment for the
ten years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation,
adequate to assure prompt correction of any air quality problems.
In this notice, EPA is approving Washington's maintenance plan for
the Puget Sound marginal nonattainment area because EPA finds that the
submittal meets the requirements of section 175A.
[[Page 50440]]
1. Emissions Inventory--Base Year Inventory
Along with the submittal of the redesignation request and
maintenance plan, Washington submitted comprehensive O3 emission
inventories for the base year and subsequent years for the Puget Sound
area on March 4, 1996. The inventories included biogenic, area,
stationary, and mobile sources using 1993 as the base year for
calculations to demonstrate maintenance. The 1993 inventory is
considered representative of attainment conditions because the NAAQS
was not violated during that year.
The State of Washington submittal contains the detailed inventory
data and summaries by county and source category. This inventory was
compiled in accordance with EPA guidance. A summary of the base year
and projected maintenance year inventories are shown for VOCs and
NOX in the following tables.
2. Demonstration of Maintenance--Projected Inventories
On March 4, 1996, the State of Washington submitted the Central
Puget Sound Ozone Nonattainment Area 1993-2010 Emission Inventory
Projections. Total VOC, NOX, and CO emissions were projected from
the 1993 base year out to 2010. These projected inventories were
prepared in accordance with EPA guidance. Refer to EPA's Technical
Support Document (TSD) (located in docket WA51-7124) prepared for this
notice for more details regarding the projected inventory for the Puget
Sound area.
Puget Sound VOC Emission Inventory Summary
[Tons per summer day]
----------------------------------------------------------------------------------------------------------------
1993
base 1995 1998 2001 2005 2007 2010
year
----------------------------------------------------------------------------------------------------------------
On-road................................... 248.20 222.22 191.42 174.05 165.31 164.00 159.83
Non-road.................................. 136.00 136.00 143.80 142.10 133.10 131.10 131.60
Stationary Area........................... 148.63 118.68 121.47 124.18 128.46 131.20 134.32
Point..................................... 31.49 20.24 20.24 20.24 20.24 20.24 20.24
Biogenic.................................. 291.25 291.25 291.25 291.25 291.25 291.25 291.25
---------------------------------------------------------------------
Totals.............................. 855.57 788.39 768.18 751.82 738.36 737.79 737.24
----------------------------------------------------------------------------------------------------------------
Puget Sound NOX Emission Inventory Summary
[Tons per summer day]
----------------------------------------------------------------------------------------------------------------
1993
base 1995 1998 2001 2005 2007 2010
year
----------------------------------------------------------------------------------------------------------------
On-road................................... 279.30 266.03 245.24 235.91 228.26 223.13 217.67
Non-road.................................. 79.90 80.80 87.50 88.90 91.00 93.10 97.60
Stationary Area........................... 19.26 19.55 18.41 17.61 17.62 17.75 17.85
Point..................................... 24.31 24.31 24.31 24.31 24.31 24.31 24.31
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Totals.............................. 402.77 390.69 375.46 366.73 361.19 358.29 357.43
----------------------------------------------------------------------------------------------------------------
As indicated in the following table, an emissions decrease in VOCs
and NOX in the Puget Sound nonattainment area is projected
throughout the maintenance period. EPA believes that these emissions
projections demonstrate that the Puget Sound nonattainment area will
continue to maintain the O3 NAAQS.
VOC and NOX Projected Emissions Changes (1993-2010)
[In percent]
------------------------------------------------------------------------
VOCs NOX
------------------------------------------------------------------------
Puget Sound....................................... -13.80 -11.25
------------------------------------------------------------------------
3. Verification of Continued Attainment
Continued attainment of the O3 NAAQS in the marginal
nonattainment areas depends, in part, on the State of Washington's
efforts toward tracking indicators of continued attainment during the
maintenance period. On an annual basis the Department of Ecology will
analyze the most recent three consecutive years of ambient ozone data
to verify continued attainment of the NAAQS for ozone. Additionally, a
First Implementation Phase Report will be published in 1998 to
chronicle the results of in-use vehicle emissions projects and research
activities related to the Maintenance Plan.
4. Contingency Plan
The level of VOC and NOX emissions in the nonattainment area
will largely determine its ability to stay in compliance with the
O3 NAAQS in the future. Despite the State of Washington's best
efforts to demonstrate continued compliance with the NAAQS, the ambient
air pollutant concentrations may exceed or violate the NAAQS.
Therefore, the State of Washington has provided contingency measures
with a schedule for implementation in the event of a future O3 air
quality problem. The plan contains two tiers of contingency measures.
The first tier involves improving the existing motor vehicle inspection
and maintenance (I/M) program (within the current statutory authority
of the Department of Ecology) to reduce VOC vehicle emissions. The I/M
improvements will be triggered if the ozone standard is exceeded three
times at any one permanent monitoring site over two consecutive
calendar years, or in the event of a quality assured ozone standard
violation. The measure will be implemented no later than June 15th of
the year following the three exceedances or the violation.
The second tier contingency measure is a mandatory reduction in
gasoline
[[Page 50441]]
volatility, which will decrease the emission of volatile organic
compounds. The measure would be triggered pending a measured ozone
violation. If triggered, the measure would require all gasoline made
available for sale in King, Pierce, and Snohomish Counties between June
15 and September 15 to have a Reid Vapor Pressure (RVP) of 7.8 psi. If
both triggers and hence both contingency measures are activated, the
Ozone Maintenance Plan will be amended to include one or more new
contingency measures.
EPA finds that the contingency measures provided in the State of
Washington's submittal meet the requirements of section 175A(d) of the
CAA.
5. Subsequent Maintenance Plans Revisions
In accordance with section 175A(b) of the CAA, the State of
Washington is required to submit a revised maintenance SIP eight years
after the marginal nonattainment areas redesignate to attainment. Such
a revised SIP will provide for an additional ten years maintenance.
III. Final Action
EPA is approving the Puget Sound nonattainment area's O3
maintenance plan because it meets the requirements of section 175A of
the CAA. The EPA is redesignating the Puget Sound O3 nonattainment
area to attainment for O3 because the State of Washington has
demonstrated compliance with the requirements of section 107(d)(3)(E)
of the CAA for redesignation. In addition, EPA, after consultation with
the affected tribal governments, is redesignating to attainment those
areas in the Puget Sound ozone nonattainment area that are located
within the Tulalip Reservation, the Stilliguamish Reservation, the
Puyallup Reservation, the Nisqually Reservation, and the Muckleshoot
Reservation. The Agency believes that the redesignation requirements
are effectively satisfied here because of information provided by WDOE
and requirements contained in the WDOE SIP and Maintenance Plan.
Additionally, EPA is approving the 1993 base year emission inventory
for the Puget Sound nonattainment area.
The O3 SIP is designed to satisfy the requirements of part D
of the CAA and to provide for attainment and maintenance of the O3
NAAQS. This final redesignation should not be interpreted as
authorizing the State of Washington to delete, alter, or rescind any of
the VOC or NOX emission limitations and restrictions contained in
the approved O3 SIP. Changes to O3 SIP VOC regulations
rendering them less stringent than those contained in the EPA approved
plan cannot be made unless a revised plan for attainment and
maintenance is submitted to and approved by EPA. Unauthorized
relaxations, deletions, and changes could result in both a finding of
non-implementation (section 179(b) of the CAA) and in a SIP deficiency
call made pursuant to section 110(a)(2)(H) of the CAA.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 25, 1996 unless, by October 28, 1996, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective November 25, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
IV. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. versus E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. I
certify that the approval of the redesignation request will not affect
a substantial number of small entities.
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a
[[Page 50442]]
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action approves pre-existing
requirements under State or local law, and imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 25, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2), 42 U.S.C.
7607(b)(2).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Ozone, Volatile organic
compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Note: Incorporation by reference of the Implementation Plan for
the State of Washington was approved by the Director of the Office
of Federal Register on July 1, 1982.
Dated: September 16, 1996.
Chuck Clarke,
Regional Administrator.
Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(66) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(66) On March 4, 1996 the Director of WDOE submitted to the
Regional Administrator of EPA a revision to the Ozone State
Implementation Plan for the Puget Sound area requesting the Puget Sound
Nonattainment Area be reclassified to attainment and containing a
maintenance plan that demonstrates continued attainment of the NAAQS
for ozone. The emission inventory projections are included in the
maintenance plan.
(i) Incorporation by reference.
(A) Letter submitted on March 4, 1996 from the Washington State
Department of Ecology requesting the redesignation and submitting the
maintenance plan; Central Puget Sound Region Redesignation Request and
Maintenance Plan for the National Ambient Ozone Standard adopted on
Febuary 6, 1996.
(ii) Additional material.
(A) Appendices to the Central Puget Sound Region Redesignation
Request and Maintenance Plan for the National Ambient Ozone Standard,
November 1995: Appendix A, Technical Analysis Protocol; Appendix B,
Ozone Air Quality Monitoring Site Network; Appendix C, Ambient Ozone
Monitoring Data; Appendix D, Historical and Projected Puget Sound
Region VMT and Employment; Appendix E, 1993-2010 Emission Inventory
Projection; Appendix F, Transportation Conformity Process; Appendix G,
Outline of Puget Sound Tropospheric Ozone Research Plan; and Appendix
H, Prospective Vehicle Inspection and Maintenance (Vehicle I/M) Program
Evaluation Outline.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.348, the table for ``Washington-Ozone'' is amended by
revising the entry for Seattle-Tacoma Area to read as follows:
Sec. 81.348 Washington.
* * * * *
Washington--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Seattle-Tacoma Area:
[[Page 50443]]
The following boundary includes [Insert date 60 days from Attainment
all of Pierce County, and all date of publication]
of King County except a small
portion on the north-east
corner and the western portion
of Snohomish County: Starting
at the mouth of the Nisqually
river extend northwesterly
along the Pierce County line to
the southernmost point of the
west couty line of King County;
thence northerly along the
county line to the southermost
point of the west county ling
of Snohomish County; thence
northerly along the county line
to the intersection with SR
532; thence easterly along the
north line of SR 532 to the
intersection of I-5, continuing
east along the same road now
identified as Henning Rd., to
the intersection with SR 9 at
Bryant; thence continuing
easterly on Bryant East Rd. and
Rock Creek Rd., also identified
as Grandview Rd., approximately
3 miles to the point at which
it is crossed by the existing
BPA electrical transmission
line; thence southeasterly
along the BPA transmission line
approximately 8 miles to point
of the crossing of the south
fork of the Stillaguamish
River; thence continuing in a
southeasterly direction in a
meander line following the bed
of the River to Jordan Road;
southerly along Jordan Road to
the north city limits of
Granite Falls; thence following
the north and east city limits
to 92nd St. N.E. and Menzel
Lake Rd.; thence south-
southeasterly along the Menzel
Lake Rd. and the Lake Roesiger
Rd. a distance of approximately
6 miles to the northernmost
point of Lake Roesiger; thence
southerly along a meander line
following the middle of the
Lake and Roesiger Creek to
Woods Creek; thence southerly
along a meader line following
the bed of the Creek
approximately 6 miles to the
point the Creek is crossed by
the existing BPA electrical
transmission line; thence
easterly along the BPA
transmission line approximately
0.2 miles; thence southerly
along the BPA Chief Joseph-
Covington electrical
transmission line approximately
3 miles to the north line of SR
2; thence southeasterly along
SR 2 to the intersection with
the east county line of King
County; thence south along the
county line to the northernmost
point of the east county line
of Pierce County; thence along
the county line to the point of
beginning at the mouth of the
Nisqually River.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.
[FR Doc. 96-24529 Filed 9-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-24482 National Oil and Hazardous Substance Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50443-50444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24482]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5614-7]
National Oil and Hazardous Substance Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of deletion of the McChord AFB (Wash Rack/Treatment)
site located in Pierce County, Tacoma, Washington, from the National
Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the McChord AFB (Wash Rack/Treatment) site, located in
Pierce County, Tacoma, Washington, from the National Priorities List.
The NPL is Appendix B of 40 CFR part 300 which is the National Oil and
Hazardous Substances Contingency Plan (NCP) which EPA promulgated
pursuant to Section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 as amended (CERCLA). EPA and
the State of Washington have determined that no further cleanup under
CERCLA is appropriate and that the selected remedy has been protective
of public health, welfare and the environment.
EFFECTIVE DATE: September 26, 1996.
FOR FURTHER INFORMATION CONTACT: Kathleen Stryker, Site Manager, U.S.
Environmental Protection Agency, Region 10, 1200 6th Avenue, ECL-115,
Seattle, WA 98101, (206) 553-1171.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is:
McChord AFB (Wash Rack/Treatment), Pierce County, Tacoma, Washington.
A Notice of Intent to Delete for the site was published July 22,
1996 (61 FR 37877). The closing date for comments was August 21, 1996.
McChord Air Force base received three inquiries regarding the
delisting. Responses to these inquiries are documented in a
responsiveness summary which is available in the public information
repositories.
EPA identifies sites which appear to present a significant risk to
public health, welfare and the environment and it maintains the NPL as
the list of those sites. Any site deleted from the NPL remains eligible
for remedial actions in the unlikely event that conditions at the site
warrant such action. Deletion of a site from the NPL does not affect
responsible party liability or impede Agency efforts to recover costs
associated with response efforts.
[[Page 50444]]
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control. Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: September 16, 1996.
Chuck Clarke,
Regional Administrator, Region 10.
For the reasons set out in the preamble, 40 CFR part 300 is amended
as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR 1987 Comp., p. 193.
Appendix B--[Amended]
2. Table 2 of Appendix B to part 300 is amended by removing the
site for McChord Air Force Base (Wash Rack/Treat) Tacoma, Washington.
[FR Doc. 96-24482 Filed 9-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-24398 Performance-Oriented Packaging Standards; Final Transitional Provisions
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50616-50629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24398]
[[Page 50615]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171, et al.
Performance-Oriented Packaging Standards; Final Transitional
Provisions; Final Rule
Federal Register / Vol. 61, No. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50616]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173, 178
[Docket No. HM-181H; Amdt Nos. 171-147, 172-150, 173-255, 178-117]
RIN 2137-AC66
Performance-Oriented Packaging Standards; Final Transitional
Provisions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: RSPA is incorporating into the Hazardous Materials Regulations
(HMR) a number of changes, based on agency initiative, petitions for
rulemaking and comments received at public meetings, to the
classification of certain hazardous materials which are poisonous by
inhalation and to provisions for the manufacture, use and reuse of
hazardous materials packagings. These regulatory changes are intended
to improve safety, reduce compliance costs for offerors and
transporters of hazardous materials, make the regulations easier to
use, and correct errors.
DATES: Effective date. The effective date of these amendments is
January 1, 1997.
Compliance date. Because the amendments adopted herein generally
clarify and relax certain provisions scheduled to go into effect on
October 1, 1996, RSPA is authorizing immediate voluntary compliance.
However, persons voluntarily complying with these regulations should be
aware that petitions for reconsideration may be received and, as a
result of RSPA's evaluation of those petitions, the amendments adopted
in this final rule could be subject to further revision.
Incorporation by reference. The incorporation by reference of
certain publications listed in these amendments has been approved by
the Director of the Federal Register as of January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Beth Romo, telephone (202) 366-8553,
Office of Hazardous Materials Standards, or Bill Gramer, telephone
(202) 366-4545, Office of Hazardous Materials Technology, Research and
Special Programs Administration, Washington DC, 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On December 21, 1990, RSPA published a final rule [Docket HM-181;
55 FR 52402], which comprehensively revised the HMR with respect to
hazard communication, classification, and packaging requirements based
on the United Nations (UN) Recommendations on the Transport of
Dangerous Goods (UN Recommendations). A document responding to
petitions for reconsideration and containing editorial and substantive
revisions to the final rule was published on December 20, 1991 [56 FR
66124]. On October 1, 1992, under Dockets HM-181 and HM-189, RSPA
issued editorial and technical corrections to the regulations published
in 1991. On September 24, 1993, RSPA issued a final rule under Docket
HM-181F [58 FR 50224] which made changes to the HMR based on agency
initiative and petitions for rulemaking received since the December 20,
1991 response to petitions for reconsideration. That final rule
primarily revised requirements with a mandatory compliance date of
October 1, 1993, as provided in the transitional provisions in
Sec. 171.14(b)(4).
RSPA published a notice of proposed rulemaking (NPRM) on June 26,
1996, under Docket HM-181H [61 FR 33216] to address most remaining
issues associated with the implementation of Docket HM-181 provisions
and certain other issues arising from a final rule issued December 29,
1994, under Docket HM-215A [59 FR 67390]. These issues were raised
through petitions for rulemaking and agency initiative.
RSPA proposed changes to numerous requirements with a compliance
date of October 1, 1996. Although these changes focus primarily on
provisions concerning hazard classification and the maintenance and use
of performance packaging, RSPA also proposed changes to intermediate
bulk container (IBC) requirements, portable tank requirements, and
regulated medical waste provisions adopted under Dockets HM-181E and
HM-181G, respectively. Several current exemptions were proposed for
conversion into regulations of general applicability, and an approval
concerning design qualification and periodic testing was proposed for
incorporation into the HMR.
II. Summary of Comments to the NPRM
RSPA received nearly 40 comments in response to the proposed rule.
The comments were submitted by chemical manufacturing companies, trade
associations, packaging manufacturers, drum reconditioners, and various
organizations representing the medical waste industry. Commenters were
uniformly supportive of RSPA's efforts to address remaining issues
associated with Docket HM-181 and other issues arising from the Docket
HM-215A final rule. Certain issues proposed in the notice received
little or no comment. Other issues, such as drum reuse provisions,
display packs for ORM-D materials, an exception proposed for certain
Division 6.2 waste materials, and winter filling limits for tank cars,
were the focus of many of the comments. Several commenters requested
amendments to the HMR other than those proposed as part of this
initiative. Most of these suggestions are beyond the scope of the
proposed changes in this rule and are under review.
The Hazardous Materials Advisory Council (HMAC) expressed concern
that the proposed rule frequently cited a petition for rulemaking [P-
1169] without proposing adoption or discussing other provisions
identified by HMAC in their April 13, 1993 petition. HMAC also claimed
that another petition [P-1232], addressing outage requirements for
materials poisonous by inhalation, merited consideration because it
appeared to be within the scope of the Docket HM-181H rulemaking.
Petition P-1169 contained 25 separate issues that HMAC submitted to
RSPA for consideration to amend the HMR. Of the 25 issues identified in
that petition, RSPA has adopted a majority, including seven issues in
this rulemaking. The few remaining issues will appear in upcoming
proposed rulemaking actions (such as HM-215B) or are presently under
review.
Under Docket HM-181, RSPA adopted a five percent outage requirement
for poisonous by inhalation hazard materials in bulk packagings.
Chemical manufacturers and associations, such as HMAC, opposed this
requirement, claiming that any safety benefit is offset by additional
shipments and resultant costs. RSPA believes a change in outage
requirements is beyond the scope of this rulemaking.
III. Summary of Regulatory Changes by Section
Listed below is a section-by-section summary of changes and, as
applicable, a discussion of comments received.
Part 171
Section 171.7. The table of material incorporated by reference is
amended by adding a new entry referencing a publication issued by the
Department of Health and Human Services for defining biosafety levels
and adding two new ASTM steel standards referenced in Sec. 178.601.
Section 171.14. All transitional provisions reflecting a compliance
date of October 1, 1996, or earlier are
[[Page 50617]]
removed. One commenter representing the agricultural chemical industry
asked RSPA to establish a five-year delayed compliance date for
products in DOT specification and non-specification packagings filled
before October 1, 1996. The commenter described a lengthy process for
agricultural chemicals moving through a distribution chain to end users
and then frequent product returns several years after the original
sale. According to the commenter, an additional five-year compliance
period would provide sufficient time for the industry to eliminate any
non- specification and DOT-specification packagings which would not
otherwise be authorized after October 1, 1996.
RSPA provided a five-year transition period from October 1, 1991 to
October 1, 1996 for users of these packagings to deplete inventory and
phase in UN performance packagings. RSPA believes this five-year
transition period has afforded industry sufficient time to prepare for
the October 1, 1996 compliance date. However, RSPA recognizes that an
extensive distribution process that includes procedures for return of
products to distributors warrants limited relief to allow the
transportation of materials in previously authorized and filled
packages to end users or for their return, repackaging, or disposal.
From an overall transportation safety perspective, it is RSPA's view
that it is safer to allow one final shipment of these previously
authorized and filled packagings than to compel the transfer of
materials, such as pesticides, into packagings required by the HMR as
of October 1, 1996.
Therefore, RSPA is adding a provision to authorize non-bulk
packagings, other than cylinders, which were filled prior to October 1,
1996 in conformance with regulations in effect on September 30, 1996,
to be offered for transportation and transported domestically until
October 1, 1999. RSPA believes a three-year delay in compliance affords
sufficient time for these packagings to be eliminated from a
distribution system. It is emphasized that this provision does not
authorize the filling of packagings, only offering and transportation
of packagings filled prior to October 1, 1996.
In addition, three other transition provisions are retained for
packages filled prior to October 1, 1991, new placard specifications,
and authorization for use of fiber drums.
Part 172
Section 172.101. The text preceding the Sec. 172.101 Hazardous
Materials Table (HMT) sets forth procedures for using the HMT. To
clarify procedures contained in paragraph (c)(12)(iii) for selecting a
proper shipping name for a material that meets the definition of more
than one hazard class, RSPA proposed to replace the phrase ``identified
* * * by a specific description'' with ``identified * * * specifically
by name'' and include an example. All three commenters addressing this
issue supported this proposed change, stating that it will clarify the
procedure for selecting a proper shipping name.
In addition, RSPA is adding as proposed a new paragraph
(c)(10)(iii) which clarifies the process for selecting a proper
shipping name for a mixture of two or more hazardous materials in the
same hazard class. Currently, paragraph (c)(10)(i) contains a provision
for selecting a proper shipping name for a mixture of a hazardous
material and non-hazardous material, and paragraph (c)(12)(ii)
prescribes the proper shipping name selection process for a material
meeting more than one hazard class.
Section 172.101; the Hazardous Materials Table (HMT). A new entry
to provide for the domestic transportation of black powder for small
arms reclassed as a Division 4.1 is added as proposed. This revision is
based on comparable provisions for smokeless powder, small arms
cartridges and power device cartridges. In conjunction with this
change, a new Special Provision 70 and new non-bulk packaging section
Sec. 173.170 is added.
In the HMT, the entries ``Chlorosilanes, n.o.s.'', with
identification numbers UN 2986, UN 2987, and UN 2988, are not
authorized to be shipped in DOT Specification Intermodal (IM) portable
tanks. Based on a petition for rulemaking requesting that RSPA
authorize IM portable tanks for all chlorosilanes and that the use of
IM portable tanks for these materials will not compromise safety and
would be consistent with other specific authorizations, RSPA is
adopting the proposal to authorize certain IM portable tanks for all
chlorosilanes. RSPA is adding special provisions in Column (7) for
``Chlorosilanes, n.o.s.'', with identification numbers UN 2986, UN
2987, and UN 2988, to permit the transport of these materials in IM
portable tanks.
Bulk packaging references for three Type F organic peroxides (UN
3110, UN 3119, and UN 3120) are revised by changing ``None'' to ``225''
in Column (8C) to indicate that these materials are authorized in bulk
packagings. In addition, for the entries ``Organic Peroxide, type F,
liquid (or solid), temperature controlled'' (UN 3119 and UN 3120), in
Column (8A), the packaging exception reference ``152'' is removed for
each entry to indicate that these temperature controlled organic
peroxides are not eligible for packaging exceptions. One commenter
noted that even though Sec. 173.225 is authorized in Column (8C) of the
Hazardous Materials Table, this authorization alone will not allow bulk
packaging for organic peroxide, type F, solid. A note in Column 8 of
the Organic Peroxide Table, in conjunction with the technical name of
the material, indicates whether the material is authorized to be
packaged in a bulk packaging.
More than 30 entries classed as Division 4.3 (dangerous when wet)
solids in Packing Groups II and III are amended by revising Column (8A)
to authorize Sec. 173.151 as a packaging exception section. One
commenter asked RSPA to authorize a packaging exception section for
three additional Division 4.3 materials that exhibit similar
characteristics and do not pose an unreasonable risk in transportation.
After reviewing these materials, RSPA agrees and is adding them to the
list of entries that are authorized a packaging exception in
Sec. 173.151.
Revisions to Classification and Hazard Zone Identification for
Certain Materials Poisonous by Inhalation. Based on acute inhalation
toxicity data and related information obtained by RSPA, the HMT is
amended to change the hazard zone for some materials poisonous by
inhalation, and to add other materials to the list of materials
poisonous by inhalation. For certain materials this revision imposes
more stringent hazard communication and packaging requirements. The
Docket HM-181H NPRM contains a more complete description of the data on
which these revisions are based. The materials are listed as follows:
a. Hydrogen cyanide, solution in alcohol (with not more than 45
percent hydrogen cyanide) (UN3294). Based on the toxicity and
volatility of hydrogen cyanide, the packing group assigned and the
dilution factor for this solution of hydrogen cyanide, RSPA is
identifying hydrogen cyanide, solution in alcohol with not more than 45
percent hydrogen cyanide as a Hazard Zone B inhalation hazard. A new
special provision ``25'' is assigned to this entry to authorize a one-
year delay for compliance with new packaging requirements.
b. Metal carbonyls, n.o.s. (UN3281). The acute toxicity of metal
carbonyls may differ from one compound to another. Those toxic by
inhalation may fall into Hazard Zone A or Hazard Zone B. Others may not
be toxic by inhalation, but may exhibit oral and/or dermal toxicity,
which places them in
[[Page 50618]]
Division 6.1, Packing Group I. Therefore, RSPA is adding special
provision ``5'' to Column 7 of the entry for metal carbonyls, n.o.s. at
the Packing Group I level.
c. Methanesulfonyl chloride (UN3246). As proposed, RSPA is
identifying methanesulfonyl chloride as a Hazard Zone B inhalation
hazard. A new special provision ``25'' is assigned to this entry to
authorize a one-year delay for compliance with new packaging
requirements.
d. Methyl vinyl ketone (UN1251). As proposed, RSPA is identifying
methyl vinyl ketone as a Hazard Zone A inhalation hazard. Also, to be
consistent with the UN Recommendations (Eighth revised edition), RSPA
is adding the plus (+) symbol to Column 1 of the entry for methyl vinyl
ketone. A new special provision ``25'' is assigned to this entry to
authorize a one-year delay for compliance with new packaging
requirements.
e. Nitriles, toxic, flammable, n.o.s. (UN3275). This generic entry
covers Division 6.1, Packing Groups I and II toxic, flammable nitriles
that are not specifically listed by name but exhibit acute oral, dermal
and/or inhalation toxicity. The acute toxicity of these nitriles may
differ from one compound to another. Those toxic by inhalation may fall
into Hazard Zone A or Hazard Zone B. Other nitriles may not be toxic by
inhalation, but may exhibit oral and/or dermal toxicity which places
them in Division 6.1, Packing Group I. Therefore, RSPA is adding
special provision ``5'' to Column 7 of the entry for nitriles, toxic,
flammable, n.o.s. at the Packing Group I level.
f. Nitriles, toxic, n.o.s. (UN3276). This generic entry covers
Division 6.1, Packing Groups I, II and III toxic nitriles that are not
specifically listed by name but exhibit acute oral, dermal and/or
inhalation toxicity. The acute toxicity of these nitriles may differ
from one compound to another. Those toxic by inhalation may fall into
Hazard Zone A or Hazard Zone B. Other nitriles may not be toxic by
inhalation, but may exhibit oral and/or dermal toxicity which places
them in Division 6.1, Packing Group I. Therefore, RSPA is adding
special provision ``5'' to Column 7 of the entry for nitriles, toxic,
n.o.s. at the Packing Group I level.
g. Organoarsenic compound, n.o.s. (UN3280). This generic entry
covers Division 6.1, Packing Groups I, II and III toxic organoarsenic
compounds that are not specifically listed by name but exhibit acute
oral, dermal and/or inhalation toxicity. The acute toxicity of these
organoarsenic compounds may differ from one compound to another. Those
toxic by inhalation may fall into Hazard Zone A or Hazard Zone B.
Others may not be toxic by inhalation, but may exhibit oral and/or
dermal toxicity which places them in Division 6.1, Packing Group I.
Therefore, RSPA is adding special provision ``5'' to Column 7 of the
entry for organoarsenic compound, n.o.s. at the Packing Group I level.
h. Organophosphorus compound, toxic, flammable, n.o.s. (UN3279).
This generic entry covers Division 6.1, Packing Groups I and II toxic,
flammable organophosphorus compounds that are not specifically listed
by name but may exhibit acute oral, dermal and/or inhalation toxicity.
The acute toxicity of these organophosphorus compounds may differ from
one compound to another. Those toxic by inhalation may fall into Hazard
Zone A or Hazard Zone B. Others may not be toxic by inhalation, but may
exhibit oral and/or dermal toxicity which places them in Division 6.1,
Packing Group I. Therefore, RSPA is adding special provision ``5'' to
Column 7 of the entry for organophosphorus compound, toxic, flammable,
n.o.s. at the Packing Group I level.
i. Organophosphorus compound, toxic, n.o.s. (UN3278). This generic
entry covers Division 6.1, Packing Groups I, II and III toxic
organophosphorus compounds that are not listed by name but exhibit
acute oral, dermal and/or inhalation toxicity. The acute toxicity of
these organophosphorus compounds may differ from one compound to
another. Those toxic by inhalation may fall into Hazard Zone A or
Hazard Zone B. Others may not be toxic by inhalation, but may exhibit
oral and/or dermal toxicity which places them in Packing Group I.
Therefore, RSPA is adding special provision ``5'' to Column 7 of this
entry for organophosphorus compound, toxic, n.o.s. at the Packing Group
I level.
j. Phosphorus pentafluoride (UN2198). As proposed, RSPA is
identifying phosphorus pentafluoride as a Hazard Zone B inhalation
hazard.
k. Tungsten hexafluoride (UN2196). As proposed, RSPA is identifying
tungsten hexafluoride as a Hazard Zone B inhalation hazard.
Section 172.102. As noted in the discussion on revisions for
materials poisonous by inhalation, RSPA is authorizing a one-year delay
for compliance with new packaging requirements by assigning a new
special provision ``25'' to three commodities.
Special Provision B59, which authorizes AAR 207A tank cars for
phosphorus pentasulfide, is revised as proposed to reference the use of
water-tight, sift-proof, closed-top, metal-covered hopper cars.
A new special provision (N42) is added as proposed to authorize a
UN 1A1 steel drum for stabilized benzyl chloride. One comment was
received in response to this proposal and strongly supported the
addition of N42, which allows use of phenolic-lined steel drums with a
minimum thickness of 1.3 mm (0.050 inch) which have been tested and
certified to a Packing Group I level at a specific gravity of 1.8. The
commenter cited a history of shipping benzyl chloride in phenolic-lined
17C and UN 1A1 steel drums since 1981 without incident and without
failure of the phenolic lining.
Section 172.302. In the general marking requirements for bulk
packagings, markings on portable tanks with capacities of less than
3,785 L (1,000 gallons) must be at least 6.0 mm (0.24 inch) wide and at
least 25 mm (one inch) high. RSPA proposed a revision of paragraph
(b)(2) to decrease to 4 mm (0.16 inch) the minimum width of markings
required on portable tanks having a capacity less than 3,785 L (1,000
gallons). RSPA also proposed reducing both the minimum height and width
of markings required on IBCs to 25 mm (one inch). Commenters were
uniformly supportive of both proposals, and they are adopted as
proposed. RSPA is not adopting one commenter's recommendation to amend
Appendix B to Subpart B of Part 107 to allow a marking height of one
inch for certain small portable tanks authorized under an exemption.
Section 172.504. RSPA is removing the second sentence of paragraph
(f)(8) which allows a CLASS 9 placard to be substituted for a
COMBUSTIBLE LIQUID placard for material meeting both Combustible liquid
and Class 9 hazard classes. Several commenters agreed that this
provision created potential confusion and misunderstanding between
documentation and marking requirements describing a Combustible liquid
and the application of CLASS 9 placards.
Part 173
Section 173.24a. RSPA proposed to amend paragraph (a)(3) to clarify
that cushioning material used to protect inner packagings must not be
adversely affected (e.g., disintegrate) if there is leakage of a
hazardous material from the inner packagings. A degradation of
cushioning materials could significantly reduce the effectiveness of a
packaging to a point that it would not conform with its marked
performance standard
[[Page 50619]]
or meet general packaging requirements. This clarification is
consistent with international air transport provisions contained in the
International Civil Aviation Organization's (ICAO) Technical
Instructions. Commenters supported this proposed revision; however, the
Fibre Box Association expressed concern that the proposal might be
interpreted to mean corrugated cushioning and corrugated packaging of
liquids will not be allowed. The Fibre Box Association stated that the
phrase ``having protective properties [significantly] impaired in event
of leakage'' is too vague.
The proposed change was not intended to preclude the use of
fiberboard cushioning or packaging for liquids. Although there is no
established criteria for evaluating degradation of cushioning material,
RSPA agrees that the phrase ``significantly impaired'' should be
revised. RSPA believes ``significantly weakened'' more accurately
conveys the intent of this provision and is revising this phrase
accordingly.
Currently, paragraphs (b)(1) and (b)(2) provide filling limits for
single and composite packagings, but no such limits are provided for
combination packagings. As proposed, RSPA is revising paragraph (b)(2)
of this section to prescribe filling limits for all non-bulk
packagings, including combination packagings. This provision prohibits
combination packagings from being filled with a hazardous material to a
gross mass greater than the maximum gross mass marked on the packaging.
Section 173.28. RSPA proposed adding a formula in paragraph (b)(4)
for calculating an equivalent minimum thickness for stainless steel
drums. This formula is consistent with the formula contained in
Sec. 178.705 for calculating minimum wall thicknesses for metal IBCs.
The Association of Container Reconditioners (ACR) opposed this proposed
change and stated that this issue is too complex for adoption at this
time. ACR believes that by reducing the minimum thickness of stainless
steel to the equivalent strength of carbon steel, the rationale for
waiving leakproofness testing for stronger steel is eliminated. ACR
requested that, if this proposal is adopted, a drum manufacturer's use
of this equivalence formula be communicated through a particular unique
mark, thus advising persons responsible for reuse or reconditioning of
this equivalence formula being used.
RSPA is confident that the equivalence formula adopted in this
final rule provides an equivalent level of safety and drum integrity.
The language in the paragraph (b)(7) leakproofness testing waiver for
stainless steel drums requires a thickness of one and one-half times
the thickness prescribed for reuse, thus precluding use of any thinner
drums.
An adjustment to Footnote 1, which specifies a minimum thickness of
0.82 mm body and 1.11 mm head and corresponds with ISO 3574, is adopted
as proposed. Commenters supporting this proposed change included ACR,
several chemical manufacturing companies, the Association of Waste
Hazardous Materials Transporters, and a drum manufacturer. Two
commenters, a different drum manufacturer and the Steel Shipping
Container Institute (SSCI), opposed this proposal, stating that this
request from ACR was driven by economic considerations, not safety.
SSCI claimed that technology for determining minimum thicknesses is
readily available. The drum manufacturer opposing this change stated
that if the footnote adjustment was adopted as proposed, RSPA should
provide a transition period for drum manufacturers to deplete their
inventory of material rendered obsolete by this change.
RSPA is making this adjustment to Footnote 1 to standardize minimum
thickness requirements with breakpoints commonly recognized by
international standards, not to provide any economic benefit to
industry. RSPA also is revising Footnote 1 to authorize metal drums or
jerricans constructed with a minimum thickness of 0.82 mm body and 1.09
mm heads until December 31, 1996. After that date, drums must be
constructed with heads meeting a minimum thickness of 1.11 mm. This
delay will provide drum manufacturers additional time to deplete
existing inventory and build an inventory of new material.
Paragraph (b)(7)(iv)(C) is revised as proposed to clarify that
there are established conditions which must be met before an approval
is granted by the Associate Administrator for Hazardous Materials
Safety to allow relief from leakproofness testing for a packaging
constructed of a material or thickness not otherwise authorized in the
exception.
Paragraph (c)(2) prescribes reconditioning requirements for non-
bulk packagings other than metal drums. In the NPRM, RSPA proposed a
revision to this paragraph to clarify that repairing or replacing a
bung or removable gasket in a plastic closed head (UN 1H1) drum is not
considered reconditioning. Both SSCI and ACR opposed this proposed
change, stating that replacing gaskets or closures on a plastic drum is
plastic drum reconditioning. SSCI claimed that a change in the material
of a drum is reconditioning or remanufacturing, and that changing
location, type or size of gasket material or properties affecting the
performance of the gasket is considered design type changes requiring
complete design qualification testing. The SSCI also warned that this
proposal downplays the significance of gaskets in minimizing leaks and
will shift drum purchases from steel to plastic drums to save costs in
reconditioning and leaktesting. In RSPA's view, simply ``replacing'' a
bung or gasket in a plastic closed head drum is not reconditioning. In
this final rule, RSPA is clarifying in paragraph (c)(2) that repair or
replacement of a bung or a removable gasket in a plastic closed head
(UN 1H1) drum with a bung or gasket that is of the same design and
material as the original bung or gasket, and provides equivalent
performance, is not considered reconditioning and does not subject the
drum to reconditioning marking requirements or to leakproofness testing
requirements if it is otherwise excepted from leakproofness testing.
Section 173.32. As proposed, RSPA is reinstating pressure testing
requirements for DOT 57 portable tanks in paragraph (e)(2)(i). RSPA
also is amending paragraph (d) to allow plastic discharge valves for
certain stainless steel DOT 57 tanks constructed before October 1,
1996. Allowing a plastic discharge valve on these tanks eliminates the
need for an existing exemption, DOT-E-10916, and permits continued use
of thousands of portable tanks with a proven safety record. Two
comments were received in response to the proposal, both supporting
revisions to this section.
RSPA is adding a new paragraph (t) which allows the remarking of
certain portable tanks currently authorized under DOT exemptions as DOT
51 portable tanks. These portable tanks were in full conformance with
the requirements for DOT 51 portable tanks, including the ASME Code
``U'' stamp, except for the location of fill and discharge outlets.
The changes adopted in this final rule relating to the location of
outlets on DOT 51 portable tanks will allow for the elimination of
numerous exemptions based on the design and excellent safety record of
these portable tanks. RSPA believes that as a minimum, the following
exemptions will be affected:
DOT-E 6518
DOT-E 8196
DOT-E 9401
DOT-E 9402
[[Page 50620]]
DOT-E 9632
DOT-E 9718
DOT-E 10032
DOT-E 10171
DOT-E 10193
DOT-E 10291
DOT-E 10567
DOT-E 11239
DOT-E 11275
DOT-E 11313
DOT-E 11331
DOT-E 11539
DOT-E 11589
DOT-E 11604
DOT-E 11658
DOT-E 11661
Persons holding other exemptions which they believe are impacted by
changes adopted by this final rule should contact RSPA.
Section 173.115. Paragraph (b)(1) is revised as proposed to reflect
the correct conversion of 280 kPa to read ``280 kPa (40.6 psia)'' for
informational purposes.
Section 173.120 and Appendix H to Part 173. Based on requests from
industry and comments supporting this proposed revision, RSPA is adding
a new paragraph (b)(3) to specify a procedure for testing combustible
liquids with a flash point above 60.5 deg. C (141 deg. F) and below
93 deg.C (200 deg. F) for the ability to sustain combustion. Appendix H
to Part 173 is revised to provide additional test temperatures in
paragraph 5.(h) for combustible liquids that closely parallel the
approach for flammable liquids.
Sections 173.121, 173.125, and 173.127. As proposed, RSPA is
adopting a clarification of the methods for determining packing groups
described in Secs. 173.121(a), 173.125(a), and 173.127(b) for Class 3,
Class 4, and Class 5 materials, respectively.
Section 173.133. RSPA is revising as proposed the wording ``more
than one packing group and hazard zone'' in paragraph (b)(1) to read
``more than one packing group or hazard zone''. One commenter expressed
support for the proposed change, stating that it will clarify the
determination of applicable packing groups.
Section 173.134. Paragraph (a)(4) limits the definition of
regulated medical waste to exclude discarded cultures and stocks of
infectious substances. In this final rule, paragraph (b) is revised as
proposed by adding a new paragraph (b)(4) authorizing discarded
cultures and stocks in Biosafety Levels 1, 2 and 3, as defined in HHS
Publication No. (CDC) 93-8395, Biosafety in Microbiological and
Biomedical Laboratories, 3rd Edition, May 1993, Section II to be
described and packaged as regulated medical waste rather than
infectious substances. Packagings must conform to Packing Group II
performance requirements. Transport of these materials is limited to
private or contract motor freight carriers in dedicated service to the
transportation of medical waste. Commenters uniformly supported this
proposed change. One commenter referenced a recent Center for Disease
Control proposed list of infectious substances capable of causing
substantial harm to human health. This commenter believed all discarded
cultures and stocks of infectious substances not on this proposed list
should be eligible for regulation as regulated medical waste. Another
commenter believed RSPA should provide even more relief for these
materials by allowing them to be packaged in OSHA-authorized containers
conforming to DOT's general packaging standards, and also should allow
private carriers transporting these types of cultures and stocks to
backhaul non-food products if trailers are properly disinfected. It is
RSPA's view that these suggested changes are beyond the scope of this
rulemaking.
Section 173.151. A new paragraph (d) is added as proposed to
incorporate limited quantity provisions for Division 4.3 (dangerous
when wet) solid materials in Packing Groups II and III. This amendment
aligns the HMR with limited quantity exceptions contained in the UN
Recommendations.
Section 173.156. Paragraph (b)(2) is revised as proposed to remove
the 30 kg (66 pounds) weight restriction for ORM-D materials packaged
in ``display packs'' which are offered for transportation, or
transported, by highway or rail between a manufacturer, a distribution
center, and a retail outlet. These display packs are inner receptacles
of ORM-D materials which are secured in corrugated fiberboard trays and
then stacked and placed within a strong outer container. Each outer
container is strapped to a wooden pallet with steel or polyester
strapping to form an integral part of the packaging. All commenters
addressing this issue supported the proposal; however, several
commenters requested that the net weight of each display pack be raised
from 250 kg (550 pounds) to 525 kg (1155 pounds) to reflect the weight
limit authorized in an exemption recently granted for this type of
packaging. RSPA believes that display packs should be limited to 250 kg
(550 pounds) net weight until satisfactory experience is gained under
the exemption at the higher weight.
RSPA proposed an exception for transportation of ORM-D materials to
disposal facilities in paragraph (b)(1) to allow discarded consumer
commodities to be transported from manufacturing, distribution or
retail facilities to a disposal facility when packaged in large boxes
or overpacks exceeding 30 kg (66 pounds). RSPA received comments
supporting this proposal from The Conference on the Safe Transportation
of Hazardous Articles (petitioner for this change) and the National
Wholesale Druggists' Association. The Association of Waste Hazardous
Materials Transporters opposed the proposal, stating it has the
potential for abuse. This commenter believed the proposal was not in
the public interest and will create confusion about the regulatory
status of discarded material, which may be subject to regulation as
either a solid waste or hazardous waste.
RSPA does not agree. However, based on further review of this
proposal, RSPA is revising the proposed provision to require that the
transportation of discarded consumer commodities to a disposal facility
must be from a single point of origin. RSPA believes that limiting the
consolidation of discarded consumer commodities in one shipping unit
from one offeror establishes an appropriate condition for such
transportation, taking into account other requirements such as
Secs. 173.24 and 173.24a.
Section 173.158. Paragraph (d) is revised as proposed to authorize
additional packagings for nitric acid in concentrations of 90 percent
or greater when offered for transportation or transported by rail,
highway or water. A combination packaging consisting of a 1A2, 1B2, 1D,
1G, 1H2, 3H2 or 4G outer packaging with inner glass packagings of 2.5 L
(0.66 gallons) or less capacity cushioned with a non-reactive,
absorbent material and packed within a leak-tight packaging of metal or
plastic is authorized.
In addition, RSPA is revising paragraph (f)(1) as proposed to
authorize 6HH1 and 6HA1 composite packagings with PFA Teflon inner
receptacles for nitric acid concentrations of 70 percent or less. These
composite packagings are authorized under the provisions of three
exemptions and have demonstrated an equivalent level of safety.
Section 173.170. RSPA is adding a new non-bulk packaging section
for black powder for small arms when transported domestically and
reclassed as Division 4.1. For consistency with comparable provisions
for smokeless powder for small arms, RSPA is revising approval
procedures as proposed in the NPRM by requiring that black powder must
be examined and approved for Division 4.1 classification and the
[[Page 50621]]
complete package must be of the same type as that approved under
Sec. 173.56.
Section 173.183. As proposed, RSPA is adding a packaging
authorization to allow the use of polypropylene inner packagings for
nitrocellulose base film.
Section 173.225. Paragraph (a) is amended as proposed to specify
that inner plastic packagings of a combination packaging used for
transporting organic peroxides must be constructed of new resin. The
one commenter responding to this proposal, the Organic Peroxide
Producers Safety Division of the Society of the Plastics Industry,
petitioned for the change. RSPA agrees with the commenter that most
regulated organic peroxides are too sensitive to contamination to be
stored in packages manufactured from ``resin of unknown history.''
Section 173.306. Paragraph (i)(1) is removed as proposed and
paragraphs (i)(2) through (i)(4) are redesignated accordingly as
paragraphs (i)(1) through (i)(3). In addition, RSPA is revising the
introductory text of paragraph (i) to clarify that flammability of
aerosols is based on obtaining a positive test result from any of the
three methods contained in this paragraph. This approach is consistent
with the ICAO Technical Instructions.
Section 173.314. RSPA is adopting a seasonal filling limit for tank
cars containing anhydrous ammonia and liquefied petroleum gas based on
winter filling reference temperatures of 29 deg.C (85 deg.F), 32 deg.C
(90 deg.F), and 38 deg.C (100 deg.F), for insulated tanks, thermally-
protected and jacketed tanks, and noninsulated tanks, respectively.
These filling limits would authorize a winter filling limit greater
than that authorized in the HM-181 final rule. RSPA believes that these
filling limits will ensure safety in transit while providing economic
relief from the requirements adopted in the HM-181 final rule.
Commenters uniformly supported this proposed change. The National
Industrial Transportation League stated this change strikes an
appropriate balance between safety and efficiency by avoiding the
necessity for increasing the number of tank car shipments (and
corresponding risk of spills) in winter months to achieve the same
overall volume. The National Propane Gas Association also supported
this proposal for tank cars and indicated its intent to submit a
proposal to RSPA later this year for adoption of seasonal filling
limits for cargo tanks.
Part 178
Sections 178.245 and 178.245-1. RSPA is making several editorial
changes for clarity and one significant change to allow DOT
Specification 51 portable tanks to have openings at locations other
than the top or one end of the tank under certain circumstances.
Commenters supported the proposal to allow bottom outlets on tank
containers, citing safety and economic benefits.
Section 178.245-4. As proposed, RSPA is adding a new paragraph (e)
to require that a DOT 51 portable tank in an ISO framework for
containerized transportation must meet the requirements specified in 49
CFR Parts 450-453.
Section 178.245-6. The first sentence of paragraph (a) is amended
as proposed to require the nameplate to be in close proximity to the
ASME plate.
Section 178.270-12. RSPA is amending paragraph (a) as proposed to
notify manufacturers, owners and approval agencies of the requirements
for the number and type of closures required for filling and discharge
connections located below the normal liquid level of IM portable tanks.
Section 178.601. Paragraph (g)(8) is added to list changes in one
or more design elements which would constitute a different drum design
type. Commenters supported the addition of this paragraph, but
recommended revisions to be consistent with an approval issued to SSCI.
RSPA agrees and is revising these provisions accordingly.
Section 178.705. As proposed, a correction is made to the constant
in the equivalence thickness formula for U.S. Standard Units in
paragraph (c)(1)(iv)(B) to ensure that the resulting thickness is in
inches.
Paragraph (c)(2) of this section specifies pressure relief devices
for metal IBCs. RSPA proposed adding a new sentence in paragraph
(c)(2)(ii) to clarify that the specified start-to-discharge pressure
requirements do not apply to fusible links unless these links are the
sole source of pressure relief for the IBC. RSPA's proposal did not
change any existing UN requirements, but simply clarified that the
start-to discharge pressure requirements in 178.705(c)(2)(ii) did not
apply to fusible devices if such devices are used in addition to other
venting devices. If fusible devices are the sole means for providing
venting relief capacity, an IBC marked ``31A'' must not exceed 65 kPa
(9 psig) at the fusible device operating temperature.
Several commenters requested that RSPA not adopt this amendment as
proposed. It appears commenters are requesting an exception from start-
to-discharge pressure requirements when fusible devices are the sole
means of pressure relief capacity. This exception would not be
consistent with pressure relief requirements for IBCs in the UN
Recommendations. The UN Recommendations specify pressure relief
capabilities for an IBC regardless of the type of pressure relief
device utilized. To maintain international consistency, such an
exception should first be proposed and adopted in the UN
Recommendations.
RSPA is adopting this amendment in paragraph (c)(2)(ii) essentially
as proposed, but is replacing the phrase ``fusible links'' with
``fusible devices'' to more accurately describe these devices. This
revision is based on a comment by the Rigid Intermediate Bulk Container
Association.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and therefore, was not
reviewed by the Office of Management and Budget. The rule is not
considered a significant rule under the Regulatory Policies and
Procedures of the Department of Transportation [44 FR 11034].
The economic impact of this final rule is expected to result in
only minimal costs to certain persons subject to the HMR and may result
in modest cost savings to a small number of persons subject to the HMR
and to the agency. Because of the minimal economic impact of this rule,
preparation of a regulatory impact analysis or a regulatory evaluation
is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism'').
Federal law expressly preempts State, local, and Indian tribe
requirements applicable to the transportation of hazardous material
that cover certain subjects and are not substantively the same as
Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:
(1) The designation, description, and classification of hazardous
material;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents
pertaining to hazardous material, and requirements respecting the
number, content, and placement of such documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacturing, fabrication, marking, maintenance,
[[Page 50622]]
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
This final rule preempts State, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' (see 49 CFR 107.202(d) as the Federal
requirements.
Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a
regulation concerning any of the covered subjects, DOT must determine
and publish in the Federal Register the effective date of Federal
preemption. The effective date may not be earlier than the 90th day
following the date of issuance of the final rule and not later than two
years after the date of issuance. RSPA has determined that the
effective date of Federal preemption for these requirements will be
January 1, 1997. Thus, RSPA lacks discretion in this area, and
preparation of a federalism assessment is not warranted.
C. Regulatory Flexibility Act
This final rule responds to petitions for rulemaking. It is
intended to provide clarification of the regulations and relax certain
requirements. Therefore, I certify that this final rule will not have a
significant economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labels,
Markings, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for Part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In the Sec. 171.7(a)(3) Table, three new entries are added in
alphabetical order to read as follows:
Sec. 171.7 Reference material.
(a) Matter incorporated by reference * * *
(3) Table of material incorporated by reference. * * *
------------------------------------------------------------------------
49 CFR
Source and name of material reference
------------------------------------------------------------------------
* * * *
American Society for Testing and Materials
* * * *
* * *
ASTM A 366/A 366M-91 (1993)e1 Standard Specification
for Steel, Sheet, Carbon, Cold-Rolled, Commercial
Quality............................................... 178.601
* * * *
* * *
ASTM A 568/A 568M-95 Standard Specification for Steel,
Sheet, Carbon, and High-Strength, Low-Alloy, Hot-
Rolled and Cold-Rolled, General Requirements for...... 178.601
* * * *
* * *
Health and Human Services
Centers for Disease Control and Prevention, 1600
Clifton Road N.E., Atlanta GA 30333...................
Also available from: Superintendent of Documents,
Government Printing Office (GPO), HHS Publication No.
(CDC) 93-8395, Biosafety in Microbiological and
Biomedical Laboratories, 3rd Edition, May 1993,
Section II............................................ 173.134
* * * *
* * *
------------------------------------------------------------------------
* * * * *
3. In Sec. 171.14, as amended at 61 FR 7959, effective October 1,
1996, paragraph (a) introductory text through paragraph (a)(2)(i) and
paragraph (b) are removed, paragraphs (a)(2)(ii) and (a)(2)(iii) are
redesignated as paragraphs (b) and (c) and a new paragraph (a) is added
to read as follows:
Sec. 171.14 Transitional provisions for implementing requirements
based on the UN Recommendations.
* * * * *
(a) Previously filled packages--(1) Packages filled prior to
October 1, 1991. Notwithstanding the marking and labeling provisions of
subparts D and E, respectively, of part 172, and the packaging
provisions of part 173 and subpart B of Part 172 of this subchapter, a
package may be offered for transportation and transported prior to
October 1, 2001, if it--
(i) Conforms to the old requirements of this subchapter in effect
on September 30, 1991;
(ii) Was filled with a hazardous material prior to October 1, 1991;
(iii) Is marked ``Inhalation Hazard'' if appropriate, in accordance
with Sec. 172.313 of this subchapter or Special Provision 13, as
assigned in the Sec. 172.101 Table; and
[[Page 50623]]
(iv) Is not emptied and refilled on or after October 1, 1991.
(2) Non-bulk packages filled prior to October 1, 1996.
Notwithstanding the packaging provisions of subpart B of Part 172 and
the packaging provisions of part 173 of this subchapter with respect to
UN standard packagings, a non-bulk package other than a cylinder may be
offered for transportation and transported domestically prior to
October 1, 1999, if it--
(i) Conforms to the requirements of this subchapter in effect on
September 30, 1996;
(ii) Was filled with a hazardous material prior to October 1, 1996;
and
(iii) Is not emptied and refilled on or after October 1, 1996.
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
4. The authority citation for Part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
5. In Sec. 172.101, a new paragraph (c)(10)(iii) is added to read
as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
(c) * * *
(10) * * *
(iii) A mixture or solution not identified in the Table by a
specific description, comprised of two or more hazardous materials in
the same hazard class, shall be described using an appropriate shipping
description (e.g., ``Flammable liquid, n.o.s.''). Some mixtures may be
more appropriately described according to their application, such as
``Coating solution'' or ``Extracts, flavoring liquid'' rather than by
an n.o.s. entry. Under the provisions of subparts C and D of this part,
the technical names of at least two components most predominately
contributing to the hazards of the mixture or solution may be required
in association with the proper shipping name.
* * * * *
Sec. 172.101 [Amended]
6. In addition, in Sec. 172.101, in paragraph (c)(12), the
following changes are made:
a. In paragraph (c)(12)(ii), in the last sentence, the wording
``technical name of the constituent'' is revised to read ``technical
name of one or more constituents''.
b. In paragraph (c)(12)(iii), in the first sentence, the wording
``by a specific description,'' is revised to read ``specifically by
name (e.g., acetyl chloride),''.
7. In Sec. 172.101, the Hazardous Materials Table, as amended at 61
FR 18932 and 61 FR 27172 effective October 1, 1996, is amended by
adding in alphabetical order or revising the following entries to read
as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
Sec. 172.101 Hazardous Materials Table
Hazardous (8) Packaging (Sec. 173.***) (9) Quantity limitations (10) Vessel stowage
materials Hazard -------------------------------------------------------------------------------------------
Symbols descriptions and class or Identification PG Label codes Special
proper shipping Division Nos. provisions Exceptions Non-bulk Bulk Passenger Cargo aircraft location Other
names aircraft/rail only
(1) (2)............. (3) (4) (5) (6)........ (7)............. (8A)...... (8B) (8C)...... (9A)........... (9B)........... (10A) (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
[ADD:]
D Black powder for 4.1 NA0027 I 4.1........ 70.............. None...... 170 None...... Forbidden...... Forbidden...... E
small arms.
* * * * * * *
[REVISE:]
Hydrogen 6.1 UN3294 I 6.1, 3..... 2,25,B9, None...... 227 244....... Forbidden...... Forbidden...... D 40
cyanide, B14,B32, B74,
solution in T38, T43,T45.
alcohol with
not more than
45 percent
hydrogen
cyanide.
* * * * * * *
Methanesulfonyl 6.1 UN3246 I 6.1, 8..... 2,25, B9, None...... 227 244....... Forbidden...... Forbidden...... D 40
chloride. B14,B32, B74,
T38, T43, T45.
* * * * * * *
+ Methyl vinyl 3 UN1251 II 3, 6.1..... 1,25,B9, None...... 226 244....... Forbidden...... Forbidden...... B 40
ketone. B14,B30,
B72,T38, T43,
T44.
* * * * * * *
Sec. 172.101 [Amended]
8. In addition, in Sec. 172.101, in the Hazardous Materials Table,
the following changes are made:
a. For the entry ``Benzyl chloride'', in column (7), Special
Provision ``N43'' is revised to read ``N42''.
b. For the entry ``Chlorosilanes, corrosive, flammable, n.o.s.'',
in Column (7), Special Provisions ``,T18, T26'' are added following
``B100''.
c. For the entry ``Chlorosilanes, corrosive, nos.'', in Column (7),
Special Provisions, ``T8, T26'' are added following ``B2''.
d. For the entry, ``Chlorosilanes, water-reactive, flammable,
corrosive, n.o.s.'', in Column (7), Special Provisions ``,T24, T26''
are added following ``A2''.
e. For the entries ``Organic peroxide type F, liquid, temperature
controlled'' and ``Organic peroxide type F, solid, temperature
controlled'', in Column (8A), the reference ``225'' is removed each
place it appears and ``None'' added in each place, and in Column (8C),
the
[[Page 50624]]
reference ``None'' is removed each place it appears and ``225'' added
in each place.
f. For the entry ``Organic peroxide type F, solid'', in Column
(8C), the reference ``None'' is removed and ``225'' is added in its
place.
g. For the entry ``Phosphorus pentafluoride'', in Column (7), the
wording ``1'' is removed and ``2, B9, B14'' is added in its place; in
Column (8B) ``302'' is revised to read ``302, 304''; and in Column
(8C), ``None'' is revised to read ``314, 315''.
h. For the entry ``Tungsten hexafluoride'', in Column (7), special
provision ``3'' is revised to read ``2''.
i. For the entries ``Metal carbonyls, n.o.s., UN3281, PG I'';
``Nitriles, toxic, flammable, n.o.s., UN3275, PG I''; ``Nitriles,
toxic, n.o.s., UN3276, PG I''; ``Organoarsenic compound, n.o.s.,
UN3280, PG I''; ``Organophosphorus compound, toxic, flammable, n.o.s.,
UN3279, PG I''; and ``Organophosphorus compound, toxic, n.o.s., UN3278,
PG I'', in Column (7), Special Provision ``5'' is added.
j. For each of the following entries, in Column (8A), the word
``None'' is removed and ``151'' added in its place:
Alkali metal amides
Alkaline earth metal alloys, n.o.s.
