issue-1994-01-05•Federal Register final rules — 1994-01-05
Federal Register final rules — 1994-01-05
issue-1994-01-05Federal Register final rules — 1994-01-05Regulation
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. 94-98 Freedom of Information Regulations
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 531-536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-98]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 20
[Docket No. 92N-0244]
Freedom of Information Regulations
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending its public
information regulations to reflect changes already adopted by the
agency as a result of the 1986 amendments to the Freedom of Information
Act (the FOIA), executive branch directives, and judicial standards
governing disclosure of agency records under the FOIA. In practice, FDA
modified its policies and procedures to comply with these changes as
they became effective. The regulations are being updated to reflect
these changes. The agency is also adding clarifying language to certain
of its public information regulations and making technical changes
necessary to update citations and cross-references.
DATES: Effective January 5, 1994. Written comments by March 7, 1994. As
provided in Sec. 10.40(e) (21 CFR 10.40(e)), FDA is providing an
opportunity for public comment on whether the regulations should
subsequently be modified or revoked.
ADDRESSES: Submit written comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr.,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Gerald H. Deighton, Freedom of
Information Staff (HFI-30), Food and Drug Administration, 5600 Fishers
Lane, Rockville, MD 20857, 301-443-6310.
SUPPLEMENTARY INFORMATION:
I. Background
FDA's practice and policy under the FOIA have undergone a number of
changes as a result of legislation, executive directives, and judicial
precedents over the past years. FDA modified and updated its practices
and policies to comply with these changes as they became effective. FDA
is now formally amending its public information regulations to reflect
changes that were required by law and which have already been put into
effect. Specifically, FDA is updating its public information
regulations to reflect provisions of the Omnibus Budget Reconciliation
Act of 1990 (Pub. L. 101-508), the Freedom of Information Reform Act of
1986 (Pub. L. 99-570), Executive Order 12600 (June 23, 1987)
establishing predisclosure notification procedures, guidelines
promulgated by the Office of Management and Budget (OMB) (52 FR 10012
at 10018, March 27, 1987), the revised Department of Health and Human
Services (DHHS) regulations at 45 CFR part 5, and the widely adopted
District of Columbia (D.C.) Circuit Court of Appeals opinion in Public
Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983).
The agency is also adding language to Secs. 20.53 and 20.85 (21 CFR
20.53 and 20.83) in order to clarify particular aspects of those
regulations that have been the subject of some confusion. In addition,
FDA is making technical revisions to certain public information
regulations to update citations to cross-references that have changed
since the last revision of part 20 (21 CFR part 20).
II. Procedural Amendments
A. Investigatory Records Compiled for Law Enforcement Purposes
The language of Sec. 20.64, regarding records compiled for law
enforcement purposes, is being changed to conform to the 1986
amendments to the FOIA, which broadened the FOIA exemption 5 U.S.C.
552(b)(7) that protects certain law enforcement records from mandatory
public disclosure.
B. Disclosure to Congress
Section 20.87 is being revised to reflect the provision of the
Omnibus Budget Reconciliation Act of 1990 that removed the statutory
barrier that previously prohibited FDA from disclosing certain trade
secret information to Congress, (Pub. L. 101-508). Section 4755(c)(2)
of the Omnibus Budget Reconciliation Act of 1990 amended section 301(j)
of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C.
331(j)) in order to permit FDA to disclose to Congress certain trade
secret information that is otherwise prohibited from disclosure except
to employees of DHHS or to the courts in relevant judicial proceedings.
Such disclosures to Congress may only be pursuant to a request from the
Senate, the House of Representatives, any committee or subcommittee
with jurisdiction over the matter being investigated, or any joint
committee of Congress or any subcommittee of such joint committee.
C. Trade Secret and Confidential Commercial Information
Executive Order 12600, issued June 23, 1987, requires Federal
agencies to establish predisclosure notification procedures in certain
circumstances before releasing commercial information submitted by
businesses. FDA has complied with the terms of the Executive Order
since it became effective, and has followed the procedures adopted by
DHHS in the regulations published in the Federal Register of November
25, 1988 (53 FR 47697). To clarify these practices and for the
convenience of the public, FDA is incorporating DHHS' regulations
concerning predisclosure notification into FDA's regulations governing
the disclosure of trade secret and confidential commercial information
at Sec. 20.61. Accordingly, the standards and procedures promulgated by
DHHS at 45 CFR 5.65(c), (d), and (e) are being added to FDA's public
information regulations in Sec. 20.61(d), (e), and (f).
Section 20.61 also is being amended to reflect the narrow
definition of ``trade secret'' that was adopted by the D.C. Circuit
Court of Appeals in Public Citizen Health Research Group v. FDA, 704
F.2d 1280, 1288 (D.C. Cir. 1983). That definition requires a direct
relationship between the information being protected and the productive
process. The definition adopted by the D.C. Circuit in that case has
become the most widely adopted judicial test for defining trade secret
information under the FOIA and is already codified in the DHHS FOIA
regulations at 45 CFR 5.65(a). This amendment to Sec. 20.61 will not
affect agency practice because FDA has distinguished between trade
secret and confidential commercial information in accordance with the
definition in the Public Citizen Health Research Group v. FDA case
since that case was decided.
D. Fees and Fee Waivers
Sections 20.42 and 20.43 are being amended to reflect changes
required by the 1986 amendments to the FOIA concerning fees and fee
waivers and the OMB guidelines promulgated to implement those changes.
FDA is adopting the standards and procedures promulgated by DHHS at 45
CFR 5.41 through 5.45, except that 45 CFR 5.42(g) is excluded from
Sec. 20.42 because 45 CFR 5.42(g) pertains only to the Social Security
Administration. In general, the regulations being adopted codify the
descriptions of categories of requesters, the new fee structure and fee
limitations, and the revised standards for fee waivers or reductions
established by the 1986 amendments to the FOIA.
Section 20.41 is being amended to remove the paragraphs that refer
to $25 as the amount that triggers a requirement for prepayment of FOIA
fees. The guidelines promulgated by OMB and the DHHS regulations
include an advance payment provision for fees that exceed $250. That
requirement is being included in revised Sec. 20.42.
III. Clarifications
A. Indexing Trade Secrets and Confidential Commercial or Financial
Information
A recent report by the General Accounting Office (GAO) criticized
FDA's regulation concerning Sec. 20.53 Indexing trade secrets and
confidential or financial information. GAO believed that it would be an
abrogation of the agency's responsibilities to disclose information in
those circumstances when a submitter failed to intervene to defend
against the release of its records. The report hypothesized
circumstances in which a firm could suffer severe financial loss
because it could not afford legal representation to defend the
competitive value of its commercial information.
Although the regulation has been in effect for almost two decades,
such a situation has never materialized. The agency continues to
believe that the burden of defending business related records should be
borne by the owner and submitter of such information, who is in the
best position to explain the competitive harm that may result from
disclosure. A company's unwillingness to take steps to protect the
information it has submitted to the agency and to index the records at
issue is ordinarily evidence to FDA that disclosure of the information
is not likely to cause the submitter substantial competitive harm.
However, the agency has never and would not at any time abandon its
responsibilities to protect information that is truly prohibited from
release. Although the situation has never previously arisen, there may
be exceptional circumstances that would make it unreasonable for FDA to
expect a submitter to participate as an intervenor in defending the
proprietary value of its records. Accordingly, the language of the
regulation is being amended to clarify that a company's failure to
intervene to defend the exempt status of its information and to itemize
and index the disputed records is not treated as an automatic waiver of
the submitter's interest in protection of the information.
B. Disclosure to Other Federal Agencies
A 1991 contract report ``FDA Safeguards Against Improper Disclosure
of Financially Sensitive Information,'' which was undertaken as part of
the FDA Commissioner's integrity initiative, recommended that FDA
obtain written pledges of confidentiality when it provides nonpublic
information to other Federal agencies, such as the Securities Exchange
Commission (SEC), as part of cooperative law enforcement efforts. FDA's
regulations governing the disclosure of information to other Federal
agencies, Sec. 20.85, is intended to require written commitments of
confidentiality, and staff manual guides and internal agency guidance
have consistently instructed personnel to obtain such written
commitments. However, because the 1991 report named above suggested
some confusion among FDA and other Department and Federal employees,
FDA is adding the word ``written'' to Sec. 20.85 so that the regulation
clearly states that such disclosures can only be made pursuant to a
``written'' agreement.
IV. Technical Changes
Section 20.100 is being revised to update cross-references that
have changed because agency regulations have been amended or new
regulations have been promulgated since the last revision of part 20.
Because the agency's current practice with respect to disclosure of
records will not change as a result of any of these amendments, and
because the amendments set forth in section I. of this document are
required either by statute, executive branch directives, or judicial
decisions, FDA finds for good cause under Sec. 10.40(e) that notice and
public procedure are unnecessary (5 U.S.C. 553(b)(3)(B) and (d)).
However, under Sec. 10.40(e), FDA is providing an opportunity for
comment to determine whether the regulations should subsequently be
modified or revoked.
V. Request for Comments
Interested persons may, on or before March 7, 1994 submit to the
Dockets Management Branch (address above) written comments regarding
this final rule. Two copies of any comments are to be submitted, except
that individuals may submit one copy. Comments are to be identified
with the docket number found in brackets in the heading of this
document. Received comments may be seen in the office above between 9
a.m. and 4 p.m., Monday through Friday.
VI. Environmental Impact
The agency has determined under 21 CFR 25.24(a)(8) that this action
is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
VII. Economic Impact
FDA has examined the impacts of the final rule under Executive
Order 12866 and the Regulatory Flexibility Act. Executive Order 12866
directs agencies to assess all costs and benefits of available
regulatory alternatives and, when regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects; distributive
impacts; and equity). The Regulatory Flexibility Act (Pub. L. 96-354)
requires analyzing options for regulatory relief for small businesses.
This rule amends the regulations for FDA's practice and policy
under the FOIA. Because the amendments merely update the regulations to
reflect procedural changes already adopted by the agency as a result of
legislation, executive branch directives, or legal precedents, no
additional impact is anticipated. Accordingly, FDA finds that this
final rule is not a significant regulatory action as defined by
Executive Order 12866. In compliance with the Regulatory Flexibility
Act, the agency certifies that the final rule will not have a
significant impact on a substantial number of small businesses.
List of Subjects in 21 CFR Part 20
Confidential business information, Courts, Freedom of information,
Government employees.
Therefore, under the Federal Food, Drug, and Cosmetic Act, the
Public Health Service Act, and the Freedom of Information Act, and
under the authority delegated to the Commissioner of Food and Drugs, 21
CFR part 20 is amended as follows:
PART 20--PUBLIC INFORMATION
1. The authority citation for 21 CFR part 20 continues to read as
follows:
Authority: Secs. 201-903 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321-393); secs. 301, 302, 303, 307, 310, 311, 351,
352, 354-360F, 361, 362, 1701-1706, 2101 of the Public Health
Service Act (42 U.S.C. 241, 242, 242a, 242l, 242n, 243, 262, 263,
263b-263n, 264, 265, 300u-300u-5, 300aa-1); 5 U.S.C. 552; 18 U.S.C.
1905.
Sec. 20.41 [Amended]
2. Section 20.41 Time limitations is amended by removing paragraphs
(b)(5), (c), and (d).
3. Section 20.42 is revised to read as follows:
Sec. 20.42 Fees to be charged.
(a) Categories of requests. Paragraphs (a)(1) through (3) of this
section state, for each category of request, the type of fees that the
Food and Drug Administration will generally charge. However, for each
of these categories, the fees may be limited, waived, or reduced for
the reasons given in paragraphs (b) and (c) of this section and in
Sec. 20.43 or for other reasons.
(1) Commercial use request. If the request is for a commercial use,
the Food and Drug Administration will charge for the costs of search,
review, and duplication.
(2) Educational and scientific institutions and news media. If the
request is from an educational institution or a noncommercial
scientific institution, operated primarily for scholarly or scientific
research, or a representative of the news media, and the request is not
for a commercial use, the Food and Drug Administration will charge only
for the duplication of documents. Also, the Food and Drug
Administration will not charge the copying costs for the first 100
pages of duplication.
(3) Other requests. If the request is not the kind described in
paragraph (a)(1) or (a)(2) of this section, then the Food and Drug
Administration will charge only for the search and the duplication.
Also, the Food and Drug Administration will not charge for the first 2
hours of search time or for the copying costs of the first 100 pages of
duplication.
(b) General provisions. (1) The Food and Drug Administration may
charge search fees even if the records found are exempt from disclosure
or if no records are found.
(2) If, under paragraph (a)(3) of this section, there is no charge
for the first 2 hours of search time, and those 2 hours are spent on a
computer search, then the 2 free hours are the first 2 hours of the
operator's own operation. If the operator spends less than 2 hours on
the search, the total search fees will be reduced by the average hourly
rate for the operator's time, multiplied by 2.
(3) If, under paragraph (a)(2) or (a)(3) of this section, there is
no charge for the first 100 pages of duplication, then those 100 pages
are the first 100 pages of photocopies of standard size pages, or the
first 100 pages of computer printout. If this method to calculate the
fee reduction cannot be used, then the total duplication fee will be
reduced by the normal charge for photocopying a standard size page,
multiplied by 100.
(4) No charge will be made if the costs of routine collection and
processing of the fee are likely to equal or exceed the amount of the
fee.
(5) If it is determined that a requester (acting either alone or
together with others) is breaking down a single request into a series
of requests in order to avoid (or reduce) the fees charged, all these
requests may be aggregated for purposes of calculating the fees
charged.
(6) Interest will be charged on unpaid bills beginning on the 31st
day following the day the bill was sent. Provisions in 45 CFR part 30,
the Department of Health and Human Services regulations governing
claims collection, will be used in assessing interest, administrative
costs, and penalties, and in taking actions to encourage payment.
(c) Fee schedule. The Food and Drug Administration charges the
following fees:
(1) Manual searching for or reviewing of records. When the search
or review is performed by employees at grade GS-1 through GS-8, an
hourly rate based on the salary of a GS-5, step 7, employee; when done
by a GS-9 through GS-14, an hourly rate based on the salary of a GS-12,
step 4, employee; and when done by a GS-15 or above, an hourly rate
based on the salary of a GS-15, step 7, employee. In each case, the
hourly rate will be computed by taking the current hourly rate for the
specified grade and step, adding 16 percent of that rate to cover
benefits, and rounding to the nearest whole dollar. As of January 1,
1993, these rates were $12, $24, and $43 respectively. When a search
involves employees at more than one of these levels, the Food and Drug
Administration will charge the rate appropriate for each.
(2) Computer searching and printing. The actual cost of operating
the computer plus charges for the time spent by the operator, at the
rates given in paragraph (c)(1) of this section.
(3) Photocopying standard size pages. $0.10 per page. Freedom of
Information Officers may charge lower fees for particular documents
where:
(i) The document has already been printed in large numbers;
(ii) The program office determines that using existing stock to
answer this request, and any other anticipated Freedom of Information
requests, will not interfere with program requirements; and
(iii) The Freedom of Information Officer determines that the lower
fee is adequate to recover the prorated share of the original printing
costs.
(4) Photocopying odd-size documents (such as punchcards or
blueprints), or reproducing other records (such as tapes). The actual
costs of operating the machine, plus the actual cost of the materials
used, plus charges for the time spent by the operator, at the rates
given in paragraph (c)(1) of this section.
(5) Certifying that records are true copies. This service is not
required by the Freedom of Information Act. If the Food and Drug
Administration agrees to provide certification, there is a $10 charge
per certification.
(6) Sending records by express mail, certified mail, or other
special methods. This service is not required by the Freedom of
Information Act. If the Food and Drug Administration agrees to provide
this service, actual costs will be charged.
(7) Performing any other special service in connection with a
request to which the Food and Drug Administration has agreed. Actual
costs of operating any machinery, plus actual cost of any materials
used, plus charges for the time of the Food and Drug Administration's
employees, at the rates given in paragraph (c)(1) of this section.
(d) Procedures for assessing and collecting fees. (1) Agreement to
pay. The Food and Drug Administration generally assumes that a
requester is willing to pay the fees charged for services associated
with the request. The requester may specify a limit on the amount to be
spent. If it appears that the fees will exceed the limit, the Food and
Drug Administration will consult the requester to determine whether to
proceed with the search.
(2) Advance payment. If a requester has failed to pay previous
bills in a timely fashion, or if the Food and Drug Administration's
initial review of the request indicates that the charges will exceed
$250, the requester will be required to pay past due fees and/or the
estimated fees, or a deposit, before the search for the requested
records begins. In such cases, the requester will be notified promptly
upon receipt of the request, and the administrative time limits
prescribed in Sec. 20.41 will begin only after there is an agreement
with the requester over payment of fees, or a decision that fee waiver
or reduction is appropriate.
(3) Billing and payment. Ordinarily, the requester will be required
to pay all fees before the Food and Drug Administration will furnish
the records. At its discretion, the Food and Drug Administration may
send the requester a bill along with or following the records. For
example, the Food and Drug Administration may do this if the requester
has a history of prompt payment. The Food and Drug Administration may
also, at its discretion, aggregate the charges for certain time periods
in order to avoid sending numerous small bills to frequent requesters,
or to businesses or agents representing requesters. For example, the
Food and Drug Administration might send a bill to such a requester once
a month. Fees should be paid in accordance with the instructions
furnished by the person who responds to the request.
4. Section 20.43 is revised to read as follows:
Sec. 20.43 Waiver or reduction of fees.
(a) Standard. The Associate Commissioner for Public Affairs will
waive or reduce the fees that would otherwise be charged if disclosure
of the information meets both of the following tests:
(1) Is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the Government; and
(2) It is not primarily in the commercial interest of the
requester. These two tests are explained in paragraphs (b) and (c) of
this section.
(b) Public interest. Disclosure of information satisfies the first
test only if it furthers the specific public interest of being likely
to contribute significantly to public understanding of Government
operations or activities, regardless of any other public interest it
may further. In analyzing this question, the Food and Drug
Administration will consider the following factors:
(1) Whether the records to be disclosed pertain to the operations
or activities of the Federal Government;
(2) Whether disclosure of the records would reveal any meaningful
information about Government operations or activities that is not
already public knowledge;
(3) Whether disclosure will advance the understanding of the
general public as distinguished from a narrow segment of interested
persons. Under this factor, the Food and Drug Administration may
consider whether the requester is in a position to contribute to public
understanding. For example, the Food and Drug Administration may
consider whether the requester has such knowledge or expertise as may
be necessary to understand the information, and whether the requester's
intended use of the information would be likely to disseminate the
information to the public. An unsupported claim to be doing research
for a book or article does not demonstrate that likelihood, while such
a claim by a representative of the news media is better evidence; and
(4) Whether the contribution to public understanding will be a
significant one, i.e., will the public's understanding of the
Government's operations be substantially greater as a result of the
disclosure.
(c) Not primarily in the requester's commercial interest. If
disclosure passes the test of furthering the specific public interest
described in paragraph (b) of this section, the Food and Drug
Administration will determine whether disclosure also furthers the
requester's commercial interest and, if so, whether this effect
outweighs the advancement of that public interest. In applying this
second test, the Food and Drug Administration will consider the
following factors:
(1) Whether disclosure would further a commercial interest of the
requester, or of someone on whose behalf the requester is acting.
Commercial interests include interests relating to business, trade, and
profit. Both profit and nonprofit-making corporations have commercial
interests, as well as individuals, unions, and other associations. The
interest of a representative of the news media in using the information
for news dissemination purposes will not be considered a commercial
interest.
(2) If disclosure would further a commercial interest of the
requester, whether that effect outweighs the advancement of the public
interest as defined in paragraph (b) of this section.
(d) Deciding between waiver and reduction. If the disclosure of the
information requested passes both tests described in paragraphs (b) and
(c) of this section, the Food and Drug Administration will normally
waive fees. However, in some cases the Food and Drug Administration may
decide only to reduce the fees. For example, the Food and Drug
Administration may do this when disclosure of some but not all of the
requested records passes the tests.
(e) Procedure for requesting a waiver or reduction. A requester
must request a waiver or reduction of fees at the same time as the
request for records. The requester should explain why a waiver or
reduction is proper under the factors set forth in paragraphs (a)
through (d) of this section. Only the Associate Commissioner for Public
Affairs may make the decision whether to waive or reduce the fees. If
the Food and Drug Administration does not completely grant the request
for a waiver or reduction, the denial letter will designate a review
official. The requester may appeal the denial to that official. The
appeal letter should address reasons for the Associate Commissioner's
decision that are set forth in the denial letter.
5. Section 20.53 is amended by revising the last sentence to read
as follows:
Sec. 20.53 Indexing trade secrets and confidential commercial or
financial information.
* * * If the affected person fails to intervene to defend the
exempt status of the records and to itemize and index the disputed
records, the Food and Drug Administration will take this failure into
consideration in deciding whether that person has waived such exemption
so as to require the Food and Drug Administration to promptly make the
records available for public disclosure.
6. Section 20.61 is amended by revising paragraph (a) and by adding
new paragraphs (d), (e), and (f) to read as follows:
Sec. 20.61 Trade secrets and commercial or financial information which
is privileged or confidential.
(a) A trade secret may consist of any commercially valuable plan,
formula, process, or device that is used for the making, preparing,
compounding, or processing of trade commodities and that can be said to
be the end product of either innovation or substantial effort. There
must be a direct relationship between the trade secret and the
productive process.
* * * * *
(d) A person who submits records to the Government may designate
part or all of the information in such records as exempt from
disclosure under exemption 4 of the Freedom of Information Act. The
person may make this designation either at the time the records are
submitted to the Government or within a reasonable time thereafter. The
designation must be in writing. Where a legend is required by a request
for proposals or request for quotations, pursuant to 48 CFR 352.215-12,
then that legend is necessary for this purpose. Any such designation
will expire 10 years after the records were submitted to the
Government.
(e) The procedures in this paragraph apply to records on which the
submitter has designated information as provided in paragraph (d) of
this section. These procedures also apply to records that were
submitted to the Food and Drug Administration when the agency has
substantial reason to believe that information in the records could
reasonably be considered exempt under exemption 4 of the Freedom of
Information Act. Certain exceptions to these procedures are set forth
in paragraph (f) of this section.
(1) When the Food and Drug Administration receives a request for
such records and determines that disclosure may be required, the Food
and Drug Administration will make reasonable efforts to notify the
submitter about these facts. The notice will include a copy of the
request, and it will inform the submitter about the procedures and time
limits for submission and consideration of objections to disclosure. If
the Food and Drug Administration must notify a large number of
submitters, notification may be done by posting or publishing a notice
in a place where the submitters are reasonably likely to become aware
of it.
(2) The submitter has 5 working days from receipt of the notice to
object to disclosure of any part of the records and to state all bases
for its objections.
(3) The Food and Drug Administration will give consideration to all
bases that have been stated in a timely manner by the submitter. If the
Food and Drug Administration decides to disclose the records, the Food
and Drug Administration will notify the submitter in writing. This
notice will briefly explain why the agency did not sustain the
submitter's objections. The Food and Drug Administration will include
with the notice a copy of the records about which the submitter
objected, as the agency proposes to disclose them. The notice will
state that the Food and Drug Administration intends to disclose the
records 5 working days after the submitter receives the notice unless a
U.S. District Court orders the agency not to release them.
(4) If a requester files suit under the Freedom of Information Act
to obtain records covered by this paragraph, the Food and Drug
Administration will promptly notify the submitter.
(5) Whenever the Food and Drug Administration sends a notice to a
submitter under paragraph (e)(1) of this section, the Food and Drug
Administration will notify the requester that the Food and Drug
Administration is giving the submitter a notice and an opportunity to
object. Whenever the Food and Drug Administration sends a notice to a
submitter under paragraph (e)(3) of this section, the Food and Drug
Administration will notify the requester of this fact.
(f) The notice requirements in paragraph (e) of this section do not
apply in the following situations:
(1) The Food and Drug Administration decided not to disclose the
records;
(2) The information has previously been published or made generally
available;
(3) Disclosure is required by a regulation issued after notice and
opportunity for public comment, that specifies narrow categories of
records that are to be disclosed under the Freedom of Information Act,
but in this case a submitter may still designate records as described
in paragraph (d) of this section, and in exceptional cases, the Food
and Drug Administration may, at its discretion, follow the notice
procedures in paragraph (e) of this section;
(4) The information requested has not been designated by the
submitter as exempt from disclosure when the submitter had an
opportunity to do so at the time of submission of the information or
within a reasonable time thereafter, unless the Food and Drug
Administration has substantial reason to believe that disclosure of the
information would result in competitive harm; or
(5) The designation appears to be obviously frivolous, but in this
case the Food and Drug Administration will still give the submitter the
written notice required by paragraph (e)(3) of this section (although
this notice need not explain our decision or include a copy of the
records), and the Food and Drug Administration will notify the
requester as described in paragraph (e)(5) of this section.
7. Section 20.64 is amended by revising the section heading and
paragraph (a), and by removing the word ``investigatory'' in paragraphs
(b), (c) introductory text, (d) introductory text, and (e) to read as
follows:
Sec. 20.64 Records or information compiled for law enforcement
purposes.
(a) Records or information compiled for law enforcement purposes
may be withheld from public disclosure pursuant to the provisions of
this section to the extent that disclosure of such records or
information:
(1) Could reasonably be expected to interfere with enforcement
proceedings;
(2) Would deprive a person to a right to a fair trial or an
impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis; and information furnished by a confidential source
in the case of a record compiled by the Food and Drug Administration or
any other criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national
security intelligence investigation;
(5) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions, if such disclosure could
reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical
safety of any individual.
* * * * *
Sec. 20.81 [Amended]
8. Section 20.81 Data and information previously disclosed to the
public is amended in paragraph (a)(3) by removing the phrase ``part 312
of this chapter or other''.
Sec. 20.85 [Amended]
9. Section 20.85 Disclosure to other Federal government departments
and agencies is amended in the last sentence by removing the words ``an
agreement'' and adding in their place the words ``a written
agreement''.
10. Section 20.87 is amended by revising paragraph (a) to read as
follows:
Sec. 20.87 Disclosure to Congress.
(a) All records of the Food and Drug Administration shall be
disclosed to Congress upon an authorized request.
* * * * *
11. Section 20.100 is amended by revising paragraphs (c)(7),
(c)(14), (c)(16), and (c)(17) and by adding new paragraphs (c)(35)
through (c)(40) to read as follows:
Sec. 20.100 Applicability; cross-reference to other regulations.
* * * * *
(c) * * *
* * * * *
(7) Food additive petitions, in Secs. 171.1(h) and 571.1(h) of this
chapter.
* * * * *
(14) Investigational new drug notice, in Sec. 312.130 of this
chapter.
* * * * *
(16) Master file for a new drug application, in Sec. 312.420 of
this chapter.
(17) New drug application file, in Sec. 314.430 of this chapter.
* * * * *
(35) Premarket approval application, in Sec. 814.9 of this chapter.
(36) Report of certain adverse experiences with a medical device,
in Sec. 803.9 of this chapter.
(37) Disqualification determination of an institutional review
board, in Sec. 56.122 of this chapter.
(38) Disqualification determination of a nonclinical laboratory, in
Sec. 58.213 of this chapter.
(39) Minutes or records regarding a public advisory committee, in
Sec. 14.65(c) of this chapter.
(40) Data submitted regarding persons receiving an implanted
pacemaker device or lead, in Sec. 805.25 of this chapter.
Dated: December 23, 1993.
Michael R. Taylor,
Deputy Commissioner for Policy.
[FR Doc. 94-98 Filed 1-4-94; 8:45 am]
BILLING CODE 4160-01-P
Complete official Federal Register PDF
FR Doc. 94-76 Referral of Debts to the Internal Revenue Service for Tax Refund Offset
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 650-651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-76]
[[Page Unknown]]
[Federal Register: January 5, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 13
Referral of Debts to Internal Revenue Service for Tax Refund Offset;
Interim Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 13
[FRL-4818-2]
Referral of Debts to the Internal Revenue Service for Tax Refund
Offset
AGENCY: Environmental Protection Agency.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA), as a participant in
the Federal Tax Refund Offset Program, is issuing interim regulations
to govern the referral of delinquent debts to the Internal Revenue
Service (IRS) for offset against the income tax refunds of persons
owing money to EPA. These regulations allow EPA to collect debts by
means of offset from the income tax refunds of persons owing money to
EPA provided certain conditions are met. This rule establishes
procedures to be followed by EPA in requesting the IRS to offset tax
refunds due to taxpayers who have past-due legally enforceable debt
obligations to the EPA.
DATES: Interim rule is effective on January 5, 1994. Written comments
must be received on or before March 7, 1994.
ADDRESSES: Send comments to: Stephen B. Hess, Claims and Property Law
Branch (2376), Office of General Counsel, Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Stephen B. Hess, Office of General
Counsel. Telephone 202-260-7512.
SUPPLEMENTARY INFORMATION: This interim rule provides procedures for
EPA to refer past-due legally enforceable debts to the IRS for offset
against the income tax refunds of persons owing debts to EPA. This rule
is authorized by 31 U.S.C. 3720A, the purpose of which is to improve
the ability of the government to collect money owed it while adding
certain notice requirements and other protections applicable to the
government's relationship to the debtor.
This rule implements 31 U.S.C. 3720A, which directs any Federal
agency that is owed a past-due legally enforceable debt by a named
person to notify the Secretary of the Treasury in accordance with
regulations issued by the Department of the Treasury at 26 CFR
301.6402-6. Before a Federal agency may give such notice, however, it
must first:
(1) Notify the debtor that the agency proposes to refer the debt
for a tax refund deduction;
(2) Give the debtor 60 days from the date of the notification to
present evidence that all or part of the debt is not past-due or
legally enforceable;
(3) Consider any evidence presented by the debtor and determine
whether any amount of such debt is past-due and legally enforceable;
and
(4) Satisfy such other conditions as the Secretary of the Treasury
may prescribe to ensure that the agency's determination is valid and
that the agency has made reasonable efforts to obtain payment of the
debt.
This rule, in accordance with IRS regulations, provides that before
EPA refers a debt to Treasury (through IRS), a notice of intention
(Notice of Intent) will be sent to the debtor. This Notice of Intent
will inform the debtor of the amount of the debt and that unless the
debt is repaid within 60 days from the date of EPA's Notice of Intent,
EPA intends to collect the debt by requesting the IRS to offset any tax
refund payable to the debtor. In addition, the Notice of Intent will
state that the debtor has a right, during such period, to present
evidence that all or part of the debt is not past-due or legally
enforceable. This rule also establishes procedures for the debtor to
present such evidence.
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
Regulatory Flexibility Act Certification
This rule does not have a significant impact on a substantial
number of small entities (5 U.S.C. 601 et seq.).
Paperwork Reduction Act
No additional information and record keeping requirements are
imposed by this rule.
National Environmental Policy Act
Promulgation of this rule does not represent a major Federal action
with significant environmental impact. Therefore, preparation of an
environmental assessment or environmental impact statement under the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.) is not required.
Public Comments
Pursuant to an agreement between the IRS, the Financial Management
Service, and EPA regarding EPA's participation in the Tax Refund Offset
Program for 1994, EPA is required to have promulgated regulations
regarding referral of debts to IRS for tax refund offset prior to EPA's
participation in the program. EPA is issuing interim final regulations
to take effect today in order to fulfill that requirement. Although EPA
will respond to written comments on today's notice, EPA is not holding
a hearing, providing an opportunity for prior comments, or delaying the
effective date because this regulation is mostly procedural and because
there are no significant issues of law or fact or relevant substantial
impacts on the Nation or large numbers of persons of which EPA could
take account consistent with law. Moreover, issuance of immediately
effective interim final regulations does not prejudice the due process
rights of debtors and is essential in order for EPA to participate in
the 1994 program. Written comments are solicited for 60 days after
publication of this document in the Federal Register. A final document
discussing any comments received and revisions required will be
published in the Federal Register as soon as possible after the close
of the comment period.
Other Matters
These procedures are being codified in the Agency's regulations
pursuant to statutory requirements regarding publication of rules of
procedure in the Federal Register, 5 U.S.C. 552(a)(1)(C). However, the
procedures described in the rule will be utilized before it becomes
effective with respect to persons who are provided actual notice of the
procedures through the notices required under the procedures. See 5
U.S.C. 552(a)(1).
List of Subjects in 40 CFR Part 13
Environmental protection, Administrative practice and procedure,
Claims, Government employees, Income taxes, Wages.
Dated: December 28, 1993.
Carol M. Browner,
Administrator.
In consideration of the foregoing, the Environmental Protection
Agency hereby amends part 13 of title 40 of the Code of Federal
Regulations as set forth below.
PART 13--[AMENDED]
1. The authority citation for part 13 is revised to read as
follows:
Authority:5 U.S.C. 552a, 5512, and 5514; 31 U.S.C. 3711 et seq.
and 3720A; 4 CFR parts 101-10.
2. Subpart H is added to part 13 to read as follows:
Subpart H--Referral of Debts to IRS for Tax Refund Offset
Sec.
13.34 Purpose.
13.35 Applicability and scope.
13.36 Administrative charges.
13.37 Notice requirement before offset.
13.38 Review within the Agency.
13.39 Agency determination.
13.40 Stay of offset.
Supbart H--Referral of Debts to IRS for Tax Refund Offset
Sec. 13.34 Purpose.
This subpart establishes procedures for the Environmental
Protection Agency (EPA) to refer past-due debts to the Internal Revenue
Service (IRS) for offset against the income tax refunds of persons
owing debts to EPA. It specifies the Agency procedures and the rights
of the debtor applicable to claims for the payment of debts owed to
EPA.
Sec. 13.35 Applicability and scope.
(a) This subpart implements 31 U.S.C. 3720A, which authorizes the
IRS to reduce a tax refund by the amount of a past-due legally
enforceable debt owed to the United States.
(b) For purposes of this section, a past-due legally enforceable
debt referable to the IRS is a debt which is owed to the United States
and:
(1) Except in the case of a judgment debt, has been delinquent for
at least three months but has not been delinquent for more than ten
years at the time the offset is made;
(2) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514(a)(1);
(3) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the Agency against
amounts payable to or on behalf of the debtor by or on behalf of the
Agency;
(4) With respect to which EPA has given the taxpayer at least 60
days from the date of notification to present evidence that all or part
of the debt is not past-due or not legally enforceable, has considered
evidence presented by such taxpayer, if any, and has determined that an
amount of such debt is past-due and legally enforceable;
(5) Has been disclosed by EPA to a consumer reporting agency as
authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency
would be prohibited from using such information by 15 U.S.C. 1681c, or
unless the amount of the debt does not exceed $100.00;
(6) With respect to which EPA has notified or has made a reasonable
attempt to notify the taxpayer that the debt is past-due and, unless
repaid within 60 days thereafter, the debt will be referred to the IRS
for offset against any overpayment of tax;
(7) Is at least $25.00; and
(8) All other requirements of 31 U.S.C. 3720A and the Department of
the Treasury regulations at 26 CFR 301.6402-6 relating to the
eligibility of a debt for tax return offset have been satisfied.
Sec. 13.36 Administrative charges.
In accordance with Sec. 13.11, all administrative charges incurred
in connection with the referral of a debt to the IRS shall be assessed
on the debt and thus increase the amount of the offset.
Sec. 13.37 Notice requirement before offset.
A request for reduction of an IRS tax refund will be made only
after EPA makes a determination that an amount is owed and past-due and
provides the debtor with 60 days written notice. EPA's notice of
intention to collect by IRS tax refund offset (Notice of Intent) will
state:
(a) The amount of the debt;
(b) That unless the debt is repaid within 60 days from the date of
EPA's Notice of Intent, EPA intends to collect the debt by requesting
the IRS to reduce any amounts payable to the debtor as refunds of
Federal taxes paid by an amount equal to the amount of the debt and all
accumulated interest and other charges;
(c) That the debtor has a right to present evidence that all or
part of the debt is not past-due or not legally enforceable; and
(d) A mailing address for forwarding any written correspondence and
a contact name and phone number for any questions.
Sec. 13.38 Review within the Agency.
(a) Notification by debtor. A debtor who receives a Notice of
Intent has the right to present evidence that all or part of the debt
is not past-due or not legally enforceable. To exercise this right, the
debtor must:
(1) Send a written request for a review of the evidence to the
address provided in the notice;
(2) State in the request the amount disputed and the reasons why
the debtor believes that the debt is not past-due or is not legally
enforceable; and
(3) Include in the request any documents which the debtor wishes to
be considered or state that additional information will be submitted
within the remainder of the 60-day period.
(b) Submission of evidence. The debtor may submit evidence showing
that all or part of the debt is not past-due or not legally enforceable
along with the notification required by paragraph (a) of this section.
Failure to submit the notification and evidence within 60 days will
result in an automatic referral of the debt to the IRS without further
action by EPA.
(c) Review of the evidence. EPA will consider all available
evidence related to the debt. Within 30 days, if feasible, EPA will
notify the debtor whether EPA has sustained, amended, or cancelled its
determination that the debt is past-due and legally enforceable.
Sec. 13.39 Agency determination.
(a) Following review of the evidence, EPA will issue a written
decision.
(b) If EPA either sustains or amends its determination, it shall
notify the debtor of its intent to refer the debt to the IRS for offset
against the debtor's Federal income tax refund. If EPA cancels its
original determination, the debt will not be referred to IRS.
Sec. 13.40 Stay of offset.
If the debtor timely notifies the EPA that he or she is exercising
the right described in Sec. 13.38(a) and timely submits evidence in
accordance with Sec. 13.38(b), any notice to the IRS will be stayed
until the issuance of a written decision which sustains or amends its
original determination.
[FR Doc. 94-76 Filed 1-4-94; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 94-74 Asbestos NESHAP Clarification Regarding Analysis of Multi-layered Systems
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Page 542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-74]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 61
[FRL-4821-7]
Asbestos NESHAP Clarification Regarding Analysis of Multi-layered
Systems
AGENCY: Environmental Protection Agency.
ACTION: Notice of clarification to the final rule.
-----------------------------------------------------------------------
SUMMARY: This document provides clarification regarding the
requirements of the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for asbestos. It is intended to address common
questions regarding situations where one or more layers which may
contain asbestos are present.
FOR FURTHER INFORMATION CONTACT: Mr. Chris Oh at (703) 308-8732 or Mr.
Jeffery KenKnight at (703) 308-8728.
SUPPLEMENTARY INFORMATION: On November 20, 1990, the Federal Register
published the Environmental Protection Agency's (the Agency's) revision
of the National Emission Standards for Hazardous Air Pollutants for
Asbestos (asbestos NESHAP), 40 CFR part 61, subpart M, 55 FR 48406. The
asbestos NESHAP applies to any facility as defined in 40 CFR 61.141.
The Agency has learned that some of the regulated community have
questions concerning the analysis of samples which may contain multiple
layers, any or all of which may be asbestos containing materials (ACM)
under the asbestos NESHAP. Because these questions are frequently
asked, EPA is making this clarification.
This clarification does not supersede, alter, or in any way replace
the existing asbestos NESHAP. This notice is intended solely as
guidance and does not represent an action subject to judicial review
under the section 307(b) of the Clean Air Act or section 704 of the
Administrative Procedure Act.
I. Clarification of Multi-layered ACM System
The Environmental Protection Agency has received many questions
about analyzing multi-layered systems for asbestos content to determine
the applicability of the asbestos NESHAP. This clarification reiterates
EPA's position for analysis of multi-layered samples for applicability
of the asbestos NESHAP.
In general, when a sample consists of two or more distinct layers
or materials, each layer should be treated separately and the results
reported by layer (discrete stratum). Specific examples are given
below.
Plaster/Stucco Systems
If plaster and stucco wall or ceiling systems are layered, and the
layers can be distinguished, then the layers must be analyzed
separately. Where a plaster or stucco wall system is constructed in
layers, and the asbestos-containing layer becomes a distinguishable but
``non-separable'' component of the wall system, the results of the
analysis of the individual layer(s) may include a small amount of the
other layers when analyzed (e.g. a skim coat layer may contain a small
amount of the base coat layer in the analysis of the skim coat layer).
Add-on Materials
All materials ``added'' to wallboard or other base materials (e.g.,
sprayed-on materials, paint, ceiling or wall texture, etc.) must be
analyzed separately, if possible. The results of the analysis of those
individual layers of ``add-on'' material may not be averaged with the
result of the analysis of wallboard for a composite result, but must be
analyzed and reported separately. Where a thin coating of one material
is applied over another material and the materials cannot be separated
without compromising the layers, the analysis may include a small
amount of the base layer. If for example, a paint layer containing
asbestos is spread over a wallboard layer, and the paint layer cannot
be separated from the wallboard, then a small amount of the wallboard
layer may be included in the sample of the paint.
If any of the ``add-on'' materials meet the definition of regulated
asbestos-containing material (as defined in 40 CFR 61.141), and if at
least 160 square feet of the material(s) are involved in demolition or
renovation (whether planned or unplanned during a calendar year), then
the project would be subject to the asbestos NESHAP.
Joint Compound/Wallboard
When joint compound and/or tape is applied to wallboard it becomes
an integral part of the wallboard and in effect becomes one material
forming a wall system. Therefore, where a demolition or renovation
impacts such a wall system, a composite analysis of the wall system
(percent of asbestos in the joint compound, tape and wallboard) should
be conducted. If the analysis shows an asbestos content of greater than
one percent and at least 160 square feet of the wall system is involved
in the demolition or renovation activities (whether planned or
unplanned, during a calendar year), then the activities would be
subject to the asbestos NESHAP.
Dated: December 3, 1993.
John Rasnic,
Director, Stationary Source Compliance Division, Office of Air Quality
Planning and Standards.
[FR Doc. 94-74 Filed 1-4-94; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 94-45 Standards For Electronic Bulletin Boards Required Under Part 284 of the Commission's Regulations
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 516-531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-45]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 284
[Docket No. RM93-4-000; Order No. 563]
Standards For Electronic Bulletin Boards Required Under Part 284
of the Commission's Regulations
Issued December 23, 1993.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
issuing a final rule adopting regulations to standardize the content
of, and procedures for accessing, information relevant to the
availability of service on interstate pipelines. The Commission's
standards will require pipelines to make this information available on
Electronic Bulletin Boards (EBBs) and through downloadable files and
will detail procedures and protocols for EBB operation and file
transfers.
DATES: February 4, 1994. Pipelines must implement the requirements of
this rule by June 1, 1994, except where the procedures and protocols
specify otherwise.
ADDRESSES: Federal Energy Regulatory Commission, 825 North Capitol
Street, NE., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Michael Goldenberg, Office of the General Counsel, Federal Energy
Regulatory Commission, 825 North Capitol Street, NE., Washington, DC
20426, (202) 208-2294.
Marvin Rosenberg, Office of Economic Policy, Federal Energy Regulatory
Commission, 825 North Capitol Street, NE., Washington, DC 20426, (202)
208-1283.
Brooks Carter, Office of Pipeline and Producer Regulation, Federal
Energy Regulatory Commission, 825 North Capitol Street, NE.,
Washington, DC 20426, (202) 208-0666.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in room 3104, 941 North
Capitol Street NE., Washington DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397. To access CIPS, set your communications
software to use 300, 1200, or 2400 bps, full duplex, no parity, 8 data
bits, and 1 stop bit. CIPS can also be accessed at 9600 bps by dialing
(202) 208-1781. The full text of this notice will be available on CIPS
for 30 days from the date of issuance. The complete text on diskette in
WordPerfect format may also be purchased from the Commission's copy
contractor, La Dorn Systems Corporation, also located in room 3104, 941
North Capitol Street, NE., Washington DC 20426.
Table of Contents
I. Introduction
II. Reporting Requirements
III. Background
IV. Summary of the Final Rule
V. Discussion of the Proposed Regulation
A. Need For A Flexible Mechanism To Make Revisions To The
Standards And Protocols
B. Exemptions For Small Pipelines
C. Implementation Date
D. Modifications To The Regulatory Provisions
VI. Discussion of Items Included in the Standardized Data Sets and
Communications Protocols
A. Standardized Data Sets
1. Operation of the Data Sets
2. Date and Time Stamps
3. Operationally Available Capacity
4. Disclosure of Minimum Conditions
B. Communication Protocols
1. Electronic Data Interchange
a. ASC X12
b. ASCII Downloads
2. Protocols For Communications Software and Hardware, Access
Requirements, and Log-On Procedures
C. Common Codes
1. Introduction
2. The Proposal
3. Comments on the Working Group Filing
4. Commission Adoption of the Working Group Proposal
VII. Issues not Addressed in the Standardized Data Sets and
Communication Protocols
A. Proposed Additions To The Standardized Data Sets
1. Index of Purchasers
2. Nominations for Firm and Interruptible Capacity
B. Communication Protocols For Uploading Files and Downloading
Subsets Of Files
C. Standardization Of Non-Capacity Release Business Transactions
D. Policy Issues
1. Costs of Standardization
2. Liability
3. Non-Price Considerations
E. Gas Industry Standards Board
VIII. Environmental Analysis
IX. Regulatory Flexibility Act Certification
X. Information Collection Requirement
XI. Effective Date
Regulatory Text
Appendix A--Parties Filing Comments On The Notice Of Proposed
Rulemaking
I. Introduction
In Order No. 636,1 the Commission created a new operating
environment for interstate pipelines and shippers on those pipelines by
requiring pipelines to unbundle the sale of gas from the transportation
of that gas and by introducing a mechanism permitting shippers to trade
unneeded capacity through Electronic Bulletin Boards (EBBs) maintained
by the pipelines. Because shippers will now be transporting gas over
multiple pipelines, the Commission concluded that the development of
uniform standards covering the content of, and methods for accessing,
information relating to transportation would improve the efficiency of
gas movement across the interstate pipeline grid. To begin the process
of developing the needed standards, the Commission directed its staff
to convene a series of informal conferences with all facets of the gas
industry to consider standards relating to capacity allocation. As a
result of these conferences, the industry reached consensus agreements
on the information about available capacity that should be included on
EBBs and the procedures and protocols for making that information
available.
---------------------------------------------------------------------------
\1\Pipeline Service Obligations and Revisions to Regulations
Governing Self-Implementing Transportation; and Regulation of
Natural Gas Pipelines After Partial Wellhead Decontrol, 57 FR 13267
(Apr. 16, 1992), III FERC Stats. & Regs. Preambles 30,939 (Apr. 8,
1992), order on reh'g, Order No. 636-A, 57 FR 36128 (August 12,
1992), III FERC Stats. & Regs. Preambles 30,950 (August 3, 1992),
order on reh'g, Order No. 636-B, 57 FR 57911 (Dec. 8, 1992), 61 FERC
61,272 (1992), appeal pending sub nom., Atlanta Gas Light Co. and
Chattanooga Gas Co. v. FERC, No. 92-8782 (11th Cir. Aug. 13, 1992).
---------------------------------------------------------------------------
The Commission is adopting a final rule reflecting the consensus
agreements reached by the industry. The rule amends the Commission's
open access regulations by requiring pipelines to provide standardized
information about the availability of service on their systems. This
information will be provided both on the pipelines' EBBs and through
files which users can download from the pipelines' computers to their
own computers. The rule further requires pipelines to provide this
information according to standardized procedures and protocols, which
will be maintained in a document entitled ``Standardized Data Sets and
Communication Protocols'' that can be obtained at the Commission.
Pipelines must implement the requirements of this rule by June 1, 1994.
The Commission also recognizes the standards and protocols it is
adopting will need to be updated as more experience with capacity
release and the transportation environment under Order No. 636 is
obtained. The Commission, therefore, is proposing to continue the
industry conferences to consider and propose modifications when needed.
II. Reporting Requirements
The Commission estimates the public burden for the information
requirement under this final rule--including the one-time start-up
burden related to pipeline EBBs--will average 6,770 hours per company.
The burden estimate includes the time required to review and implement
the standards, develop the necessary software, search existing data
sources, gather and maintain the data needed, create/validate common
and proprietary codes/information and complete and review the
information. The information/data elements required to be maintained on
pipeline EBBs will be under a new information requirement, FERC-549(B),
Gas Pipeline Rates: Capacity Release Information. The annual burden
associated with the new FERC-549(B) information requirement will be
528,060 hours based on the estimated initial EBB development burden and
daily EBB informational updates by an anticipated 78 pipeline
respondents.
Included in the annual burden estimate are 40,560 hours (520 hours
per company) attributable to the creation of common/proprietary codes
to identify pipelines and common transaction points. The codification
requirements were not part of the burden estimates contained in the
Commission's Notice of Proposed Rulemaking (NOPR) issued July 29, 1993.
Because the final rule contains new information and EBB
requirements, many of which are one-time start-up activities, it is
anticipated that FERC-549(B) burden will be reduced by 2,250 hours per
respondent (for a total reduction of 175,500 hours for all respondents)
the year following the implementation of the EBB systems.
Arkla Energy Resources Company and Mississippi River Transmission
Corporation state that providing comments on the burden estimate in the
NOPR is difficult until final resolution of EBB issues. Interstate
Natural Gas Association of American states the burden estimate in the
NOPR is reasonable for the items included in the proposed rule, but
would be too low if additional items, such as common codes are
included. No party has submitted contrary data on a revised burden
estimate for the requirements proposed in the NOPR. The only
significant change from the NOPR is the requirement to create a common
code data base and the Commission has revised its estimate to include
the additional burden of this effort. Accordingly, the Commission finds
its burden estimates reasonable.
Interested persons may send comments regarding these burden
estimates or any other aspect of this information requirement,
including suggestions for reductions of the burden, to the Federal
Energy Regulatory Commission, 941 North Capitol Street, NE.,
Washington, DC 20426 [Attention: Michael Miller, Information Services
Division, (202) 208-1415, FAX (202) 208-2425]; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503 [Attention: Desk Officer for Federal Energy
Regulatory Commission].
III. Background
In Order No. 636, the Commission required pipelines to establish
EBBs to provide shippers with equal and timely access to relevant
information about the availability of service on their systems,
including service available through capacity release transactions and
firm and interruptible capacity available directly from the
pipeline.2 The Commission recognized the efficiency of capacity
allocation would be enhanced by standardizing both the content of
capacity release information and the methods by which shippers could
access that information.3 On February 26, 1993, the Commission
held a technical conference to examine the industry's efforts in
standardizing information content and communication procedures. The
participants at the conference expressed a willingness to establish a
broad industry-wide working group to reach consensus on standards
governing capacity release transactions. The Commission subsequently
established informal conferences with Commission staff and all
interested members of the gas industry to facilitate the development of
consensus standards.4
---------------------------------------------------------------------------
\2\18 CFR 284.8(b)(3)(4), 284.9(3)(4).
\3\Order No. 636-A, III FERC Stats. & Regs. Preambles at 30,549.
\4\Notice Of Informal Conferences (March 10, 1993), 54 FR 14530
(Mar. 18, 1993).
---------------------------------------------------------------------------
A broad spectrum of firms and organizations participated in these
Working Groups, including representatives from the major segments of
the gas industry and other interested parties, such as computer and
software firms. The participants at the conferences divided their
efforts into five working groups covering different areas of
standardization and, on July 1 and July 6, 1993, the Working Groups
submitted reports on their deliberations. Working Groups 1 and 2
reached consensus on proposed standardized data sets setting forth the
information concerning available capacity. Working Group 4 agreed on a
set of communication protocols governing the dissemination of the
information. Working Group 5 proposed methods for developing codes to
identify companies and common transaction points, but had not finalized
standards in these areas. Working Group 3 reported on its progress in
considering standards relating to business practices other than
capacity release, but did not propose any standards. The Working Group
reports included minority positions on several items. The Commission
also provided an additional period for the public to comment on the
Working Group proposals.
On July 29, 1993, the Commission issued a Notice Of Proposed
Rulemaking (NOPR) proposing to adopt standards reflecting the consensus
agreements reached by the industry working groups.5 The NOPR also
provided for the continuation of the Working Groups and set a number of
items for further consideration, with reports generally due by February
1, 1994.6
---------------------------------------------------------------------------
\5\Notice Of Proposed Rulemaking, 58 FR 41647 (Aug. 5, 1993), IV
FERC Stats. & Regs. Proposed Regulations 32,500 (July 29, 1993).
\6\Working Group 5 was given an October 1, 1993 report date for
its proposal dealing with common transaction point codes.
---------------------------------------------------------------------------
Forty comments were received on the NOPR.7 In addition, on
October 12, 1993, Working Group 5 filed its report containing a
finalized proposal for providing common transaction point codes, and on
November 3, 1993, Working Groups 1 and 2 filed revisions to the
proposed capacity availability data sets. The Commission noticed both
filings and provided the industry with an opportunity to submit
comments on the filings and to discuss them at an informal
conference.8
---------------------------------------------------------------------------
\7\The commenters, and the abbreviations used for each, are
listed in Appendix A. Con Edison and PSCW filed comments late. The
Commission will consider these comments.
\8\AER/MRT, IPAA, Gaslantic, National Registry, NYMEX/EnerSoft,
Process Gas Consumers Group, and Transco submitted comments on the
common code proposal. ANR submitted comments on the revised data
sets.
---------------------------------------------------------------------------
IV. Summary of the Final Rule
The final rule adopts the regulation and standards as proposed in
the NOPR, with only slight modifications. The final rule adopts
Sec. 284.8(b)(5) requiring pipelines to provide standardized
information relevant to the availability of service on their systems.
Under the rule, pipelines must provide the standardized information on
their EBBs and provide users with the ability to download the
standardized information in compliance with standardized procedures and
protocols. The rule provides that the details of the required
information, procedures, and protocols will be made available in a
document entitled ``Standardized Data Sets and Communication
Protocols,'' which would be available from the Commission's Public
Reference and Files Maintenance Branch.9 Because the standardized
information includes information relevant to the availability of
interruptible transportation, the rule also revises Sec. 284.9(b)(4),
which governs interruptible transportation, to cross-reference the
standardization requirements in Sec. 284.8(b)(5).
---------------------------------------------------------------------------
\9\This document will not be published in the Federal Register.
---------------------------------------------------------------------------
In summary, the standardized data sets set forth the information
concerning capacity availability that pipelines must provide both on
their on-line EBBs and through downloadable files.10 This
information includes offers to sell firm capacity (either by the
pipeline or releasing shippers), bids for capacity, awards of capacity,
withdrawals of capacity offers and bids, operationally available (i.e.,
interruptible) capacity, and system-wide notices. The protocols
establish principles and procedures relating to the operation of
pipeline EBBs and the provision of downloadable files to users. Under
these protocols, pipelines will provide for file downloads in two
formats: one that complies with standards for Electronic Data
Interchange (EDI) promulgated by the American National Standards
Institute (ANSI) Accredited Standards Committee (ASC) X12 and a second
format that does not comply with ASC X12, but which provides files in
standard flat ASCII format.11 The Commission is changing the
implementation of the regulation from the April 1, 1994 date proposed
in the NOPR to June 1, 1994, unless the standards and protocols specify
a different compliance date.12
---------------------------------------------------------------------------
\1\0On-line EBB refers to a continuous computer connection
between a pipeline EBB and a user's computer in which the
information from the pipeline's computer is displayed visually on
the user's computer and the user can enter data directly to the
pipeline's computer. File downloading refers to the transfer in
computerized format of a file from the pipeline's computer to the
user's computer. The user can use its own internal computer programs
to manipulate the data.
\1\1ASCII refers to the American Standard Code for Information
Interchange, a code for character representation. The Commission
recognizes the ASC X12 files also use ASCII characters. The
Commission is using the term ASCII download to refer to standard
flat file downloads that do not necessarily meet the requirements of
the ASC X12 standards.
\1\2The June 1, 1994 date will not apply to the requirement that
pipelines provide a common code system. The date for implementation
of this requirement is November 1, 1994.
---------------------------------------------------------------------------
The comments addressed issues relating to the proposed regulation,
the standards and protocols that were proposed for inclusion in the
Standardized Data Sets and Communication Protocols, and the items which
the Commission proposed not to include in the data sets and protocols.
The Commission will address the issues raised in each area in turn.
V. Discussion of the Proposed Regulation
A. Need for a Flexible Mechanism To Make Revisions to the Standards and
Protocols
In the NOPR, the Commission proposed to proceed through rulemaking,
rather than a policy statement, finding that the benefits of
standardization can be achieved only when all pipelines provide the
same information through the same procedures. The Commission concluded
a rulemaking was the proper approach to issuing mandatory requirements.
Several commenters support the Commission's issuance of a rule to
ensure full compliance, but urge the Commission to commit itself to a
process for revising the requirements.13 They maintain that once
the industry obtains experience with capacity release, revisions may be
needed. Natural supports the use of notice and comment rulemaking, but
it requests clarification that, even though the referenced document of
standards and protocols is not contained in the Code of Federal
Regulations, any modifications to these standards or protocols will be
made through rulemaking procedures. It maintains changes to this
document could result in significant administrative burdens and costs
and, therefore, contends the Administrative Procedure Act (APA)
requires that such changes be made only through a notice and comment
rulemaking. O&R and Williston urge the Commission to proceed using a
policy statement to ensure the utmost flexibility for modifications.
---------------------------------------------------------------------------
\1\3Power Generators, AGA, Columbia Distribution, Destec Energy,
FMA, and UDC.
---------------------------------------------------------------------------
The Commission adheres to its determination to proceed through
rulemaking to ensure the uniformity standardization requires.
Nevertheless, the Commission agrees with the commenters that revisions
and modifications to the standards and protocols will need to be made
on a regular basis as the industry obtains more experience with
capacity release transactions and with the changed operating
environment created by Order No. 636. For example, in the two months
after issuance of the NOPR, Working Groups 1 and 2 already have
proposed revisions to the standardized data sets to ensure that they
function effectively and to clarify a number of items. The Commission
proposes to continue the informal conferences and the Working Groups as
the best means for monitoring the performance of the standards and
proposing needed changes.
To facilitate the Commission's ability to respond to the need for
changes, it adopted only a general regulation requiring the pipelines
to standardize their provision of capacity information, while the
standards and protocols themselves were to be provided in a separate
document not contained in the Code of Federal Regulations. The
Commission is committed to making needed modifications and revisions to
the standards and protocols as quickly as possible. Determining the
appropriate mechanism for making such changes is premature, because the
method should vary depending on the type of change contemplated;
maintenance of the standards to correct problems or improve their
functioning should be handled differently than significant substantive
changes in the means of providing the information.
In making changes to the data sets and protocols, the Commission
intends to follow the APA and provide notice and an opportunity for
comment, just as it has in the past with respect to proposed changes by
the Working Groups. For example, when Working Groups 1 and 2 submitted
their recent set of revisions, the Commission noticed the filing and
provided an opportunity for written comments as well as for
consideration of the revisions at one of the Commission's EBB
conferences.
Although the Commission is issuing the current data sets along with
this rule, the Commission realizes that as pipelines begin the process
of correlating the downloadable data sets with the information provided
by offerors and bidders through their on-line EBBs, difficulties with
the data sets may be identified. All pipelines immediately must begin
the correlation process, so they can report any significant
difficulties to Working Groups 1 and 2. The Commission is committed to
implementing the data sets by June 1, 1994, and Working Groups 1 and 2,
therefore, should ensure that they provide the Commission with any
additional changes they believe are essential in sufficient time to
permit implementation of the data sets, including ASC X12
downloadability, by that date. The Commission recognizes that the data
sets may not be perfect when implemented, but, as discussed above, the
Commission is committed to a process for revising the data sets on a
regular basis after implementation.
B. Exemptions for Small Pipelines
Sabine maintains small pipelines may not be able to comply with the
requirements outlined in the NOPR. It does not suggest a blanket
exemption for small pipelines, but instead recommends they be afforded
an opportunity to demonstrate that the costs of implementing the
standards would outweigh the benefits of compliance.14
---------------------------------------------------------------------------
\1\4It points out the Commission exempted it from compliance
with the interactive EBB requirement in its restructuring order.
Sabine Pipe Line Company, 63 FERC 61,010 (1993).
---------------------------------------------------------------------------
The Commission recognizes small pipeline compliance with some of
the requirements of the standards and protocols may not be cost
justified or essential to obtain the benefits the Commission sought to
achieve through standardization. The Commission cannot make a generic
determination of the particular standards and protocols with which
small pipelines should not have to comply; compliance with some of the
standards may not involve as much added cost as compliance with others
and partial compliance may still be of benefit to users.15 Small
pipelines desiring an exemption should file a petition under Rule 207
of the Commission's Rules of Practice and Procedure listing the
specific requirements for which they seek exemption and explaining why
the exemption is justified.16 Users will then be given an
opportunity to comment on the proposed application.
---------------------------------------------------------------------------
\1\5For example, provision of the data contained in the
standardized data sets may not be unduly costly and would permit
users to obtain the same information from all pipelines.
\1\618 CFR 385.207.
---------------------------------------------------------------------------
C. Implementation Date
In the NOPR, the Commission proposed an April 1, 1994
implementation date, finding this date would provide pipelines with
sufficient time to program their computers to incorporate the changes
required and would permit final testing of the system during the off-
peak summer season. Many commenters support the April 1, 1994
implementation date, some suggesting no extension be given.\17\ Peoples
Gas, et al., and UDC state this date should not result in delay in
implementing the on-line EBBs already required by Order No. 636. Some
commenters contend the April 1, 1994 date is sufficient for the items
included in the NOPR, but would not give sufficient time for
implementation of additional requirements resulting from the Working
Groups' February 1, 1994 reports on those items which the Commission
set for further consideration.\18\ Other commenters contend the April
1, 1994 date is too ambitious for all items and assert the Commission
should not set an interim date, but should require full implementation
by the fall of 1994.\19\ AER/MRT contends an April 1, 1994
implementation date for the ASC X12 requirement, in particular, is
unreasonably ambitious.