Aluminum carbide
Aluminum ferrosilicon powder (both entries)
Aluminum powder, uncoated (both entries)
Aluminum processing by-products (both entries)
Aluminum silicon powder, uncoated
Barium
Calcium
Calcium carbide, in PG II
Calcium cyanamide with more than 0.1 percent of calcium carbide
Calcium manganese silicon
Calcium silicide (both entries)
Cerium, turnings or gritty powder
Ferrosilicon with 30 percent or more but less than 90 percent silicon
Lithium ferrosilicon
Lithium hydride, fused solid
Lithium silicon
Magnesium granules, coated particle size not less than 149 microns
Magnesium powder or Magnesium alloys, powder
Magnesium silicide
Maneb stabilized or Maneb preparations, stabilized against self-heating
Metal hydrides, water-reactive, n.o.s., in PG II
Metallic substance, water-reactive, n.o.s., in PG II and III
Phosphorous pentasulfide, free from yellow or white phosphorous
Sodium aluminum hydride
Water-reactive solid, corrosive, n.o.s., in PG II and III
Water-reactive solid, flammable, n.o.s., in PG II and III
Water-reactive solid, n.o.s., in PG II and III
Water-reactive solid, toxic, n.o.s., in PG II and III
Zinc ashes
9. In Sec. 172.102, in paragraph (c)(1) Special Provisions 25 and
70 are added, in paragraph (c)(3) Special Provision B59 is revised, and
in paragraph (c)(5), Special Provision N42 is added, to read as
follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
* * * * *
25 Until October 1, 1997, this material may be transported or
offered for transportation in a packaging authorized under the
regulations in effect on September 30, 1996.
* * * * *
70 Black powder that has been classed in accordance with the
requirements of Sec. 173.56 of this subchapter may be reclassed and
offered for domestic transportation as a Division 4.1 material if it
is offered for transportation and transported in accordance with the
limitations and packaging requirements of Sec. 173.170 of this
subchapter.
* * * * *
(3) * * *
* * * * *
B59 Water-tight, sift-proof, closed-top, metal-covered hopper
cars are also authorized provided that the lading is covered with a
nitrogen blanket.
* * * * *
(5) * * *
* * * * *
N42 1A1 drums made of carbon steel with thickness of body and
heads of not less than 1.3 mm (0.050 inch) and with a corrosion-
resistant phenolic lining are authorized for stabilized benzyl
chloride if tested and certified to the Packing Group I performance
level at a specific gravity of not less than 1.8.
* * * * *
10. In Sec. 172.302, paragraph (b) is revised to read as follows:
Sec. 172.302 General marking requirements for bulk packagings.
* * * * *
(b) Size of markings. Except as otherwise provided, markings
required by this subpart on bulk packagings must--
(1) Have a width of at least 6.0 mm (0.24 inch) and a height of at
least 100 mm (3.9 inches) for rail cars;
(2) Have a width of at least 4.0 mm (0.16 inch) and a height of at
least 25 mm (one inch) for portable tanks with capacities of less than
3,785 L (1,000 gallons) and intermediate bulk containers; and
(3) Have a width of at least 6.0 mm (0.24 inch) and a height of at
least 50 mm (2.0 inches) for cargo tanks and other bulk packagings.
* * * * *
Sec. 172.504 [Amended]
11. In Sec. 172.504, the last sentence of paragraph (f)(8) is
removed.
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
12. The authority citation for Part 173 continues to read as
follows:
Authority: 49 U.S.C. 5102-5127; 49 CFR 1.53.
13. In Sec. 173.24a, the last sentence of paragraph (a)(3) and
paragraph (b)(2) are revised, to read as follows:
Sec. 173.24a Additional general requirements for non-bulk packagings
and packages.
(a) * * *
(3) * * * Cushioning material must not be capable of reacting
dangerously with the contents of the inner packagings or having its
protective properties significantly weakened in the event of leakage.
* * * * *
(b) * * *
(2) Except as otherwise provided in this section, a non-bulk
packaging may not be filled with a hazardous material to a gross mass
greater than the maximum gross mass marked on the packaging.
* * * * *
Sec. 173.24b [Amended]
14. In Sec. 173.24b, in the first sentence in paragraph (b), the
wording ``stainless steel is steel'' is revised to read ``the reference
stainless steel is stainless steel''.
15. In Sec. 173.28, paragraphs (b)(4) and (b)(7)(iv)(C) are revised
and a new sentence is added in paragraph (c)(2) following the first
sentence, to read as follows:
Sec. 173.28 Reuse, reconditioning and remanufacture of packagings.
* * * * *
(b) * * *
(4) Metal and plastic drums and jerricans used as single packagings
or the outer packagings of composite packagings are authorized for
reuse only when they are marked in a permanent manner (e.g., embossed)
in millimeters with the nominal (for metal packagings) or minimum (for
plastic packagings)
[[Page 50625]]
thickness of the packaging material, as required by Sec. 178.503(a)(9)
of this subchapter, and--
(i) Except as provided in paragraph (b)(4)(ii) of this section,
conform to the following minimum thickness criteria:
------------------------------------------------------------------------
Minimum thickness of packaging material
Maximum capacity not --------------------------------------------------
over Plastic drum or
Metal drum or jerrican jerrican
------------------------------------------------------------------------
20 L................. 0.63 mm (0.025 inch).... 1.1 mm (0.043 inch).
30 L................. 0.73 mm (0.029 inch).... 1.1 mm (0.043 inch).
40 L................. 0.73 mm (0.029 inch).... 1.8 mm (0.071 inch).
60 L................. 0.92 mm (0.036 inch).... 1.8 mm (0.071 inch).
120 L................ 0.92 mm (0.036 inch).... 2.2 mm (0.087 inch).
220 L................ 0.92 mm (0.036 inch) 1.. 2.2 mm (0.087 inch).
450 L................ 1.77 mm (0.070 inch).... 5.0 mm (0.197 inch).
------------------------------------------------------------------------
\1\ Metal drums or jerricans constructed with a minimum thickness of
0.82 mm body and 1.09 mm heads are authorized until December 31, 1996.
After that date, metal drums or jerricans constructed with a minimum
thickness of 0.82 mm body and 1.11 heads are authorized.
(ii) For stainless steel drums and jerricans, conform to a minimum
wall thickness as determined by the following equivalence formula:
Formula for Metric Units
[GRAPHIC] [TIFF OMITTED] TR26SE96.023
Formula for U.S. Standard Units
[GRAPHIC] [TIFF OMITTED] TR26SE96.024
where:
e1=required equivalent wall thickness of the metal to be used (in
mm or, for U.S. Standard units, use inches).
e0=required minimum wall thickness for the reference steel (in mm
or, for U.S. Standard units, use inches).
Rm1=guaranteed minimum tensile strength of the metal to be used
(in N/mm2 or for U.S. Standard units, use pounds per square inch).
A1=guaranteed minimum elongation (as a percentage) of the metal to
be used on fracture under tensile stress (see paragraph (c)(1) of this
section).
* * * * *
(7) * * *
(iv) * * *
(C) another material or thickness when approved under the
conditions established by the Associate Administrator for Hazardous
Materials Safety for reuse without retesting.
(c) * * *
(2) * * * For a UN 1H1 plastic drum, replacing a removable gasket
or closure device with a replacement of the same design and material
which provides equivalent performance does not constitute
reconditioning. * * *
* * * * *
Sec. 173.28 [Amended]
16. In addition, in Sec. 173.28, in the first sentence of paragraph
(c)(2), the wording ``or a UN 1H1 plastic drum'' is added immediately
following the wording ``other than a metal drum''.
17. In Sec. 173.32, in paragraph (d) a new third sentence is added
at the end of the paragraph, in paragraph (e)(2)(i), the second
sentence is revised, and a new paragraph (t) is added, to read as
follows:
Sec. 173.32 Qualification, maintenance and use of portable tanks other
than Specification IM portable tanks.
* * * * *
(d) * * * A stainless steel portable tank internally lined with
polyethylene, which was constructed on or before October 1, 1996, and
complies with all requirements of Specification 57 except that it is
equipped with a polypropylene discharge ball valve and polypropylene
secondary discharge opening closure, may be marked as a Specification
57 portable tank and used in accordance with the provisions of this
section.
(e) * * *
(2) * * *
(i) * * * Each Specification 57 tank must be leak tested by a
minimum sustained air pressure of at least three pounds per square inch
gage applied to the entire tank. * * *
* * * * *
(t) Exemption portable tanks based on DOT 51 portable tanks. (1)
The owner of a portable tank constructed in accordance with and used
under an exemption issued prior to August 31, 1996, that was in
conformance with the requirements for Specification DOT 51 portable
tanks with the exception of the location of fill and discharge outlets,
shall examine the portable tank and its design to determine if it meets
the new outlet requirements contained in Sec. 178.245-1(d) of this
subchapter. If the owner determines that the portable tank is in
compliance with all the requirements of Sec. 178.245 of this
subchapter, the exemption number stenciled on the portable tank shall
be removed and the specification plate (or a plate placed adjacent to
the specification plate) shall be durably marked ``DOT 51--E*****''
(where ***** is to be replaced by the exemption number).
(2) During the period the portable tank is in service, and for one
year thereafter, the owner of the portable tank must retain on file at
its principal place of business a copy of the last exemption in effect.
Sec. 173.115 [Amended]
18. In Sec. 173.115, in paragraph (b)(1), the wording ``(41 psia)''
is revised to read ``(40.6 psia)''.
19. In Sec. 173.120, a new paragraph (b)(3) is added to read as
follows:
Sec. 173.120 Class 3--Definitions.
* * * * *
(b) * * *
(3) A combustible liquid which does not sustain combustion is not
subject to the requirements of this subchapter as a combustible liquid.
A procedure for determining if a material sustains combustion when
heated under test conditions and exposed to an external source of flame
is provided in Appendix H of this part.
* * * * *
Sec. 173.121 [Amended]
20. In Sec. 173.121, in the second sentence of paragraph (a), the
wording ``or indicates that the packing group is to be determined on
the basis of the grouping criteria for Class 3,'' is removed.
21. In Sec. 173.125, paragraph (a) is revised to read as follows:
Sec. 173.125 Class 4--Assignment of packing group.
(a) The packing group of a Class 4 material is assigned in Column
(5) of the Sec. 172.101 Table. When the Sec. 172.101 Table provides
more than one packing group for a hazardous material, the packing group
shall be determined on the basis of test results following test methods
given in appendix E of this part and by applying the appropriate
criteria given in this section.
* * * * *
22. In Sec. 173.127, the section heading is revised, paragraph
(b)(1) is removed, paragraphs (b)(2) and (b)(3) are redesignated as
paragraphs (b)(1) and (b)(2), and the paragraph (b) heading and the
newly designated paragraph (b)(1) introductory text are revised to read
as follows:
Sec. 173.127 Class 5, Division 5.1--Definition and assignment of
packing grou
FR Doc. 96-24398 Performance-Oriented Packaging Standards; Final Transitional Provisions
ps.
* * * * *
(b) Assignment of packing group. (1) The packing group of a
Division 5.1 material shall be as assigned in Column (5) of the
Sec. 172.101 Table. When the Sec. 172.101 Table provides more than one
packing group for a hazardous material,
[[Page 50626]]
the packing group shall be determined on the basis of test results
following test methods given in appendix F of this part and by applying
the following criteria:
* * * * *
Sec. 173.133 [Amended]
23. In Sec. 173.133, in paragraph (a) introductory text, in the
second sentence, the wording ``more than one packing group and hazard
zone'' is revised to read ``more than one packing group or hazard
zone''.
24. In Sec. 173.134, the introductory text of paragraph (b)(3)(ii)
is revised and a new paragraph (b)(4) is added to read as follows:
Sec. 173.134 Class 6, Division 6.2--Definitions, exceptions and
packing group assignments.
* * * * *
(b) * * *
(3) * * *
(ii) For other than a waste culture or stock of an infectious
substance, the specific packaging requirements of Sec. 173.197, if
packaged in a rigid non-bulk packaging conforming to--
* * * * *
(4) A waste culture or stock of infectious substances may be
offered for transportation and transported as a regulated medical waste
when the culture or stock--
(i) Conforms to Biosafety Level 1, 2 or 3, as defined in HHS
Publication No. (CDC) 93-8395, Biosafety in Microbiological and
Biomedical Laboratories. 3rd Edition, May 1993, Section II;
(ii) Is packaged in accordance with requirements specified in
Sec. 173.197; and
(iii) Is transported by a private or contract carrier using a
vehicle dedicated to the transportation of medical waste.
* * * * *
25. In Sec. 173.151, the section heading is revised and a new
paragraph (d) is added to read as follows:
Sec. 173.151 Exceptions for Class 4.
* * * * *
(d) Limited quantities of Division 4.3 (dangerous when wet)
material. Limited quantities of Division 4.3 (dangerous when wet)
solids in Packing Groups II and III are excepted from labeling, unless
offered for transportation or transported by aircraft, and the
specification packaging requirements of this subchapter when packaged
in combination packagings according to this paragraph. In addition,
shipments of limited quantities are not subject to subpart F
(Placarding) of part 172 of this subchapter. Each package must conform
to the packaging requirements of subpart B of this part and may not
exceed 30 kg (66 pounds) gross weight. The following combination
packagings are authorized:
(1) For Division 4.3 solids in Packing Group II, inner packagings
not over 0.5 kg (1.1 pound) net capacity each, packed in strong outer
packagings; and
(2) For Division 4.3 solids in Packing Group III, inner packagings
not over 1 kg (2.2 pounds) net capacity each, packed in strong outer
packagings.
26. In Sec. 173.156, paragraph (b) is revised to read as follows.
Sec. 173.156 Exceptions for ORM materials.
* * * * *
(b) ORM-D. Packagings for ORM-D materials are specified according
to hazard class in Secs. 173.150 through 173.155 and in Sec. 173.306.
In addition to other exceptions specified for ORM-D materials in this
part:
(1) Strong outer packagings as specified in this part, the marking
requirements specified in Sec. 172.316 of this subchapter, and the 30
kg (66 pounds) gross weight limitation are not required for materials
classed as ORM-D when--
(i) Unitized in cages, carts, boxes or similar overpacks;
(ii) Offered for transportation or transported by:
(A) Rail;
(B) Private or contract motor carrier; or
(C) Common carrier in a vehicle under exclusive use for such
service; and
(iii) Transported to or from a manufacturer, a distribution center,
or a retail outlet, or transported to a disposal facility from one
offeror.
(2) The 30 kg (66 pounds) gross weight limitation does not apply to
materials classed as ORM-D when offered for transportation, or
transported, by highway or rail between a manufacturer, a distribution
center, and a retail outlet provided--
(i) Inner packagings conform to the quantity limits for inner
packagings specified in Secs. 173.150(b), 173.152(b), 173.154(b),
173.155(b) and 173.306 (a) and (b), as appropriate;
(ii) The inner packagings are packed into corrugated fiberboard
trays to prevent them from moving freely;
(iii) The trays are placed in a fiberboard box which is banded and
secured to a wooden pallet by metal, fabric, or plastic straps, to form
a single palletized unit;
(iv) The package conforms to the general packaging requirements of
subpart B of this part;
(v) The maximum net quantity of hazardous material permitted on one
palletized unit is 250 kg (550 pounds); and
(vi) The package is properly marked in accordance with Sec. 172.316
of this subchapter.
27. In Sec. 173.158, paragraph (d) is revised, and paragraph (f)(1)
is amended by adding a second sentence at the end of the paragraph to
read as follows:
Sec. 173.158 Nitric acid.
* * * * *
(d) Nitric acid of 90 percent or greater concentration, when
offered for transportation or transported by rail, highway, or water
may be packaged as follows:
(1) In 4C1, 4C2, 4D or 4F wooden boxes with inner packagings
consisting of glass bottles further individually overpacked in tightly
closed metal packagings. Glass bottles must be of 2.5 L (0.66 gallon)
or less capacity and cushioned with a non-reactive, absorbent material
within the metal packagings.
(2) In combination packagings with 1A2, 1B2, 1D, 1G, 1H2, 3H2 or 4G
outer packagings with inner glass packagings of 2.5 L (0.66 gallons) or
less capacity cushioned with a non-reactive, absorbent material and
packed within a tightly closed intermediate packaging of metal or
plastic.
(f) * * *
(1) * * * 6HH1 and 6HA1 composite packaging with plastic inner
receptacles meeting the compatibility requirements Sec. 173.24(e)
(e.g., PFA Teflon) are authorized.
* * * * *
28. Section 173.170 is added to read as follows:
Sec. 173.170 Black powder for small arms.
Black powder for small arms that has been classed in Division 1.1
may be reclassed as a Division 4.1 material, for domestic
transportation by motor vehicle, rail freight, and cargo vessel only,
subject to the following conditions:
(a) The powder must be examined and approved for Division 1.1 and
Division 4.1 classification in accordance with Secs. 173.56 and 173.58;
(b) The total quantity of black powder in one motor vehicle, rail
car, or freight container may not exceed 45.4 kg (100 pounds) net mass,
and no more than four freight containers may be on board one cargo
vessel;
(c) The black powder must be packed in inner metal or heavy wall
conductive plastic receptacles not over 450 g (15.9 ounces) net
capacity each, with no more than 25 cans in one outer UN 4G fiberboard
box. The inner packagings must be arranged and protected so as to
[[Page 50627]]
prevent simultaneous ignition of the contents. The complete package
must be of the same type which has been examined as required in
Sec. 173.56;
(d) Each completed package must be marked ``BLACK POWDER FOR SMALL
ARMS'' and ``NA 0027''; and
(e) Each package must bear the FLAMMABLE SOLID label.
Sec. 173.183 [Amended]
29. In Sec. 173.183, in paragraphs (a) and (b), the wording ``,
polypropylene canister,'' is added immediately following the wording
``closed metal can'' each place it appears.
30. In Sec. 173.225, in paragraph (a), a new sentence is added as
the penultimate sentence to read as follows:
Sec. 173.225 Packaging requirements and other provisions for organic
peroxides.
(a) * * * No used material, other than production residues or
regrind from the same production process, may be used in plastic
packagings. * * *
* * * * *
31. In Sec. 173.306, paragraph (i)(1) is removed, paragraphs (i)(2)
through (i)(4) are redesignated as paragraphs (i)(1) through (i)(3),
respectively, and the introductory text in paragraph (i) is revised to
read as follows:
Sec. 173.306 Limited quantities of compressed gases.
* * * * *
(i) An aerosol is flammable if a positive test result is obtained
using any of the following test methods:
* * * * *
32. In Sec. 173.314, as amended at 61 FR 28676, effective October
1, 1996, in the paragraph (c) table, Note 2 is revised and Notes 9 and
10 are added, to read as follows:
Sec. 173.314 Compressed gases in tank cars and multi-unit tank cars.
* * * * *
(c) * * *
Notes:
* * * * *
2. The liquefied gas must be loaded so that the outage is at
least two percent of the total capacity of the tank at the reference
temperature of 46 deg. C (115 deg. F) for a noninsulated tank;
43 deg. C (110 deg. F) for a tank having a thermal protection system
incorporating a metal jacket that provides an overall thermal
conductance at 15.5 deg. C (60 deg. F) of no more than 10.22
kilojoules per hour per square meter per degree Celsius (0.5 Btu per
hour/per square foot/per degree F) temperature differential; and
41 deg. C (105 deg. F) for an insulated tank having an insulation
system incorporating a metal jacket that provides an overall thermal
conductance at 15.5 deg. C (60 deg. F) of no more than 1.5333
kilojoules per hour per square meter per degree Celsius (0.075 Btu
per hour/per square foot/per degree F) temperature differential.
* * * * *
9. For a liquefied petroleum gas, the liquefied gas must be
loaded so that the outage is at least one percent of the total
capacity of the tank at the reference temperature of 46 deg. C
(115 deg. F) for a noninsulated tank; 43 deg. C (110 deg. F) for a
tank having a thermal protection system incorporating a metal jacket
that provides an overall thermal conductance at 15.5 deg. C (60 deg.
F) of no more than 10.22 kilojoules per hour per square meter per
degree Celsius (0.5 Btu per hour/per square foot/per degree F)
temperature differential; and 41 deg. C (105 deg. F) for an
insulated tank having an insulation system incorporating a metal
jacket that provides an overall thermal conductance at 15.5 deg. C
(60 deg. F) of no more than 1.5333 kilojoules per hour per square
meter per degree Celsius (0.075 Btu per hour/per square foot/per
degree F) temperature differential.
10. For liquefied petroleum gas and anhydrous ammonia, during
the months of November through March (winter), the following
reference temperatures may be used: 38 deg. C (100 deg. F) for a
noninsulated tank; 32 deg. C (90 deg. F) for a tank having a thermal
protection system incorporating a metal jacket that provides an
overall thermal conductance at 15.5 deg. C (60 deg. F) of no more
than 10.22 kilojoules per hour per square meter per degree Celsius
(0.5 Btu per hour/per square foot/per degree F) temperature
differential; and 29 deg. C (85 deg. F) for an insulated tank having
an insulation system incorporating a metal jacket and insulation
that provides an overall thermal conductance at 15.5 deg. C (60 deg.
F) of no more than 1.5333 kilojoules per hour per square meter per
degree Celsius (0.075 Btu per hour/per square foot/per degree F)
temperature differential. The winter reference temperatures may only
be used for a tank car shipped directly to a consumer for unloading
and not stored in transit. The offeror of the tank must inform each
customer that the tank car was filled based on winter reference
temperatures. The tank must be unloaded as soon as possible after
March in order to retain the specified outage and to prevent a
release of hazardous material which might occur due to the tank car
becoming liquid full at higher temperatures.
* * * * *
Sec. 173.314 [Amended]
33. In addition, in Sec. 173.314, in the paragraph (c) table, as
amended at 61 FR 28676, effective October 1, 1996, the following
changes are made:
a. For the entry ``Ammonia, anhydrous, or ammonia solutions >50
percent ammonia'', in Column 2, the wording ``Note 2'' is removed and
``Notes 2, 10'' added in its place.
b. For the entry ``Division 2.1 materials not specifically provided
in this table'' in Column 2, the wording ``Note 3'' is removed and the
wording ``Notes 9, 10'' added in its place.
Appendix H to Part 173--[Amended]
34. In Appendix H to Part 173, the second sentence of paragraph
5.(b) is revised and in paragraph 5.(h), a second sentence is added at
the end of the paragraph to read as follows:
Appendix H to Part 173--Method of Testing for Sustained
Combustibility
* * * * *
5. * * *
(b) * * * For the appropriate test temperature, see paragraph
5.(h) of this appendix. * * *
* * * * *
(h) * * * In the case of a material which has a flash point
above 60.5 deg. C (141 deg. F) and below 93 deg. C (200 deg. F), if
sustained combustion interpreted in accordance with paragraph 6. of
this appendix is not found at a test temperature of 5 deg. C (9 deg.
F) above its flash point, repeat the complete procedure with new
test portions, but at a test temperature of 20 deg. C (36 deg. F)
above its flash point.
* * * * *
PART 178--SPECIFICATIONS FOR PACKAGINGS
35. The authority citation for part 178 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
36. Section 178.245-1 is revised to read as follows:
Sec. 178.245-1 Requirements for design and construction.
(a) Tanks must be seamless or welded steel construction or
combination of both and have a water capacity in excess of 454 kg
(1,000 pounds). Tanks must be designed, constructed, certified and
stamped in accordance with the ASME Code.
(b) Tanks must be postweld heat treated and radiographed as
prescribed in the ASME Code except that each tank constructed in
accordance with part UHT of the ASME Code must be postweld heat
treated. Where postweld heat treatment is required, the tank must be
treated as a unit after completion of all the welds in and/or to the
shell and heads. The method must be as prescribed in the ASME Code.
Welded attachments to pads may be made after postweld heat treatment is
made. A tank used for anhydrous ammonia must be postweld heat treated.
The postweld heat treatment must be as prescribed in the ASME Code, but
in no event at less than 1050 deg. F tank metal temperature.
Additionally, tanks constructed in accordance with part UHT of the ASME
Code must conform to the following requirements:
(1) Welding procedure and welder performance tests must be made
[[Page 50628]]
annually in accordance with section IX of the ASME Code. In addition to
the essential variables named therein, the following must be considered
to be essential variables: number of passes, thickness of plate, heat
input per pass, and manufacturer's identification of rod and flux. The
number of passes, thickness of plate and heat input per pass may not
vary more than 25 percent from the procedure qualification. Records of
the qualification must be retained for at least 5 years by the tank
manufacturer and made available to duly identified representatives of
the Department of Transportation or the owner of the tank.
(2) Impact tests must be made on a lot basis. A lot is defined as
100 tons or less of the same heat and having a thickness variation no
greater than plus or minus 25 percent. The minimum impact required for
full-sized specimens shall be 20 foot-pounds (or 10 foot-pounds for
half-sized specimens) at 0 deg. F Charpy V-Notch in both the
longitudinal and transverse direction. If the lot test does not pass
this requirement, individual plates may be accepted if they
individually meet this impact requirement.
(c) Except as provided in paragraph (d) of this section, all
openings in the tank shall be grouped in one location, either at the
top of the tank or at one end of the tank.
(d) The following openings may be installed at locations other than
on the top or end of the tank:
(1) The openings for liquid level gauging devices, pressure gauges,
or for safety devices, may be installed separately at the other
location or in the side of the shell;
(2) One plugged opening of 2-inch National Pipe Thread or less
provided for maintenance purposes may be located elsewhere;
(3) An opening of 3-inch National Pipe Size or less may be provided
at another location, when necessary, to facilitate installation of
condensing coils; or
(4) Filling and discharge connections may be installed below the
normal liquid level of the tank if the tank design conforms to the
following requirements:
(i) The tank must be permanently mounted in a full framework for
containerized transport. For each tank design, a prototype tank, must
fulfill the requirements of parts 450 through 453 of this title for
compliance with the requirements of Annex II of the International
Convention for Safe Containers.
(ii) Each filling and discharge connection must be equipped with an
internal self-closing stop-valve capable of closing within 30 seconds
of actuation. Each internal self-closing stop-valve must be protected
by a shear section or sacrificial device located outboard of the valve.
The shear section or sacrificial device must break at no more than 70
percent of the load that would cause failure of the internal self-
closing stop- valve.
(iii) Each internal self-closing stop-valve must be provided with
remote means of automatic closure, both thermal and mechanical. The
thermal means of automatic closure must actuate at a temperature of not
over 250 deg. F.
(e) Each uninsulated tank used for the transportation of compressed
gas, as defined in Sec. 173.300 of this subchapter, must have an
exterior surface finish that is significantly reflective, such as a
light reflecting color if painted, or a bright reflective metal or
other material if unpainted.
37. In Sec. 178.245-4, a new paragraph (e) is added to read as
follows:
Sec. 178.245-4 Tank mountings.
* * * * *
(e) A DOT 51 portable tank that meets the definition of
``container'' in Sec. 450.3(a)(3) of this title must meet the
requirements of parts 450 through 453 of this title, in addition to the
requirements of this subchapter.
Sec. 178.245-6 [Amended]
38. In Sec. 178.245-6, in the first sentence of paragraph (a), the
wording ``on one of the heads of the tank'' is revised to read ``in
close proximity to the ASME ``U'' stamp certification''.
39. In Sec. 178.270-12, in paragraph (a), the first two sentences
are revised to read as follows:
Sec. 178.270-12 Valves, nozzles, piping, and gauging devices.
(a) All tank nozzles, except those provided for filling and
discharge connections below the normal liquid level of the tank, relief
devices, thermometer wells, and inspection openings, must be fitted
with manually operated stop valves located as near the shell as
practicable either internal or external to the shell. Each filling and
discharge connection located below the normal liquid level of the tank
must be equipped with an internal discharge valve. * * *
* * * * *
40. In Sec. 178.601, the word ``or'' is removed at the end of
paragraph (c)(4)(iv), the period at the end of paragraph (c)(4)(v) is
removed and ``; or'' added in its place and new paragraphs (c)(4)(vi)
and (g)(8) are added to read as follows:
Sec. 178.601 General requirements.
* * * * *
(c) * * *
(4) * * *
(vi) For a steel drum, variations in design elements which do not
constitute a different design type under the provisions of paragraph
(g)(8) of this section.
* * * * *
(g) * * *
(8) For a steel drum with a capacity greater than 50 L (13 gallons)
manufactured from low carbon, cold-rolled sheet steel meeting ASTM
designations A366/A366M or A568/A568M, variations in elements other
than the following design elements are considered minor and do not
constitute a different drum design type, or ``different packaging'' as
defined in paragraph (c) of this section for which design qualification
testing and periodic retesting are required. Minor variations
authorized without further testing include changes in the identity of
the supplier of component material made to the same specifications, or
the original manufacturer of a DOT specification or UN standard drum to
be remanufactured. A change in any one or more of the following design
elements constitutes a different drum design type:
(i) The packaging type and category of the original drum and the
remanufactured drum, i.e., 1A1 or 1A2;
(ii) The style, (i.e., straight-sided or tapered);
(iii) Except as provided in paragraph (g)(3) of this section, the
rated (marked) capacity and outside dimensions;
(iv) The physical state for which the packaging was originally
approved (e.g., tested for solids or liquids);
(v) An increase in the marked level of performance of the original
drum (i.e., to a higher packing group, hydrostatic test pressure, or
specific gravity to which the packaging has been tested);
(vi) Type of side seam welding;
(vii) Type of steel;
(viii) An increase greater than 10% or any decrease in the steel
thickness of the head, body, or bottom;
(ix) End seam type, (e.g., triple or double seam);
(x) A reduction in the number of rolling hoops which equal or
exceed the diameter over the chimes;
(xi) The location, type or size, and material of closures (other
than the cover of UN 1A2 drums); and
(xii) For UN 1A2 drums:
(A) Gasket material (e.g., plastic), or properties affecting the
performance of the gasket;
(B) Configuration or dimensions of the gasket;
[[Page 50629]]
(C) Closure ring style including bolt size, (e.g., square or round
back, 0.625'' bolt); and
(D) Closure ring thickness.
* * * * *
41. In Sec. 178.705, in paragraph (c)(2)(ii), a new sentence is
added after the first sentence to read as follows.
Sec. 178.705 Standards for metal intermediate bulk containers.
* * * * *
(c) * * *
(2) * * *
(ii) * * * This does not apply to fusible devices unless such
devices are the only source of pressure relief for the IBC. * * *
Sec. 178.705 [Amended]
42. In addition, in Sec. 178.705, in paragraph (c)(1)(iv)(B), in
the second formula, the Formula for U.S. Standard units, the number
``544'' is revised to read ``21.4''.
Issued in Washington, DC on September 18, 1996 under authority
delegated in 49 CFR part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-24398 Filed 9-25-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-24316 Rules of Practice Amendments
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50640-50651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24316]
[[Page 50639]]
_______________________________________________________________________
Part VI
Federal Trade Commission
_______________________________________________________________________
16 CFR Part 2, et al.
Rules of Practice Amendments; Final Rule
Federal Register / Vol. 61, No. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50640]]
FEDERAL TRADE COMMISSION
16 CFR Parts 2, 3, and 4
Rules of Practice Amendments
AGENCY: Federal Trade Commission (FTC).
ACTION: Interim rules with request for comments.
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SUMMARY: The FTC is amending its Rules of Practice for adjudicatory
proceedings. The amendments are expected to reduce the cost,
complexity, and length of FTC adjudicatory proceedings by clarifying
and streamlining the agency procedures governing such proceedings.
DATES: These rule amendments are effective on September 26, 1996.
Comments must be received on or before November 25, 1996. Dates of
Applicability: These amendments will govern all Commission adjudicatory
proceedings that are commenced on or after January 1, 1997. They will
also govern all Commission adjudicatory proceedings that are currently
pending and all proceedings that are commenced before January 1, 1997,
except to the extent that, in the opinion of the Administrative Law
Judge (ALJ) or the Commission, the application of one or more amended
rules in a particular proceeding would not be feasible or would work
injustice.
ADDRESSES: Written comments must be submitted in 20 copies to the
Office of the Secretary, Room 159, Federal Trade Commission, 6th Street
& Pennsylvania Avenue, N.W., Washington, D.C. 20580. Individuals filing
comments need not submit multiple copies.
FOR FURTHER INFORMATION CONTACT: Cynthia Hogue Levy, (202) 326-2158,
Jonathan Luna, (202) 326-2444, or Alex Tang, (202) 326-2447, Attorneys,
Office of General Counsel, FTC, Sixth Street & Pennsylvania Avenue,
N.W., Washington, D.C. 20580.
SUPPLEMENTARY INFORMATION: On May 30, 1995, FTC Chairman Robert
Pitofsky announced the formation of a special Task Force on
Administrative Adjudication (``Task Force'') to review FTC rules and
policies governing the conduct of administrative litigation at the
Commission (``Part 3 Rules''). The Task Force developed recommendations
for clarifying and streamlining current procedures for adjudication
before the Commission.
As the Commission has previously recognized, unnecessary delay in
adjudications can have a negative impact on the Commission's
adjudicatory program and law enforcement mission. The agency's
longstanding policy has been that, to the extent practicable and
consistent with requirements of law, adjudicative proceedings shall be
conducted expeditiously and that both the Administrative Law Judge and
litigants shall make every effort to avoid delay at each stage of a
proceeding. 16 CFR 3.1. Unnecessarily long proceedings waste Commission
and private resources. Delay can extend legal uncertainty for
respondents and third parties, and may reduce the efficacy of any
remedies resulting from such proceedings. Delay may also lessen the
quality of agency decisions when evidence becomes stale. The risk of
lengthy proceedings may also undermine administrative adjudication as a
valid alternative when parties are deciding whether to settle a matter.
While some respondents may benefit, others may feel unduly pressured to
settle if they believe that Part 3 litigation will entail a substantial
commitment of time and resources. Similarly, the expectation of
unnecessarily lengthy administrative litigation may lead Commission
staff to recommend Commission acceptance of an unduly limited
settlement. The length of time taken in FTC proceedings may also be a
factor that some courts consider in deciding whether to grant a
preliminary injunction pending the outcome of the Commission's
administrative proceeding. FTC v. Freeman Hosp., 1995-1, Trade Cas.
(CCH) para. 71,037 at 74,893 n.8 (D. Mo. 1995), aff'd, 69 F. 3d 260
(8th Cir. 1995).
In light of such concerns, the Commission has made several efforts
over the years to identify ways to make Part 3 proceedings more
efficient without sacrificing the quality of decisionmaking or
compromising the procedural rights of parties in such proceedings. In
1985, for example, the Commission adopted various rule changes
specifically designed to improve prehearing case management and
expedite Part 3 proceedings, including the existing requirement
regarding the timely initiation of evidentiary hearings. 50 FR 41485
(Oct. 11, 1985).
More recently, the Commission has made further strides to reduce
the time taken to render decisions in adjudicative proceedings.\1\ In
April 1994, the Commission set internal deadlines for the preparation
and issuance of final orders and opinions in appeals from an initial
decision. This schedule established deadlines for each of the principal
stages of preparation of adjudicative opinions, including separate
statements. Under the new schedule it is expected that the drafting
process is the usual adjudicative proceeding should generally span
approximately eight (8) months (following oral argument before the
Commission). To ensure that its adjudicative decisionmaking remains on
schedule, the Commission meets quarterly, or more often when necessary,
to review the progress of each pending adjudicative matter on appeal
before the Commission.
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\1\ In announcing institutional improvements at the agency,
then-Chairman Steiger explained that the Commission had determined
to take action to address criticisms of delay that were contained in
a Task Force Report of the American Bar Association. See Prepared
Remarks of Chairman Janet D. Steiger Before Section of Antitrust
Law, American Bar Association (Apr. 8, 1994) (referring to Report of
the American Bar Association Section of Antitrust Law Special
Committee to Study the Role of the Federal Trade Commission, 58
ANTITRUST L.J. 43 (1989)).
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Since implementing a deadline schedule governing its own conduct in
the preparation of final orders and opinions in adjudicative
proceedings, the Commission has disposed of a backlog of cases pending
when the schedule was adopted. Currently, there is one adjudicative
proceeding pending before the Commission on appeal.
Building upon these past actions, the Commission has determined to
adopt further procedural rule changes as set forth below. The
Commission believes that these changes will advance its goal of
assuring the public that administrative law enforcement proceedings
will be resolved fairly and within a reasonable time.
The Commission also encourages the ALJs to consider implementing
other techniques, besides the rule amendments announced in this notice,
to expedite action in each adjudicatory proceeding. Efficient
adjudication required affirmative case management, and ALJs have broad
powers under Rule 3.42(c) that should be used fully to balance the
interests in expedition and fairness.
Two techniques for expediting evidentiary hearings particularly
merit attention by the ALJs. First, the Commission encourages the ALJs
generally to conduct the evidentiary hearing by using consecutive, full
trial days. Historical data for the past ten years indicate that while
the average evidentiary trial spans over three (3) months, only thirty
of those days are actual trial days. Normally conducting proceedings on
consecutive days, in most cases, would enable the ALJ and the litigants
to use the period designated for trial to its fullest advantage.
[[Page 50641]]
Second, in appropriate cases the ALJs should encourage the parties
to submit the direct examination of expert witnesses in writing, in
lieu of live direct examination, reserving live testimony for the
cross-examination. This practice would reduce the time necessary for
the presentation of direct testimony but still allow the ALJ to assess
the demeanor and credibility of expert witnesses. Submission of direct
expert testimony in writing may result in more focused cross-
examination and would afford both the parties and the ALJ an
opportunity to identify in advance any questions raised by the expert's
direct testimony.
The Commission also invites the ALJs to exercise their discretion
in regulating the course of adjudicative proceedings in a manner that
expedites proceedings, consistent with due process considerations. For
instance, ALJs may wish to consider requiring that, in appropriate
circumstances, proposed findings of fact and conclusions of law be
submitted by the parties before, rather than after, trial. In certain
proceedings, this practice could instill more rigor in the litigants'
presentation of evidence at trial, while also aiding the ALJ in
monitoring the introduction of evidence and in preparing findings of
fact and conclusions of law after the evidentiary hearing. ALJs may
wish to utilize an alternative procedure, either in conjunction with,
or in lieu of, pretrial findings of fact and conclusions of law. For
example, an ALJ may require the parties to submit proposed stipulations
and contentions to further narrow the legal and factual issues to be
presented during the evidentiary hearing. See e.g., United States v.
American Telephone & Telegraph Co., 552 F. Supp. 131, 140 (D.D.C.
1982).
As a further step in expediting administrative adjudication, the
Commission has determined to establish an alternative ``fast track''
schedule that respondents may elect in appropriate administrative
proceedings.\2\ The option is available when a federal district court
has granted a preliminary injunction in a collateral federal court
proceeding, brought by the Commission to challenge some or all of the
same conduct at issue in the administrative proceeding.\3\ Under the
fast track schedule, the Commission would issue a final order and
opinion within thirteen (13) months after the latest of the following
events (``triggering event''): (1) Issuance of an administrative
complaint; (2) entry of a preliminary injunction by a federal district
court; or (3) the date on which respondent elects the fast track. This
deadline may be amended by the Commission only in the following two
circumstances: (1) If the Commission's final order or opinion contains
material or information designated for in camera treatment, thus
obliging the agency to provide advance notification of the Commission's
intent to disclose that information to submitters of such in camera
material or information; or (2) if the Commission determines that
adherence to the thirteen-month deadline would result in a miscarriage
of justice due to circumstances unforeseen at the time of respondent's
election of the fast track proceeding.
---------------------------------------------------------------------------
\2\ The new procedure could apply to any administrative
adjudication specifically designated by the Commission in which the
agency also seeks a preliminary injunction to enjoin the same
conduct challenged in the administrative complaint. The Commission
expects that most such cases will involve challenges to mergers and
acquisitions.
\3\ If the preliminary injunction is later vacated, the
Commission, in its discretion, may take such action as it deems
appropriate in the administrative adjudication.
---------------------------------------------------------------------------
When the Commission determines to authorize its staff to seek a
preliminary injunction in federal court, the agency may also determine
to advise the respondent that the respondent may elect the fast track
schedule if the federal district court preliminarily enjoins the
challenged conduct. Such notice will be provided to the prospective
respondent at the time it is notified of the Commission's action
authorizing the preliminary injunction motion. The Commission expects
that the fast track procedure will be available to respondents in the
typical merger challenge; however, certain cases may appear too complex
at the outset to be designated as appropriate for the fast track
schedule. In such instances, the Commission would not notify the
respondent respecting an option to elect the fast track.
The new rule specifies the period of time within which a potential
respondent must elect the fast track schedule. In administrative
proceedings involving multiple respondents, the fast track schedule
will be available only if all respondents elect it.
The Commission expects that the expedited deadlines imposed under
the fast track procedures will require active management by the ALJ.
Although the new fast track rule specifies certain interim deadlines,
the time frames for other interim stages are left to the ALJ's
discretion. Thus, the length of time to be allotted for discovery, the
evidentiary hearing, and post-trial written submissions are to be set
by the ALJ, in keeping with the fast track requirement that the ALJ
must file the initial decision within one hundred ninety-five (195)
days after the triggering event specified in new Sec. 3.11A. The
Commission anticipates that in a typical proceeding governed by the
fast track schedule, discovery will be completed within three (3)
months, the evidentiary hearing will span no longer than six weeks, and
post-trial submissions will be submitted within four weeks following
the conclusion of the evidentiary hearing.
The ALJ may in his discretion treat discovery from the preliminary
injunction hearing and transcripts of testimony in the preliminary
injunction proceeding as if the material had been discovered and
presented in the administrative proceeding. The ALJ may limit the
number of depositions, witnesses, or document production under his
plenary authority. See 16 CFR 3.42(c)(6).
The fast track appellate procedure before the Commission differs
from that governing the standard administrative adjudication. In
addition to the shorter time frame required for issuance of the
Commission's final order and opinion, the fast track procedure requires
the simultaneous filing of the parties' initial appeal briefs (rather
than the staggered cross-appeal procedure permitted under Rule
3.52(c)). The Commission's final order and opinion in the proceeding
will be ready for issuance within one hundred ninety-five (195) days
after the filing of the ALJ's initial decision.\4\
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\4\ The Commission's final order and opinion will be ready for
issuance within the specified time period, except that, if the
Commission's order or opinion contains material or information that
has been designated for in camera treatment, its issuance may be
delayed to the extent necessary to provide the submitters of such
material or information with advance notice of the Commission's
intent to release such information in the final order or opinion in
the proceeding.
---------------------------------------------------------------------------
The thirteen (13) month deadline contemplated under the new
procedural rule compares favorably with the schedules followed by
federal district courts in a number of permanent injunction hearings
involving mergers. Since 1986, the Department of Justice Antitrust
Division has litigated eight merger enforcement actions on the merits
in permanent injunction proceedings in federal court.\5\ On average,
these cases spanned approximately ten (10) months from filing of the
complaint to issuance of the district court opinion.See generally
United States v. Mercy Health Services, 902 F. Supp. 968 (N.D. Iowa
1995)--complaint to opinion: 141 days (including ten-day trial); United
States v. Nat. L.C., and D.R. Partners D/B/A Donrey Media Group, 892 F.
Supp 1146 (W.D. Ark. 1995)--complaint to
[[Page 50642]]
opinion: ninety-four days (including eight-day trial); United States v.
United Tote, Inc., 768 F. Supp. 1064 (D. Del. 1991)--complaint to
opinion: 422 days [1.2 years] (including six-day trial); United States
v. Baker Hughes, Inc., 731 F. Supp. 3 (D.D.C. 1990)--complaint to
opinion: seventy days (including one-day trial); United States v. The
Rank Organisation plc, 1990-2 Trade Cas. (CCH) para.69,257 (C.D. Cal.
1990)--complaint to opinion: 141 days (including eight-day trial);
United States v. Rockford Memorial Corp., 717 F. Supp. 1251 (N.D. Ill.
1989)--complaint to opinion: 267 days (including nineteen-day trial);
United States v. Syufy Enterprises, 712 F. Supp. 1386 (N.D. Cal 1989)--
complaint to opinion: 973 days (2.6 years) (including eight-day trial);
and United States v. Carilion Health System, 707 F. Supp. 840 (W.D. Va.
1989)--complaint to opinion: 262 days (including twenty-six day trial).
The Commission's new procedures entail a slightly longer period of time
than the instances cited, because they contemplate both a trial and an
administrative appellate process. Because an initial decision by an ALJ
is followed by de novo review of the initial decision by the
Commission, the longer time frame is necessary. The Commission believes
this expedited time frame is both realistic and a reasonable period
within which such adjudications should be resolved.
---------------------------------------------------------------------------
\5\ Some of these cases involved a consolidation of both the
preliminary and permanent injunction proceedings.
---------------------------------------------------------------------------
In addition to the rule amendments announced today, the Commission
has determined to implement the following two institutional
improvements that are intended to make information more readily
available to the public regarding both the agency's case management of
its adjudicative docket and interlocutory rulings issued by ALJs in
adjudicative proceedings. Neither procedure requires amendment to the
agency's Rules of Practice. First, the Commission has directed that a
quarterly status report reflecting the progress of pending
adjudications before ALJs be made publicly available. Such reports
would include, inter alia, the dates on which milestone events in a
particular proceeding occurred (e.g., filing of the administrative
complaint, respondent's answer, scheduling conference before the ALJ,
issuance of the ALJ's scheduling order, close of discovery, final
pretrial conference, commencement and conclusion of the evidentiary
hearing, and filing of the ALJ's initial decision). The Commission has
concluded that disclosure of information about the agency's
adjudication program caseload would increase awareness of the
importance of the program and promote public confidence in its
efficiency and fairness. Similar status reports are prepared to
describe the status of cases pending in federal district courts, in
keeping with the provisions of the Civil Justice Reform Act of 1990. 28
U.S.C. 476 (requiring semiannual reporting of, inter alia, bench trials
and motions that have been submitted for more than six (6) months and
the number of cases that have not been terminated within three years
after filing).
Second, the Commission has determined to make ALJ interlocutory
orders in adjudicative proceedings more readily available to the
public. Currently, some, but not all, ALJ interlocutory orders are
widely available to the public through legal research resources. Recent
technological advances will soon enable the agency to make significant
ALJ interlocutory orders available to the public through electronic
means via the Internet. Accordingly, the Commission has committed
itself to making such interlocutory orders available to the public
through such means during the next fiscal year.
The specific rule amendments that the Commission is adopting at
this time are as follows:
A. Imposing Tighter Deadlines
1. Rule 3.12(a) is being amended to shorten the dead-line for the
filing of an answer after service of the administrative complaint. The
rule currently allows thirty (30) days for the filing of the answer.
The revised rule shortens this period to twenty (20) days, in
conformity with the Federal Rules of Civil Procedure (``Federal
Rules''). See Fed. R. Civ. P. 12(a)(1)(A). The Commission believes
twenty (20) days should be adequate, since the Commission sees no
reason why an FTC complaint should take any longer to answer than does
a federal court complaint.
2. Rule 3.21 is being amended to require that the scheduling
conference be held within seven (7) calendar days after filing of the
answer, and that the scheduling order be issued by the ALJ within two
(2) days thereafter. Since respondents in agency adjudications have
already been on notice of the Commission's investigation, a week should
be sufficient time for the parties to prepare for the preliminary
matters to be discussed at the scheduling conference (e.g., general
discovery plan, timetable for the proceeding). Similarly, no more than
two (2) days, rather than the two (2) weeks currently allowed by the
current rule, should be necessary for an ALJ to prepare and issue a
scheduling order once the scheduling conference has concluded.
3. Rule 3.51(a) is being amended to require explicitly that the ALJ
file an initial decision within one (1) year of service of the
administrative complaint. The ALJ is being permitted, however, in
extraordinary circumstances to extend this deadline by up to a two-
month period, which may be extended upon expiration of that period by
additional, consecutive periods of up to two (2) months, provided that
for each such extension the ALJ finds that extraordinary circumstances
continue to be present. The rule continues to require, however, that
the ALJ issue an initial decision within ninety (90) days after the
hearing record closes, or thirty (30) days after a default or the
granting of a motion for summary decision or waiver by the parties of
the filing of proposed findings of fact, conclusions of law, and order.
Experience suggests that interim deadlines have not been completely
successful in promoting the expeditious resolution of Part III cases.
In the Commission's view, a one-year deadline for the initial decision
is a realistic time frame for most adjudicative proceedings and would
encourage ALJs to exercise more active control in managing cases from
start to finish. The pendency of any collateral federal court
proceeding that relates to the administrative adjudication will toll
the one-year deadline for filing the initial decision. The
administrative proceeding may be stayed until resolution of the
collateral federal court proceeding.
4. Rules 3.21 and 3.22(d) are being amended to (a) clarify the
standard for obtaining extensions of deadlines established in the
scheduling order, and (b) prohibit the ALJ from ruling on ex parte
motions to extend such deadlines. Currently, such modifications are
permitted only under a ``good cause'' standard. The rule is being
amended to provide further guidance on this standard. Specifically, all
motions to extend any deadline or time specified in the scheduling
order are required to set forth the total period of extensions
previously obtained by the moving party. In making a determination on
such motions, ALJs will consider any extensions already granted, the
length of the proceedings to date, and the need to conclude the
evidentiary hearing and render an initial decision in a timely manner.
Currently, Rule 3.22(d) permits the ALJ to rule on ex parte motions for
extensions of time. Such rulings would no longer be permitted on the
basis of ex parte motions under the amendments to Rules 3.21 and
3.22(d), as set forth below.
[[Page 50643]]
B. Minimizing Discovery Delays
1. Rule 3.21 is being revised to promote greater use of prehearing
and status conferences where such conferences are not otherwise
explicitly required by the Commission's rules. The Commission believes
that such conferences facilitate the overall adjudicatory process by
focusing the parties on the issues that are material to the case,
promoting the exchange of relevant information, forestalling
unnecessary and time-consuming motions, and providing a forum for
resolving discovery disputes and exploring settlement options.
2. Rule 3.21 is being amended to require that the counsel for the
parties conduct a meeting (preferably, in person) with one another
before the scheduling conference and also before their final prehearing
conference with the ALJ. (The final prehearing conference is also a new
requirement, as discussed infra.) The meeting before the scheduling
conference is intended to provide the parties with an opportunity to
discuss the possibility of settlement and to decide, if possible, on a
proposed discovery schedule, the handling of pretrial motions, a
preliminary estimate of the time required for the hearing, and a
hearing date. This requirement is modeled upon Fed. R. Civ. P. 26(f),
which requires that the parties meet before the scheduling conference
and order. The meeting before the final prehearing conference is
intended for the parties to discuss potential stipulations of law and
fact, the admissibility of or objections to evidence, and the
organization and exchange of exhibits, witness lists, and designated
deposition testimony. This meeting should narrow the issues to be
addressed at the final prehearing conference and help the ALJ plan an
efficient evidentiary hearing.
3. Current Rule 3.21(a) is being deleted to abolish the requirement
that the parties each file a nonbinding statement before the scheduling
conference, stating the anticipated issues, theories, and proof of the
case. The requirement that parties provide a preliminary assessment of
their case theories has not, in practice, demonstrably fulfilled its
originally intended purpose in helping the ALJ manage cases and control
discovery. 50 FR 41485, 41487 (Oct. 11, 1985). Although nonbinding
statements are no longer being required by rule, ALJs will continue to
retain their discretion, under the plenary power set forth in Rule
3.42(c), to order that the parties file such statements if they would
be useful in a particular case.
4. Rule 3.31 is being revised, after redesignating certain
paragraphs, to add a new paragraph (b) requiring that the parties make
certain initial disclosures within five (5) days after the answer,
without waiting for a formal discovery request. These disclosures would
be similar to the initial disclosures required by Fed. R. Civ. P.
26(a)(1) in federal court litigation. In particular, parties will be
required to exchange the names, addresses, and telephone numbers of
individuals likely to have discoverable information. The parties will
also be required to exchange a copy, or a description by category and
location, of all documents, data, and other tangible things in
possession of the party that are relevant to disputed facts alleged in
the pleadings. These initial disclosures are intended to expedite
discovery by reducing the need for parties to request basic documents
and other information.
5. Rules 3.31, 3.33, 3.34, 3.35, 3.36, 3.37, and other Part III
provisions are being revised to eliminate in substantial part the
requirement that ALJs pre-authorize requests and subpoenas for
depositions, interrogatories, documents, and access for inspection and
other purposes before a party may serve such a request or subpoena. The
elimination of ALJ pre-authorization includes discovery requests for
access to documents in the possession, custody, or control of the
Federal Trade Commission or its employees or for subpoenas requesting
the appearance of an official or employee of the Commission. Since Rule
3.31 already provides that parties may seek a protective order from a
discovery or access request, and Rule 3.34 provides for motions to
quash a subpoena, pre-authorization of discovery requests and subpoenas
appears to be unnecessary to prevent abuse. See also 16 CFR 3.38A
(withholding requested material). This revision is not intended to
diminish the ALJ's authority to enlarge or limit the scope of
discovery. See, e.g., Maremont Corp., 76 F.T.C. 1061, 1062, (1969)
(discovery is primarily the responsibility of the ALJ and the
Commission ``ordinarily will not dispute his rulings thereon''). The
Commission notes that the Federal Rules of Civil Procedure do not
require parties to obtain such authorization before they may make a
discovery request. See, e.g., Fed. R. Civ. P. 30(a)(1) (taking
testimony by deposition without leave of court). The Commission's rules
will continue to require, however, that parties submit a written motion
to the ALJ for subpoenas seeking the discovery of documents of other
government agencies, or the appearance of employees of such
agencies.\6\ See 16 CFR 3.36. Likewise, parties must continue to seek
the prior approval of the ALJ to compel the attendance of a person to
testify at an adjudicative hearing. See 16 CFR 3.34(a).
---------------------------------------------------------------------------
\6\ The amended Rule 3.36 will continue to require that motions
for discovery from other government agencies make a specific showing
that the information or material sought cannot reasonably be
obtained by other means. By eliminating ALJ pre-approval of
discovery from the Commission, the amended rule eliminates the
requirement that this showing be made for subpoenas for records of
the Commission or for the appearance of Commission employees.
---------------------------------------------------------------------------
6. Rule 3.31(b)(1) is being amended and redesignated as 3.31(c)(1)
to strengthen the ALJs' authority to prevent abusive discovery tactics
by limiting the frequency or extent of discovery under certain
conditions (e.g., when it would be cumulative or duplicative). This
amendment tracks in relevant part the language of Fed. R. Civ. P.
26(b)(2), which sets forth similar limitations on discovery.
7. Rule 3.31(a) is being amended to encourage simultaneous
discovery by requiring its use whenever practicable. While the current
rule does not preclude simultaneous discovery, it is practiced only
sporadically in adjudicative proceedings. The Commission believes that
simultaneous discovery prevents an unprepared party from hindering the
overall progress of the case, while it allows a prepared party to move
forward expeditiously.
8. Rule 3.31 is also being amended to redesignate existing
paragraphs to allow for the addition of a new paragraph (e), explicitly
requiring that a party supplement its response to a discovery request
when circumstances render the party's previous response incomplete or
incorrect. This requirement, which is modeled, in part, on similar
requirements in Fed. R. Civ. P. 26(e), is intended to promote greater
candor and cooperation among parties by placing an affirmative burden
on each party to ensure that its original response remains accurate and
complete. Failure to observe this requirement may result in sanctions
or an order to comply issued by the ALJ under Rule 3.38.
9. The definition of the term ``documents'' in Rule 3.34(b) is
being amended to incorporate technological advances in electronic
communications and digital information storage.
10. Rule 3.35(a)(1) is being amended to limit each party to twenty-
five (25) interrogatories, consistent with federal court practice. See
Fed. R. Civ. P. 33. Limiting the number of interrogatories is intended
to improve the efficiency of interrogatory practice and prevent the
[[Page 50644]]
overuse of interrogatories as a means of harassing another party or
delaying discovery.
11. Rule 3.35(a)(2) is being amended to establish a uniform thirty-
day period for parties to respond to interrogatories. Under the current
rule, a respondent may take up to forty-five (45) days to respond from
the date that the administrative complaint is served on that
respondent, while other parties must respond within thirty (30) days
from the date that the interrogatory is served. The amendment would
eliminate the 45-day rule for respondents, which appears to have caused
some confusion among practitioners. The amendment would also bring the
Commission's rules in line with federal court practice, which requires
that all parties, including the defendant, in a civil action respond
within thirty (30) days of being served with an interrogatory. See Fed.
R. Civ. P. 33(b)(3).
C. Minimizing Delay at Trial
1. Rule 3.21 is being amended to require that the ALJ hold a final
prehearing conference as close to the commencement of trail as
reasonably practicable. See Fed. R. Civ. P. 16(d). At this conference,
counsel will be required to submit any proposed stipulations of law,
fact, or admissibility of evidence, exchange exhibit and witness lists,
and designate testimony to be presented by deposition. The ALJ will
also be required to resolve any outstanding evidentiary matters or
pending motions (except motions for summary decision), and to establish
a final schedule for the evidentiary hearing. In requiring that
``counsel'' personally attend this conference, the Commission intends
that at least one attorney for each party (preferably the attorney
responsible for trying the case) appear; if not represented by an
attorney, the party shall attend on the party's own behalf.
Furthermore, as discussed earlier, counsel for the parties will be
expected to consult with one another on these matters in a meeting
(preferably, in person) prior to the final conference.
2. Rule 3.43(b) is being amended to incorporate relevant language
in Rules 403 and 611 of the Federal Rules of Evidence regarding the
exclusion of cumulative evidence. The amended rule is intended to make
clearer to litigants that the ALJ is empowered to exclude unduly
repetitious, cumulative, and marginally relevant materials that merely
burden the record and delay the trial. This clarification is intended
to enhance the ALJ's ability to assemble a concise and manageable
record.
3. Rule 3.21 is being amended to require that the ALJ's scheduling
orders include specific instructions on how the parties shall mark
their exhibits. Such guidance is currently contained only in the FTC
Operating Manual, which is primarily used for staff guidance. Requiring
that such specific instructions be included in the scheduling order is
intended to make them more directly available to the parties.