---------------------------------------------------------------------------
\17\Power Generators, Con Edison, WEV, Destec Energy, NGSA,
NYMEX/EnerSoft, O&R, Peoples Gas, et al., UDC, Process Gas Consumers
Group (noting that capacity release transactions may be heaviest in
the off-season), Transco (if development of ASC X12 not unduly
delayed).
\18\INGAA, Natural.
\19\AER/MRT, Columbia Gas, Enron, KGPL.
---------------------------------------------------------------------------
The Commission will agree to delay the implementation date to June
1, 1994, to allow the Working Groups and the pipelines to make final
revisions that will improve the functioning of the EBBs and the
downloadable data sets. But, given this extension, the Commission
expects the pipelines to have an operational set of standards fully
implemented by June 1, 1994. At the same time, the June 1, 1994 date
will permit capacity release transactions, which may be significant in
the off-peak season, to benefit from the standards. The June 1, 1994
date applies to the implementation of EDI, but not to the
implementation of common codes, as discussed later.\20\ The Commission
clarifies that this date applies only to the items included in this
rule, not to further items resulting from the February 1, 1994 reports.
The June 1, 1994 date also does not delay pipelines' compliance with
the EBB requirements of Order No. 636; pipelines must comply with these
requirements by the date specified in their restructuring orders.
---------------------------------------------------------------------------
\20\See text accompanying notes 36 and 51, infra.
---------------------------------------------------------------------------
The June 1 date is not an interim date, but the final date for
compliance with these requirements. The reference in the NOPR to final
testing during the off-peak season meant only that full scale operation
would operate as the final check to uncover lacunae in operation not
detected during routine small scale (or beta) testing of the
system.\21\ As stated earlier, the Commission expects full
implementation of the data sets and communication protocols by no later
than the June 1, 1994 date.
---------------------------------------------------------------------------
\21\By beginning full-scale operation during the summer, the
standards will be in effect during the period when capacity release
transactions may be significant, but, at the same time, any final
problems with the system can be resolved when obtaining gas supplies
is not as crucial as during the peak winter heating season.
---------------------------------------------------------------------------
Williston Basin asserts the February 1, 1994 date for the Working
Group reports is premature since the industry will not have sufficient
experience with capacity release by then to make additional
modifications. The Commission is not persuaded to change the February 1
date for the Working Group reports. These reports are intended to cover
the items on which the parties did not have the time to reach consensus
in time for their July reports, but which the Commission found were
susceptible to resolution given more time. As discussed earlier, the
Commission is committed to updating these standards when necessary in
light of experience. The timing of additional meetings or reports to
consider further revisions are better made at a later point.
D. Modifications to the Regulatory Provisions
NGSA and Process Gas Consumers Group suggest the rule should be
revised to require each pipeline to submit a compliance filing
specifying in its tariff the details of how it will supply the services
required by the rule. UDC suggests the imposition of reporting
requirements to permit the Commission and the public to monitor the
initial operation of EBBs.
The Commission perceives no need at this point for requiring
compliance filings by pipelines or the submission of periodic reports.
The requirements of the rule are straight-forward. The communication
protocols require pipelines to provide users with scripts detailing the
procedures for accessing (logging-on to) the pipelines' computer
systems, and providing further detail through tariff filings seems
unnecessary. Monitoring of the system can be better accomplished
through Commission oversight of pipelines' compliance by accessing
their EBBs and through the use of industry conferences than through
tariff filings or inflexible periodic reporting requirements.
Process Gas Consumers Group suggests the deletion of the phrase
``on its Electronic Bulletin Board'' from the opening clause of the
rule. It contends this phrase suggests the rule may not cover EDI
access to data, may not apply to pipelines using third-party vendors to
provide EBB services, and appears to require pipelines to provide
information about accessing their EBB solely through their EBB, thereby
creating a Catch-22 in which shippers can obtain information on how to
access a pipeline's EBB only by knowing how to access the EBB.
The Commission will not delete the reference to Electronic Bulletin
Boards because pipelines must provide the required information on their
EBBs as well as through downloadable files. The Commission, however,
will modify the regulation slightly to make even more explicit that
both modes of communication must be provided. The Commission expects
pipelines to provide users with instructions for accessing their EBBs
or using EDI transfers without having the user first access the
pipelines' EBB.
VI. Discussion of Items Included in the Standardized Data Sets and
Communication Protocols
The Commission proposed to set forth the information on capacity
availability and the protocols governing the dissemination of that
information in a separate document entitled Standardized Data Sets and
Communication Protocols that would be available at the Commission. The
Commission included this document in the NOPR and commenters raised
issues with respect to the proposed provisions.
A. Standardized Data Sets
1. Operation of the Data Sets
El Paso requests clarification that a pipeline can leave fields in
the data sets blank if the pipeline's tariff does not require the
information to be provided. It cites, as an example, differences in
pipelines' tariffs as to whether volumetric releases are subject to
minimum quantity requirements.
ANR contends the definitions of the terms mandatory and optional,
as used for some fields in the data sets, are confusing. It submits
mandatory refers to data fields that every pipeline must support, while
optional refers to data fields pipelines may offer at their discretion,
unless their individual tariffs require that those fields be supported.
If optional means that all pipelines must support the field, thereby
permitting releasing shippers or bidders with the option of including
information in the field, ANR asserts it would have to incur added
expense to redesign its EBB to include these fields.\22\
---------------------------------------------------------------------------
\22\As an example of the difference in definition, an optional
field is releaser contract number. Data Set I.1, line 6. Under ANR's
definition, pipelines would have the discretion to include this
field. Under the second interpretation, pipelines must provide the
field so releasing shippers have the ability to include the
information.
---------------------------------------------------------------------------
In general, the Commission understands that El Paso's and ANR's
interpretation of the manner in which the data sets are designed to
operate accords with the intent of the Working Groups, and the
Commission agrees with that approach. The Commission, however, sees a
need to provide further clarification of the operation of the data sets
and the mandatory and optional characterization of certain fields. At
the outset, it is important to recognize that these data sets must
apply to all pipelines, and, therefore, the Working Groups had to
design them to be flexible enough to accommodate the different
operational characteristics and information requirements of different
pipelines. Implementation of the data sets perforce will differ across
pipelines.
The data sets are organized along the following lines. First, they
are divided into generic groups for offers, bids, awards, withdrawals,
operationally available capacity, and system wide notices. Some of
these groups are then divided into specialized data sets, for example
for receipt and delivery point information or for storage releases.
Each of these subsets contain mandatory, optional, or contingent
fields.
All pipelines must support the six broad categories of data sets.
Pipeline support of the subsets within each category, however, may
depend on the operational characteristics of individual pipelines.\23\
For example, data sets are included for receipt and delivery point
information and for segment information although not all pipelines are
segment systems. Pipelines will choose from among the combination of
these data sets the ones that best present the relevant information for
their systems.
---------------------------------------------------------------------------
\23\The easiest example is the storage data sets which obviously
will not have to be supported by pipelines without storage fields.
---------------------------------------------------------------------------
All pipelines choosing a particular data set will be required to
support the mandatory fields in that data set. Pipelines are not
required by this rule to support the optional fields. Some pipelines,
however, may be required by their tariffs or other requirements, to
support some of the optional fields.\24\ Moreover, pipelines must
display all information, whether mandatory or optional, on their on-
line EBBs. For example, if a pipeline is not now displaying mandatory
information on its on-line EBB, it must revise its display format to
accommodate that information.
---------------------------------------------------------------------------
\24\The contingent fields are filled only when a condition in
another field is met.
---------------------------------------------------------------------------
As mentioned earlier, the Working Groups are continuing to make
refinements in the data sets. In making these refinements, they should
make a further effort to clarify how pipelines must implement these
requirements, such as which fields pipelines must support and which are
optional.
Enron suggests the standardized data sets should be minimum
requirements that pipelines can supplement to accommodate tariff
provisions. As an example, it claims the data sets do not accommodate
Florida Gas' proposal to permit several shippers temporarily to combine
their capacity rights to facilitate release transactions.
The Commission is not sure what flexibility Enron is requesting.
Pipelines cannot add or delete fields from the capacity data sets
because standardization requires that all pipelines use the same
structure for downloading, so shippers can process that information
using the same computer software. For example, if pipelines could add
new data fields, shippers' ASC X12 software might be unable to
interpret the information because the software is keyed to the specific
fields on the implementation guide. Moreover, the Working Groups
anticipated the need to accommodate special release offers or unique
circumstances and included special terms and miscellaneous note fields
for providing such details.\25\ As discussed previously, the Commission
recognizes that pipelines may uncover difficulties in correlating their
information requirements with the downloadable data sets and the
Commission anticipated possibly having to make corrections to the data
sets. The best way for pipelines to avoid problems is to begin the
implementation process immediately so they can report difficulties to
the Working Groups for resolution prior to implementation.
---------------------------------------------------------------------------
\25\Enron did not describe the specific problem created by
combination offers, and the Commission cannot discern why it could
not be accommodated within the prescribed data sets. For example,
the combination offer could be assigned a single offer number (Data
Set I.1, line 3) with any special circumstances described in the
miscellaneous field (Data Set I.1, line 52).
---------------------------------------------------------------------------
2. Date and Time Stamps
The proposal put forward by Working Groups 1 and 2 included fields
identifying the date and time when release offers, bids, withdrawals of
bids or offers, and capacity awards are posted on pipelines' EBBs. No
consensus was reached over whether fields should be included to
identify when pipelines actually received offers, bids, or withdrawals
or made the determination to award capacity.
The NOPR proposed to require the inclusion of fields for bid
receipt date and time, but not for the date and time offers and
withdrawals were received or capacity awarded. Since releasing shippers
and pipelines may choose the first come, first served method to break
ties, the Commission found that routine posting of the bid receipt date
and time would permit shippers to verify the award of capacity without
having to contact the pipeline. The Commission did not propose to
include the date and time fields for receipt of offers and withdrawals
or capacity awards, concluding this information was not as important to
capacity release transactions as the bid information. The Commission
stated, however, that information about the date and time offers and
withdrawals were received and capacity awards determined must be
provided by the pipelines upon request.
Several commenters support the Commission's decision to include
only the information about bid receipt in the standardized data
sets.26 Some request clarification as to whether pipelines must
include both the date and time bids are received and posted as
mandatory fields.27 Process Gas Consumers Group contends the
Commission should require inclusion of all the contested items. It
contends the date and time for receipt of capacity withdrawals is
particularly important because releasing shippers have only a limited
right to withdraw offers; it maintains the date and time information is
needed so bidders can determine whether that right has been exercised
validly. It contends pipelines easily can make all the contested
information available in electronic form. The National Registry
requests that even if pipelines are not required to post information
concerning the receipt of offers and withdrawals and determination of
capacity awards, they should be required to provide this information in
electronic form when requested.
---------------------------------------------------------------------------
\2\6Power Generators, AER/MRT, Columbia Gas, Enron.
\2\7KGPL (posting date and time should not be mandatory), NGSA
(both should be required).
---------------------------------------------------------------------------
The Commission adheres to its decision not to require pipelines
routinely to post the receipt date and time for capacity offers and
withdrawals and the date and time capacity awards are made. The Working
Groups could not reach agreement on providing the additional
information, and, as stated in the NOPR, the Commission does not find
that this information is as crucial to capacity release, or will be
needed as frequently, as the bid information. The Commission will not
require pipelines to provide the additional information in electronic
form, because such a requirement would not be significantly different
than requiring the routine, electronic posting of this information,
which the Commission has determined is not necessary. The ability of
users to obtain the information for offers, withdrawals, and awards
upon request appears sufficient. The Commission clarifies that both the
bid receipt and bid posting data fields are mandatory.
PEC Pipeline Group contends the date and time for bids should be
the posting time, arguing if receipt date and time is used, the
information would be unreliable because the bids would not have been
verified for accuracy. It maintains only the date and time of verified
bids should be used to break ties.
The Commission agrees, in principle, that the appropriate
information to include is the date and time used to break ties.
However, in most instances, that will be the date and time bids are
received, not when they are verified. For example, when bids are
submitted near the end of bidding periods, the pipeline may not verify
the bids until after the bid window closes. Under a first come, first
served tie breaking system, capacity would be awarded to the highest
bid received first in time even if the bid was not verified until
later.
3. Operationally Available Capacity
The Commission proposed to adopt the Working Group's consensus
agreement that pipelines provide information on the amount of
unscheduled capacity available at specific locations, such as receipt
and delivery points, mainline, or mainline segments. This field serves
to identify the capacity that would be available as interruptible
service from the pipeline. Edison contends this definition would not
allow shippers to determine whether firm or interruptible capacity is
available. It suggests operationally available capacity be defined as
the capacity a firm shipper can nominate at a point, asserting this
definition would include interruptible capacity that can be displaced
by a firm shipper. Transco contends the amount of unscheduled capacity
is proprietary information that would not be provided in the free
market. Williston Basin does not oppose this requirement, but states
shippers may be able to use this information only for trend analysis,
not for making decisions on a daily basis.
The Commission finds the requirement to provide information on
operationally available or unscheduled capacity is necessary to comply
with the requirement that pipelines identify the interruptible capacity
available on their systems.28 The unscheduled capacity at a point
reveals the capacity available as interruptible service. In response to
Edison's comment, the Commission finds that the consensus approach is
adequate at this point to disclose both the firm and interruptible
capacity available to potential shippers. The operationally available
capacity reveals interruptible service and pipelines also are required
to post the firm service they have available.29 The Working Groups
still are considering issues relating to operationally available
capacity, and the Commission will be open to modification of this
definition if needed.30
---------------------------------------------------------------------------
\2\8See 18 CFR 284.9(b)(3).
\2\9See 18 CFR 284.8(b)(3). Pipelines would post this
information under the capacity offer data set I.1.
\3\0For example, the Commission is not certain whether Edison
and Transco principally are concerned with the definition of
operationally available (or unscheduled) capacity or with the
different, albeit somewhat related, issue of whether additional
fields are required to divide scheduled (or nominated) capacity into
firm and interruptible components. The issue of identifying the firm
and interruptible components of nominated capacity is still under
deliberation by the Working Groups, and Edison and Transco will have
a further opportunity to address these issues in the Working Group
meetings.
---------------------------------------------------------------------------
ANR asserts that the data field for operationally available
capacity should indicate that the data may be estimates. It also
suggests an additional data field to enable the pipeline to qualify the
accuracy of any information. The Commission agrees with ANR that the
information in this field may be estimates and leaves to the Working
Groups the decision on whether another field is necessary to convey
information about how the estimates are provided.
As discussed earlier, NGSA suggested pipelines be required to make
compliance filings and it submits that these filings include
information on the locations at which operationally available
information will be provided, the manner of display, and the timeliness
of the data. WEV suggests generally that the information provided under
the data sets be as current as the pipeline can provide. While
pipelines will not be required to make compliance filings to implement
this rule, they should provide users with adequate information about
the locations at which they are reporting the information and the
timeliness of the information, which should be as current as is
possible. Since the Commission will have access to the pipelines' EBBs,
it can monitor the adequacy of the information pipelines provide.
4. Disclosure of Minimum Conditions
Hadson contends the Commission should eliminate the field providing
for disclosure of minimum price terms (Data Set I.1, lines 23 and 24).
It contends disclosure of this information while the market is open
facilitates collusion among releasing shippers to maintain higher
prices in a falling market. The Commission will not eliminate this
field because it comports with the Commission's policy of providing
releasing shippers with the option of having their minimum conditions
posted on the EBB.31 This technical proceeding is not the proper
forum to reexamine the Commission's policy in this regard. The
Commission notes, however, that, in a free market, sellers can choose
to disclose minimum price conditions if they find such disclosure
beneficial. For example, stating a minimum price protects against the
possibility a deal will fail simply because a buyer submits a bid lower
than the minimum price even though it is willing to pay the minimum
price if it had known this condition. Moreover, since minimum price
terms are public, the Commission can monitor the situation, and
eliminate this field, if experience shows it does facilitate collusion.
---------------------------------------------------------------------------
\3\1See El Paso Natural Gas Company, 62 FERC 61,311 at 62,999-4
(1993). Releasing shippers choosing not to post their minimum
conditions disclose those conditions only to the pipeline which then
uses those conditions in evaluating bids.
---------------------------------------------------------------------------
B. Communication Protocols
1. Electronic Data Interchange
The Commission proposed to adopt the recommendation of Working
Group 4 by requiring EBB operators32 to provide for electronic
file downloading of the standardized data sets in compliance with ASC
X12 EDI standards and an implementation guide to be developed by the
Gas*Flow group.33 ASC X12 standards provides an electronic data
submission capability that allows computers to exchange information
over communication lines using standardized formats. To facilitate
these transfers, the ASC X12 standards provide standardized transaction
sets for different types of transactions, such as requests for
quotations and responses to such requests.34 Since the ASC X12
transaction sets provide generic data groups applicable to a range of
potential applications, the transaction sets must be customized to
individual applications by correlating or ``mapping'' the specific
information to an ASC X12 transaction set through an implementation
guide.
---------------------------------------------------------------------------
\3\2The Commission is adopting Working Group 4's use of the
phrase ``EBB operator'' in the protocols. An EBB operator is either
a pipeline or a third-party vendor providing EBB services for a
pipeline, and pipelines relying on third-party vendors must ensure
they comply with these standards.
\3\3Gas*Flow was organized to promote the acceptance of ASC X12
EDI in the gas industry. It is composed of representatives from the
gas industry, including local distribution companies, marketers,
producers, shippers, and pipelines, and operates under guidance from
the Natural Gas Review Committee.
\3\4Because the ASC X12 transaction sets have been standardized,
commercial software and consulting services are available to assist
users in translating data from standard program files to the
standardized ASC X12 formats and vice versa.
---------------------------------------------------------------------------
The Commission anticipated Gas*Flow would be able to receive
industry input and submit a final implementation guide to the
Commission within a month after promulgation of the final data sets.
The Commission also proposed to require file downloads in a flat ASCII
format in accordance with documentation developed by Gas*Flow, but
requested comments on whether requiring downloads in ASCII format was
needed to supplement the downloads in ASC X12 format.35
---------------------------------------------------------------------------
\3\5The flat ASCII files also could be transmitted
electronically over communication lines.
---------------------------------------------------------------------------
a. ASC X12. A few comments address the proposed implementation date
for ASC X12. Tenneco asserts the April 1, 1994 implementation date
should not include EDI compliance, because EDI should be implemented
only when trading partners agree. AER/MRT suggest the date is too
ambitious for ASC X12 implementation. PEC Pipeline Group maintains ANSI
must approve the implementation guide developed by Gas*Flow and asserts
obtaining this approval could affect the timing of ASC X12
implementation as well as the commitment of ASC X12 software vendors to
guarantee the use of their software with these data sets. Despite these
concerns, PEC Pipeline Group is willing to go forward and implement ASC
X12 based on Gas*Flow's recommendations.
Working Group 4 found that ANSI approval of the data sets was not
necessary to go forward with ASC X12 implementation, because the
information could be mapped to an existing ASC X12 data set.36
This is the task Gas*Flow will perform. Only one comment suggested that
the April 1, 1994, date was too ambitious for ASC X12 implementation.
Since the Commission has now extended the implementation date to June
1, 1994, EBB operators should have sufficient time to program their
computer systems to make ASC X12 downloads available by that
date.37
---------------------------------------------------------------------------
\3\6Working Group 4 Report at 9.
\3\7ASC X12 downloads must be made available to any party,
including a value added network (VAN). A VAN is a communications or
information system providing an aggregation, routing, and delivery
service. In effect, a VAN provides a user with an electronic mailbox
for receiving information.
---------------------------------------------------------------------------
Tenneco argues no implementation date for ASC X12 be set,
contending implementation should occur when trading partners agree. As
the comments suggest, EBB operators need lead time to modify their
system to incorporate ASC X12 downloads. The Commission, therefore,
concludes it needs to set a date by which ASC X12 downloads will be
available to ensure that users wanting this service can obtain it
expeditiously. As specified by Working Group 4, the details of any
special arrangements for access to ASC X12 data between the pipeline
and a trading partner would be worked out between those parties.
Other commenters address the Commission's proposal to use Gas*Flow
to prepare the implementation guide. UDC and Tenneco support the use of
Gas*Flow, but Tenneco suggests the Gas*Flow documentation should be
submitted to the Working Groups prior to submission to the Commission.
Columbia Gas believes the Commission's estimate of one month for
Gas*Flow to prepare the implementation guide is overly optimistic and
provides too little opportunity for the industry to participate in
development.
The Commission expects Gas*Flow to continue its current procedure
of receiving industry comment on its proposed implementation guide and
to submit the guide to the Working Groups for their final approval. The
extension of the implementation date until June 1, 1994, provides
Gas*Flow with sufficient time to obtain industry input and still
finalize the implementation guide in time for the industry to meet the
June 1, 1994 date. Working Groups 1 and 2 and Gas*Flow should
coordinate their efforts to ensure that any additional revisions made
by the Working Groups in the data sets are made in sufficient time to
ensure that EBB operators can implement the ASC X12 downloads by June
1, 1994. Once the implementation guide is completed, the Commission
will include the guide with its data sets.
b. ASCII downloads. A number of commenters contend ASCII downloads
are not needed to supplement ASC X12.38 They generally argue
mandating a second download in ASCII format is not worth the increased
expense and maintain the resources could be better devoted to
development of ASC X12. They recommend ASCII downloads should remain a
pipeline option, as proposed by Working Group 4. AER/MRT and Northwest,
on the other hand, recommend ASCII downloads replace ASC X12,
contending that ASCII is less costly, and faster and more efficient to
implement than ASC X12 and that their customers prefer ASCII to ASC
X12. Others support the Commission's proposal of maintaining ASCII as
an adjunct to ASC X12 since some users may not have ASC X12 capability
and ASCII would ensure those users could download the data.39
---------------------------------------------------------------------------
\3\8Columbia Gas, El Paso (noting software can translate between
ASCII and ASC X12); Enron, INGAA (ASC X12 is more comprehensive and
ASCII might not be demanded after ASC X12); National (contending EDI
software costs only $500), Natural, WEV, and NGSA (customers wanting
ASCII should have to pay the costs).
\3\9Brooklyn Union and Process Gas Consumers Group (but noting
ASCII may be of limited value unless software developers or the
users themselves develop programs to extract the needed
information).
---------------------------------------------------------------------------
The Commission will not substitute ASCII downloads for ASC X12 as
suggested by Northwest and AER/MRT. Even if ASCII downloads would be
less expensive to prepare initially, as Northwest and AER/MRT contend,
the consensus of the industry was to provide for download capability
using ASC X12 because it provided significant benefits when compared
with downloads using ASCII format. Some of these benefits include the
availability of already standardized and well-accepted procedures and
the concomitant software and businesses available to implement the
technology. The Commission anticipates that, as ASC X12 is more widely
used in the gas industry, users will recognize the advantages to using
ASC X12, as they have in other industries, and it will become the
industry standard for communication. Nevertheless, to ease the
transition to ASC X12 for those customers not yet familiar with the ASC
X12 technology, the Commission will require EBB operators to provide
for downloading capability in a flat ASCII format as well.
2. Protocols for Communications Software and Hardware, Access
Requirements, and Log-On Procedures
Commenters raise questions about the Commission's proposed
protocols relating to the software and modem speeds used to access
EBBs, the requirements for obtaining access to EBBs, and the procedures
and principles for logging-on to computers. Columbia Distribution
argues the Commission's proposed protocols fail to reflect two
principles to which the pipelines agreed: the pipelines' recognition of
the need to develop a mechanism under which users can log-on to
multiple EBBs with one phone call; and their commitment to work in good
faith to address other customer concerns, such as log-on procedures,
additional file transfer options, and other logistical concerns. IPAA
suggests a standardized basic user interface must be developed, as
opposed to each pipeline specifying a different communications package.
Because the statements mentioned by Columbia Distribution reflected
a goal for future discussions, rather than a consensus on specific
procedures or principles, the Commission did not include them in its
current protocols. The Commission recognizes that further
standardization of access requirements could reduce the burden on users
which have to access many pipeline EBBs. But Working Group 4 concluded,
from its review of pipeline EBBs, that adoption of one standard
communication package for accessing EBBs was made impracticable at this
time by the proliferation of different hardware and other operating
considerations used by the various pipeline EBBs.40 Instead, it
reached consensus on the principle that each EBB operator must provide
a script detailing its log-on procedures which is compatible with the
software package used to access the EBB and must provide for file
downloads through VANs.41 The Commission, therefore, will not
require further standardization in this area at this time, but will
leave any such modifications to the continuing Working Group
deliberations.
---------------------------------------------------------------------------
\4\0Working Group 4 Report at 6.
\4\1By using a VAN, a user could have files from multiple
pipelines delivered to its electronic mailbox, obviating the need to
log-on to each of the pipelines' EBBs individually.
---------------------------------------------------------------------------
Columbia Distribution also asserts some pipelines are proposing to
make electronic contracting mandatory for certain transactions; it
contends electronic contracting raises legal and business practice
issues that should be addressed by the Working Groups. Issues regarding
electronic contracting are legal and policy concerns that have been
addressed in restructuring or other proceedings42 and are beyond
the scope of this rulemaking, which focuses on technical issues of how
to exchange information. The Working Groups have more than enough
technical issues to consider, and the expertise of these groups lies in
the technical, not policy, arena.
---------------------------------------------------------------------------
\4\2See Questar Pipeline Company, 62 FERC 61,192 at 62,307-08,
aff'd, 64 FERC 61,157 at 62,283-84 (1993); Transcontinental Gas
Pipe Line Corporation, 65 FERC 61,023 slip op. at 90-93 (1993).
---------------------------------------------------------------------------
Northwest contends the Commission should not require pipelines to
support the 2400 baud modem speed because any speed slower than 9600
baud will place too great a burden on the EBB communication network. It
recommends each pipeline be able to choose the appropriate modem speed
so long as it identifies the hardware necessary to access the EBB.
Working Group 4 reached consensus on the principle that pipelines must
support a minimum modem speed so all potential users will have
reasonable access to the EBBs.43 The Commission will not disturb
the consensus, since Working Group 4's rationale is reasonable and the
Commission has no data on the impact on user access of permitting
pipelines to require higher modem speeds.
---------------------------------------------------------------------------
\4\3Working Group 4 Report at 15.
---------------------------------------------------------------------------
The Commission recognizes that modem speeds higher than 9600 are in
use. The Commission is amending the protocols to provide that EBB
operators supporting such higher modem speeds must comply with the
recognized national or international standards governing modem
communication.
Transco recommends changes to three of the communication protocols.
First, it argues the Commission should clarify that the requirement for
24-hour EDI access (protocol ID) is subject to two separate
contingencies, required periodic maintenance and unpredicted downtime.
The Commission sees no need to change this language from what was
proposed by Working Group 4; the possibility of unforseen events
causing computer problems is well understood and need not be addressed
separately. Second, Transco contends the Commission's proposed language
on advance authorization for third-party access to commercially
sensitive data (protocol IIIA) is unclear because it does not specify
that the pipeline's customer must provide the authorization.44 The
Commission agrees that the customer must authorize access to
commercially sensitive data and will modify this principle accordingly.
Third, Transco asserts the Commission's proposed language for log-on
scripts (protocol IVB) does not reflect the principle put forward by
Working Group 4, because it fails to make clear that the script for
customized software packages is part of the customized package, not a
separate software code. The Commission will modify this protocol to
reflect this principle.
---------------------------------------------------------------------------
\4\4A pipeline customer might want to authorize an agent to
obtain commercially sensitive information about the customer, such
as the customer's nominations, from the EBB.
---------------------------------------------------------------------------
C. Common Codes
1. Introduction
In the NOPR, the Commission found the post-Order No. 636 business
environment and the computerization of capacity release transactions
required the development of common, standardized codes in two areas:
Codes to identify companies; and common transaction point codes to
enable shippers to use a single coding structure to identify pipeline
points, particularly interconnect points between pipelines. Working
Group 5 had identified, but had not finalized, a process for developing
both sets of codes. In the NOPR, the Commission stated that it expected
Working Group 5 to finalize its proposal for common company codes by
February 1, 1994.
For common transaction points, Working Group 5 proposed an approach
in which a third-party (code assignor) would prepare a computerized
cross-reference table correlating pipelines' proprietary codes (as
verified and updated by the pipelines) to a common code. Those wanting
to use the common code would maintain the cross-reference table on
their computers and could convert proprietary pipeline codes to the
common code, and vice versa. The Commission was concerned about the
feasibility of this process, at least in the short term, because
Working Group 5 had not worked out the details of the approach (such as
how to select a code assignor, pay for the costs of the initial
assignment and continued maintenance, or distribute the code) and had
suggested this process be undertaken by a yet undeveloped gas industry
standards board. Due to the importance of this issue, the Commission
gave the Working Group until October 1, 1993, to finalize this approach
or reach another consensus approach. If no consensus was reached, the
Commission proposed to select a common code and require the pipelines
to make the translation to the common code. The Commission requested
comments on whether it should adopt the PI-GRID code developed by the
Petroleum Information Corporation or another common code.
Many commenters support the development of a common code and the
selection of the PI-GRID code if consensus on an alternative is not
reached.45 Columbia Distribution and Exxon contend the pipelines,
not the users, should make the translation. Pipelines contend that
requiring them to make the translation to the common code would
increase costs significantly, because it would affect all their
computer operations, such as those for accounting, scheduling, and
management, which are based on the use of proprietary codes.46
They assert Commission selection of the common code could impede the
cooperative efforts of the industry to date and recommend the
Commission permit Working Group 5 to continue its efforts.
---------------------------------------------------------------------------
\4\5Power Generators, NYMEX/EnerSoft, WEV, IPAA, Destec Energy,
FMA, NGSA, Edison, WEV.
\4\6Columbia Gas, Enron, INGAA, KGPL, Natural, Transco, Tenneco.
---------------------------------------------------------------------------
On October 12, 1993, Working Group 5 filed its report which
detailed its consensus agreement on a code assignor process along the
lines of its previous proposal. As discussed below, the Commission is
adopting the Working Group's proposal.
2. The Proposal
The common code structure proposed by the Working Group would
consist of two components. The first would be the code number itself, a
16 digit number, which according to the Working Group, would provide
the user with some information about each point.47 The second is a
common code data base consisting of data elements that will be
associated with each common code. These data elements include such
information as the name of the point, the owner operator of the point,
a flow indicator showing the direction of gas flow at the point, and a
point locator (e.g., geographic coordinates, survey coordinates, or
line number or mile marker) to be provided when the information is
available.
---------------------------------------------------------------------------
\4\7For example, for each non-well facility point, the first two
numbers indicate the state; the second three, the county; the next
five a surface location within the state; the next two, the facility
code; the next two, a sub number identifying components of certain
types of facilities (e.g., gas plant inlets from tailgates); and the
final two, a detail number identifying multiple facilities at the
same location.