D. Filing of Documents and Motions
1. Rule 3.22(a) is being amended to specify that copies of motions
filed with the Secretary must also be provided promptly and directly to
the ALJ. This amendment is intended to codify a practice that is well-
established in many federal courts and that many FTC practitioners
already appear to follow.
2. Rule 3.22(b) is being amended to require that all motions in
adjudicative proceedings include the name, address, and telephone
number of counsel, and attach a draft order containing the proposed
relief. A conforming change is also being made to Rule 4.2, regarding
filing requirements. The requirement that motions provide contact
information and a draft order is intended to facilitate the
administrative processing and disposition of motions, and is consistent
with federal court practice. See, e.g., Fed. R. Civ. P. 7(b)(1) &
11(a).
3. Rule 3.25(b), governing motions to settle and withdraw a matter
from adjudication, is being amended to underscore the requirement that
such motions, like all motions in adjudicatory proceedings, be filed
with the Office of the Secretary, pursuant to Commission Rule 4.2(a).
One ALJ has observed that counsel sometimes submit their Rule 3.25(b)
motions directly to him without filing them with the Secretary as
required. The amendment complements existing Rule 3.25(c), under which
the withdrawal of a matter from adjudication is not triggered until the
Secretary receives the appropriate motion.
4. Rule 3.24(a)(1) is being amended to require that a party moving
for summary decision include a statement of the material facts as to
which the party contends there is no genuine issue. The Commission
notes that several local rules of federal courts require such
statements. See, e.g., D.D.C. Local Rule 108(h); S.D.N.Y. Local Rule
8(d); C.D. Cal. Local Rule 7.14; S.D. Fla. Local Rule 7.5. Changes are
also being made in paragraphs (a)(2) and (a)(3) to make more explicit
the existing requirement in paragraph (a)(3) that the opposing party
provide a statement setting forth specific facts showing that there
remains a genuine issue to be tried. See Fed. R. Civ. P. 56(e).
Requiring that the moving and opposing parties provide statements is
designed to expedite ALJ review of and rulings on summary decision
motions.
5. Rule 3.24(a)(1) is also being amended to permit complaint
counsel to move for summary decision in twenty (20), rather than thirty
(30), days after the complaint is issued, as specified under the
current rule. The change mirrors the proposed amendment to Rule
3.12(a), reducing the time to file an answer to the complaint from
thirty (30) to twenty (20) days, as discussed earlier.
6. Rule 3.22(d) is being revised to remove the ALJ's discretion to
rule on ex parte requests for extensions of time. This change is also
reflected in revised Rule 3.21, regarding modification of scheduling
orders.
E. Miscellaneous
1. Rule 3.11A is being added to establish an alternative ``fast
track'' schedule that respondents in certain administrative proceedings
may elect if a federal district court has granted a preliminary
injunction in a collateral federal court proceeding brought by the
Commission. Under the fast track schedule, the Commission shall, with
limited exception, be prepared to issue a final order and opinion in
such expedited proceedings within thirteen (13) months after the
triggering event.
2. Rule 3.44 is being amended to add new paragraph (c), requiring
that ALJs formally close the hearing record immediately upon the close
of the evidentiary hearing. A conforming change is also being made to
Rules 3.46(a) 3.51(a). The Commission believes that little, if any,
useful purpose is served by allowing the record to remain open after
completion of the trial, and believes that it may contribute to
adjudicatory delay. In requiring that ALJs close the record promptly at
the end of the trial, the Commission does not intend, however, to alter
or interfere with the procedures under paragraph (b) of the existing
rule for post-trial corrections to the record as may be necessary, even
after it has closed.
3. Rules 2.8, 2.9, and 2.15 are being revised to terminate the
currently prescribed use of ``presiding officials'' in investigational
hearings. This practice is neither required by law nor necessary for
the protection of witness' rights. By eliminating the use of presiding
officials, the Commission seeks to avoid the erroneous perception that
investigational hearings are conducted by persons with the same degree
of authority and independence
[[Page 50645]]
that ALJs have in adjudicative proceedings.
4. Rule 3.55 is being amended to shorten the time period for filing
a petition for reconsideration. The current rule allows a party to file
such a petition within twenty (20) days after service of the
Commission's decision. By comparison, Federal Rule of Appellate
Procedure 40 allows only fourteen (14) days, and the Commission
believes that this time period should also be adequate for parties to
file for reconsideration in a Commission adjudication.
5. Rules 3.22(a) and 3.51 are being amended to delete language
describing the procedure for filing documents containing in camera
material and to substitute cross-references to Rule 3.45, which is also
being amended to set forth the relevant in camera procedures and
obligations in their entirety. These revisions are expected to reduce
the confusion that may arise from duplicative instructions and to
improve the litigants' understanding and observance of in camera
procedures.
These rule revisions relate solely to agency practice and, thus,
are not subject to the notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. 553(a)(2), nor to the
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601(2). The
Paperwork Reduction Act does not apply to these requirements. 44 U.S.C.
3518(c)(ii). Although the rule revisions are effective as stated in the
previous section, the Commission welcomes comment on them and will
consider further revision, as appropriate.
List of Subjects
16 CFR Part 2
Administrative practice and procedure, Investigations, Reporting
and recordkeeping requirements.
16 CFR Part 3
Administrative practice and procedure, Claims, Equal access to
justice, Lawyers.
16 CFR Part 4
Administrative practice and procedure, Freedom of Information Act,
Privacy Act, Sunshine Act.
For the reasons set forth in the preamble, the Federal Trade
Commission amends Title 16, Chapter I, Subchapter A of the Code of
Federal Regulations, as follows:
PART 2--NONADJUDICATIVE PROCEDURES
1. The authority for part 2 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
2. Section 2.8 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 2.8 Investigational hearings.
* * * * *
(b) Investigational hearings shall be conducted by any Commission
member, examiner, attorney, investigator, or other person duly
designated under the FTC Act, for the purpose of hearing the testimony
of witnesses and receiving documents and other data relating to any
subject under investigation. * * *
* * * * *
3. Section 2.9 is amended by revising the last sentence of
paragraph (b)(4), all of paragraph (b)(5), and the first and second
sentences of paragraph (b)(6) to read as follows:
Sec. 2.9 Rights of witnesses in investigations.
* * * * *
(b) * * *
(4) * * * Copies of such petitions may be filed as part of the
record of the investigation with the person conducting the
investigational hearing, but no arguments in support thereof will be
allowed at the hearing.
(5) Following completion of the examination of a witness, counsel
for the witness may on the record request the person conducting the
investigational hearing to permit the witness of clarify any of his or
her answers. The grant or denial of such request shall be within the
sole discretion of the person conducting the hearing.
(6) The person conducting the hearing shall take all necessary
action to regulate the course of the hearing to avoid delay and to
prevent or restrain disorderly, dilatory, obstructionist, or
contumacious conduct, or contemptuous language. Such person shall, for
reasons stated on the record, immediately report to the Commission any
instances where an attorney has allegedly refused to comply with his or
her directions, or has allegedly engaged in disorderly, dilatory,
obstructionist, or contumacious conduct, or contemptuous language in
the course of the hearing. * * *
4. Section 2.15 is amended by revising the last sentence of
paragraph (b) to read:
Sec. 2.15 Orders requiring witnesses to testify or provide other
information and granting immunity.
* * * * *
(b) * * * The appeal shall not operate to suspend the hearing
unless otherwise determined by the person conducting the hearing or
ordered by the Commission.
PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
5. The authority for part 3 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise
noted.
6. Section 3.11A is added to read as follows:
Sec. 3.11A Fast Track Proceedings.
(a) Availability of Fast Track Proceedings. In certain
administrative proceedings that have been designated by the Commission
as appropriate for the fast track schedule, respondents may elect to
have the proceeding adjudicated under the expedited schedule set forth
in this section. In administrative proceedings involving multiple
respondents, the fast track schedule shall be available only if all
respondents elect it. The Commission shall designate whether the fast
track schedule will be available at the time it authorizes Commission
staff to seek a preliminary injunction in federal district court and
shall provide notice of the defendant's option to elect the fast track
procedures in the event that the Commission should initiate an
administrative adjudication challenging some or all of the same conduct
at issue in the federal court injunctive proceeding. Such notice shall
be provided to the prospective respondent at the time it is notified of
the Commission's action to authorize the filing of the preliminary
injunction motion. In fast track proceedings, the Commission shall be
prepared to issue a final order and opinion within thirteen (13) months
after the latest of the following events (hereinafter ``triggering
event''): Issuance of the Commission's administrative complaint; entry
of a preliminary injunction by a federal court in a collateral
proceeding against respondent brought by the Commission; or the date on
which respondent elects the fast track procedure. The date for issuance
of the Commission's final order and opinion in fast track proceedings
may be amended by the Commission in the following circumstances: If the
Commission's final order or opinion contains material or information
designated for in camera treatment such that the agency is required to
provide advance notification of such disclosure to submitters of in
camera material or information; or if the Commission determines that
adherence to the thirteen-month deadline would result in a miscarriage
of justice due to circumstances unforeseen at the time of respondent's
election of the fast track
[[Page 50646]]
proceeding. Only administrative proceedings challenging conduct that
has been preliminarily enjoined by a federal court in a collateral
proceeding brought by the Commission shall be subject to the fast track
schedule. In the event the preliminary injunction in the collateral
federal court proceeding is vacated, the Commission, in its discretion,
may take such action as it deems appropriate in the administrative
adjudication. Except as modified by this section, the rules contained
in Subparts A through I of Part 3 of this chapter shall govern fast
track procedures in adjudicative proceedings.
(b) Election of Fast Track Proceedings. Respondents making an
election under this section shall make such election by the later of
either: Three (3) days after service of the administrative complaint
challenging the merger or acquisition; or three (3) days after a
federal district court grants the Commission's request for a
preliminary injunction. Respondents electing fast track proceedings
shall do so by filing a notice of election of such expedited
proceedings with the Secretary.
(c) Interim Deadlines in Fast Track Proceedings. The following
deadlines shall govern all fast tract proceedings covered by this
section:
(1) The scheduling conference required by Sec. 3.21(b) shall be
held not later than three (3) days after the triggering event.
(2) Respondent's answer shall be filed within fourteen (14) days
after the triggering event.
(3) The ALJ shall file an initial decision within fifty-six (56)
days following the conclusion of the evidentiary hearing. The initial
decision shall be filed no later than one hundred ninety-five (195)
days after the triggering event, pursuant to paragraph (a) of this
section.
(4) Any party wishing to appeal an initial decision to the
Commission shall file a notice of appeal with the Secretary within
three (3) days after service of the initial decision. The notice shall
comply with Sec. 3.52(a) in all other respects.
(5) The appeal shall be in the form of a brief, filed within
twenty-one (21) days after service of the initial decision, and shall
comply with Sec. 3.52(b) in all other respects.
(6) Within fourteen (14) days after service of the appeal brief,
the appellee may file an answering brief which shall comply with
Sec. 3.52(c). Cross-appeals, as permitted in Sec. 3.52(c), may not be
raised in an appellee's answering brief. All issues raised on appeal
must be presented in the party's appeal brief and must be filed within
the deadline specified in paragraphs (c)(4) and (c)(5) of this section.
(7) Within five (5) days after service of the appellee's answering
brief, the appellant may file a reply brief, in accordance with
Sec. 3.52(d) in all other respects.
(d) Discovery. Discovery shall be governed by Subpart D of this
part. The ALJ may establish limitations on the number of depositions,
witnesses, or any document production, pursuant to his plenary
authority under Sec. 3.42(c)(6).
7. Section 3.12 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 3.12 Answer to complaint.
(a) Time for filing. A respondent shall file an answer within
twenty (20) days after being served with the complaint: Provided,
however, That the filing of a motion for a more definite statement of
the charges shall alter this period of time as follows, unless a
different time is fixed by the Administrative Law Judge: * * *
* * * * *
8. Section 3.21 is amended by redesignating paragraph (e) as new
paragraph (g), revising paragraphs (a) through (d), and adding new
paragraphs (e) and (f), to read as follows:
Sec. 3.21 Prehearing procedures.
(a) Meeting of the parties before scheduling conference. An early
as practicable before the prehearing scheduling conference described in
paragraph (b) of this section, counsel for the parties shall meet to
discuss the nature and basis of their claims and defenses and the
possibilities for a prompt settlement or resolution of the case, and to
agree, if possible, on a proposed discovery schedule, a preliminary
estimate of the time required for the hearing, and a proposed hearing
date, and on any other matters to be determined at the scheduling
conference.
(b) Scheduling conference. Not later than seven (7) days after the
answer is filed by the last answering respondent, the Administrative
Law Judge shall hold a scheduling conference. At the scheduling
conference, counsel for the parties shall be prepared to address their
factual and legal theories, a schedule of proceedings, possible
limitations on discovery, and other possible agreements or steps that
may aid in the orderly and expeditious disposition of the proceeding.
(c) Prehearing scheduling order. (1) Not later than two (2) days
after the scheduling conference, the Administrative Law Judge shall
enter an order that sets forth the results of the conference and
establishes a schedule of proceedings, including a plan of discovery,
dates for the submission and hearing of motions, the specific method by
which exhibits shall be numbered or otherwise identified and marked for
the record, and the time and place of a final prehearing conference and
of the evidentiary hearing.
(2) The Administrative Law Judge may grant a motion to extend any
deadline or time specified in this scheduling order only upon a showing
of good cause. Such motion shall set forth the total period of
extensions, if any, previously obtained by the moving party. In
determining whether to grant the motion, the Administrative Law Judge
shall consider any extensions already granted, the length of the
proceedings to date, and the need to conclude the evidentiary hearing
and render an initial decision in a timely manner. The Administrative
Law Judge shall not rule on ex parte motions to extend the deadlines
specified in the scheduling order, or modify such deadlines solely upon
stipulation or agreement of counsel.
(d) Meeting prior to final prehearing conference. Counsel for the
parties shall meet before the final prehearing conference described in
paragraph (e) of this section to discuss the matters set forth therein
in preparation for the conference.
(e) Final prehearing conference. As close to the commencement of
the evidentiary hearing as practicable, the Administrative Law Judge
shall hold a final prehearing conference, which counsel shall attend in
person, to submit any proposed stipulations as to law, fact, or
admissibility of evidence, exchange exhibit and witness lists, and
designate testimony to be presented by deposition. At this conference,
the Administrative Law Judge shall also resolve any outstanding
evidentiary matters or pending motions (except motions for summary
decision) and establish a final schedule for the evidentiary hearing.
(f) Additional prehearing conferences and orders. The
Administrative Law Judge shall hold additional prehearing and status
conferences or enter additional orders as may be needed to ensure the
orderly and expeditious disposition of a proceeding. Such conferences
shall be held in person to the extent practicable.
(g) Public access and reporting. * * *
9. Section 3.22 is amended by revising paragraphs (a) and (d), the
last sentence of paragraph (e), and the first full sentence of
paragraph (f), to read as follows:
[[Page 50647]]
Sec. 3.22 Motions.
(a) Presentation and disposition. During the time a proceeding is
before an Administrative Law Judge, all motions therein, except those
filed under Sec. 3.26, Sec. 3.42(g), or Sec. 4.17, shall be addressed
to and ruled upon, if within his or her authority, by the
Administrative Law Judge. The Administrative Law Judge shall certify to
the Commission any motion upon which he or she has no authority to
rule, accompanied by any recommendation that he or she may deem
appropriate. Such recommendation may contain a proposed disposition of
the motion or other relevant comments. The Commission may order the ALJ
to submit a recommendation or an amplification thereof. Rulings or
recommendations containing information granted in camera status
pursuant to Sec. 3.45 shall be filed in accordance with Sec. 3.45(f).
All written motions shall be filed with the Secretary of the
Commission, and all motions addressed to the Commission shall be in
writing. The moving party shall also provide a copy of its motion to
the Administrative Law Judge at the time the motion is filed with the
Secretary.
* * * * *
(d) Motions for extensions. The Administrative Law Judge or the
Commission may waive the requirements of this section as to motions for
extensions of time; however, the Administrative Law Judge shall have no
authority to rule on ex parte motions for extensions of time.
(e) Rules on motions for dismissal. * * * When a motion to dismiss
is made at the close of the evidence offered in support of the
complaint based upon an alleged failure to establish a prima facie
case, the Administrative Law Judge may defer ruling thereon until
immediately after all evidence has been received and the hearing record
is closed.
(f) Statement. Each motion to quash filed pursuant to Sec. 3.34(c),
each motion to compel or determine sufficiency pursuant to
Sec. 3.38(a), each motion for sanctions pursuant to Sec. 3.38(b), and
each motion for enforcement pursuant to Sec. 3.38(c) shall be
accompanied by a signed statement representing that counsel for the
moving party has conferred with opposing counsel in an effort in good
faith to resolve by agreement the issues raised by the motion and has
been unable to reach such an agreement. * * *
10. Section 3.24 is amended by revising paragraph (a)(1) and adding
a sentence between the existing first and second sentences of paragraph
(a)(2) to read as follows:
Sec. 3.24 Summary decisions.
(a) Procedure. (1) Any party to an adjudicatory proceeding may
move, with or without supporting affidavits, for a summary decision in
the party's favor upon all or any part of the issues being adjudicated.
The motion shall be accompanied by a separate and concise statement of
the material facts as to which the moving party contends there is not
genuine issue. Counsel in support of the complaint may so move at any
time after twenty (20) days following issuance of the complaint and any
party respondent may so move at any time after issuance of the
complaint. Any such motion by any party, however, shall be filed in
accordance with the scheduling order issued pursuant to Sec. 3.21, but
in any case at least twenty (20) days before the date fixed for the
adjudicatory hearing.
(2) * * * The opposing party shall include a separate and concise
statement of those material facts as to which the opposing party
contends there exists a genuine issue for trial, as provided in
Sec. 3.24(a)(3). * * *
* * * * *
11. Section 3.25 is amended by adding a new sentence between the
first and second sentences of paragraph (b) to read:
Sec. 3.25 Consent agreement settlements.
* * * * *
(b) * * * Such motion shall be filed with the Secretary of the
Commission, as provided in Sec. 4.2. * * *
* * * * *
12. Section 3.31 is amended by: adding a new sentence to the end of
paragraph (a); redesignating paragraphs (b), (c), (d), and (e) as
paragraphs (c), (d), (f), and (g), respectively; adding new paragraphs
(b) and (e); revising newly redesignated paragraphs (c)(1), (c)(2), the
first full sentence of (c)(3), the introductory text of newly
redesignated paragraph (c)(4)(i), and newly redesignated paragraph
(c)(4)(iii); revising the paragraph heading and adding a new sentence
at the end of newly redesignated paragraph (d)(1); and revising newly
redesignated paragraph (g), to read as follows:
Sec. 3.31 General provisions.
(a) * * * The parties shall, to the greatest extent practicable,
conduct discovery simultaneously; the fact that a party is conducting
discovery shall not operate to delay any other party's discovery.
(b) Initial disclosures. Complaint counsel and respondent's counsel
shall, within five (5) days of receipt of a respondent's answer to the
complaint and without awaiting a discovery request, provide to each
other:
(1) The name, and, if known, the address and telephone number of
each individual likely to have discoverable information relevant to the
allegations of the Commission's complaint, to the proposed relief, or
to the defenses of the respondent, as set forth in Sec. 3.31(c)(1);
(2) A copy of, or a description by category and location of, all
documents, data compilations, and tangible things in the possession,
custody, or control of the Commission or respondent(s) that are
relevant to the allegations of the Commission's complaint, to the
proposed relief, or to the defenses of the respondent, as set forth in
Sec. 3.31(c)(1); unless such information or materials are privileged as
defined in Sec. 3.31(c)(2), pertain to hearing preparation as defined
in Sec. 3.31(c)(3), pertain to experts as defined in Sec. 3.31(c)(4),
or are obtainable from some other source that is more convenient, less
burdensome, or less expensive. A party shall make its disclosures based
on the information then reasonably available to it and is not excused
from making its disclosures because it has not fully completed its
investigation.
(c) Scope of discovery. * * *
(1) In general; limitations. Parties may obtain discovery to the
extent that it may be reasonably expected to yield information relevant
to the allegations of the complaint, to the proposed relief, or to the
defenses of any respondent. Such information may include the existence,
description, nature, custody, condition and location of any books,
documents, or other tangible things and the identity and location of
persons having any knowledge of any discoverable matter. Information
may not be withheld from discovery on grounds that the information will
be inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods otherwise
permitted under these rules shall be limited by the Administrative Law
Judge if he determines that:
(i) The discover sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(iii) The burden and expense of the proposed discovery outweigh its
likely benefit.
[[Page 50648]]
(2) Privilege. The Administrative Law Judge may enter a protective
order denying or limiting discovery to preserve the privilege of a
witness, person, or governmental agency as governed by the
Constitution, any applicable act of Congress, or the principles of the
common law as they may be interpreted by the Commission in the light of
reason and experience.
(3) Hearing preparations: Materials. Subject to the provisions of
paragraph (c)(4) of this section, a party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(c)(1) of this section and prepared in anticipation of litigation or
for hearing by or for another party or by or for that other party's
representative (including the party's attorney, consultant, or agent)
only upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of its case and that the party
is unable without undue hardship to obtain the substantial equivalent
of the materials by other means. * * *
(4) Hearing preparation: Experts. (i) Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions
of paragraph (c)(1) of this section and acquired or developed in
anticipation of litigation or for hearing, may be obtained only as
follows: * * *
(ii) * * *
(iii) The Administrative Law Judge may require as a condition of
discovery that the party seeking discovery pay the expert a reasonable
fee, but not more than the maximum specified in 5 U.S.C. 3109 unless
the parties have stipulated a higher amount, for time spent in
responding to discovery under paragraphs (c)(4)(i)(B) and (c)(4)(ii) of
this section.
(d) Protective orders; order to preserve evidence. (1) * * * Such
an order may also be issued to preserve evidence upon a showing that
there is substantial reason to believe that such evidence would not
otherwise be available for presentation at the hearing.
(2) * * *
(e) Supplementation of disclosures and responses. A party who has
made an initial disclosure under Sec. 3.31(b) or responded to a request
for discovery with a disclosure or response is under a duty to
supplement or correct the disclosure or response to include information
thereafter acquired if ordered by the Administrative Law Judge or in
the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its initial disclosures under Sec. 3.31(b) if the party learns that in
some material respect the information disclosed is incomplete or
incorrect and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery
process or in writing.
(2) A party is under a duty seasonably to amend a prior response to
an interrogatory, request for production, or request for admission if
the party learns that the response is in some material respect
incomplete or incorrect.
(f) Stipulations. * * *
(g) Ex parte rulings on applications for compulsory process.
Applications for the issuance of subpoenas to compel testimony at an
adjudicative hearing pursuant to Sec. 3.34 may be made ex parte, and,
if so made, such applications and rulings thereon shall remain ex parte
unless otherwise ordered by the Administrative Law Judge or the
Commission.
13. Section 3.33 is amended by revising paragraph (a), the first
and second full sentences of paragraph (c), and the introductory text
of paragraph (e), and by removing and reserving paragraph (b), to read
as follows:
Sec. 3.33 Depositions.
(a) In general. Any party may take a deposition of a named person
or of a person or persons described with reasonable particularity,
provided that such deposition is reasonably expected to yield
information within the scope of discovery under Sec. 3.31(c)(1). Such
party may, by motion, obtain from the Administrative Law Judge an order
to preserve relevant evidence upon a showing that there is substantial
reason to believe that such evidence would not otherwise be available
for presentation at the hearing. Depositions may be taken before any
person having power to administer oaths, either under the law of the
United States or of the state or other place in which the deposition is
taken, who may be designated by the party seeking the deposition,
provided that such person shall have no interest in the outcome of the
proceeding. The party seeking the deposition shall serve upon each
person whose deposition is sought and upon each party to the proceeding
reasonable notice in writing of the time and place at which it will be
taken, and the name and address of each person or persons to be
examined, if known, and if the name is not known, a description
sufficient to identify them.
(b) [Reserved]
(c) Notice to corporation or other organization. A party may name
as the deponent a public or private corporation, partnership,
association, governmental agency other than the Federal Trade
Commission, or any bureau or regional office to the Federal Trade
Commission, and describe with reasonable particularity the matters on
which examination is requested. The organization so names shall
designate one or more officers, directors, or managing agents, or other
persons who consent to testify on its behalf, and may set forth, for
each person designated, the matters on which he will testify. * * *
* * * * *
(e) Depositions upon written questions. A party desiring to take a
deposition upon written questions shall serve them upon every other
party with a notice stating: * * *
* * * * *
14. Section 3.34 is amended by revising paragraphs (a) and (b), and
by revising the paragraph heading and adding a new sentence to the end
of existing paragraph (c), to read as follows:
Sec. 3.34 Subpoenas.
(a) Subpoenas ad testificandum--(1) Prehearing. The Secretary of
the Commission shall issue a subpoena, signed but otherwise in blank,
requiring a person to appear and give testimony at the taking of a
deposition to a party requesting such subpoena, who shall complete it
before service.
(2) Hearing. Application for issuance of a subpoena commanding a
person to attend and give testimony at an adjudicative hearing shall be
made in writing to the Administrative Law Judge. Such subpoena may be
issued upon a showing of the reasonable relevancy of the expected
testimony.
(b) Subpoenas duces tecum; subpoenas to permit inspection of
premises. The Secretary of the Commission, upon request of a party,
shall issue a subpoena, signed but otherwise in blank, commanding a
person to produce and permit inspection and copying of designated
books, documents, or tangible things, or commanding a person to permit
inspection of premises, at a time and place therein specified. The
subpoena shall specify with reasonable particularity the material to be
produced. The person commanded by the subpoena need not appear in
person at the place of production or inspection unless commanded to
appear for a deposition or hearing pursuant to paragraph (a) of this
section. As used herein, the term ``documents'' includes writings,
drawings, graphs, charts, handwritten notes, film, photographs, audio
and video recordings and any such representations stored on a computer,
a computer disk, CD-ROM, magnetic or electronic tape, or any other
[[Page 50649]]
means of electronic storage, and other data compilations from which
information can be obtained in machine-readable form (translated, if
necessary, into reasonably usable form by the person subject to the
subpoena). A subpoena duces tecum may be used by any party for purposes
of discovery, for obtaining documents for use in evidence, or for both
purposes, and shall specify with reasonable particularity the materials
to be produced.
(c) Motions to quash; limitation on subpoenas to other government
agencies. * * * Nothing in paragraphs (a) and (b) of this section
authorizes the issuance of subpoenas requiring the appearance of, or
the production of documents in the possession, custody, or control of,
an official or employee of a governmental agency other than the
Commission, which may be authorized only in accordance with Sec. 3.36.
15. Section 3.35 is amended by revising the first sentence of
paragraph (a)(1), the third sentence of paragraph (a)(2), and paragraph
(b)(1) to read as follows:
Sec. 3.35 Interrogatories to parties.
(a) Availability; procedures for use. (1) Any party may serve upon
any other party written interrogatories, not exceeding twenty-five (25)
in number, including all discrete subparts, to be answered by the party
served or, if the party served is a public or private corporation,
partnership, association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party.
* * *
(2) * * * The party upon whom the interrogatories have been served
shall serve a copy of the answers, and objections, if any, within
thirty (30) days after the service of the interrogatories. * * *
(b) Scope; use at hearing. (1) Interrogatories may relate to any
matters that can be inquired into under Sec. 3.31(c)(1), and the
answers may be used to the extent permitted by the rules of evidence.
* * * * *
16. Section 3.36 is revised to read as follows:
Sec. 3.36 Applications for subpoenas for records, or appearances by
officials or employees, of governmental agencies other than the
Commission.
(a) Form. An application for issuance of a subpoena for the
production of documents, as defined in Sec. 3.34(b), or for the
issuance of a subpoena requiring access to documents or other tangible
things, for the purposes described in Sec. 3.37(a), in the possession,
custody, or control of a governmental agency other than the Commission
or the officials or employees of such other agency, or for the issuance
of a subpoena requiring the appearance of an official or employee of
another governmental agency, shall be made in the form of a written
motion filed in accordance with the provisions of Sec. 3.22(a). No
application for records pursuant to Sec. 4.11 of this chapter or the
Freedom of Information Act may be filed with the Administrative Law
Judge.
(b) Content. The motion shall satisfy the same requirements for a
subpoena under Sec. 3.34 or a request for production or access under
Sec. 3.37, together with a specific showing that:
(1) the material sought is reasonable in scope;
(2) if for purposes of discovery, the material falls within the
limits of discovery under Sec. 3.31(b)(1), or, if for an adjudicative
hearing, the material is reasonably relevant; and
(3) the information or material sought cannot reasonably be
obtained by other means.
17. Section 3.37 is revised to read as follows:
Sec. 3.37 Production of documents and things; access for inspection
and other purposes.
(a) Availability; procedures for use. Any party may serve on
another party a request: to produce and permit the party making the
request, or someone acting on the party's behalf, to inspect and copy
any designated documents, as defined in Sec. 3.34(b), or to inspect and
copy, test, or sample any tangible things which are within the scope of
Sec. 3.31(c)(1) and in the possession, custody or control of the party
upon whom the request is served; or to permit entry upon designated
land or other property in the possession or control of the party upon
whom the order would be served for the purpose of inspection and
measuring, surveying, photographing, testing, or sampling the property
or any designated object or operation thereon, within the scope of
Sec. 3.31(c)(1). Each such request shall specify with reasonable
particularity the documents or things to be inspected, or the property
to be entered. Each such request shall also specify a reasonable time,
place, and manner of making the inspection and performing the related
acts. A party shall make documents available as they are kept in the
usual course of business or shall organize and label them to correspond
with the categories in the request. A person not a party to the action
may be compelled to produce documents and things or to submit to an
inspection as provided in Sec. 3.34.
(b) Response; objections. The response of the party upon whom the
request is served shall state, with respect to each item or category,
that inspection and related activities will be permitted as requested,
unless the request is objected to, in which event the reasons for the
objection shall be stated. If objection is made to part of an item or
category, the part shall be specified and inspection permitted of the
remaining parts. The party submitting the request may move for an order
under Sec. 3.38(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure to permit
inspection as requested.
18. Section 3.38 is amended by revising the section heading and
paragraph (a) to read as follows:
Sec. 3.38 Motion for order compelling disclosure or discovery;
sanctions.
(a) Motion for order to compel. A party may apply by motion to the
Administrative Law Judge for an order compelling disclosure or
discovery, including a determination of the sufficiency of the answers
or objections with respect to the initial disclosures required by
Sec. 3.31(b), a request for admission under Sec. 3.32, a deposition
under Sec. 3.33, or an interrogatory under Sec. 3.35.
(1) Initial disclosures; requests for admission; depositions;
interrogatories. Unless the objecting party sustains its burden of
showing that the objection is justified, the Administrative Law Judge
shall order that an answer be served or disclosure otherwise be made.
If the Administrative Law Judge determines that an answer or other
response by the objecting party does not comply with the requirements
of these rules, he may order either that the matter is admitted or that
an amended answer or response be served. The Administrative Law Judge
may, in lieu of these orders, determine that final disposition may be
made at a prehearing conference or at a designated time prior to trial.
(2) Requests for production or access. If a party fails to respond
to or comply as requested with a request for production or access made
under Sec. 3.37(a), the discovering party may move for an order to
compel production or access in accordance with the request.
* * * * *
19. Section 3.38A is amended by revising the first sentence of
paragraph (a) to read as follows:
[[Page 50650]]
Sec. 3.38A Withholding requested material.
(a) Any person withholding material responsive to a subpoena issued
pursuant to Sec. 3.34, written interrogatories requested pursuant to
Sec. 3.35, a request for production or access pursuant to Sec. 3.37, or
any other request for the production of materials under this part,
shall assert a claim of privilege or any similar claim not later than
the date set for production of the material. * * *
* * * * *
20. Section 3.43 is amended by revising paragraph (b) to read as
follows:
Sec. 3.43 Evidence.
* * * * *
(b) Admissibility; exclusion of relevant evidence; mode and order
of interrogation and presentation. Relevant, material, and reliable
evidence shall be admitted. Irrelevant, immaterial, and unreliable
evidence shall be excluded. Evidence, even if relevant, may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or if the evidence would be
misleading, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. The Administrative Law
Judge shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for the
ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.
* * * * *
21. Section 3.44 is amended by adding a new paragraph (c) to read
as follows:
Sec. 3.44 Record.
* * * * *
(c) Closing of the hearing record. Immediately upon completion of
the evidentiary hearing, the Administrative Law Judge shall issue an
order closing the hearing record. The Administrative Law Judge shall
retain the description to permit or order correction of the record as
provided in Sec. 3.44(b).
22. Section 3.45 is amended by adding a new paragraph (f) to read
as follows:
Sec. 3.45 In camera orders.
* * * * *
(f) When in camera information is included in rulings or
recommendations of the Administrative Law Judge. If the Administrative
Law Judge includes in any ruling or recommendation information that has
been granted in camera status pursuant to Sec. 3.45(b), the
Administrative Law Judge shall file two versions of the ruling or
recommendation. A complete version shall be marked ``In Camera'' on the
first page and shall be serve upon the parties. The complete version
will be placed in the in camera record of the proceeding. An expurgated
version, to be filed within five (5) days after the filing of the
complete version, shall omit the in camera information that appears in
the complete version, shall be marked ``Public Record'' on the first
page, shall be served upon the parties, and shall be included in the
public record of the proceeding.
23. Section 3.46 is amended by revising the first full sentence of
paragraph (a) to read as follows:
Sec. 3.46 Proposed findings, conclusions, and order.
(a) General. Upon the closing of the hearing record, or within a
reasonable time thereafter fixed by the Administrative Law Judge, any
party may file with the Secretary of the Commission for consideration
of the Administrative Law Judge proposed findings of fact, conclusions
of law, and rule or order, together with reasons therefor and briefs in
support thereof. * * *
* * * * *
24. Section 3.51 is amended by revising paragraph (a) and paragraph
(c)(1) to read as follows:
Sec. 3.51 Initial decision.
(a) When filed and when effective. The Administrative Law Judge
shall file an initial decision within ninety (90) days after closing
the hearing record pursuant to Sec. 3.44(c), or within thirty (30) days
after a default or the granting of a motion for summary decision or
waiver by the parties of the filing of proposed findings of fact,
conclusions of law and order, or within such further time as the
Commission may by order allow upon written request from the
Administrative Law Judge. In no event shall the initial decision be
filed any later than one (1) year after the issuance of the
administrative compliant, except that the Administrative Law Judge may,
upon a finding of extraordinary circumstances, extend the one-year
deadline for a period of up to sixty (60) days. Such extension, upon
its expiration, may be continued for additional consecutive periods of
up to sixty (60) days, provided that each additional period is based
upon a finding by the Administrative Law Judge that extraordinary
circumstances are still present. The pendency of any collateral federal
court proceeding that relates to the administrative adjudication shall
toll the one-year deadline for filing the initial decision. The ALJ may
stay the administrative proceeding until resolution of the collateral
federal court proceeding. Once issued, the initial decision shall
become the decision of the Commission thirty (30) days after service
thereof upon the parties or thirty (30) days after the filing of a
timely notice of appeal, whichever shall be later, unless a party
filing such a notice shall have perfected an appeal by the timely
filing of an appeal brief or the Commission shall have issued an order
placing the case on its own docket for review or staying the effective
date of the decision.
(b) * * *
(c) Content. (1) The initial decision shall include a statement of
findings (with specific page references to principal supporting items
of evidence in the record) and conclusions, as well as the reasons or
basis therefor, upon all the material issues of fact, law, or
discretion presented on the record (or those designated under paragraph
(c)(2) of this section) and an appropriate rule or order. Rulings
containing information granted in camera status pursuant to Sec. 3.45
shall be filed in accordance with Sec. 3.45(f).
* * * * *
25. Section 3.55 is amended by revising the first sentence to read
as follows:
Sec. 3.55 Reconsideration.
Within fourteen (14) days after completion of service of a
Commission decision, any party may file with the Commission a petition
for reconsideration of such decision, setting forth the relief desired
and the grounds in support thereof. * * *
PART 4--MISCELLANEOUS RULES
26. The authority for Part 4 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
27. Section 4.2 is amended by adding a new sentence at the end of
paragraph (c) and a new sentence at the end of paragraph (e)(1) to read
as follows:
Sec. 4.2 Requirements as to form, and filing of documents other than
correspondence.
* * * * *
(c) Copies. * * * With respect to motions under Sec. 3.22, the
moving party shall provide a copy of its motion to the Administrative
Law Judge at the time the motion is filed with the Secretary.
* * * * *
[[Page 50651]]
(e) Signature. (1) * * * In addition, motions filed pursuant to
Sec. 3.22 shall include the name, address, and telephone number of
counsel.
By direction of the Commission.
Donald S. Clark,
Secretary.
Concurring Statement of Commissioner Mary L. Azcuenaga
Amendment of the Commission's Procedural Rules Governing
Adjudicative Proceedings
The Commission today amends its procedural rules governing
administrative adjudications. I welcome the amended rules as a first
step in reforming the Commission's adjudicative process. Some of the
amendments seem clearly to be good ideas and the others may be worth
a try to help expedite the Commission's adjudicative proceedings.
Whether they will result in net benefits remains to be seen.
Although rule changes to expedite adjudications are a starting point
for improving the adjudicative process, reform ultimately should
focus on improving the quality of the adjudicative record and of
adjudicative decisions to help ensure that they meet the test of
appeal.
I support further examination of the entire process, including
how to focus discovery and hearings more precisely on the pertinent
facts, and how best to prepare the record for efficient use in
formulating reasoned and well supported decisions. I look forward to
the next installment of this effort.
[FR Doc. 96-24316 Filed 9-25-96; 8:45 am]
BILLING CODE 6750-01-M
Complete official Federal Register PDF
FR Doc. 96-24105 Procedures for Implementation of the Fastener Quality Act
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50538-50581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24105]
[[Page 50537]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Institute of Standards and Technology
_______________________________________________________________________
15 CFR Part 280
Fastener Quality Act Implementation Procedures; Final Rule;
Accreditation Body Evaluation and NIST Fastener Laboratory
Accreditation Programs and Consensus Standards Organization Under the
Fastener Quality Act; Notices
Federal Register / Vol. 61, No. 188 / Thursday, September 26, 1996 /
Rules and Regulations
[[Page 50538]]
DEPARTMENT OF COMMERCE
National Institute of Standards and Technology
15 CFR Part 280
[Docket No: 960726209-6209-01]
RIN 0693-AA90
Procedures for Implementation of the Fastener Quality Act
AGENCY: National Institute of Standards and Technology, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Institute of Standards and Technology (NIST) is
today issuing a final rule to implement the Fastener Quality Act (the
Act). The Act protects the public safety by: Requiring that certain
fasteners which are sold in commerce conform to the specifications to
which they are represented to be manufactured, providing for
accreditation of laboratories engaged in fastener testing; and
requiring inspection, testing and certification, in accordance with
standardized methods, of fasteners covered by the Act.
The Secretary of Commerce, acting through the Director of the
National Institute of Standards and Technology (NIST), is implementing
the Act by establishing these procedures, under which: Laboratories in
compliance with the Act may be listed; laboratories may apply to NIST
for accreditation; private laboratory accreditation entities (bodies)
may apply to NIST for approval to accredit laboratories; and foreign
laboratories accredited by their governments or by organizations
recognized by the NIST Director under section 6(a)(1)(C) of the Act can
be deemed to satisfy the laboratory accreditation requirements of the
Act. The regulation also establishes, within the Patent and Trademark
Office (PTO), a recordation system to identify the manufacturers or
distributors of covered fasteners to ensure that the fasteners may be
traced to their manufacturers or private label distributors. In
addition, the regulations contain provisions on enforcement, civil
penalties, and hearing and appeal procedures.
DATES: This rule is effective November 25, 1996.
FOR FURTHER INFORMATION CONTACT: For subpart A: Dr. Subhas Malghan, FQA
Program Manager, Technology Services, National Institute of Standards
and Technology, Building 820, Room 311, Gaithersburg, MD 20899,
telephone number (301) 975-4510; for subparts B and C: James L. Cigler,
Chief, National Voluntary Laboratory Accreditation Program, NIST, (301)
975-4171; for subparts D, E, and F: Robert L. Gladhill, Global
Standards Policy Program, NIST, (301) 975-4273; for subpart G: William
H. Arvin, Special Assistant to the Assistant Secretary for Export
Enforcement, (202) 482-1564; and for subpart H: Lizbeth Kulick,
Trademark Legal Administrator, Patent and Trademark Office, (703) 308-
8900.
SUPPLEMENTARY INFORMATION:
As required by section 13 of the Fastener Quality Act (the Act),
the National Institute of Standards and Technology (NIST) is today
issuing a final rule to implement that Act. The Act protects the public
safety by: (1) Requiring that certain fasteners which are sold in
commerce conform to the specifications to which they are represented to
be manufactured, (2) providing for accreditation of laboratories
engaged in fastener testing; and (3) requiring inspection, testing and
certification, in accordance with standardized methods, of fasteners
covered by the Act.
The Secretary of Commerce, acting through NIST, is implementing the
Act by establishing these procedures, under which: (1) Laboratories in
compliance with the Act may be listed; (2) laboratories may apply to
NIST for accreditation; (3) private laboratory accreditation entities
(bodies) may apply to NIST for approval to accredit laboratories; and
(4) foreign laboratories accredited by their governments or by
organizations recognized by the NIST Director under section 6(a)(1)(C)
of the Act can be deemed to satisfy the laboratory accreditation
requirements of the Act. The regulation also establishes, within the
Patent and Trademark Office (PTO), a recordation system to identify the
manufacturers or distributors of covered fasteners to ensure that the
fasteners may be traced to their manufacturers or private label
distributors. In addition, the regulations contain provisions on
enforcement, civil penalties, and hearing and appeal procedures which
are administered by the Bureau of Export Administration.
Subpart A--``General'' sets out the purpose of the rule, and
presents a general description of the rule. It also contains
definitions that apply throughout the rule and establishes specific
requirements with respect to applicable provisions of the Act.
Subpart B--``Laboratory Accreditation'' provides that all
laboratories that desire to engage in fastener testing covered by the
Act and its implementing regulations must be listed by NIST in the
``Accredited Laboratory List'' established by this subpart. NIST will
prepare and maintain the List, which shall be composed of all
laboratories currently accredited under subparts C, D, and E of these
regulations. Only laboratory test reports prepared by an accredited
laboratory currently listed in the Accredited Laboratory List shall be
deemed to meet the requirements of the Act. Procedures for removing a
fastener testing laboratory from listing and for appeals of listing
decisions are also included.
Subpart C--``NIST Fastener Laboratory Accreditation Procedures,''
sets out the procedures and technical requirements of the National
Voluntary Laboratory Accreditation Program (NVLAP) Fasteners Testing
Program. These procedures are in conformance with ISO/IEC Guide 25-
1990, ``General Requirements for the Competence of Calibration and
Testing Laboratories.''
Subpart D--``NIST Approval of Private Accreditation Programs''
governs NIST approval of accreditation programs operated by private
entities. All private accreditation entities that seek to accredit
fastener testing laboratories must receive recognition under this
subpart. Revocation procedures of such approval are also covered in
subpart D.
Subpart E--``Recognition of Accreditation Programs,'' in accordance
with section 6(a)(1)(C) of the Act, sets forth the conditions under
which the accreditation of foreign laboratories by their governments or
by organizations recognized by the Director shall be deemed to meet the
requirements of section 7 of the Act.
Subpart F--``Requirements for Fastener Laboratory Accreditation
Bodies'' sets out requirements that must be met by all accreditation
bodies approved by NIST under subpart D and recognized under subpart E.
These requirements, based on ISO/IEC Guide 58, are intended to assure
that the approved laboratory accreditation body has the administrative
and technical capability to conduct a fastener accreditation program
which meets all the requirements of the Act. Subpart F also sets out
the requirements against which an approved accreditation body assesses
the technical competence of an applicant's testing laboratory. These
requirements are consistent with those contained in subpart C of the
regulations and all technical requirements established under that
subpart.
Subpart G--``Enforcement'' sets forth the procedures governing the
Commerce Department's administrative procedures for assessment of civil
penalties and remedies.
[[Page 50539]]
Subpart H--``Recordal of Insignia'' contains the conditions and
procedures for manufacturers'' insignias to be recorded by the Patent
and Trademark Office (PTO). The purpose of Section 8 of the Act is to
ensure that fasteners may be traced. The Act effects this purpose by
requiring manufacturers, private label distributors, and persons who
significantly alter fasteners, as defined by the Act, to inscribe any
fastener, required by the standards and specifications to which it was
manufactured to bear a raised or depressed insignia identifying its
manufacturer, private label distributor, or alterer, with insignias
that can be used to trace the fastener to its original manufacturer,
private label distributor, or person who significantly altered the
fastener. However, the Act does not establish any particular
recordation system to effect that purpose. The PTO was charged with
establishing such a system.
Background--Part 1: Summary of the Comment Process from August 1992
Issuance of the Draft Rule and Discussion of the Subsequent Actions
That Lead to the Amendment of the Fastener Quality Act (Pub. L. 101-
592)
On August 17, 1992, NIST published a proposed rule to implement the
Fastener Quality Act in the Federal Register (57 FR 37032). In response
to its request for public comments on the proposed regulation, NIST
received 308 letters. An even 50 percent of the comments, 154, were
submitted by representatives of businesses that distribute fasteners,
and another 69 comments, or 22.4 percent, were submitted by fastener
manufacturers. The remainder of the comments were distributed among
representatives of trade associations: 22 comments received, or 7.1
percent of the total; commenters who identified themselves as users of
fasteners covered by the Act: 16 comments received, or 5.1 percent of
the total; members of the NIST Fastener Advisory Committee: 8 comments
received, or 2.5 percent of the total; representatives of fastener
testing laboratories: 7 comments received, or 2.2 percent of the total;
and 8 letters, or 2.5 percent, were from governmental officials,
including one United States Senator, four agencies of the United States
Government, one state government, and two foreign governments. The
remaining 24 letters, or 8.2 percent, were from individuals or were not
otherwise identifiable as belonging to any group.
The subjects raised by the comments touched on a number of topics,
including some 225 letters that supported legislative changes to the
Fastener Quality Act that had been recommended by a NIST advisory
committee to reduce the cost to the fastener industry of implementing
the Act. In addition, NIST received letters on many topics directly
involving the language of the regulation, such as the need to refine
certain definitions, suggested changes to the procedures governing the
NIST Fastener Laboratory Accreditation Program, suggested changes to
sections of the regulation pertaining to the approval and recognition
by NIST of third parties for the purpose of accrediting fastener
testing laboratories, and other matters. Finally, NIST received a
number of comments on the draft Regulatory Impact Analysis.
The legislative changes recommended by the advisory committee and
supported by the public comments included the following five changes to
the Fastener Quality Act:
* To permit tests of either chemical composition of fasteners to be
carried out upon raw materials or finished fasteners. The effect of
this proposed change would be to greatly reduce the number of tests
needed to verify the chemical composition of fasteners, since many lots
of fasteners are usually manufactured from one ``mill heat.''
* To permit the sale of fasteners which, upon testing under the
Act, are found to have ``minor'' flaws resulting in the fastener not
conforming to the tolerances stated in the standards and specifications
to which they were manufactured. Section 5(a) of the Act expressly
prohibited the sale of fasteners which (1) do not conform to the
standards and specifications to which they were manufactured, and (2)
have not been inspected, tested and certified as provided under the
Act. The Committee felt that many lots of fasteners that could not be
sold under the Act as presently written could be sold, were this
amendment enacted, thus reducing manufacturer costs.
* To permit distributors to commingle fasteners from more than one
lot in the same container, thus reducing warehouse costs for the
distributors, despite the provisions of section 7(e) of the Act.
* To require that any person who significantly alters a fastener be
responsible for retesting that fastener, despite the provisions of
section 7(d) of the Act. And,
* To restrict the availability of test reports to the original
purchaser despite the requirements of section 10 of the Act that such
reports be made available to all subsequent purchasers.
A Hearing before the Subcommittee on Science, Technology, and Space
of the Committee on Commerce, Science, and Transportation, United
States Senate, was held in July 1993 to receive testimony from NIST and
from the fastener industry on the need for amendments to the 1990 Act.
Amendments addressing the issues raised by NIST and the Committee were
introduced in the 102nd Congress and were passed by the U.S. House of
Representatives as part of the National Competitiveness Act of 1994
(H.R. 820). The U.S. Senate passed a slightly different version of the
same bill (S.4). However, the bills did not emerge from the House/
Senate Conference before the 102nd Congress adjourned.
In October 1994 the Industrial Fasteners Institute (IFI), the
National Fastener Distributors Association (NFDA), and the Fastener
Industry Coalition (FIC) formed a bipartisan task force composed of
nine members, nominated from the three organizations, to forge an
industry strategy regarding amendments to the Fastener Quality Act. In
January 1995, the Public Law Task Force (PLTF) submitted its report and
recommendations to Senator Conrad Burns, Chairman, Subcommittee on
Science, Technology and Space, U.S. Senate, and to Congressman Robert
Walker, Chairman, Science Committee, U.S. House of Representatives. At
the request of Senator Burns and Congressman Walker, the Advisory
Committee reviewed the Task Force's report and recommendations and
found them to be consistent with the Committee's recommendations for
amending the Act that were transmitted to NIST and to Congress in 1993.
The Task Force submitted recommendations to Congress for further
simplification and clarification of the Act in early June 1995. Joint
recommendations for amendments from the Fastener Advisory Committee and
the Public Law Task Force were included in legislation introduced as HR
2196 in the U.S. House of Representatives and as S.1164 in the U.S.
Senate. A compromise version was passed in February 1996 as the
National Technology Transfer and Advancement Act, and signed into law
by President Clinton in March 1996 as Pub L. 104-113.
Background--Part 2: Summary of the Fastener Quality Act and Amendments
to the Act as Part of Pub L. 104-113
The Fastener Quality Act requires that certain fasteners sold in
commerce conform to the specifications to which they are represented to
be manufactured; provides for accreditation of laboratories engaged in
[[Page 50540]]
fastener testing; and requires the inspection, testing and
certification (in accordance with standardized methods) of fasteners
covered by the Act.
Section 2 of the Act sets out the findings of Congress with respect
to the Act. Section (a)(4) was deleted, and in section(b) the
references to fasteners used in ``critical applications'' were deleted.
These changes are consistent with the deletion of section 4 of the Act,
assigning the Secretary of Commerce responsibility to determine
categories of fasteners used in ``critical applications'' for purposes
of adding or deleting them from coverage under the Act. The term ``by
lot number'' was deleted from (a)(7) to be consistent with proposed
changes in section 7(e), which allow distributors to voluntarily
commingle two or more certified lots of like fasteners.
Section 3 of the Act provides definitions of terms used in the Act
and in the proposed rule. The following definitions were amended in the
Act:
Definition (1) ``alter'' was amended by deleting the
reference to a minimum tensile strength of 150,000 pounds per square
inch (psi). It was felt that this type of technical requirement did not
belong in the Act and should be covered in implementing regulations.
Accordingly, the issue is dealt with under Sec. 280.2 of this proposed
rule.
Definition (2) ``consensus standards organization'' was
amended by adding the word ``consensus'' in the third line to emphasize
the reliance upon ``consensus standards'' for fasteners covered by the
Act.
Definition (5) ``fastener'' was amended by deleting item
(D) to be consistent with the deletion of section 4 which assigns the
Secretary of Commerce responsibility to add or delete fasteners from
coverage under the Act based upon their use in ``critical
applications.'' In addition, fasteners produced in accordance with ASTM
F432 are exempt from coverage under the Act. ASTM F432 covers rock and
roof bolts and accessories used in the mining industry. This action was
the result of a petition by the American Mining Congress that such
products do not meet the intent of the Act and that they are strictly
regulated by the Mine Safety and Health Administration.
Definition (6) ``grade identification marking'' was
amended by deleting the term ``other person'' and replacing it with
``government agency.'' This change was necessary to be consistent with
the revision of the definition of ``standards and specifications.''
Definition (8) ``Institute'' was amended to correct the
spelling of ``Standards'' in NIST' name.
Definition (11) ``original equipment manufacturer'' was
deleted from the Act to be consistent with the change to section 7(f)
which deletes any reference to OEMs.
Definition (13) ``standards and specifications'' was
amended to resolve two major problems. First, the wording in the
original definition was interpreted by NIST and Commerce attorneys as
prohibiting the sale of any fastener not fully meeting the requirements
of the standards or specifications to which it was manufactured. Such
interpretation does not recognize long-standing industry practice of
disposing of non-conforming fasteners in accordance with defined
procedures contained in consensus standards. The objectionable language
was removed from the definition. Second, the definition as now
constructed makes it clear that for the purposes of the Act only
fasteners which are covered by standards and specifications published
by a consensus standards organization or by a government agency are
subject to the Act.
Definition (14) ``through-harden'' was amended by adding
``* * * for the purpose of achieving a uniform hardness'' to improve
its meaning.
Section 4 of the Act was completely deleted. NIST, with the
assistance of the Fastener Advisory Committee, attempted but was
unsuccessful in establishing guidelines under which the Secretary of
Commerce would add or exempt categories of fasteners from coverage
under the Act. Originally, Congressional intent was that the Act would
cover only ``high strength'' fasteners used in ``critical
applications.'' A figure of 1% of fasteners meeting these categories
was used throughout early Congressional discussions of the Act.
However, upon passage of the Act and further study and interpretation
of its requirements by the Department of Commerce, the Fastener
Advisory Committee, and various industry groups, it became apparent
that the Act applied to a majority of fasteners in the industry.
Further, while it was possible to come to an agreement that a
``critical application'' of a fastener was any application for which it
was reasonably foreseeable that a failure of the fastener would result
in serious personal injury or death, significant property damage, or
significant repair costs, it was not possible to come to agreement a
priori as to which fasteners were used in critical applications. The
problem is that a single type or category of fasteners might be used in
many different applications, some may be critical in terms of having
the potential for causing death or injury if the fastener(s) fails, and
others not. The ultimate user of the fastener determines how fasteners
will be used, and there were many instances cited where ``low
strength'' fasteners were being used in critical applications. Thus,
NIST and the Fastener Advisory Committee concluded that there was no
systematic way in which the Secretary of Commerce could add or exempt
whole categories of fasteners from coverage under the Act, and that to
attempt to do so could be costly in terms of potential litigation, with
no resulting benefit to anyone. Such conclusion was based on evidence
that there is no instance within the industry where one can make a
clear-cut case that a particular fastener category, not currently
covered by the Act, is always used in ``critical applications'' or vice
versa.
Section 5 of the Act prohibits selling (or offering for sale) any
fastener unless it is part of a lot which: (1) Conforms to the
standards and specifications to which the manufacturer represents it
has been manufactured; and (2) has been inspected, tested, and
certified as provided by the Act. An exception to this pre-sale
requirement is provided for certain small lots. These small lots must
be tested as soon as practicable after delivery to the purchaser.
Section 5 also provides that fastener inspection and testing be
performed by a laboratory accredited in accordance with procedures and
conditions specified by the Secretary of Commerce. Sections 5(a)(1)(B)
and 5(a)(2)(B) were amended to add reference to the new section (d)
covering alternative procedures for chemical testing. Section 5(c)(2)
was amended to make it clear that the laboratory report of testing must
include a reference to the standards and specifications the
manufacturer claims the fasteners have been manufactured to. Section
5(c)(3) was amended to remove the examples of fastener markings and
characteristics to be tested. The examples are incomplete and could be
misleading. Section 5(c)(4) was amended to allow the manufacturer to
follow section 5(d) regarding alternative procedures for testing
chemical characteristics of fasteners. A new section 5(d) providing for
an alternative procedure for determining the chemical characteristics
of fasteners was added. This new section recognizes a long-standing
industry practice of manufacturers relying on certificates from the raw
material supplier for assuring that the chemical characteristics of a
mill heat of material conform to specified standards. The section
requires that testing be carried
[[Page 50541]]
out in a laboratory accredited in accordance with the Act.
Section 6 requires the Secretary of Commerce, acting through the
Director of NIST, to issue regulations including: (1) Procedures and
conditions for NIST accreditation of fastener testing laboratories; (2)
conditions (consistent to the extent practicable with requirements of
national or international consensus documents) under which private
entities may apply for approval to directly accredit laboratories in
accordance with the requirements of the Act; and (3) conditions under
which the accreditation of foreign laboratories by their governments or
organizations recognized by the NIST Director will be deemed to satisfy
the requirements of the Act. The Act leaves to the discretion of the
Director the procedures NIST will use to determine the competency of
foreign governments'' (or other organizations') laboratory
accreditation programs. Section 6(a)(1) was amended to delete the
reference to the Secretary's issuance of regulations within 180 days of
enactment of the Act, because that time period is no longer relevant.
Section 7 of the Act covers sales of fasteners subsequent to their
manufacture and establishes requirements which manufacturers,
importers, and private label distributors must meet in the sale of
fasteners. It also requires that any person who significantly alters a
fastener so that it no longer conforms to the description in the
relevant certificate of conformance and offers such fastener for
subsequent sale is to be treated as a manufacturer for purposes of the
Act. Section 7 also governs the commingling of fasteners from different
lots in the same container.
There were several significant amendments to section 7 of the Act.
Section 7(a) was amended to delete reference to section 4 of the Act,
which was deleted. Section 7(a) was also amended to remove the
responsibility from the manufacturer of domestically produced fasteners
of supplying to the purchaser, at the time of delivery, a written
certificate attesting that the fasteners have been manufactured
according to applicable standards and specifications and have been
inspected and tested by an accredited laboratory. Instead, the new
requirement is that the manufacturer maintain on file a manufacturer's
certificate of conformance covering fasteners and that the certificate
be available for inspection. The requirement that the original
laboratory report of test be maintained on file by the manufacturer
remains unchanged. Copies of the manufacturers certificate of
conformance and original test report for a given lot of fasteners may
be requested by purchasers of such fasteners, under an amendment to
section 10 of the Act. This change was made to reduce paperwork burdens
under the Act and to reduce the possibility of fraudulent use of
certificates of conformance or laboratory test reports. It is not the
intent of these changes to deny access to such information to any
person who can demonstrate a legitimate need for the information.