---------------------------------------------------------------------------
Under the proposal, PI-GRID will be the code assignor and will
provide a copy of the data base to any requestor at a price reflecting
only its distribution and handling costs. The Working Group also
proposes that various Code Distributors will enter into agreements with
PI-GRID to distribute the code. These agreements would provide that the
Code Distributors would not be able to charge for the data base itself,
but would be able to charge for other ``value added'' services, such as
selective extraction of information from the data base.48
---------------------------------------------------------------------------
\4\8The Working Group envisions a series of contracts, beginning
with a master agreement between PI-GRID and a consortium of the gas
industry. If a gas industry standards board eventually is developed,
it would then take over this contract. PI-GRID would enter into
contracts based on the master agreement with Code Distributors, and
the Code Distributors would enter into agreements with users
specifying the services Distributor will provide.
---------------------------------------------------------------------------
Based on discussions with PI-GRID, the Working Group anticipates
six months will be required to establish and validate the common codes
for a large majority of interstate pipelines. If the industry begins
the coding process this winter, the Working Group expects the creation
of a complete common code data base by the 1994-95 winter heating
season.
Under the proposal, all business will be transacted with pipelines
using proprietary codes. Those wanting to use the common code will have
to program their computers to translate between common and proprietary
codes to communicate with pipelines. Pipelines will be required to
verify and validate their proprietary code information to PI-GRID. The
proposal also provides for ongoing assignment of new transaction points
and modifications to existing points. The information for these
revisions must be provided at least ten days before a new or modified
code goes into effect.
The Working Group states that, at this point, the demand for common
codes is unknown; some parties using only one or a small number of
pipelines may prefer to continue using proprietary codes. Given this
level of uncertainty, the Working Group contends the code assignor
process provides a number of benefits compared to a requirement that
all pipelines adopt a common code. It provides a verified and validated
common code system to those who need it, while ensuring that the costs
of using common codes are borne by the users, not those still
preferring to use proprietary codes. It will provide consistent
communication between pipelines and customers using proprietary codes,
avoiding the difficulties that would be created if business
transactions and other customer contacts employed different coding
systems. And, it will provide an initial first test of the level of
demand for, and efficiency of using, a common code. Should a common
code prove efficient, the Working Group expects the market to evolve to
the point where common codes will be used for all communications.
3. Comments on the Working Group Filing
Process Gas Consumers Group and NYMEX/Enersoft raise objections to
the code assignor process. Process Gas Consumers Group objects to the
shipper having the responsibility for maintaining a rather large data
set on its computer and having to develop, or acquire from others, the
``intelligence'' needed to compare capacity release offers among
pipelines to identify possible alternative transportation paths.49
It maintains that the most burdensome task facing pipelines is
verifying their proprietary codes and that including the common code in
the capacity release data sets would not be particularly burdensome. It
emphasizes that including such codes in the data sets would be for
informational purposes only, and would not require the pipelines to
conduct business using the common codes.
---------------------------------------------------------------------------
\4\9It also suggests that a common code system could include
mile markers or other geographic location information so software
could identify delivery points either upstream or downstream of a
location.
---------------------------------------------------------------------------
NYMEX/EnerSoft contend pipelines should not be able to require
customers to communicate using proprietary codes, because users will
then have to obtain translation software to convert the common codes to
the proprietary codes. It maintains that having the pipelines perform
the translation is preferable sinc
FR Doc. 94-45 Standards For Electronic Bulletin Boards Required Under Part 284 of the Commission's Regulations
e there are fewer pipelines than
market participants.
The other commenters support the code assignor process. AER/MRT
supports the use of proprietary codes for communication between
pipelines and users, because use of one code will minimize the
likelihood of miscommunication. It also argues requiring shippers to
perform the translation appropriately requires those using common codes
to bear the costs of that use. Gaslantic contends the Commission should
ensure that initial and updated common codes are distributed on an
open-access basis, and IPAA similarly supports the provision of the
data base without cost.
The National Registry suggests two clarifications. It is concerned
about the possibility that PI-GRID, as code assignor, might delay
distribution of the code in order to degrade the value of services
provided by competitors. It suggests PI-GRID should be required to file
a letter with the Commission when it has completed more than 90% of the
cross-referencing for each pipeline and provide the code to
distributors at that point. It further contends that information on the
location of points (such as geographic coordinates or pipeline line
number of mile marker) is critical, but that the proposed data sets
requires this information to be included only when available. It
maintains the Commission should clarify when this information must be
provided, suggesting it should be supplied for path pipelines, but not
for point-to-point or network pipelines.50 In line with this
request, it suggests the Commission require pipelines to include in
their next Form 567 filing an identification of the proprietary point
code associated with the points in the flow diagrams.51
---------------------------------------------------------------------------
\5\0It similarly seeks clarification that available information
will be validated and become part of the cross-reference table.
\5\1Form No. 567 is diagram of the operating conditions on the
pipeline's main transmission system for the prior year. 18 CFR
260.8.
---------------------------------------------------------------------------
4. Commission Adoption of the Working Group Proposal
Given the level of support for the code assignor process, the
Commission accepts the Working Group proposal and will implement it by
requiring pipelines to provide a mechanism through which any person can
obtain a validated computerized data base that will provide the ability
to convert from pipeline proprietary codes to a common code. The
Working Group stated the code assignment process could be completed by
the start of the 1994-95 winter heating season, and the Commission,
therefore, will require the implementation of this approach by November
1, 1994. The Commission also will require pipelines to ensure that the
common codes and data base, and any updates, will be provided without
charge, except for reasonable distribution and handling fees.
The Commission will adopt the data sets as proposed by the Working
Group with one modification. The Commission will require that the point
locator information be mandatory. The Commission agrees with the
commenters that the ability to locate pipeline points in relation to
other points on the system is important if users are to use the common
code data base to determine if a package of released capacity fits
their needs. When pipelines verify their proprietary codes to PI-GRID,
they must include information sufficient to enable users to locate a
point on one pipeline in relation to other points. At this point, the
pipelines can choose the method of locating the points, such as
geographic coordinates, line number or line marker, but the Commission
envisions that eventually all pipelines should move to using geographic
coordinates so that points on different pipelines can be related to
each other.
Gaslantic and IPAA support the provision of the data base and
updates at no cost to the user. The Working Group report states
distributors cannot charge more than postage and handling costs for
providing the code itself, but can charge for value added services. The
Commission is requiring the pipelines to ensure that users can obtain
the data base and any updates at a price that reflects only reasonable
costs of distribution and handling. Additional charges, however, may be
assessed for other value added services relating to updates.
The requirement that point locator information be mandatory for all
pipelines obviates the requests by the National Registry for a further
definition of the term ``available'' to describe when point locator
information will be provided and for requiring point location
disclosure in Form 567 filings. The provision of point locator
information also should satisfy Process Gas Consumers Group's request
for geographic location points.
The National Registry suggests that the Commission require PI-GRID
to file a statement with the Commission when it has completed more than
90% of the cross-referencing for each pipeline and provide the code to
distributors at that point. The Commission has set a deadline for final
dissemination of the common code data base and finds no reason to
require filings as the data are compiled or piecemeal implementation.
NYMEX/Enersoft contend pipelines should be required to conduct
business using common codes. The Commission will not impose this
requirement at this time, since it goes beyond the consensus agreement
reached by Working Group 5. Shippers will be able to use the cross-
reference table to convert electronically from the common codes to the
proprietary codes for communication with the pipeline.
Process Gas Consumers Group maintains that including the common
codes in the capacity release data sets would be more efficient,
although they do not suggest pipelines be required to conduct business
using the common code. This suggestion too goes beyond the consensus
agreement reached by the Working Groups, and the Commission will not
impose it.
Moreover, even if the common code (consisting of 16 digits) was
included in the capacity release data sets, the efficiency of the
process might not be enhanced to a significant degree. The extensive
data base that goes along with the common code would not be on the
EBBs, and users may very well need the underlying data base to provide
the information they require to perform an analysis of capacity paths.
As described earlier, the sequence of numbers in the code itself
provides users only with limited information, such as identifying the
state and county of the point. But the entire common code data base
provides additional information about points, such as the point locator
information, that users may well need to use the common code
effectively in comparing capacity releases over multiple pipelines. The
Commission further notes that Working Groups 1 and 2 have included an
optional field for common codes which pipelines may make available to
their users. Use of this field may provide a test of whether bidders
would derive value from access to the common code numbers, without also
having the underlying data base available.
In conclusion, the Commission finds that the industry has taken a
positive step forward by designing a process that will ensure that
those wanting to use common codes can do so effectively within a
reasonable period of time. The Commission expects use of this system
will prove to enhance efficiency by better enabling shippers to manage
the transportation of gas supplies across the nationwide pipeline grid.
As pipelines review and update their computer and financial systems in
light of the changed business environment created by Order No. 636, the
Commission expects them to incorporate the use of common codes.
Ultimately, the Commission anticipates that the common codes ultimately
will become the standard used for all transactions and communications
between pipelines and their customers.
VII. Issues not Addressed in the Standardized Data Sets and
Communication Protocols
The Working Group reports included minority positions on some
issues, and these issues also were addressed in the comments on the
Working Group reports. On several issues, the Commission recommended
that the Working Groups continue their efforts to seek resolution, with
reports to be made by February 1, 1994. Others involved policy
questions which the Commission found were beyond the scope of this
proceeding and would be better examined in other fora.
A. Proposed Additions to the Standardized Data Sets
1. Index of Purchasers
The National Registry proposed that an Index of Purchasers (Index),
which would disclose a variety of information about the capacity rights
of firm capacity holders, be available on EBBs and through downloadable
files.52 It asserted this index could be used to establish the
baseline contractual rights of current holders of pipeline capacity,
information which it believed was needed so potential purchasers could
determine the releasable rights of firm capacity holders. In the NOPR,
the Commission did not propose to include the proposed Index because
the proposal appeared too burdensome and costly. But the Commission
stated it considered a more limited Index to have value in identifying
firm shippers with releasable capacity. It suggested the Working Groups
work on a cost-effective method of presenting such information.
---------------------------------------------------------------------------
\5\2The Commission requires pipeline tariffs to include an index
of firm capacity holders, with less detail than what was proposed by
the National Registry. Tennessee Gas Pipeline Company, 65 FERC
61,224 slip op. at 182 (1993); 18 CFR 154.41.
---------------------------------------------------------------------------
Many commenters contend the benefits of an Index do not warrant the
cost, since shippers willing to release capacity are free to post
offers to sell and potential purchasers can post so-called want ads,
advertising the capacity they want to acquire.53 INGAA suggests
the Commission not prejudge the outcome of this issue, but instead
permit the Working Group process to determine whether an Index in any
form is appropriate.
---------------------------------------------------------------------------
\5\3AER/MRT, Columbia Distribution, Con Edison (if Index is
adopted, it should be operated independently and funded by
subscribers), Enron (too costly and burdensome); KGPL, Natural, UDC,
Williston Basin.
---------------------------------------------------------------------------
Others contend an Index would be valuable in providing convenient
access to baseline information on those holding firm service so buyers
could determine whom to approach to negotiate prearranged deals for
capacity.54 They contend the Index would replace the index of
sales customers pipelines previously maintained and should not be
difficult for pipelines to provide.
---------------------------------------------------------------------------
\5\4FMA, IPAA, NGSA.
---------------------------------------------------------------------------
The Commission will not decide this issue now because it is still
being considered by the Working Groups. But the Commission continues to
find merit in the concept of providing a cost-effective electronic
Index of purchasers and expects the participants in the Working Groups
to consider this issue in the same open-minded and conciliatory manner
they used to build consensus on other issues in this proceeding.
The Commission also did not propose to make data items for contract
number and replacement contract number mandatory fields, finding that
these items were tied to the proposed Index.\55\ The National Registry
contends its request to make contract and replacement contract numbers
mandatory fields is independent of the Index. It asserts these data are
needed by the Commission, state commissions, and others to create an
audit trail to verify the ownership of capacity being released and
acquired.
---------------------------------------------------------------------------
\55\The releaser's contract number is an optional field and so
may be included by pipelines when they deem such information to be
necessary for operation of their systems.
---------------------------------------------------------------------------
Although the Commission will not require the inclusion of contract
and replacement contract number in the data sets at this time, it does
recognize that pipelines will need to maintain a correlation between
release transactions and the contracts resulting from those
transactions for Commission audit requirements if not also for the
pipelines' own purposes. Since pipelines must maintain this information
in any event, the Working Groups should consider making this
information mandatory in the downloadable data sets to make access
easier.
2. Nominations for Firm and Interruptible Capacity
No consensus was reached in the Working Groups whether to include
fields showing confirmed firm and interruptible nominations and a field
showing whether no-notice service is available at a location.
Proponents of providing this information contended it was needed for
releasing shippers and bidders to assess the value of released
capacity, while opponents maintained it is not needed to bid on
capacity, but would unfairly tilt the market in favor of bidders. The
parties also disagreed on the availability, and costs, of providing the
information.
In the NOPR, the Commission found that the available information
did not permit it to resolve the issue. Moreover, the Commission
recognized the Working Groups had little time to consider this matter
fully and, therefore, strongly encouraged them to continue their
discussions and to explore alternatives for providing information
relevant to the purchasing of capacity that is operationally feasible
to provide at reasonable cost.
The comments on the NOPR essentially parallel the previous
positions: proponents state the information is needed to make business
judgments and is information that would be available in a free
market;\56\ opponents contend it would undermine capacity release, is
too costly to provide, would not be provided in a free market, and
unfairly requires shippers to divulge competitive information that
would be used against them.\57\ NGSA and Destec Energy comment that the
Commission must be prepared to judge the merits of disputes, like this
one, which are based on competing economic interests. FMA asserts that
for unresolved disputes, special consideration should be given to the
views of end-users, because they are the ones paying for natural gas
and transportation.
---------------------------------------------------------------------------
\56\Power Generators, Destec Energy, FMA, Edison.
\57\Columbia Distribution, Con Edison, Enron, KGPL, National,
Natural, Transco, and UDC.
---------------------------------------------------------------------------
The Commission finds that the Working Groups should continue to
examine and explore means of reaching a compromise on this issue. The
Commission does not agree that the views of any one group should
predominate over others. The parties should seek to accommodate each
other's interests, as they have on other issues, a process more likely
to produce a resolution preferable to both sides than if the Commission
decides. Should agreement on whether to provide the information prove
elusive, the parties should, at a minimum, seek to agree upon a cost
effective method of providing the information if the Commission
determines it is necessary.
B. Communication Protocols for Uploading Files and Downloading Subsets
of Files
In the NOPR, the Commission stated that development of standards
permitting users to transmit (upload) files to the pipelines' computers
as well as to download subsets of files could increase the efficiency
of the capacity allocation mechanism. File upload capability, for
example, would permit bidders to submit their bids electronically
without having to sign-on to the pipelines' on-line EBBs. The ability
to download a subset of a capacity release file, such as release
information received after a certain date, would permit users to
eliminate unneeded information from the files they download and also
increase the efficiency of the communication process. The Commission
endorsed Working Group 4's plan to continue its efforts to develop
these capabilities.
Many commenters support file uploading to provide efficient
communication.\58\ Others, principally pipelines, raise questions about
file uploading. They contend file uploading is not as well suited as
on-line EBBs to handling bids submitted near the close of bidding
periods, because, unlike EBBs, uploading is not an interactive system
permitting immediate notification to bidders of errors in their
bids.\59\
---------------------------------------------------------------------------
\58\Power Generators, Columbia Distribution, Con Edison, NYMEX/
EnerSoft, Edison, Tenneco (noting effort should not be
oversimplified), WEV, and Williston Basin (noting uploads must be
coordinated with interactive EBBs, especially at the end of bidding
periods when quick action is needed).
\59\El Paso, Natural, Transco, Northwest, KGPL, National (also
may expose pipelines' computers to security risks, such as viruses).
---------------------------------------------------------------------------
Edison states downloading of file subsets should be a priority.
Columbia Gas maintains downloads of subsets based on dates is
reasonable, but adding other criteria could be burdensome, while
Williston Basin contends any subset downloads would be too expensive.
UDC suggests the Commission should not mandate file uploading or
downloading of file subsets, but should trust the market to develop
these capabilities if they are needed.
The Commission is convinced that the development of effective file
uploading and subset downloading capability would markedly enhance
communication efficiency related to capacity release. Working Group 4
should continue to assign a high priority to developing standards in
this area. The Commission recognizes the concerns with uploads
submitted close to the end of the bidding period, but is confident the
Working Groups can develop the necessary standards to deal with this
issue.\60\
---------------------------------------------------------------------------
\60\For example, one possible approach the Working Groups could
consider is whether all bids received within some time period prior
to the close of the bidding period should be treated as having been
received at the same time.
---------------------------------------------------------------------------
C. Standardization of Non-Capacity Release Business Transactions
The industry established Working Group 3 to consider the
development of standards relating to business practices, other than
capacity release, resulting from the business changes fostered by
pipeline restructuring under Order No. 636. In its report, the Working
Group did not propose any standards; it outlined the areas of highest
priority and its process for continuing to examine these issues.
Several commenters support the continuation of these efforts,
maintaining standardization of these business data is critically
important to the industry.\61\ Vesta contends the Commission should
require the pipelines now to provide the 16 data items tentatively
established by Working Group 3 as being the most critical. Others
oppose the continuation of Working Group 3's deliberations, arguing
standards in these areas are not required by Order No. 636 and the
Commission should limit its promulgation of standards to those
essential for capacity release.\62\
---------------------------------------------------------------------------
\61\Exxon, NGSA, O&R.
\62\PEC Pipeline Group, UDC, Tenneco.
---------------------------------------------------------------------------
The Commission has recognized the restructuring occasioned by Order
No. 636 likely will result in changes to business practices, apart from
capacity release, which could require further standardization.\63\
Standardizing capacity release information was the first step in this
process, but now the Working Groups should turn their attention to
standards for these other business transactions.
---------------------------------------------------------------------------
\63\See Order No. 636-A, III FERC Stats. & Regs. Preambles at
30,459 (standards may be needed to ensure efficient movement of gas
across pipelines); March 10, 1993, Notice (capacity release
standards first step in standardization).
---------------------------------------------------------------------------
From over 66 items proposed for review, Working Group 3 found 33 to
be of high priority, and of those 33, focused its initial review on ten
elements.\64\ In the Commission's view, standardization of these ten,
or most of them, would provide a good departure point for this effort.
The Commission realizes all facets of the industry may not have equal
need for all these elements, but these elements would appear to have
wide enough coverage that the benefits from standardization will be
widespread. Moreover, once standards are in place, those who may not
now perceive a need for standards, may come to realize the standards
will make their business more efficient, and even those who do not need
the standards themselves, stand to benefit if other segments of the
industry become more efficient.\65\ The Working Group should propose an
appropriate implementation schedule for the ten identified data
elements. The Working Group also should continue its efforts to
identify which of the remaining 23 high priority data elements, as well
as any others, require standardization and propose a schedule for
implementation of standards for these elements as well.
---------------------------------------------------------------------------
\64\The ten elements were: timely flowing volume; timely volume
allocation reports; predetermined allocations and shipper ranking;
imbalance status; customer scheduled receipts and deliveries;
customer specific curtailment/interruption information; customer
specific operational flow orders; daily nominated volume
acknowledgement; customer penalty status; and input and modify gas
nominations. Working Group 3 Report at 5-6.
\65\For example, if standards reduce producers' costs or result
in making gas a more viable option for fuel switchable users, all
will benefit from lower prices and greater use of the gas
transportation system.
---------------------------------------------------------------------------
D. Policy Issues
The minority reports and initial comments raised questions about
three policy issues: the method of recovering the costs of
standardization, pipeline disclaimers of liability for EBB operation,
and the disclosure of non-price considerations underlying capacity
release transactions. The Commission stated in the NOPR that such
substantive policy issues are beyond the scope of this proceeding and
are more appropriately considered in individual proceedings.
1. Costs of Standardization
In the NOPR, the Commission recognized the concern of firm shippers
that the costs of compliance with the EBB standards should be spread
equitably across all those benefitting from the standards. The
Commission encouraged the industry to consider methods for ensuring
equitable sharing of such costs, such as user or access fees.
Many commenters support development of a fair and equitable method
of allocating costs.\66\ Transco and Williston Basin maintain EDI, in
particular, is not suitable for all customers and suggest the costs of
implementing this technology should be borne by those benefitting from
it. PSCW contends LDCs should not have to subsidize the costs of
providing information benefitting other parties and suggests an
incremental pricing system for all information beyond a basic level. A
number of commenters are concerned about leaving the issue solely to
rate cases.\67\ They maintain the policy needs to be consistent across
pipelines and urge the Commission to decide on the method for
allocating costs in this proceeding or in another generic proceeding,
leaving implementation to individual rate cases. Power Generators
opposes inclusion of this issue in the Working Groups, because the
success of the Groups was due to their focus on technical issues.
---------------------------------------------------------------------------
\66\AGA. UDC, WEV.
\67\AER/MRT, Brooklyn Union, Columbia Distribution, UDC.
---------------------------------------------------------------------------
El Paso, Tenneco, and INGAA contend user or access fees are not
appropriate for recovery of upfront costs, and Natural expresses
concern that access fees may not be sufficient to compensate
pipelines.68 FMA suggests, in the absence of consensus on a new
approach, the proper approach is to continue with the Order No. 636
policy of recovering fixed costs through reservation charges and only
variable costs through usage charges.
---------------------------------------------------------------------------
\6\8INGAA suggests direct charges may be appropriate for
additional services and features that go beyond the standards to be
adopted by the Commission.
---------------------------------------------------------------------------
In general, the Commission finds that its previous policy of
permitting the pipelines to recover fixed costs through a reservation
charge and only variable costs through a usage charge is appropriate
for the basic EBB service. This basic service includes, at a minimum,
the downloadable data sets and communication protocols established in
this rule, which the Commission finds are necessary to promote a viable
capacity release market and should provide generalized system-wide
benefits to all users of the pipeline grid. Until additional standards
are presented, the Commission cannot determine whether they provide
sufficient benefits to the industry as a whole to warrant inclusion in
the basic EBB package.
For enhancements to the basic EBB service, which are not of general
benefit, the Commission is open to considering cost recovery approaches
that will recover fixed costs from the limited number of users deriving
benefit from the service. The Commission encourages the industry to
pursue such approaches.
As an example, pipelines could consider using a process for
recovering the costs of enhancements to the standard EBB package from
only those customers that subscribe to the enhancements. The pipeline
could explore with the users of its EBB the costs of providing a
particular service or group of services and methods of recovering these
costs from the subscribing users, such as through access fees,
reservation charges, or direct charges. The pipeline and the users also
could establish mechanisms for reimbursing the initial subscribers if
additional users later evince an interest in obtaining the services.
Once having obtained agreement from those customers desiring the
service, the pipeline could make a tariff filing to establish the
method of recovery or submit an application or petition for a
declaratory order requesting advance Commission review of the proposed
costs and charges.69
---------------------------------------------------------------------------
\6\918 CFR 385.204, 385.207. This process would be similar to
the advance approval for research, development, and demonstration
projects. 18 CFR 154.38(d)(5).
---------------------------------------------------------------------------
2. Liability
Several commenters suggest the liability standard for EBB
operations should be the same across all pipelines and, therefore,
should be resolved either in this proceeding or in another generic
proceeding.70 Peoples Gas, et al., supports consideration of the
issue in individual proceedings, but suggests the Commission restate
here its standard that pipeline liability for EBB operations should be
no different than for other operations. UDC asks the Commission to
state that it will enforce its standard. Some parties contend the
Commission should adopt a new standard, arguing EBBs are not like other
pipeline operations since parties other than the pipeline are
responsible for providing information.71 Because verification of
such information is time consuming, they recommend each party ensure
the accuracy of the information it provides. Con Edison, in contrast,
argues that pipeline tariff provisions regarding EBB user
indemnification of the pipeline are too onerous and hold the EBB user
to a higher standard of responsibility than applies to the pipeline.
Enron contends the issue is beyond the scope of this proceeding.
---------------------------------------------------------------------------
\7\0Columbia Distribution, Con Edison, NGSA, NYMEX/EnerSoft.
\7\1Tenneco, Con Edison, NYSEG, WEV (knowingly providing false
information should subject provider to damages).
---------------------------------------------------------------------------
The Commission agrees that this issue goes beyond the technical
concerns with standards development which were the focus of this
proceeding. The Commission can determine policy related issues in
individual cases without having to establish a new generic proceeding
and already has addressed this issue in restructuring orders. The
Commission has adopted the principle that a pipeline's liability for
EBB operations should be the same as for its other operations.72
The Commission also has addressed user liability standards in
individual restructuring orders based upon the specific pipeline EBB
agreement.73 In general, the Commission has determined that a
user's liability for unauthorized use of a customer identification
number is limited to negligence or a wrongful act.
---------------------------------------------------------------------------
\7\2Algonquin Gas Transmission Company, 65 FERC 61,019 slip op.
at 23-24 (1993); Great Lakes Gas Transmission Limited Partnership,
65 FERC 61,004 slip op. at 29-30 (1993).
\7\3South Georgia Natural Gas Company, 64 FERC 61,251 slip op.
11-12 (1993); East Tennessee Natural Gas Company, 65 FERC 61,223
(1993).
---------------------------------------------------------------------------
3. Non-Price Considerations
O&R contends standards are needed to guard against capacity
releases involving deals for indirect consideration, such as capacity
release transactions tied to gas supply arrangements. It asserts this
issue is not better addressed in individual proceedings, but requires a
definitive policy statement. The Commission adheres to its conclusion
that this issue is outside the scope of this technical rulemaking and
should not be an issue considered by the continuing Working Group
sessions. The Commission has addressed this concern in individual
restructuring proceedings based on the facts and circumstances in each
case.74 As pointed out previously, should the Commission decide a
general policy in this area is required in the future, the Commission
need not articulate its policy through a generic proceeding, but can do
so in individual proceedings.
---------------------------------------------------------------------------
\7\4See Northwest Pipeline Corporation, 63 FERC 61,124 at
61,803 (1993); Pacific Gas Transmission Company, 64 FERC 61,052 at
61,455-56 (1993).
---------------------------------------------------------------------------
E. Gas Industry Standards Board
Several of the Working Group reports, and initial comments,
endorsed the development of a Gas Industry Standards Board (GISB) which
ultimately would replace the Working Groups and continue the
development and maintenance of industry-wide standards. In the NOPR,
the Commission stated it was interested in this concept and invited
submission of a proposal as to how it would operate.
Many commenters support an industry standards board in concept as
long as all industry segments are represented, but noted the concept is
still in the planning phase so any detailed comments would be
premature.75 A number of commenters emphasized that the GISB
concept should not interfere with the on-going efforts of the Working
Groups. El Paso did not support an industry standards board unless it
was limited to communication format standards, and O&R contended such a
board should be an advisory panel only. Con Edison, in contrast,
contends the scope of the board should be extended beyond electronic
communication to include standardization relating to pipeline
operations, imbalances, and nominations.
---------------------------------------------------------------------------
\7\5See Power Generators, Northwest, Tenneco, Williston Basin,
AGA, AER/MRT, AGD, Brooklyn Union, Columbia Distribution, Columbia
Gas, Destec Energy, Exxon, NGSA, Process Gas Consumers Group , IPAA,
KGPL, Transco, UDC, Natural, Peoples Gas, et al., Edison, Texaco,
PEC Pipeline Group.
---------------------------------------------------------------------------
On November 2, 1993, the Commission met with representatives from
the Natural Gas Council to hear a report on the progress of GISB. The
Commission remains interested in this concept and looks forward to a
detailed proposal. When the Commission receives a proposal, it will
give close consideration to the effects of such an independent industry
standardization effort on all facets of the gas industry, Commission
regulation, and state regulation.
In the meantime, the Working Group efforts should continue apace.
The Working Groups should not defer or delay the development of
standards in anticipation of the formation of a standards board.
Moreover, they should ensure their proposals can stand alone and should
not rely upon the eventual existence of a standards board as the means
to administer the standards.
VIII. Environmental Analysis
The Commission is required to prepare an Environmental Assessment
or an Environmental Impact Statement for any action that may have a
significant adverse effect on the human environment.76 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.77 The action taken here falls within the categorical
exclusions in the Commission's regulations for rules that are
clarifying or procedural and that relate to information gathering,
analysis, and dissemination.78 Therefore, an environmental
assessment is unnecessary and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\7\6Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 30 (1987).
\7\718 CFR 380.4.
\7\8See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5).
---------------------------------------------------------------------------
IX. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act of 1980 (RFA)79 generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
Pursuant to section 605(b) of the RFA, the Commission hereby certifies
that the regulations proposed herein will not have a significant impact
on a substantial number of small entities.
---------------------------------------------------------------------------
\7\95 U.S.C. 601-612.
---------------------------------------------------------------------------
X. Information Collection Requirement
Office of Management and Budget (OMB) regulations require approval
of certain information collection requirements imposed by agency
rules.80 The information/EBB requirements of this final rule are
under FERC-549(B), Gas Pipeline Rates: Capacity Release Information,
(OMB Control No. 1902-0169).
---------------------------------------------------------------------------
\8\05 CFR 1320.14.
---------------------------------------------------------------------------
The required information under FERC-549(A) enables the Commission
to carry out its legislative mandate under the NGA and NGPA and will
ensure a viable capacity release market under Commission Order No. 636.
Specifically, the required information allows the Commission to review/
monitor capacity release transactions and firm and interruptible
capacity made available directly from pipelines and to take appropriate
action, where and when necessary.
The Commission is submitting notification of these information/EBB
requirements to OMB for its review and approval. Interested persons may
send comments regarding the burden estimates or any other aspect of
these EBB standards/information requirements, including suggestions for
reducing the estimated burden, by contacting the Federal Energy
Regulatory Commission, 941 North Capitol Street, NE., Washington, DC
20426 [Attention: Michael Miller, Information Services Division, (202)
208-1415]. Comments on the requirements of the subject final rule may
also be sent to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503 [Attention: Desk
Officer for Federal Energy Regulatory Commission].
XI. Effective Date
This final rule shall take effect February 4, 1994.
List of Subjects in 18 CFR Part 284
Continental shelf, Natural gas, Reporting and recordkeeping
requirements.
By the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, part 284, chapter I, title 18,
Code of Federal Regulations, is amended as set forth below.
PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES
1. The authority citation for part 284 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7532;
43 U.S.C. 1331-1356.
2. In Sec. 284.8, paragraph (b)(5) is redesignated paragraph (b)(6)
and new paragraph 284.8(b)(5) is added to read as follows:
Sec. 284.8 Firm transportation service.
* * * * *
(b) * * *
(5) Standardization of information provided on Electronic Bulletin
Boards.