Section 7(b) remains unchanged in terms of requiring delivery of
fasteners of foreign origin to be accompanied by a manufacturer's
certificate of conformance and an original laboratory testing report
for each lot of imported fasteners. Exemptions to these requirements
are provided for products manufactured within a nation which is a party
to a congressionally-approved free trade agreement with the United
States or for Canadian-origin products under the United States-Canada
Automobile Pact for use as original equipment in the manufacture of
motor vehicles. Also, importers or private label distributors may take
delivery of imported fasteners without the original copy of the
laboratory test report if the manufacturer provides a certificate of
conformance indicating that the fasteners have been manufactured
according to the requirements of the applicable standards and
specifications and the importer or private label distributor assumes
responsibility in writing for the inspection and testing of the
fasteners in accordance with the Act.
Section 7(c)(2) was amended by adding several words to improve its
meaning. In section 7(d) the word ``certificate'' was replaced with
``test report'' to make it clear that it is the test report and not the
manufacturer's certificate of conformance that should be referred to in
determining whether or not significant alterations have been made to a
fastener. Section 7(e) on Commingling was amended to permit voluntary
commingling of two or more tested and certified lots by fastener
distributors. There is still a restriction on commingling of more than
two tested and certified lots by manufacturers, importers, or private
label distributors. Section 7(f) on subsequent purchaser was amended to
indicate that any person who purchases fasteners for any reason has the
right to request and receive containers of fasteners with the lot
number from which they were taken conspicuously marked on the
container. Section 7(g) was deleted because the Secretary of Commerce
is provided authority to issue regulations pursuant to the Act in
section 13.
Section 8 prohibits offering fasteners for sale that are required
by an applicable standard or specification to bear a raised or
depressed insignia identifying the manufacturer or distributor unless
the manufacturer or distributor has complied with the requirements of a
program to be established by the Secretary of Commerce for the
registration of such insignias to ensure that the fasteners may be
traced to their manufacturers or private label distributors. However,
the Act does not establish any particular recordation system to effect
that purpose. The Patent and Trademark Office (PTO) was charged with
establishing such a system. These requirements are proposed as subpart
H of this rule.
Section 9(a) of the Act authorizes the Attorney General to bring an
action in U.S. district courts for declaratory and injunctive relief
against persons who violate the Act or implementing regulations.
Section 9(b) requires the Secretary of Commerce to establish ``notice
and opportunity for hearing'' procedures for the assessment of civil
penalties not to exceed $25,000 for each violation of the Act or
implementing regulations, authorizes penalty recovery actions by the
Attorney General, and authorizes the Secretary to issue subpoenas of
witnesses or documents. A ``substantial evidence'' standard of judicial
review is provided. Section 9(c) of the Act provides for criminal
penalties, which are enforced by the Department of Justice. A new
section 9(d) dealing with enforcement was added as an amendment to the
Act at the request of the Bureau of Export Administration within the
Department of Commerce. The Bureau of Export Administration has been
delegated responsibility for enforcement of the Act by the Secretary of
Commerce. This new language provides authority for agents and
investigators from the Bureau of Export Administration to also use
authorities conferred upon them by other laws of the U.S., subject to
policies and procedures approved by the Attorney General to enforce
this Act. Proposed regulations implementing section 9 are contained in
subpart G of this rule.
Section 10 of the Act deals with record keeping requirements. This
section was amended to reduce from 10 years to 5 years, the period
during which records must be kept by persons subject to the Act. In
section 10(b) the word ``any'' has been replaced by the word ``the'' to
limit the responsibility of manufacturers, importers, private label
[[Page 50542]]
distributors, and persons who make significant alterations under the
Act, to supply copies of applicable laboratory testing reports or
manufacturers' certificates only to their purchasers of fasteners. The
intent of the change is to reduce paperwork burdens and to protect
against fraudulent use of test reports and certificates of conformance.
Section 13 provides authority to the Secretary of Commerce to issue
regulations pursuant to the Act. The reference to issuance of
regulations within 180 days of enactment of the Act was deleted because
the time frame is no longer relevant.
Section 14 requires the establishment of an advisory committee to
assist in implementation of the Act. This section was deleted. The
requirements of the section have been met by NIST.
Background--Part 3: Summary of Public Comments Received by NIST in
Response to the 1992 Request for Public Comments, and NIST's Response
to the Comments
As was noted above, on August 17, 1992, NIST published a proposed
rule to implement the Fastener Quality Act in the Federal Register (57
FR 37032). A detailed analysis of the comments follows.
Comments Requesting NIST To Issue Another Proposed Rule
Several commenters requested that in light of amendments made to
the Fastener Quality Act under Pub. L. 104-113, NIST should issue
another proposed rule for public comment. NIST asserts that this final
rule is the logical outgrowth of the 1992 proposed rule and the public
comment process. A majority of the public comments received on the 1992
proposed rule suggested the need for particular amendments to the FQA.
The suggested amendments were enacted as part of Pub. L. 104-113. This
rule contains regulations making final the 1992 proposed rule, as well
as regulations to implement expressly the FQA as amended pursuant to
specific public comments received regarding the 1992 proposed rule.
Therefore, under the Administrative Procedures Act, 5 U.S.C. 553, and
relevant case law, see International Harvester Co. v. Ruckelshaus, 478
F.2d 615 (D.C. CIR. 1973), South Terminal Corp. v. Environmental
Protection Agency, 504 F.2d 646 (1st CIR. 1974), and United Steel
Workers v. Marshall, 647 F.2d 1189 (D.C. CIR. 1980), denied, 101 S.Ct.
3148 (1981), NIST has determined that it has the authority to issue
this final rule without the necessity for issuing another proposed
rule.
Comments Urging Changes to the Regulations Requiring Amendments to the
Fastener Quality Act
NIST received 225 letters (146 from fastener distributors, 50 from
fastener manufacturers, 13 from trade associations, and 13 from
fastener users or importers, and other sources) supporting
recommendations of the Fastener Advisory Committee (the ``Committee''),
which proposed that the following amendments be made to the Fastener
Quality Act:
Comment: Permit tests of the chemical composition of
fasteners to be carried out upon raw materials, rather than upon
finished lots of fasteners as required by the Act.
NIST Response: This legislative change was made in Pub. L. 104-113,
which added a new section 5(d) ``Alternative Procedure for Chemical
Characteristics'' to the Act. New section 5(d) of the Act is
implemented in section 280.15 of the regulations being published today.
Comment: Permit the sale of fasteners which, upon testing
under the Act, are found to have ``minor'' flaws resulting in the
fastener not conforming to the tolerances stated in the standards and
specifications to which they were manufactured. Section 5(a) of the Act
expressly prohibits the sale of fasteners which (1) do not conform to
the standards and specifications to which they were manufactured, and
(2) have not been inspected, tested and certified as provided under the
Act.
NIST Response: This legislative change was made in Pub. L. 104-113,
which amended the definition of ``standards and specifications'' found
in subsection 3(13) of the Fastener Quality Act. The legislative change
recognizes the provisions of numerous commercial and military documents
which provide for a cost effective disposition system for nonconforming
products when a minor nonconformance does not adversely affect the
health and safety, performance, interchangeability, reliability,
maintainability or effective use or operation. The changed definition,
which will permit the sale of fasteners with minor nonconformances is
found in Sec. 280.2 of the regulations being published today.
Comment: Permit distributors to commingle fasteners from
more than one lot in the same container, thus reducing warehouse costs
for the distributors, despite the provisions of section 7(e) of the
Act.
NIST Response: This legislative change was made in Pub. L. 104-113,
which amended section 7(e) of the Fastener Quality Act to permit
commingling of no more than two lots of fasteners under specified
circumstances. The change is implemented in Sec. 280.4 of the
regulations being published today.
Comment: Require that any person who significantly alters a
fastener be responsible for retesting that fastener, despite the
provisions of section 7(d) of the Act.
NIST Response: No legislative changes have been made in response to
this comment. Accordingly, no changes have been made to the regulation.
Comment: Restrict the availability of test reports to the
original purchaser despite the requirements of section 10 of the Act
that such reports be made available to all subsequent purchasers.
NIST Response: In section 10(b) of the Act, the word ``any'' has
been replaced by the word ``the'' to limit the responsibility of
manufacturers, importers, private label distributors, and persons who
make significant alterations under the Act, to supply copies of
applicable laboratory testing reports or manufacturers' certificates
only to their purchasers of fasteners. The intent of the change is to
reduce paperwork burdens and to protect against fraudulent use of test
reports and certificates of conformance.
Subpart A--General
Comments received by NIST pertaining to this subpart are addressed
section by section. If no comments were received pertaining to a
particular section, there is no corresponding entry in this analysis.
Section 280.2 Definitions
As a result of changes made to subparts C and E of these
regulations based on comments described in the relevant sections of
this analysis, several changes have been made to definitions. A
definition has been added for the term ``Accreditation Body,'' to refer
to the National Voluntary Laboratory Accreditation Program, and to
those private entities currently approved by NIST under subpart D of
these regulations and those foreign governments or organizations
currently recognized by NIST under subpart E of these regulations. A
definition has also been added for ``Approved signatory'' to mean an
individual employed by a laboratory accredited under the Act and these
regulations who is recognized by an accreditation body as competent to
sign accredited laboratory test reports. Finally, the definition of
``Certificate of Accreditation'' has been expanded so that it now
refers to a document issued by an accreditation body to a laboratory
that has met the criteria and conditions
[[Page 50543]]
of accreditation, that, together with the assigned code number and
scope of accreditation issued by the accreditation body, may be used as
proof of accredited status.
Various comments suggested that three interrelated definitions, for
``alter,'' ``critical application,'' and ``significantly alter'' should
be revised. These comments came from the Fastener Advisory Committee,
four trade associations, two users, three manufacturers, and one
foreign government. The Fastener Advisory Committee recommended that
the definition of ``alter'' be slightly amended to make clear that
alter pertains to electroplating of fasteners that are ``specified'' as
having a minimum tensile strength of 150,000 psi or greater, otherwise
the requirement could be misinterpreted to mean that electroplated
fasteners that are ``tested'' and found to be greater than 150,000 psi
would have been considered significantly altered even though they were
specified with a minimum tensile strength lower than 150,000 psi.
Definition of Significantly Alter
The Fastener Advisory Committee devoted a great deal of study to
the term ``Significantly Alter'' through its Alteration Working Group.
Public comments stressed the need to be clear about what is or is not a
significant alteration; who is responsible as the alterer of the
fastener; and what tests and markings are required. Consistent with
language found in the Act, the Committee felt it is important to define
a significant alteration as an action which could weaken or otherwise
materially affect the performance or capabilities of the fastener as it
was originally manufactured, grade or property class marked, and
tested. Alterations not considered significant include the application
of adhesives or sealants, locking elements, cutting off, provisions for
lock wires, or coatings and platings of parts below a certain hardness
level to be discussed later in this part. The practice of cutting
threads off a finished fastener is not defined as a significant
alteration. Similarly, the cutting of finished threaded studs, rods,
and bars to produce individual smaller length threaded studs for resale
is not considered a significant alteration. However, the individual
fasteners cut from threaded studs, rods, and bars and offered for
resale shall be individually marked with the grade or property class
identification marking appearing on or accompanying the original
threaded studs, rods, and bars from which the fasteners were cut.
Commenters also asked for clarification on who is responsible as the
alterer of a fastener. NIST and the Committee agree that the person who
owned the fastener at the time the alterations were carried out is
responsible for assuring adherence to the regulations. Accordingly, a
definition of ``Alterer'' has been added to Sec. 280.2, per the
Committee's wishes.
With respect to questions concerning marking and testing of
significantly altered fasteners, the significant alterer will be
responsible for applying a registered insignia to the altered fastener
if so required by the original standards and specifications, and for
assigning a new lot number. A new Sec. 280.11 has been added to the
regulations to spell out these requirements. The significant alterer
will also be responsible for causing the altered fasteners to be
inspected and tested as required under section 5 of the Act, unless the
fastener is delivered to a purchaser accompanied by a written statement
noting the original lot number and the new lot number assigned by the
alterer, disclosing the subsequent alteration, and warning that such
alteration may affect the dimensional or physical characteristics of
the fastener.
If the alteration is not a significant alteration, a new headmark
and new lot number are not required and the only testing requirements
which apply are those required by the specification to which the minor
alteration was performed, such as prevailing torque or salt spray. If
the significant alteration is only electroplating of fasteners above a
certain hardness level or strength level, the requirement for a new
headmark is waived, but a new lot number must be assigned and testing
for hydrogen embrittlement must be performed in addition to those tests
required by the plating specification.
Based upon subsequent input from the Public Law Task Force on the
issue of alteration and significant alteration of fasteners, the Task
Force recommended to Congress that the definition of ``alter'' should
be amended by deleting the reference to a minimum tensile strength of
150,000 pounds per square inch (psi). It was felt that this type of
technical requirement did not belong in the Act and should be covered
in implementing regulations. Pub. L. 104-113 amended section 3(1)(B) of
the Act to remove this requirement.
The Public Law Task Force recommended to the Department that the
Rockwell C Hardness Scale be used in the regulations in lieu of tensile
strength for purposes of determining which fasteners have been
significantly altered through electroplating. It is widely held within
the fastener industry that the process of electroplating fasteners,
particularly high strength fasteners, increases their susceptibility to
hydrogen embrittlement. The intent of the Act and the regulations is to
require that electroplating of high strength fasteners be considered a
significant alteration, and to further require that the manufacturer or
person responsible for the alteration assign a new lot number to the
fasteners and test them in accordance with the plating specification. A
specified Rockwell C value of 32 has been selected as the threshold
hardness for determining when electroplating is a significant
alteration of fasteners. This value has been selected for the following
reasons: (1) It is roughly equivalent to the original threshold of
150,000 psi contained in the 1990 Act (ASTM A370, which provides
approximate hardness conversion numbers for nonaustenitic steels,
indicates that Rockwell C 32 is approximately equivalent to a tensile
strength of 146,000 psi and Rockwell C 33 is approximately equivalent
to a tensile strength of 149,000 psi), thereby covering the same types
and grades of fasteners; and (2) setting the threshold Rockwell C
hardness value at 32 rather than 33 would treat Grade 8 fasteners and
metric 10.9 fasteners (which are substantially equivalent) equally for
purposes of determining when electroplating is a significant
alteration.
Definition of Critical Application
A large number of comments were received on the definition of
``critical application.'' Some of the commenters felt that the
definition did not offer guidance in determining what is meant by
``significant property damage'' or ``significant repair costs.'' Other
commenters felt that the definition should be changed to indicate that
fasteners having minimum tensile strengths of 150,000 psi or greater
should be considered as critical and those below 150,000 psi should be
exempt from coverage under the Act because they are not generally used
in critical applications. The Fastener Advisory Committee and the
Public Law Task Force devoted much time and effort to studying this
issue and recommended to Congress that section 4 of the Act be deleted
in its entirety which would also mean deleting the definition of
``critical application'' as it applies only to section 4. Section 4 of
the Act was repealed by Pub. L. 104-113, and accordingly, the
definition of ``critical application'' has been removed from the
regulations being published today.
NIST, with the assistance of the Fastener Advisory Committee,
attempted but was unsuccessful in
[[Page 50544]]
establishing guidelines under which the Secretary of Commerce would add
or exempt categories of fasteners from coverage under the Act under the
now-repealed section 4 of the Act. Originally, Congressional intent was
that the Act would cover only ``high strength'' fasteners used in
``critical applications.'' A figure of 1% of fasteners meeting these
categories was used throughout early Congressional discussions of the
Act. However, upon passage of the Act and further study and
interpretation of its requirements by the Department of Commerce, the
Fastener Advisory Committee, and various industry groups, it became
apparent that the Act applied to a majority of fasteners in the
industry. Further, while it was possible to come to agreement that a
``critical application'' of a fastener was any application for which it
was reasonably foreseeable that a failure of the fastener would result
in serious personal injury or death, significant property damage, or
significant repair costs, it was not possible to come to agreement a
priori as to which fasteners were used in critical applications. The
problem is that a single type or category of fasteners might be used in
many different applications, some may be critical in terms of having
the potential for causing death or injury if the fastener(s) fails,
others not. The ultimate user of the fastener determines how fasteners
will be used, and there were many instances cited where ``low
strength'' fasteners were being used in critical applications. Thus,
NIST and the Fastener Advisory Committee concluded that there was no
systematic way in which the Secretary of Commerce could add or exempt
whole categories of fasteners from coverage under the Act, and that to
attempt to do so could be costly in terms of potential litigation, with
no resulting benefit to anyone. Such conclusion was based on evidence
that there is no instance within the industry where one can make a
clear-cut case that a particular fastener category, not currently
covered by the Act, is always used in ``critical applications'' or vice
versa.
Definition of Commingling
The Fastener Advisory Committee felt it was important to define
commingling because it is used in the Act. Accordingly, the regulation
has been revised to define ``Commingling'' as meaning the mixing of
fasteners from different lots in the same container.
Definition of Fastener--Washers Subject to the Act
During the joint meeting of the Fastener Advisory Committee and the
Public Law Task Force, held May 15-16, 1996 at the National Institute
of Standards and Technology (NIST), washer manufacturers present at the
meeting commented that there was confusion about which washers were
``fasteners'' under the Act. In particular, they pointed to confusion
among their customers, many of whom were interpreting the Act as
covering any washer that was to be used with a bolt or screw that
itself was covered by the Act.
Congressional intent on this issue is clearly stated in page 10 of
Senate Report 101-388, dated July 23, 1990, which accompanied the
original H.R. 3000 (Fastener Bill). It states as follows:
``Subparagraph (C) of section 3(5), which defines `fastener,' is
intended to cover those washers which standards indicate are associated
with particular fasteners and must be used in order for those fasteners
to conform to those standards. A washer whose use with a particular
fastener is permitted but not required is not covered by this
definition.''
The Advisory Committee and the Task Force concluded that there were
only two U.S. standards and specifications which specifically call out
requirements for washers used in association with covered fasteners
under the Act, and that the regulations should identify such standards
and specifications to make it clear what washers were fasteners within
the meaning of the Act. The standards and specifications are ASTM F959
or F959M pertaining to load indicating washers, and ASTM F436 or F436M
which pertain to washers specified for use with structural bolts or
equivalent high strength bolts. The Advisory Committee and the Task
Force also pointed out that there may be foreign or international
equivalents to these standards and specifications.
The Department believes that the conclusion of the Advisory
Committee and the Task Force, as stated above, is consistent with the
stated Congressional intent of the Act, but feels that it would be
inappropriate to include a specific determination within the
regulations that only washers manufactured to or held out as being
manufactured to the above-mentioned standards and specifications are
fasteners within the meaning of the Act. To do so would unnecessarily
restrict the freedom of consensus standards bodies to significantly
change these standards and specifications in the future, or to propose
new standards and specifications which would have the effect of
including additional washers as ``fasteners'' within the meaning of the
Act. In addition, doing so could exclude washers held out as meeting a
foreign or international standard or specification that requires
certain washers to be used with particular fasteners in order to
conform to that standard or specification.
Definition of ``Fastener''--Referencing of Consensus Standards
During the joint meeting of the Fastener Advisory Committee and the
Public Law Task Force, held May 15-16, 1996 at the National Institute
of Standards and Technology (NIST), comments were received from a
member of the Advisory Committee on that part of the definition of
``fastener'' in Sec. 280.2 of the regulations, which includes the
requirement that: ``A screw, nut, bolt, stud, or washer held out as
being produced according to the requirements of a document other than a
document published by a consensus standards organization is a fastener
within the meaning of the Act and this part if that document
incorporates or references (directly or indirectly) standards and
specifications published by a consensus standards organization or
government agency for purposes of delineating performance or materials
characteristics of the fastener.''
In the view of this Committee member the Congressional intent was
to amend the definition of ``standards and specifications'' in section
3(14) of the Act to remove from coverage under the Act fasteners
produced to standards and specifications published by ``major end-
users,'' and therefore the language proposed in Sec. 280.2 of the
regulations as noted above was not consistent with Congressional
intent. The Committee member proposed an amendment to the definition of
``standards and specifications'' which would have the effect of
exempting from coverage under the Act and regulations fasteners
produced to standards and specifications published by ``major end-
users'' who then purchase such fasteners and install them into a
structure or assembly. The Department agreed to study this matter and
no action was taken on the proposal by the Advisory Committee and the
Task Force.
The Department has studied this issue and concludes that the
definition of fastener as provided in Sec. 280.2 of the regulations
meets Congressional intent. Therefore, the proposal to exempt fasteners
produced to standards and specifications published by ``major end-
users'' is rejected. The reasons are as follows. In the 1990 version of
the Fastener Quality Act, ``standards and specifications'' were defined
as
[[Page 50545]]
documents published by ``consensus standards organizations,''
``government agencies,'' and ``major end-users.'' The Act further
defined ``consensus standards organization'' but did not define ``major
end-user'' of fasteners. NIST, with the assistance of the Fastener
Advisory Committee, defined ``major end-user'' in the draft
implementing regulations issued for public comment in 1992 as ``a
recognized developer and publisher of standards bearing such user's
identification which have characteristics similar to national consensus
standards and which have been developed or modified to fit the specific
needs of such user.''
During the 1992 public comment period, comments were received from
the Fastener Advisory Committee that there are manufacturers and
private label distributors who modify existing standards and
specifications to produce unique fasteners either for marketing
purposes or to satisfy a particular market niche, and that such
manufacturers or private label distributors might not be considered
``major end-users'' for purposes of this definition. The result could
be that fasteners produced this way might be considered ``blueprint
specials'' and, therefore, not subject to the Act. Based upon such
comments, the Department proposed a change to the definition of
``standards and specifications'' to have it read: ``* * * the
provisions of a document published by a consensus standards
organization, a government agency, a manufacturer, a private label
distributor, or a major end-user of fasteners.'' The net effect of the
proposed change would have been to include a much broader population of
fasteners under the Act. For example, fasteners produced to a company's
proprietary standard would have been included under the Act provided
the fastener met all other requirements pertaining to the definition of
a ``fastener.''
In 1995 industry formed the Public Law Task Force to forge a
unified industry position on needed amendments to the Act. The Task
Force was invited by Congress to propose clarifying and substantive
amendments to the Act. NIST was asked to cooperate with the Task Force
in developing such recommendations. The definition of ``standards and
specifications'' was an issue raised by the Task Force, who felt that
the definition was confusing and needed to be simplified. In reviewing
the definition, NIST concluded that the 1992 proposed change had the
effect of including within the meaning of the Act fasteners produced to
standards and specifications published by manufacturers and private
label distributors, and that such extension of the Act was not
supportable after a review of Congressional history of the Act.
Additionally, the definition of ``major end user'' as proposed in the
1992 draft of the regulations was confusing in terms of deciding which
standards of which organizations would apply.
A review of legislative history indicates that the intent was to
cover fasteners produced for use by original equipment manufacturers
(OEMs) in ``aircraft, the space shuttle, motor vehicles of all kinds,
military equipment, highway bridges, and buildings'' (page 2, Senate
Report 101-388, dated July 23, 1990). Additional evidence is contained
in the Act itself by virtue of the definition of OEMs contained in
section 3(11) of the 1990 Act and in examples cited in pp 18-19, of the
Senate Report cited above. Further, in discussions within the Task
Force it was clear that industry practice among companies like General
Motors, Ford, and Chrysler was to reference standards from ASTM, SAE,
and other consensus standards bodies in their standards.
Accordingly, the Task Force proposed an amendment to the definition
of ``standards and specifications'' in section 3(14), which was adopted
by Congress and which bases the Act's coverage of fasteners on those
produced to standards and specifications of consensus standards bodies
and government agencies. Such amendment was proposed with the
understanding that NIST would further specify by regulation that
fasteners produced to documents other than those of consensus standards
organizations or government agencies would be fasteners within the
meaning of the Act if those documents incorporate or reference
(directly or indirectly) standards and specifications published by a
consensus standards organization or a government agency for purposes of
delineating performance or materials characteristics of the fastener.
Therefore, fasteners produced to standards and specifications published
by major end-users are covered by the Act and Regulations, if those
standards and specifications incorporate or reference, directly or
indirectly, standards and specifications published by a consensus
standards organization or a government agency.
Definition of Grade or Property Class Identification Marking
Several comments were received that the definition of ``Grade or
Property Class Identification Marking'' should be clarified to
distinguish between grade or property class marks and ``raw material
marks.'' A grade mark is placed on a fastener to indicate that the
material, strength properties, or performance capabilities of the
fastener conform to a specific standard. A raw material mark indicates
the base material used and is not considered a grade identification
mark for purposes of the Act and Regulations, unless the mark is
required by the fastener standards and specifications to identify
specific conformance.
Definition of Lot Traceability
The Fastener Advisory Committee recommended that ``lot
traceability'' be defined as it is an important term used in the Act
and regulations. A definition has been provided in the regulations. As
part of the definition, it is necessary to make it clear that the
fastener part number, manufacturer's identity, and lot number are
critical elements of information needed to assure lot traceability.
Accordingly, a definition has also been added for ``lot-specific
identification information,'' as meaning information applicable to a
fastener consisting of, at a minimum, (i) the part number (or a part
description if there is no applicable part number), (ii) the identity
of the manufacturer, and (iii) the lot number. A definition has also
been provided for ``Lot number'' as meaning a number assigned by a
manufacturer to the lot.
Definitions Related to ``OEMS''
Eight commenters, five manufacturers and users of fasteners, and
three trade associations suggested that changes should be made in the
definitions contained in the regulations to clarify the meaning of the
terms ``original equipment manufacturer'' (OEM) and ``authorized
dealer.'' Some of the commenters suggested that a definition should be
provided for the term ``authorized dealer'' in order to clarify that
the term ``original equipment manufacturer'' is not limited to the
automobile industry. Other commenters expressed confusion about the
application of the regulation in the context of original equipment
manufacturers who are also importers. Two amendments to the Act have
taken care of this issue. First, section 7(e), commingling was amended
to permit voluntary commingling of fasteners by distributors and the
reference to original equipment manufacturer was removed. Second, the
definition of ``original equipment manufacturer'' in section 3(11) was
deleted.
[[Page 50546]]
Definition of Original Laboratory Testing Report
During the May 1996 joint meeting of the Fastener Advisory
Committee and the Public Law Task Force there was discussion about the
requirement in Sec. 280.5 of the regulations that an ``original
laboratory testing report'' was required to be maintained on file with
the manufacturer, importer, or private label distributor. Questions
arose as to what constituted an original test report. In order to
clarify the intent of the regulations a definition of ``original
laboratory testing report'' has been added which states that it is ``a
laboratory testing report which is originally-signed by an approved
signatory or a copy thereof, certified by the laboratory that conducted
the test''.
Definition of Standards and Specifications
Comments were received from the Fastener Advisory Committee
concerning the definition of ``Standards and Specifications.'' The
Committee noted that there are manufacturers and private label
distributors who modify existing standards and specifications to
produce unique fasteners either for marketing purposes or to satisfy a
particular market niche, and that such manufacturers or private label
distributors might not be considered ``major end-users'' for purposes
of this definition. The definition of ``standards and specifications''
has been amended in the Act to make it clear that for purposes of the
Act only fasteners covered by standards and specifications published by
a consensus standards organization or by a government agency are
subject to the Act.
Definition of Traceability
Four commenters, three manufacturers and one trade association,
suggested that the term ``traceability'' should be revised to
distinguish between traceability of fasteners and traceability as
defined in the context of the standards arena. In response to this
comment, the definition of ``traceability'' contained in the draft
regulations has been replaced by two definitions. The first, ``Lot
traceability,'' defines traceability in the context of fasteners as
meaning the recording and maintenance of lot-specific identification
information sufficient to trace fasteners from a single lot throughout
(i) the manufacturer's fabrication or alteration process, (ii) all
inspection and testing operations, and (iii) the subsequent chain of
distribution in commerce. The second, ``Traceability of Measurements,''
defines measurement traceability as meaning a documented chain of
comparisons connecting the accuracy of a measuring instrument to other
measuring instruments of higher accuracy and, ultimately, to a primary
standard.
In response to a series of comments on laboratory test reports
which are described below in the narrative relevant to that section, a
definition of ``Tamper-resistant system'' has been added to Sec. 280.2.
The phrase is defined to mean the use of special paper, embossing
stamps, or other controls which discourage, prevent, or minimize
alteration of test reports subsequent to manufacturing, inspection, and
testing.
Old Sec. 280.4: Waiver Requirement and Old Sec. 280.5: Inclusion of New
Fasteners
Pub. L. 104-113 repealed section 4 of the Act, rendering these
sections obsolete. Accordingly, they have been removed from the
regulation being published today.
New Sec. 280.4: Commingling
Pub. L. 104-113 amended section 7(e) of the Fastener Quality Act to
permit voluntary commingling of no more than two tested and certified
lots by fastener distributors. There is still a restriction on
commingling of more than two tested and certified lots by
manufacturers, importers, or private label distributors. The change is
implemented in Sec. 280.4 of the regulations being published today.
New Sec. 280.5: Certification of Fasteners
One commenter asked whether the regulation requires distributors to
furnish to their customers a manufacturer's certificate when they make
their sale. NIST notes that distributors are not required to provide
copies of the certificates. A new Sec. 280.5 of the regulation has been
added which specifies information that must appear in the ``certificate
of conformance'' and the responsibility of the manufacturer to maintain
the certificate on file available for inspection. The sale of fasteners
by parties other than the manufacturer without an accompanying
certification is not prohibited.
Section 280.6: Laboratory Test Reports
A wide range of comments were received by NIST on the general topic
of the requirements for laboratory test reports set out in Sec. 280.6
of the regulations. For ease of analysis, those comments are discussed
under the following general categories:
* General Observations and Comments;
* Authorized Signatories;
* Tamper Proof Paper; and
* Test Report Contents.
Each of these topics is discussed below.
General Observations and Comments
NIST received eight general comments on the requirements set out in
Sec. 280.6 for the content of laboratory test reports. Four commenters
(three manufacturers and one importer) stated that the reports were
either burdensome, clumsy, irrelevant or otherwise unpleasant, and
suggested that revisions be made to ``clean up'' Sec. 280.6. NIST's
response to these comments is contained in the following paragraphs.
Another commenter suggested that NIST require that all test reports
include the words ``Certified Fastener Test Report'' in a clear and
prominent position. No change to the regulation has been made based
upon this comment. Three manufacturers and a trade association
suggested that NIST delete the requirement to report on ``test
conditions, test set up'' found in Sec. 280.6(a). This deletion has
been made.
NIST has made a number of changes to the regulation in an effort to
simplify and clarify the required contents of laboratory test reports.
In addition, some of the required elements of laboratory test reports
have been grouped into logical units that NIST hopes will make the test
reports more logical and orderly in presentation. Old Secs. 280.6(a)
(6), (7) and (8) from the proposed regulation have been grouped under
the category ``Sampling Information'' in a renumbered Sec. 280.6(a)(5),
and have been assigned the numbers 280.6(a)(5) (i), (ii) and (iii). In
addition, old Secs. 280.6(a) (9), (10), (12), (14) and (15) from the
proposed regulation have been grouped under the category ``Test
Results'' in a renumbered Sec. 280.6(a)(6), and have been assigned the
numbers 280.6(a)(6) (i), (ii), (iii), (iv), (v) and (vi).
Approved Signatories
NIST received three comments on the requirement contained in
Sec. 280.6(a)of the regulation that all laboratory test reports be
signed by an approved signatory. All three comments were from
manufacturers, and suggested either that the requirement for a
signature be removed completely, or that copies of signatures be
permitted. No changes have been made by NIST to the regulation. An
original test report containing an ``original signature of an approved
signatory'' of the laboratory must be provided to the manufacturer, and
under section 7(a)(2) of the Act the original test report must be
maintained on file with the manufacturer and be available for
inspection. However, copies of such report provided by the manufacturer
on a request basis to
[[Page 50547]]
customers do not have to bear original signatures. A definition of
``approved signatory,'' has been added to Sec. 280.2 of the regulation
to clarify which individuals are empowered to sign test reports on
behalf of accredited laboratories.
Tamper Proof Paper
NIST received twelve comments pertaining to the requirement found
in Sec. 280.6(a) that all laboratory test reports use tamper proof
paper. Seven of the comments urged that the requirement for tamper
proof paper be deleted; these comments came from three manufacturers,
two trade associations and two users of fasteners.
The remaining five comments urged that the requirement for tamper-
proof paper be replaced by a requirement for a system which discourages
tampering, perhaps embossing, because tamper-proof paper is not
generally available. These comments came from four manufacturers and
one trade association. As a result of these comments, NIST has revised
Sec. 280.6(a) of the regulations to provide for the use of a ``tamper-
resistant system'' in the preparation of laboratory test reports. In
addition, a definition has been added to Sec. 280.2 as follows
``Tamper-resistant system'' means the use of special paper or embossing
stamps or other controls which discourage, prevent or minimize
alteration of test reports subsequent to manufacturing, inspection and
testing.
Test Report Contents
NIST received numerous comments pertaining to the specific contents
of laboratory test reports required by Sec. 280.6 of the regulations.
In the following paragraphs these comments are described along with
NIST's response to them.
One comment from an importer stated that Sec. 280.6(a)(3) should be
revised so that ``Name of client'' should apply only to independent
laboratories, and not to in-house laboratories. In order to avoid
creating confusion for parties that may review the laboratory test
report at a later date the regulation has not been changed.
NIST received eleven comments on the provisions of old
Sec. 280.6(a)(5) (now Sec. 280.6(a)(4)), which pertains to the
description of the fastener required in laboratory test reports.
Comments from a manufacturer and an importer raised concern about the
requirement for describing head markings found in old
Sec. 280.6(a)(4)(iii) (now Sec. 280.6(a)(4)(iv)). One commenter
suggested that the requirement should be deleted, and another suggested
that the requirement was too burdensome. NIST has determined that the
requirements of this section are essential to the report, and have
clarified its wording that both the manufacturer's recorded insignia
and grade markings must be reported. Three comments were received about
old Sec. 280.6(a)(4)(iv) (now Sec. 280.6(a)(4)(v)), an importer
observing that the requirement for a listing of thread tolerance on
laboratory test reports was not needed because this information was
specified by a standard; a distributor stated that the section should
refer to ``Nominal Diameter'' instead of ``Diameter''; and an agency of
the United States Government suggested that ``class of fit'' be
replaced with ``dimensional tolerance class'' and add ``thread
application category (safety critical thread, other thread etc.), or
conformance requirements, and the dimensional standard under which the
threads were manufactured.'' The section has been revised to refer to
``nominal dimensions'' as suggested.
Continuing the discussion on old Sec. 280.6(a)(5) (now
Sec. 280.6(a)(4)), one manufacturer suggested that the section be
revised to require inclusion in the test report of information on the
revision level of applicable drawing or standard at the time of
manufacture. Also, a trade association suggested that the same section
be revised to add part numbers. No changes have been made to the
regulation based upon these comments since NIST believes that adequate
information on these matters is already required. Another manufacturer
suggested that old Sec. 280.6(a)(5)(viii) (now Sec. 280.6(a)(4)(viii))
be revised by changing ``specification and grade of material'' to
``grade of material.'' No change was made to the regulation based upon
this comment. A user and a manufacturer each suggested that old
Sec. 280.6(a)(4)(ix) be revised to eliminate ``heat treated to the
requirements of the following specification'' and this change has been
made. The last comment on old Sec. 280.6(a)(5)(now Sec. 280.6(a)(4))
was a suggestion by a user who suggested that it be revised not to
require thickness, baking, and so on. The coating material must be
specified, but the regulation has been changed in the now
Sec. 280.6(a)(4)(ix) to drop any reference to thickness of coating or
baking of fasteners.
Three manufacturers and a trade association suggested that original
Sec. 280.6(a)(8) (now Sec. 280.6(a)(5)(iii)) be revised to delete the
name and affiliation of the person performing lot sampling, and two
manufacturers, a user and an importer suggested that Sec. 280.6(a)(9)
was redundant. NIST has determined that these elements are essential to
the report; accordingly no changes have been made. Five comments were
received pertaining to original Sec. 280.6(a)(10) (now
Sec. 280.6(a)(6)(ii)) of the regulations, divided among two
manufacturers, a user, an importer, and a trade association. The
commenters noted that a clarification was needed of the meaning of
``test results''; that is, whether the results should be given as pass/
fail, as maximum and minimum results, or within the context of actual
specification limits. The ``test results'' to be recorded in the test
report are those specified in the applicable standard, specification,
or test method cited by the manufacturer and/or used by the laboratory.
Hence, no change to the regulation was made based upon these comments.
Three comments from manufacturers questioned the provisions of
original Sec. 280.6(a)(12) (now Sec. 280.6(a)(6)(iii)) pertaining to
reporting on all deviations from the test method, asking whether
deviations from the test method would result in flawed testing/
erroneous test results. Two commenters, a manufacturer and an importer,
suggested that original Sec. 280.6(a)(14) (now Sec. 280.6(a)(6)(iv))
should be revised by deleting ``all other items required by the test
method'' as ambiguous or expanding the section to define that which is
required. No cha
FR Doc. 96-24105 Procedures for Implementation of the Fastener Quality Act
nges have been made to the regulation based upon this
comment. One manufacturer commented that the wording of original
Sec. 280.6(a)(15) (now Sec. 280.6(a)(6)(vi)) appears to suggest
nonconforming products can be sold.
Two manufacturers recommended that old Sec. 280.6(a)(17) (now
Sec. 280.6(a)(8)) be deleted, thus removing the requirement that the
test report relate only to the item(s) tested, and two manufacturers
suggested deleting the requirement found in Sec. 280.6(a)(18) (now
Sec. 280.6(a)(10)) for reporting the name of the body which accredited
the laboratory for the specific tests performed which are the subject
of the report and the current period of accreditation. NIST has
determined that this information is essential to the report, and the
requirements of these two sections have not been removed.
One user commented that current Sec. 280.6(c) should be revised to
require numbering for supplemental reports amending previously issued
reports. No change has been made to the regulation based upon this
comment because the regulation already provides that supplementary
information must be reported on a ``suitably marked'' document.
[[Page 50548]]
Section 280.7: Recordkeeping Requirements
The Department received comments on a variety of issues raised by
Sec. 280.7 of the regulations. A paragraph is devoted below to each of
these issues.
NIST received four comments, two from manufacturers and two from
trade associations, stating that test reports should only be available
to the original purchaser. An amendment to section 10 of the Act
provides for this.
NIST received ten comments suggesting that Sec. 280.7(a) be revised
to permit electronic record storage, five from manufacturers, three
from trade associations, one from a university professor and one from a
consultant. This final rule provides that records may be kept in the
form (whether paper, photographic, electronic or some other form) in
which they are created or received by the regulated person. In
addition, Sec. 280.7 of this final rule permits reproductions
(including paper, photographic, magnetic, or some other form) to be
kept in lieu of originals for all records except for test reports (for
which the Act requires originals). However, it establishes specific
requirements of retrievability and legibility that must be met if the
person required to keep records elects to destroy originals and keep
reproductions in lieu thereof. It also makes clear that the regulated
person must make the records available to NIST or BXA upon request.
A testing laboratory and a government agency noted that the law has
no provisions for the protection of records should a manufacturer or
test laboratory file bankruptcy, be dissolved, or be destroyed by fire
and/or by an act of God. The commenters recommended that this problem
be addressed, and that it be documented as either a waiver to the law
or a requirement to the law as how to protect records for ten years in
the event of a misfortune to the manufacturer and/or test facility. In
response, NIST notes that the Act contains no provision for waiving the
record retention requirement under any circumstance and that 1996
amendments to the Act reduced the record retention requirement to five
years.
Three commenters, two manufacturers and a trade association,
suggested that the wording in Sec. 280.7(a) requiring that the records
be sufficiently detailed to permit duplication of the ``exact test
conditions'' at a later date be relaxed, perhaps to simply require
sufficient information to ``allow the test results to be verified by a
retest if necessary.'' Section 280.7 of this final rule adopts this
change.
Section 280.8: Ownership of Laboratories by Manufacturers
NIST received three comments concerning Sec. 280.8 of the
regulations, one from a user, one from a trade association, and one
from the category ``other.'' One commenter suggested that NIST ban all
ownership of testing laboratories by manufacturers; another commenter
urged that NIST impose no ban on the ownership of testing laboratories
by manufacturers; and the third stated that it was unclear what
conditions might be imposed on accredited laboratories affiliated with
a manufacturer.
Section 280.8 of the regulations repeats the provisions of section
5(b) of the Act, essentially verbatim. As written, Sec. 280.8 creates a
procedural mechanism under which decisions may be made by the Director
of NIST as to whether the public health and safety would be increased
by a ban on the ownership of testing laboratories by manufacturers for
specific types of fasteners and tests. Specifically, any ban would be
the subject of a notice and comment process before taking effect. NIST
believes that its discretion in proposing a particular ban intended to
protect the public health and safety should not be limited in advance
by regulation. Accordingly, no change has been made to this section of
the regulations.
Section 280.9: Subcontracting of Testing
Several commenters appeared to be confused as to whether tests
carried out by subcontractor laboratories under the provisions of
Sec. 280.9 of the regulations would meet the requirements of the Act.
Some expressed confusion as to what entities qualified as
subcontractors. One manufacturer, for example, suggested that suppliers
and manufacturers be permitted to be subcontractors. Two other
manufacturers expressed similar confusion. One distributor suggested
revising Sec. 280.9(b)(2) to eliminate confusion by adding the word
``accredited'' to references to the subcontractor.
NIST believes the regulation is clear as written and no changes are
made to it based upon these comments. However, in order to avoid any
possibility of further confusion, NIST wishes to stress that any and
all subcontracting of testing under the Fastener Quality Act must be to
a laboratory that is accredited under the Act and these regulations.
Any party that meets the conditions set out in this regulation may
apply for such accreditation, regardless of their affiliation with a
manufacturer, distributor or other entity.
In addition to the comments described above, NIST received six
comments, three from trade associations, two from manufacturers and one
from a distributor, urging that the regulations be revised to delete
the requirement found in Sec. 280.9(b)(2) for notification of the
client before the fact that the tests will be subcontracted by the
accredited laboratory to another laboratory. NIST does not agree with
these comments, and takes the view that notification of the client
before the fact is important to allow them to decide if they wish for
all testing to be done in-house.
Section 280.10: Sampling
NIST received six comments, from four manufacturers and two trade
associations, suggesting that the emphasis of the regulations on final
inspection is misplaced and that the industry practice is statistical
process control. These commenters suggested the use of statistical
process control rather than lot sampling in the regulation. They
further suggested that the regulation be revised to include the use of
ANSI/ASME B18.18.3M, and ANSI/ASME B18.18.4M, in addition to ANSI/ASME
B18.18.2M already referenced in Sec. 280.10, for purposes of sample
selection when the standard being used by the fastener manufacturer
does not include a sampling plan. In addition to the above comments,
submitted in response to the August 1992 comment period on the proposed
regulations, the automobile industry submitted comments in August 1996
on the same issue of statistical process control. As part of their
comments, the automobile industry projected costs of between $140
million and $209 million annually if its suppliers of automotive
fasteners are required by the Act and regulations to conduct final
inspection of finished fasteners. The costs projected by the industry
were apparently predicated on two assumptions: (1) That the Act and
regulations require final inspection of finished fasteners in lieu of
in-process inspection and controls; and (2) that the Act and
regulations require the use of ASME B.18 quality assurance standards
for inspection and testing of fasteners in lieu of QS9000 quality
assurance standards, which are currently in-use within the automobile
industry. NIST has concluded that neither of these assumptions are
valid for the following reasons. First, there is nothing in the Act or
implementing regulations that prohibits the in-process inspection and
[[Page 50549]]
testing of a given lot of fasteners based upon quality assurance
programs such as QS9000, so long as the requirements of sections 5 (a),
(b), and (c) of the Act are met. That is: (1) The tests called out by
the applicable fastener standards and specifications have been carried
out; (2) the tests have been carried out by a laboratory accredited in
accordance with section 6 of the Act; and (3) the data are reported on
a test report in accordance with Sec. 280.6 of the implementing
regulations. NIST recognizes that some product standards from the
Society of Automotive Engineers (SAE) and from the American Society of
Testing and Materials (ASTM) used in the automotive industry require
final inspection of fasteners, and that under statistical control
procedures, fastener manufacturers may control influence factors (e.g.,
temperature, pressure, etc. in heating treating operations) as a means
of assuring that a particular physical property such as hardness is
within the stated values of the standard rather than conduct final
inspection. Under these circumstances, supporting data for a test that
may be required by the SAE or ASTM standard, indicating that the
fastener lot had been tested for hardness and providing the test
results would not be available. Hence, the manufacturer may not be able
to meet the requirements of sections 5 (a), (b), and (c) of the Act
because there would be no specific evidence that a hardness test had
been conducted if it is required by the standard. Under the Act this
problem can be easily resolved by having the automobile industry
request that SAE or ASTM change the affected fastener standards so that
the manufacturer has the choice in satisfying the standard, and thus
the Act and regulations, by either providing data that the influence
factors affecting hardness are in control for that lot of fasteners, or
providing data that a discreet hardness test has been conducted. The
Act, in relying on standards and specifications from consensus
standards organizations and from government agencies as the basis for
technical requirements to be met by manufacturers, provides significant
flexibility to these standards developers to determine the inspection
and testing requirements for certification of fasteners under the Act
and regulations. Second, as to the automobile industry's assumption
that the Act requires the use of ASME B18 quality assurance standards,
the Act does not mandate the use of any standard or specification.
Under authority provided by section 5(b)(2)(B) of the Act, and at the
request of the Fastener Advisory Committee, NIST has included
references to ANSI/ASME B18.18.2M, B18.18.3M and B18.18.4M, for sample
selection in the event the standard or specification used by the
manufacturer does not provide for the size, selection, or integrity of
the sample to be selected. NIST does not have the authority to mandate
the use of the ANSI/ASME B18.18.2M, 3M, or 4M standards for all
inspection and testing carried out under section 5 of the Act.
Old Section 280.11: Surplus Fasteners
This section was deleted.
New Section 280.11: Significant Alteration of Fasteners
With respect to questions concerning marking and testing of
significantly altered fasteners, the significant alteror will be
responsible for applying a registered insignia to the altered fastener
if so required by the original standards and specifications, and for
assigning a new lot number. A new Sec. 280.11 has been added to the
regulations to spell out these requirements. The significant alteror
will also be responsible for causing the altered fasteners to be
inspected and tested as required under section 5 of the Act, unless the
fastener is delivered to a purchaser accompanied by a written statement
noting the original lot number and the new lot number assigned by the
alteror, disclosing the subsequent alteration, and warning that such
alteration may affect the dimensional or physical characteristics of
the fastener.
If the alteration is not a significant alteration, a new headmark
and new lot number are not required and the only testing requirements
which apply are those required by the specification to which the minor
alteration was performed, such as prevailing torque or salt spray. If
the significant alteration is only electroplating of fasteners above a
certain hardness level or strength level, the requirement for a new
headmark is waived, but a new lot number must be assigned and testing
for hydrogen embrittlement must be performed in addition to those tests
required by the plating specification. If the alteration involves
cutting of threaded studs, rods, or bars into studs, these cut
fasteners must be marked with the grade or property class
identification marking appearing on the original threaded studs, rods,
and bars.
New Section 280.12: Applicability
Seven commenters expressed concern during the 1992 comment process
that the requirement for the use of accredited laboratories not take
effect until a sufficient number of foreign accreditation bodies and
laboratories have been recognized and accredited. The commenters also
expressed concern as to how NIST would know when the number of
accredited laboratories is sufficient. These comments were received
from two trade associations, two importers, one distributor, one
representative of a foreign government, and one individual.
Except as provided in this section, the regulation will become
effective on November 25, 1996. However, NIST notes that section 15 of
the Act makes the regulation applicable only to fasteners manufactured
180 days after the regulation becomes effective, i.e., May 27, 1997 and
also provides that the Director of NIST may delay the applicability of
the regulations to fasteners manufactured beyond that date if at that
time an insufficient number of laboratories have been accredited to
perform the volume of inspection and testing required. A new
Sec. 280.12 of the regulations has been added in order to clarify this
point.
NIST intends to closely monitor the accreditation of laboratories
under these regulations, and will defer the applicability of the
regulations should circumstances warrant.
Status of Inventory
One commenter during the 1992 comment process asked whether
existing inventories of fasteners will be covered when the regulations
take effect.
NIST notes that section 15 of the Act requires only that the
regulations be applicable to fasteners manufactured 180 days or more
after the regulations become effective (herein after referred to as
implementation date). This issue of applicability of fasteners has been
discussed several times since the 1992 comment process. In its January
10, 1995, report and recommendations for amending the Act, the Public
Law Task Force recommended that fasteners manufactured before the
implementation date not be allowed to be certified as conforming
fasteners under the Act. This recommendation was endorsed by the
Fastener Advisory Committee in letters to Congress dated February 9,
1995. During the joint meeting of the Fastener Advisory Committee and
the Public Law Task Force, held May 15-16, 1996, at the National
Institute of Standards and Technology (NIST), this issue was raised
again. In addition, the Advisory Committee and the Task Force
recommended that language be added to the regulations which would
permit the use of metal manufactured before the implementation date to
be used to manufacture fasteners after that date.
[[Page 50550]]
In order to clarify these points, a new Sec. 280.12 has been added
to the regulations, stating that the requirements of the Fastener
Quality Act and these regulations shall be applicable only to fasteners
fabricated 180 days or more after the effective date of the
regulations. This Act and these regulations do not restrict the sale of
fasteners manufactured prior to the implementation date. Fasteners
manufactured prior to the implementation date may be sold in U.S.
commerce for an indefinite period of time, provided such fasteners are
not offered for sale or sold as being in conformance with the Act and
these regulations. The section also specifies that metal manufactured
prior to the implementation date may not be used to manufacture
fasteners covered by the Act and these regulations after such date,
unless the metal has been tested for chemistry pursuant to Sec. 280.15
of these regulations by a laboratory accredited under the Act and these
regulations.
The Director of NIST may delay the applicability of the regulations
beyond the 180-day time period upon making a determination that an
insufficient number of laboratories have been accredited to perform the
volume of inspection and testing required.
New Section 280.13: Imports of Fasteners and New Section 280.14: Option
for Importers and Private Label Distributors
One commenter questioned whether the draft regulation was
consistent with the Act's treatment of importers. After reviewing the
regulations, NIST has decided to add a new Sec. 280.13 of the
regulations dealing with imports of fasteners, and also a new
Sec. 280.14 dealing with options for importers and private label
distributors. New Sec. 280.13 sets out the rule contained in section
7(b) of the Act that it shall be unlawful for any person to sell to an
importer, and for any importer to purchase any shipment of fasteners or
fastener sets manufactured outside the United States unless such
shipment to an importer is accompanied by a manufacturer's certificate,
an original laboratory testing report with respect to each lot from
which the fasteners are taken, and any other relevant lot
identification information. It then sets out the statutory exceptions
to the general rule, which require that delivery of fasteners to any
importer must be accompanied by an original laboratory testing report
shall not apply:
(1) In the case of fasteners imported into the United States as
products manufactured within a nation which is party to a
congressionally approved free trade agreement with the United States
that is in effect, provided that the Director has published in the
Federal Register a certification that satisfactory arrangements have
been reached by which purchasers within the United States can
readily gain access to an original laboratory test report for such
fasteners. Or,
(2) In the case of fasteners imported into the United States as
Canadian-origin products under the United States-Canada Automobile
Pact for use as original equipment in the manufacture of motor
vehicles.
At the present time, no Federal Register notice is planned by NIST
under exemption (1); accordingly, this exemption is not now available.
New Sec. 280.14 sets out the statutory provisions of section 7(c)
of the Act. Entitled ``Option for Importers and Private Label
Distributors,'' Sec. 280.14 states that notwithstanding the provisions
of Sec. 280.13, delivery of a lot, or portion of a lot, of fasteners
may be made by a manufacturer to an importer or private label
distributor without the required original copy of the laboratory
testing report if the manufacturer provides to the importer or private
label distributor a manufacturer's certificate certifying that the
fasteners have been manufactured according to the requirements of the
applicable standards and specifications; and the importer or private
label distributor assumes responsibility in writing for the inspection
and testing of such lot or portion by an accredited laboratory. The
section also provides that the provisions of section 5(a) and sections
7(a) and 7(b) of the Act shall apply to the importer or private label
distributor in the same manner and extent as to a manufacturer.
New Section 280.15: Alternative Procedure for Chemical Characteristics
Pub. L. 104-113 enacted a new subsection 5(d) of the Fastener
Quality Act entitled ``Alternative Procedure for Chemical
Characteristics.'' The new procedure is implemented in Sec. 280.15 of
the regulations being published today.
New Section 280.16: Subsequent Purchaser
This section reflects changes made to section 7(f) of the Act by
Pub. L. 104-113.
Subpart B--Laboratory Accreditation
NIST received no specific comments on subpart B of the regulations.
Subpart C--NIST Fastener Laboratory Accreditation Procedures
To meet the requests of many commenters that the criteria for
accreditation follow ISO/IEC Guide 25 ``General Requirements for the
Competence of Calibration and Testing Laboratories,'' section 280.201
establishes that the criteria for accrediting laboratories under the
Act will be part 285, title 15, Code of Federal Regulations, which are
NVLAP procedures that conform with the requirements of ISO/IEC Guide
25. Furthermore, since ISO/IEC Guide 25 is the document used
internationally by accreditation bodies to assess the competence of
laboratories, the revised procedures should facilitate interpretation
of the NVLAP criteria at the international level.
Section 280.200--Introduction
One commenter, an agency of the United States Government, requested
that a requirement be added stating ``Standards with similar scopes,
but with different requirements shall not have the same: (a) Title, (b)
standard designation number, (c) product labeling system, or (d)
conformance requirements labeling system.'' The standards organizations
are responsible for controlling these concerns. The regulation has not
been changed. However, the Director of NIST will work with the
standards organizations to resolve any problems of this nature.
A representative for foreign manufacturers requested that
laboratories should be allowed to perform the same kind of test to
comply with standards from different countries. Since the Act provides
that the manufacturer of fasteners certify that the fasteners meet the
requirements of the standards and specifications, the regulation was
not changed.
A laboratory requested the addition of a ``Code of Ethics.'' Many
specific requirements and conditions are mandated for accredited
laboratories and no change was made to this section.
A laboratory accreditation body asked for a clarification as to
whether a laboratory's quality assurance program must assure a required
degree of accuracy and precision beyond that required by standard test
methods used. NVLAP procedures cited in Sec. 280.201 address
measurement traceability and calibration requirements.
A trade association requested a retest be required for foreign
sources at the receiving end. Since this is contrary to the Act's
treatment of foreign products this section was not changed. The trade
association also requested that the regulation ``should include
requirements and methods for notifying customers/users of lots with
latent defects discovered after delivery.'' Existing mechanisms for
notification of users of fasteners with latent defects are
[[Page 50551]]
not preempted by the requirements in this regulation. However,
procedures cited in Sec. 280.201 do require laboratories to notify
clients promptly, in writing, of any event, such as the identification
of defective measuring or test equipment, that casts doubt on the
validity of results.
New Section 280.203--Adding to or modifying the Program
A new Sec. 280.203 was added to reflect the Act's intent that the
program reflect the changing requirements placed upon laboratories by
the industry. This section allows the program to be added to, modified,
or realigned based on either a written request or a need identified by
NIST. Subsequent sections in this subpart have been renumbered
accordingly.
Old Section 280.203 New Section 280.204--NVLAP Program Handbook
A domestic manufacturer, a distributor and a consultant requested
that the handbook follow ISO/IEC Guide 25-1990. This did not require a
change to the regulation, however, the draft handbook is compatible
with the ISO/IEC Guide 25 and contains a general operations checklist
which follows the ISO/IEC Guide 25 technical requirements. The NVLAP
Handbook will supplement this Subpart.
A consultant, an accreditation body, a foreign manufacturer and two
foreign aerospace associations requested distribution of the NVLAP
handbook. This did not require a change to the regulation. However, in
preparation for the February 1993 workshop, over 600 copies of the
draft NVLAP handbook were distributed for public comment.
A foreign manufacturer commented that there were too many test
methods with not enough details, and no instructions for testing core
hardness of \1/4\'' diameter bolts. Since the standards and
specifications determine how fasteners are to be tested, no change in
the regulation was made to address this comment. The commenter should
contact relevant standards organizations with specific concerns.
Old Section 280.204 New Section 280.205--Applying for Accreditation
Additional requirements were added to this section for foreign
laboratories. These requirements were necessary to enable NVLAP to
assess properly foreign laboratories and establish fees to maintain
self-sufficiency. The following language was added. Foreign
laboratories may require:
(1) Translation of laboratory documentation into English; and
(2) Payment of additional traveling expenses for on-site
assessments and proficiency testing.
Old Section 208.206 New Section 280.207--Granting and Renewing
Accreditation
On-site Assessment Interval
A fastener manufacturer and a college professor commented that the
on-site assessment interval was not specified. No change to the
regulation was made. This information is provided in the NVLAP
handbook.
Accreditation by Discipline Rather than by Test Method
Two laboratories suggested that accreditation be offered by
discipline rather than by test method. No change in the regulation was
made. The handbook explains the approach which NVLAP will use to group
together like test methods and accredit laboratories for the entire
group.
Accreditation Period
Six technical societies/trade associations, 7 fastener
manufacturers and 2 consultants requested that accreditation be changed
from 1 year to 3 years. Comments received from an agency of the United
States Government and 3 manufacturers requested a 2-year accreditation.
One automotive manufacturer requested the period be extended beyond one
year. The reference to a one-year accreditation period has been deleted
from this section. However, the NVLAP handbook will provide for a
three-year accreditation period. If experience proves positive, the 3-
year accreditation period will be maintained, otherwise, it will be
reduced to a shorter period. The on-site assessment will be conducted
on a 2-year cycle with additional monitoring visits at random or to
address specific problems called to NVLAP's attention.
Old Section 280.207 New Section 280.214--Conditions for Accreditation
A fastener manufacturer, an automobile manufacturer, and a
consultant requested the accreditation period be extended beyond one
year. The accreditation period will be the same as for all other NVLAP
accreditation programs.
A fastener manufacturer requested removal of the requirement that a
laboratory demonstrate, upon request by NVLAP, that it is able to
perform tests representative of those for which it is seeking
accreditation. This requirement has been maintained.
A laboratory requested a limitation to the cost of accreditation.
No change in the regulation was made. The Act specifies that sufficient
fees be collected to cover the cost of the accreditation process.
A fastener company requested that a laboratory must ``be capable of
performing all tests for which it is accredited according to the latest
version of the test method'' and delete an allowance of up to one year
after publication, or another time limit specified by NVLAP. No change
was made to the regulation.
A laboratory requested that accredited laboratories be permitted to
add tests without additional inspections and audits. No change in the
regulation was made. The handbook describes the process for changing a
laboratory's scope of accreditation. Specific circumstances will
dictate the need for an additional on-site visit.
A fastener manufacturer requested removal of the requirement to
keep ``records of all actions taken in response to testing
complaints,'' because Sec. 280.6 requires 5-year retention of all
records. No change was made to this requirement.
Old Section 280.208 New Section 280.215--Criteria for Accreditation
Eight commenters (an agency of the United States Government, an
automobile manufacturer, a distributor, a consultant, 2 fastener
manufacturers, a laboratory accreditation body and a law firm
representing foreign manufacturers) requested that the criteria for
accreditation follow ISO/IEC Guide 25 ``General Requirements for the
Competence of Calibration and Testing Laboratories.'' NVLAP procedures
cited in Sec. 280.201 are in full accordance with ISO/IEC Guide 25.
A law firm representing foreign companies suggested this section
conform to ISO/IEC Guides 54 and 55. These ISO/IEC documents pertain to
accreditation bodies, not laboratories. Since this section provides
criteria for laboratories and not accreditation bodies, no changes were
made to the regulation.
Several comments dealt with the requirements for a laboratory
quality manual. A fastener manufacturer suggested that old
Sec. 280.208(a)(1)(now Sec. 280.215(c)(1)) be changed to ``the Quality
Manual in conjunction with other approved procedures must include as
appropriate.'' This suggestion is taken care of in the existing NVLAP
procedures.
A laboratory accreditation body requested deletion in old
Sec. 280.208(a) (now Sec. 280.215(c)) of the requirements that the
quality manual contain provisions for meeting NVLAP
[[Page 50552]]
conditions for accreditation, provisions of the Fastener Quality Act,
and quality assurance practices for test methods. This suggestion is
taken care of in the existing NVLAP procedures.
A laboratory accreditation organization requested that old
Sec. 280.208(d)'s requirement (now Sec. 280.215(h)) for a calibration
manual be replaced with section 9 of ISO/IEC Guide 25 and 280.208(e)'s
requirement for a test plan be replaced with section 10 of ISO/IEC
Guide 25. This suggestion is taken care of in the existing NVLAP
procedures.
A trade association requested that old Sec. 280.208(b)(6)(i)'s
statement (now Sec. 280.215(b)(2)(ii)) that staff members are not to be
subjected to undue pressure be deleted. The existing NVLAP procedures
which follow ISO/IEC Guide 25 contain this requirement. ISO/IEC Guide
25 also provides that the laboratory shall have policies to ensure that
its personnel are free from any commercial, financial and other
pressures which might adversely affect the quality and integrity of
their work.
A commenter from an agency of the United States Government
requested that old Sec. 280.208(c) (now Sec. 280.215(f)) on facilities
and equipment be modified to add a statement that: ``Equipment shall be
of contemporary design and capability. The equipment shall be modern
enough to require the minimum amount of operator interpretation or
skill in determining the difference between a pass and fail condition
of the product being tested.'' Existing NVLAP procedures require that
the laboratory shall be furnished with all items of equipment
(including reference materials) required for the correct performance of
tests.
A college professor requested that old Sec. 280.208(c) (3)(vi)'s
requirements (now Sec. 280.215(f)(4)) for equipment records report
variation between working and traceable instruments, and also report
differences due to adjustments of working instrument. Existing NVLAP
procedures require that equipment records be maintained to include
dates and results of calibrations and/or verifications.
A fastener manufacturer requested that old Sec. 280.208(d)(2) (now
Sec. 280.215(h)) be changed to ``have a Calibration Manual, or
equivalent.'' Existing NVLAP procedures require that the quality manual
and related documentation shall contain reference to procedures for
calibration, verification and maintenance of equipment.
A fastener manufacturer requested deletion of provision in old
Sec. 280.208(e) (1) and (2) (now Sec. 280.215(h)) to allow departure
from test methods and procedures when necessary for technical reasons.
This change has not been accepted.
A consultant requested removal of the requirement to retain all
original observations, calculations and derived data. Stating that it
``is an unnecessary burden and serves no useful purpose. The final test
report should stand on its own. If a laboratory has demonstrated
proficiency in its various test procedures, there is no need for the
above requirement.'' Existing NVLAP procedures follow the ISO/IEC Guide
25 requirements on records which requires retention of original data.
A trade association requested old Sec. 280.208(f)(2)'s reference
(now Sec. 280.215(j)) to a ten-year record retention requirement for
all records pertaining to tests, inspections and certifications be
deleted, since it is already specified. This is covered in existing
NVLAP procedures.
A consultant requested that old Sec. 280.208(g)(3) (now
Sec. 280.215(j)) pertaining to retention of supplemental information
collected by a laboratory be deleted. This language has been removed
from the regulation.
Old Section 280.209 New Section 280.208--Denying, Suspending and
Revoking Accreditation
A trade association requested that a specific provision be added to
permit users to notify NVLAP of complaints, failures, etc. Users can
report problems with a laboratory directly to NVLAP.
NVLAP will follow-up with the laboratory to resolve such
complaints.
Section 280.212--Approved Signatory
Two fastener manufacturers and a trade association requested that
authorized reproductions of the original signature of an Approved
Signatory be permitted. The NVLAP handbook will provide guidance in use
of an ``authorized'' signature of an Approved Signatory.
Subpart D--NIST Approval of Private Accreditation Programs
NIST received nine comments stating that the proposed approval
period for accreditation bodies of one year was too short, with
suggested periods ranging from between two to six years or indefinite.
The commenters included four manufacturers, one distributor, one
testing laboratory, and two trade associations, and one individual.
NIST agrees with this recommendation and the Program Handbook on
Private Accreditation Programs now reflects this change. Accordingly,
approvals will now be indefinite and old Sec. 280.305 has been deleted
since renewals are no longer required. Subsequent sections in this
subpart have been renumbered accordingly.
NIST received a comment from a laboratory accreditation body that
the requirement contained in Sec. 280.301(c)(17) was not in accordance
with language contained in ISO/IEC Guide 58 with respect to assuring
that accreditation bodies have formal rules and structures that will
assure that senior executives, staff, and committees are free from any
financial and other pressures which might influence the results of the
accreditation process. NIST has changed the language to be in
accordance with applicable provisions of ISO/IEC Guide 58. The new
language is contained in Secs. 280.501(b)(1)(I) and (J).
In addition, one government agency suggested that other Federal
government agencies should be authorized to accredit laboratories for
the purposes of the act. NIST notes that the Act does not provide for
that authorization.
Subpart E--Recognition of Accreditation Programs
NIST received thirteen comments on the procedures for the
recognition of foreign accreditation bodies for testing under the
Fastener Quality Act. The commenters consisted of five manufacturers,
one user, three trade associations, two testing laboratories, one
importer and one government agency. The common thread throughout the
comments was the concern that foreign entities recognized by NIST
should be held to the same standards demanded of U.S. laboratories and
accreditors, and should not be subsidized by fees paid by domestic
organizations. The suggestion was also made that international
recognition agreements should be published in the Federal Register for
public comment.
In response to these comments, revisions have been made to subpart
E to make clear that the principle of national treatment will apply;
that is, all parties, regardless of country of origin will satisfy the
same requirements and pay equivalent fees. NIST has, however,
determined that publication of proposed international recognition
agreements for comment is neither required by law nor appropriate.
Subpart F--Requirements for Fastener Laboratory Accreditation Bodies
NIST received seven comments, one from a manufacturer, two from
testing laboratories, one from a government agency, one from a foreign
government, one from a trade association and one from an individual,
stating that the
[[Page 50553]]
procedures and criteria contained in this subpart should be based on
the most currently available international guides. In part, the
regulations are based on ISO/IEC guides 54 and 55 which have been
superseded by ISO/IEC Guide 58. In response to these comments, subpart
F has been rewritten and is now based upon ISO/IEC Guide 25 and 58.
Subpart G--Enforcement
This final rule consolidates the provisions of the proposed rule,
subparts G, H and I, into a subpart G. As in the proposed rule, this
final rule defines the conduct that constitutes violations of the Act
and the regulations. However, instead of enumerating an exclusive list
of acts prohibited by the Act and the regulations (as in subpart G of
the proposed rule), this final rule provides that any conduct
prohibited by the Act and regulations would be a violation of the Act
and the regulations. Subpart G of this final rule also sets forth
certain specific and general actions by persons subject to the Act and
the regulations that can give rise to a charge that a violation has
been committed.
As in the proposed rule, this final rule provides an administrative
process by which a person charged with violating the Act and the
regulations is given notice and opportunity for a hearing before a
civil penalty may be imposed. This final rule provides that the Office
of Export Enforcement will initiate administrative enforcement
proceedings and the Office of Chief Counsel for Export Administration
will represent the Department in such proceedings before an
administrative law judge.
In response to the publication of the proposed rule, one commenter
pointed out possible inconsistencies between the Act and the list of
prohibited acts set out in Sec. 280.602 of the proposed rule.
This commenter stated that language in Sec. 280.602(a), (b), (c),
(g), (i) & (m) of the proposed rule would prohibit conduct beyond that
intended by the Act. Language in those paragraphs would have prohibited
the ``introduction (into commerce), delivery for introduction (into
commerce), transportation or causing to be transported in commerce for
the purpose of sale or delivery'' of fasteners that did not meet the
requirements of Sections 5 or 7 of the Act. The commenter pointed out
that, by such language, the regulations could apply to fasteners that a
manufacturer of an end product produced in-house and shipped to a
contractor for fabrication into a subassembly which the contractor then
returned to the manufacturer for incorporation into a finished end
product.
We agree that the Act was not intended to cover such transactions.
Subpart A of the final rule is consistent with sections 5 and 7 of the
Act by making it a violation to do anything prohibited by the Act and
this final rule. (See Sec. 280.602 of the final rule.) However, this
does not mean, that, in all instances, the ``delivery * * *
transportation or causing to be transported in commerce for the purpose
of sale or delivery'' would be permissible. If any of these actions
caused, aided, abetted a violation of the Act or regulations, or
constituted solicitation, attempt or conspiracy to violate the Act or
regulations, such conduct would be prohibited. (See Sec. 280.602(b),
(c) and (d) of the final rule.)
The same commenter pointed out that the language of Sec. 280.602(i)
of the proposed rule omitted a condition required by section 7(b) of
the Act. Section 280.602(i) of the proposed rule excepted imports from
countries with which the United States has a free trade agreement from
the requirement that imports be accompanied by a laboratory test
report. However, Sec. 280.602(i) of the proposed rule failed to include
the following condition contained in section 7(b) of the Act, namely:
(That) the Secretary certif[y] that satisfactory arrangements
have been reached by which purchasers within the United States can
readily gain access to an original laboratory test report * * *.
Section 280.13 of the final rule has corrected this omission by
including the following requirement in paragraph (b)(1):
(That) the Director has published in the Federal Register a
certification that satisfactory arrangements have been reached by
which purchasers within the United States can readily gain access to
an original laboratory test report for such fasteners.
Moreover, Sec. 280.602 of the final rule prohibits conduct that
refrains from doing anything required by the Act and regulations.
Therefore, a failure to provide the proper certificate of conformance
to accompany imports, as required by section 7(b) of the Act and
Sec. 280.13 and 280.602 of the regulations, would be a violation of the
Act and regulations.
The same commenter noted that the proposed rule provided specific
time-periods within which responses to discovery requests must be made.
That commenter recommended adopting the time-periods established in the
Federal Rules of Civil Procedure, rather than the shorter time-periods
set forth in the proposed rule.
This final rule generally does not establish time periods for
responses to discovery requests; rather, this final rule encourages the
parties to engage in voluntary discovery and provides discretion to the
administrative law judge in setting a time-period for responses to
discovery, if formal discovery is requested. This final rule does
require that the service of discovery requests be made at least 20 days
prior to the scheduled date of the hearing, unless the administrative
law judge specifies a shorter time period. This final rule also
provides a minimum of 10 days for responses to requests for admissions
of fact or law, although the administrative law judge may provide
additional time for such responses. The Department believes that the
flexibility for dealing with discovery provided by the final rule is
preferable to the rigid response dates set forth in the Federal Rules
of Civil Procedure.
Old Subpart H--Civil Penalties
This subpart has been revised and consolidated into the new subpart
G. NIST received no specific comments on subpart H of the regulations.
Old Subpart I--Hearing and Appeals Procedures
This subpart has been revised and consolidated into the new subpart
G. NIST received no specific comments on subpart I of the regulations.
Old Subpart J--Recordal of Insignia
Subpart J has been redesignated as subpart H.
New Subpart H--Recordal of Insignia
Two manufacturers suggested that any type of permanent marking,
rather than just a raised or depressed insignia, as required by
Sec. 280.900, be permitted for applying the recorded insignia on the
fastener. Section 8 of the Act applies only to fasteners which by their
standards and specifications must bear the manufacturer's or private
label distributor's mark as a raised or depressed insignia. In those
cases, the Act itself requires use of a raised or depressed insignia.
Six comments were received on Sec. 280.700(b) of the proposed
regulation. Two of these comments were from large end users of
fasteners, one was from a manufacturer's association, one was from a
government agency, and two were from manufacturers. These comments
suggested that there is a conflict between Secs. 280.700(a) and
280.700(b). Subsection 280.700(a) states that ``any fastener which is
required by
[[Page 50554]]
the standards and specifications which it is manufactured to bear a
raised or depressed insignia'' must bear a raised or depressed insignia
identifying its manufacturer. Subsection 280.700(b) states that ``The
manufacturer's, or private label distributor's, insignia must be
applied to * * * any fastener which is sold or offered for sale.'' Thus
the language in Sec. 280.700(b) encompasses a broader class of
fasteners. In response to this comment, the language in
Sec. 280.700(a), which tracks the statutory language, was added to
Sec. 280.700(b).
One professional organization suggested that Sec. 280.700(c) be
amended to state that all insignia required by the Act be readable
without magnification. In response, inasmuch as the Act covers
fasteners which are \1/4\ inch in diameter, the PTO felt it was
necessary to permit markings small enough to require magnification.
One fastener organization, one manufacturer and one distributor
suggested that the time periods for filing the maintenance document for
the certificate of recordal set out in Sec. 280.720(a) be harmonized
with the period for filing the renewal of the registration. In the view
of the Patent and Trademark Office (PTO), a regulation which ensures
that the renewal of the certificate of recordal and the trademark
registration occur at the same time would be unduly complex. PTO would
need to set out three renewal periods for fastener recordals, one for
renewals of recordals based on trademark applications, one for renewals
based on trademark registrations, and one for alphanumeric
designations. In addition, the PTO would need to update its recordals
to show the registration date of applications which mature into
registrations. Accordingly, no change has been made to the regulation
based upon these comments.
The members of the Fastener Advisory Committee suggested that
Sec. 280.723(d) be amended to permit the assignment of alphanumeric
designations. In response, the section was rewritten to permit the
assignment of alphanumeric designations upon notification to the
Commissioner and re-application for the alphanumeric designation. The
inability to assign alphanumeric designation would have created serious
problems with unusable inventory if an ongoing business was purchased.
The requirement that the Commissioner be notified of the assignment of
the alphanumeric designation, and that a new application be filed in
the name of the entity which purchases rights in the alphanumeric
designation, will ensure that the traceability requirement of section 8
of the Act is met.
Two manufacturers and one professional organization suggested that
the PTO recognize the fastener markings in MIL Handbook 57, NATO or
CAGE codes, or the fastener markings listed with ASME, DISC or IFI. In
response, PTO notes that the suggested listings contain identical marks
used by different manufacturers. Therefore these listings do not meet
the traceability requirements of section 8(b) of the Act.
One government agency suggested that recordal of fastener insignia
be permitted only to manufacturers not to private label distributors.
Since the Act requires recordal of insignia both for manufacturers and
private label distributors, no change to the regulation was made based
upon this comment.
One manufacturer suggested that the regulations be amended to
permit sale of nonconforming fasteners, manufactured before the Act
becomes effective, for a period of 5-10 years, to reduce the burden of
imprinting a raised or depressed insignia on the fastener. Section 15
of the Act makes the provisions of the Act applicable only to fasteners
manufactured 180 days after final regulations are issued.
One government agency suggested that the PTO add language to its
regulations to clarify that a manufacturer may have an unlimited number
of insignia recorded with the PTO. Another government department
suggested that the regulations be amended to limit the number of
insignia any private label distributor be allowed to have. The
regulations, as presently written, do not limit the number of recorded
insignia or alphanumeric designations a manufacturer or private label
distributor may have. The PTO felt that each business should make its
own determination as to how many recorded insignias it needed. The PTO
did not feel it had sufficient expertise to determine a limit on the
number of recorded insignias each business should be permitted.
One writer suggested that, when a transfer or assignment includes
the liabilities from previously manufactured products, the regulations
permit the assignee to use the unaltered insignia of the assignor. In
response, PTO notes that the regulations as presently written would
permit the assignee to use the mark of the previous manufacturer or
private label distributor, although the assignee would need a new
certificate of recordal.
Comments on the Regulatory Impact Analysis
NIST received comments on a wide array of issues concerning the
draft Regulatory Impact Analysis (RIA) prepared in 1992, including
comments on the percentage of fasteners that might be covered by the
law, observations on the costs of laboratory testing, recordkeeping
costs, nonconforming product costs, distributor costs, and so on. Each
of these topics is treated in a separate section below. Additionally,
NIST has prepared a final Regulatory Impact Analysis/Regulatory
Flexibility Analysis that takes into account the 1996 amendments to the
Act. Comments received as a result of the 1992 public comment process
on the draft implementing regulations and as a result of subsequent
Fastener Advisory Committee meetings have been taken into account in
the preparation of the final Regulatory Impact Analysis.
Percentage of Fasteners Covered by the Law
All comments received on the percentage of fasteners covered by the
law indicated that coverage would exceed the congressional estimate of
1 percent. One United States Senator, six distributors, three
manufacturers, and two trade associations provided estimates ranging
from 15 to 60 percent coverage with aerospace fastener industry
estimates at the upper end of the range. Results from the Fastener
Industry Coalition (FIC) Survey of distributors estimated the range of
coverage from 5 percent to 100 percent, with an average of 54 percent.
Laboratory Accreditation/Testing Costs
Several commenters suggested that some costs of testing have been
omitted from the analysis. Four manufacturers noted that the economic
impact analysis did not include the purchase cost or continued
calibration cost of spectrographs ($100,000 to $200,000 per unit) or
other equipment needed by many manufacturers who operate their own
laboratories. Two manufacturers indicated that the cost of not allowing
mill heat certifications had to be increased to include increased
inventory costs and delivery/pickup costs to the nearest accredited
lab. One distributor and one manufacturer noted that the cost of
providing original copies of certifications (estimated at $15 to $35
per certificate) should be included in the analysis. One distributor
noted that foreign manufacturers may find it impossible to provide full
certification for small lots of unusual items rushed into the U.S. by
air, forcing companies
[[Page 50555]]
to set up testing laboratories in the United States to certify items.
While two manufacturers agreed with the $35 per lot estimated
spectrochemical testing cost, three manufacturers, one distributor, and
one academician noted that the cost impact for spectrochemical analysis
reflected the cost of only one element. Industry practice is to provide
5 to 13 elements in a chemical analysis to more accurately reflect the
material composition. Cost may therefore be 5 to 13 times higher than
estimated. One distributor, while agreeing with the $35 estimate, noted
that with very large lots, several tests may be required. One
manufacturer estimated that testing costs (excluding spectrochemical
testing) would be ten times the NIST estimate. Section 5 of the Act has
been amended to permit fastener manufacturers to use mill heat
certifications of chemistry supplied by metal producers instead of
testing samples of finished fasteners for chemistry. Before the
amendment to section 5, NIST estimated that it would cost the fastener
industry $100.6 million annually in additional costs to conduct
chemical tests of finished fasteners assuming 25% fastener coverage
under the Act. The Fastener Advisory Committee, through its Cost
Effectiveness Task Group, estimated a maximum range of between $28
million to $1.9 billion in additional annual costs, with a more
probable range of between $100 million to $286 million. With the
amendment to section 5 of the Act, NIST projects that the increased
tests costs to industry under the Act will remain at the $6 million
level as indicated in the Summary of Adjusted Industry Costs provided
below.
One manufacturer estimated that the number of laboratories at the
lower bound of the RIA estimate was too low. An estimate of 298-300
manufacturers laboratories plus an additional 152-200 independent
laboratories for offshore production and to cover manufacturers without
laboratories would result in the need for a minimum of 450-500
accredited laboratories. One manufacturer noted that most modern
processing techniques, such as Just-in-Time, KanBan, etc., heavily
influence the lot size downward, and the number of lots may be
understated.
Production Delay Costs
Four distributors/manufacturers and one auto maker indicated that
because each lot must be tested and some tests are lengthy, ``just-in-
time'' production practices will have to be altered and very costly
lot-by-lot product storage will be required which would increase the
basic production cycle. Under a just-in-time inventory management
policy, assembly operations may have to shutdown pending completion of
testing. NIST has discussed this issue with the fastener industry. It
relates to certain types of testing such as salt spray tests where the
amount of time to conduct the test involves days or weeks. These types
of tests are generally not required by the standards and specifications
to be carried out on every lot of fasteners. Moreover, NIST feels that
prudent inventory control and efficient scheduling of tests by
manufacturers and distributors will alleviate shutdowns in assembly
operations.
Recordkeeping Costs
One manufacturer indicated that the recordkeeping requirements of
the proposed regulations may go beyond what laboratories presently
keep. If records of each inspection, calculations made in the
laboratory, etc., must be maintained in addition to the test
certificate there will be a major increase in costs. The Fastener
Advisory Committee has indicated to NIST that laboratories currently
involved in testing fasteners keep records that are very close to those
required by the regulations.
One manufacturer, one distributor, and one foreign trade
association noted that the time required for signing a test report
should include time for report review. Estimated time ranged from 2-20
minutes. Additional review time will be required if test reports are
reviewed more thoroughly after the regulation is implemented.
Training/Education Costs
Two distributors noted that increased training and supervision of
personnel will be required to insure compliance and that training/
information on the requirements of the Act would also have to be
provided to foreign suppliers. NIST has been working with the fastener
industry to organize a series of public workshops both in the U.S. and
abroad to provide training on the Act and regulations, once the
regulations are issued. Eight such workshops have been planned, and
most will coincide with already planned meetings and conferences within
the fastener industry so as to minimize costs. NIST does not feel that
the cost of training and education needed to assure compliance with the
Act and regulations will be significant.
Imported Assemblies Containing Fasteners
Two manufacturers and one manufacturer/distributor noted the Act
allows foreign competitors to produce fasteners without additional
costs imposed by the Act and put them into automotive and other
products which are then imported by U.S. based firms as final products
or subassemblies. This will put U.S. firms producing similar items at a
competitive disadvantage. NIST accepts the comments that imported
assemblies or final products containing fasteners might have a slight
competitive advantage over U.S. assemblies or final products containing
fasteners manufactured in compliance with the Act and regulations.
However, NIST feels that there are many other influence factors such as
cost of materials, labor, and currency fluctuations that could mitigate
any competitive advantage and that it is not realistic to claim that
the cost of fasteners alone will result in a competitive disadvantage
to U.S. firms.
Nonconforming Product Costs
Eleven manufacturers, four distributors, and one importer commented
on the major economic impact of not allowing minor nonconformances that
do not affect the form, fit or function of a fastener. While no cost
estimates were provided, comments indicated that total manufacturing
cost will be significantly affected and may result in shutdown of a
substantial number of firms. ``Just-in-time'' production practices and
worldwide parts sourcing will also be affected and could cause
temporary plant shutdowns.
The Fastener Advisory Committee at its meeting of December 2, 1992
requested its Subcommittee on Cost Effectiveness to prepare a ``white
paper'' projecting the probable economic consequence of implementing
final regulations without amending the Act per the Committee's
recommendations. The report focused on three issues: (1) Permitting the
sale of fasteners tested and found to contain minor nonconformances
from standards which do not affect form, fit, or function; (2)
permitting the acceptance of mill heat certificates from raw material
suppliers rather than post manufacturing testing of finished fasteners;
and (3) permitting the commingling of like fasteners by distributors. A
report was produced by the Subcommittee and adopted by the full
Committee at its meeting March 3-4, 1993. On the issue of nonconforming
product costs, the Report estimates that fastener lot rejection costs
will range
[[Page 50556]]
from $89 million to $285 million annually unless nonconformances now
recognized in existing standards prevail. The Report further noted that
such rejection costs will double when parts are plated because of the
wide swings in coating thickness present in the existing process.
Section 3 of the Act was amended to permit the sale of fasteners
with minor non-conformances following guidelines established in
applicable standards and specifications. The amendment resolves the
non-conforming fasteners issue and will eliminate the $285 million
worst case projected costs to industry, as estimated above.
Distributor Costs
One distributor noted that there can be no standard cost of impact
developed that would safely apply to each and every distributor.
Factors affecting impact include the size of the distributorship and
whether it's mostly a bulk operation, a prepackaged operation, a
repackaging operation or a combination of the above. Smaller
distributors would probably be harder hit because they tend to be more
combination operations with a lesser quantity but wider variety of
products and with much smaller unit sales, which includes broken kegs,
carton or package sales. Cost impact estimates provided by individual
distributors on their operations ranged from no or minimal additional
cost to increases of several hundred thousand dollars the first year.
The Fastener Industry Coalition (FIC) Cost Survey indicated wide
variations in costs likely to be incurred by specific companies. The
survey noted that 50 percent of respondents will require additional
warehouse space and that first year costs would range from $1,500 to
$500,000 and average=$50,966 with subsequent annual costs ranging from
$1,000 to $78,000 and averaging $16,604. The survey noted that 85
percent of respondents would require additional personnel. Estimated
cost ranged from $4,000 to $170,000 and averaged $36,444. Eighty-one
percent of respondents would require additional computer hardware/
software. Estimated first year cost ranged from $500 to $175,000 and
averaged $24,821. Seventy four percent would require additional
machinery, equipment, pallet racking, shelving, or supplies. Estimated
first year cost ranged from $500 to $150,000 and averaged $15,326. The
FIC Survey also noted other costs including: Labels for boxes; probable
loss of old uncertified stock or certification costs to recertify it;
maintenance and certification of quality control equipment and purchase
of additional equipment and quality control personnel; additional
recordkeeping and storage requiring cabinets and personnel; reduced
efficiency in receiving, shipping, materials handling, etc.; cost of
providing test reports to customers; increased inventory costs;
transportation cost to test lab; test costs; changing vendors because
some will drop out; cost of goods that must be scrapped; loss of stock
due to non-commingling; cost of test reports from vendor ($5-$100 per
lot); and additional attorney fees/insurance premiums.
Section 7(e) of the Act was amended to permit voluntary commingling
of fasteners by distributors only. NIST estimates that approximately
10% of distributors will continue to provide lot traceability at an
estimated annual cost to the industry of $6.5 million instead of the
projected $373.3 million annual cost if all distributors were required
to maintain lot traceability for 25% of their inventory. Note that the
$6.5 million does not necessarily represent new costs since some
distributors had been providing this service prior to the passage of
the Fastener Quality Act.
Reduced Competition
Six distributors, seven manufacturers and two laboratories noted
that compliance/accreditation costs and liability issues are likely to
drive firms out of the market thus reducing competition. NIST's
assessment of economic impact has shown no evidence of burdensome
compliance/accreditation, and liability issue-related costs.
Loss of Good Will
Five distributors and one manufacturer noted that one of the most
important costs will be loss of customer goodwill resulting from firms
not being able to accept customer returns and from customers having to
purchase more product than they actually need because breaking packages
will not be cost effective. This problem can be minimized using normal
industry practice of inventory control. The Act does not prevent the
current practice of return of unused, unbroken boxes of fasteners.
Lack of Enforcement
Three distributors, three manufacturers, and one trade association
indicated that those producing/distributing poor quality fasteners will
continue to do so to the extent that lack of enforcement makes that
risk attractive. Several noted that there were already laws in effect
to deal with the mismarked or counterfeit fasteners, but that they were
not being sufficiently enforced. The Bureau of Export Administration
(BXA) of the Commerce Department has 140 experienced field
investigators who will actively enforce this Act.
Miscellaneous Comments
One distributor noted that the regulatory impact is a non-issue
since costs of product failures are so large. Primarily, this Act
addresses the issue of improving the quality and traceability of
fasteners, thereby decreasing fastener-related failures.
One manufacturer stated that if commingling is allowed what is to
stop someone from mixing good certified product with bogus, uncertified
product in the same container? The Act specifically addresses who can
commingle fasteners and how to label commingled fasteners. See subpart
A, Sec. 280.4 of the regulations.
One distributor noted that if a manufacturer can create bogus
fasteners, creating bogus test reports will not be a problem either.
The Act imposes severe criminal penalties for creating either bogus
fasteners or bogus test reports. See Subpart G, Sec. 280.603 of the
regulations.
One manufacturer noted that expected potential benefit resulting
from decreased buyer inspection and testing cost is not anticipated in
the aerospace industry. The Act is not intended to change the current
practice of buyer inspection and testing in the aerospace industry.
Classification
Administrative Procedure Act
This final rule is the logical outgrowth of the proposed rule and
the public comment process. A majority of the public comment received
on the 1992 proposed rule suggested the need for particular amendments
to the FQA. The suggested amendments were enacted as part of Pub.L.
104-113. This rule contains regulations making final the 1992 proposed
rule, as well as regulations to implement expressly the FQA as amended
pursuant to specific public comment received regarding the 1992
proposed rule.
Executive Order 12866
This rule has been determined to be significant under section 3(f)
of Executive Order 12866. However, it has been determined that this
rule is not an economically significant rule within the meaning of
section 3(f)(1) of Executive Order 12866, or a major rule as defined by
section 804 of Pub.L. 104-121, based upon the adjusted costs to
industry of
[[Page 50557]]
complying with the Fastener Quality Act as amended by Pub.L. 104-113
(Technology Transfer and Advancement Act of 1995). The projected $18.9
million annual costs to industry summarized below are based upon NIST's
estimate that 25% of currently produced fasteners would be covered
under the Act. Assuming that 55% of currently produced fasteners would
be covered under the Act, as is projected in industry studies, the
estimated annual industry costs adjusted by amendments to the Act would
be approximately $38.7 million. NIST has prepared a final Regulatory
Impact Analysis on the expected costs that will be incurred by both
government and industry to implement these regulations, as well as on
the expected benefits to be derived from the rule's implementation.
NIST has transmitted this Analysis to the Office of Management and
Budget.
Summary of Adjusted Industry Costs
The following table summarizes the annual costs to industry for
complying with the Fastener Quality Act, as originally estimated in the
1993 NIST Impact Analysis, and as adjusted based upon the recent
amendments to the Act that were contained in Pub.L. 104-113 (Technology
Transfer and Advancement Act of 1995).
Estimated Industry Costs
[In millions]
------------------------------------------------------------------------
Adjusted
With no by
Activity amendments amendments
to act to act
------------------------------------------------------------------------
Lab Accreditation Costs......................... $6.4 $6.4
Increased Test Costs............................ 6.0 6.0
Nonconforming Fastener Costs*................... N/A 0.0
Spectrochemical Test Costs...................... 100.6 0.0
Distributor Costs............................... 373.7 ** 6.5
-----------------------
Total Annual Industry Cost.................. 486.7 18.9
------------------------------------------------------------------------
* NIST was not able to estimate these costs. However, a task force of
the Fastener Advisory Committee estimated lot rejection costs based
upon not being able to sell fasteners with minor nonconformances as
permitted by standards and specifications at $285 million annually,
worst case.
** The $6.5 million does not necessarily represent all new costs since
some distributors had been providing this service prior to the passage
of the Fastener Quality Act.
Summary of Benefits of the Regulation
The economic costs associated with faulty or substandard fasteners
entering the marketplace are difficult to measure. In the legislative
history of the Act, numerous examples were cited of faulty or
substandard fasteners. The one example that was quantified--the NASA
space shuttle equipment example--included an estimated $11 million
price tag associated with the discovery and removal of substandard
fasteners. It is also clear from the other examples included in the
legislative history, that many (if not most) of them resulted in
economic losses well into the millions of dollars--losses that will be
substantially reduced through implementation of this Act. In addition
to economic losses, the injuries and deaths associated with product
failures resulting from the use of faulty or counterfeit fasteners will
be reduced. Another benefit will be a potential reduction in the
inspection and testing costs incurred by purchasers associated with the
quality control of incoming critical fastener procurements. Similarly,
another benefit, although not quantifiable, is associated with customer
perception of improved product quality for U.S. made fasteners
resulting from the Act. Because the Act applies equally to all
enterprises in the United States, be they domestic or foreign,
implementation of the Act will also help to ``level the playing field''
in domestic sales by making it more difficult for unethical
manufacturers and distributors to substitute substandard or counterfeit
fasteners at ``reduced prices'' thereby being able to undercut the
prices of their competitors. Finally, the Act uses voluntary standards
developed by the private sector to set appropriate fastener
specifications and test methods. This approach, which complies with the
requirements of the Technology Transfer and Advancement Act of 1995,
reduces the degree of regulatory involvement in and control over the
marketplace and leaves the determination of fastener requirements to
those most familiar with fastener technology and use.
Regulatory Flexibility Act
The Department has conducted a final Regulatory Flexibility
Analysis for this final rule. Laboratories, most of which are small
entities, desiring to test fasteners in accordance with the provisions
of the Act will incur costs related to accreditation and recordkeeping.
These costs have been discussed in Section IV of the Regulatory Impact
Analysis under LABORATORY COSTS. Based on estimates provided by the
Fastener Advisory Committee, between 328 and 457 laboratories will
require accreditation to implement Pub. L. 101-592, as amended. Using
the 1 to 25 percent range, between 26 and 639 laboratories will require
accreditation. Accreditation cost per laboratory will vary with the
scope of accreditation sought (the number of test methods for which the
laboratory seeks accreditation); however, the annual accreditation cost
(based on NVLAP's experience) is expected to average $10,000 per
laboratory.
Manufacturers who sell grade-marked fasteners covered by the Act
will incur additional testing and recordkeeping costs. Most of the
approximately 350 U.S. fastener manufacturers are not small entities.
No data is available on how many (if any) small U.S. fastener
manufacturers produce fasteners covered by the Act. Manufacturer costs
for all manufacturers are discussed in Section IV of the Regulatory
Impact Analysis under MANUFACTURER COSTS and in the June 1996 update to
the Analysis.
Distributors that sell grade-marked fasteners covered by the Act
will also incur additional costs in supplying lot traceable fasteners
to those purchasers who request them. These costs are discussed in the
June 1996 update to the original 1993 Regulatory Impact Analysis.
As noted above, to the extent that the Act permitted some
flexibility in the development of the implementing regulations, the
Department has sought and incorporated advice from its Fastener
Advisory Committee, chartered pursuant to the Act, to maximize the cost
effectiveness of the regulations.
Responses to comments are contained elsewhere in this rule and this
is thought to minimize the significant impact of this rulemaking
through enactment of amendments to the Act, as described above.
Paperwork Reduction Act
This rule contains three information collection requirements
subject to the Paperwork Reduction Act. Two collections of information
have been approved by the Office of Management and Budget under Control
Numbers 0693-0003, and 0693-0015. The public reporting burden for
collecting information dealing with th
FR Doc. 96-24105 Procedures for Implementation of the Fastener Quality Act
e accreditation of fastener
testing laboratories (0651-0003) is estimated to average 1 hour per
response, and an estimated total annual burden of 2400 hours. The
public reporting burden for collecting information dealing with
approving laboratory accreditation bodies (0651-0015) is estimated to
average 4 hours per response, with an estimated total annual burden of
20 hours.
[[Page 50558]]
The final rule contains one information collection provision that
is subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The title,
description, and respondent description of the information collection
requirements are shown below with the estimate of the annual reporting
and recordkeeping burden. Included in the estimate is the time for
reviewing instruction, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: Fastener Quality Act Insignia Recordal Process.
Description: This collection of information is required by section
8 of the Fastener Quality Act. Under section 8, each manufacturer or
private label distributor must apply to PTO for recordal of an insignia
on the Fastener Insignia Register. The PTO has drafted a suggested
application form for use by the public.
Description of Respondents: Fastener manufacturers and private
label distributors.
Estimate of Annual Reporting and Recordkeeping Burden: The
estimated total annual burden of hours is calculated at 100 hours. PTO
estimates that there will be between 300 and 900 respondents, or an
average of 600 respondents per year. The Office estimates that it will
take the applicant 10 minutes to collect the data and complete the
application/renewal form.
Notwithstanding any other provisions of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
List of Subjects in 15 CFR Part 280
Business and industry, Fastener industry, Imports.
Dated: September 13, 1996.
Samuel Kramer,
Associate Director.
For reasons set forth in the preamble, title 15 of the Code of
Federal Regulations is amended by adding part 280 to read as follows:
PART 280--FASTENER QUALITY
Subpart A--General
Sec.
280.1 Purpose/description of rule.
280.2 Definitions.
280.3 Relationship to State laws.
280.4 Commingling of fasteners.
280.5 Certification of fasteners.
280.6 Laboratory test reports.
280.7 Recordkeeping requirements.
280.8 Ownership of laboratories by manufacturers.
280.9 Subcontracting of testing.
280.10 Sampling.
280.11 Significant alterations of fasteners.
280.12 Applicability.
280.13 Imports of fasteners.
280.14 Option for importers and private label distributors.
280.15 Alternative procedure for chemical characteristics.
280.16 Subsequent purchaser.
Subpart B--Laboratory Accreditation
280.100 Introduction.
280.101 Accredited laboratory list.
280.102 Procedures for inclusion in the accredited laboratory list.
280.103 Removal from the accredited laboratory list.
Subpart C--NIST Fastener Laboratory Accreditation Procedures
280.200 Introduction.
280.201 Applicability of part 285, title 15, Code of Federal
Regulations.
280.202 Establishment of the program.
280.203 Adding to or modifying the program.
280.204 NVLAP Program Handbook.
280.205 Applying for accreditation.
280.206 Assessing and evaluating a laboratory.
280.207 Granting and renewing accreditation.
280.208 Denying, suspending and revoking accreditation.
280.209 Voluntary termination of accreditation.
280.210 Change in status of laboratory.
280.211 Authorized representative.
280.212 Approved signatory.
280.213 Application of accreditation conditions and criteria.
280.214 Conditions for accreditation.
280.215 Criteria for accreditation.
Subpart D--NIST Approval of Private Accreditation Programs
280.300 Introduction.
280.301 Application.
280.302 Review and decision process.
280.303 Criteria for approval.
280.304 Maintaining approved status.
280.305 Voluntary termination of approval.
280.306 Involuntary termination of approval by NIST.
Subpart E--Recognition of Foreign Laboratories
280.400 Introduction.
280.401 Recognition of foreign laboratories.
Subpart F--Requirements for Fastener Laboratory Accreditation Bodies
280.500 Introduction.
280.501 Accreditation body.
280.502 Laboratory assessors.
280.503 Accreditation process.
280.504 Relationship between approved/recognized accreditation body
and laboratory.
Subpart G--Enforcement
280.600 Scope.
280.601 Definitions used in this subpart.
280.602 Violations.
280.603 Penalties, remedies and sanctions.
280.604 Administrative enforcement proceedings.
280.605 Institution of administrative enforcement proceedings.
280.606 Representation.
280.607 Filing and service of papers other than charging letter.
280.608 Answer and demand for hearing.
280.609 Default.
280.610 Summary decision.
280.611 Discovery.
280.612 Subpoenas.
280.613 Matter protected against disclosure.
280.614 Prehearing conference.
280.615 Hearings.
280.616 Interlocutory review of rulings.
280.617 Proceeding without a hearing.
280.618 Procedural stipulations; extension of time.
280.619 Decision of the administrative law judge.
280.620 Settlement.
280.621 Reopening.
280.622 Record for decision and availability of documents.
280.623 Appeals.
Subpart H--Recordal of Insignia
280.700 Recorded insignia required prior to offer for sale.
The Written Application
280.710 Applications for insignia.
280.711 Review of the application.
280.712 Certificate of recordal.
280.713 Recordal of additional insignia.
Post-recordal Mainenance
280.720 Maintenance of the certificate of recordal.
280.721 Notification of changes of address.
280.722 Transfer or amendment of the certificate of recordal.
280.723 Transfer or assignment of trademark registration or
recorded insignia.
280.724 Change in status of trademark registration or amendment of
the trademark.
280.725 Cumulative listing of recordal information.
280.726 Records and files of the Patent and Trademark Office.
Authority: Sec. 13 of the Fastener Quality Act (Pub.L. 101-592,
as amended by Pub. L. 104-113).
Subpart A--General
Sec. 280.1 Purpose/description of rule.
The Fastener Quality Act (the Act) (Pub.L. 101-592, as amended by
Pub. L. 104-113) is intended to protect the public safety, to deter the
introduction of nonconforming fasteners into commerce, to improve the
ability to trace fasteners covered by the Act, and generate greater
assurance that fasteners meet stated specifications. The Act:
(a) Requires that certain fasteners which are sold in commerce
conform to the specifications to which they are represented to be
manufactured,
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(b) Provides for accreditation of laboratories engaged in fastener
testing; and
(c) Requires inspection, testing and certification, in accordance
with standardized methods, of fasteners covered by the Act.
Sec. 280.2 Definitions.
Unless the context requires otherwise or unless specifically stated
the terms in this part have the meanings prescribed in the statute. In
addition the following definitions apply.
Accreditation means laboratory accreditation.
Accreditation Body refers to the National Voluntary Laboratory
Accreditation Program and those private entities currently approved by
NIST under subpart D of this part and those foreign governments or
organizations currently recognized by NIST under subpart E of this
part.
Accreditation criteria means a set of requirements used by an
accreditation body which a laboratory must meet to be accredited.
The Act means the Fastener Quality Act (Pub.L. 101-592, as amended
by Pub.L. 104-113).
Alter means to alter by through hardening; by electroplating of
fasteners; or by machining.
Alteror means a person who owns a fastener and causes it to be
altered.
Approved signatory is an individual employed by a laboratory
accredited under the Act and these regulations who is recognized by an
accreditation body as competent to sign accredited laboratory test
reports.
Bureau of Export Administration or (BXA) means the Bureau of Export
Administration of the United States Department of Commerce, including
the Office of Export Enforcement.
Certificate of Accreditation is a document issued by an
accreditation body to a laboratory that has met the criteria and
conditions of accreditation. The certificate, together with the
assigned code number, and scope of accreditation issued by the
accreditation body may be used as proof of accredited status.
Commingling means the mixing of fasteners from different lots in
the same container.
Commissioner means the Commissioner of Patents and Trademarks.
Consensus standards organization means the American Society for
Testing and Materials (ASTM), American National Standards Institute
(ANSI), American Society of Mechanical Engineers (ASME), Society of
Automotive Engineers (SAE), or any other consensus standards setting
organization (domestic or foreign) determined by the Secretary to have
comparable knowledge, expertise, and concern for the health and safety
in the field for which such organization purports to set standards.
Container means any package of fasteners traded in commerce.
Date of manufacture means that date upon which the initial
conversion of material into a fastener takes place.
Director means the Director of the National Institute of Standards
and Technology (NIST).
Fastener means any screw, nut, bolt or stud, washer or other item
included within the definition for fastener contained in section 3(5)
of the Fastener Quality Act. The term ``fastener'' does not include a
screw, nut, bolt, or stud:
(1) That is produced and marked as ASTM A307 Grade A;
(2) That is produced in accordance with ASTM F432; or
(3) That is held out as being produced to other than the provisions
of standards and specifications published by a consensus standards
organization, or a government agency.
A screw, nut, bolt, stud or washer held out as being produced
according to requirements of a document other than a document published
by a consensus standards organization is a fastener within the meaning
of the Act and this part if that document incorporates or references
(directly or indirectly) standards and specifications published by a
consensus standards organization or government agency for purposes of
delineating performance or materials characteristics of the fastener.
Fastener insignia register means the register established at the
U.S. Patent and Trademark Office for the recordal of fastener insignia
to identify the manufacturer or private label distributor.
Fastener set means a collection of small quantities of products,
including fasteners, of varying sizes, collected together and sold as a
package.
Grade or property class identification marking means any symbol
appearing on a fastener purporting to indicate that the fastener's base
material, strength properties, or performance capabilities conform to a
specific standard of a consensus standards organization or government
agency. A raw material mark is not considered as a grade identification
mark for purposes of these regulations unless this mark is required by
the fastener standards and specifications to identify specific
conformance.
Importer means a person located within the United States who
contracts for the initial purchase of fasteners manufactured outside
the United States for resale or such person's use within the United
States.
Laboratory accreditation is the formal recognition that a testing
laboratory is competent to carry out specific test(s) or specific
type(s) of tests.
Laboratory accreditation body means a legal or administrative
entity that accredits laboratories.
Laboratory assessment means the on-site examination of a testing
laboratory to evaluate its compliance with specified criteria.
Laboratory test report means a report prepared by an accredited
laboratory in accord with Sec. 280.6.
Lot means a quantity of fasteners of one part number fabricated by
the same production process from the same coil or heat number of metal
as provided by the metal manufacturer and submitted for inspection and
testing at one time.
Lot number means a number assigned by a manufacturer to the lot.
Lot-specific identification information means information
applicable to a fastener consisting of, at a minimum:
(1) The part number (or a part description if there is no
applicable part number),
(2) The identity of the manufacturer, and
(3) The lot number.
Lot traceability means the recording and maintenance of lot-
specific identification information sufficient to trace fasteners from
a single lot throughout:
(1) The manufacturer's fabrication or alteration process,
(2) All inspection and testing operations, and
(3) The subsequent chain of distribution in commerce.
Manufacturer means a person who fabricates fasteners, who
significantly alters fasteners, or who alters any item so that it
becomes a fastener.
NIST means the National Institute of Standards and Technology, U.S.
Department of Commerce.
NVLAP means the National Voluntary Laboratory Accreditation Program
operated by the National Institute of Standards and Technology.
Original laboratory testing report means a laboratory testing
report which is originally signed by an approved signatory or is a copy
thereof, certified by the laboratory that conducted the test.
Person means any individual, partnership, limited partnership or
corporate entity and/or a representative, agent or designee.
Private label distributor means a person who contracts with a
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manufacturer for the fabrication of fasteners bearing the distributor's
distinguishing insignia.
Product includes any type or category of manufactured goods,
constructions, installations, or natural or processed materials.
Proficiency testing means the determination of laboratory testing
performance by means of comparing and evaluating tests on the same or
similar items or materials in accordance with predetermined conditions.
Scope of Accreditation is a document issued by an accreditation
body to an accredited laboratory which lists the test methods,
standards or specifications for which the laboratory is accredited.
Secretary means the Secretary of Commerce.
Significantly Alter means to alter in a manner which could weaken
or otherwise materially affect the performance or capabilities of the
fastener as it was originally manufactured, grade or property class
marked, tested, or represented. The term does not include the
application of adhesives or sealants, locking elements, provisions for
lock wires, coatings and platings of parts having a specified Rockwell
C hardness of less than 32, or cutting off of fasteners. The cutting of
finished threaded rods, bars or studs to produce individual smaller
length threaded studs for resale is not a significant alteration.
However, cut threaded studs, rods, and bars offered for sale shall be
individually marked with the grade or property class identification
marking appearing on or accompanying the original threaded studs, rods,
and bars from which the fasteners were cut.
Standards and specifications means the provisions of a document
published by a consensus standards organization, or a government
agency.
Tamper-resistant system means the use of special paper or embossing
stamps or other controls which discourage, prevent or minimize
alteration of test reports subsequent to manufacturing, inspection and
testing.
Testing laboratory is a laboratory which measures, examines, tests,
calibrates or otherwise determines the characteristics or performance
of products.
Through-harden means heating above the transformation temperature
followed by quenching and tempering for the purpose of achieving a
uniform hardness.
Traceability of Measurements means a documented chain of
comparisons connecting the accuracy of a measuring instrument to other
measuring instruments of higher accuracy and, ultimately, to a primary
standard.
Sec. 280.3 Relationship to State laws.
Nothing in the Act or these regulations shall be construed to
preempt any rights or causes of action that any buyer may have with
respect to any seller of fasteners under the law of any State, except
to the extent that the provisions of the Act or these regulations are
in conflict with such State law.
Sec. 280.4 Commingling of fasteners.
(a) No manufacturer, importer, or private label distributor may
commingle fasteners of the same type, grade, and dimension from
different lots in the same container; except that such manufacturer,
importer, or private label distributor may commingle fasteners of the
same type, grade, and dimension from not more than two tested and
certified lots in the same container during repackaging and plating
operations: Provided, that any container which contains the fasteners
from two lots shall be conspicuously marked with the lot identification
numbers of both lots.
(b) Fastener distributors, and persons who purchase fasteners for
sale at wholesale or retail, may commingle fasteners of the same type,
grade, and dimension from different lots in the same container.
Sec. 280.5 Certification of fasteners.
(a) No fastener shall be offered for sale or sold in commerce
unless it is part of a lot which has been inspected, tested, and
certified in accordance with Section 5 of the Act and this part, and
found to conform to the standards and specifications to which the
manufacturer represents it has been manufactured.
(b) (1) the requirements of paragraph (a) of this section shall not
apply to fasteners which are part of a lot of 50 fasteners or less if
within 10 working days after delivery of such fasteners, or as soon as
practicable thereafter--
(i) Inspection, testing, and certification as provided in
subsections 5 (b), (c), and (d) of the Act and this part is carried
out; and
(ii) Written notice detailing the results of such inspection,
testing, and certification is sent:
(A) To all purchasers of such fasteners, except retail sellers and
retail consumers, and
(B) To any retail seller or retail consumer who, prior to delivery,
requests such written notice.
(2) If a fastener is sold under paragraph (b) of this section, each
purchaser of such fastener, except for retail sellers and retail
consumers unless such retail sellers and retail consumers request such
notice in advance, shall be provided, contemporaneously with each sale
and delivery, written notice stating that such fastener has not yet
been inspected, tested, and certified as required by the Act and this
part.
(c) Each manufacturer, importer, private label distributor, or
alteror who significantly alters any fastener shall keep on file and
make available for inspection in accordance with the recordkeeping
requirements of Sec. 280.7 an original laboratory testing report
described in section 5(c) of the Act and Sec. 280.6 of this part and a
manufacturer's certificate of conformance for each lot of fasteners
subject to the Act and this part which that manufacturer, importer,
private label distributor, or alteror who significantly alters any
fastener offers for sale or sells in commerce. Such certificate shall,
as a minimum, include: Fastener description information contained in
Sec. 280.6(a)(4) of this part; the date of issue and serial number of
the laboratory testing report; and
A statement certifying that the fasteners have been manufactured
according to the requirements of the applicable standards and
specifications and found to conform with its requirements. The
requirements of this paragraph shall not apply to an alteror who
significantly alters fasteners and who delivers to the purchaser the
written statement provided for by Sec. 280.11(a)(3) of this part.
Sec. 280.6 Laboratory test reports.
(a) When performing tests for which they are accredited under this
part, each laboratory accredited under subparts C, D, or E of this part
and currently listed in the Accredited Laboratory List shall issue test
reports of its work which accurately, clearly, and unambiguously
present the test conditions, test set-up, test results, and all
information required by this section. All reports must be in English or
be translated into English, must be signed by an approved signatory,
must be protected by a tamper resistant system, and contain the
following information:
(1) Name and address of the laboratory;
(2) Unique identification of the test report including date of
issue and serial number, or other appropriate means;
(3) Name and address of client;
(4) Fastener Description, including:
(i) Manufacturer (name and address);
(ii) Product family (screw, nut, bolt, washer, or stud), drive and/
or head configurations as applicable;
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(iii) Date of manufacture;
(iv) Head markings (describe or draw manufacturer's recorded
insignia and grade identification or property class symbols);
(v) Nominal dimensions (diameter; length of bolt, screw or stud;
thickness of load bearing washer); thread form and class of fit;
(vi) Product standards and specifications related to the laboratory
in writing by the manufacturer, importer or distributor;
(vii) Lot number;
(viii) Specification and grade of material;
(ix) Coating material and standard and specification as applicable;
(5) Sampling information:
(i) Standards and specifications or reference for sampling scheme;
(ii) Production lot size and the number sampled and tested;
(iii) Name and affiliation of person performing the lot sampling;
(6) Test results:
(i) Actual tests required by the standard and specification;
(ii) Test results for each sample;
(iii) All deviations from the test method;
(iv) All other items required on test reports according to the test
method;
(v) Where the report contains results of tests performed by sub-
contractors, these results shall be clearly identified along with the
name of the laboratory and accreditation information listed in
paragraph (a)(10) of this section.
(vi) A statement that the samples tested either conform or do not
conform to the fastener standards and specifications or standards and
identification of any nonconformance, except as provided for in
Secs. 280.13 and 280.14;
(7) A statement that the report must not be reproduced except in
full;
(8) A statement to the effect that the test report relates only to
the item(s) tested;
(9) Name, title and signature of approved signatory accepting
technical responsibility for the tests and test report;
(10) The name of the body which accredited the laboratory for the
specific tests performed which are the subject of the report, and code
number assigned to the laboratory by the accreditation body, and the
expiration of accreditation.
(b) For alternative chemical tests carried out under Sec. 280.15 of
this part, each laboratory accredited under subparts C, D, or E of this
part and currently listed in the Accredited Laboratory List shall
provide to the fastener manufacturer, either directly or through the
metal manufacturer, a written inspection and testing report containing
all required information. All reports must be in English or be
translated into English, must be signed by an approved signatory, must
be protected by a tamper resistant system, and contain the following
information:
(1) Name and address of the laboratory;
(2) Unique identification of the test report including date of
issue and serial number or other appropriate means.
(3) Name and address of client;
(4) Coil or heat number of metal being tested;
(5) Test results:
(i) Actual tests required by the standards and specifications;
(ii) Test results for each sample;
(iii) All deviations from the test method;
(iv) All other items required on test reports according to the test
method;
(v) Where the report contains results of tests performed by sub-
contractors, these results shall be clearly identified along with the
name of the laboratory and accreditation information listed in
paragraph (b)(9) of this section.
(vi) A statement that the samples tested either conform or do not
conform to the metal standards and specifications and identification of
any nonconformance;
(6) A statement that the report must not be reproduced except in
full;
(7) A statement to the effect that the test report relates only to
the item(s) tested;
(8) Name, title and signature of approved signatory accepting
technical responsibility for the tests and test report;
(9) The name of the body which accredited the laboratory for the
specific tests performed which are the subject of the report, and code
number assigned to the laboratory by the accreditation body, and the
expiration of accreditation.
(c) The laboratory shall issue corrections or additions to a test
report only by a further document suitably marked, e.g. ``Supplement to
test report serial number * * *'' This document must specify which test
result is in question, the content of the result, the explanation of
the result, and the reason for acceptance of the result.
Sec. 280.7 Recordkeeping requirements.
(a) Each laboratory accredited under subparts C, D, or E of this
part shall retain for 5 years after the performance of a test all
records pertaining to that test concerning the inspection and testing,
and certification, of fasteners under the Act and these regulations.
The final test report or the test records maintained by the laboratory
shall contain sufficient information to permit the test to be repeated
at a later time if a retest is necessary. The laboratory shall maintain
the test report and a record of all original observations,
calculations, and derived data. The records shall include the identity
of personnel involved in sample preparation and testing. Procedures for
storage and retrieval of records must be documented and maintained in
the laboratory's quality manual.
(b) Manufacturers, importers, private label distributors, and
persons who significantly alter fasteners shall retain for 5 years
after the performance of a test all records pertaining to that test
concerning the inspection and testing, and certification, of fasteners
under the Act and these regulations.
(c) Original records required. Persons required to keep records
under this part must maintain the original records in the form in which
that person receives or creates them unless that person meets all of
the conditions of paragraph (d) of this section relating to
reproduction of records. Original laboratory test reports described in
Secs. 280.5, 280.6, 280.13 and 280.15(b) of this part must be kept.
(d) Reproduction of original records. A person required to keep
records under this part may maintain reproductions of documents other
than laboratory test reports instead of the original records using any
photographic, photostatic, miniature photographic, micrographic,
automated archival storage, or other process that completely,
accurately, legibly and durably reproduces the original records
(whether on paper, microfilm, or through electronic digital storage
techniques). The process must meet all of the requirements of
paragraphs (d)(1) through (d)(9) of this section.
(1) The system must be capable of reproducing all records on paper.
(2) The system must record and be able to reproduce all marks,
information, and other characteristics of the original record,
including both obverse and reverse sides of paper documents in legible
form.
(3) When displayed on a viewer, monitor, or reproduced on paper,
the records must exhibit a high degree of legibility and readability.
(For purposes of this section, legible and legibility mean the quality
of a letter or numeral that enable the observer to identify it
positively and quickly to the exclusion of all other letters or
numerals. Readable and readability mean the quality of a group of
letters or numerals being recognized as complete words or numbers.)
(4) The system must preserve the initial image (including both
obverse
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and reverse sides of paper documents) and record all changes, who made
them and when they were made. This information must be stored in such a
manner that none of it may be altered once it is initially recorded.
(5) The regulated person must establish written procedures to
identify the individuals who are responsible for the operation, use and
maintenance of the system.
(6) The regulated person must establish written procedures for
inspection and quality assurance of records in the system and document
the implementation of those procedures.
(7) The system must be complete and contain all records required to
be kept by this part or the regulated person must provide a method for
correlating, identifying and locating records relating to the same
transaction(s) that are kept in other record keeping systems.
(8) The regulated person must keep a record of where, when, by
whom, and on what equipment the records and other information were
entered into the system.
(9) Upon request by the Bureau of Export Administration or NIST,
the regulated person must furnish, at the examination site, the
records, the equipment and, if necessary, knowledgeable personnel for
locating, reading, and reproducing any record in the system.
(e) Destruction or disposal of records. If the Bureau of Export
Administration, NIST or any other government agency makes a formal or
informal request for any record or records, such record or records may
not be destroyed or disposed of without the written authorization of
the agency concerned. This prohibition applies even if such records
have been retained for a period of time exceeding that required by
paragraphs (a) or (b) of this section.