(i) An interstate pipeline must provide access to standardized
information relevant to the availability of service on its system on
its Electronic Bulletin Board and through downloadable files in
compliance with standardized communication protocols. The standardized
information and the communication protocols are found in ``Standardized
Data Sets And Communication Protocols,'' which can be obtained from the
Public Reference and Files Maintenance Branch, Federal Energy
Regulatory Commission, 941 North Capitol Street NE., Washington DC
20426.
(ii) An interstate pipeline must implement these standards,
procedures, and protocols by June 1, 1994, unless the Standardized Data
Sets And Communication Protocols specify an implementation date.
* * * * *
3. In Sec. 284.9, paragraph (b)(4) is revised to read as follows:
Sec. 284.9 Interruptible transportation service.
* * * * *
(b) * * *
(4) The requirement of paragraph (b)(3) of this section must be
implemented through the use of an Electronic Bulletin Board with the
features required under Sec. 284.8(b)(4) and complying with
Sec. 284.8(b)(5).
* * * * *
Note: This Appendix will not appear in the Code of Federal
Regulations.
Appendix A--Parties Filing Comments on the Notice of Proposed
Rulemaking
Docket No. RM93-4-000
------------------------------------------------------------------------
Commenter Abbreviation
------------------------------------------------------------------------
Ad Hoc Group of Power Generators\81\ and Edison Power Generators.
Electric Institute.
American Gas Association........................... AGA.
ANR Pipeline Company and Colorado Interstate Gas ANR/CIG.
Company.
Arkla Energy Resources Company and Mississippi AER/MRT.
River Transmission Corporation.
Associated Gas Distributors........................ AGD.
Brooklyn Union Gas Company......................... Brooklyn Union.
Columbia Gas Distribution Companies\82\............ Columbia
Distribution.
Columbia Gas Transmission Corporation and Columbia Columbia Gas.
Gulf Transmission Company.
Consolidated Edison Company of New York, Inc....... Con Edison.
Destec Energy, Inc................................. Destec Energy.
El Paso Natural Gas Company........................ El Paso.
Enron Interstate Pipelines (Northern Natural Gas Enron.
Company, Transwestern Pipeline Company, and
Florida Gas Transmission Company).
Exxon Corporation.................................. Exxon.
Fuel Managers Association.......................... FMA.
Hadson Gas Systems, Inc............................ Hadson.
Independent Petroleum Association of America....... IPAA.
Interstate Natural Gas Association of America...... INGAA.
Koch Gateway Pipeline Company...................... KGPL.
National Fuel Gas Supply Corporation............... National.
National Registry of Capacity Rights............... National Registry.
Natural Gas Pipeline Company of America............ Natural.
Natural Gas Supply Association..................... NGSA.
New York Mercantile Exchange and Enersoft NYMEX/EnerSoft.
Corporation.
New York State Electric & Gas Corporation.......... NYSEG.
Northwest Pipeline Corporation..................... Northwest.
O&R Energy, Inc.................................... O&R.
Peoples Gas Light and Coke Company, North Shore Gas Peoples Gas, et al.
Company, and Northern Illinois Gas Company.
Process Gas Consumers Group, American Iron and Process Gas
Steel Institute, and Georgia Industrial Group. Consumers Group.
Public Service Commission of Wisconsin............. PSCW.
Sabine Pipe Line Company........................... Sabine.
Southern California Edison Company................. Edison.
Tenneco Gas........................................ Tenneco.
Texaco, Inc........................................ Texaco.
Texas Eastern Transmission Corporation, Panhandle PEC Pipeline Group.
Eastern Pipe Line Company, Trunkline Gas Company,
and Algonquin Gas Transmission Company.
Transcontinental Gas Pipe Line Corporation......... Transco.
UGI Utilities, Inc................................. UGI.
United Distribution Companies...................... UDC.
Vesta Energy Company............................... Vesta.
Williams Energy Ventures, Inc...................... WEV.
Williston Basin Interstate Pipeline Company........ Williston Basin.
------------------------------------------------------------------------
\81\This group includes American Electric Power Service Corporation,
Atlantic City Electric Company, Boston Edison Company, Energy Service,
Inc., Fuel Managers Association, New England Power Service Company,
Northern States Power Company, Northeast Utilities, Potomac Electric
Power Company, Southern Company Services, Virginia Electric and Power
Company, West Texas Utilities Company, and Wisconsin Electric Power
Company.
\82\Columbia Gas of Kentucky, Inc., Columbia Gas of Maryland, Inc.,
Columbia Gas of Ohio, Inc., Columbia Gas of Pennsylvania, Inc., and
Commonwealth Gas Services, Inc.
[FR Doc. 94-45 Filed 1-4-94; 8:45 am]
BILLING CODE 6717-01-P
Complete official Federal Register PDF
FR Doc. 94-29 Station Call Sign Administrators for Club and Military Recreation Stations
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 542-543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, and 97
[FCC 93-546]
Station Call Sign Administrators for Club and Military Recreation
Stations
AGENCY: Federal Communications Commission.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: This action vacates the rule provisions that established
private entity club call sign administrators and reinstates prior
rules. A new proposal regarding call signs will meet the need for
persons interested in obtaining a club station license. Hence, it is
not necessary to retain the club call sign administrator rules adopted
in an earlier action.
EFFECTIVE DATE: February 4, 1994.
FOR FURTHER INFORMATION CONTACT:
Maurice J. DePont, Federal Communications Commission, Private Radio
Bureau, Washington, DC 20554, (202) 632-4964.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Memorandum Opinion and Order, adopted December 13, 1993, and released
December 29, 1993. The complete text of this Commission action,
including the rule amendments, is available for inspection and copying
during normal business hours in the FCC Reference Center (room 230),
1919 M Street, NW., Washington, DC. The complete text of this
Memorandum Opinion and Order, including the rule amendments, may also
be purchased from the Commission's copy contractor, International
Transcription Services, Inc., (ITS, Inc.), 2100 M Street, NW., suite
140, Washington, DC 20037.
Summary of Memorandum Opinion and Order
1. On May 11, 1993, final rules were adopted that established call
sign administrators for club and military recreation stations in the
amateur service. Subsequently, a petition for reconsideration was filed
in which it was argued that the establishment of such administrators
was not minor and non-controversial and that a notice and comment
proceeding should have been held before final rules were adopted.
2. Further, the Commission is activating a new automated licensing
system that will enable it to perform, with minimal burden, the
function that administrators in the private sector were going to
perform without reimbursement. Also, a new proposal by the Commission
regarding call signs will meet the need of persons interested in
obtaining a club station license.
3. Because there appears to be merit in the argument that the
establishment of administrators is controversial, and because the new
proposal will meet the need of persons interested in the club station
licenses, the rule provisions that established private entity club call
sign administrators can be vacated.
4. Accordingly, by this action, the rules establishing
administrators are vacated, the prior rules are reinstated, and the
petition for reconsideration is granted.
5. The amended rules are set forth at the end of this document.
6. The amended rules have been analyzed with respect to the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520, and found to
contain no new or modified form, information collection and/or record
retention requirements, and will not increase or decrease burden hours
imposed on the public.
7. This Memorandum Opinion and Order and the rule amendments are
issued under the authority of 47 U.S.C. 154(i), 303(r), and 405(a).
List of Subjects
47 CFR Part 0
Organization and functions.
47 CFR Part 1
Radio.
47 CFR Part 97
Applications, Club stations, Radio.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Amended Rules
Parts 0, 1, and 97 of chapter 1 of title 47 of the Code of Federal
Regulations are amended as follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
unless otherwise noted.
Sec. 0.131 [Amended]
2. Section 0.131 is amended by removing paragraph (k).
Sec. 0.331 [Amended]
3. Section 0.331 is amended by removing paragraph (d).
Sec. 0.486 [Removed]
4. Section 0.486 is removed.
PART 1--PRACTICE AND PROCEDURE
The authority citation for part 1 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303; Implement, 5 U.S.C. 552, unless otherwise noted.
1. Section 1.912(a) is revised to read as follows:
Sec. 1.912 Where applications are to be filed.
(a) Each application for a new amateur service operator/primary
station license and each application involving a change in operator
class must be submitted to the volunteer examiners (VEs) administering
the qualifying examination. See Sec. 97.17(c) of this chapter. The VEs
are required to submit the applications of persons passing their
respective examinations for amateur operator licenses to the Volunteer-
Examiner Coordinator (VEC). All other applications for amateur service
licenses must be submitted to FCC, 1270 Fairfield Road, Gettysburg, PA
17325-7245.
* * * * *
PART 97--AMATEUR RADIO SERVICE
The authority citation for part 97 continues to read as follows:
Authority: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609, unless otherwise noted.
1. Section 97.17 is amended by revising paragraph (b) to read as
follows. In addition, paragraph (g) is removed.
Sec. 97.17 Application for new license.
* * * * *
(b) Each application for a new operator/primary station license
must be made on FCC Form 610. Each application for a reciprocal permit
for alien amateur licensee must be made on FCC Form 610-A. No new
license for a club, military recreation, or RACES station will be
issued.
* * * * *
2. Paragraphs (a) and (b) of Sec. 97.19 are revised to read as
follows:
Sec. 97.19 Application for a renewed or modified license.
(a) Each application for a renewed or modified operator/primary
station license must be made on FCC Form 610. Each application for a
renewed or modified club, military recreation, or RACES station license
must be made on FCC Form 610-B. A reciprocal permit for alien amateur
licensee is not renewable. A new reciprocal permit may be issued upon
proper application.
(b) Each application for a renewed or modified amateur service
license must be accompanied by a photocopy of the license document or
the original document, unless it has been lost, mutilated, or
destroyed. Each application for a modified operator license involving a
change in operator class must be submitted to the VEs administering the
qualifying examination. All other applications must be submitted to:
FCC, 1270 Fairfield Road, Gettysburg, PA 17325-7245.
* * * * *
Sec. 97.29 [Removed]
3. Section 97.29 is removed in its entirety.
[FR Doc. 94-29 Filed 1-4-94; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 94-21 Airworthiness Directives; Airbus Industrie Model A310 and A300- 600 Series Airplanes
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 507-509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 93-NM-208-AD; Amendment 39-8783; AD 93-24-51]
Airworthiness Directives; Airbus Industrie Model A310 and A300-
600 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This document publishes in the Federal Register an amendment
adopting Airworthiness Directive (AD) T93-24-51 that was sent
previously to all known U.S. owners and operators of all Airbus Model
A310 and A300-600 series airplanes by individual telegrams. This AD
requires repetitive operational tests of feel and limitation computers
(FLC) 1 and 2. This amendment is prompted by a report that the pitch
control on a Model A300-600 series airplane operated with stiffness.
The actions specified by this AD are intended to prevent stiff
operation of the pitch control and undetected loss of rudder travel
limitation function.
DATES: Effective January 20, 1994, to all persons except those persons
to whom it was made immediately effective by telegraphic AD T93-24-51,
issued December 1, 1993, which contained the requirements of this
amendment.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of January 20, 1994.
Comments for inclusion in the Rules Docket must be received on or
before March 7, 1994.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 93-NM-208-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The applicable service information may be obtained from Airbus
Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Stephen Slotte, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-130.
SUPPLEMENTARY INFORMATION: On December 1, 1993, the FAA issued
telegraphic airworthiness directive (AD) T93-24-51, which is applicable
to all Airbus Model A310 and A300-600 series airplanes. That action was
prompted by a report from an operator that the pitch control on a Model
A300-600 series airplane operated with stiffness. Investigation into
the cause of this stiffness revealed that the feel and limitation
computer (FLC) failed and caused stiff operation of the pitch control.
This condition, if not corrected, could result in stiff operation of
the pitch control and undetected loss of rudder travel limitation
function, which may adversely affect controllability of the airplane.
Airbus Industrie has installed these computers on all Model A310
and A300-600 series airplanes. Each airplane has two FLC's, designated
FLC 1 and FLC 2. The FLC and the pitch feel fault lights are integral
components of the pitch feel system. (The pitch feel fault lights
indicate a failure of the FLC.)
Currently, these airplanes are allowed to operate with one
inoperative pitch feel system. If the airplane is operated with one
inoperative pitch feel system, failure of the other FLC could result in
stiff operation of the pitch control and undetected loss of rudder
travel limitation function. This failure could also allow excessive
elevator movement, which could expose the airplane structure to
excessive air loads.
Airbus Industrie has issued All Operator Telex (AOT) 27-14, dated
November 2, 1993, applicable to all Airbus Model A310 and A300-600
series airplanes, that describes procedures for performing repetitive
operational tests to verify proper operation of FLC's 1 and 2. The
Direction Generale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, classified this AOT as mandatory
and issued French telegraphic airworthiness directive 93-202-153(b),
dated November 2, 1993, in order to assure the continued airworthiness
of these airplanes in France.
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
Sec. 21.29 of the Federal Aviation Regulations and the applicable
bilateral airworthiness agreement. Pursuant to this bilateral
airworthiness agreement, the DGAC has kept the FAA informed of the
situation described above. The FAA has examined the findings of the
DGAC, reviewed all available information, and determined that AD action
is necessary for products of this type design that are certificated for
operation in the United States.
Since the unsafe condition described is likely to exist or develop
on other airplanes of the same type design registered in the United
States, the FAA issued Telegraphic AD T93-24-51 to require repetitive
operational tests to verify proper operation of FLC's 1 and 2. The
actions are required to be accomplished in accordance with the AOT
previously described. Any FLC that fails the operational test is
required to be repaired or replaced in accordance with a method
approved by the FAA.
The AD also prohibits operation of any airplane with an inoperative
pitch feel system or inoperative pitch feel fault lights.
Since it was found that immediate corrective action was required,
notice and opportunity for prior public comment thereon were
impracticable and contrary to the public interest, and good cause
existed to make the AD effective immediately by individual telegrams
issued on December 1, 1993, to all known U.S. owners and operators of
all Airbus Model A310 and A300-600 series airplanes. These conditions
still exist, and the AD is hereby published in the Federal Register as
an amendment to Sec. 39.13 of part 39 of the Federal Aviation
Regulations (FAR) to make it effective as to all persons.
This is considered to be interim action. The manufacturer has
advised that it currently is developing a modification that will
positively address the unsafe condition addressed by this AD. Once this
modification is developed, approved, and available, the FAA may
consider additional rulemaking.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ``ADDRESSES.''
All communications received on or before the closing date for comments
will be considered, and this rule may be amended in light of the
comments received. Factual information that supports the commenter's
ideas and suggestions is extremely helpful in evaluating the
effectiveness of the AD action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 93-NM-208-AD.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket. A copy of it, if filed, may
be obtained from the Rules Docket at the location provided under the
caption ``ADDRESSES.''
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends 14 CFR part
39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C.
106(g); and 14 CFR 11.89.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
93-24-51 Airbus Industrie: Amendment 39-8783. Docket 93-NM-208-AD.
Applicability: All Airbus Model A310 and A300-600 series
airplanes, certificated in any category.
Compliance: Required as indicated, unless accomplished
previously.
To prevent stiff operation of the pitch control and undetected
loss of rudder travel limitation function, which may adversely
affect controllability of the airplane, accomplish the following:
(a) Within 7 days after the effective date of this AD, perform
an operational test to verify proper operation of feel and
limitation computers (FLC) 1 and 2 in accordance with Airbus
Industrie All Operator Telex 27-14, dated November 2, 1993.
Thereafter repeat this test at intervals not to exceed 7 days.
(b) If any FLC fails the test, prior to further flight, replace
with a new or serviceable FLC, or repair the FLC in accordance with
a method approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate.
(c) As of the effective date of this AD, no airplane shall be
operated with an inoperative pitch feel system or inoperative pitch
feel fault lights.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113.
Operators shall submit their requests through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Standardization Branch, ANM-113.
Note: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(e) Special flight permits may be issued in accordance with FAR
21.197 and 21.199 to operate the airplane to a location where the
requirements of this AD can be accomplished.
(f) The test shall be done in accordance with Airbus Industrie
All Operator Telex 27-14, dated November 2, 1993. This incorporation
by reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. Copies may be inspected at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or
at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
(g) This amendment becomes effective on January 20, 1994, to all
persons except those persons to whom it was made immediately
effective by telegraphic AD T93-24-51, issued December 1, 1993,
which contained the requirements of this amendment.
Issued in Renton, Washington, on December 28, 1993.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 94-21 Filed 1-4-94; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 94-177 Federal Acquisition Regulation; Implementation of the North American Free Trade Agreement Implementation Act
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 544-549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-177]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 14, 15, 17, 25, and 52
[FAC 90-19; FAR Case 93-310]
Federal Acquisition Regulation; Implementation of the North
American Free Trade Agreement Implementation Act
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Department of Defense, General Services Administration,
and National Aeronautics and Space Administration have agreed to an
interim rule implementing the North American Free Trade Agreement
(NAFTA) Implementation Act.
DATES: Effective Date: January 1, 1994. This rule applies to
solicitations issued on or after January 1, 1994.
Comment Date: Comments should be submitted to the FAR Secretariat
on or before March 7, 1994, to be considered in the formulation of a
final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets, NW., room 4037, Washington, DC 20405. Please cite FAC 90-19,
FAR case 93-310 in all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT:
Mr. Peter O'Such at (202) 501-1759 in reference to this FAR case. For
general information, contact the FAR Secretariat, room 4037, GSA
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-19,
FAR case 93-310.
SUPPLEMENTARY INFORMATION:
A. Background
Chapter Ten of NAFTA requires the three NAFTA countries (the United
States, Canada, and Mexico) to eliminate ``buy national'' restrictions
on non-defense related purchases, by their responsible Federal
Governments, of goods and services provided by firms in North America.
NAFTA applies to most United States Government agencies. The Canadian
Free Trade Agreement is suspended while NAFTA remains in effect.
As required by NAFTA, specified agencies must evaluate certain
NAFTA country end products offers without regard to the restrictions of
the Buy American Act or the Balance of Payments Program. This
evaluation method will apply to offers of Canadian end products under
supply contracts with an estimated value above $25,000 and Mexican end
products under supply contracts with an estimated value of $50,000 or
more, except for the Department of Energy's Power Marketing
Administrations, where the estimated acquisition value is $250,000 or
more. This evaluation method also will apply to construction contracts
with an estimated acquisition value of $6,500,000 or more, except for
the Department of Energy's Power Marketing Administration, where the
estimated acquisition value is $8,000,000 or more.
The applicable rule of origin for NAFTA country end products under
the agreement is that of ``substantial transformation'', which means an
article that is wholly the growth, product, or manufacture of a NAFTA
country or has been substantially transformed in a NAFTA country into a
new and different article may be offered.
This rule also--
(1) Designates NAFTA country end products as eligible products
under the Trade Agreements Act, as implemented in Trade Agreements
under the FAR;
(2) Adds language to require that, when an overseas procurement for
performance overseas is subject to NAFTA, it will be synopsized in
accordance with agency procedures;
(3) Revises the prescriptions for the provisions, Submission of
Offers in the English Language, and Submission of Offers in U.S.
Currency, to clarify and include NAFTA;
(4) Updates the list of designated countries in FAR 25.401 to add
``Portugal'' and revise ``Upper Volta'' to ``Burkina Faso'';
(5) Includes the new threshold of $182,000 for application of the
Trade Agreements Act and the European Community (EC) Agreement, which
is effective January 1, 1994;
(6) Updates FAR 25.407 list of agencies covered by the Agreements
on EC and NAFTA; and
(7) Makes clarifications to the interim rule published in FAC 90-18
(58 FR 31140), at FAR 25.407, to implement the Memorandum of
Understanding between the United States of America and the European
Economic Community on Government Procurement and NAFTA.
B. Regulatory Flexibility Act
The interim rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because the rule
waives the Buy American Act for certain Mexican and Canadian products.
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared and
will be provided to the Chief Counsel for Advocacy for the Small
Business Administration. A copy of the IRFA may be obtained from the
FAR Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subpart will be considered in accordance
with 5 U.S.C. 610. Such comments must be submitted separately and cite
5 U.S.C. 601, et seq. (FAR Case 93-310), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) is deemed to apply
because the new provision at 52.225-20 requires offerors to list the
line item number and country of origin for any end product other than a
domestic end product. Accordingly, a request for clearance of a new
information collection requirement concerning the NAFTA Act is being
submitted to the Office of Management and Budget under 44 U.S.C. 3501,
et seq. Public comments concerning this requirement are invited through
an OMB clearance request appearing in the Federal Register at 58 FR
68636, December 28, 1993.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
because the NAFTA Implementation Act, signed into law on December 8,
1993, becomes effective on January 1, 1994. However, pursuant to Public
Law 98-577 and Federal Acquisition Regulation 1.501, public comments
received in response to this interim rule will be considered in
formulating the final rule.
List of Subjects in 48 CFR Parts 5, 14, 15, 17, 25, and 52
Government procurement.
Dated: December 30, 1993.
Shirley Scott,
Acting Director, Office of Federal Acquisition Policy.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 90-19 is effective
January 1, 1994.
Dated: December 21, 1993.
Eleanor R. Spector,
Director, Defense Procurement, Department of Defense (DOD).
Dated: December 20, 1993.
Richard H. Hopf, III,
Associate Administrator for Acquisition Policy, General Services
Administration.
Dated: December 21, 1993.
Deidre A. Lee,
Associate Administrator for Procurement, NASA.
Therefore, 48 CFR parts 5, 14, 15, 17, 25, and 52 are amended as
set forth below:
1. The authority citation for 48 CFR parts 5, 14, 15, 17, 25, and
52 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 5--PUBLICIZING CONTRACT ACTIONS
2. Section 5.202 is amended in paragraph (a)(12) by adding a third
sentence to read as follows:
5.202 Exceptions.
(a) * * *
(12) * * * This exception also does not apply to North American
Free Trade Agreement contract actions, which will be synopsized in
accordance with agency regulations.
* * * * *
PART 14--SEALED BIDDING
3. Section 14.201-6 is amended by revising paragraphs (x) and (y)
to read as follows:
14.201-6 Solicitation provisions.
* * * * *
(x) The provision at 52.214-34, Submission of Offers in the English
Language, is required in solicitations subject to the Trade Agreements
Act or the North American Free Trade Agreement Implementation Act (see
25.408(d)). It may be included in other solicitations when the
contracting officer decides that it is necessary.
(y) The provision at 52.214-35, Submission of Offers in U.S.
Currency, is required in solicitations subject to the Trade Agreements
Act or the North American Free Trade Agreement Implementation Act (see
25.408(d)). It may be included in other solicitations when the
contracting officer decides that it is necessary.
4. Section 14.408-1 is amended by revising the introductory text of
paragraph (a)(2) to read as follows:
14.408-1 Award of unclassified contracts.
(a) * * *
(2) For acquisitions subject to the Trade Agreements Act or the
North American Free Trade Agreement (NAFTA) Implementation Act (see
25.405(e)), agencies shall promptly, but in no event later than 7
working days after award, give unsuccessful offerors from designated or
NAFTA countries written notice stating--
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
5. Section 15.407 is amended by revising paragraphs (l) and (m) to
read as follows:
15.407 Solicitation provisions.
* * * * *
(l) The provision at 52.214-34, Submission of Offers in the English
Language, is required in solicitations subject to the Trade Agreements
Act or the North American Free Trade Agreement Implementation Act (see
25.408(d)). It may be included in other solicitations when the
contracting officer decides that it is necessary.
(m) The provision at 52.214-35, Submission of Offers in U.S.
Currency, is required in solicitations subject to the Trade Agreements
Act or the North American Free Trade Agreement Implementation Act (see
25.408(d)). It may be included in other solicitations when the
contracting officer decides that it is necessary.
6. Section 15.1001 is amended by revising paragraph (c)(2) to read
as follows:
15.1001 Notifications to unsuccessful offerors.
* * * * *
(c) * * *
(2) For acquisitions subject to the Trade Agreements Act or the
North American Free Trade Agreement (NAFTA) Implementation Act (see
25.405(e)), the information in paragraph (c)(1) of this section shall
be provided to unsuccessful offerors from designated or NAFTA countries
promptly, but in no event later than seven working days after contract
award.
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
7. Section 17.203 is amended by revising paragraph (h) to read as
follows:
17.203 Solicitations.
* * * * *
(h) See 25.402(a)(5) regarding use of options in calculating the
estimated contract amount for application of the Trade Agreements Act
and North American Free Trade Agreement thresholds.
PART 25--FOREIGN ACQUISITION
25.101 [Amended]
8. Section 25.101 is amended in the definition Domestic end product
by removing the last sentence.
9. Section 25.109 is amended by revising paragraphs (d) and (f),
redesignating paragraph (g)(2) as (g)(3), and adding a new paragraph
(g)(2) to read as follows:
25.109 Solicitation provisions and contract clauses.
* * * * *
(d) Except as provided in paragraph (g) of this section, or when
the clause prescribed by paragraph (f) is used, or when the clause
prescribed in 25.408(a)(4) is used, the contracting officer shall
insert the clause at 52.225-3, Buy American Act-Supplies, in
solicitations and contracts for the acquisition of supplies, or for
services involving the furnishing of supplies, for use within the
United States.
* * * * *
(f) Except as provided in paragraph (g) of this section, the
contracting officer shall insert the clause at 52.225-17, Buy American
Act-Supplies under European Community Agreement, in solicitations and
contracts for the acquisition of supplies, or for services involving
the furnishing of supplies when the estimated acquisition value meets
or exceeds $182,000 for the agencies listed at FAR 25.407, except for
the Power Marketing Administrations' segment of the Department of
Energy, where the estimated acquisition value is $450,000 of more.
(g) * * *
(2) The acquisition is made under the Trade Agreements Act (see
subpart 25.4); or
* * * * *
25.202 [Amended]
10. Section 25.202 is amended in paragraph (c) by removing
``25.402(a)(4)'' and inserting ``25.402(a) (3) and (4)''.
11. Section 25.205 is amended by revising paragraph (b) to read as
follows:
25.205 Solicitation provision and contract clause.
* * * * *
(b) For construction contracts with an estimated acquisition value
of $6,500,000 ($8,000,000 for the Power Marketing Administrations) or
more, to be awarded by agencies listed in 25.407, insert the clause at
52.225-15, Buy American Act-Construction Materials under European
Community and North American Free Trade Agreements, in solicitations
and contracts for construction.
12. Section 25.300 is amended by revising the second sentence to
read as follows:
25.300 Scope of subpart.
* * * The Balance of Payments Program restrictions have been waived
with respect to the acquisition, in accordance with subpart 25.4, of
certain products under the Trade Agreements Act of 1979 and the North
American Free Trade Agreement (NAFTA) Implementation Act.
25.305 [Amended]
13. Section 25.305 is amended in paragraphs (a) and (c) by adding
``or NAFTA'' after ``1979''.
14. Section 25.400 is amended by revising paragraph (c) to read as
follows:
25.400 Scope of subpart.
* * * * *
(c) Acquisitions involving offers of Canadian or Mexican end
products under the North American Free Trade Agreement (NAFTA), as
approved by Congress in the NAFTA Implementation Act (Pub. L. 103-182,
107 Stat. 2057);
* * * * *
15. Section 25.401 is amended by revising the definitions for
``Canadian end product'' and ``Eligible product''; amending the
``designated country'' list by removing ``Upper Volta'' and adding in
alphabetical order ``Burkina Faso'' and ``Portugal''; and adding in
alphabetical order the definitions ``Mexican end product'', ``North
American Free Trade Agreement (NAFTA) country'', ``NAFTA country
construction material'', and ``NAFTA country end product'' to read as
follows:
25.401 Definitions.
Canadian end product, as used in this subpart, means an article
that (a) is wholly the growth, product, or manufacture of Canada, or
(b) in the case of an article which consists in whole or in part of
materials from another country or instrumentality, has been
substantially transformed in Canada into a new and different article of
commerce with a name, character, or use distinct from that of the
article or articles from which it was transformed. The term includes
services (except transportation services) incidental to its supply;
provided, that the value of those incidental services does not exceed
that of the product itself. It does not include service contracts as
such.
* * * * *
Eligible product, as used in this subpart, means a designated,
North American Free Trade Agreement (NAFTA), or Caribbean Basin country
end product.
* * * * *
Mexican end product, as used in this subpart, means an article that
(a) is wholly the growth, product, or manufacture of Mexico, or (b) in
the case of an article which consists in whole or in part of materials
from another country or instrumentality, has been substantially
transformed in Mexico into a new and different article of commerce with
a name, character, or use distinct from, that of the article or
articles from which it was transformed. The term includes services
(except transportation services) incidental to its supply; provided,
that the value of those incidental services does not exceed that of the
product itself. It does not include service contracts as such.
North American Free Trade Agreement (NAFTA) country, as used in
this subpart, means Canada or Mexico.
NAFTA country construction material, means a construction material
that (a) is wholly the growth, product, or manufacture of a NAFTA
country or (b) in the case of a construction material which consists in
whole or in part of materials from another country or instrumentality,
has been substantially transformed in a NAFTA country into a new and
different construction material distinct form the materials from which
it was transformed.
NAFTA country end product, as used in this subpart, means a
Canadian end product or a Mexican end product.
16. Section 25.402 is amended--
(a) In paragraph (a)(1) by inserting a new sentence after the first
sentence;
(b) By revising paragraph (a)(3);
(c) In the introductory text of paragraph (a)(4) by inserting
``(European Community Agreement)'' after ``Procurement''; in (a)(4)(i)
by revising ``25.406 or'' to read ``25.407''; and in (a)(4)(ii) by
revising ``$176,000'' to read ``$182,000'';
(d) In paragraphs (a)(5) introductory text and (a)(6) by inserting
``or NAFTA'' after `'Act''; and
(e) By removing ``country'' the first time it appears in the
introductory text of paragraph (f) and the second time it appears in
paragraph (f)(2) and inserting'', North American Free Trade
Agreement,'' in their places.
The revised text reads as follows:
25.402 Policy.
(a)(1) * * * The current threshold is $182,000. * * *
* * * * *
(3) As required by the North American Free Trade Agreement (NAFTA)
Implementation Act (Pub. L. 103-182, 107 Stat. 2057), agencies shall
evaluate offers of the following NAFTA country end products without
regard to the restrictions of the Buy American Act (see subpart 25.1)
or the Balance of Payments Program (see subpart 25.3):
(i) NAFTA country construction materials under construction
contracts with an estimated acquisition value of $6,500,000 or more for
the agencies in 25.407, except for the Power Marketing Administration
segments of the Department of Energy where the estimated acquisition
value is $8,000,000 or more.
(ii) Canadian end products under supply contracts with an estimated
value above $25,000 and Mexican end products under supply contracts
with an estimated value of $50,000 or more for the agencies in 25.407,
except for the Power Marketing Administrations' segment of the
Department of Energy, where the estimated acquisition value is $250,000
or more.