(f) All persons required to keep records by this part must furnish
those records when requested to do so by an employee of the Bureau of
Export Administration or NIST.
Sec. 280.8 Ownership of laboratories by manufacturers.
(a) If the Director finds that, as to a specific type of fastener,
and as to a specific type of inspection or testing, a ban on
manufacturer ownership or affiliation with a laboratory performing
tests under the Act and these regulations would increase the protection
of health and safety of the public or industrial workers, the Director
may impose such a ban.
(b) Before imposing a ban under paragraph (a) of this section, the
Director shall provide advance notice and the opportunity for public
comment.
Sec. 280.9 Subcontracting of testing.
(a) Whenever a laboratory accredited under subparts C, D, or E of
this part issues a test report under the Act and this part, it is
implied that the report reflects work performed, and results obtained,
by the personnel, equipment, and procedures of that laboratory.
However, in some cases a laboratory may require the use of another
facility due to equipment failure, need for specialized equipment, work
overload, or to perform tests outside the laboratory's own scope of
accreditation.
(b) Whenever a laboratory accredited under subparts C, D, or E of
this part subcontracts to another laboratory for the performance of any
test or portion of a test it must:
(1) Place the work with another laboratory accredited under either
subpart C, D, or E of this part;
(2) Inform the client, before the fact, that subcontracting will be
necessary; and
(3) Clearly identify in its records, and in the report to the
client, specifically which test method(s) or portions of a test
method(s) were performed by the accredited laboratory and which were
performed by the subcontractor.
Sec. 280.10 Sampling.
In the event that the standard or specification to which a
manufacturer represents the fasteners in a particular sample to have
been manufactured does not provide for the size, selection or integrity
of the sample to be inspected and tested, the sample shall be
determined in accordance with ASME/ANSI B18.18.2M, Inspection and
Quality Assurance For High-Volume Machine Assembly Fasteners; ASME/ANSI
B18.18.3M, Inspection and Quality Assurance for Special Purpose
Fasteners; or ASME/ANSI B18.18.4M, Inspection and Quality Assurance for
Highly Specialized Engineering Applications--Fasteners, as appropriate.
Sec. 280.11 Significant alterations of fasteners.
(a) Any alteror who significantly alters a fastener so that it no
longer conforms to the description in the relevant test report issued
under section 5(c) of the Act or this part, and who thereafter offers
for sale or sells such significantly altered fastener, shall:
(1) Assign a new lot number;
(2) Apply his or her registered insignia to the significantly
altered fastener if the standards and specifications to which the
fastener was originally manufactured required the fastener to bear a
raised or depressed insignia identifying its manufacturer or private
label distributor; and
(3) Be treated as a manufacturer for the purposes of the Act and
this part, and shall cause the fastener to be inspected and tested as
required by section 5 of the Act and by this part unless the
significantly altered fastener is delivered to a purchaser accompanied
by a written statement noting the original lot number and the new lot
number assigned by the alteror, disclosing the subsequent alteration,
and warning that such alteration may affect the dimensional or physical
characteristics of the fastener.
(b) If the significant alteration is only electroplating of
fasteners having a specified Rockwell C hardness of 32 or above, the
requirements set forth in paragraphs (a)(2) and (a)(3) of this section
shall not apply, but the alteror shall assign a new lot number as set
forth in paragraph (a)(1) of this section and shall test the
electroplated fasteners as required by the plating standards and
specifications.
(c) Any person who knowingly sells a significantly altered fastener
as described in paragraph (a) of this section, and who did not alter
such fastener, shall provide to the purchaser a copy of the statement
required by paragraph (a)(3) of this section; unless the significant
alteration is only electroplating of the fastener, as described in
paragraph (b) of this section.
(d) If the alteration is not a significant alteration, the
requirements set forth in paragraph (a) of this section shall not
apply, and the only testing requirements which apply are those required
by the standards and specifications to which the alteration is
performed. If the alteration involves cutting of threaded studs, rods,
or bars into studs, these cut fasteners must be marked with the grade
or property class identification marking appearing on the original
threaded studs, rods, and bars.
Sec. 280.12 Applicability.
(a) The requirements of the Fastener Quality Act and this part
shall be applicable only to fasteners manufactured on or after May 27,
1997.
(b) Metal manufactured prior to May 27, 1997 may not be used to
manufacture fasteners subject to the Act and this part, unless the
metal has been tested for chemistry pursuant to Sec. 280.15 of this
part by a laboratory accredited under the Act and this part and the
chemical characteristics of the metal conform to those required by the
standards and specifications.
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(c) Nothing in the Act and this part prohibits selling finished
fasteners manufactured prior to May 27, 1997 or representing that such
fasteners meet standards and specifications of a consensus standards
organization or a government agency. Fasteners manufactured prior to
May 27, 1997 may not be represented as being in conformance with the
Act or this part.
Sec. 280.13 Imports of fasteners.
(a) Except as provided in paragraph (b) of this section, it shall
be unlawful for any person to sell to an importer, and for any importer
to purchase any shipment of fasteners or fastener sets manufactured
outside the United States unless such shipment to an importer is
accompanied by a manufacturer's certificate of conformance, an original
laboratory testing report with respect to each lot from which the
fasteners are taken, and any other relevant lot identification
information.
(b) The requirement that delivery of fasteners to any importer must
be accompanied by an original laboratory testing report shall not
apply:
(1) In the case of fasteners imported into the United States as
products manufactured within a nation which is party to a
congressionally approved free trade agreement with the United States
that is in effect, provided that the Director has published in the
Federal Register a certification that satisfactory arrangements have
been reached by which purchasers within the United States can readily
gain access to an original laboratory test report for such fasteners;
or,
(2) In the case of fasteners imported into the United States as
Canadian-origin products under the United States-Canada Automobile Pact
for use as original equipment in the manufacture of motor vehicles.
Sec. 280.14 Option for importers and private label distributors.
(a) Notwithstanding the provisions of Sec. 280.13 of this part,
delivery of a lot, or portion of a lot, of fasteners may be made by a
manufacturer to an importer or private label distributor without the
required original copy of the laboratory testing report if--
(1) The manufacturer provides to the importer or private label
distributor a certificate which, as a minimum, includes fastener
description information contained in Sec. 280.6(a)(4), and a statement
by the manufacturer certifying that the fasteners have been
manufactured according to the requirements of the applicable standard
or specification, but have not been tested by a laboratory accredited
in accordance with section 6 of the Act; and
(2) The importer or private label distributor assumes
responsibility in writing for the inspection and testing of such lot or
portion by a laboratory accredited in accordance with the procedures
set out in this Part.
(b) If the importer or private label distributor assumes the
responsibility in writing for the inspection and testing of such lot or
portion, the provisions of section 5(a), (b) and (c) of the Act shall
apply to the importer or private label distributor in the same manner
and to the same extent as to a manufacturer; except that the importer
or private label distributor shall provide to the testing laboratory
the certificate described under paragraph (a)(1) of this section.
Sec. 280.15 Alternative procedure for chemical characteristics.
Notwithstanding any other provision of this regulation, a
manufacturer shall be deemed to have demonstrated that the chemical
characteristics of a lot conform to the standards and specifications to
which the manufacturer represents such lot has been manufactured if the
following requirements are met:
(a) The coil or heat number of metal from which such lot was
fabricated has been inspected and tested with respect to its chemical
characteristics by a laboratory accredited in accordance with the Act
and these regulations;
(b) Such laboratory has provided to the manufacturer, either
directly or through the metal manufacturer, a written inspection and
testing report, prepared in accordance with Sec. 280.6 of this part,
listing the chemical characteristics of such coil or heat number;
(c) The report described in paragraph (b) of this section indicates
that the chemical characteristics of such coil or heat number conform
to those required by the standards and specifications to which the
manufacturer represents such lot has been manufactured; and,
(d) The manufacturer demonstrates that such lot has been fabricated
from the coil or heat number of metal to which the report described in
paragraphs (b) and (c) of this section relates.
Sec. 280.16 Subsequent purchaser.
(a) If a purchaser of fasteners requests the seller to mark the
container of fasteners with the lot number from which such fasteners
were taken, either prior to the sale or at the time of sale, the seller
shall conspicuously mark the container of fasteners with the lot
number.
(b) The seller shall provide copies of any applicable laboratory
testing report or certification of conformance upon request to the
subsequent purchaser of fasteners taken from the lot to which such
testing report or manufacturer's certificate of conformance relates.
Subpart B--Laboratory Accreditation
Sec. 280.100 Introduction.
The Fastener Quality Act sets out three alternatives by which a
laboratory may become accredited for testing under the Act. This
regulation sets out implementing procedures for each of those
alternatives:
(a) Subpart C of this part contains procedures by which the
National Institute of Standards and Technology's National Voluntary
Laboratory Accreditation Program will accredit laboratories for the
testing of fasteners under the Act;
(b) Subpart D of this part sets out procedures under which private
entities may apply to NIST for approval to engage directly in the
accreditation of laboratories for the testing of fasteners under the
Act; and
(c) Subpart E of this part sets out conditions under which the
accreditation of foreign laboratories by their governments or
organizations recognized by the Director shall be deemed to satisfy the
laboratory accreditation requirements for the testing of fasteners
under the Act.
Sec. 280.101 Accredited laboratory list.
NIST shall prepare and maintain an Accredited Laboratory List of
laboratories accredited under subparts C, D, and E of this part. Only
laboratory test reports covering tests performed by a laboratory listed
in the Accredited Laboratory List at the time the report was issued,
and which are within the scope of the laboratory's accreditation, shall
be deemed to meet the requirements of the Act.
Sec. 280.102 Procedures for inclusion in the accredited laboratory
list.
(a) NVLAP, and all entities approved by NIST under subpart D of
this part or recognized by NIST under subpart E of this part shall
promptly notify NIST of each accreditation action taken under subparts
C, D, or E of this part, respectively. Accreditation actions include
initial accreditation, denials of accreditation, renewals, suspensions,
terminations, revocations and changes in scope. Notifications shall be
filed with: Fastener Quality Act Program Manager, Office of Standards
Services, National Institute of Standards and Technology, Gaithersburg,
Maryland 20899.
[[Page 50564]]
(b) Each notification to NIST shall include the following
information, in English: The name of the laboratory accreditation body
which granted the accreditation; the name and address of the laboratory
affected by the accreditation action; the nature of the accreditation
action; a copy of the laboratory's accreditation certificate and a
scope of accreditation which states the fastener test methods for which
it has been accredited; the name and telephone number of the authorized
representative(s) and approved signatory(s) of the fastener testing
laboratory; information concerning the physical locations of all
organizational units involved in accredited fastener testing, and the
specific scope of fastener testing for each organizational unit for
which accreditation has been granted.
(c) NIST shall revise as appropriate the Accredited Laboratory List
when notified of accreditation actions and shall take appropriate steps
to make information changes promptly available to the public.
Sec. 280.103 Removal from the accredited laboratory list.
(a) NIST may remove from the Accredited Laboratory List any
fastener testing laboratory accredited under subpart C, D or E of this
part if NIST deems such action to be in the public interest. Laboratory
test reports describing tests performed by a laboratory after it has
been removed from the Accredited Laboratory List under this section
shall not be deemed to meet the requirements of the Act.
(b) A laboratory may appeal the removal or proposed removal from
the Accredited Laboratory List to the Director by submitting a
statement of reasons why the laboratory should remain on the list. NIST
may, at its discretion, hold in abeyance a removal action pending a
final decision by the Director. The Director shall inform the
laboratory in writing of the decision within sixty days following
receipt of the appeal.
Subpart C--NIST Fastener Laboratory Accreditation Procedures
Sec. 280.200 Introduction.
This subpart sets out the procedures and technical requirements of
the NVLAP Fasteners Testing Program (``the Program'') for the
accreditation of laboratories that test fasteners. Laboratories which
are granted accreditation under this program for certain tests will be
eligible to provide testing services and test reports required by the
Fastener Quality Act for those tests. Accreditation may be granted to
any laboratory (including: Commercial; manufacturers'; university; and
laboratories located in foreign countries) that demonstrates competence
to provide services according to the criteria specified in this
subpart. It is up to the laboratory to select the areas and specific
tests within each area for its proposed scope of accreditation. A
laboratory may be accredited to test and/or measure fasteners in any
one or more of the areas of chemical, dimensional, nondestructive,
mechanical and physical, or metallography testing. Laboratories located
outside of the U.S. must meet certain additional requirements
including: Additional fees for travel outside the U.S. and provision of
a language translator.
Sec. 280.201 Applicability of part 285, title 15, Code of Federal
Regulations.
As permitted by section 6 of the Act, and for the purposes of that
Act only, the provisions of part 285, title 15 of the Code of Federal
Regulations are superseded by the procedures and requirements set forth
in this Subpart. The provisions of part 285, title 15 of the Code of
Federal Regulations remain in effect except as they pertain to
laboratory accreditation actions required by the Act.
Sec. 280.202 Establishment of the Program.
(a) NVLAP shall develop the technical requirements for the Program
based on expert advice.
(b) As a means of assuring effective and meaningful cooperation,
input, and participation by those federal agencies that may have an
interest in and may be affected by the Program, NVLAP may communicate
and consult with appropriate officials within those agencies.
(c) When NVLAP has completed the development of the technical
requirements of the Program and established a schedule of fees for
accreditation, NVLAP shall publish a notice in the Federal Register
announcing the establishment of the Program.
(d) The notice will:
(1) Identify the scope of the Program;
(2) Advise how to apply for accreditation.
(e) NVLAP shall establish fees in amounts that will enable the
Program to be self-sufficient. NVLAP shall revise the fees when
necessary to maintain self-sufficiency.
Sec. 280.203 Adding to or modifying the program.
(a) The Program may be added to, modified, or realigned based on
either a written request from any person wishing to add or delete
specific standards, test methods, or types of test methods or a need
identified by NVLAP.
(b) NVLAP may choose to make the additions or modifications
available for accreditation when:
(1) The additional standards, test methods, or types of test
methods requested are directly relevant to the Program;
(2) It is feasible and practical to accredit testing laboratories
for the additional standards, test methods, or types of test methods;
and
(3) It is likely that laboratories will seek accreditation for the
additional standards, test methods, or types of test methods.
Sec. 280.204 NVLAP Program Handbook.
All specific laboratory accreditation requirements and NVLAP
interpretations shall be documented in a program handbook which NVLAP
shall develop and maintain. The handbook shall be made available to all
participating laboratories. NVLAP may prepare a NVLAP Program Handbook
for the Fastener Testing Program for use by applicant and accredited
laboratories. The purpose of the handbook is to provide specific
technical details for fastener testing as they apply to on-site
assessment, proficiency testing, test equipment and facilities, and
scope of accreditation.
Sec. 280.205 Applying for accreditation.
(a) A laboratory may request an application for accreditation in
the Program in accordance with instructions provided in notices
announcing the Program's formal establishment.
(b) Upon receipt of a laboratory's application, NVLAP shall:
(1) Acknowledge receipt of the application;
(2) Request further information, if necessary;
(3) Confirm payment of fees before proceeding with the
accreditation process; and
(4) Specify the next step(s) in the accreditation process.
(c) All laboratory accreditation documents must be in English or
the laboratory seeking accreditation must supply an English translation
of all documents at the time it files its application.
(d) Accreditation of laboratories outside the United States may
require payment of additional traveling expenses for on-site
assessments and proficiency testing.
[[Page 50565]]
Sec. 280.206 Assessing and evaluating a laboratory.
(a) Information used to evaluate a laboratory's compliance with the
conditions for accreditation set out in Sec. 280.214, the criteria for
accreditation set out in Sec. 280.215, and the technical requirements
established will include:
(1) Application and other material submitted by the laboratory
(Sec. 280.214(b)).
(2) On-site assessment reports;
(3) Laboratory performance on proficiency tests;
(4) Laboratory responses to identified deficiencies; and
(5) Technical evaluation.
(b) NVLAP shall arrange the assessment and evaluation of applicant
laboratories in such a way as to minimize potential conflicts of
interest.
(c) NVLAP shall inform each applicant laboratory of any action(s)
that the laboratory must take to qualify for accreditation.
Sec. 280.207 Granting and renewing accreditation.
(a) NVLAP will take action to grant initial accreditation, or
renew, suspend, or propose to deny or revoke accreditation of an
applicant laboratory, based on the degree to which the laboratory
complies with the specific NVLAP requirements. Accreditation shall be
granted for a one year period. Before initial accreditation and every 2
years thereafter, an on-site assessment of each laboratory shall be
conducted to determine compliance with the NVLAP criteria.
(b) If accreditation is granted or renewed, NVLAP shall:
(1) Provide a Certificate of Accreditation and a Scope of
Accreditation to the laboratory;
(2) Provide guidance on referencing the laboratory's accredited
status, and the use of the NVLAP logo by the laboratory and its
clients, as needed; and
(3) Remind the laboratory that accreditation does not relieve it
from complying with applicable federal, state, and local laws and
regulations.
(c) NVLAP shall notify an accredited laboratory at least 30 days
before its accreditation expires advising of the action(s) the
laboratory must take to renew its accreditation.
Sec. 280.208 Denying, suspending, and revoking accreditation.
(a) If NVLAP proposes to deny or revoke accreditation of a
laboratory, NVLAP shall inform the laboratory of the reasons for the
proposed denial or revocation and the procedure for appealing such a
decision.
(b) The laboratory will have 30 days from the date of receipt of
the proposed denial or revocation letter to appeal the decision to the
Director of NIST. If the laboratory appeals the decision to the
Director of NIST, the proposed denial or revocation will be stayed
pending the outcome of the appeal. The proposed denial or revocation
will become final through the issuance of a written decision to the
laboratory in the event that the laboratory does not appeal the
proposed denial or revocation within that 30-day period.
(c) If NVLAP finds that an accredited laboratory has violated the
terms of its accreditation or the provisions of these procedures, NVLAP
may, after consultation with the laboratory, suspend the laboratory's
accreditation, or advise of NVLAP's intent to revoke accreditation. If
accreditation is suspended, NVLAP shall notify the laboratory of that
action stating the reasons for and conditions of the suspension and
specifying the action(s) the laboratory must take to have its
accreditation reinstated.
(d) A laboratory whose accreditation has been denied, revoked,
terminated, or expired, or which has withdrawn its application before
being accredited, may reapply and be accredited if the laboratory:
(1) Completes the assessment and evaluation process; and
(2) Meets the conditions and criteria for accreditation that are
set out in sections 280.214 and 280.215.
(e) Conditions of suspension will include prohibiting the
laboratory from using the NVLAP logo on its test reports during the
suspension period. The determination of NVLAP whether to suspend or to
propose revocation of a laboratory's accreditation will depend on the
nature of the violation(s) of the terms of its accreditation.
Sec. 280.209 Voluntary termination of accreditation.
A laboratory may at any time terminate its participation and
responsibilities as an accredited laboratory by advising NVLAP in
writing of its desire to do so. NVLAP shall terminate the laboratory's
accreditation and shall notify the laboratory stating that its
accreditation has been terminated in response to its request.
Sec. 280.210 Change in status of laboratory.
Accreditation of a laboratory is based on specific conditions and
criteria including the laboratory ownership, location, staffing,
facilities, and configuration. Changes in any of these conditions or
criteria could result in loss of accreditation. NVLAP must be informed
if any of the conditions or criteria for accreditation are changed so
that a determination can be made concerning the status of the
accreditation.
Sec. 280.211 Authorized representative.
The laboratory shall designate an Authorized Representative to sign
the NVLAP application form and commit the laboratory to fulfill the
NVLAP requirements. Only the Authorized Representative can authorize a
change in the scope or nature of the laboratory's application. This
person will receive all correspondence and inquiries from NVLAP. The
Authorized Representative may also be an Approved Signatory. The
laboratory must provide to NVLAP the name and address of the Authorized
Representative and must, within 30 days, notify NVLAP of a change of
Authorized Representative.
Sec. 280.212 Approved signatory.
(a) The laboratory shall designate one or more staff members as
Approved Signatories. Approved Signatories shall be persons with
appropriate responsibility, authority and technical capability within
the organization. The laboratory must maintain a list of Approved
Signatories and make that list available for review during on-site
assessments. The laboratory must provide to NVLAP the name(s) and
address(es) of the Approved Signatory(s) and must, within 30 days,
notify NVLAP of a change of Approved Signatory(s).
(b) The authorized signature of at least one Approved Signatory
must appear on each test reports that is written in compliance with the
Act and endorsed with the NVLAP logo. The approved signatory is
responsible for the technical content of the report and is the person
to be contacted by NVLAP, laboratory clients, or others in case of
questions or problems with the report.
Sec. 280.213 Application of accreditation conditions and criteria.
To become accredited and maintain accreditation, a laboratory must
meet the conditions for accreditation set out in Sec. 280.214, the
criteria set out in Sec. 280.215, and the guidance provided in the
Program Handbook.
Sec. 280.214 Conditions for accreditation.
(a) To become accredited and maintain accreditation, a laboratory
shall agree in writing to:
(1) Be assessed and evaluated initially and on a periodic basis;
(2) Demonstrate, on request that it is able to perform the tests
representative
[[Page 50566]]
of those for which it is seeking accreditation;
(3) Pay all fees;
(4) Participate in proficiency testing as required.
(5) Be capable of performing the tests for which it is accredited
according to the latest version of the test method within one year
after its publication or within another time limit specified by NVLAP;
(6) Limit the representation of the scope of its accreditation to
only those tests or services for which accreditation is granted;
(7) Resolve all deficiencies;
(8) Limit all its work or services for clients to those areas where
competence and capacity are available;
(9) Inform its clients that the laboratory's accreditation or any
of its test reports in no way constitutes or implies product
certification, approval, or endorsement by NIST;
(10) Maintain records of all actions taken in response to testing
complaints for 5 years, as required by Sec. 280.7 of this part;
(11) Maintain an independent decisional relationship between itself
and its clients, affiliates, or other organizations so that the
laboratory's capacity to render test reports objectively and without
bias is not adversely affected;
(12) Report to NVLAP within 30 days any major changes involving the
location, ownership, management structure, authorized representative,
approved signatories, or facilities of the laboratory; and
(13) Return to NVLAP the Certificate of Accreditation and the Scope
of Accreditation for revision or other action should it:
(i) Be requested to do so by NVLAP;
(ii) Voluntarily terminate its accredited status; or
(iii) Become unable to conform to any of these conditions, the
applicable criteria of this Subpart or Sec. 280.215, and related
technical requirements.
(b) To become accredited and maintain accreditation, a laboratory
shall supply, upon request, the following information:
(1) Legal name and full address;
(2) Ownership of the laboratory;
(3) Organization chart defining relationships that are relevant to
performing testing covered in the accreditation request;
(4) General description of the laboratory, including its facilities
and scope of operation;
(5) Name, address, and telephone and FAX number of the authorized
representative of the laboratory;
(6) Names or titles and qualifications of laboratory staff
nominated to serve as approved signatories of test reports that
reference NVLAP accreditation;
(7) The laboratory quality manual; and
(8) Other information as NVLAP may require.
Sec. 280.215 Criteria for accreditation.
(a) Scope. (1) This section sets out the general requirements in
accordance with which a laboratory has to demonstrate that it operates,
if it is to be recognized as competent to carry out specific tests.
(2) Additional requirements and information which have to be
disclosed for assessing competence or for determining compliance with
other criteria may be specified by NVLAP, depending upon the specific
character of the task of the laboratory.
(3) This section is for use by testing laboratories in the
development and implementation of their quality systems. It will also
be used by NVLAP in the determination of the competence of
laboratories.
(b) Organization and management. (1) The laboratory shall be
legally identifiable. It shall be organized and shall operate in such a
way that its permanent, temporary and mobile facilities meet the
requirements of this Subpart.
(2) The laboratory shall:
(i) Have managerial staff with the authority and resources needed
to discharge their duties;
(ii) Have policies to ensure that its personnel are free from any
commercial, financial and other pressures which might adversely affect
the quality of their work;
(iii) Be organized in such a way that confidence in its
independence of judgement and integrity is maintained at all times;
(iv) Specify and document the responsibility, authority and
interrelation of all personnel who manage, perform or verify work
affecting the quality of calibrations and tests;
(v) Provide supervision by persons familiar with the calibration or
test methods and procedures, the objective of the calibration or test
and the assessment of the results. The ratio of supervisory to non-
supervisory personnel shall be such as to ensure adequate supervision;
(vi) Have a technical manager (however named) who has overall
responsibility for the technical operations;
(vii) Have a quality manager (however named) who has responsibility
for the quality system and its implementation. The quality manager
shall have direct access to the highest level of management at which
decisions are taken on laboratory policy or resources, and to the
technical manager. In some laboratories, the quality manager may also
be the technical manager or deputy technical manager;
(viii) Nominate deputies in case of absence of the technical or
quality manager;
(ix) Have documented policy and procedures to ensure the protection
of clients' confidential information and proprietary rights;
(x) Where appropriate, participate in interlaboratory comparisons
and proficiency testing programs.
(c) Quality system, audit and review. (1) The laboratory shall
establish and maintain a quality system appropriate to the type, range
and volume of calibration and testing activities it undertakes. The
elements of this system shall be documented. The quality documentation
shall be available for use by the laboratory personnel. The laboratory
shall define and document its policies and objectives for, and its
commitment to, good laboratory practice and quality of calibration or
testing services. The laboratory management shall ensure that these
policies and objectives are documented in a quality manual and
communicated to, understood, and implemented by all laboratory
personnel concerned. The quality manual shall be maintained current
under the responsibility of the quality manager.
(2) The quality manual, and related quality documentation, shall
state the laboratory's policies and operational procedures established
in order to meet the requirements of this subpart. The quality manual
and related quality documentation shall also contain:
(i) A quality policy statement, including objectives and
commitments, by top management;
(ii) The organization and management structure of the laboratory,
its place in any parent organization and relevant organizational
charts;
(iii) The relations between management, technical operations,
support services and the quality system;
(iv) Procedures for control and maintenance of documentation;
(v) Job descriptions of key staff and reference to the job
descriptions of other staff;
(vi) Identification of the laboratory's approved signatories;
(vii) The laboratory's procedures for achieving traceability of
measurements;
(viii) The laboratory's scope of calibrations and/or tests;
(ix) Arrangements for ensuring that the laboratory reviews all new
work to
[[Page 50567]]
ensure that it has the appropriate facilities and resources before
commencing such work;
(x) Reference to the calibration, verification and/or test
procedures used;
(xi) Procedures for handling calibration and test items;
(xii) Reference to the major equipment and reference measurement
standards used;
(xiii) Reference to procedures for calibration, verification and
maintenance of equipment;
(xiv) Reference to verification practices including interlaboratory
comparisons, proficiency testing programs, use of reference materials
and internal quality control schemes;
(xv) Procedures to be followed for feedback and corrective action
whenever testing discrepancies are detected, or departures from
documented policies and procedures occur;
(xvi) The laboratory management policies for departures from
documented policies and procedures or from standard specifications;
(xvii) Procedures for dealing with complaints;
(xviii) Procedures for protecting confidentiality and proprietary
rights;
(xix) Procedures for audit and review.
(xx) Policies and procedures directly related to compliance with
this Subpart.
(3) The laboratory shall arrange for audits of its activities at
appropriate intervals to verify that its operations continue to comply
with the requirements of the quality system. Such audits shall be
carried out by trained and qualified staff who are, wherever possible,
independent of the activity to be audited. Where the audit findings
cast doubt on the correctness or validity of the laboratory's
calibration or test results, the laboratory shall take immediate
corrective action and shall immediately notify, in writing, any client
whose work may have been affected.
(4) The quality system adopted to satisfy the requirements of this
Section shall be reviewed at least once each year by the management to
ensure its continuing suitability and effectiveness and to introduce
any necessary changes or improvements.
(5) All audit and review findings and any corrective actions that
arise from them shall be documented. The person responsible for quality
shall ensure that these actions are discharged within the agreed
timescale.
(6) In addition to periodic audits the laboratory shall ensure the
quality of results provided to clients by implementing checks. These
checks shall be reviewed and shall include, as appropriate, but not be
limited to:
(i) Internal quality control schemes using whenever possible
statistical techniques;
(ii) Participation in proficiency testing or other interlaboratory
comparisons;
(iii) Regular use of certified reference materials and/or in-house
quality control using secondary reference materials;
(iv) Replicate testings using the same or different methods;
(v) Re-testing of retained items;
(vi) Correlation of results for different characteristics of an
item.
(d) Personnel. (1) The testing laboratory shall have sufficient
personnel, having the necessary education, training, technical
knowledge and experience for their assigned functions.
(2) The testing laboratory shall ensure that the training of its
personnel is kept up-to-date.
(3) Records on the relevant qualifications, training, skills and
experience of the technical personnel shall be maintained by the
laboratory.
(e) Accommodation and environment. (1) Laboratory accommodation,
calibration and test areas, energy sources, lighting, heating and
ventilation shall be such as to facilitate proper performance of
calibrations or tests.
(2) The environment in which these activities are undertaken shall
not invalidate the results or adversely affect the required accuracy of
measurement. Particular care shall be taken when such activities are
undertaken at sites other than the permanent laboratory premises.
(3) The laboratory shall provide facilities for the effective
monitoring, control and recording of environmental conditions as
appropriate. Due attention shall be paid, for example, to biological
sterility, dust, electromagnetic interference, humidity, voltage,
temperature, and sound and vibration levels, as appropriate to the
calibrations or tests concerned.
(4) There shall be effective separation between neighboring areas
when the activities therein are incompatible.
(5) Access to and use of all areas affecting the quality of these
activities shall be defined and controlled.
(6) Adequate measures shall be taken to ensure good housekeeping in
the laboratory.
(f) Equipment and reference materials. (1) The laboratory shall be
furnished with all items of equipment (including reference materials)
required for the correct performance of calibrations and tests. In
those cases where the laboratory needs to use equipment outside its
permanent control it shall ensure that the relevant requirements of
this Section are met.
(2) All equipment shall be properly maintained. Maintenance
procedures shall be documented. Any item of equipment which has been
subjected to overloading or mishandling, or which gives suspect
results, or has been shown by verification or otherwise to be
defective, shall be taken out of service, clearly identified and
wherever possible stored at a specified place until it has been
repaired and shown by calibration, verification or test to perform
satisfactorily. The laboratory shall examine the effect of this defect
on previous calibrations or tests.
(3) Each item of equipment including reference materials shall,
when appropriate, be labeled, marked or otherwise identified to
indicate its calibration status.
(4) Records shall be maintained of each item of equipment and all
reference materials significant to the calibrations or tests performed.
The records shall include:
(i) The name of the item of equipment;
(ii) The manufacturer's name, type identification, and serial
number or other unique identification;
(iii) Date received and date placed in service;
(iv) Current location, where appropriate;
(v) Condition when received (e.g. new, used, reconditioned);
(vi) Copy of the manufacturer's instructions, where available;
(vii) Dates and results of calibrations and/or verifications and
date of next calibration and/or verification;
(viii) Details of maintenance carried out to date and planned for
the future;
(ix) History of any damage, malfunction, modification or repair.
(g) Measurement traceability and calibration. (1) All measuring and
testing equipment having an effect on the accuracy or validity of
calibrations or tests shall be calibrated and/or verified before being
put into service. The laboratory shall have an established program for
the calibration and verification of its measuring and test equipment.
(2) The overall program of calibration and/or verification and
validation of equipment shall be designed and operated so as to ensure
that, wherever applicable, measurements made by the laboratory are
traceable to national standards of measurement where available.
Calibration certificates shall wherever applicable indicate the
traceability to national standards of measurement and shall provide the
[[Page 50568]]
measurement results and associated uncertainty of measurement and/or a
statement of compliance with an identified metrological specification.
(3) Where traceability to national standards of measurement is not
applicable, the laboratory shall provide satisfactory evidence of
correlation of results, for example by participation in a suitable
program of interlaboratory comparisons or proficiency testing.
(4) Reference standards of measurement held by the laboratory shall
be used for calibration only and for no other purpose, unless it can be
demonstrated that their performance as reference standards has not been
invalidated.
(5) Reference standards of measurement shall be calibrated by a
body that can provide traceability to a national standard of
measurement. There shall be a program of calibration and verification
for reference standards.
(6) Where relevant, reference standards and measuring and testing
equipment shall be subjected to in-service checks between calibrations
and verifications.
(7) Reference materials shall, where possible, be traceable to
national or international standards of measurement, or to national or
international standard reference materials.
(h) Calibration and test methods. (1) The laboratory shall have
documented instructions on the use and operation of all relevant
equipment, on the handling and preparation of items and for calibration
and/or testing, where the absence of such instructions could jeopardize
the calibrations or tests. All instructions, standards, manuals and
reference data relevant to the work of the laboratory shall be
maintained up-to-date and be readily available to the staff.
(2) The laboratory shall use appropriate methods and procedures for
all calibrations and tests and related activities within its
responsibility (including sampling, handling, transport and storage,
preparation of items, estimation of uncertainty of measurement and
analysis of calibration and/or test data). They shall be consistent
with the accuracy required, and with any standard specifications
relevant to the calibrations or tests concerned.
(3) Where methods are not specified, the laboratory shall, wherever
possible, select methods that have been published in international or
national standards, those published by reputable technical
organizations or in relevant scientific texts or journals.
(4) Where it is necessary to employ methods that have not been
established as standard, these shall be subject to agreement with the
client, be fully documented and validated, and be available to the
client and other recipients of the relevant reports.
(5) Where sampling is carried out as part of the test method, the
laboratory shall use documented procedures and appropriate statistical
techniques to select samples.
(6) Calculations and data transfers shall be subject to appropriate
checks.
(7) Where
FR Doc. 96-24105 Procedures for Implementation of the Fastener Quality Act
computers or automated equipment are used for the
capture, processing, manipulation, recording, reporting, storage or
retrieval of calibration or test data, the laboratory shall ensure
that:
(i) The requirements of this subpart are complied with;
(ii) Computer software is documented and adequate for use;
(iii) Procedures are established and implemented for protecting the
integrity of data; such procedures shall include, but not be limited
to, integrity of data entry or capture, data storage, data transmission
and data processing;
(iv) Computer and automated equipment is maintained to ensure
proper functioning and provided with the environmental and operating
conditions necessary to maintain the integrity of calibration and test
data;
(v) It establishes and implements appropriate procedures for the
maintenance of security of data including the prevention of
unauthorized access to, and the unauthorized amendment of, computer
records.
(8) Documented procedures shall exist for the purchase, reception
and storage of consumable materials used for the technical operations
of the laboratory.
(i) Handling of calibration and test items. (1) The laboratory
shall have a documented system for uniquely identifying the items to be
calibrated or tested, to ensure that there can be no confusion
regarding the identity of such items at any time.
(2) Upon receipt, the condition of the calibration or test item,
including any abnormalities or departures from standard conditions as
prescribed in the relevant calibration or test method, shall be
recorded. Where there is any doubt as to the item's suitability for
calibration or test, where the item does not conform to the description
provided, or where the calibration or test required is not fully
specified, the laboratory shall consult the client for further
instruction before proceeding. The laboratory shall establish whether
the item has received all necessary preparation, or whether the client
requires preparation to be undertaken or arranged by the laboratory.
(3) The laboratory shall have documented procedures and appropriate
facilities to avoid deterioration or damage to the calibration or test
item, during storage, handling, preparation, and calibration or test;
any relevant instructions provided with the item shall be followed.
Where items have to be stored or conditioned under specific
environmental conditions, these conditions shall be maintained,
monitored and recorded where necessary. Where a calibration or test
item or portion of an item is to be held secure (for example, for
reasons of record, safety or value, or to enable check calibrations or
tests to be performed later), the laboratory shall have storage and
security arrangements that protect the condition and integrity of the
secured items or portions concerned.
(4) The laboratory shall have documented procedures for the
receipt, retention or safe disposal of calibration or test items,
including all provisions necessary to protect the integrity of the
laboratory.
(j) Records. (1) The laboratory shall maintain a record system to
suit its particular circumstances and comply with any applicable
regulations. It shall retain on record all original observations,
calculations and derived data, calibration records and a copy of the
calibration certificate, test certificate or test report for an
appropriate period as required in Sec. 280.7. The records for each
calibration and test shall contain sufficient information to permit
their repetition. The records shall include the identity of personnel
involved in sampling, preparation, calibration or testing.
(2) All records (including those listed in Sec. 280.215(f)(4)
pertaining to calibration and test equipment), certificates and reports
shall be safely stored, held secure and in confidence to the client.
(k) Certificates and reports. (1) The results of each calibration,
test, or series of calibrations or tests carried out by the laboratory
shall be reported accurately, clearly, unambiguously and objectively,
in accordance with any instructions in the calibration or test methods.
The results should normally be reported in a calibration certificate,
test report or test certificate and should include all the information
necessary for the interpretation of the calibration or test results and
all information required by the method used.
(2) Where the certificate or report contains results of
calibrations or tests
[[Page 50569]]
performed by sub-contractors, these results shall be clearly
identified.
(3) Particular care and attention shall be paid to the arrangement
of the certificate or report, especially with regard to presentation of
the calibration or test data and ease of assimilation by the reader.
The format shall be carefully and specifically designed for each type
of calibration or test carried out, but the headings shall be
standardized as far as possible.
(4) Material amendments to a calibration certificate, test report
or test certificate after issue shall be made only in the form of a
further document, or data transfer including the statement ``Supplement
to Calibration Certificate for Test Report or Test Certificate, serial
number * * * or as otherwise identified'', or equivalent form of
wording. Such amendments shall meet all the relevant requirements of
Sec. 280.215(j).
(5) The laboratory shall notify clients promptly, in writing, of
any event such as the identification of defective measuring or test
equipment that casts doubt on the validity of results given in any
calibration certificate, test report or test certificate or amendment
to a report or certificate.
(6) The laboratory shall ensure that, where clients require
transmission of calibration or test results by telephone, telex,
facsimile or other electronic or electromagnetic means, staff will
follow documented procedures that ensure that the requirements of this
Subpart are met and that confidentiality is preserved.
(l) Subcontracting of calibration or testing. (1) Where a
laboratory sub-contracts any part of the calibration or testing, this
work shall be placed with a laboratory accredited under either subparts
C, D or E of this part for the specific tests being subcontracted. The
laboratory shall comply with Sec. 280.9, and shall advise the client in
writing of its intention to subcontract any portion of the testing to
another party.
(2) The laboratory shall record and retain details of its
investigation of the accredited status and testing competence of
subcontractors and maintain a register of all subcontracting.
(m) Outside support services and supplies. (1) Where the laboratory
procures outside services and supplies, other than those referred to
this Subpart, in support of calibrations or tests, the laboratory shall
use only those outside support services and supplies that are of
adequate quality to sustain confidence in the laboratory's calibrations
or tests.
(2) Where no independent assurance of the quality of outside
support services or supplies is available, the laboratory shall have
procedures to ensure that purchased equipment, materials and services
comply with specified requirements. The laboratory should, wherever
possible, ensure that purchased equipment and consumable materials are
not used until they have been inspected, calibrated or otherwise
verified as complying with any standard specifications relevant to the
calibrations or tests concerned.
(3) The laboratory shall maintain records of all suppliers from
whom it obtains support services or supplies required for calibrations
or tests.
(n) Complaints. (1) The laboratory shall have documented policy and
procedures for the resolution of complaints received from clients or
other parties about the laboratory's activities. A record shall be
maintained of all complaints and of the actions taken by the
laboratory.
(2) Where a complaint, or any other circumstance, raises doubt
concerning the laboratory's compliance with the laboratory's policies
or procedures, or with the requirements of this section or otherwise
concerning the quality of the laboratory's calibrations or tests, the
laboratory shall ensure that those areas of activity and responsibility
involved are promptly audited in accordance with this section.
Subpart D--NIST Approval of Private Accreditation Programs
Sec. 280.300 Introduction.
In accordance with section 6(a)(1)(B) of the Act (15 U.S.C. 5405
(a)(1)(B)), this subpart sets forth the procedures and conditions under
which private entities may apply for approval by NIST to engage
directly in the accreditation of laboratories for the testing of
fasteners under the Act.
Sec. 280.301 Application.
(a) Application must be made to NIST for approval to accredit
laboratories for fastener testing under the Act. Upon request, NIST
will provide application forms and instructions. The applicant shall
complete the application in English and may provide whatever additional
enclosures, attachments or exhibits the applicant deems appropriate.
(b) Application packages may be obtained from: Manager, FQA
Accreditation Body Evaluation Program, NIST, Bldg. 820, Room 282,
Gaithersburg, Maryland, 20899. Requests may be made by mail or by FAX
to: (301) 963-2871.
(c) The applicant shall reimburse NIST for all costs incurred in
the evaluation of its accreditation program and subsequent costs
incurred in ensuring the continued compliance of its program.
Reimbursement shall be in accordance with the fee schedule established
by NIST for this purpose.
(d) An application may be revised by an applicant at any time prior
to the final decision by NIST. An application may be withdrawn by an
applicant, without prejudice, at any time prior to the final decision
by the Director.
Sec. 280.302 Review and decision process.
(a) Applications submitted by private laboratory accreditation
bodies will be accepted by NIST and their receipt acknowledged in
writing. The applications will be reviewed by NIST against the criteria
specified in this subpart and in subpart F of this part. NIST may
request additional information as needed from the applicant.
(b) NIST shall conduct on-site assessments of the facilities of the
applicant including all of the applicant's organizational units and
locations covered by the application.
(c) If the applicant's program is deemed by NIST to have met the
requirements for approval, the applicant shall be notified by NIST in
writing. The approval notice shall include the dates when the approval
begins and the scope of the approval. The approval period shall be for
as long as the laboratory accreditation body continues to satisfy the
requirements of Sec. 280.303. As part of maintaining its approved
status, each laboratory accreditation body shall agree to be reassessed
by NIST every two years following its initial notice of approval. NIST
will maintain and make available to the public a list of approved
fastener accreditation programs.
(d) If the applicant's program does not meet the requirements for
approval, the applicant shall be notified in writing, listing the
specific requirements from this subpart and subpart F of this part
which the applicant's program has not met. After receipt of such a
notification, and within the response period provided by NIST, the
applicant may:
(1) Submit additional information for further review. Reviewing the
new submission may involve additional on-site visits by NIST personnel.
Additional fees may be required. Or,
(2) Submit a request that the original application be reconsidered,
including a statement of reasons why the application should have been
approved.
Sec. 280.303 Criteria for approval.
An applicant for NIST approval must demonstrate the ability to
operate an accreditation program consistent with the requirements of
this subpart and subparts A, B and F of this part.
[[Page 50570]]
Sec. 280.304 Maintaining approved status.
(a) Approved accreditation bodies shall continue to satisfy all the
requirements of approval during the approval period.
(b) Upon request by NIST, approved accreditation bodies shall make
available to NIST and BXA all records and materials pertaining to the
program.
(c) NIST may elect to have its representative participate as an
observer during on-site visits to testing laboratories seeking
accreditation by an approved accreditation body.
(d) Neither the accreditation body, nor any laboratory it accredits
under the Act and these regulations shall take any action which states
or implies the approval, or endorsement by NIST or any other agency of
the U.S. government of the results of tests carried out by such
laboratories. In addition, neither the accreditation body, nor any
laboratory it accredits under the Act and these regulations shall take
any action which states or implies that the accreditation body or its
accredited laboratories are recognized by NIST in any testing or other
area(s) beyond those for which NIST has approved the accreditation body
under this regulation. Approved accreditation bodies shall not engage
in misrepresentation of the scope or conditions of its approval by
NIST.
Sec. 280.305 Voluntary termination of approval.
At any time, an accreditation body may voluntarily terminate its
program's approval by giving written notice to NIST and to all
laboratories accredited by that body under its fastener laboratory
accreditation program. The written notice shall state the date on which
the termination will take effect.
Sec. 280.306 Involuntary termination of approval by NIST.
(a) NIST may terminate or suspend its approval of an accreditation
body if such an action is deemed to be in the public interest.
(b) Before terminating the approval of an accreditation body, NIST
will notify the accreditation body in writing, giving it the
opportunity to rebut or correct the stated reasons for the proposed
termination. If the problems are not corrected or reconciled within 30
days, or such longer time as NIST in its sole discretion may grant, the
termination shall become effective.
(c) An accreditation body may appeal a termination to the Director
by submitting a statement of reasons why the approval should not be
terminated. NIST may, at its discretion, hold in abeyance the
termination action pending a final decision by the Director. Within
sixty days following receipt of the appeal, the Director shall inform
the accreditation body in writing of his or her decision.
(d) Fastener testing laboratories which have been listed by NIST in
accordance with subpart B of this part, based on their accreditation by
an accreditation body whose approval has terminated, shall be removed
from the list, unless an exception is granted by NIST.
Subpart E--Recognition of Foreign Laboratories
Sec. 280.400 Introduction.
In accordance with section 6(a)(1)(C) of the Act, this subpart sets
forth the conditions under which the accreditation of foreign
laboratories by their governments, by organizations acting on behalf of
their governments, or by organizations recognized by the Director shall
be deemed to meet the requirements of the Act.
Sec. 280.401 Recognition of foreign laboratories.
Foreign entities wishing to be recognized to accredit fastener
testing laboratories must submit an application for evaluation to NIST.
NIST recognition is limited to bodies that accredit laboratories
performing tests on materials or fasteners covered by the Act. To be
recognized by NIST, accredited foreign laboratories must meet
conditions set out in subpart C of this part, and applicable laboratory
accreditation bodies must meet conditions set out in subparts D and F
of this part.
Subpart F--Requirements for Fastener Laboratory Accreditation
Bodies
Sec. 280.500 Introduction.
This subpart sets out organizational, operational and other
requirements that must be met by all accreditation bodies approved or
recognized (hereafter ``approved/recognized'') by NIST under subpart D
or E of this part. This subpart also sets out the requirements against
which an approved/recognized accreditation body assesses the technical
competence of an applicant testing laboratory. These requirements
include conditions with respect to subpart C of this part.
Sec. 280.501 Accreditation bodies.
(a) General provisions. (1) The procedures under which an approved/
recognized accreditation body operates shall be administered in a non-
discriminatory manner. Access to an accreditation system operated by an
approved/recognized accreditation body shall not be conditional upon
the size of the laboratory or membership in any association or group,
nor shall there be undue financial conditions to restrict
participation.
(2) The competence of an applicant laboratory shall be assessed by
an approved/recognized accreditation body against requirements
consistent with the conditions set out in subpart C of this part.
(3) The requirements of Sec. 280.501(a)(2) may have to be
interpreted for a specific test or type of test by an approved/
recognized accreditation body. These interpretations shall be
formulated by relevant and impartial committees or persons possessing
the necessary technical competence. They shall be published by the
accreditation body.
(4) An approved/recognized accreditation body shall require
accredited laboratories to maintain impartiality and integrity.
(5) An approved/recognized accreditation body shall confine its
requirements, assessment and decision on accreditation to those matters
specifically related to the scope of the accreditation being
considered.
(b) Organization of an approved/recognized accreditation body
(1) An approved/recognized accreditation body shall:
(i) Be a legally identifiable, public or private entity;
(ii) Have rights and responsibilities relevant to its accreditation
activities;
(iii) Have adequate arrangements to cover liabilities arising from
its operations and/or activities;
(iv) Have the financial stability and resources required for the
operation of an accreditation system;
(v) Have and make available on request a description of the means
by which it receives its financial support;
(vi) Employ a sufficient number of personnel having the necessary
education, training, technical knowledge and experience for handling
the type, range and volume of work performed, under a senior executive
who is responsible to the organization, body or board to which it
reports;
(vii) Have a quality system including an organizational structure,
that enables it to give confidence in its ability to operate a
laboratory accreditation system satisfactorily;
(viii) Have documented policies and procedures for the operation of
the quality system that include:
(A) Policies and decision-making procedures that distinguish
between laboratory accreditation and any other activities in which the
body is engaged;
(B) Policies and procedures for the resolution of complaints and
appeals
[[Page 50571]]
received from laboratories about the handling of accreditation matters,
or from users of services about accredited laboratories or any other
matters;
(ix) Together with its senior executive, and staff, be free from
any commercial, financial and other pressures which might influence the
results of the accreditation process;
(x) Have formal rules and structures for the appointment and
operation of committees involved in the accreditation process; such
committees shall be free from any commercial, financial and other
pressures that might influence decisions or shall have a structure
where members are chosen to provide impartiality through a balance of
interest where no single interest predominates;
(xi) Establish one or more technical committees, each responsible,
within its scope, for advising the accreditation body on the technical
matters relating to the operation of its accreditation system;
(xii) Not offer consultancies or other services which may
compromise the objectivity of its accreditation process and decisions;
(xiii) Have arrangements that are consistent with applicable laws,
to safeguard, at all levels of its organization (including committees),
confidentiality of the information obtained relating to applications,
assessment and accreditation of laboratories;
(2) An approved/recognized accreditation body shall have
arrangements for either controlling the ownership, use and display of
the accreditation documents or controlling the manner in which an
accredited laboratory may refer to its accredited status, or both.
(c) Quality system. (1) An approved/recognized accreditation body
shall operate a quality system appropriate to the type, range and
volume of work performed. This system shall be documented and the
documentation shall be available for use by the accreditation body
staff. The accreditation body shall designate a person having direct
access to its highest executive level, to take responsibility for the
quality system and the maintenance of the quality documentation.
(2) The quality system shall be documented in a quality manual and
associated quality procedures, and the quality manual shall contain or
refer to at least the following;
(i) A quality policy statement;
(ii) The organizational structure of the accreditation body;
(iii) The operational and functional duties and services pertaining
to quality, so that each person concerned will know the extent and the
limits of their responsibility;
(iv) Administrative procedures including document control;
(v) Policies and procedures to implement the accreditation process;
(vi) Arrangements for feedback and corrective actions whenever
discrepancies are detected;
(vii) The policy and procedures for dealing with appeals,
complaints and disputes;
(viii) The policy and procedures for conducting internal audits;
(ix) The policy and the procedures for conducting quality system
reviews;
(x) The policy and the procedures for the recruitment and training
of assessors and monitoring their performance.
(3) An approved/recognized accreditation body shall audit its
activities to verify that they comply with the requirements of the
quality system. The quality system shall also be reviewed to ensure its
continued effectiveness. Audits and reviews shall be carried out
systematically and periodically and recorded together with details of
any corrective actions taken.
(4) An approved/recognized accreditation body shall maintain
records to demonstrate that accreditation procedures have been
effectively fulfilled, particularly with respect to application forms,
assessment reports, and reports relating to granting, maintaining,
extending, suspending or withdrawing accreditation. These accreditation
documents shall form part of the record.
(5) An approved/recognized accreditation body shall have a policy
and procedures for retaining records. The records shall be retained for
a period of at least 5 years, and shall be available to NIST personnel
and other persons considered by the accreditation body to have a right
of access to these records.
(d) Granting, maintaining, extending, suspending, and withdrawing
accreditation. (1) An approved/recognized accreditation body shall
specify the conditions for granting, maintaining and extending
accreditation and the conditions under which accreditation may be
suspended or withdrawn, partially or in total for all or part of the
laboratory's scope of accreditation.
(2) An approved/recognized accreditation body shall have
arrangements to grant, maintain, suspend or withdraw accreditation,
increase or reduce the scope of accreditation or require reassessment,
in the event of changes affecting the laboratory's activity and
operation, such as changes in personnel or equipment, or if analysis of
a complaint or any other information indicates that the laboratory no
longer complies with the requirements of the accreditation body.
(3) An approved/recognized accreditation body shall have
arrangements relating to the transfer of accreditation when the legal
status (e.g. ownership) of the accredited laboratory changes.
(e) Documentation. An approved/recognized accreditation body shall
provide (through publications, electronic media or other means), update
at adequate intervals, and make available on request:
(1) Information about the authority under which accreditation
systems operated by the accreditation body were established and
specifying whether they are mandatory or voluntary;
(2) A document containing its requirements for accreditation in
accordance with this document;
(3) A document stating the arrangements for granting, maintaining,
extending, suspending and withdrawing accreditation;
(4) Information about the assessment and accreditation process;
(5) General information on the fees charged to applicant and
accredited laboratories;
(6) A description of the rights and duties of accredited
laboratories as specified in Sec. 280.504 of this part, including
requirements, restrictions or limitations on the use of the accrediting
body's logo and on the ways of referring to the accreditation granted.
Sec. 280.502 Laboratory assessors.
(a) Requirements for assessors. The assessor or assessment team
appointed to assess a laboratory shall:
(1) Be familiar with the relevant legal regulations, accreditation
procedures and accreditation requirements;
(2) Have a thorough knowledge of the relevant assessment method and
assessment documents;
(3) Have appropriate technical knowledge of the specific tests or
types of tests for which accreditation is sought and, where relevant,
with the associated sampling procedures;
(4) Be able to communicate effectively, both in writing and orally;
(5) Be free of any commercial, financial or other pressures or
conflicts of interest that might cause assessor(s) to act in other than
an impartial or non-discriminatory manner;
(6) Not have offered consultancies to laboratories which might
compromise their impartiality in the accreditation process and
decisions.
(b) Qualification procedures for assessors. An approved/recognized
[[Page 50572]]
accreditation body shall have an adequate procedure for:
(1) Qualifying assessors, comprising an assessment of their
competence and training, and attendance at one or more actual
assessments with a qualified assessor, and
(2) Monitoring the performance of assessors.
(c) Contracting of assessors. An approved/recognized accreditation
body shall require the assessors to sign a contract or other document
by which they commit themselves to comply with the rules defined by the
accreditation body, including those relating to confidentiality and
those relating to independence from commercial and other interests, and
any prior association with laboratories to be assessed.
(d) Assessor records. An approved/recognized accreditation body
shall possess and maintain up-to-date records on assessors consisting
of:
(1) Name and address;
(2) Organization affiliation and position held;
(3) Educational qualification and professional status;
(4) Work experience;
(5) Training in quality assurance, assessment and calibration and
testing;
(6) Experience in laboratory assessment, together with field of
competence;
(7) Date of most recent updating of record.
(e) Procedures for assessors. Assessors shall be provided with an
up-to-date set of procedures giving assessment instructions and all
relevant information on accreditation arrangements.
Sec. 280.503 Accreditation process.
(a) Application for accreditation. (1) A detailed description of
the assessment and accreditation procedure, the documents containing
the requirements for accreditation and documents describing the rights
and duties of accredited laboratories (including fees to be paid by
applicant and accredited laboratories) shall be maintained up-to-date
and given to applicant laboratories.
(2) Additional relevant information shall be provided to applicant
laboratories on request.
(3) A duly authorized representative of the applicant laboratory
shall be required to sign an official application form, in which or
attached to which
(i) The scope of the desired accreditation is clearly defined;
(ii) The applicant's representative agrees to fulfill the
accreditation procedure, especially to receive the assessment team, to
pay the fees charged to the applicant laboratory whatever the result of
the assessment may be, and to accept the charges of subsequent
maintenance of the accreditation of the laboratory;
(iii) the applicant agrees to comply with the requirements for
accreditation and to supply any information needed for the evaluation
of the laboratory.
(4)(i) The following minimum information shall be provided by the
applicant laboratory prior to the on-site assessment:
(A) The general features of the applicant laboratory (corporate
entity: Name, address, legal status, human and technical resources);
(B) General information concerning the laboratory covered by the
application, such as primary function, relationship in a larger
corporate entity and, If applicable, physical location of laboratories
involved;
(C) A definition of the materials or products tested, the methods
used and the tests performed;
(D) A copy of the laboratory's quality manual and, where required,
the associated documentation.
(ii) The information gathered shall be used for the preparation of
on-site assessment and shall be treated with appropriate
confidentiality.
(b) Assessment. (1) An approved/recognized accreditation body shall
appoint qualified assessor(s) to evaluate all material collected from
the applicant and to conduct the assessment on its behalf at the
laboratory and any other sites where activities to be covered by the
accreditation are performed.
(2) To ensure that a comprehensive and correct assessment is
carried out, each assessor shall be provided with the appropriate
working documents.
(3) The date of assessment shall be mutually agreed with the
applicant laboratory. The latter shall be informed of the name(s) of
the qualified assessor(s) nominated to carry out the assessment, with
sufficient notice so that the laboratory is given an opportunity to
appeal against the appointment of any particular assessor.
(4) The assessor(s) shall be formally appointed. A lead assessor
shall be appointed, if relevant. The mandate given to the assessor(s)
shall be clearly defined and made known to the applicant laboratory.
(c) Sub-contracting of assessment. (1) If an approved/recognized
accreditation body decides to delegate fully or partially the
assessment of a laboratory to another body, then the accreditation body
shall take full responsibility for such an assessment made on its
behalf.
(2) An approved/recognized accreditation body shall ensure that the
party to which assessment has been delegated is approved/recognized by
NIST.
(d) Assessment report. (1) An approved/recognized accreditation
body may adopt reporting procedures that suit its needs but as a
minimum these procedures shall ensure that:
(i) A meeting takes place between the assessor or assessment team
and the laboratory management prior to leaving the laboratory at which
the assessment team provides a written or oral report on the compliance
of the applicant laboratory with the accreditation requirements;
(ii) The assessor or assessment team provides the accreditation
body with a detailed assessment report containing all relevant
information concerning the ability of the applicant laboratory to
comply with all of the accreditation requirements, including any which
may come about from the results of proficiency testing;
(iii) A report on the outcome of the assessment is promptly brought
to the applicant laboratory's notice by the accreditation body,
identifying any non-compliances that have to be discharged in order to
comply with all of the accreditation requirements. The laboratory shall
be invited to present its comments on this report and to describe the
specific actions taken, or planned to be taken within a defined time,
to remedy any non-compliances with the accreditation requirements
identified during the assessment.
(2) The final report authorized by an approved/recognized
accreditation body and submitted to the laboratory, if it is different,
shall include as a minimum:
(i) Date(s) of assessment(s);
(ii) The names of the person(s) responsible for the report;
(iii) The names and addresses of all the laboratory sites assessed;
(iv) The assessed scope of accreditation or reference thereto;
(v) comments of the assessor(s) or assessment team on the
compliance of the applicant laboratory with the accreditation
requirements.
(3) The reports shall take into consideration:
(i) The technical qualification, experience and authority of the
staff encountered, especially the persons responsible for the technical
validity of test reports or test certificates;
(ii) The adequacy of the internal organization and procedures
adopted by the applicant laboratory to give confidence in the quality
of its services, the physical facilities, i.e., the environment and the
calibration/test equipment of the laboratory including maintenance and
calibration having
[[Page 50573]]
regard to the volume of work undertaken;
(iii) Proficiency testing or other interlaboratory comparison
performed by the applicant laboratory, the results of this proficiency
testing, and the use of these results by the laboratory;
(iv) The actions taken to correct any non-compliances identified at
previous assessments.
(e) Decision on accreditation. (1) The decision whether or not to
accredit a laboratory shall be taken by an approved/recognized
accreditation body on the basis of the information gathered during the
accreditation process.
(2) An approved/recognized accreditation body shall not delegate
its responsibility for granting, maintaining, extending, suspending or
withdrawing accreditation.
(f) Granting accreditation. (1) An approved/recognized
accreditation body shall transmit to each accredited laboratory formal
accreditation documents such as a letter or a certificate signed by an
officer who has been assigned such responsibility. These formal
accreditation documents shall permit identification of--
(i) The name and address of the laboratory that has been
accredited;
(ii) The scope of the accreditation including:
(A) The tests or types of test for which accreditation has been
granted;
(B) For tests, the materials or products tested, the methods used
and the tests performed;
(C) For specific tests for which accreditation has been granted the
methods used defined by written standards or reference documents that
have been accepted by the accreditation body.
(iii) Where appropriate, the persons recognized by the
accreditation body as being responsible for the test certificates or
the test reports;
(iv) The term of accreditation which shall be valid for a period
not to exceed three years;
(v) The accredited laboratory by a unique number.
(2) An approved/recognized accreditation body shall furnish
notification to NIST required by Subpart B of this part.
(g) Surveillance and reassessment of accredited laboratories. (1)
An approved/recognized accreditation body shall have an established
documented program consistent with the accreditation granted for
carrying out periodic surveillance and reassessment at sufficiently
close intervals to ensure that its accredited laboratories continue to
comply with the accreditation requirements.
(2) Surveillance and reassessment procedures shall be consistent
with those concerning the assessment of laboratories as described in
this Subpart.
(h) Proficiency testing. (1) The approved/recognized accreditation
body shall require each fastener testing laboratory it accredits, and
each laboratory which has applied to it for accreditation to
participate in proficiency testing comparable to that conducted under
Subpart C of this part by NVLAP.
(2) Although an accreditation shall not be granted or maintained
only on the basis of the results of proficiency testing, accreditation
shall not be granted or maintained if required proficiency testing
participation is unsatisfactory.
(i) Certificates or reports issued by accredited laboratories. (1)
An approved/recognized accreditation body shall normally allow an
accredited laboratory to refer to its accreditation in test reports and
test certificates that contain only the results of tests or types of
test for which accreditation is held.
(2) An approved/recognized accreditation body shall have a policy
that defines the circumstances in which accredited laboratories are
permitted to include in test reports or test certificates, the results
of tests for which accreditation is not held and the results of sub-
contracted tests.
Sec. 280.504 Relationship between approved/recognized accreditation
body and laboratory.
(a) An approved/recognized accreditation body shall have
arrangements to ensure that the laboratory and its representatives
afford such accommodation and co-operation as is necessary, to enable
the accreditation body to verify compliance with the requirements for
accreditation. These arrangements shall include provision for
examination of documentation and access to all testing areas, records
and personnel for the purposes of assessment, surveillance,
reassessment and resolution of complaints.
(b) An approved/recognized accreditation body shall require that an
accredited laboratory--
(1) At all times complies with the relevant provisions of these
regulations;
(2) Claims that it is accredited only in respect of services for
which it has been granted accreditation and which are carried out in
accordance with these conditions;
(3) Pays such fees as shall be determined by the accreditation
body;
(4) Does not use its accreditation in such a manner as to bring the
accreditation body into disrepute and does not make any statement
relevant to its accreditation which the accreditation body may consider
misleading or unauthorized;
(5) Upon suspension or withdrawal of its accreditation (however
determined) forthwith discontinues its use of all advertising matter
that contains any reference thereto and return any certificates of
accreditation to the accreditation body;
(6) Does not use its accreditation to state or imply any product
approval by the accreditation body or any agency of the United States
Government;
(7) Endeavors to ensure that no certificate or report nor any part
thereof is used in a misleading manner;
(8) In making reference to its accreditation status in
communication media such as advertising, brochures or other documents,
complies with the requirements of the accreditation body.
(c) Notification of change. (1) An approved/recognized
accreditation body shall have arrangements to ensure that an accredited
laboratory informs it without delay of changes in any aspect of the
laboratory's status or operation that affects the laboratory's:
(i) Legal, commercial or organizational status;
(ii) Organization and management, e.g., key managerial staff;
(iii) Policies or procedures, where appropriate;
(iv) Premises;
(v) Personnel, equipment, facilities, working environment or other
resources, where significant;
(vi) Authorized signatories;
(vii) Or other such matters that may affect the laboratory's
capability, or scope of accredited activities, or compliance with the
requirements in this document or any other relevant criteria of
competence specified by the accreditation body.
(2) Upon receipt of due notice of any intended changes relating to
the requirements of this document, the relevant criteria of competence
and any other requirements prescribed by the accreditation body, the
accreditation body shall ensure that the laboratory carries out the
necessary adjustments to its procedures within such time, as in the
opinion of the body is reasonable. The laboratory shall notify the body
when such adjustments have been made.
(d) Directory of accredited laboratories. An approved/recognized
accreditation body shall produce periodically but at least annually a
[[Page 50574]]
directory of accredited laboratories describing the accreditation
granted.
Subpart G--Enforcement
Sec. 280.600 Scope.
Section 280.601 of this part lists definitions used in this part.
Section 280.602 of this part specifies that failure to take any action
required by or taking any action prohibited by this part constitutes a
violation of this part. Section 280.603 describes the penalties that
may be imposed for violations of this part. Sections 280.605 through
280.623 establish the procedures for imposing administrative penalties
for violations of this part.
Sec. 280.601 Definitions used in this subpart.
The definitions in this Sec. 280.601 apply to this part.
Administrative law judge (ALJ). The person authorized to conduct
hearings in administrative enforcement proceedings brought under the
Act.
Assistant Secretary. The Assistant Secretary for Export
Enforcement, Bureau of Export Administration.
Department. The United States Department of Commerce, specifically,
the Bureau of Export Administration, NIST and the Patent and Trademark
Office.
Final decision. A decision or order assessing a civil penalty or
otherwise disposing of or dismissing a case, which is not subject to
further review under this part, but which is subject to collection
proceedings or judicial review in an appropriate Federal district court
as authorized by law.
Initial decision. A decision of the administrative law judge which
is subject to review by the Under Secretary for Export Administration,
but which becomes the final decision of the Department in the absence
of such an appeal.
Party. The Department and any person named as a respondent under
this part.
Respondent. Any person named as the subject of a charging letter,
proposed charging letter, or other order proposed or issued under this
part.
Under Secretary. The Under Secretary for Export Administration,
United States Department of Commerce.
Sec. 280.602 Violations.
(a) Engaging in prohibited conduct. No person may engage in any
conduct prohibited by or contrary to, or refrain from engaging in any
action required by the Act, this part, or any order issued thereunder.
(b) Causing, aiding, or abetting a violation. No person may cause
or aid, abet, counsel, command, induce, procure, or permit the doing of
any act prohibited, or the omission of any act required, by the Act,
this part, or any order issued thereunder.
(c) Solicitation and attempt. No person may solicit or attempt a
violation of the Act, this part, or any order issued thereunder.
(d) Conspiracy. No person may conspire or act in concert with one
or more persons in any manner or for any purpose to bring about or to
do any act that constitutes a violation of the Act, this part, or any
order issued thereunder.
(e) Misrepresentation and concealment of facts. No person may make
any false or misleading representation, statement, or certification, or
falsify or conceal any material fact, either directly to NIST, or the
Bureau of Export Administration, the Patent and Trademark Office, or
any official of any other United States agency, or indirectly through
any other person:
(1) In the course of an investigation or other action subject to
the Act and this part; or
(2) In connection with the preparation, submission, issuance, use,
maintenance of a laboratory test report, certificate of conformance as
described in Secs. 280.5 and 280.6 of this part; or
(3) In connection with any application for laboratory accreditation
as described in Sec. 280.205 of this part; or
(4) In connection with an application to be an accreditation body
as described in Sec. 280.301 of this part.
(f) Falsification of test report. No person shall falsify or make
any false or misleading statement on or in connection with a laboratory
test report required by section 5(c) of the Act or Sec. 280.6 of this
part.
(g) Falsification of certificate of conformance. No person shall
falsify or make any false or misleading statement on or in connection
with a certificate of conformance required by Sec. 280.5 of this part.
(h) Falsification of documents relating to laboratory accreditation
or accreditation bodies. No person shall falsify or make any false or
misleading statement on or in connection with any document relating to
laboratory accreditation or approval or recognition of accreditation
bodies as required by sections 6(a) or 6(b) of the Act or this part.
(i) Use of another person's recorded insignia. No person may apply
an insignia to a fastener if the Commissioner has issued a certificate
of recordal (as described in Sec. 280.712 of this part) for that
insignia to another person without written permission from the person
to whom the certificate was issued.
(j) False claim of laboratory accreditation or accreditation body.
No person shall falsely claim to be an accredited laboratory or
approved or recognized accreditation body as described in section 6 of
the Act or subparts B, C, D, and E of this part.
Sec. 280.603 Penalties, remedies and sanctions.
(a) Civil remedies. The Attorney General may bring an action in an
appropriate United States district court for declaratory and injunctive
relief against any person who violates the Act or any regulation issued
thereunder. Such action may not be brought more than 10 years after the
cause of action accrues.
(b) Civil penalties. Any person who is determined, after notice and
opportunity for a hearing, to have violated the Act or any regulation
issued thereunder shall be liable to the United States for a civil
penalty of not more than $25,000 for each violation.
(c) Criminal penalties. (1) Whoever knowingly certifies, marks,
offers for sale, or sells a fastener in violation of the Act or a
regulation issued thereunder shall be fined under title 18, United
States Code, or imprisoned not more than 5 years, or both.
(2) Whoever intentionally fails to maintain records relating to a
fastener in violation of the Act or a regulation issued thereunder
shall be fined under title 18, United States Code, or imprisoned not
more than five years or both.
(3) Whoever negligently fails to maintain records relating to a
fastener in violation of the Act or a regulation issued thereunder
shall be fined under title 18, United States Code, or imprisoned not
more than two years or both.
Sec. 280.604 Administrative enforcement proceedings.
Sections 280.605 through 280.623 set forth the procedures for
imposing administrative penalties for violations of the Act and
Fastener Quality Regulations (FQR).
Sec. 280.605 Institution of administrative enforcement proceedings.
(a) Charging letters. The Director of the Office of Export
Enforcement (OEE) may begin administrative enforcement proceedings
under this part by issuing a charging letter. The charging letter shall
constitute the formal complaint and will state that there is reason to
believe that a violation of this part has occurred. It will set forth
the essential
[[Page 50575]]
facts about each alleged violation, refer to the specific regulatory or
other provisions involved, and give notice of the sanctions available
under the Act and this part. The charging letter will inform the
respondent that failure to answer the charges as provided in
Sec. 280.608 of this part will be treated as a default under
Sec. 280.609 of this part, that the respondent is entitled to a hearing
if a written demand for one is requested with the answer, and that the
respondent may be represented by counsel, or by other authorized
representative. A copy of the charging letter shall be filed with the
administrative law judge, which filing shall toll the running of the
applicable statute of limitations. Charging letters may be amended or
supplemented at any time before an answer is filed, or, with permission
of the administrative law judge, afterwards. The Department may
unilaterally withdraw charging letters at any time, by notifying the
respondent and the administrative law judge.
(b) Notice of issuance of charging letter instituting
administrative enforcement proceeding. A respondent shall be notified
of the issuance of a charging letter, or any amendment or supplement
thereto:
(1) By mailing a copy by registered or certified mail addressed to
the respondent at the respondent's last known address;
(2) By leaving a copy with the respondent or with an officer, a
managing or general agent, or any other agent authorized by appointment
or by law to receive service of process for the respondent; or
(3) By leaving a copy with a person of suitable age and discretion
who resides at the respondent's last known dwelling.
(4) Delivery of a copy of the charging letter, if made in the
manner described in paragraph (b)(2) or (3) of this section, shall be
evidenced by a certificate of service signed by the person making such
service, stating the method of service and the identity of the person
with whom the charging letter was left. The certificate of service
shall be filed with the administrative law judge.
(c) Date. The date of service of notice of the issuance of a
charging letter instituting an administrative enforcement proceeding,
or service of notice of the issuance of a supplement or amendment to a
charging letter, is the date of its delivery, or of its attempted
delivery if delivery is refused.
Sec. 280.606 Representation.
A respondent individual may appear and participate in person, a
corporation by a duly authorized officer or employee, and a partnership
by a partner. If a respondent is represented by counsel, counsel shall
be a member in good standing of the bar of any State, Commonwealth or
Territory of the United States, or of the District of Columbia, or be
licensed to practice law in the country in which counsel resides if not
the United States. A respondent personally, or through counsel or other
representative who has the power of attorney to represent the
respondent, shall file a notice of appearance with the administrative
law judge. The Department will be represented by the Office of Chief
Counsel for Export Administration, U.S. Department of Commerce.
Sec. 280.607 Filing and service of papers other than charging letter.
(a) Filing. All papers to be filed shall be addressed to ``FQA
Administrative Enforcement Proceedings,'' at the address set forth in
the charging letter, or such other place as the administrative law
judge may designate. Filing by United States mail, first class postage
prepaid, by express or equivalent parcel delivery service, or by hand
delivery, is acceptable. Filing by mail from a foreign country shall be
by airmail. In addition, the administrative law judge may authorize
filing of papers by facsimile or other electronic means, provided that
a hard copy of any such paper is subsequently filed. A copy of each
paper filed shall be simultaneously served on each party.
(b) Service. Service shall be made by personal delivery or by
mailing one copy of each paper to each party in the proceeding. Service
by delivery service or facsimile, in the manner set forth in paragraph
(a) of this section, is acceptable. Service on the Department shall be
addressed to the Chief Counsel for Export Administration, Room H-3839,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC. 20230. Service on a respondent shall be to the address
to which the charging letter was sent or to such other address as
respondent may provide. When a party has appeared by counsel or other
representative, service on counsel or other representative shall
constitute service on that party.
(c) Date. The date of filing or service is the day when the papers
are deposited in the mail or are delivered in person, by delivery
service, or by facsimile.
(d) Certificate of service. A certificate of service signed by the
party making service, stating the date and manner of service, shall
accompany every paper, other than the charging letter, filed and served
on parties.
(e) Computing period of time. In computing any period of time
prescribed or allowed by this part or by order of the administrative
law judge or the Under Secretary, the day of the act, event, or default
from which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included
unless it is a Saturday, a Sunday, or a legal holiday (as defined in
Rule 6(a) of the Federal Rules of Civil Procedure), in which case the
period runs until the end of the next day which is neither a Saturday,
a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and
legal holidays are excluded from the computation when the period of
time prescribed or allowed is seven days or less.
Sec. 280.608 Answer and demand for hearing.
(a) When to answer. The respondent must answer the charging letter
within 30 days after being served with notice of the issuance of a
charging letter instituting an administrative enforcement proceeding,
or within 30 days of notice of any supplement or amendment to a
charging letter, unless time is extended under Sec. 280.618 of this
part.
(b) Contents of answer. The answer must be responsive to the
charging letter and must fully set forth the nature of the respondent's
defense or defenses. The answer must admit or deny specifically each
separate allegation of the charging letter; if the respondent is
without knowledge, the answer must so state and will operate as a
denial. Failure to deny or controvert a particular allegation will be
deemed an admission of that allegation. The answer must also set forth
any additional or new matter the respondent believes supports a defense
or claim of mitigation. Any defense or partial defense not specifically
set forth in the answer shall be deemed waived, and evidence thereon
may be refused, except for good cause shown.
(c) Demand for hearing. If the respondent desires a hearing, a
written demand for one must be submitted with the answer. Any demand by
the Department for a hearing must be filed with the administrative law
judge within 30 days after service of the answer. Failure to make a
timely written demand for a hearing shall be deemed a waiver of the
party's right to a hearing, except for good cause shown. If no party
demands a hearing, the matter will go forward in accordance with the
procedures set forth in Sec. 280.617 of this part.
[[Page 50576]]
(d) English language required. The answer, all other papers, and
all documentary evidence must be submitted in English, or translations
into English must be filed and served at the same time.
Sec. 280.609 Default.
(a) General. Failure of the respondent to file an answer within the
time provided constitutes a waiver of the respondent's right to appear
and contest the allegations in the charging letter. In such event, the
administrative law judge, on the Department's motion and without
further notice to the respondent, shall find the facts to be as alleged
in the charging letter and render an initial decision containing
findings of fact and appropriate conclusions of law and issue an
initial decision and order imposing appropriate sanctions. The decision
and order may be appealed to the Under Secretary in accordance with the
applicable procedures set forth in Sec. 280.623 of this part.
(b) Petition to set aside default.--(1) Procedure. Upon petition
filed by a respondent against whom a default order has been issued,
which petition is accompanied by an answer meeting the requirements of
280.608(b) of this part, the Under Secretary may, after giving all
parties an opportunity to comment, and for good cause shown, set aside
the default and vacate the order entered thereon and remand the matter
to the administrative law judge for further proceedings.
(2) Time limits. A petition under this section must be made within
one year of the date of entry of the order which the petition seeks to
have vacated.
Sec. 280.610 Summary decision.
At any time after a proceeding has been initiated, a party may move
for a summary decision disposing of some or all of the issues. The
administrative law judge may render an initial decision and issue an
order if the entire record shows, as to the issue(s) under
consideration:
(a) That there is no genuine issue as to any material fact; and
(b) That the moving party is entitled to a summary decision as a
matter of law.
Sec. 280.611 Discovery.
(a) General. The parties are encouraged to engage in voluntary
discovery regarding any matter, not privileged, which is relevant to
the subject matter of the pending proceeding. The provisions of the
Federal Rules of Civil Procedure relating to discovery apply to the
extent consistent with this part and except as otherwise provided by
the administrative law judge or by waiver or agreement of the parties.
The administrative law judge may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense. These orders may include limitations on the
scope, method, time and place of discovery, and provisions for
protecting the confidentiality of classified or otherwise sensitive
information.
(b) Interrogatories and requests for admission or production of
documents. A party may serve on any party interrogatories, requests for
admission, or requests for production of documents for inspection and
copying, and a party concerned may apply to the administrative law
judge for such enforcement or protective order as that party deems
warranted with respect to such discovery. The service of a discovery
request shall be made at least 20 days before the scheduled date of the
hearing unless the administrative law judge specifies a shorter time
period. Copies of interrogatories, requests for admission and requests
for production of documents and responses thereto shall be served on
all parties, and a copy of the certificate of service shall be filed
with the administrative law judge. Matters of fact or law of which
admission is requested shall be deemed admitted unless, within a period
designated in the request (at least 10 days after service, or within
such additional time as the administrative law judge may allow), the
party to whom the request is directed serves upon the requesting party
a sworn statement either denying specifically the matters of which
admission is requested or setting forth in detail the reasons why the
party to whom the request is directed cannot truthfully either admit or
deny such matters.
(c) Depositions. Upon application of a party and for good cause
shown, the administrative law judge may order the taking of the
testimony of any person by deposition and the production of specified
documents or materials by the person at the deposition. The application
shall state the purpose of the deposition and set forth the facts
sought to be established through the deposition.
(d) Enforcement. The administrative law judge may order a party to
answer designated questions, to produce specified documents or things
or to take any other action in response to a proper discovery request.
If a party does not comply with such an order, the administrative law
judge may make a determination or enter any order in the proceeding as
the ALJ deems reasonable and appropriate. The ALJ may strike related
charges or defenses in whole or in part or may take particular facts
relating to the discovery request to which the party failed or refused
to respond as being established for purposes of the proceeding in
accordance with the contentions of the party seeking discovery. In
addition, enforcement by a district court of the United States may be
sought under section 9(b)(6) of the Act.
Sec. 280.612 Subpoenas.
(a) Issuance. Upon the application of any party, supported by a
satisfactory showing that there is substantial reason to believe that
the evidence would not otherwise be available, the administrative law
judge may issue subpoenas requiring the attendance and testimony of
witnesses and the production of such books, records or other
documentary or physical evidence for the purpose of the hearing, as the
ALJ deems relevant and material to the proceedings, and reasonable in
scope. Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In case of
contempt or refusal to obey a subpoena served upon any person pursuant
to this paragraph, the district court of the United States for any
district in which such person is found, resides, or transacts business,
upon application by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person to
appear and give testimony before the administrative law judge or to
appear and produce documents before the administrative law judge, or
both, and any failure to obey such order of the court may be punished
by such court as contempt thereof.
(b) Service. Subpoenas issued by the administrative law judge may
be served in any of the methods set forth in Sec. 280.607(b) of this
part.
(c) Timing. Applications for subpoenas must be submitted at least
10 days before the scheduled hearing or deposition, unless the
administrative law judge determines, for good cause shown, that
extraordinary circumstances warrant a shorter time.
Sec. 280.613 Matter protected against disclosure.
(a) Protective measures. The administrative law judge may limit
discovery or introduction of evidence or issue such protective or other
orders as in the ALJ's judgment may be needed to prevent undue
disclosure of classified or sensitive documents or information.
[[Page 50577]]
Where the administrative law judge determines that documents containing
the classified or sensitive matter need to be made available to a party
to avoid prejudice, the ALJ may direct that an unclassified and/or
nonsensitive summary or extract of the documents be prepared. The
administrative law judge may compare the extract or summary with the
original to ensure that it is supported by the source document and that
it omits only so much as must remain undisclosed. The summary or
extract may be admitted as evidence in the record.
(b) Arrangements for access. If the administrative law judge
determines that this procedure is unsatisfactory and that classified or
otherwise sensitive matter must form part of the record in order to
avoid prejudice to a party, the administrative law judge may provide
the parties an opportunity to make arrangements that permit a party or
a representative to have access to such matter without compromising
sensitive information. Such arrangements may include obtaining security
clearances or giving counsel for a party access to sensitive
information and documents subject to assurances against further
disclosure, including a protective order, if necessary.
Sec. 280.614 Prehearing conference.
(a) The administrative law judge, on his or her own motion or on
request of a party, may direct the parties to participate in a
prehearing conference, either in person or by telephone, to consider:
(1) Simplification of issues;
(2) The necessity or desirability of amendments to pleadings;
(3) Obtaining stipulations of fact and of documents to avoid
unnecessary proof; or
(4) Such other matters as may expedite the disposition of the
proceedings.
(b) The administrative law judge may order the conference
proceedings to be recorded electronically or taken by a reporter,
transcribed and filed with the ALJ.
(c) If a prehearing conference is impracticable, the administrative
law judge may direct the parties to correspond with the ALJ to achieve
the purposes of such a conference.
(d) The administrative law judge will prepare a summary of any
actions agreed on or taken pursuant to this section. The summary will
include any written stipulations or agreements made by the parties.
Sec. 280.615 Hearings.
(a) Scheduling. The administrative law judge, by agreement with the
parties or upon notice to all parties of not less than 30 days, will
schedule a hearing. All hearings will be held in Washington, DC.,
unless the administrative law judge determines, for good cause shown,
that another location would better serve the interests of justice.
(b) Hearing procedure. Hearings will be conducted in a fair and
impartial manner by the administrative law judge, who may limit
attendance at any hearing or portion thereof to the parties, their
representatives and witnesses if the administrative law judge deems
this necessary or advisable in order to protect sensitive matter (see
Sec. 280.613 of this part) from improper disclosure. The rules of
evidence prevailing in courts of law do not apply, and all evidentiary
material deemed by the administrative law judge to be relevant and
material to the proceeding and not unduly repetitious will be received
and given appropriate weight.
(c) Testimony and record. Witnesses will testify under oath or
affirmation. A verbatim record of the hearing and of any other oral
proceedings will be taken by reporter or by electronic recording,
transcribed and filed with the administrative law judge. A respondent
may examine the transcript and may obtain a copy by paying any
applicable costs. Upon such terms as the administrative law judge deems
just, the ALJ may direct that the testimony of any person be taken by
deposition and may admit an affidavit or declaration as evidence,
provided that any affidavits or declarations have been filed and served
on the parties sufficiently in advance of the hearing to permit a party
to file and serve an objection thereto on the grounds that it is
necessary that the affiant or declarant testify at the hearing and be
subject to cross-examination.
(d) Failure to appear. If a party fails to appear in person or by
counsel at a scheduled hearing, the hearing may nevertheless proceed,
and that party's failure to appear will not affect the validity of the
hearing or any proceedings or action taken thereafter.
Sec. 280.616 Interlocutory review of rulings.
(a) At the request of a party, or on the administrative law judge's
own initiative, the administrative law judge may certify to the Under
Secretary for review a ruling that does not finally dispose of a
proceeding, if the administrative law judge determines that immediate
review may hasten or facilitate the final disposition of the matter.
(b) Upon certification to the Under Secretary of the interlocutory
ruling for review, the parties will have 10 days to file and serve
briefs stating their positions, and five days to file and serve
replies, following which the Under Secretary will decide the matter
promptly.
Sec. 280.617 Proceeding without a hearing.
If the parties have waived a hearing, the case will be decided on
the record by the administrative law judge. Proceeding without a
hearing does not relieve the parties from the necessity of proving the
facts supporting their charges or defenses. Affidavits or declarations,
depositions, admissions, answers to interrogatories and stipulations
may supplement other documentary evidence in the record. The
administrative law judge will give each party reasonable opportunity to
file rebuttal evidence.
Sec. 280.618 Procedural stipulations; extension of time.
(a) Procedural stipulations. Unless otherwise ordered, a written
stipulation agreed to by all parties and filed with the administrative
law judge will modify any procedures established by this part.
(b) Extension of time. (1) The parties may extend any applicable
time limitation, by stipulation filed with the administrative law judge
before the time limitation expires.
(2) The administrative law judge may, on the judge's own initiative
or upon application by any party, either before or after the expiration
of any applicable time limitation, extend the time within which to file
and serve an answer to a charging letter or do any other act required
by this part.
Sec. 280.619 Decision of the administrative law judge.
(a) Predecisional matters. Except for default proceedings under
Sec. 280.609 of this part, the administrative law judge will give the
parties reasonable opportunity to submit the following, which will be
made a part of the record:
(1) Exceptions to any ruling by the judge or to the admissibility
of evidence proffered at the hearing;
(2) Proposed findings of fact and conclusions of law;
(3) Supporting legal arguments for the exceptions and proposed
findings and conclusions submitted; and
(4) A proposed order.
(b) Decision and order. After considering the entire record in the
proceeding, the administrative law judge will issue a written initial
decision. The decision will include
[[Page 50578]]
findings of fact, conclusions of law, and findings as to whether there
has been a violation of the Act, this part, or any order issued
thereunder. If the administrative law judge finds that the evidence of
record is insufficient to sustain a finding that a violation has
occurred with respect to one or more charges, the ALJ shall order
dismissal of the charges in whole or in part, as appropriate. If the
administrative law judge finds that one or more violations have been
committed, the ALJ may issue an order imposing administrative
sanctions, as provided in this part. The decision and order shall be
served on each party, and shall become effective as the final decision
of the Department 30 days after service, unless an appeal is filed in
accordance with Sec. 280.623 of this part. In determining the amount of
any civil penalty the ALJ shall consider the nature, circumstances and
gravity of the violation and, with respect to the person found to have
committed the violation, the degree of culpability, any history of
prior violations, the effect on ability to continue to do business, any
good faith attempt to achieve compliance, ability to pay the penalty,
and such other matters as justice may require.
(c) Suspension of sanctions. Any order imposing administrative
sanctions may provide for the suspension of the sanction imposed, in
whole or in part and on such terms of probation or other conditions as
the administrative law judge or the Under Secretary may specify. Any
suspension order may be modified or revoked by the signing official
upon application by the Department showing a violation of the
probationary terms or other conditions, after service on the respondent
of notice of the application in accordance with the service provisions
of Sec. 280.607 of this part, and with such opportunity for response as
the responsible signing official in his/her discretion may allow. A
copy of any order modifying or revoking the suspension shall also be
served on the respondent in accordance with the provisions of
Sec. 280.607 of this part.
Sec. 280.620 Settlement.
(a) Cases may be settled before service of a charging letter. In
cases in which settlement is reached before service of a charging
letter, a proposed charging letter will be prepared, and a settlement
proposal consisting of a settlement agreement and order will be
submitted to the Assistant Secretary for approval and signature. If the
Assistant Secretary does not approve the proposal, he/she will notify
the parties and the case will proceed as though no settlement proposal
had been made. If the Assistant Secretary approves the proposal, he/she
will issue an appropriate order, and no action will be required by the
administrative law judge.
(b) Cases may also be settled after service of a charging letter.
(1) If the case is pending before the administrative law judge, the ALJ
shall stay the proceedings for a reasonable period of time, usually not
to exceed 30 days, upon notification by the parties that they have
entered into good faith settlement negotiations. The administrative law
judge may, in his/her discretion, grant additional stays. If settlement
is reached, a proposal will be submitted to the Assistant Secretary for
approval and signature. If the Assistant Secretary approves the
proposal, he/she will issue an appropriate order, and notify the
administrative law judge that the case is withdrawn from adjudication.
If the Assistant Secretary does not approve the proposal, he/she will
notify the parties and the case will proceed to adjudication by the
administrative law judge as though no settlement proposal had been
made.
(2) If the case is pending before the Under Secretary under
Sec. 280.623 of this part, the parties may submit a settlement proposal
to the Under Secretary for approval and signature. If the Under
Secretary approves the proposal, he/she will issue an appropriate
order. If the Under Secretary does not approve the proposal, the case
will proceed to final decision in accordance with Section 280.623 of
this part, as appropriate.
(c) Any order disposing of a case by settlement may suspend the
administrative sanction imposed, in whole or in part, on such terms of
probation or other conditions as the signing official may specify. Any
such suspension may be modified or revoked by the signing official, in
accordance with the procedures set forth in Sec. 280.619(c) of this
part.
(d) Any respondent who agrees to an order imposing any
administrative sa
FR Doc. 96-24105 Procedures for Implementation of the Fastener Quality Act
nction does so solely for the purpose of resolving the
claims in the administrative enforcement proceeding brought under this
part. This reflects the fact that the Department has neither the
authority nor the responsibility for instituting, conducting, settling,
or otherwise disposing of criminal proceedings. That authority and
responsibility is vested in the Attorney General and the Department of
Justice.
(e) Cases that are settled may not be reopened or appealed.
Sec. 280.621 Reopening.
The respondent may petition the administrative law judge within one
year of the date of the final decision, except where the decision
arises from a default judgment or from a settlement, to reopen an
administrative enforcement proceeding to receive any relevant and
material evidence which was unknown or unobtainable at the time the
proceeding was held. The petition must include a summary of such
evidence, the reasons why it is deemed relevant and material, and the
reasons why it could not have been presented at the time the
proceedings were held. The administrative law judge will grant or deny
the petition after providing other parties reasonable opportunity to
comment. If the proceeding is reopened, the administrative law judge
may make such arrangements as the ALJ deems appropriate for receiving
the new evidence and completing the record. The administrative law
judge will then issue a new initial decision and order, and the case
will proceed to final decision and order in accordance with
Sec. 280.623 of this part.
Sec. 280.622 Record for decision and availability of documents.
(a) General. The transcript of hearings, exhibits, rulings, orders,
all papers and requests filed in the proceedings and, for purposes of
any appeal under Sec. 280.623 of this part, the decision of the
administrative law judge and such submissions as are provided for by
Sec. 280.623 of this part, will constitute the record and the exclusive
basis for decision. When a case is settled after the service of a
charging letter, the record will consist of any and all of the
foregoing, as well as the settlement agreement and the order. When a
case is settled before service of a charging letter, the record will
consist of the proposed charging letter, the settlement agreement and
the order.
(b) Restricted access. On the administrative law judge's own
motion, or on the motion of any party, the administrative law judge may
direct that there be a restricted access portion of the record for any
material in the record to which public access is restricted by law or
by the terms of a protective order entered in the proceedings. A party
seeking to restrict access to any portion of the record is responsible
for submitting, at the time specified in Sec. 280.622(c)(2) of this
part, a version of the document proposed for public availability that
reflects the requested deletion. The restricted access portion of the
record will be placed in a separate file and the file will be clearly
marked to avoid improper disclosure and to
[[Page 50579]]
identify it as a portion of the official record in the proceedings. The
administrative law judge may act at any time to permit material that
becomes declassified or unrestricted through passage of time to be
transferred to the unrestricted access portion of the record.
(c) Availability of documents--(1) Scope. All charging letters,
answers, initial decisions, and orders disposing of a case will be made
available for public inspection in the BXA Freedom of Information
Records Inspection Facility, U.S. Department of Commerce, Room H-6624,
14th Street and Pennsylvania Avenue, NW, Washington, DC 20230. The
complete record for decision, as defined in paragraphs (a) and (b) of
this section will be made available on request.
(2) Timing. Documents are available immediately upon filing, except
for any portion of the record for which a request for segregation is
made. Parties that seek to restrict access to any portion of the record
under paragraph (b) of this section must make such a request, together
with the reasons supporting the claim of confidentiality,
simultaneously with the submission of material for the record.
Sec. 280.623 Appeals.
(a) Grounds. A party may appeal to the Under Secretary from an
order disposing of a proceeding or an order denying a petition to set
aside a default or a petition for reopening, on the grounds:
(1) That a necessary finding of fact is omitted, erroneous or
unsupported by substantial evidence of record;
(2) That a necessary legal conclusion or finding is contrary to
law;
(3) That prejudicial procedural error occurred; or
(4) That the decision or the extent of sanctions is arbitrary,
capricious or an abuse of discretion. The appeal must specify the
grounds on which the appeal is based and the provisions of the order
from which the appeal is taken.
(b) Filing of appeal. An appeal from an order must be filed with
the Office of the Under Secretary for Export Administration, Bureau of
Export Administration, U.S. Department of Commerce, Room H-3898, 14th
Street and Constitution Avenue, NW., Washington, DC 20230, within 30
days after service of the order appealed from. If the Under Secretary
cannot act on an appeal for any reason, the Under Secretary will
designate another Department of Commerce official to receive and act on
the appeal.
(c) Effect of appeal. The filing of an appeal shall not stay the
operation of any order, unless the order by its express terms so
provides or unless the Under Secretary, upon application by a party and
with opportunity for response, grants a stay.
(d) Appeal procedure. The Under Secretary normally will not hold
hearings or entertain oral argument on appeals. A full written
statement in support of the appeal must be filed with the appeal and be
simultaneously served on all parties, who shall have 30 days from
service to file a reply. At his/her discretion, the Under Secretary may
accept new submissions, but will not ordinarily accept those
submissions filed more than 30 days after the filing of the reply to
the appellant's first submission.
(e) Decisions. The decision will be in writing and will be
accompanied by an order signed by the Under Secretary giving effect to
the decision. The order may either dispose of the case by affirming,
modifying or reversing the order of the administrative law judge or may
refer the case back to the administrative law judge for further
proceedings.
(f) Delivery. The final decision and implementing order shall be
served on the parties and will be publicly available in accordance with
Sec. 280.622 of this part.
(g) Judicial Review. The charged party may appeal the Under
Secretary's written order within 30 days to the appropriate United
States District Court pursuant to section 9(b)(3) of the Act (15 U.S.C.
5408(b)(3)) by filing a notice of appeal in such court within 30 days
from the date of such order and by simultaneously sending a copy of
such notice by certified mail to the Chief Counsel for Export
Administration, Room H-3839, U.S. Department of Commerce, 14th Street
and Constitution Avenue, NW., Washington, DC 20230. The findings and
order of the Under Secretary shall be set aside by such court if they
are found to be unsupported by substantial evidence, as provided in
section 706(2) of title 5 United States Code.
Subpart H--Recordal of Insignia
Sec. 280.700 Recorded insignia required prior to offer for sale.
(a) Any manufacturer or private label distributor of a fastener
must, prior to any sale or offer for sale of any fastener which is
required by the standards and specifications by which it is
manufactured to bear a raised or depressed insignia identifying its
manufacturer or private label distributor, apply for and record an
insignia to be applied to any fastener which is to be sold or offered
for sale to ensure that each fastener may be traced to its manufacturer
or private label distributor.
(b) The manufacturer's or private label distributor's insignia must
be applied to any fastener which is sold or offered for sale if such
fastener is required by the standards and specification by which it is
manufactured to bear a raised or depressed insignia identifying its
manufacturer or private label distributor. If the fastener has no head,
the insignia must be applied to another surface area in a legible
manner.
(c) The insignia must be applied through a raised or depressed
impression. The insignia must be readable with no greater than 10x
magnification.
The Written Application
Sec. 280.710 Applications for insignia.
(a) Each manufacturer or private label distributor must submit a
written application for recordal of an insignia on the Fastener
Insignia Register along with the prescribed fee. The application must
be in a form prescribed by the Commissioner.
(b) The written application must be in the English language and
must include the following:
(1) The name of the applicant;
(2) The address of the applicant;
(3) The entity, domicile, and state of incorporation, if
applicable, of the applicant;
(4) either:
(i) A request for recordal and issuance of a unique alphanumeric
designation by the Commissioner, or
(ii) A request for recordal of a trademark, which is the subject of
either a duly filed application or a registration for fasteners in the
name of the applicant in the U.S. Patent and Trademark Office on the
Principal Register, indicating the application serial number or
registration number and accompanied by a copy of the drawing page of
the application or a copy of the registration;
(5) A statement that the applicant will comply with the applicable
provisions of the Fastener Quality Act;
(6) A statement that the person signing the application on behalf
of the applicant has personal knowledge of the facts relevant to the
application and that the person possesses the authority to act on
behalf of the applicant;
(7) A verification stating that the person signing declares under
penalty of perjury under the laws of the United States of America that
the information and statements included in the application are true and
correct; and
[[Page 50580]]
(8) The application fee.
(c) An applicant may designate only one registered trademark for
recordal on the Fastener Insignia Register in a single application. The
trademark application or registration which forms the basis for the
fastener recordal must be in active status, that is a pending
application or a registration which is not expired, abandoned or
canceled, at the time of the application for recordal.
(d) Applications and other documents should be addressed to: Box
Fastener, Commissioner of Patents and Trademarks, Washington DC 20231.
Sec. 280.711 Review of the application.
The Commissioner will review the application for compliance with
Sec. 280.710. If the application does not contain one or more of the
elements required by Sec. 280.710, the Commissioner will not issue a
certificate of recordal, and will return the papers and fees. The
Commissioner will notify the applicant of any defect in the
application. Applications for recordal of an insignia may be re-
submitted to the Commissioner at any time.
Sec. 280.712 Certificate of recordal.
If the application complies with the requirements of Sec. 280.710,
the Commissioner shall accept the application and issue a certificate
of recordal. Such certificate shall be issued in the name of the United
States of America, under the seal of the Patent and Trademark Office,
and a record shall be kept in the Patent and Trademark Office. The
certificate of recordal shall display the recorded insignia of the
applicant, and state the name, address, legal entity and domicile of
the applicant, as well as the date of issuance of such certificate.
Sec. 280.713 Recordal of additional insignia.
(a) A manufacturer or private label distributor to whom the
Commissioner has issued an alphanumeric designation may apply for
recordal of its trademark for fasteners if the trademark is the subject
of a duly filed application or is registered in the U.S. Patent and
Trademark Office on the Principal Register. Upon recordal, either the
alphanumeric designation or the registered mark, or both, may be used
as recorded insignias.
(b) A manufacturer or private label distributor for whom the
Commissioner has recorded a trademark as its fastener insignia, may
apply for issuance and recordal of an alphanumeric designation as a
fastener insignia. Upon recordal, either the alphanumeric designation
or the trademark, or both, may be used as recorded insignias.
Post-Recordal Maintenance
Sec. 280.720 Maintenance of the certificate of recordal.
(a) Certificates of recordal remain in an active status for five
years and may be maintained in an active status for five-year periods
running consecutively from the date of issuance of the certificate of
recordal upon compliance with the requirements of Sec. 280.720(c).
(b) Maintenance applications shall be required only if the holder
of the certificate of recordal is a manufacturer or private label
distributor at the time the maintenance application is required.
(c) Certificates of recordal will be designated as inactive unless,
within six months prior to the expiration of each five-year period
running consecutively from the date of issuance, the certificate holder
files the prescribed maintenance fee and the maintenance application.
The maintenance application must be in the English language and must
include the following:
(1) The name of the applicant;
(2) The address of the applicant;
(3) The entity, domicile, and state of incorporation, if
applicable, of the applicant;
(4) A copy of applicant's certificate of recordal;
(5) A statement that the applicant will comply with the applicable
provisions of the Fastener Quality Act;
(6) A statement that the person signing the application on behalf
of the applicant has knowledge of the facts relevant to the application
and that the person possesses the authority to act on behalf of the
applicant;
(7) A verification stating that the person signing declares under
penalty of perjury under the laws of the United States of America that
the information and statements included in the application are true and
correct; and
(8) The maintenance application fee.
(d) Where no maintenance application is timely filed, a certificate
of recordal will be designated inactive. However, such certificate may
be designated active if the certificate holder files the prescribed
maintenance fee and application and the additional surcharge within six
months following the expiration of the certificate of recordal.
(e) After the six-month period following the expiration of the
certificate of recordal, the certificate of recordal shall be deemed
active only if the certificate holder files a new application for
recordal with the prescribed fee for obtaining a fastener insignia and
attaches a copy of the expired certificate of recordal.
(f) A separate maintenance application and fee must be filed and
paid for each recorded insignia.
Sec. 280.721 Notification of changes of address.
The applicant or the holder of a certificate of recordal shall
notify the Commissioner of any change of address or change of name no
later than six months after the change. The holder must do so whether
the certificate of recordal is in an active or inactive status.
Sec. 280.722 Transfer or amendment of the certificate of recordal.
(a) The certificate of recordal cannot be transferred or assigned.
(b) The certificate of recordal may be amended only to show a
change of name or change of address.
Sec. 280.723 Transfer or assignment of the trademark registration or
recorded insignia.
(a) A trademark application or registration which forms the basis
of a fastener recordal may be transferred or assigned. Any transfer or
assignment of such an application or registration shall be recorded in
the Patent and Trademark Office within three months of the transfer or
assignment. A copy of such transfer or assignment must also be sent to:
Box Fastener, Commissioner of Patents and Trademarks, Washington, DC
20231.
(b) Upon transfer or assignment of a trademark application or
registration which forms the basis of a certificate of recordal, the
Commissioner shall designate the certificate of recordal as inactive.
The certificate of recordal shall be deemed inactive as of the
effective date of the transfer or assignment. Certificates of recordal
designated inactive due to transfer or assignment of a trademark
application or registration cannot be reactivated.
(c) An assigned trademark application or registration may form the
basis for a new application for recordal of a fastener insignia.
(d) A fastener insignia consisting of an alphanumeric designation
issued by the Commissioner can be transferred or assigned.
(e) Upon transfer or assignment of an alphanumeric designation, the
Commissioner shall designate such alphanumeric designation as inactive.
The alphanumeric designation shall be deemed inactive as of the
effective date of the transfer or assignment. Alphanumeric designations
which are designated inactive due to transfer or assignment may be
reactivated upon application by the assignee of such alphanumeric
designation. Such application must meet all the
[[Page 50581]]
requirements of Sec. 280.710 and must include a copy of the pertinent
portions of the document assigning rights in the alphanumeric
designation. Such application must be filed within six months of the
date of assignment.
Sec. 280.724 Change in status of trademark registration or amendment
of the trademark.
(a) The Commissioner shall designate the certificate of recordal as
inactive, upon:
(1) Issuance of a final decision on appeal which refuses
registration of the application which formed the basis for the
certificate of recordal; or
(2) Abandonment of the application which formed the basis for the
certificate of recordal; or
(3) Cancellation or expiration of the trademark registration which
formed the basis of the certificate of recordal.
(b) Any amendment of the mark in a trademark application or
registration which forms the basis for a certificate of recordal will
result in such certificate of recordal being designated inactive. The
certificate of recordal shall become inactive as of the date of the
amendment of the trademark. A new application for recordal of the
amended trademark application or registration may be submitted to the
Commissioner at any time.
(c) Certificates of recordal designated inactive due to
cancellation, expiration, abandonment or amendment of the trademark
application or registration cannot be reactivated.
Sec. 280.725 Cumulative listing of recordal information.
The Commissioner shall maintain a record of the names, current
addresses, and legal entities of all recorded manufacturers and private
label distributors and their recorded insignia.
Sec. 280.726 Records and files of the Patent and Trademark Office.
The records relating to fastener insignia shall be open to public
inspection. Copies of any such records may be obtained upon request and
payment of the fee set by the Commissioner.
[FR Doc. 96-24105 Filed 9-25-96; 8:45 am]
BILLING CODE 3510-13-P
Complete official Federal Register PDF
FR Doc. 96-24064 Defense Federal Acquisition Regulation Supplement; Miscellaneous Amendments
[Federal Register Volume 61, Number 188 (Thursday, September 26, 1996)]
[Rules and Regulations]
[Pages 50446-50458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24064]
[[Page 50446]]
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DEPARTMENT OF DEFENSE
48 CFR Parts 201, 202, 204, 206, 207, 209, 212, 214, 215, 219, 223,
225, 227, 228, 231, 232, 235, 239, 242, 244, 249, 250, 252, 253,
and Appendices B, C, G, and I
[Defense Acquisition Circular (DAC) 91-11]
Defense Federal Acquisition Regulation Supplement; Miscellaneous
Amendments
AGENCY: Department of Defense (DoD).
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: Defense Acquisition Circular (DAC) 91-11 amends the Defense
Federal Acquisition Regulation Supplement (DFARS) to revise, finalize,
or add language on competition requirements, acquisition planning,
contractor qualifications, contracting by negotiation, ozone-depleting
substances, drug-free work force, foreign acquisition, bonds and
insurance, contract cost principles and procedures, contract financing,
research and development contracting, acquisition of information
resources, contract administration, and subcontracting policies and
procedures.
DATES: Effective date: September 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Ms. Susan Buckmaster, PDUSD(A&T)DP(DAR),IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This Defense Acquisition Circular (DAC) 91-11 includes 30 rules and
miscellaneous editorial amendments. Ten of the rules (Items, III, VI,
VII, VIII, XI, XII, XX, XXII, XXIII, and XXVI) were published
previously in the Federal Register and thus are not included as part of
this notice of amendments to the Code of Federal Regulations. These ten
rules are being published in the DAC incorporate the previously
published amendments into the loose-leaf edition of the DFARS.
B. Regulatory Flexibility Act
DAC 91-11, Items I, II, X, XIV, XVIII, XIX, XXIV, XXV, and XXVII
These final rules do not constitute significant revisions within
the meaning of Federal Acquisition Regulation 1.501 and Public Law 98-
577, and publication of public comment is not required. However,
comments from small entities concerning the affected DFARS subparts
will be considered in accordance with Section 610 of the Regulatory
Flexibility Act (5 U.S.C. 610). Please cite the applicable DFARS case
number in correspondence.
DAC 91-11, Items V, XV, XVII, XXI, XXVIII, XXIX, and XXX
DoD certifies that these rules will not 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:
Item V, Leasing of Commercial Vehicles and Equipment--Leasing of
commercial vehicles and equipment is already permitted by the Federal
Acquisition Regulation (FAR). This rule merely amends the Defense FAR
Supplement (DFARS) to reflect DoD statutory authority and internal
Government considerations pertaining to such leasing.
Item XV, Naval Vessel Components--The foreign source restrictions
contained in this rule do not differ significantly from existing
foreign source restrictions.
Item XVII, Pricing for Sales of Defense Articles--The DFARS already
requires pricing of foreign military sales contracts using the same
general principles that are used in pricing other defense contracts.
The only significant change in this rule relates to the allowability of
independent research and development and bid and proposal costs in
accordance with the cost principle at FAR 31.205-18, under contracts
for foreign military sales wholly paid for from nonrepayable funds.
Most contracts awarded to small entities are awarded using simplified
acquisition procedures, or on a competitive fixed-price basis, and do
not require application of the FAR or DFARS cost principles.
Item XXI, Allowability of Costs--The cost principle in this rule
applies only to costs for bonuses or other payments in excess of the
normal salary paid by a contractor to an employee, when such payments
are part of restructuring costs associated with a business combination.
Most contracts awarded to small entities are awarded using simplified
acquisition procedures, or on a competitive fixed-price basis, and do
not require application of the FAR or DFARS cost principles.
Item XXVIII, Material Management and Accounting System Changes--
Material management and accounting system (MMAS) requirements only
apply to contracts exceeding the simplified acquisition threshold that
are not for the acquisition of commercial items and are not awarded
under the set-aside or Section 8(a) procedures of FAR Part 19.
Additionally, MMAS disclosure, demonstration, and maintenance
requirements only apply to large business concerns.
Item XXIX, Contractor Purchasing System Reviews--Contractor
purchasing system reviews generally are conducted only for contractors
that are expected to have annual sales to the Government exceeding $25
million.
Item XXX, Ground and Flight Risk--The amendments in this rule only
apply to contracts for aircraft development, production, modification,
maintenance, repair, or overhaul, or otherwise involving the furnishing
of aircraft to the contractor by the Government. Historically, most
contractors engaged in this type of contract have been large business
concerns.
DAC 91-11, Items IV, IX, XIII, and XVI
A final regulatory flexibility analysis has been performed for each
of these rules. A copy of the analysis is available by writing the
Defense Acquisition Regulations Council, PDUSD(A&T)DP(DAR), 3062
Defense Pentagon, Washington, DC 20301-3062. Please cite the applicable
DFARS case number in correspondence. The analyses are summarized as
follows:
Item IV, Precontractual Contract Administration (DFARS Case 95-
D015)--This final rule amends the DFARS to provide the contract
administration component access to acquisition planning information,
set forth the fact that costs or savings related to contract
administration may be considered when evaluating an offeror's past
performance, and establish as a contract administration function the
providing of support to program offices and buying activities in
precontractual efforts leading to a solicitation or award. No public
comments were received in response to the initial regulatory
flexibility analysis prepared for the proposed rule published in the
Federal Register at 60 FR 53573 on October 16, 1995. The rule applies
to all entities, large and small, that compete for DoD contracts
awarded using past performance as an evaluation factor. The rule
imposes no new reporting, recordkeeping, or other compliance
requirements. The alternative of not making the revisions to DFARS
Parts 207 and 242 was considered, since the Federal Acquisition
Regulation (FAR) already permits involvement of contract administration
components in precontractual efforts. However, it was determined that
these revisions are needed to ensure that the contract administration
component has access to early acquisition planning information and is
involved in precontractual planning in order to allow for efficient
[[Page 50447]]
and effective contract administration support throughout the
acquisition. The alternative of not making the revisions to DFARS Parts
209 and 215 was also considered, since the FAR already permits the use
of contract and audit data in evaluating performance risk or past
performance. It was determined that specifically citing costs and
savings related to contract administration and audit as a factor in
evaluating performance risk or past performance will encourage use of
this factor and will be beneficial in refining the process for
determining the best value to the Government.
Item IX, Drug Free Work Force (DFARS Case 88-083)--This rule is
necessary to implement DoD policy to ensure that its contractors
maintain programs for achieving a drug-free work force. No public
comments were received in response to the initial regulatory
flexibility analysis prepared for the interim rule published in the
Federal Register at 57 FR32736 on July 23, 1992. The rule applies to
large and small entities with DoD contracts that involve access to
classified information, or that include the prescribed clause for
reasons of national security or for the purpose of protecting the
health or safety of those using or affected by the product of, or
performance of, the contract. The rule requires that certain DoD
contractors maintain a drug-free work force program, including
recordkeeping necessary to ensure that any instances of illegal drug
use be dealt with in accordance with the contractor's program. The
recordkeeping required by DFARS clause 252.223-7004 has been approved
by the Office of Management and Budget under OMB Control Number 0704-
0336. Consideration was given to elimination of the rule in light of
Federal Acquisition Regulation (FAR) Subpart 23.5, which implements the
Drug-Free Work Force Act of 1988. However, the FAR addresses illegal
drugs only in the workplace. The DoD policy is that any drug use by a
contractor employee working in a sensitive position under a DoD
contract may adversely affect national security, health, or safety of
those using or affected by the product of, or performance of, the
contract.
Item XIII, Ball and Roller Bearings (DFARS Case 95-D308)--This
final rule implements Section 8099 of the Fiscal Year 1996 Defense
Appropriations Act (Pub. L. 104-61) and 10 U.S.C. 2534 as amended by
Sections 806(b) and (d) of the Fiscal Year 1996 Defense Authorization
Act (Pub. L. 104-106), which extend the statutory restriction on the
acquisition of nondomestic ball and roller bearings through the year
2000, but reduce the exceptions to the restriction and limit waiver
authority when Fiscal Year 1996 funds are used. There were no issues
raised by public comments in response to the initial regulatory
flexibility analysis prepared for the interim rule published in the
Federal Register at 61 FR 10899 on March 18, 1996. The final rule
incorporates the restriction on miniature and instrument ball bearings
that is presently included in DFARS Subpart 225.71, and specifically
identifies the commercial item exception to the requirements of Section
8099 of the Fiscal Year 1996 Defense Appropriations Act. The rule
applies to all small and large entities that are interested in
furnishing to the Government ball or roller bearings or items
incorporating ball or roller bearings. The rule lessens foreign
competition for domestic sources, particularly in acquisitions that do
not exceed the simplified acquisition threshold, and is expected to
have a positive impact on both small and large entities. The rule
imposes no new recordkeeping or reporting requirements. The existing
recordkeeping and reporting required by DFARS clause 252.225-7025 has
been approved by the Office of Management and Budget under OMB Control
Number 0704-0229.
Item XVI, Foreign Product Restrictions (DFARS Case 95-D033)--This
final rule eliminates all foreign product restrictions in DFARS Subpart
225.71, with the exception of ship propulsion shafts (excluding service
and landing craft shafts), periscope tubes, and ring forgings for bull
gears (greater than 120 inches in diameter). The restriction on
miniature and instrument ball bearings is being incorporated in DFARS
225.7019 with the other statutory restrictions on ball and roller
bearings, because 10 U.S.C. 2534(a)(5) provides for restrictions on
ball and roller bearings in accordance with DFARS Subpart 225.71, as in
effect on October 23, 1992. The elimination of the other restrictions
in DFARS Subpart 225.71 is based on an assessment by DoD that these
restrictions are no longer needed. The objective of this rule is to
maximize full and open competition to the extent consistent with
maintenance of a viable domestic industrial base. No comments were
received in response to the initial regulatory flexibility analysis
prepared for the proposed rule published in the Federal Register at 60
FR 67115 on December 28, 1995. However, a number of respondents
expressed concern that the rule's elimination of foreign product
restrictions would weaken the domestic forging industry and the
national security. Therefore, retention of the foreign product
restrictions on forgings was considered, but rejected for the following
reasons: The restrictions were originally imposed to preserve a
domestic mobilization base for specific classes of items, including
various ferrous forgings, needed to meet Cold War era operational
scenarios. DoD no longer has such a requirement for the classes of
forgings under consideration. Therefore, the mobilization base for
these forgings is no longer required. Additionally, both productivity
and exports have increased for the domestic forging industry.
The rule will affect the preference for domestic manufacturers of
the items no longer restricted. It is estimated that approximately 90
contractors, some of which are small businesses, supply such items to
DoD either as prime contractors or subcontractors under defense
contracts. The information collection required by DFARS clause 252.225-
7025 has been approved by the Office of Management and Budget under OMB
Control Number 0704-0229. The rule will reduce this information
collection requirement, as recordkeeping and reporting will no longer
be required for those items which are no longer restricted to domestic
sources. There are no practical alternatives which would affect the
impact on small entities and still accomplish the objectives of the
rule.
C. Paperwork Reduction Act
DAC 91-11, Items I, II, IV, V, X, XIV, XV, XVII, XVIII, XIX, XXI, XXIV,
XXV, XXVII, XXIX, and XXX
The Paperwork Reduction Act does not apply because these rules do
not contain information collection requirements which require the
approval of the Office of Management and Budget (OMB) under 44 U.S.C.
3501 et seq.
DAC 91-11, Items IX, XIII, XVI, and XXVIII
The Paperwork Reduction Act applies. OMB has approved the
information collection requirements as follows:
------------------------------------------------------------------------
OMB control
Item number
------------------------------------------------------------------------
IX......................................................... 0704-0336
XIII....................................................... 0704-0229
XVI........................................................ 0704-0229
XXVIII..................................................... 0704-0250
------------------------------------------------------------------------
[[Page 50448]]
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Defense Acquisition Circular (DAC) 91-11 amends the Defense Federal
Acquisition Regulation Supplement (DFARS) 1991 edition. The amendments
are summarized as follows:
Item I--Revisions to FAR/DFARS (DFARS Case 96-D009)
This final rule amends DFARS 201.201-1 to specify that requests for
changes to the FAR or DFARS must identify any potential impact of the
change on automated systems (e.g., automated financial and procurement
systems).
Item II--Overseas Contracts With NATO/Allied Governments or the United
Nations (DFARS Case 96-D004)
This final rule amends DFARS 201.402 and adds a new section at
225.970 to authorize contracting officers outside the United States to
deviate from prescribed non-statutory FAR and DFARS clauses when
contracting for support services, supplies, or construction, with the
governments of North Atlantic Treaty Organization (NATO) countries or
other allies (as described in 10 U.S.C. 2341(2)), or with United
Nations or NATO organizations. This authority may be exercised only if
such governments or organizations will not agree to the standard FAR/
DFARS clauses.
Item III--Justification and Approval Thresholds (DFARS Case 96-
D307)
This final rule was issued by Departmental Letter 96-003, effective
April 12, 1996 (61 FR 10285, March 13, 1996). The rule amends DFARS
206.304 to implement Section 4102 of the Fiscal Year 1996 Defense
Authorization Act (Pub. L. 104-106). Section 4102 amends 10 U.S.C.
2304(f)(1)(B) and 41 U.S.C. 253(F)(1)(B) to increase the dollar
thresholds at which approval for use of other than full and open
competition must be obtained from the competition advocate, the head of
the procuring activity, or the senior procurement executive.