* * * * *
17. Section 25.403 is amended in paragraph (a) by removing ``Trade
Agreements Act''; by revising paragraph (b); in paragraph (e) by
inserting ``(3) and'' after ``25.402(a)''; in paragraph (h) by revising
``25.402(a)(4)(ii)'' to read ``25.402(a)(3) and (4)''; and revising
paragraph (l) to read as follows:
25.403 Exceptions.
* * * * *
(b) Products of countries (1) not identified in 25.401 as
designated, Caribbean Basin, or North American Free Trade Agreement
countries, or (2) barred by 25.402(c);
* * * * *
(l)(1) For purchases subject to North American Free Trade Agreement
or the European Community Agreement, agencies not listed at 25.407;
(2) For other purchases under this subpart, agencies not listed at
25.406; or
* * * * *
25.405 [Amended]
18. Section 25.405 is amended in the introductory text by inserting
``or North American Free Trade Agreement (NAFTA)'' after ``Act''; in
paragraph (d) by removing ``countries'' the first time it appears and
inserting ``, NAFTA,'' in its place; and in paragraph (e) by inserting
``or NAFTA'' after ``designated''.
19. Section 25.406 is amended by revising the ``General Services
Administration'' entry and adding in alphabetical order ``National
Archives and Records Administration'' to read as follows:
25.406 Agencies covered by the Agreement on Government Procurement.
* * * * *
General Services Administration (except Federal Supply Groups 51
and 52 and Federal Supply Class 7340).
* * * * *
National Archives and Records Administration.
* * * * *
20. Section 25.407 is amended by revising the section heading;
removing the introductory paragraph; redesignating paragraphs (a) thru
(d) as (b) thru (e), and adding a new paragraph (a); changing ``is'' to
``are'' in newly redesignated (d); and adding paragraphs (f) and (g) to
read as follows:
25.407 Agencies covered by the European Community and North American
Free Trade Agreements.
(a) The agencies listed in 25.406.
* * * * *
(f) Federal Housing Finance Board.
(g) Office of Thrift Supervision.
21. Section 25.408 is amended by removing ``Act'' following
``Agreements'' from paragraph (a)(1) and (a)(2) the first time it
appears; by removing ``and'' at the end of paragraph (a)(1); by
removing the period at the end of paragraph (a)(2) and inserting a
semicolon in its place; by adding new paragraphs (a)(3) and (a)(4); by
revising paragraph (c); and in paragraph (d) by inserting ``or NAFTA''
following ``Act'' to read as follows:
25.408 Solicitation provision and contract clause.
(a) * * *
(3) The provision at 52.225-20, Buy American Act-North American
Free Trade Agreement (NAFTA) Implementation Act-Balance of Payments
Program Certificate, in solicitations containing the clause at 52.225-
21; and
(4) The clause at 52.225-21, Buy American Act-North American Free
Trade Agreement (NAFTA) Implementation Act-Balance of Payments Program,
where the contracting officer has determined that the acquisition is
not subject to the Trade Agreements Act but is subject to NAFTA.
* * * * *
(c) The clause prescriptions at paragraph (a) of this section shall
apply where any item under a multiple item solicitation is determined
to be subject to the Trade Agreements Act or North American Free Trade
Agreement Implementation Act. If the Acts do not apply to all of the
items being solicited, the contracting officer shall indicate, in the
schedule, those items that are exempt.
* * * * *
25.1003 [Amended]
22. Section 25.1003 is amended in paragraphs (a)(2) and (b)(2) by
revising ``$176,000'' to read ``$182,000''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.225-3 [Amended]
23. Section 52.225-3 is amended by revising the date of the clause
to read ``(JAN 1994)''; by removing the last sentence from the
definition ``Domestic end product''; and removing the parenthetical
following paragraph (b)(4).
24. Section 52.225-8 is amended in the section and clause headings
by removing ``Act'' following ``Agreements'', and revising the date of
the clause heading to read ``(JAN 1994)''; in paragraph (a) by removing
``Act'' following ``Agreements'', and inserting ``a North American Free
Trade Agreement (NAFTA) country,'' following ``designated country,'';
by revising the introductory text of paragraph (c) and paragraph
(c)(1); and in paragraph (c)(2) by removing ``Act'' following
``Agreements''. The revised text reads as follows:
Sec. 52.225-8 Buy American Act--Trade Agreements--Balance of Payments
Program Certificate.
* * * * *
Buy American Act--Trade Agreements--Balance of Payments Program
Certificate (Jan 1994)
* * * * *
(c) Offers will be evaluated by giving certain preferences to
domestic end products, designated country end products, NAFTA
country end products, and Caribbean Basin country end products over
other end products. In order to obtain these preferences in the
evaluation of each excluded end product listed in paragraph (b) of
this provision, offerors must identify and certify below those
excluded end products that are designated or NAFTA country end
products, or Caribbean Basin country end products. Products that are
not identified and certified below will not be deemed designated
country end products, NAFTA country end products, or Caribbean Basin
country end products. Offerors must certify by inserting the
applicable line item numbers in the following:
(1) The offeror certifies that the following supplies qualify as
``designated or NAFTA country end products'' as those terms are
defined in the clause entitled ``Buy American Act--Trade
Agreements--Balance of Payments Program:''
(Insert line item numbers)
* * * * *
25. Section 52.225-9 is amended in the section and clause headings
by removing ``Act'' following ``Agreements'', and revising the date of
the clause heading to read ``(JAN 1994)''; by revising the introductory
text of paragraph (a) and adding in alphabetical order the definitions
``NAFTA country'', and ``NAFTA country end product''; and revising
paragraph (b) to read as follows:
Sec. 52.225-9 Buy American Act--Trade Agreements--Balance of Payments
Program.
* * * * *
Buy American Act--Trade Agreements--Balance of Payments Program (Jan
1994)
(a) This clause implements the Buy American Act (41 U.S.C. 10),
the Trade Agreements Act of 1979 (19 U.S.C. 2501-2582), the North
American Free Trade Agreement (NAFTA) Implementation Act (Pub. L.
103-182, 107 Stat. 2057) and the Balance of Payments Program by
providing a preference for domestic end products over foreign end
products, except for certain foreign end products which meet the
requirements for classification as designated, NAFTA, or Caribbean
Basin country end products.
* * * * *
NAFTA country, as used in this clause, means Canada or Mexico.
NAFTA country end product, as used in this clause, means an
article that (1) is wholly the growth, product, or manufacture of a
NAFTA country, or (2) in the case of an article which consists in
whole or in part of materials from another country or
instrumentality, has been substantially transformed in a NAFTA
country into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from
which it was transformed. The term includes services (except
transportation services) incidental to its supply; provided, that
the value of those incidental services does not exceed that of the
product itself. It does not include service contracts as such.
(b) The Contracting Officer has determined that the Trade
Agreements Act and NAFTA apply to this acquisition. Unless otherwise
specified, the Acts apply to all items in the schedule. The
Contractor agrees to deliver under this contract only domestic end
products unless, in its offer, it specifies delivery of foreign end
products in the provision entitled ``Buy American Act--Trade
Agreements--Balance of Payments Program Certificate.'' An offer
certifying that a designated, NAFTA, or Caribbean Basin country end
product will be supplied requires the Contractor to supply a
designated, NAFTA, or Caribbean Basin country end product or, at the
Contractor's option, a domestic end product. Contractors may not
supply a foreign end product for line items subject to the Trade
Agreements Act unless the foreign end product is a designated,
NAFTA, or Caribbean end product (see FAR 25.401), or unless a waiver
is granted under section 302 of the Trade Agreements Act of 1979
(see FAR 25.402(c)).
* * * * *
26. Section 52.225-15 is amended in the section and clause headings
by removing ``Agreement'' and inserting ``and North American Free Trade
Agreements''; by revising the date of the clause heading to read ``(JAN
1994)''; in paragraph (a) by adding in alphabetical order the
definitions ``North American Free Trade Agreement (NAFTA) country'',
and ``NAFTA country construction material''; and by revising paragraphs
(b) and (c) to read as follows:
52.225-15 Buy American Act--Construction Materials under European
Community and North American Free Trade Agreements.
* * * * *
Buy American Act--Construction Materials Under European Community and
North American Free Trade Agreements (Jan 1994)
* * * * *
North American Free Trade Agreement (NAFTA) country means Canada
or Mexico.
NAFTA country construction material means a construction
material that (1) is wholly the growth, product, or manufacture of a
NAFTA country, or (2) in the case of a construction material which
consists in whole or in part of materials from another country or
instrumentality, has been substantially transformed in a NAFTA
country into a new and different construction material distinct from
the materials from which it was transformed.
(b) The Buy American Act (41 U.S.C. 10) provides that the
Government give preference to domestic material. In addition, the
Memorandum of Understanding between the United States of America and
the European Economic Community on Government Procurement, and the
North American Free Trade Agreement (NAFTA), provide that EC and
NAFTA construction materials are exempted from application of the
Buy American Act.
(c) The Contractor agrees that only domestic construction
materials, NAFTA country construction materials or EC construction
materials will be used by the Contractor, subcontractors,
materialmen and suppliers in the performance of this contract,
except for other foreign construction materials, if any, listed in
this contract.
(End of clause)
27. Section 52.225-17 is amended in the clause heading by revising
the date to read ``(JAN 1994)''; in the definition ``Domestic end
product'' by removing the last sentence; by removing the parenthetical
following paragraph (c)(4); and by adding paragraph (d) to read as
follows:
52.225-17 Buy American Act--Supplies under European Community
Agreement.
* * * * *
Buy American Act--Supplies Under European Community Agreement (Jan
1994)
* * * * *
(d) If this contract contains the clause at 52.225-21, Buy
American Act--North American Free Trade Agreement (NAFTA)
Implementation Act--Balance of Payments Program, the Contractor may
deliver NAFTA country end products, notwithstanding the prohibition
in paragraph (c).
(End of clause)
28. Section 52.225-19 is amended in the clause heading by revising
the date to read ``(JAN 1994)''; and by revising paragraph (b) to read
as follows:
52.225-19 European Community Sanction for Services.
* * * * * *
European Community Sanction for Services (Jan 1994)
* * * * *
(b) Agreement. The Contractor agrees not to perform services
under this contract in a sanctioned member state of the EC. This
does not apply to subcontracts.
(End of clause)
29. Sections 52.225-20 and 52.225-21 are added to read as follows:
52.225-20 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program Certificate.
As prescribed in 25.408(a)(3), insert the following provision:
Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program Certificate (Jan 1994)
(a) The offeror hereby certifies that each end product, except
those listed in paragraph (b) of this provision, is a domestic end
product (as defined in the clause entitled ``Buy American Act--North
American Free Trade Agreement (NAFTA) Implementation Act--Balance of
Payments Program'') and that components of unknown origin have been
considered to have been mined, produced, or manufactured outside the
United States.
(b) Excluded End Products:
------------------------------------------------------------------------
Line item No. Country of origin
------------------------------------------------------------------------
(List as necessary)
------------------------------------------------------------------------
(c) Offers will be evaluated by giving certain preferences to
domestic end products or NAFTA country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify and certify below those excluded end products
that are NAFTA country end products. Products that are not
identified and certified below will not be deemed NAFTA country end
products. Offerors must certify by inserting the applicable line
item numbers in the following:
(1) The offeror certifies that the following supplies qualify as
``NAFTA country end products'' as that term is defined in the clause
entitled ``Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program:''
----------------------------------------------------------------------
(Insert line item numbers)
(d) Offers will be evaluated in accordance with FAR part 25.
(End of provision)
52.225-21 Buy American Act--North American Free Trade Agreement
Implementation Act--Balance of Payments Program.
As prescribed in 25.408(a)(4), insert the following clause:
Buy American Act--North American Free Trade Agreement Implementation
Act--Balance of Payments Program (Jan 1994)
(a) Definitions. As used in this clause--
Components means those articles, materials, and supplies
incorporated directly into the end products.
Domestic end product means (1) an unmanufactured end product
mined or produced in the United States, or (2) an end product
manufactured in the United States, if the cost of its components
mined, produced, or manufactured in the United States exceeds 50
percent of the cost of all its components. A component shall also be
considered to have been mined, produced, or manufactured in the
United States (regardless of its source in fact) if the end product
in which it is incorporated is manufactured in the United States and
the component is of a class or kind (i) determined by the
Government, to be not mined, produced, or manufactured in the United
States in sufficient and reasonably available commercial quantities
of a satisfactory quality, or (ii) to which the agency head
concerned has determined that it would be inconsistent with the
public interest to apply the restrictions of the Buy American Act.
End products means those articles, materials, and supplies to be
acquired under this contract for public use.
Foreign end product means an end product other than a domestic
end product.
North American Free Trade Agreement (NAFTA) country means Canada
or Mexico.
NAFTA country end product means an article that (1) is wholly
the growth, product, or manufacture of a NAFTA country, or (2) in
the case of an article which consists in whole or in part of
materials from another country or instrumentality, has been
substantially transformed in a NAFTA country into a new and
different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was
transformed. The term includes services (except transportation
services) incidental to its supply; provided, that the value of
those incidental services does not exceed that of the product
itself. It does not include service contracts as such.
(b) This clause implements the Buy American Act (41 U.S.C. 10),
the North American Free Trade Agreement Implementation Act (Pub. L.
103-182, 107 Stat. 2057), and the Balance of Payments Program by
providing a preference for domestic end products over foreign end
products, except for certain foreign end products which meet the
requirements for classification as NAFTA country end products.
(c) The Contracting Officer has determined that the NAFTA
applies to this acquisition. Unless otherwise specified, the Act
applies to all items in the schedule. The Contractor agrees to
deliver under this contract only domestic end products unless, in
its offer, it specifies delivery of foreign end products in the
provision entitled ``Buy American Act--North American Free Trade
Agreement Implementation Act--Balance of Payments Program
Certificate.'' An offer certifying that a NAFTA country end product
will be supplied requires the Contractor to supply a NAFTA country
end product or, at the Contractor's option, a domestic end product.
(d) If the contract contains the clause at 52.225-17, Buy
American Act--Supplies under European Community Agreement, the
Contractor may deliver EC country end products notwithstanding the
provisions of paragraph (c).
(e) Offers will be evaluated in accordance with the policies and
procedures of subpart 25.4 of the Federal Acquisition Regulation.
(End of clause)
[FR Doc. 94-177 Filed 1-4-94; 8:45 am]
BILLING CODE 6820-34-M
Complete official Federal Register PDF
FR Doc. 94-147 Lake Wisconsin Viticultural Area (92F-017P)
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 537-540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-147]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 9
[T.D. ATF-352; RE: Notice No. 781]
RIN 1512-AA07
Lake Wisconsin Viticultural Area (92F-017P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
ACTION: Final rule, Treasury decision.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes a viticultural area in Columbia
and Dane Counties, Wisconsin, to be known as Lake Wisconsin. The
petition was submitted by Mr. Charles W. Dean, Viticultural Area
Consultant, on behalf of Wollersheim Winery located near Prairie-du-
Sac, Wisconsin. The establishment of viticultural areas and the
subsequent use of viticultural area names as appellations of origin in
wine labeling and advertising will help consumers better identify the
wines they may purchase, and will help winemakers distinguish their
products from wines made in other areas.
EFFECTIVE DATE: February 4, 1994.
FOR FURTHER INFORMATION CONTACT: Robert White, Wine and Beer Branch,
Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue, NW.,
Washington, DC 20226, (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On August 23, 1978, ATF published Treasury Decision ATF-53 (43 FR
37672, 54624) revising regulations in 27 CFR part 4. These regulations
allow the establishment of definite American viticultural areas. The
regulations also allow the name of an approved viticultural area to be
used as an appellation of origin in the labeling and advertising of
wine.
On October 2, 1979, ATF published Treasury Decision ATF-60 (44 FR
56692) which added a new part 9 to 27 CFR, providing for the listing of
American viticultural areas. Section 4.25a(e)(l), title 27, CFR,
defines an American viticultural area as a delimited grape-growing
region distinguishable by geographical features, the boundaries of
which have been delineated in subpart C of part 9. Section 4.25a(e)(2)
outlines the procedure for proposing an American viticultural area. Any
interested person may petition ATF to establish a grape-growing region
as a viticultural area. The petition should include:
(a) Evidence that the name of the proposed viticultural area is
locally and/or nationally known as referring to the area specified in
the petition;
(b) Historical or current evidence that the boundaries of the
viticultural area are as specified in the petition;
(c) Evidence relating to the geographical characteristics (climate,
soil, elevation, physical features, etc.) which distinguish the
viticultural features of the proposed area from surrounding areas;
(d) A description of the specific boundaries of the viticultural
area, based on features which can be found on United States Geological
Survey (U.S.G.S.) maps of the largest applicable scale; and
(e) A copy of the appropriate U.S.G.S. map(s) with the proposed
boundaries prominently marked.
Petition
ATF received a petition from Mr. Charles W. Dean, Viticultural Area
Consultant, on behalf of Robert P. Wollersheim and JoAnn I.
Wollersheim, proprietors and landowners of Wollersheim Winery near
Prairie-du-Sac, Wisconsin, to establish a viticultural area in south-
central Wisconsin to be known as ``Lake Wisconsin.'' The viticultural
area is bounded by the shoreline of Lake Wisconsin and the Wisconsin
River on the north and west. Wollersheim Winery is the sole winery
located in the 28,000 acre viticultural area and there are currently
twenty-three acres planted to wine grapes.
Notice of Proposed Rulemaking
In response to Mr. Wollersheim's petition, ATF published a notice
of proposed rulemaking, Notice No. 781, in the Federal Register on
September 24, 1993 (58 FR 49949), proposing the establishment of the
Lake Wisconsin viticultural area. The notice requested comments from
all interested persons by October 25, 1993.
Comments to Notice of Proposed Rulemaking
Seven comments were received concerning the proposal to establish
the Lake Wisconsin viticultural area. All seven commenters stated that
they fully support the proposed area as delineated in Notice No. 781.
One of the commenters was under the mistaken impression that this area
had been proposed to be called the Roxbury Viticultural District.
However, despite the misunderstanding about the name, this commenter
stated in his letter that he heartily supports the establishment of a
new viticultural area in this part of Wisconsin which includes the
Wollersheim Winery.
Viticultural Area Name
The place-name ``Lake Wisconsin'' was first used ca. 1917 to
describe a widened section of the Wisconsin River that was submerged
when the Baraboo hydroelectric dam was constructed one mile upriver
from the town of Prairie-du-Sac. A travel brochure and map produced by
the Lake Wisconsin Chamber of Commerce in 1989, entitled Lake Wisconsin
Chamber Recreation Area Vacationland, shows various recreational and
tourist facilities in the Lake Wisconsin viticultural area. The
viticultural area has a long history of wine grape growing and wine
making activity. Agoston Haraszthy, an immigrant from Hungary well
known as an early pioneer in the American wine industry, first planted
wine grapes on Wollersheim Winery property in 1847. Cold winter
temperatures frustrated this early attempt to establish grapevines and
two years later Haraszthy moved to California. However, wine grape
growing and wine making continued in this area until 1900. Because of
its role in the early history of Wisconsin, Wollersheim Winery and the
adjacent homestead were listed on the National Register of Historic
Places in 1976.
Evidence of Boundaries
The boundaries of the Lake Wisconsin viticultural area are clearly
shown on two U.S.G.S. quadrangle maps, Sauk City, Wisc. and Lodi, Wisc.
The Sauk City, Wisc. quadrangle map shows the viticultural area to be
bounded by the shoreline of Lake Wisconsin and the Wisconsin River on
the north and west. The southern boundary is defined by Mack Road and
State Highway Y, and the eastern boundary, shown on the Lodi, Wisc.
quadrangle map, follows State Highway Y, State Highway 60, State
Highway 113, and Spring Creek. The petitioner states that some of the
natural boundary features, which closely approximate some of the roads
and highways used as boundaries for this viticultural area, can be
found on county maps, plat maps and county atlases dating back to 1861.
Geographical Features
The Wisconsin River (of which Lake Wisconsin is a part) is a major
natural feature of the State and of the region. It is the largest river
in the State after the Mississippi River, of which it is a major
tributary. Roads and highways define the southern boundary of the Lake
Wisconsin viticultural area. The landscape of the viticultural area is
comprised of discontinuous end moraines interspersed with ground
moraines and occasional outwash plains. The landscape outside the
southern boundary is of higher elevation and is comprised of rolling,
hummocky upland with some outwash material. The eastern boundary, which
closely approximates Spring Creek, identifies an area of low relief,
continuous and intermittent stream drainage, and marsh. To the east of
Spring Creek and outside the viticultural area is a glaciated upland
plain where the landscape is generally of higher elevations and
comprised of end moraines with little or no outwash material.
Topography and Elevation
The vineyards in the viticultural area are located at an elevation
of 800-900 feet along south and southwest facing slopes of 10-40
percent gradient. This combination of elevation, aspect, and relief
contributes to the well-drained quality of the vineyard soils, the free
circulation of air in summer and winter, and the locally longer growing
season. Outside the viticultural area to the north and west, higher
elevations of 900-1,200 feet increase the risk of wind damage to
grapevines, or the soils become too shallow for successful grape
cultivation where bedrock is nearer the surface or exposed. Outside the
viticultural area to the east, elevations between 720 feet (Wisconsin
River level) and 800 feet are generally less well drained or are
saturated during periods of rainfall or snowmelt.
Climate
The Lake Wisconsin viticultural area benefits from the microclimate
effects of the lower Wisconsin River valley. The river moderates winter
temperatures in the viticultural area several degrees higher than areas
north and west of the river or further south. Air circulation within
the river valley helps prevent cold air accumulation and frost pockets
from forming in the vineyards. In summer, the river valley and
limestone bluffs along the river's edge serve to channel air currents
and increase localized air circulation, protecting the vineyards from
mildew and rot in hot, humid weather.
The viticultural area has a mean precipitation of twenty-nine
inches, one inch less than the average rainfall in the area north and
east, three inches less than the average rainfall in the area to the
west, and two inches less than the State average. The petitioner
describes the viticultural area as an ``island'' of locally below-
average rainfall and drier soils conducive to the grapevines
concentrating their vigor in ripening fruit. The viticultural area has
a growing season of 140-160 days, ten to twenty days longer than across
the river to the west and to the north. The additional frost-free
period allows the grapes to reach maturity before the onset of winter
cold.
Soil
The Wisconsin River forms an approximate dividing line between the
glaciated and unglaciated regions of south-central Wisconsin. Soils
primarily of glacial till and outwash material are found east of the
river valley and characterize the soils in the viticultural area. The
unglaciated ``driftless'' soils west of the valley result from
significant differences in soil parent materials, microrelief, and
drainage. The soils that support viticulture within the viticultural
area are Typic Hapludalfs of mixed mineral material and silty or loamy
texture. All are underlain by gravelly or sandy loam glacial till or by
dolomitic bedrock. The soils are typically well drained and about 36-60
inches deep on slopes and rolling areas of 2-45 percent gradient. The
soils outside the viticultural area to the north and west are
predominately unglaciated, and so are not underlain by glacial till and
contain less outwash material. The soils outside the area to the south
and east, although glacially derived, are found on topography of
rolling upland with fewer limestone outcrops and no outwash plains. The
soils there have formed on slightly higher elevations over
discontinuous end and ground moraines.
Viticultural Area Boundary
The boundary of the Lake Wisconsin viticultural area may be found
on two United States Geological Survey (U.S.G.S.) maps with a scale of
1:24,000. The boundary is described in Sec. 9.146.
Executive Order 12866
It has been determined that this rule is not a significant
regulatory action, because
(1) It will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Regulatory Flexibility Act
It is hereby certified that this regulation will not have a
significant economic impact on a substantial number of small entities.
The establishment of a viticultural area is neither an endorsement nor
approval by ATF of the quality of wine produced in the area, but rather
an identification of an area that is distinct from surrounding areas.
This process merely allows wineries to more accurately describe the
origin of their wines to the consumers, and helps consumers identify
the wines they purchase. Designation of a viticultural area itself has
no significant economic impact because any commercial advantage can
come only from consumer acceptance of wines made from grapes grown
within the area. In addition, no new recordkeeping or reporting
requirements are imposed. Accordingly, a regulatory flexibility
analysis is not required.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1980, Public Law
96-511, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR
Part 1320, do not apply to this final rule because no requirement to
collect information is imposed.
Drafting Information
The principal author of this document is Robert White, Wine and
Beer Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 9
Administrative practice and procedure, Consumer protection,
Viticultural areas, and Wine.
Authority and Issuance
Accordingly, Title 27, Code of Federal Regulations, part 9,
American Viticultural Areas, is amended as follows:
PART 9--AMERICAN VITICULTURAL AREAS
Paragraph 1. The authority citation for part 9 continues to read as
follows:
Authority: 27 U.S.C. 205.
Par. 2. Subpart C is amended by adding Sec. 9.146 to read as
follows:
Subpart C--Approved American Viticultural Areas
Sec. 9.146 Lake Wisconsin.
(a) Name. The name of the viticultural area described in this
section is ``Lake Wisconsin.''
(b) Approved maps. The appropriate maps for determining the
boundary of the ``Lake Wisconsin'' viticultural area are two U.S.G.S.
7.5 minute series topographical maps of the 1:24,000 scale. They are
titled:
(1) ``Sauk City, Wis.,'' 1975; and
(2) ``Lodi, Wis.,'' 1975.
(c) Boundary. The Lake Wisconsin viticultural area is located in
Columbia and Dane Counties, Wisconsin. The boundary is as follows:
(1) The point of beginning is on the ``Lodi, Wisc.'' U.S.G.S. map
in the northeast quarter-section of section 17, Lodi Township, Columbia
County, where Spring Creek enters Lake Wisconsin;
(2) From the point of beginning, follow the southern shoreline of
Lake Wisconsin northwest to where Lake Wisconsin narrows and becomes
the Wisconsin River on the map, in the vicinity of the town of
Merrimac, Sauk County;
(3) Then continue along the southern shoreline of the Wisconsin
River, west and south past Goose Egg Hill, Columbia County, on the
``Sauk City, Wisc.'' quadrangle map, and then west to a southwest bend
in the shoreline opposite Wiegands Bay, Sauk County, where the
Wisconsin River becomes Lake Wisconsin again on the map;
(4) Then southwest and south along the eastern shoreline of Lake
Wisconsin, to the powerplant that defines where Lake Wisconsin ends and
the Wisconsin River begins again;
(5) Then continuing south along the Wisconsin River shoreline to
where it intersects with U.S. Highway 12 opposite Sauk City, Sauk
County;
(6) Then in a southeasterly direction on U.S. Highway 12 to the
intersection at State Highway 188, just over one-half a mile;
(7) Then in a northeasterly direction about 1,000 feet on State
Highway 188, to the intersection of Mack Road;
(8) Then east on Mack Road to the intersection of State Highway Y,
about 3 miles;
(9) Then follow State Highway Y in a generally northeasterly
direction onto the ``Lodi, Wisc.'' quadrangle map and continue in a
northeasterly direction to the intersection with State Highway 60;
(10) Then in a northeasterly direction on State Highway 60 to the
intersection with State Highway 113 in the town of Lodi;
(11) Then in a northwesterly direction on State Highway 113 to
where it crosses Spring Creek the second time just before Chrislaw
Road;
(12) Then follow Spring Creek in a northwesterly direction to where
it enters Lake Wisconsin, the point of beginning.
Dated: November 24, 1993.
Daniel R. Black,
Acting Director.
Approved: December 17, 1993.
John P. Simpson,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 94-147 Filed 1-4-94; 8:45 am]
BILLING CODE 4810-31-U
Complete official Federal Register PDF
FR Doc. 94-131 Modifications to Fitness-For-Duty Program Requirements
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 502-507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-131]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
RIN 3150-AE38
Modifications to Fitness-For-Duty Program Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations governing fitness-for-duty (FFD) programs that are
applicable to licensees who are authorized to construct or operate
nuclear power reactors and to licensees authorized to possess, use, or
transport formula quantities of strategic special nuclear material
(SSNM). The amendment permits licensees to reduce the random testing
rate for all persons covered by the fitness-for-duty regulations to an
annual rate equal to 50 percent.
EFFECTIVE DATE: January 1, 1994.
ADDRESSES: Copies of the regulatory analysis, the comments received,
and the Government Accounting Office (GAO) report (GAO/GGD-93-13) of
November 1992 may be examined at the NRC Public Document Room, 2120 L
Street NW, (Lower Level), Washington, DC.
Copies of NUREG-1354, NUREG/CR-5758 (Volumes 1, 2, and 3), and
NUREG/CR-5784 may be purchased from the Superintendent of Documents,
U.S. Government Printing Office, P.O. Box 37082, Washington, DC 20013-
7082. Copies are also available from the National Technical Information
Service, 5282 Port Royal Road, Springfield, VA 22161. A copy is
available for inspection and/or copying for a fee in the NRC Public
Document Room, 2120 L Street NW, (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Loren L. Bush, Jr., Safeguards Branch,
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone: (301) 504-2944.
SUPPLEMENTARY INFORMATION:
Background
The NRC has reviewed experiences gained since publication of the
current FFD rule on June 7, 1989 (54 FR 24468), and implementation by
power reactor licensees on January 3, 1990, and determined that it may
be appropriate to modify the random testing rate. Accordingly, on March
24, 1993 (58 FR 15810), the Commission published a proposed
modification to the FFD rule that would permit a reduction in the
random testing rate for licensee employees, but maintain the 100-
percent random testing rate for contractors and vendors.
Summary of Public Comments
The comment period expired on June 22, 1993. Forty comment letters
were received. Twenty-eight were from power reactor licensees, six from
unions, one from an industry association, one from a vendor, three from
licensed reactor operators, and one from a private citizen. There was
overwhelming support for the proposed reduction in the annual rate of
random testing for licensee employees. Most of the commenters believed
that the reduced rate also should apply to contractors and vendors, and
several commenters proposed a flexible, performance-based rate. There
was no support for excluding from any reduction in the random testing
rate certain positions critical to the safe operation of a nuclear
power plant, such as licensed reactor operators. A summary of the
comments received and the NRC's responses are presented below.
1. Comment. The random testing rate for licensee employees should
be reduced to 50 percent.
All of the 23 commenters submitting comments on the Commission's
proposed reduction of the random testing rate to 50 percent for
licensee employees supported the proposal. The reason most often
expressed was the low rate of positive random test results experienced
by licensee employees, particularly in comparison with other industries
having significant safety concerns. These commenters believe that this
low industry-wide positive rate justifies the lowering of the random
testing rate to 50 percent. Some commenters stated that a 50-percent
rate for licensee employees would make that rate consistent with the
random testing rate currently required in the substance abuse programs
mandated for entities regulated by the agencies within the Department
of Transportation (DOT), including the Federal Aviation Administration
and the Federal Highway Administration. They also noted that DOT is
currently considering lowering its proposed random testing rate below
50 percent even though Federal Highway Administration data, for
example, indicate a significantly higher positive rate than that
experienced among NRC licensee employees. Another commenter pointed out
that the lowered random testing rate for licensee employees subject to
the NRC's FFD rule also would be consistent with the random rate
applied in the Commission's own internal drug testing program.
Other commenters supported the reduction with the expectation of
significant cost savings for licensees as a result of only testing
approximately one-half the number of employees now being tested. In
this regard, the Nuclear Management and Resources Council (NUMARC) made
reference to the November 1992 GAO report, ``Employee Drug Testing:
Opportunities Exist To Lower Drug-Testing Program Costs'' (GAO/GGD-93-
13), which suggests reduced random testing rates as a means of
producing cost efficiencies in Federally mandated drug testing programs
without adversely affecting program integrity.
Concerning the relative effectiveness of alternative random testing
rates, some commenters believe that a 50-percent random testing rate
would produce satisfactory deterrence of drug and alcohol abuse. This
is particularly true in light of the fact that other FFD program
elements, such as program awareness training and behavioral
observation, and the access authorization program will continue to
inhibit such behavior. Two commenters also supported the proposed
change because it would lessen the disruption of workers lives and
reduce the invasion of privacy that random drug testing creates.
NRC Response
The NRC concurs with those commenters who stated that a 50-percent
random testing rate as applied to licensee employees can be expected to
provide sufficient deterrence to justify lowering the rate at this
time. It also agrees with the observation that the access authorization
program and other FFD program elements, such as policy communications
and awareness training, behavioral observation, for-cause testing,
employee assistance programs, and the imposition of strict sanctions
for violations of an FFD policy will continue to deter drug and alcohol
abuse by most of the workforce. As some commenters noted, requiring
fewer tests of licensee employees should decrease the privacy invasion
experienced by some employees. It also should result in cost savings
across the industry by reducing lost work hours and the number of tests
to be administered.
The Commission recognizes that positive results in the nuclear
power industry's random testing are generally among the lowest of any
U.S. industry. Nonetheless, it realizes that there are many variables
that can affect the rate of positive testing results and that
relatively low positive test results, by themselves, are not the only
indicator of the effectiveness of a testing program either on an
industry-wide or a licensee program level. Some of the variables that
could affect the testing results are the propensity of the population
being tested to use drugs and alcohol, the effectiveness of other
program elements, and the extent to which tested employees have been
successful in subverting the testing process and avoiding detection.
The NRC does not have sufficient information about these or other
factors that may influence testing results to be able to determine that
the decreasing positive rates reported by licensees are an unqualified
indication of FFD program effectiveness. Nonetheless, the Commission is
gratified to observe the decreasing positive rates in licensee
employees' random test results during the past three years. The
recently published NUREG/CR-5758, Volume 3, ``Fitness for Duty in the
Nuclear Power Industry: Annual Summary of Program Performance
Reports,'' indicates that licensee employees' positive random testing
rate in 1992 was 0.20 percent as compared to 0.28 percent in 1990 and
0.22 percent in 1991. There also have been decreasing positive rates
for random testing of contractor and vendor personnel, viz., 0.56
percent in 1990, 0.55 percent in 1991, and 0.45 percent in 1992.
In making its decision, the Commission has considered these testing
results along with the apparent continuing strength of the other
elements of most licensees' FFD programs, the reduced invasion of
employees' privacy interests, and the potential for cost savings. In
light of this industry experience and of these beneficial effects, the
Commission has concluded that it is reasonable at this time to lower
the random testing rate for licensee employees and contractor and
vendor personnel to 50 percent. The response to Comment 4 discusses the
Commission's reasons for allowing reduction in the random testing rate
for contractor and vendor personnel.
2. Comment. The random testing rate should be reduced to less than
50 percent.
Four commenters recommended that the random testing rate be reduced
to less than 50 percent. The rates they recommended varied from 5
percent to 25 percent. Their central argument was that the random
testing rate can be lowered substantially without threatening the
effectiveness of the program. The very low rates of drug and alcohol
positive tests that have been recorded by the nuclear industry during
the first two years of FFD program operations are the basis for their
recommendation. One licensee stated that most chronic drug users
probably have been eliminated and currently there is not a serious drug
or alcohol abuse problem in the industry. This commenter and NUMARC
also cited the GAO study that found that the percentage of positives
does not vary significantly among Federal agency drug testing programs,
regardless of what random rate is used. Another licensee emphasized
that behavioral observation, not random testing, is the most potent
tool in detecting drug abuse. Another commenter recommended that the
NRC consider further reductions because the effectiveness of other
program elements makes a random rate of even 50 percent unnecessarily
high.
Significant cost savings was given as the most compelling reason to
reduce the random rate below 50 percent. One licensee estimated the
industry would save up to $30 million annually without degradation of
the overall program.
NRC Response
As stated in the response to Comment 1 above, positive random
testing results are not, by themselves, the only indicator of the FFD
program's effectiveness in detecting substance abuse. The NRC does not
have sufficient information about the many variables that could affect
testing results to be able to determine that a lower random testing
rate would maintain an acceptable level of program effectiveness.
Therefore, the Commission believes that the industry's relatively low
numbers of drug and alcohol positive random test results should not be
used as the sole justification for lowering the random testing rate
below 50 percent. While behavorial observation and for-cause testing
are valuable program elements, there still must be a strong random
testing program that provides an adequate level of detection and
deterrence. The Commission continues to believe that it must choose a
conservative and prudent random testing rate that maximizes both
detection and deterrence of substance abuse while minimizing the
monetary and social costs of such testing. The Commission believes that
a 50-percent random testing rate will strike the proper balance between
the dictates of public health and safety, the financial needs of
licensees, and the privacy and other interests of workers subject to
the testing requirement. Given the substantial unknowns currently
associated with the true detection and deterrence effectiveness of
alternative random testing rates as applied to the particular
conditions of the nuclear power industry workforce, the Commission
believes that it cannot establish a random testing rate lower than 50
percent for any segment of the industry at this time.
It should also be noted that relatively low positive test rates do
not necessarily indicate that there is not a drug and alcohol abuse
problem, as some commenters asserted. First, some users have become
adept at avoiding detection, and the use of increasingly effective
subversion techniques may be one reason why random testing results are
decreasing. Second, while it may be that most of the chronic drug users
who were in the industry when the program started have been detected or
have left, there can be expected to be a continuing level of
intermittent illegal drug use and alcohol abuse among industry
employees; such use is difficult to detect. The Commission concludes
that the low positive random test results do not indicate that there
has ceased to be a drug and alcohol abuse problem and that further
reduction in the random testing rate would not be appropriate at this
time.
In response to the commenters' reference to the GAO's observation
that the percentage of positives does not vary significantly among
Federal agency drug testing programs, the NRC notes that the GAO's
objective in that report was to identify potential cost savings in
Federal employee drug testing programs. Its objective did not include
determination of the relative deterrent values of alternative random
testing rates. In accomplishing its objective, the GAO properly
concentrated on only the costs associated with Federal employee drug
testing. It did not perform an indepth analysis of the several
variables that influence testing results nor of the very complex
relationship between those variables and the deterrence value of
testing. Such variables would include the inclination for drug or
alcohol abuse among the employees in the various industries in which
the Federal testing programs operate, the extent to which the strength
and effectiveness of other, non-testing program elements, such as drug
awareness training, may affect testing results, and the relative
stringency of sanctions imposed by the various Federal agencies
following positive test results. Because the GAO's objective was to
address the cost rather than the deterrence effectiveness of testing,
the NRC does not consider the commenter's reference to the GAO's
observation to be a persuasive argument for reduced random testing
rates.
The NRC will continue to monitor implementation of the rule and
will modify the rule in response to industry experience, advances in
technology, or other considerations to ensure that the rule is
achieving the general performance objectives set forth in 10 CFR Part
26.
3. Comment. The random testing rate should be flexible and based on
performance, such as the positive rate of random testing.
Twelve commenters recommended that the Commission allow some form
of performance-based approach to determine the random testing rate.
Under such a system, the random testing rate would vary over time. This
would depend on each licensee's or, alternatively, the industry's
positive random test results from a previous period. One licensee, for
example, suggested that each licensee's random testing rate should be
based upon that particular licensee's previous 12-month testing
results. Under this approach, a licensee would be subject to a minimum
50-percent random testing rate if it experienced a positive rate of
greater than 0.50 percent during the previous 12 months. That licensee
could reduce its random rate to 25 percent if it subsequently had a 12-
month positive rate between 0.25 percent and 0.50 percent or to as low
as 10 percent if its positive rate for the previous year was less than
0.25 percent. Three other licensees recommended similar schemes whereby
a licensee's random rate would be determined by its own record of
positive test results. One of these recommendations based the rate on
the results of the previous 2 years rather than those of the previous
12 months.
NUMARC proposed that the industry-wide random testing rate be
determined by the industry-wide random testing results from the
previous period. This recommendation was endorsed by five licensees.
Under NUMARC's proposed approach, the industry would be allowed by
regulation to adjust its random testing rate based on testing results
from the previous reporting period. All licensees would be required to
test at a 100-percent random rate if the industry-wide positive rate
were greater than 1.0 percent in the previous period, at a 50-percent
random rate if the positive rate was between 0.50 percent and 1.0
percent, at a 25-percent random rate if the positive rate was between
0.25 percent and 0.50 percent, and at a 10-percent random rate if the
positive rate was less than 0.25 percent. Two of the eleven licensees
favoring a performance-based testing system provided a general
recommendation that did not specify whether the random testing rate
should be based on the positive testing results of each individual
licensee, or on the results of the industry as a whole.
The commenters noted various potential advantages of adopting a
performance-based approach to setting the random testing rate. One
stated that adopting such an approach would be consistent with the
NRC's initiative to identify performance-based programs that would be
beneficial to the industry. Another listed cost savings, equity in that
each licensee's random rate would be commensurate with its program
performance, and an incentive for licensees to maximize program
conformance with the FFD rule as advantages of such an approach.
NRC Response
During development of 10 CFR part 26 in 1989, the Commission
considered a variation of the flexible, performance-based random rate
similar to the approaches recommended by these commenters. (See, for
example, the NRC's response to Comment 7.4.2 in NUREG-1354, ``Fitness
for Duty in the Nuclear Power Industry: Responses to Public
Comments.'') At that time, the Commission decided against adopting a
performance-based rate for various reasons. As stated above, positive
random testing results are not the only indicator of detection and
deterrence effectiveness or of overall random testing program
performance to allow the testing rate to vary with testing results.
Adopting a performance-based approach would tend to discourage the
initiatives that the Commission is encouraging in 10 CFR 26.24(b) and
in Section 2.1 of Appendix A to Part 26. In Sec. 26.24(b), the NRC
allows licensees to implement programs with more stringent standards,
for example, lower screening and confirmation cutoff levels and a
broader panel of drugs than those specified in the rule. In Section 2.1
of Appendix A, licensees are permitted to test for any illegal drugs
during a for-cause test or analysis of specimens suspected of being
adulterated or diluted. Program performance data for the first three
years of FFD program implementation have shown that those licensees
using screening cutoff levels for marijuana that are lower than the
maximum allowed 100 nanograms per milliliter (ng/ml) have had a higher
percentage of confirmed positive results than those screening at 100
ng/ml. (See NUREG/CR-5758, Vols. 1-3.) Licensees that employ special
measures to detect attempts to dilute specimens or flush metabolites
from the body report that their positive rate is about doubled. This
result is similar to data presented to the Department of Health and
Human Services' Drug Testing Advisory Board on June 10, 1993, and
reported in ``The National Report on Substance Abuse'' on June 18,
1993. (The study is currently undergoing peer review before
publication.) Adopting a performance-based approach that allowed
licensees to reduce their random testing rates as positive testing
results declined would likely discourage licensees from adopting lower
screening cutoff levels and taking measures to detect attempts by users
to avoid detection.
Lastly, a performance-based approach would require the collection
and analysis of performance data to provide the bases for adjustments
to the random testing rate. Such data is not currently collected by the
licensees or the NRC. Previous efforts known to the NRC staff to
identify and analyze the many candidate performance indicators for
measuring the effectiveness of random testing have been inconclusive,
primarily because of the numerous variables. Furthermore, assuming that
the proper performance indicators can be developed, it would appear
that the collection and analysis of data to support a performance-based
approach would add a considerable administrative burden to both
licensees and the NRC.
For all these reasons and until further experience is gained that
would support a performance-based approach, the Commission declines to
adopt such an approach to setting the random testing rate.
4. Comment. The reduction in the random testing rate should be
applied to all workers.
Four of the 30 commenters on this issue--three unions and one
licensee--supported the Commission's proposal that licensees maintain
the 100-percent random testing rate for contractor and vendor
employees. Their reasons included a concern for lack of commitment by
contractor employees to maintaining the industry's high drug-free
standard and the need for the higher testing rate to provide continued
deterrence for contractor employees. One of the three unions
recommended that long-term contractors should have the same lower
random testing rate as that of licensee employees because test results
of long-term contractors and licensee employees have been almost
identical.
There were several issues consistently mentioned by those 26
commenters who opposed maintaining the 100-percent random testing rate
for contractor and vendor employees. There was a general concern for
unnecessary inconsistencies in random testing rates between Federal
agencies. Commenters recommended that the NRC program be kept as
consistent as possible with programs in other Federally regulated
safety-related industries. These include the DOT programs that
currently require contractors and vendors to be randomly tested at a
50-percent rate.
Various licensees cited the testing results from 1990 and 1991
which, in their opinion, create no statistically sound rationale for
testing contractor and vendor employees at a rate different from that
of licensee employees. They argued that, while the contractor/vendor
positive testing rate has been twice that of licensee employees, it is
still low enough to make unnecessary the expenditure of the resources
necessary to maintain two separate random testing pools.
Various commenters noted that contractors and vendors are subject
to the identical access authorization and other FFD program
requirements as are licensee employees, including behavioral
observation. These stringent requirements, in their view, obviate the
need to keep the contractor/vendor random rate at 100 percent. Some
also noted that the deterrent value of random testing is in the act of
testing itself and not in what many consider to be a high rate of
testing. Some commenters warned that keeping contractors and vendors at
100 percent could be construed as discriminatory against those
employees and may be perceived as punitive rather than as a corrective
measure. Two licensees also cited a study of the detection
effectiveness of nine random testing rates published in NUREG/CR-5784,
``Fitness for Duty in the Nuclear Power Industry: A Review of the First
Year of Program Performance and an Update of the Technical Issues,''
which indicates that a 100-percent testing rate is only a little more
effective than a 50-percent rate for detecting occasional drug users.
NRC Response
Although there is a difference between the positive results of
random testing of licensee employees and those of contractor and vendor
employees, the positive random testing rate of both groups has been
less in each year since 1990, as stated in the response to Comment 1
above. While the contractor/vendor random testing positive rates
continue to be about twice the rate for licensee employees and
statistical analysis of the data shows that the difference in
proportion between the contractors' and licensees' employees is not
explained within statistical fluctuations (therefore, differences in
the rates are statistically significant), the Commission agrees that
the absolute numbers of positive test results of all categories of
nuclear power workers are low. Therefore, the Commission will permit
its licensees to lower the random testing rate to 50 percent for all
persons covered by 10 CFR part 26. However, the Commission will
continue to monitor licensee program performance and effectiveness and
will make program adjustments as necessary.
In response to the comments regarding the study of the detection
effectiveness of nine random testing rates published in NUREG/CR-5784,
the Commission notes that the study explicitly dealt with only the
hypothetical detection effectiveness of those alternatives. It did not
address their relative deterrence effectiveness. While it may be that
the effectiveness of a 100-percent random testing rate for deterring
occasional drug users could be slightly higher than that of a 50-
percent rate, the Commission nonetheless believes that a 50-percent
random testing rate will provide sufficient deterrence to drug and
alcohol abuse by contractor and vendor employees.
With respect to commenters' concerns about unnecessary
inconsistencies in random testing rates between Federal agencies, the
Commission continues to believe that the random test rate for employees
in the nuclear power industry need not be similar to the rates applied
to employees in all, or even most, other Federal agencies or Federally
mandated programs. Not all Federal agencies have identical safety
concerns or responsibilities.
5. Comment. There should be no difference in the random testing
rate for certain positions critical to the safe operation of a nuclear
power plant.
Seventeen commenters responded to the Commission's question as to
whether certain positions critical to the safe operation of a nuclear
power plant, such as licensed reactor operators, should be excluded
from any reduction of the random testing rate. All these commenters
recommended against such differentiation. Two licensees stated that
treating people in positions critical to safety differently from other
employees could have a negative effect on the morale, self-image, and
motivation of this group of highly trained and dedicated specialists.
Another stated that all plant employees are critical to safe operation.
Therefore, a reduction in the random testing rate should apply to all
employees. The potential for added record-keeping requirements creating
unnecessary burdens for the industry was another reason for not making
this distinction. In the opinion of one commenter, the 1990-1992
industry-wide program performance data do not support testing people in
positions critical to safety at a different rate than that applied to
other licensee employees. Finally, one licensee cited potential
problems getting union agreement to testing this classification of
employees at a higher rate than other licensee personnel subject to the
FFD rule.
NRC Response
The essence and unanimity of these comments--that licensed
operators and other employees in positions critical to the safe
operation of a nuclear power plant should not be excluded from a
reduction of the random testing rate--is not surprising. These
particular members of the nuclear power industry's workforce have
collectively demonstrated their dedication to safe and efficient plant
operations. As at least one commenter noted, the industry's program
performance data for the first three years of operation do not support
differentiating between people in safety-critical positions and other
licensee employees insofar as the random testing rate is concerned. The
1992 program performance data, for example, show that eighteen of the
industry's approximately 5,000 licensed operators tested positive for
drugs or alcohol or otherwise violated the licensee's FFD policy;
twelve of these were a result of random testing. When comparing these
results to the 461 positive results out of 156,730 random tests
administered to the industry workforce, the difference in proportion
between the licensed operators and the industry workforce is within
statistical fluctuations and the difference in the positive rates is
not statistically significant. While the NRC expects licensees to
continue to take action to drive this number of positives down even
further, this record does not merit testing people in these positions
at a rate different from that applied to other licensee employees. The
Commission, therefore, concurs with the commenters' recommendation that
certain positions critical to the safe operation of a nuclear power
plant, such as licensed reactor operators, should not be excluded from
a reduction of the random testing rate.
6. Comment. Random testing is expensive and produces false
positives. Furthermore, chronic users are able to avoid detection.
Two commenters, a power plant worker and a union, argued against
the usefulness of continued random testing. One of these commenters
stated that random testing produces false positives. These cost the
industry large amounts of money in settlements and damage the public's
perception of licensees' fairness. As additional support for this
position, this commenter warned that chronic drug abusers are
particularly adept at escaping detection from random testing by
subverting the testing process. The other commenter recommended that
random testing be eliminated because it is not effective in identifying
workers who are impaired at the time urine samples are collected. For-
cause testing, in this commenter's opinion, is more effective because
it more accurately reflects a worker's present ability to perform his/
her job at the time he/she is tested. This commenter also stated that
random testing appears to be a means of having the NRC enforce the
Controlled Substances Act which is not the NRC's responsibility.
NRC Response
The Commission has long been well aware of the types of FFD
program-related concerns as addressed by these commenters. During the
promulgation of 10 CFR part 26 in 1989, the Commission fully addressed
these and many other such concerns. (See NUREG-1354, ``Fitness for Duty
in the Nuclear Power Industry: Responses to Public Comments.'') At that
time the NRC concluded, for example, that licensee FFD programs should
be concerned not only with impairment, but also with worker reliability
and trustworthiness. The NRC believes that any illegal drug use or
alcohol abuse by a worker reflects upon his or her trustworthiness and
reliability. Likewise, random testing is not intended, nor has it ever
functioned, as a means to enforce the Controlled Substances Act.
Section 26.29(b) provides that licensees, contractors, and vendors
shall not disclose test results to law enforcement officials unless
those officials request such information under court order. It also is
noted that there is no requirement to routinely provide such officials
with testing results.
The Commission is well aware that there is a potential for false
positive results and, therefore, has required numerous quality control
measures and safeguards to prevent such occurrences. In Appendix D to
NUREG/CR-5758, Volume 3, the testing process errors that were reported
by licensees during the first three years under the FFD rule were
analyzed. Of over 800,000 specimens tested, there were two false
positives of personnel specimens reported by the laboratories, both due
to administrative errors. In both cases, the quality assurance programs
detected and corrected the problem.
Because of the NRC's particular concern with the degree to which
the testing process can be subverted, the Commission staff has
continued to track the ways in which workers have subverted testing
processes in industries across the country. These efforts have resulted
in staff recommendations for amending 10 CFR part 26 to introduce
various means for combatting subversion. Lastly, the Commission
believes that the added protection of public health and safety that the
FFD program provides is well worth the industry's costs of
administering this program.
7. Comment. Maintaining two separate populations of workers for
random testing is an unnecessary and expensive burden.
Some of the commenters stated that requiring two random testing
rates would force licensees to develop two separate testing programs.
The resulting additional administrative and financial burdens would
cancel out any savings resulting from reducing the licensee employee
rate to 50 percent. NUMARC stated that the industry would save
approximately $4.1 million if the number of tests of contractor and
vendor employees was cut in half.
NRC Response
Some of the comments noted above asserted that separate random
testing rates for licensee employees and contractors/vendors would
create additional administrative and financial burdens for licensees.
Although this issue is somewhat moot since the Commission will permit
licensees to reduce the random testing rate to 50 percent per year for
all persons covered by Part 26, the Commission does not concur that
conducting random testing using two random rates would have caused
appreciably higher administrative or operating costs. Presumably, most
licensees' data bases already distinguish between licensee employees
and contractor/vendor employees subject to testing. Numerous commenters
on the initial rule in 1989 indicated that the workforce population
should be separated so that permanent employees would not be tested at
a much higher rate to make up for contractors who might not be on site
when selected for testing (see comment/response 7.4.3 of NUREG-1354).
The NRC staff understands that several licensees have divided their
testing population as permitted by the rule. The number and identity of
licensee employees in the testing pool remains rather constant over
time. The number and identity of contractor/vendor employees in the
testing pool, on the other hand, varies quite considerably over time
depending on outages and other operational considerations. A licensee
may choose to create more than one test population so that it may test
portions of its workforce at a greater rate or reduce the burden on its
employees from being tested at a higher rate to compensate for the
testing of contractors and vendors not normally on site.
8. Comment. The Commission should modify certain portions of 10 CFR
part 26 based on industry experience and lessons learned and
incorporate numerous program enhancements as discussed at various
industry forums.
Eight commenters recommended that the Commission make future
modifications to certain portions of 10 CFR part 26 based on industry
experience and lessons learned and incorporate numerous program
enhancements as discussed at various industry forums.
NRC Response
The specific recommendations for ways in which part 26 can be
improved and numerous other program enhancements are currently being
considered by the NRC in conjunction with a general package of rule
revisions currently under development.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, the
NRC has not prepared an environmental impact statement, nor an
environmental assessment for this final rule.
Paperwork Reduction Act Statement
This final rule amends information collection requirements that are
subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.)
These requirements and amendments were approved by the Office of
Management and Budget, approval number 3150-0146.
Since the rule will permit licensees to reduce the random testing
rate for their employees, the resulting reduction in the reporting and
recordkeeping burden is expected to be an average of 223 hours per
site, including the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. Send comments regarding
this burden estimate or any other aspect of this collection of
information, including suggestions for reducing this burden, to the
Information and Records Management Branch (MNBB-7714), U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, and to the Desk
Officer, Office of Information and Regulatory Affairs, NEOB-3019 (3150-
0146), Office of Management and Budget, Washington, DC 20503.
Regulatory Analysis
The NRC has prepared a regulatory analysis for this regulation. The
analysis examines the costs and benefits of the alternatives considered
by the Commission. The analysis is available for inspection in the NRC
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.
Single copies of the analysis may be obtained from Loren L. Bush, Jr.,
Division of Radiation Safety and Safeguards, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone (301) 504-2944.
Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule affects only the licensing and operation of nuclear power
plants and activities associated with the possession or transportation
of Category I material. The companies that own these plants do not fall
within the scope of the definition of ``small entities'' set forth in
the Regulatory Flexibility Act or the Small Business Size Standards
issued by the Small Business Administration in 13 CFR part 121.
Backfit Analysis
The rule represents a relaxation from current part 26 requirements
for drug testing since the rule permits (but does not require)
licensees to reduce the random testing rate for all persons covered by
the rule. Accordingly, the rule does not represent a backfit as defined
in 10 CFR 50.109(a)(1), and a backfit analysis is not required for this
rule.
List of Subjects in 10 CFR Part 26
Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug
abuse, Drug testing, Employee assistance programs, Fitness for duty,
Hazardous materials transportation, Management actions, Nuclear
materials, Nuclear power plants and reactors, Penalties, Protection of
information, Radiation protection, Reporting and recordkeeping
requirements, Sanctions, Special nuclear materials.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendment to 10 CFR part 26.
PART 26--FITNESS FOR DUTY PROGRAMS
1. The authority citation for part 26 continues to read as follows:
Authority: Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935,
936, 937, 939, 948, as amended (42 U.S.C. 2073, 2111, 2112, 2133,
2134, 2137, 2201); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246,
as amended (42 U.S.C. 5841, 5842, 5846).
2. In Sec. 26.24 paragraph (a)(2) is revised to read as follows:
Sec. 26.24 Chemical and alcohol testing
(a) * * *
(2) Unannounced drug and alcohol tests imposed in a statistically
random and unpredictable manner so that all persons in the population
subject to testing have an equal probability of being selected and
tested. The tests must be administered so that a person completing a
test is immediately eligible for another unannounced test. As a
minimum, tests must be administered on a nominal weekly frequency and
at various times during the day. Random testing must be conducted at an
annual rate equal to at least 50 percent of the workforce.
* * * * *
Dated at Rockville, Maryland, this 29th day of December, 1993.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-131 Filed 1-4-94; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 94-119 Arkansas' Abandoned Mine Land Reclamation Plan
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 540-542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-119]
[[Page Unknown]]
[Federal Register: January 5, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 904
Arkansas' Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving an amendment to the Arkansas abandoned mine
land reclamation plan (hereinafter referred to as the ``Arkansas
plan'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The amendment consists of revisions to the Arkansas statute
pertaining to the eligibility of project sites for abandoned mined land
(AML) funds. The amendment is intended to revise the Arkansas plan to
be in compliance with SMCRA.
EFFECTIVE DATE: January 5, 1994.
FOR FURTHER INFORMATION CONTACT:
James H. Moncrief, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Arkansas Plan
II. Submission of Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Arkansas Plan
On May 2, 1983, the Secretary of the Interior approved the Arkansas
plan. General background information on the Arkansas plan, including
the Secretary's findings, the disposition of comments, and the approval
of the Arkansas plan can be found in the May 2, 1983, Federal Register
(48 FR 19710).
II. Submission of Amendment
By letter dated October 6, 1993 (Administrative Record No. AAML-
18), Arkansas submitted a proposed amendment to its plan pursuant to
SMCRA. Arkansas submitted the proposed amendment in response to a
required program amendment at 30 CFR 904.26(a) that was placed on the
Arkansas plan when OSM approved Arkansas' March 31, 1993, plan
amendment (58 FR 38532, July 19, 1993; Administrative Record No. AAML-
17). Arkansas intended that this amendment be in compliance with
section 402 of SMCRA.
Arkansas proposed to amend Arkansas Code Annotated (ACA) 15-58-
401(b)(2) that provides criteria for the determination of the
eligibility of certain project sites for AML funding. Specifically,
Arkansas proposed to require at ACA 15-58-401(b)(2) a finding that the
surface coal mining operation occurred during the period beginning on
August 4, 1977, and ending on November 5, 1990.
OSM announced receipt of the proposed amendment in the November 1,
1993, Federal Register (58 FR 58313; Administrative Record No. AAML-25)
and in the same notice opened the public comment period and provided an
opportunity for a public hearing on the substantive adequacy of the
proposed amendment. The public comment period closed on December 1,
1993. No substantive comments were received. The public hearing,
scheduled for November 26, 1993, was not held because no one requested
an opportunity to testify.
III. Director's Findings
After a thorough review pursuant to SMCRA and the Federal
regulations at 30 CFR 884.14 and 884.15, the Director finds, as
discussed below, that Arkansas' October 6, 1993, proposed plan
amendment is in compliance with SMCRA.
OSM required at 30 CFR 904.26(a) that Arkansas submit a revision to
ACA 15-58-401(b)(2) to limit operations eligible for AML funds because
of insolvency of a surety company to those operations whose surety
became insolvent during the time frame provided by section
402(g)(4)(B)(ii) of SMCRA. Section 402(g)(4)(B)(ii) of SMCRA, as
revised by the Abandoned Mine Land Reclamation Act of 1990 (Pub. L.
101-508), provided that the period of time during which such an
operation would be eligible for AML funds because of the insolvency of
the surety company would begin on August 4, 1977, and end on the date
of enactment of the revision to SMCRA, which was November 5, 1990.
Because Arkansas revised ACA 15-58-401(b)(2) to specify a period of
time beginning on August 4, 1977, and ending on November 5, 1990, ACA
15-58-401(b)(2) is no less stringent than section 402(g)(4)(B)(ii) of
SMCRA, as revised by the Abandoned Mine Land Reclamation Act of 1990.
Therefore, the Director approves ACA 15-58-401(b)(2) and removes
the required amendment at 30 CFR 904.26(a).
IV. Summary and Disposition of Comments
1. Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to testify at a
public hearing, no hearing was held.
2. Agency Comments
Pursuant to 30 CFR 884.14(a)(2) and 884.15(a), the Director
solicited comments from the heads of various other Federal agencies
with an actual or potential interest in the Arkansas plan.
By letter dated October 29, 1993, (Administrative Record No. AAML-
22), the U.S. Bureau of Mines responded that it had no comments.
By letter dated October 29, 1993 (Administrative Record No. AAML-
23), the U.S. National Park Service (NPS) responded that the proposed
amendment would not impact NPS program responsibilities.
By letter dated November 8, 1993 (Administrative Record No. AAML-
24), the U.S. Bureau of Land Management responded with a recommendation
that Arkansas be required to revise ACA 15-58-401(c) so that it would
read as follows:
In determining which sites to reclaim pursuant to paragraph (b)
of this section, the Director shall follow the priorities stated in
paragraphs (1) and (2) of 15-58-402. The Director shall ensure that
priority is given to those sites which are in the immediate vicinity
of a residential area or which have an adverse economic impact upon
a community [once coal mining sites and toxic mining material sites
on federal or state surface tracts have been reclaimed].
BLM proposed the addition of the bracketed language and stated that
its intent was to protect the public interest as a whole, particularly
in the Ouachita National Forest, prior to focusing in on individual
communities.
Referenced ``paragraph (b) of this section'' in ACA 15-58-401, as
revised by the amendment that is the subject of this notice, allows the
reclamation under Arkansas' plan of certain surface coal mining
operations that operated on or after August 7, 1977, and were abandoned
or left in an inadequate reclamation status.