Item IV--Precontractual Contract Administration (DFARS Case 95-
D015)
This final rule amends DFARS Subparts 207.1, 209.1, 215.6, and
242.3 to (1) provide for involvement of the contract administration
office early in the acquisition process, and (2) specify that costs or
savings related to contract administration and audit may be considered
in proposal evaluation when an offeror's past performance or
performance risk is likely to result in significant costs or savings.
Item V--Leasing of Commercial Vehicles and Equipment (DFARS Case 96-
D302)
The interim rule issued by Departmental Letter 96-007, on April 18,
1996, is revised and finalized. The rule amends DFARS 207.470 to
implement Section 807 of the Fiscal Year 1996 Defense Authorization Act
(Pub. L. 104-106). Section 807 amends 10 U.S.C. 2401a to permit the use
of leasing in the acquisition of commercial vehicles and equipment. The
final rule differs from the interim rule in that it clarifies that the
requirements of 207.470(b) apply to the leasing of commercial vehicles
and the equipment that is associated with those vehicles.
Item VI--Institutions of Higher Education (DFARS Case 96-D305)
This interim rule was issued by Departmental Letter 96-012,
effective May 21, 1996 (61 FR 25408, May 21, 1996). The rule amends
DFARS 209.470 and 243.105 to implement Section 541 of the Fiscal Year
1996 Defense Authorization Act (Pub. L. 104-106). Section 541 provides
that no funds available to DoD may be provided by grant or contract to
any institution of higher education that has an anti-ROTC policy.
Item VII--Small Disadvantaged Business Concerns (DFARS Case 95-D039)
This final rule was issued by Departmental Letter 96-009, effective
April 29, 1996 (61 FR 18686, April 29, 1996). The rule amends DFARS
Parts 215, 219, 236, 242, 252, and 253 to (1) expand use of the
evaluation preference for small disadvantaged businesses (SDBs) to
include competitive awards based on other than price or price-related
factors; (2) consider small, small disadvantaged, and women-owned small
business subcontracting as a factor in the evaluation of past
performance; (3) clarify that the contracting officer will weigh
enforceable commitments to use small businesses, SDBs, women-owned
small businesses, historically black colleges and universities, and
minority institutions more heavily than non-enforceable ones, if the
commitment to use such firms is included in the solicitation as a
source selection criterion; (4) require prime contractors to notify the
contracting officer of any substitutions of firms that are not small,
small disadvantaged, or women-owned small businesses for the firms
listed in the subcontracting plan; and (5) establish a test program of
an SDB evaluation preference that would remove the bond cost
differentials between SDBs and other businesses as a factor in most
source selections for construction acquisitions.
Item VII--Test Program for Negotiation of Comprehensive Subcontracting
Plans (DFARS Case 96-D304)
This interim rule was issued by Departmental Letter 96-016,
effective July 31, 1996 (61 FR 39900, July 31, 1996). The rule amends
DFARS Subpart 219.7 and the clause at 252.219-7004 to reflect changes
to the Test Program for Negotiation of Comprehensive Small Business
Subcontracting Plans, as required by Section 811 of the Fiscal Year
1996 Defense Authorization Act (Pub. L. 104-106). The rule also makes
editorial changes to DFARS Part 219 to reflect revisions to FAR Part 19
published in Federal Acquisition Circular 90-32.
Item IX--DRUG-Free Work Force (DFARS Case 88-083)
The interim rule published as Item VII of DAC 91-3, and amended by
Item XXXV of DAC 91-9, is converted to a final rule without change. The
rule implements DoD policy regarding contractor maintenance of a drug-
free work force. The applicable DFARS guidance is at Subpart 223.5 and
252.223-7004.
Item X--Ozone-Depleting Substances (DFARS Case 95-D037)
This final rule adds DFARS Section 223.803 to provide a cross-
reference to the restrictions in DFARS 211.271 regarding award or
modification of contracts requiring the use of class I ozone-depleting
substances.
Item XI--Petroleum Products from Caribbean Basin Countries (DFARS
Case 96-D312)
This interim rule was issued by Departmental Letter 96-015,
effective July 22, 1996 (61 FR 37841, July 22, 1996). The rule amends
DFARS 225.403 to fully implement Section 8094 of the Fiscal Year 1994
Defense Appropriations Act (Pub. L. 103-139). Section 8094 requires DoD
to consider all qualified bids from eligible countries under the
Caribbean Basin Economic Recovery Act as if they were offers from
designated countries under the Trade Agreements Act. The rule also
amends DFARS 225.403-70 and 252.225-7007 to clarify that the definition
of Caribbean Basin country end products includes petroleum and any end
product derived from petroleum.
[[Page 50449]]
Item XII--Designation of Singapore (DFARS Case 96-D308)
This final rule was issued by Departmental Letter 96-008, effective
April 18, 1996 (61 FR 16880, April 18, 1996). The rule amends DFARS
225.408 and 252.225-7007 to add Singapore as a designated country under
the Trade Agreements Act of 1979, as directed by the United States
Trade Representative on March 19, 1996.
Item XIII--Ball and Roller Bearings (DFARS Case 95-D308)
The interim rule issued by Departmental Letter 96-004 on March 18,
1996, is revised and finalized. The rule implements Section 8099 of the
Fiscal Year 1996 Defense Appropriations Act (Pub. L. 104-61) and
Sections 806(b) and (d) of the Fiscal Year 1996 Defense Authorization
Act (Pub. L. 104-106), which extend the statutory restrictions on the
acquisition of nondomestic ball and roller bearings through the year
2000, but reduce the exceptions to the restrictions and limit waiver
authority when fiscal year 1996 funds are used to acquire other than
commercial items. The final rule differs from the interim rule in that
it amends DFARS 225.7001, 225.7019, and 252.225-7016 to include
restrictions pertaining to the acquisition of miniature and instrument
ball bearings which previously were included in Subpart 225.71 and
252.225-7025.
Item XIV--Domestic Wool Preference (DFARS Case 96-D311)
This final rule amends DFARS 225.7002 and deletes the provision at
252.225-7013 to eliminate special procedures for evaluation of offers
for wool. In December 1995, the U.S. Department of Agriculture
discontinued the practice of establishing incentive prices for domestic
wool, which was the practice upon which the special evaluation
procedures were based. Corresponding amendments are made at 212.301.
Item XV--Naval Vessel Components (DFARS Case 96-D300)
The interim rule issued by Departmental Letter 96-005, on March 26,
1996, is converted to a final rule without change. The rule amends
DFARS 225.7012 and 225.7022 to implement Section 806(a) of the Fiscal
Year 1996 Defense Authorization Act (Pub. L. 104-106). Section 806(a)
imposes additional statutory restrictions on the acquisition of anchor
and mooring chain and totally enclosed lifeboats, when used as
components of naval vessels. The rule further amends 225.7012, and
deletes the clauses at 252.225-7020 and 252.225-7021, to remove
obsolete language pertaining to fiscal year 1988-90 restrictions on the
acquisition of anchor and mooring chain.
Item XVI--Foreign Product Restrictions (DFARS Case 95-D033)
This final rule amends DFARS Subpart 225.71 and the clause at
252.225-7025 to eliminate non-statutory foreign product restrictions
except those for certain forging items (ship propulsion shafts,
periscope tubes, and ring forgings for bull gears). Restrictions
pertaining to miniature and instrument ball bearings have been moved to
Subpart 225.70 and 252.225-7016.
Item XVII--Pricing for Sales of Defense Articles (DFARS Case 96-
D309)
The interim rule issued by Departmental Letter 96-010, on April 30,
1996, is converted to a final rule without change. The rule amends
DFARS 225.7303 to implement Section 531A of the Fiscal Year 1996
Foreign Operations, Export Financing, and Related Programs
Appropriations Act (Pub. L. 104-107). Section 531A provides that
foreign military sales of defense articles and services wholly paid for
from funds made available on a nonrepayable basis shall be priced on
the same costing basis as is applicable to like items purchased by DoD
for its own use.
Item XVIII--Alternatives to Miller Act Bonds (DFARS Case 95-D305)
This final rule removes DFARS 228.171 and 252.228-7007. These
sections were published as Item XXIII of DAC 91-9, and amended by Item
X of DAC 91-10, to provide alternative payment protections for
construction contracts between $25,000 and $100,000, pending
implementation of Section 4104(b)(2) of the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355) in the FAR. The implementing
FAR guidance was published as Item XVII of FAC 90-39; therefore, the
DFARS guidance is removed.
Item XIX--Insurance--Liability to Third Parties (DFARS Case 92-
D015)
This final rule amends DFARS 228.311 to remove guidance pertaining
to use of the clause at FAR 52.228-6, Insurance--Immunity from Tort
Liability, as this clause was removed from the FAR by item XII of FAC
90-37.
Item XX--Individual Compensation (DFARS Case 96-D314)
This interim rule was issued by Departmental Letter 96-014,
effective July 10, 1996 (61 FR 36305, July 10, 1996). The rule amends
DFARS Part 231 to implement Section 8086 of the Fiscal Year 1996
Defense Appropriations Act (Pub. L. 104-61). Section 8086 limits
allowable costs for individual compensation to $200,000 per year. This
limitation applies to payments using funds appropriated in fiscal year
1996 under contracts awarded after July 1, 1996.
Item XXI--Allowability of Costs (DFARS Case 95-D309)
The interim rule published as Item XVII of DAC 91-10 is converted
to a final rule with minor clarifying revisions at DFARS 231.205-6. The
rule implements Section 8122 of the Fiscal Year 1996 Defense
Appropriations Act (Pub. L. 104-61). Section 8122 prohibits DoD from
using fiscal year 1996 funds to reimburse a contractor for costs paid
to an employee for a bonus or other payment in excess of the normal
salary paid to the employee, when such payment is part of restructuring
costs associated with a business combination.
Item XXII--Restructuring Costs Under Defense Contracts (DFARS Case
94-D316)
This final rule was issued by Departmental Letter 96-006, effective
April 18, 1996 (61 FR 16881, April 18, 1996). The rule amends DFARS
231.205-70 and 242.1204 to finalize the interim rule which was
published as Item XXIII of DAC 91-7 and which implements Section 818 of
the Fiscal Year 1995 Defense Authorization Act (Pub. L. 103-337).
Section 818 restricts DoD from reimbursing external restructuring costs
associated with a business combination undertaken by a defense
contractor unless certain conditions are met.
Item XXIII--Cost Reimbursement Rules for Indirect Costs (DFARS Case
96-D303)
This interim rule was issued by Departmental Letter 96-011,
effective May 13, 1996 (61 FR 21973, May 13, 1996). The rule adds a new
section at DFARS 231.205-71 to implement Section 808 of the Fiscal Year
1996 Defense Authorization Act (Pub. L. 104-106). Section 808 permits
DoD to enter into a defense capability preservation agreement with a
defense contractor where it would facilitate the achievement of the
policy objectives relating to defense reinvestment, diversification,
and conversion set forth
[[Page 50450]]
in 10 U.S.C. 2501(b), Such an agreement would permit the contractor to
claim certain indirect costs, attributable to its private sector work,
on its defense contracts.
Item XXIV--Determination of Need (DFARS Case 96-D012)
This final rule revises DFARS 232.803(d) to reflect (1) the
amendments made to FAR Subpart 32.8 in Item III of FAC 90-38; and (2)
the May 10, 1996, determination by the Director of Defense Procurement
that a need exists for DoD to agree not to reduce or set off any money
due or to become due under a contract when the proceeds under the
contract have been assigned in accordance with the Assignment of Claims
provision of the contract.
Item XXV--Manufacturing Technology Program (DFARS Case 96-D313)
This final rule amends DFARS 235.006 to implement a portion of
Section 276 of the Fiscal Year 1996 Defense Authorization Act (Pub. L.
104-106). Section 276 changes the name of the Manufacturing Science and
Technology Program to the ``Manufacturing Technology Program,'' and
permits contracts under the program to be on other than a cost-sharing
basis if the contract is for a program to be carried out by an
institution of higher education.
Item XXVI--Direct Submission of Vouchers to Disbursing Office (DFARS
Case 96-D007)
This final rule was issued by Departmental Letter 96-013, effective
May 21, 1996 (61 FR 25409, May 21, 1996). The rule amends DFARS 242.803
to permit contract auditors to authorize direct submission of interim
vouchers for provisional payment to the disbursing office, for
contractors with approved billing systems.
Item XXVII--Requirements for Cost/Schedule Status Report (DFARS Case
95-D042)
This final rule amends DFARS Subpart 242.11 to update references
and guidance pertaining to contractor reporting requirements. DoDI
7000.10, Contract Cost Performance, Funds Status and Cost/Schedule
Status Reports, has been canceled and replaced by DoD 5000.2-R,
Mandatory Procedures for Major Defense Acquisition Programs (MDAPs) and
Major Automated Information System (MAIS) Acquisition Programs, dated
March 15, 1996.
Item XXVIII--Material Management and Accounting System Changes (DFARS
Case 95-D029)
This final rule amends DFARS Subpart 242.72 and 252.242-7004 to (1)
increase the dollar thresholds at which large business contractors are
subject to material management and accounting system (MMAS) disclosure,
demonstration, and maintenance requirements; (2) clarify the
circumstances under which MMAS disclosure and demonstration are
required; and (3) clarify requirements for contractor use of a ``loan/
pay-back'' technique for accomplishing material transactions.
Item XXIX--Contractor Purchasing System Reviews (DFARS Case 95-
D026)
This final rule removes the procedures for contractor purchasing
system reviews at DFARS 244.303 and Appendix C, to provide agencies
maximum flexibility in conducting such reviews.
Item XXX--Ground and Flight Risk (DFARS Case 95-D028)
This final rule amends DFARS 252.228-7001 and 252.228-7002 to (1)
specify that the Government's assumption of risk of aircraft does not
extend to damage, loss, or destruction sustained during flight, if the
flight crew members have not been approved by an authorized Government
flight representative; (2) increase; from $1,000 to $25,000, the
contractor's liability for aircraft loss or damage not sustained during
flight; and (3) clarify language pertaining to aircraft which is
damaged, lost, or destroy prior to delivery and acceptance by the
Government.
Editorial Revisions
(1) DFARS 201.201-1(d)(i) is amended to update the DAR Council
datafax number.
(2) DFARS 202.101 is amended under the heading ``Army'' to revise
the name ``Strategic Defense Command'' to read ``Space and Strategic
Defense Command.''
(3) DFARS 202.101 is amended under the heading ``Navy'' to revise
the title ``Deputy, Acquisition Policy, Integrity and Accountability''
to read ``Deputy, Acquisition and Business Management.''
(4) DFARS is amended to reflect the change in name of the
``Advanced Research Projects Agency'' to the ``Defense Advanced
Research Projects Agency'' and the change in name of the ``Defense
Nuclear Agency'' to the ``Defense Special Weapons Agency.''
(5) DFARS 207.105 is amended to update references and to conform to
the current numbering of FAR 7.105.
(6) DFARS 215.605 is amended to conform to the current numbering of
FAR 15.605.
(7) DFARS 227.7009-1 is amended to update FAR references.
(8) DFARS 231.205-71 is amended to remove the title ``Assistant
Secretary of Defense for Economic Security'' and insert in its place
the title ``Deputy Under Secretary of Defense for Industrial Affairs
and Installations.''
(9) DFARS 239.7501-2 is amended to update statutory references.
(10) DFARS 253.204-70(c)(4)(ix)(B)(9) is amended to revise the FAR
reference.
(11) DFARS Part 253 is amended to update DD Forms 882 and 2139.
(This amendment is being made only in the loose-leaf edition of the
DFARS.)
(12) DFARS Appendix G is amended to update activity names and
addresses.
(13) DFARS Appendix I is amended in I-102(a) and (b) and I-103(a)
by revising the date ``September 30, 1995'' to read ``September 30,
1996.''
Interim Rules Adopted as Final Without Change
PARTS 223 AND 252--[AMENDED]
The interim rule that was published at 57 FR 32736 on July 23,
1992, and amended at 60 FR 61597 on November 30, 1995, is adopted as
final without change.
PART 225--[AMENDED]
The interim rule that was published at 61 FR 18987 on April 30,
1996, is adopted as final without change.
PARTS 225 AND 252--[AMENDED]
The interim rule that was published at 61 FR 13106 on March 26,
1996, is adopted as final without change.
Interim Rules Adopted as Final With Changes
PART 207--[AMENDED]
The interim rule that was published at 61 FR 16879 on April 18,
1996, is adopted as final with an amendment at section 207.470.
PARTS 225 AND 252--[AMENDED]
The interim rule that was published at 61 FR 10899 on March 18,
1996, is adopted as final with revisions at sections 225.7001,
225.7019-2, 225.7019-3, and 252.225-7016.
PART 231--[AMENDED]
The interim rule that was published at 61 FR 7077 on February 26,
1996, is
[[Page 50451]]
adopted as final with amendments at section 231.205-6.
List of Subjects in 48 CFR Parts 201, 202, 204, 206, 207, 209, 212,
214, 215, 219, 223, 225, 227, 228, 231, 232, 235, 239, 242, 244, 249,
250, 252, 253
Government procurement.
Amendments to 48 CFR Chapter 2 (Defense Federal Acquisition Regulation
Supplement)
48 CFR Chapter 2 (the Defense Federal Acquisition Regulation
Supplement) is amended as set forth below.
1. The authority citation for 48 CFR Parts 201, 202, 204, 206, 207,
209, 212, 214, 215, 219, 223, 225, 227, 228, 231, 232, 235, 239, 242,
244, 249, 250, 252, 253, and Appendices B, C, B, and I to subchapter I
continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 201--FEDERAL ACQUISITION REGULATIONS SYSTEM
2. Section 201.201-1 is amended by revising the introductory text
of paragraph (d)(i), and paragraph (d)(i)(III) to read as follows:
201.201-1 The two councils.
* * * * *
(d)(i) Departments and agencies process proposed revisions of FAR
or DFARS through channels to the Director of the DAR Council. Process
the proposed revision as a memorandum in the following format,
addressed to the Director, DAR Council, OUSD(A&T), 3062 Defense
Pentagon, Washington, DC 20301-3062; datafax (703) 602-0350:
* * * * *
III. Discussion: Include a complete, convincing explanation of
why the change is necessary and how the recommended revision will
solve the problem. Address advantages and disadvantages of the
proposed revision, as well as any cost or administrative impact on
Government activities and contractors. Identify any potential impact
of the change on automated systems, e.g., automated financial and
procurement systems. Provide any other background information that
would be helpful in explaining the issue.
* * * * *
3. Section 201.402 is amended by revising paragraph (2) to read as
follows:
201.402 Policy.
* * * * *
(2) Individual deviations.
(i) Except as provided in paragraph (2)(ii) of this section,
individual deviations, other than those in paragraph (1)(i) of this
section, must be approved in accordance with the department/agency plan
prescribed by 201.304(4).
(ii) Contracting officers outside the United States are authorized
to deviate from prescribed non-statutory FAR and DFARS clauses when
contracting for support services, supplies, or construction, with the
governments of North Atlantic Treaty Organization (NATO) countries or
other allies (as described in 10 U.S.C. 2341(2)), or with United
Nations or NATO organizations. This authority shall be exercised only
if such governments or organizations will not agree to the standard
clauses.
* * * * *
PART 202--DEFINITIONS OF WORDS AND TERMS
202.101 [Amended]
4. Section 202.101 is amended by revising under the heading
``ARMY'' the phrase ``Strategic Defense Command'' to read ``Space and
Strategic Defense Command''; by revising under the heading ``NAVY'' the
phrase ``Deputy, Acquisition Policy, Integrity and Accountability,'' to
read ``Deputy, Acquisition and Business Management,''; by revising the
heading ``ADVANCED RESEARCH PROJECTS AGENCY'' to read ``DEFENSE
ADVANCED RESEARCH PROJECTS AGENCY''; by revising the heading ``DEFENSE
NUCLEAR AGENCY'' to read ``DEFENSE SPECIAL WEAPONS AGENCY''; by
revising under the newly revised heading ``DEFENSE SPECIAL WEAPONS
AGENCY'' the phrase ``Headquarters, Defense Nuclear Agency'' to read
``Headquarters, Defense Special Weapons Agency''; and by revising in
the definition of Departments and agencies the phrases ``Advanced
Research Projects Agency'' and ``Defense Nuclear Agency'' to read
``Defense Advanced Research Projects Agency'' and ``Defense Special
Weapons Agency'', respectively.
PART 204--ADMINISTRATIVE MATTERS
204.7003 [Amended]
5. Section 204.7003 is amended in paragraph (a)(1)(i)(F) by
revising the phrase ``Defense Nuclear Agency--DNA'' to read ``Defense
Special Weapons Agency--DSWA''.
PART 206--COMPETITION REQUIREMENTS
6. Section 206.304 is amended by revising paragraph (a)(4)(B)(2) to
read as follows:
206.304 Approval of the justification.
(a)(4) * * *
(B) * * *
(2) If a civilian, is serving in a position with a grade under the
General Schedule (or any other schedule for civilian officers or
employees) that is comparable to or higher than the grade of major
general or rear admiral.
PART 207--ACQUISITION PLANNING
207.103 [Amended]
7. Section 207.103 is amended in paragraph (h)(i)(B) by revising
the phrase ``to the extent prescribed DoDD 5000.1'' to read ``to the
extent prescribed by DoDD 5000.1''.
8. Section 207.104 is added to read as follows:
207.104 General procedures.
(b) The planner should forward the requirements information to the
contract administration organization when assistance in identification
of potential sources of supply is necessary, when an existing contract
is being modified or resolicited, or when contract administration
resource requirements will be affected.
9. Section 207.105 is amended by revising the introductory text; in
paragraph (a)(8) by removing the reference ``DoDI 5000.2, Defense
Acquisition Management Policies and Procedures'' and inserting in its
place ``DoD 5000.2-R, Mandatory Procedures for Major Defense
Acquisition Programs (MDAPs) and Major Automated Information System
(MAIS) Acquisition Programs''; by redesignating paragraphs (b) (12),
(15), and (17) as paragraphs (b) (13), (16), and (18), respectively; in
newly designated paragraph (b)(13)(iv) by removing the reference ``DoDI
5000.2, Defense Acquisition Management Policies and Procedures'' and
inserting in its place ``DoD 5000.2-R, Mandatory Procedures for Major
Defense Acquisition Programs (MDAPs) and Major Automated Information
System (MAIS) Acquisition Programs''; in newly designated paragraph
(b)(16) by revising the title to read ``Environmental and energy
conservation objectives.''; in newly designated paragraph
(b)(18)(A)(1)(ii) by removing the reference ``(b)(17)(A)(1)(i)'' and
inserting ``(b)(18)(A)(1)(i)'' in its place; and by adding paragraph
(b)(18)(D). The revised and added text reads as follows:
207.105 Contents of written acquisition plans.
For acquisitions covered by 207.103(c)(i) (A) and (B), correlate
the plan to the DoD Future Years Defense Program, applicable budget
submissions, and the decision coordinating paper/program
[[Page 50452]]
memorandum, as appropriate. It is incumbent upon the planner to
coordinate the plan with all those who have a responsibility for the
development, management, or administration of the acquisition. The
acquisition plan should be provided to the contract administration
organization to facilitate resource allocation and planning for the
evaluation, identification, and management of contractor performance
risk.
* * * * *
(b) * * *
(18) * * *
(D) Contract administration. Discuss the level of Government
administration anticipated or currently performed and any change
proposed by the contract administration office.
10. Section 207.470 is amended by revising paragraph (b) to read as
follows:
207.470 Statutory requirements.
* * * * *
(b) Leasing of commercial vehicles and associated equipment. Except
as provided in paragraph (a) of this section, the contracting officer
may use leasing in the acquisition of commercial vehicles and
associated equipment whenever the contracting officer determines that
leasing of such vehicles is practicable and efficient (10 US.C. 2401a).
PART 209--CONTRACTOR QUALIFICATIONS
11. Section 209.103 is amended by adding paragraph (c) to read as
follows:
209.103 Policy.
* * * * *
(c) The additional cost of contract administration and audit due to
a contractor's performance risk may be considered in evaluating the
contractor's price.
209.103-70 [Amended]
11a. Section 209.103-70 is amended by removing the phrase ``in FAR
part 13''.
209.403 [Amended]
12. Section 209.403 is amended in paragraph (1) by revising the
phrase ``Advanced Research Projects Agency--The Director'' to read
``Defense Advanced Research Projects Agency--The Director''; and by
revising the phrase ``Defense Nuclear Agency--The Director'' to read
``Defense Special Weapons Agency--The Director''.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
212.301 [Amended]
13. Section 212.301 amended by removing paragraph (f)(i) and
redesignating paragraphs (f)(ii) through (f)(iv) as paragraphs (f)(i)
through (f)(iii), respectively. Newly designated paragraph (f)(ii) is
amended in the first sentence by removing the phrase ``in FAR part
13''.
PART 214--SEALED BIDDING
214.406-3 [Amended]
14. Section 214.406-3 is amended in paragraph (e)(i) by revising
the phrase ``Advanced Research Projects Agency:'' to read ``Defense
Advanced Research Projects Agency:'', and by revising the abbreviation
``ARPA'' to read ``DARPA''; and in paragraph (e)(vi) by revising the
phrase ``Defense Nuclear Agency:'' to read ``Defense Special Weapons
Agency:'' and by revising the abbreviation ``DNA'' to read ``DSWA''.
PART 215--CONTRACTING BY NEGOTIATION
15. Section 215.605 is amended by revising paragraph (b) to read as
follows:
215.605 Evaluation factors and subfactors.
(b)(2)(A) In acquisitions which require use of the clause at FAR
52.219-9, Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan, the extent of participation of small and small
disadvantaged business in performance of the contact shall be addressed
in source selection.
(1) For acquisitions other than those based only on cost or price
competition, the contracting officer shall evaluate the extent to which
offerors identify and commit to small business and to small
disadvantaged business, historically black college and university, or
minority institution performance of the contract, whether as a joint
venture, teaming arrangement, or subcontractor.
(2) Criteria for evaluation may include--
(i) The extent which such firms are specifically identified in
proposals;
(ii) The extent of commitment to use such firms (for example,
enforceable commitments are to be weighted more heavily than non-
enforceable ones);
(iii) The complexity and variety of the work small firms are to
perform;
(iv) The realism of the proposal;
(v) When not otherwise required by 215.608(a)(2), past performance
of the offerors in complying with requirements of the clauses at FAR
52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns, and 52.219-9, Small, Small Disadvantaged and
Women-Owned Small Business Subcontracting Plan; and
(vi) The extent of participation of such firms in terms of the
value of the total acquisition.
(3) Proposals addressing the extent of small and small
disadvantaged business performance may be separate from subcontracting
plans submitted pursuant to the clause at FAR 52.219-9 and should be
structured to allow for consideration of offers from small businesses.
(4) When an evaluation includes the criterion in paragraph
(b)(2)(A)(2)(i) of this section, the small, small disadvantaged, or
women-owned small businesses considered in the evaluation shall be
listed in any subcontracting plan submitted pursuant to FAR 52.219-9 to
facilitate compliance with 252.219-7003(g).
(B) The costs or savings related to contract administration and
audit may be considered when the offeror's past performance or
performance risk is likely to result in significant costs or savings.
* * * * *
PART 219--SMALL BUSINESS PROGRAMS
16. Subpart 219.7 is amended by revising the title to read as
follows:
Subpart 219.7--Subcontracting with Small Business, Small
Disadvantaged Business and Women-Owned Small Business Concerns
17. Section 219.7201 is amended by revising the second sentence to
read as follows:
219.7201 Administration of the test program.
* * * The focal point for the test program is the Director, Small
and Disadvantaged Business Utilization (SADBU), Office of the Deputy
Under Secretary of Defense (International and Commercial Programs). * *
*
PART 223--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
18. Subpart 223.8 is added to read as follows:
Subpart 223.8--Ozone-Depleting Substances
223.803 Policy.
Section 211.271, Elimination of use of class I ozone-depleting
substances,
[[Page 50453]]
places restrictions on award or modification of DoD contracts requiring
the use of class I ozone-depleting substances. These restrictions are
in addition to any imposed by the Clean Air Act and apply after June 1,
1993, to all DoD contracts, regardless of place of performance.
PART 225--FOREIGN ACQUISITION
225.403 [Amended]
19. Section 225.403 is amended in paragraph (d)(1)(B) (3) by
inserting the work ``Subpart'' immediately before the reference
``225.71''.
20. Subpart 225.9 is added to read as follows:
Subpart 225.9--Additional Foreign Acquisition Clauses
225.970 Clause deviations in overseas contracts.
See 201.402(2) for approval authority for clause deviations in
overseas contracts with governments of North Atlantic Treaty
Organization (NATO) countries or other allies or with United Nations or
NATO organizations.
21. Section 225.7001 is amended by revising paragraph (a) to read
as follows:
225.7001 Definitions.
* * * * *
(a) Bearing components and miniature and instrument ball bearings
are defined in the clause at 252.225-7016, Restriction on Acquisition
of Ball and Roller Bearings.
* * * * *
22. Section 225.7002-2 is amended by revising paragraphs (e) and
(f) to read as follows:
225.7002-2 Exceptions.
* * * * *
(e) Acquisitions using simplified acquisition procedures.
(f) Acquisitions of end items incidentally incorporating cotton or
wool, for which the estimated value of the cotton or wool is not more
than 10 percent of the total price of the end item; provided the
estimated value of the cotton or wool does not exceed the simplified
acquisition threshold.
* * * * *
23. Section 225.7002-3 is revised to read as follows:
225.7002-3 Contract clauses.
Unless an exception is known to apply--
(a) Use the clause at 252.225-7012, Preference for Certain Domestic
Commodities, in all solicitations and contracts which meet or exceed
the simplified acquisition threshold.
(b) Use the clause at 252.225-7014, Preference for Domestic
Specialty Metals, in all solicitations and contracts over the
simplified acquisition threshold that require delivery of an article
containing specialty metals. Use the clause with its Alternate I in all
solicitations and contracts over the simplified acquisition threshold
requiring delivery, for one of the following major programs, of an
article containing specialty metals--
(1) Aircraft;
(2) Missile and space systems;
(3) Ships;
(4) Tank-automotive;
(5) Weapons; or
(6) Ammunition.
(c) Use the clause at 252.225-7015, Preference for Domestic Hand or
Measuring Tools, in all solicitations and contracts over the simplified
acquisition threshold calling for delivery of hand or measuring tools.
225.7002-4 [Removed]
24. Section 225.7002-4 is removed.
225.7011-4 [Amended]
25. Section 225.7011-4 is amended in the introductory text of
paragraph (b) by removing the phrase ``The Pentagon'' and inserting in
its place the phrase ``7100 Defense Pentagon''
225.7012-3 [Amended]
26. Section 225.7012-3 is amended by revising the section title to
read ``Contract clause.'' and by redesignating paragraphs (1) and (2)
as paragraphs (a) and (b), respectively.
27. Section 225.7019-2 is revised to read as follows:
225.7019-2 Exceptions.
(a) The restriction in 225.7019-1(a) does not apply to--
(1) Acquisitions using simplified acquisition procedures, unless
ball or roller bearings or bearing components are the end items being
purchased;
(2) Purchases of commercial items incorporating ball or roller
bearings;
(3) Miniature and instrument ball bearings when necessary to meet
urgent military requirements;
(4) Items acquired overseas for use overseas; or
(5) Ball and roller bearings or bearing components or items
containing bearings for use in a cooperative or co-production project
under an international agreement. This exception does not apply to
miniature and instrument ball bearings.
(b) The restriction in 225.7019-1(b) does not apply to contracts
for acquisition of commercial items or subcontracts for acquisition of
commercial items or subcontracts for acquisition of commercial items or
commercial components (see 212.503(a)(xi) and 212.504(a)(xxxvi)).
28. Section 225.7019-3 is amended by revising the introductory text
of paragraph (a)(2) and adding paragraph (a)(3) to read as follows:
225.7019-3 Waiver.
(a) * * *
(2) For multiyear contracts or contracts exceeding 12 months,
except those for miniature and instrument ball bearings, only if--
* * * * *
(3) For miniature and instrument ball bearings, only if the
contractor agrees to acquire a like quantity and type of domestic
manufacture for nongovernmental use.
* * * * *
29. Sections 225.7102, 225.7103, and 225.7104 are revised to read
as follows:
225.7102 Policy.
DoD requirements for the following forging items, whether as end
items or components, shall be acquired from domestic sources (as
described in the clause at 252.225-7025) to the maximum extent
practicable--
------------------------------------------------------------------------
Items Categories
------------------------------------------------------------------------
Ship propulsion shafts.................... Excludes service and landing
craft shafts.
Periscope tubes........................... All.
Ring forgings for bull gears.............. All greater than 120 inches
in diameter.
------------------------------------------------------------------------
225.7103 Exceptions.
The policy in 225.7102 does not apply to acquisitions--
(a) Using simplified acquisition procedures, unless the restricted
item is the end item being purchased;
(b) Overseas for overseas use; or
(c) When the quantity acquired exceeds the amount needed to
maintain the U.S. defense mobilization base (provided such quantity is
an economical purchase quantity). The restriction to domestic sources
does not apply to the quantity above that required to maintain the
base, in which case, qualifying country sources may compete.
225.7104 Waiver.
Upon request from a prime contractor, the contracting officer may
waive the requirement for domestic manufacture of the items covered by
the policy in 225.7102.
225.7303 [Amended]
30. Section 225.7303 is amended in the title by removing the
abbreviation
[[Page 50454]]
``(FMS)''; in the first sentence by revising the phrase ``foreign
military sale'' to read ``FMS''; and in the second sentence by revising
the phrase ``a foreign military sale'' to read ``an FMS''.
PART 227--PANTENTS, DATA, AND COPYRIGHTS
227.7004 [Amended]
31. Section 227.7004 is amended in paragraph (c)(6) by revising the
phrase ``Defense Nuclear Agency'' to read ``Defense Special Weapons
Agency''.
227.7009-1 [Amended]
32. Section 227.7009-1 is amended by removing paragraph (a); by
redesignating paragraphs (b) through (f) as paragraphs (a) through (e),
respectively; and in newly designated paragraph (d) by revising the
reference ``FAR 33.014'' to read ``FAR subpart 33.2''.
PART 228--BONDS AND INSURANCE
228.171, 228.171-1, 228.171-2, and 228.171-3 [Removed]
33. Sections 228.171, 228.171-1, 228.171-2, and 228.171-3 are
removed.
228.311-1 [Removed]
34. Section 228.311-1 is removed.
228.311-2 [Redesignated]
35. Section 228.311-2 is redesignated as 228.311-1.
36. Section 228.370 is amended by revising the title to read as
follows:
228.370 Additional clauses.
PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES
37. Section 231.205-6 is amended in paragraph (a)(2) by revising
the parenthetical phrase to read ``(Section 8117 of Pub. L. 103-335)''
and in paragraph (f)(1) by revising the first sentence to read as
follows:
231.205-6 Compensation for personal services.
* * * * *
(f)(1) Costs for bonuses or other payments in excess of the normal
salary paid by the contractor to an employee, that are part of
restructuring costs associated with a business combination, are
unallowable under DoD contracts funded by fiscal year 1996
appropriations (Section 8122 of Pub. L. 104-61). * * *
231.205-70 [Amended]
38. Section 231.205-70 is amended in paragraph (d)(2) by removing
the phrase ``paragraph (c)(1)(iv) of this subsection'' and inserting
``231.205-70(c)(1)(iv)'' in its place.
231.205-71 [Amended]
39. Section 231.205-71 is amended in paragraph (b) by removing the
phrase ``Assistant Secretary of Defense for Economic Security'' and
inserting in its place the phrase ``Deputy Under Secretary of Defense
for Industrial Affairs and Installations''.
PART 232--CONTRACT FINANCING
40. Section 232.803 is amended by revising paragraph (d) to read as
follows:
232.803 Policies.
* * * * *
(d) Pursuant to Section 3737(e) of the Revised Statutes (41 U.S.C.
15), and in accordance with Presidential delegation dated October 3,
1995, Secretary of Defense delegation dated February 5, 1996, and Under
Secretary of Defense for Acquisition and Technology delegation dated
February 23, 1996, the Director of Defense Procurement determined on
May 10, 1996, that a need exists for DoD to agree not to reduce or set
off any money due or to become due under the contract when the proceeds
under the contract have been assigned in accordance with the Assignment
of Claims provision of the contract. This determination was published
in the Federal Register on June 11, 1996, as required by law.
Nevertheless, if departments/agencies decide it is in the Government's
interests, or if the contracting officer makes a determination in
accordance with FAR 32.803(d) concerning a significantly indebted
offeror, they may exclude the no-setoff commitment.
PART 235--RESEARCH AND DEVELOPMENT CONTRACTING
41. Section 235.006 is amended by revising paragraphs (a) and
(b)(iv) to read as follows:
235.006 Contracting methods and contract type.
(a) All contracts under the Manufacturing Technology Program (see
DoDI 4200.15, Manufacturing Technology Program) shall be awarded using
competitive procedures (10 U.S.C. 2525).
(b) * * *
(iv) A cost-sharing arrangement (see FAR 16.303) must be used for
contracts awarded in support of the Manufacturing Technology Program,
unless an alternative is approved by the Secretary of Defense (10
U.S.C. 2525). Approval by the Secretary of Defense to use other than a
cost-sharing arrangement for the Manufacturing Technology Program must
be based on a determination that the contract is for a program that--
(A) Is not likely to have any immediate and direct commercial
application;
(B) Is of sufficiently high risk to discourage cost sharing by non-
Federal Government sources; or
(C) Will be carried out by an institution of higher education.
235.7002 [Amended]
42. Section 235.7002 is amended in paragraph (a)(4) by revising the
phrase ``Defense Nuclear Agency'' to read ``Defense Special Weapons
Agency''.
235.7003 [Amended]
43. Section 235.7003 is amended in paragraph (b)(4)(ii) by revising
the phrase ``Defense Nuclear Agency:'' to read ``Defense Special
Weapons Agency:''; and by revising the phrase ``Acquisition Management
Office'' to read `'Acquisition Management Directorate''.
PART 239--ACQUISITION OF INFORMATION RESOURCES
44. Section 239.7501-2 is revised to read as follows:
239.7501-2 Restriction.
Section 8028 of the FY 1992 Defense Appropriations Act (Pub. L.
102-172) and similar sections of the FY 1993, FY 1994, and FY 1995
Defense appropriations acts prohibit use of DoD appropriations for
acquisition of major automated information systems, unless the systems
have successfully completed oversight reviews required by DoD
regulations.
PART 242--CONTRACT ADMINISTRATION
45. Section 242.302 is amended in paragraph (a)(19) by revising the
reference `'252.225-7008'' to read ``252.225-7009'' and by adding
paragraph (a)(67) to read as follows:
242.302 Contract administration functions.
(a) * * *
(67) Also support program offices and buying activities in
precontractual efforts leading to a solicitation or award.
* * * * *
242.803 [Amended]
46. Section 242.803 is amended at the end of paragraph (b)(i)(C) by
changing the period to a semicolon.
47. Section 242.1106 is amended by revising paragraph (a)(i) to
read as follows:
242.1106 Reporting requirements.
(a) * * *
[[Page 50455]]
(i) DoD 5000.2-R, Mandatory Procedures for Major Defense
Acquisition Programs (MDAPs) and Major Automated Information System
(MAIS) Acquisition Programs; and
* * * * *
48. Section 242.1107-70 is revised to read as follows:
242.1107-70 Additional clauses.
When cost/schedule status reporting (C/SSR) is required on
acquisitions for other than major systems (i.e., the Contract Data
Requirements List includes DI-MGMT-81467), use in solicitations and
resulting contracts the clause at 252.242-7005, Cost/Schedule Status
Report.
49. Section 242.7202 is amended by revising paragraph (d) to read
as follows:
242.7202 Policy.
* * * * *
(d) Conforms to the standards at 252.242-7004(f) when the
contractor has cost-reimbursement or fixed-price contracts exceeding
the simplified acquisition threshold, with progress or other contract
financing provisions, except when all of the contracts and subcontracts
are awarded under the set-aside or Section 8(a) procedures of FAR part
19.
50. Section 242.7203 is revised to read as follows:
242.7203 MMAS disclosure, demonstration, and maintenance requirements.
(a) A large business contractor is subject to MMAS disclosure,
demonstration, and maintenance if in its preceding fiscal year the
contractor received DoD prime contracts or subcontracts (including
modifications) totaling--
(1) $70 million or more; or
(2) $30 million or more (but less than $70 million), and the
contracting officer determines it to be in the best interests of the
Government (e.g., contractor disclosure, demonstration, or other
activities indicate significant MMAS problems exist).
(b) After the administrative contracting officer determines the
contractor's MMAS is adequate (see 242.7204(b)), written disclosure
will not be required for the next MMAS review unless the contractor's
policies, procedures, or practices have changed in the interim
period(s). Similarly, once the contractor demonstrates that its MMAS
contains no significant deficiencies, demonstration requirements for
subsequent reviews may be satisfied if internal audits are reasonably
current and contain sufficient transaction tests to demonstrate MMAS
compliance with each standard.
242.7204 [Amended]
51. Section 242.7204 is amended in paragraph (a)(1) by revising the
reference ``242.7203'' to read ``242.7203(a)''; and in paragraph (a)(2)
by revising the reference ``242.7203(b)'' to read ``242.7203(a)(2)''.
242.7206 [Amended]
52. Section 242.7206 is amended in the introductory text by
removing the phrase ``in FAR part 13''.
PART 244--SUBCONTRACTING POLICIES AND PROCEDURES
244.303 [Removed]
53. Section 244.303 is removed.
244.304 [Amended]
54. Section 244.304 is amended in the introductory text of
paragraph (b) by removing the abbreviation ``PSA'' and inserting in its
place the phrase ``purchasing system analyst (PSA)''.
PART 249--TERMINATION OF CONTRACTS
249.7001 [Amended]
55. Section 249.7001 is amended in paragraph (b)(4) by revising the
phrase ``Advanced Research Projects Agency--CMO'' to read ``Defense
Advanced Research Projects Agency--CMO''; and in paragraph (b)(9) by
revising the phrase ``Defense Nuclear Agency--Chief, Office of
Procurement, OATR'' to read ``Defense Special Weapons Agency--
Acquisition Management Directorate (AM)''.
PART 250--EXTRAORDINARY CONTRACTUAL ACTIONS
250.303 [Amended]
56. Section 250.303 is amended in paragraph (5) by revising the
phrase ``Advanced Research Projects Agency--'' to read ``Defense
Advanced Research Projects Agency--''; and in paragraph (10) by
revising the phrase ``Defense Nuclear Agency--'' to read ``Defense
Special Weapons Agency--'', by revising the abbreviation ``DNA'' to
read ``DSWA'', and by revising the abbreviation ``OAPR'' to read
``AM''.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.212-7000 [Amended]
57. Section 252.212-7000 is amended in the introductory text by
revising the reference ``212.301(f)(iii)'' to read ``212.301(f)(ii)''.
252.212-7001 [Amended]
58. Section 252.212-7001 is amended in the introductory text by
revising the reference ``212.301(f)(iv)'' to read ``212.301(f)(iii)''.
252.225-7012 [Amended]
59. Section 252.225-7012 is amended in the introductory text by
revising the reference ``225.7002-4(a)'' to read ``225.7002-3(a)''.
252.225-7013 [Removed and Reserved]
60. Section 252.225-7013 is removed and reserved.
252.225-7014 [Amended]
61. Section 252.225-7014 is amended in the introductory text by
revising the reference ``225.7002-4(c)'' to read ``225.7002-3(b)''; and
in the introductory text of ALTERNATE I by revising the reference
``225.7002-4(c)'' to read ``225.7002-3(b)''.
252.225-7015 [Amended]
62. Section 252.225-7015 is amended in the introductory text by
revising the reference ``225.7002-4(d)'' to read ``225.7002-3(c)''.
63. Section 252.225-7016 is revised to read as follows:
252.225-7016 Restriction on Acquisition of Ball and Roller Bearings.
As prescribed in 225.7019-4, use the following clause:
Restriction on Acquisition of Ball and Roller Bearings (Sep 1996)
(a) Definitions.
As used in this clause--
(1) ``Bearing components'' means the bearing element, retainer,
inner race, or outer race.
(2) ``Miniature and instrument ball bearings'' means all rolling
contact ball bearings with a basic outside diameter (exclusive of
flange diameters) of 30 millimeters or less, regardless of material,
tolerance, performance, or quality characteristics.
(b) The Contractor agrees that all ball and roller bearings and
ball and roller bearing components (including miniature and
instrument ball bearings) delivered under this contract, either as
end items or components of end items, shall be wholly manufactured
in the United States or Canada. Unless otherwise specified, raw
materials, such as preformed bar, tube, or rod stock and lubricants,
need not be mined or produced in the United States or Canada.
(c) The restriction in paragraph (b) of this clause does not
apply to the extent that the end items or components containing ball
or roller bearings are commercial items. The commercial item
exception does not include items designed or developed under a
Government contract or contracts where the end item is bearings and
bearing components.
(d) The restriction in paragraph (b) of this clause may be
waived upon request from the
[[Page 50456]]
Contractor in accordance with subsection 225.7019-3 of the Defense
Federal Acquisition Regulation Supplement. If the restriction is
waived for miniature and instrument ball bearings, the Contractor
agrees to acquire a like quantity and type of domestic manufacture
for nongovernmental use.
(e) The Contractor agrees to retain records showing compliance
with this restriction until 3 years after final payment and to make
records available upon request of the Contracting Office.
(f) The Contractor agrees to insert this clause, including this
paragraph (f), in every subcontract and purchase order issued in
performance of this contract, unless items acquired are--
(1) Commercial items other than ball or roller bearings; or
(2) Items that do not contain ball or roller bearings.
(End of clause)
64. Section 252.225-7025 is revised to read as follows:
252.225-7025 Foreign Source Restrictions.
As prescribed in 225.7105, use the following clause:
Foreign Source Restrictions (Sep 1996)
(a) Definitions.
As used in this clause--
(1) Domestic manufacture means manufactured in the United States
or Canada if the Canadian firm--
(i) Normally produces similar items or is currently producing
the item in support of DoD contracts (as prime or subcontractor);
and
(ii) Agrees to become (upon receiving a contract/order) a
planned producer under DoD's Industrial Preparedness Program (IPP),
if it is not already a planned producer for the item.
(2) Forging items means--
------------------------------------------------------------------------
Items Categories
------------------------------------------------------------------------
Ship propulsion shafts.................... Excludes service and landing
craft shafts.
Periscope tubes........................... All.
Ring forgings for bull gears.............. All greater than 120 inches
in diameter.
------------------------------------------------------------------------
(b) The Contractor agrees that end items and their components
delivered under this contract shall contain forging items that are
of domestic manufacture only.
(c) The restriction in paragraph (b) of this clause may be
waived upon request from the Contractor in accordance with section
225.7104 of the Defense Federal Acquisition Regulation Supplement.
(d) The Contractor agrees to retain records showing compliance
with this restriction until 3 years after final payment and to make
records available upon request of the Contracting Officer.
(e) The Contractor agrees to insert this clause, including this
paragraph (e), in subcontracts and purchase orders issued in
performance of this contract, when products purchased contain
restricted forging items.
(End of clause)
65. Section 252.228-7001 is amended by revising the clause date to
read ``(SEP 1996)''; by revising paragraph (d)(2); in paragraph (e) by
removing ``$1,000'' both places it appears and inserting ``$25,000'' in
its places; in the introductory text of paragraph (h) by removing the
phrase ``In the event the'' and inserting in its place the phrase ``In
the event of''; and by revising paragraph (i)(1), the introductory text
of paragraph (i)(2), and paragraph (k). The revised text reads as
follows:
252.228-7001 Ground and flight risk.
* * * * *
(d) * * *
(2) Is sustained during flight if the flight crew members have
not been approved in writing by the Government Flight
Representative, who has been authorized in accordance with the
combined regulation entitled ``Contractor's Flight and Ground
Operations'' (Air Force Regulation 55-22, Army Regulation 95-20,
NAVAIR Instruction 3710.1C, and Defense Logistics Agency Manual
8210.1);
* * * * *
(i) * * *
(1) Require that the aircraft be replaced or restored by the
Contractor to the condition immediately prior to the damage, in
which event the Contracting Officer will make an equitable
adjustment in the contract price and the time for contract
performance; or
(2) Terminate this contract with respect to the aircraft, in
which event the Contractor shall be paid the contract price for the
aircraft (or, if applicable, any work to be performed on the
aircraft) less any amount the Contracting Officer determines--
* * * * *
(k) The Contractor agrees to be bound by the operating
procedures contained in the combined regulation entitled
``Contractor's Flight and Ground Operations'' in effect on the date
of contract award.
(End of clause)
66. Section 252.228-7002 is amended by revising the clause date to
read ``(SEP 1996)''; and by revising section title, the introductory
text of paragraph (c), and paragraph (e) to read as follows:
252.228-7002 Aircraft flight risk.
* * * * *
(c) Unless the flight crew members previously have been approved
in writing by the Government Flight Representative, who has been
authorized in accordance with the combined regulation entitled
``Contractor's Flight and Ground Operations'' (Air Force Regulation
55-22, Army Regulation 95-20, NAVAIR Instruction 3710.1C, and
Defense Logistics Agency Manual 8210.1), the Contractor shall not
be--
* * * * *
(e) The Contractor agrees to be bound by the operating
procedures contained in the combined regulation entitled
``Contractor's Flight and Found Operations'' in effect on the date
of contract award.
(End of clause)
252.228-7006 and 252.228-7007 [Removed]
67. Sections 252.228-7006 and 252.228-7007 are removed.
68. Section 252.242-7004 is amended by revising the clause date to
read ``(SEP 1996)''; by adding paragraph (a)(3); and by revising
paragraphs (c)(2)(i), (c)(2)(ii), (f)(7)(i), and (f)(7)(ii), and
paragraph (f)(7)(iii) introductory text to read as follows:
252.242-7004 Material management and accounting system.
* * * * *
(a) * * *
(3) ``Contractor'' means a business unit as defined in section
31.001 of the Federal Acquisition Regulation (FAR).
* * * * *
(c) * * *
(2) * * *
(i) $70 million or more; or
(ii) $30 million or more (but less than $70 million), and is
notified in writing by the Contracting Officer that paragraphs (d)
and (e) apply.
(f) * * *
(7) * * *
(i) The Contractor shall maintain and disclose written policies
describing the transfer methodology and the loan/pay-back technique.
(ii) The costing methodology may be standard or actual cost, or
any of the inventory costing methods in 48 CFR 9904.411-50(b).
Consistency shall be maintained across all contract and customer
types, and from accounting period to accounting period for initial
charging and transfer charging.
(iii) The system should transfer parts and associated costs
within the same billing period. In the few instances where this may
not be appropriate, the Contractor may accomplish the material
transaction using a loan/pay-back technique. The ``loan/pay-back
technique'' means that the physical part is moved temporarily from
the contract, but the cost of the part remains on the contract. The
procedures for the loan/pay-back technique must be approved by the
Administrative Contracting Officer. When the technique is used, the
Contractor shall have controls to ensure--
* * * * *
PART 253--FORMS
253.204-70 [Amended]
69. Section 253.204-70 is amended in paragraph (c)(4)(ix)(B)(9) by
revising the reference ``FAR 6.302-3(a)(2)(i)'' to read ``FAR 6.302-
3(a)(2)''.
Appendix B to Chapter 2--[Amended]
70. Appendix B to Chapter 2 is amended in Part 5 by revising in the
title the phrase ``DEFENSE NUCLEAR
[[Page 50457]]
AGENCY'' to read ``DEFENSE SPECIAL WEAPONS AGENCY''; and by revising
the abbreviation ``DNA'' to read ``DSWA'' both places it appears.
Appendix C to Chapter 2--[Removed and Reserved]
71. Appendix C to Chapter 2 is removed and reserved.
Appendix G to Chapter 2--[Amended]
72. Appendix G to Chapter 2 is amended in Part 1, Section G-101,
paragraph (c), by removing the address ``**Defense Nuclear Agency,
Chief, Contract Division, Defense Nuclear Agency, Washington, DC 20305-
1000'' and inserting in its place the address ``**Defense Special
Weapons Agency, Director, Acquisition Management Directorate, Defense
Special Weapons Agency, 6801 Telegraph Road, Alexandria, VA 22310-
3398''.
73. Appendix G to Chapter 2 is amended in Part 2 by revising entry
DASG60-CB to read as follows:
PART 2--ARMY ACTIVITY ADDRESS NUMBERS
* * * * *
DASG60-CB
USA Space and Strategic Defense Command, Deputy Commander, ATTN:
CSSD-CM, P.O. Box 1500, Huntsville, AL 35807-3801
* * * * *
74. Appendix G to Chapter 2 is amended in Part 3 by removing entry
N66032--LK and the address that follows; by revising the entries for
activity address numbers N00022, N31149, N52855, N61463, N62472,
N66022, N66972, N67596, and N68409; and by adding entries for activity
address numbers N00038, N0610A, N39088, N43636, N48984, N53863, N55105,
N55271, N57092, N66101, N68317, N68326, N68389, N68482, N68573, and
N68939. The revised and added text reads as follows:
PART 3--NAVY ACTIVITY ADDRESS NUMBERS
* * * * *
N00022--ML*, MQ*, NV*, MLZ
Chief of Naval Personnel, Washington, DC 20370-2000
* * * * *
N00038 (MAJ00011)--LB-5
U.S. Commander-in-Chief, Pacific, HQ Support Division, Box 64017,
Code J145, Camp H.N. Smith, HI 96861-4017
* * * * *
N0610A (MAJ00062)--L98
Commanding Officer, Naval Diving and Salvage Training Center, 350
South Crag Road, Panama City, FL 32407-7016
* * * * *
N31149 (MAJ00024)--EHA-B
Naval Sea Logistics Center Detachment, Philadelphia Naval Base,
Philadelphia, PA 19112-5061
* * * * *
N39088 (MAJ00022)--NVF
Navy Recruiting Orientation Unit, 206 South Avenue, Suite C,
Pensacola, FL 32508-5102
* * * * *
N43646 (MAJ00023)--4JB
Defense Printing Service, Detachment Branch Office, 5403 Southside
Drive, Louisville, KY 40214
* * * * *
N48984 (MAJ00023)--L5E
Defense Printing Service, Detachment Office, 901 South Drive, Scott
Air Force Base, IL 62225-5106
* * * * *
N52855--LZ
Special Boat Unit 11, FPO AP 96601-4517
* * * * *
N53863 (MAJ00060)--LHH
Commander, Surface Warfare Development Group, 2200 Amphibious
Drive, Norfolk, VA 23521-2850
* * * * *
N55105 (MAJ00060)--NMC
Amphibious Construction Batallion Two, 1815 Seabee Drive, Norfolk,
VA 23701
* * * * *
N55271 (MAJ00070)--LP8
Commander, Combat Logistics Group One (N716), Building 221-2W, NSC,
Oakland, CA 94625-5309
* * * * *
N57092 (MAJ00070)--V5U
Naval Inshore Undersea Warfare Group One, Building 184, Box
357140NOLF, Imperial Beach, CA 92135-7140
* * * * *
N61463 (MAJ00060)--LHB-D, LH2-4
Supply Officer, COMNAVBASE Supply, 1530 Gilbert Street, Suite 8,
Norfolk, VA 23511-2793
* * * * *
N62472--JP
Naval Facilities Engineering Command, Northern Division, 10
Industrial Highway, Mail Stop # 82k Lester, PA 19113
* * * * *
N66022 (MAJ00018)--MDW
Naval Dental Center, San Diego, CA 92136-5147
* * * * *
N66101 (MAJ00018)--J5B-D
U.S. Naval Hospital ROTA, PSC 819, Box 18, FPO AE 09645-2500
* * * * *
N66972 (MAJ00022)--MQ2
Commanding Officer, Navy Recruiting District, 8525 N.W. 53red
Terrace, Suite 201, Miami, FL 33166
N67596 (MAJ00022)--NVD
Commanding Officer, Navy Recruiting District, 10500 N. U.S. Highway
281, Suite 108, San Antonio, TX 78216-3630
* * * * *
N68317 (MAJ00062)--R03
Naval Administrative Unit, 1 Amsterdam Road, Scotia NY 12302-9460
* * * * *
N68326 (MAJ00018)--MDA
Naval Dental Center, 2707 Sheridan Road, Bldg 73, Great Lakes, IL
60088-5258
* * * * *
N68389 (MAJ00011)--LB4
Commander, Joint Intelligence Center, Pacific/DSL, P.O. Box 500,
Bldg 352, Makalapa Drive, Pearl Harbor, HI 96860-7450
* * * * *
N68409 (MAJ00018)--QAU
Naval Dental Center, San Francisco, CA 94130-5030
* * * * *
N68482 (MAJ00022)
Department of the Navy, BUPERS Det DAPMAL, Bldg 11, Naval Training
Center, 32110 Perry Road, Suite 110, San Diego, CA 92133-1521
* * * * *
N68573 (MAJ00023)--4JM
Navy Exchange Service Center, NAVABASE, Norfolk, Bldg CD-1, 9222
Hamption Blvd, Norfolk, VA 23511-6390
* * * * *
N68939 (MAJ00012)--V8R
Naval Information Systems Management Center, Washington Navy Yard,
Bldg 176-4, Washington, DC 20374-5070
* * * * *
75. Appendix G to Chapter 2 is amended by revising Part 9 to read
as follows:
PART 9--DEFENSE SPECIAL WEAPONS AGENCY ACTIVITY ADDRESS NUMBERS
DSWA01--8Z
Defense Special Weapons Agency, Headquarters, ATTN; Acquisition
Management Directorate (AM), 6801 Telegraph Road, Alexandria, VA 22310-
3398 (ZD30)
DSWA02--0N
Defense Special Weapons Agency, Field Command, ATTN: Acquisition
Management Office (FCA), 1680 Texas Street, S.E., Kirtland AFB, NM
87115-5669
[[Page 50458]]
(ZD31)
76. Appendix G to Chapter 2 is amended in Part 10 by revising under
entry ``MDA972--WS'' the abbreviation ``ARPA'' to ``DARPA''.
Appendix I to Chapter 2 [Amended]
77. Appendix I to Chapter 2 is amended in section I-102, paragraphs
(a) and (b), and in section I-103, paragraph (a), by revising the date
``September 30, 1995'' to read ``September 30, 1996''.
[FR Doc. 96-24064 Filed 9-25-96; 8:45 am]
BILLING CODE 5000-04-M
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