Referenced ``paragraphs (1) and (2) of 15-58-402'' require that the
expenditure of AML funds reflect the priorities of (1) the protection
of public health, safety, general welfare, and property from extreme
danger of adverse effects of coal mining practices and (2) the
protection of public health, safety, and general welfare from adverse
effects of coal mining practices. These State provisions are
substantively identical to sections 403(a) (1) and (2) of SMCRA.
ACA 15-58-401(c) is substantively identical to section 402(g)(4)(C)
of SMCRA. In addition, section 411 of SMCRA provides for the use of AML
funds for lands affected by noncoal mining only after a State has
certified that all abandoned coal mines have been reclaimed. Arkansas
has not yet made this certification.
OSM cannot, as requested by BLM, require that Arkansas give higher
priority to the reclamation of coal mining sites and toxic mining
material sites on federal or state surface tracts because sections
403(a), 402(g)(4)(C), and 411 of SMCRA do not do so.
V. Director's Decision
Based on the above finding, the Director approves Arkansas'
proposed plan amendment, as submitted on October 6, 1993.
The Federal regulations at 30 CFR part 904, codifying decisions
concerning the Arkansas plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State abandoned mine land
reclamation plans and revisions thereof since each such plan is drafted
and promulgated by a specific State, not by OSM. Decisions on proposed
State AML reclamation plans and revisions thereof submitted by a State
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the
applicable Federal regulations at 30 CFR parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State abandoned mine land reclamation
plans and revisions thereof are categorically excluded from compliance
with the National Environmental Policy Act of 1969 (42 U.S.C. 4332) by
the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
Federal regulations for which an economic analysis was prepared and
certification made that such regulations would not have a significant
economic effect upon a substantial number of small entities.
Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the State. In making the determination as to whether
this rule would have a significant economic impact, the Department
relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
List of Subjects in 30 CFR Part 904
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 28, 1993.
Raymond L. Lowrie,
Assistant Director, Western Support Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 904--ARKANSAS
1. The authority citation for part 904 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 904.25 is amended by adding paragraph (b) to read as
follows:
Sec. 904.25 Approval of abandoned mine land reclamation plan
amendments.
* * * * *
(b) The following section of the Arkansas Code Annotated, title 15,
pertaining to the Arkansas abandoned mine land reclamation plan, as
submitted to OSM on October 6, 1993, is approved effective January 5,
1994.
Section 15-58-401(b)(2) of Arkansas Code Annotated--Lands
Eligible.
3. Section 904.26 is revised to read as follows:
Sec. 904.26 Required plan amendments.
Pursuant to 30 CFR 884.15, Arkansas is required to submit for OSM's
approval the following proposed plan amendment by the date specified.
(a) [Reserved]
(b) [Reserved]
[FR Doc. 94-119 Filed 1-4-94; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 93-32115 Airworthiness Directives; Honeywell Traffic Alert and Collision Avoidance System II Computer Units, as Installed on Various Transport Category Airplanes
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 511-514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32115]
[[Page Unknown]]
[Federal Register: January 5, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 93-NM-68-AD; Amendment 39-8786; AD 94-01-04]
Airworthiness Directives; Honeywell Traffic Alert and Collision
Avoidance System II Computer Units, as Installed on Various Transport
Category Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Honeywell Traffic Alert and Collision Avoidance
System II (TCAS II) computer units installed on various transport
category airplanes, that requires replacing certain TCAS II computer
units with new units that incorporate updated collision avoidance
system (CAS) logic, and modifying the computer surveillance logic. This
amendment is prompted by the development of candidate enhancements to
TCAS II logic that will improve its utility and increase its overall
operational acceptance. The actions specified by this AD are intended
to prevent collisions or near misses caused by incompatibility between
the TCAS II processors and the current air traffic control system.
DATES: Effective February 4, 1994.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of February 4, 1994.
ADDRESSES: The service information referenced in this AD may be
obtained from Honeywell Inc., Commercial Flight Systems Group, Air
Transport Systems Division, P.O. Box 21111, Phoenix, Arizona 85036.
This information may be examined at the Federal Aviation Administration
(FAA), Transport Airplane Directorate, Rules Docket, 1601 Lind Avenue,
SW., Renton, Washington; at the FAA, Transport Airplane Directorate,
Los Angeles Aircraft Certification Office, 3229 East Spring Street,
Long Beach, California; or at the Office of the Federal Register, 800
North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Abby Malmir, Aerospace Engineer,
Systems and Equipment Branch, ANM-132L, FAA, Transport Airplane
Directorate, Los Angeles Aircraft Certification Office, 3229 East
Spring Street, Long Beach, California 90806-2425; telephone (310) 988-
5351; fax (310) 988-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations to include an airworthiness directive (AD) that is
applicable to all Honeywell Traffic Alert and Collision Avoidance
System II (TCAS II) computer units installed on various transport
category airplanes was published in the Federal Register on September
9, 1993 (58 FR 47407). That action proposed to require replacing
certain TCAS II computer units with new units that incorporate updated
collision avoidance system (CAS) logic, and modifying the computer
surveillance logic.
Since the issuance of the notice, an additional change to Version
6.04A collision avoidance system (CAS) logic was recommended at a
meeting held to discuss the progress made in implementing logic
modification 6.04A. Meeting attendees included representatives from the
FAA and European civil aviation authorities, U.S. and European aviation
industry, and U.S. operators. The logic change that was recommended
involves reducing unnecessary crossing resolution advisories (RA). That
change is included in a new enhanced software package (identified as
Version 6.04A), specified in Mitre letter F046-L-0069, dated September
21, 1993.
Subsequently, Honeywell Inc. has issued Service Bulletin 4066010-
34-SW16, dated December 20, 1993. The service bulletin describes
procedures for converting certain TCAS II computer units to new units
(Version 6.04A). The new units incorporate all of the logic changes
specified in the preamble to the notice, including updating CAS logic,
modifying the computer surveillance logic to ensure that these units
accommodate Mode C altitude input of 100-foot increments, and ensuring
that the system will be tracked and coordinated by intruding aircraft
when the Mode S transponder CA field is set at CA=7. The conversion is
onboard-loadable, or it may be accomplished at a field repair shop. The
first method involves data loading the TCAS II computer unit in the
aircraft equipment bay using an ARINC 615 or 603 data loader. The
second method entails performing a final test, and then programming the
TCAS II computer unit to convert it to the latest enhanced version at a
field repair shop.
The notice proposed that operators accomplish the modification
requirements of this AD in accordance with a method approved by the
FAA. However, the FAA has reviewed and approved the Honeywell service
bulletin discussed previously, and has determined that accomplishment
of this service bulletin is an appropriate method of compliance.
Consequently, the FAA has revised paragraph (a) of the final rule to
cite the Honeywell service bulletin as the appropriate source of
service information, and has removed the language referring to
accomplishing the actions ``in accordance with a method approved by the
FAA.'' Even though this language has been deleted from paragraph (a),
operators may still be permitted to accomplish the actions in
accordance with an FAA-approved method under the provisions of
paragraph (c) of the final rule.
In light of this new data and software developement, the FAA has
revised the final rule by changing the reference to Mitre letter F046-
L-0056, dated July 20, 1993, which appeared in paragraph (a)(1) of the
NPRM, to Mitre letter F046-L-0069, dated September 21, 1993, since the
latter identifies the enhanced software package. Since the original
Version 6.04A software was never issued, no operator could have
installed that version. Therefore, no redundant actions would be
required on the part of any operator as a result of this change.
Since the enhanced Version 6.04A software introduces a change in
the operation of the aircraft, the FAA also finds that a revision to
the Airplane Flight Manual (AFM) is necessary as a conforming change to
correspond with that new software configuration. The AFM revision is
advisory only, and will ensure that the flight crew is aware of the
changes associated with the new software installation. Consequently,
paragraph (b) has been added to the final rule to reflect this
informational AFM revision.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received in response to the notice:
One commenter, Honeywell, objects to the proposed compliance date
of December 30, 1993, and states that December 31, 1994, represents a
more realistic compliance timeframe. Honeywell indicates that operators
vary in their ability to load the updated software due to maintenance
and aircraft schedules and data-load/test resources. Honeywell states
that, although it has been working aggressively to implement the latest
change, that change has resulted in a delay in the date operators will
be able to implement the latest change.
Several other commenters also request that the FAA extend the
proposed compliance date from 3 to 18 months after the date specified
in the proposal in order to accommodate implementation, verification,
certification, and incorporation of the proposed software change into
existing installations. One commenter, the Air Transport Association
(ATA) of America, supports implementation of the latest enhanced
Version 6.04A, and requests that the FAA issue a supplemental notice of
proposed rulemaking (NPRM) to propose that this revised software be
retrofitted by June 30, 1995. ATA contends that significant differences
exist between Version 6.04A and the latest enhanced version. Another
commenter requests that the FAA solicit comments from foreign agencies
participating in TCAS evaluation and simulations to help ensure that
the proposed Version 6.04A revision will be compatible and acceptable.
The FAA concurs partially with these requests to extend the
compliance time. The FAA has considered the safety implications, the
time necessary for approval of the enhanced Version 6.04A software, the
size of the fleet, and normal maintenance schedules for timely
accomplishment of implementation of the modification. In light of these
considerations, the FAA has determined that a compliance date of
December 31, 1994, is appropriate. Paragraph (a) of the final rule has
been revised to specify the revised compliance date.
However, in response to the requests that a supplemental NPRM be
issued and that further public comments be solicited, the FAA submits
the following. Comments received in response to the proposal reflect
unanimous support for implementation of the latest enhanced Version
6.04A software. The FAA considers the logic change (reduction of
unnecessary crossing RA's) incorporated in the enhanced software to be
a minor change. The intent of this AD is to require that the addressed
unsafe condition be corrected by installing modified TCAS II computer
units that incorporate updated CAS logic. The FAA has determined that a
requirement to implement Version 6.04A software, including the latest
enhancement, will meet that intent, will not alter the substance of the
rule, and will impose no additional burden on any member of the public.
Additionally, issuance of a supplemental NPRM would necessitate (under
the provisions of the Administrative Procedure Act) reissuing the
notice, reopening the period for public comment, considering additional
comments received, and eventually issuing a final rule; the time
required for that procedure may be as long as four additional months.
In light of this, and in consideration of the amount of time that has
already elapsed since issuance of the original NPRM, the FAA concludes
that solicitation of further public comment is not necessary and that
further delay of this final rule action is not appropriate.
One commenter requests that the FAA require Honeywell TCAS II
processors that are already installed be operated in the ``traffic
advisory (TA) only'' mode until the updated software package is
installed. The commenter indicates that ``possible hidden problems''
could exist between the different versions of logic that are installed
currently in the TCAS II processors.
The FAA does not concur with the commenter's request. Operation of
currently installed TCAS II processors in the ``TA only'' mode would
impair the capability of those processors to alert the flight crew of
appropriate aircraft maneuvers that must be taken to prevent mid-air
collisions. Further, the FAA is unaware of any ``possible hidden
problems'' between the different versions of logic installed currently
in the TCAS II processors, as suggested by the commenter. Therefore,
the FAA concludes that currently installed TCAS II processors should
not be operated in the ``TA only'' mode until the updated software
packaged is installed.
One commenter requests clarification of the unsafe condition
specified in the proposed rule. This commenter points out differences
in the wording of the unsafe condition between this proposed rule and
two existing proposals that address the same CAS logic change for
Rockwell International/Collins Air Transport Division (Collins), and
Allied Signal Aerospace Company/Air Transport Avionics (Allied Signal),
TCAS II processors. From this comment, the FAA infers that the
commenter requests that the proposed statement of unsafe condition more
closely parallels the statement of unsafe condition in the other two
proposals addressing the same subject.
The FAA concurs. The FAA has revised the unsafe condition specified
in this final rule to coincide with the proposals that address Collins
and Allied Signal TCAS II processors to more explicitly reference
safety considerations, as follows: ``* * * to prevent collisions or
near misses caused by incompatibility between the TCAS II processors
and the current air traffic control system.''
One commenter, Falcon Jet Corporation, indicates that Honeywell
TCAS II processors are installed on Mystere-Falcon Model 50 and 900
series airplanes, and requests that these airplanes be included in the
portion of the applicability of the AD that lists airplanes on which
this TCAS II processor may be installed. The FAA concurs with the
commenter's request and has revised the final rule accordingly. In
addition, the FAA has become aware of other airplane models affected by
this AD and has included those models in that portion of the
applicability statement of the final rule. The FAA clarifies that, as
stated in the preamble and the applicability of the proposal, the
affected Honeywell TCAS II processors are installed on various
transport category airplanes and are not limited only to those
airplanes listed in the applicability of this AD.
Several commenters request that the FAA revise the economic impact
information specified in the proposal to reflect costs borne by
suppliers, installers, and airline operators associated with
development, testing, and certification of the modified processor.
The FAA does not concur with the commenters' request to revise the
economic impact information contained in this AD. The appropriate
number of hours required to accomplish the required actions, specified
as 3 in the economic impact information, below, was provided to the FAA
by the processor manufacturer based on the best data available to date.
This number represents the time required to gain access, remove the
existing processor, install a diskette containing the revised software,
and close up. The cost analysis in AD rulemaking actions typically does
not include costs associated with development, testing, and
certification of a modified processor, as suggested by the commenter.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
There are approximately 2,700 transport category airplanes in the
worldwide fleet on which the Honeywell TCAS II computer units may be
installed. The FAA estimates that 1,150 airplanes of U.S. registry will
be affected by this AD, that it will take approximately 3 work hours
per airplane to accomplish the required actions, and that the average
labor rate is $55 per work hour. Required parts will be supplied by the
manufacturer at no cost to operators. Based on these figures, the total
cost impact of the AD on U.S. operators is estimated to be $189,750, or
$165 per airplane. This total cost figure assumes that no operator has
yet accomplished the requirements of this AD.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends 14 CFR part
39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C.
106(g); and 14 CFR 11.89.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
94-01-04 Honeywell: Amendment 39-8786. Docket 93-NM-68-AD.
Applicability: Traffic Alert and Collision Avoidance System
(TCAS) II computer units; part numbers 4066010-901, -902, and -903;
as installed on, but not limited to, the following airplanes,
certificated in any category:
Airbus Industrie Model A300-600, A310-200, A310-300, A320-200, and
A340 series airplanes;
Boeing Model 727-100 and -200; 737-100, -200, -300, and -400; 747-
100, -200, -300, -400 and 747SP; 757-200 and -500; and 767-200 and -
300 series airplanes;
Cessna Citation Model C550 and C560 series airplanes, and Cessna
Citation III and VII series airplanes;
Canadair Challenger Model CL-600-2B16 and -2A12 series airplanes;
British Aerospace Model 125-800A;
Gulfstream Model GII, GIIB, GIII, and GIV series airplanes;
Lockheed Model L-1011 series airplanes;
McDonnell Douglas Model DC-9-10, -20, -30-, -40, and -50; DC-10-10,
-15, -30, and -40; MD-11; and DC-9-80 series airplanes; and Model
MD-88 airplanes;
Dassault Aviation Model Mystere-Falcon 50 and 900 series airplanes;
Short Brothers Model SD3-60 series airplanes;
de Havilland Model DHC-8-100 and DHC-7 series airplanes;
Fokker Model F27 series airplanes; and
Corporate Jets Limited Model BAe 125-800A and BAe 125-1000A series
airplanes.
Compliance: Required as indicated, unless accomplished
previously.
To prevent collisions or near misses caused by incompatibility
between the TCAS II processors and the current air traffic control
system, accomplish the following:
(a) Before December 31, 1994, accomplish the requirements of
paragraphs (a)(1) and (a)(2) of this AD in accordance with Honeywell
Service Bulletin 4066010-34-SW16, dated December 20, 1993.
(1) Remove existing Honeywell TCAS II computer units, part
numbers 4066010-901, -902, and -903, and replace those units with
new units that incorporate updated collision avoidance system (CAS)
logic, identified as Version 6.04A in Mitre letter F046-L-0069,
dated September 21, 1993.
(2) Modify the computer surveillance logic on Honeywell TCAS II
computer units, part numbers 4066010-901, -902, and -903, to ensure
that these units accommodate Mode C altitude input of 100-foot
increments and that the system will be tracked and coordinated by
intruding aircraft when the Mode S transponder CA field is set at
CA=7.
(b) Prior to further flight after accomplishing the requirements
of paragraph (a) of this AD, revise the Airplane Flight Manual (AFM)
or AFM Supplement by accomplishing either paragraph (b)(1) or (b)(2)
of this AD.
(1) Revise the Normal Procedures Section of the AFM to include
the appropriate TCAS operating characteristic relative to the
modifications required by paragraph (a) of this AD, in accordance
with a method approved by the Manager, Los Angeles Aircraft
Certification Office (ACO), FAA, Transport Airplane Directorate; or
(2) Revise the Normal Procedures Section of the AFM to include
the following TCAS operating characteristic relative to the
modification required by paragraph (a) of this AD. This may be
accomplished by inserting a copy of this AD in the AFM or AFM
Supplement.
``All Resolution Advisory (RA) and Traffic Advisory (TA) aural
messages are inhibited at a radio altitude of less than 1,100 feet
above ground level (AGL) climbing, and less than 900 feel AGL
descending.''
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal Avionics
Inspector, who may add comments and then send it to the Manager, Los
Angeles ACO.
Note: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(d) Special flight permits may be issued in accordance with FAR
21.197 and 21.199 to operate the airplane to a location where the
requirements of this AD can be accomplished.
(e) The replacement and modification shall be done in accordance
with Honeywell Service Bulletin 4066010-34-SW16, dated December 20,
1993. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from Honeywell Inc., Commercial
Flight Systems Group, Air Transport Systems Division, P.O. Box
21111, Phoenix, Arizona 85036. Copies may be inspected at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington; at the FAA, Transport Airplane Directorate, Los Angeles
Aircraft Certification Office, 3229 East Spring Street, Long Beach,
California; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on February 4, 1994.
Issued in Renton, Washington, on December 29, 1993.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 93-32115 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 93-32114 Airworthiness Directives: Rockwell International, Collins Air Transport Division, Traffic Alert and Collision Avoidance System II Processors
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 514-516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32114]
[[Page Unknown]]
[Federal Register: January 5, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 93-CE-47-AD; Amendment 39-8788; AD 94-01-06]
Airworthiness Directives: Rockwell International, Collins Air
Transport Division, Traffic Alert and Collision Avoidance System II
Processors
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to certain Rockwell International, Collins Air Transport
Division (Collins), Traffic Alert and Collision Avoidance System (TCAS)
II processors that are installed on aircraft. This action requires
replacing the existing TCAS II processor with a new processor that
incorporates updated computer logic or reprogramming certain processors
while they are still on board the aircraft. The development of
candidate enhancements to TCAS II logic that improves its utility and
increases its overall operational acceptance prompted the proposed
action. The actions specified by this AD are intended to prevent
collisions or near misses caused by incompatibility between the TCAS II
processors and the current air traffic control system.
EFFECTIVE DATE: February 4, 1994.
ADDRESSES: Service information that is referenced in this AD may be
obtained from Rockwell International/Collins Air Transport Division,
400 Collins Road, NE; Cedar Rapids, Iowa 52498. Information that
relates to this AD may be examined at the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, room 1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. Roger A. Souter, Aerospace
Engineer, Wichita Aircraft Certification Office, 1801 Airport Road,
room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316)
946-4134; facsimile (316) 946-4407.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations to include an AD that applies to certain Collins
TCAS II processors that are installed on aircraft was published in the
Federal Register on September 9, 1993 (58 FR 47409). The action
proposed to require (1) removing from service all processors that do
not have computer logic ``Change 6.04A'' incorporated; and (2)
mandatory incorporation of ``Change 6.04A'' into the TCAS II computer
system.
The affected TCAS II processors are not designed for a specific
aircraft type. The Collins TCAS II processors are installed on, but not
limited to the following:
General Aviation Airplanes
Astra Model 1125 airplanes
BAC Model 1-11 airplanes
British Aerospace Model 125-800 airplanes
Beech Models C90A, B200, 300, 350, and 400A airplanes
Canadair Models CL-600, CL-600-2B16, CL-601, CL-601-1A, and CL-601-
3A airplanes
Learjet Models 31, 55, and 60 airplanes
Falcon Models 20, 50, 200, and 900 airplanes
Gulfstream Models G2 and G3 airplanes
British Aerospace Models HS-125-700 airplanes and
Sabreliner Model 60 airplanes
Air Transport Airplanes
Aerospatiale Models ATR-42 and ATR-72 airplanes
Airbus Industries Models A300B2, A-300B, and A-320 airplanes
British Aerospace Models ATP and 146 airplanes
Boeing Models 707, 727, 737, 747, 757, and 767 airplanes
British Aerospace/Aerospatiale Model Concorde SST airplanes
de Havilland DHC-7 and DHC-8 series airplanes
McDonnell Douglas Models DC-8, DC-9, DC-10, MD-80, and MD-11
airplanes
Ilyushin Model IL-86 airplanes
Lockheed Model L-1011 airplanes
SAAB Models SF340A and SF340B airplanes and
Shorts Models SD3-60-300 airplanes
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received from 31 different owners, operators,
manufacturers, and organizations.
All commenters express their concern of the FAA's compliance date
of December 30, 1993. The following summarizes the compliance times
that the commenters recommended:
21 recommended one year or less;
3 recommended longer than one year; and
7 recommended an extension without a proposed time.
The National Air Traffic Controllers Association and the Airline Pilots
Association both recommend an ``aggressive implementation'' of ``Change
6.04A''. The FAA has re-evaluated the December 30, 1993, compliance
time and has determined that the compliance time should be changed to
December 31, 1994. In addition, ``Change 6.04A'' has been upgraded to
``Change 6.04A Enhanced'', which eliminates unnecessary non-crossing
resolution advisories (RA's) included in ``Change 6.04A''. Collins has
assured the FAA that (1) the upgrade to ``Change 6.04A Enhanced'' is
minor and will be incorporated in the logic change for the TCAS II
processor upgrades; and (2) this compliance time correlates with their
schedule for disseminating service information and kits necessary to
accomplish the incorporation of ``Change 6.04A Enhanced''. The proposed
AD has been changed to reflect the compliance time change and logic
change described above.
One commenter states that the affected aircraft operators should
operate their TCAS II units in the ``TA Mode Only'' until the new logic
is incorporated because of possible hidden problems that could exist
between different logic versions currently installed. The FAA does not
concur that these TCAS II units should be operated in the ``TA Mode
Only''. The information provided by an RA may prove to be useful to the
pilot. The pilot has the option of whether to utilize the RA
information. The proposed AD is unchanged as a result of this comment.
A commenter recommends referencing Collins Service Bulletin (SB)
No. 16, TTR-920-34-16, dated December 9, 1993, as a way of complying
with the proposed AD. The FAA concurs that this service information is
a way of complying with the proposed action, and has included a note in
the final rule that so indicates this.
Another commenter proposes a change to the proposed AD that would
allow reprogramming the existing unit on board the aircraft as a method
of compliance with the proposed action. The FAA concurs that certain
existing TCAS II part numbers may be reprogrammed with the unit on
board the aircraft. The proposed AD has been modified to include this
method on the applicable TCAS II processor part numbers.
One commenter states that reference to the SAAB 340B airplanes in
the General Aviation Airplanes list should be deleted. This commenter
also recommends that reference to the Aerospatiale ATR-42 and ATR-72
airplanes be moved from the General Aviation Airplanes list to the Air
Transport Airplanes list. The FAA concurs and has revised the proposed
AD accordingly.
One commenter, who supports the implementation of ``Change 6.04A
Enhanced'', requests that the FAA issue a supplementary notice of
proposed rulemaking (NPRM) to propose installing this revised software
by June 30, 1995. This commenter states that significant differences
exist between ``Change 6.04A'' and ``Change 6.04A Enhanced''. The FAA
does not concur. Comments received in response to the proposed AD
reflect unanimous support for implementing ``Change 6.04A Enhanced''.
The FAA considers the logic change (which reduces non-crossing RA's) to
be minor. The intent is to correct the unsafe condition by installing
modified TCAS II computer units that incorporate updated logic. The FAA
has determined that the requirement to implement Version 6.04A
software, including the latest enhancement, will (1) correct the unsafe
condition; (2) maintain the same intent originally proposed without
altering the substance of the proposed rule; and (3) impose no
additional burden on the public than was previously proposed.
In addition, issuing a supplemental NPRM would necessitate (under
the provisions of the Administrative Procedures Act) reissuing the
notice, reopening the public comment period, considering any additional
comments received, and eventually issuing a final rule. The time
required for these procedures could take as long as four additional
months. In light of this, and in consideration of the amount of time
that has already elapsed since issuance of the original NPRM, the FAA
concludes that soliciting further public comment is not necessary and
that further delay of the final rule action is not appropriate.
Several commenters request that the FAA revise the economic impact
specified in the proposed AD to reflect costs associated with the
development, testing prior to certification, and certification of the
modified processor. These costs would be absorbed by suppliers,
installers, and airline operators. The FAA does not concur that the
economic impact statement include this information. The 5 workhours
necessary to accomplish the proposed action was provided to the FAA by
the TCAS II processor manufacturer based on the best data available to
date. This number represents the time required to install the revised
software and test for proper operation after installation. The cost
analysis in AD rulemaking actions typically does not include costs
associated with development, testing prior to certification, and
certification of a modified processor. The proposed action remains
unchanged as a result of these comments.
After careful review of all available information including the
comments noted above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
the change in compliance time, the logic reference change, the option
of reprogramming certain units on board the aircraft, reference to
Collins SB No. 16, TTR-920-34-16, dated December 9, 1993, and minor
editorial corrections. The FAA has determined that these changes and
corrections will not change the meaning of the AD nor add any
additional burden upon the public than was already proposed.
The FAA estimates that 1,995 TCAS II processors in the U.S.
registry will be affected by this AD, that it will take approximately 5
workhours per processor (1 workhour for installation and 4 workhours
for operational testing) to accomplish the required action, and that
the average labor rate is approximately $55 an hour. Based on these
figures, the total cost impact of this AD on U.S. operators is
estimated to be $548,625. These figures are based on the assumption
that none of the operators of the airplanes equipped with the affected
TCAS II processors have accomplished the actions specified in this AD.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ``ADDRESSES''.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends 14 CFR part
39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C.
106(g); and 14 CFR 11.89.
39.13 [Amended]
2. Section 39.13 is amended by adding the following new AD:
94-01-06 Rockwell International, Collins Air Transport Division:
Amendment 39-8788; Docket No. 93-CE-47-AD.
Applicability: Traffic Alert and Collision Avoidance System II
processors that are installed on, but not limited to the following
airplanes (all serial numbers), certificated in any category:
General Aviation Airplanes
Astra Model 1125 airplanes
BAC Model 1-11 airplanes
British Aerospace Model 125-800 airplanes
Beech Models C90A, B200, 300, 350, and 400A airplanes
Canadair Models CL-600, CL-600-2B16, CL-601, CL-601-1A, and CL-601-
3A airplanes
Learjet Models 31, 55, and 60 airplanes
Falcon Models 20, 50, 200, and 900 airplanes
Gulfstream Models G2 and G3 airplanes
British Aerospace Models HS-125-700 airplanes and
Sabreliner Model 60 airplanes
Air Transport Airplanes
Aerospatiale Models ATR-42 and ATR-72 airplanes
Airbus Industries Models A300B2, A-300B, and A-320 airplanes
British Aerospace Models ATP and 146 airplanes
Boeing Models 707, 727, 737, 747, 757, and 767 airplanes
British Aerospace/Aerospatiale Model Concorde SST airplanes
de Havilland DHC-7 and DHC-8 series airplanes
McDonnell Douglas Models DC-8, DC-9, and DC-10, MD-80, and MD-11
airplanes
Ilyushin Model IL-86 airplanes
Lockheed Model L-1011 airplanes
SAAB Models SF340A and SF340B airplanes and
Shorts Models SD3-60-300 airplanes.
Compliance: Prior to December 31, 1994, unless already
accomplished.
To prevent collisions or near misses caused by incompatibility
between the traffic alert and collision avoidance system (TCAS) II
processors and the current air traffic control system, accomplish
the following:
(a) Incorporate ``Change 6.04A Enhanced'' by accomplishing
either (1) or (2) below, as applicable:
(1) Remove any TCAS II processor with a part number (P/N) suffix
listed in the ``Existing P/N Suffix'' column of the table below, and
install a corresponding TCAS II processor with a P/N listed in the
``New
P/N Suffix'' column of the table below:
------------------------------------------------------------------------
New P/N
Existing P/N suffix suffix
------------------------------------------------------------------------
-001, -002, -011,.............................................. -020
-012, or -612..................................................
-102, -111, or -112............................................ -120
-014........................................................... -320
------------------------------------------------------------------------
Note 1: Collins SB No. 16, TTR-920-34-16, dated December 9,
1993, specifies procedures for incorporating the referenced New P/N
suffixes.
(2) Change the part number of the TCAS II unit on board the
aircraft by reprogramming the software with a data loader in order
to obtain the New P/N Suffix as specified in the following table:
------------------------------------------------------------------------
New P/N
Existing P/N suffix suffix
------------------------------------------------------------------------
-012........................................................... -020
-112........................................................... -120
-014........................................................... -320
------------------------------------------------------------------------
Note 2: Units with P/N suffix of -001, -002, -011, -102, -11,
and -612 cannot be reprogrammed on board the aircraft.
Note 3: Operators are encouraged to update the Airplane Flight
Manual (AFM) or AFM Supplement. Collins TTR-920 TCAS II Transmitter
Receiver Service Information Letter 2-93, titled ``CAS Logic Change
6.04A'' specifies the information needed for this update.
(b) Special flight permits may be issued in accordance with FAR
21.197 and 21.199 to operate the airplane to a location where the
requirements of this AD can be accomplished.
(c) An alternative method of compliance or adjustment of the
compliance times that provides an equivalent level of safety may be
approved by the Manager, Wichita Aircraft Certification Office, 1801
Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas
67209. The request shall be forwarded through an appropriate FAA
Maintenance Inspector, who may add comments and then send it to the
Manager, Wichita Aircraft Certification Office (ACO).
Note 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Wichita ACO.
(d) Service information that is referenced in this AD may be
obtained from Rockwell International/Collins Air Transport Division,
400 Collins Road, NE; Cedar Rapids, Iowa 52498. This information may
also be examined at the FAA, Central Region, Office of the Assistant
Chief Counsel, room 1558, 601 E. 12th Street, Kansas City, Missouri
64106.
(e) This amendment (39-8788) becomes effective on February 4,
1994.
Issued in Kansas City, Missouri, on December 29, 1993.
Gerald W. Pierce,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 93-32114 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 93-32113 Airworthiness Directives: Allied Signal Aerospace Company, Air Transport Avionics (Formerly Bendix/King Air Transport Avionics Division) Traffic Alert and Collision Avoidance System II Processors
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 509-511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32113]
[[Page Unknown]]
[Federal Register: January 5, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 93-CE-46-AD; Amendment 39-8787; AD 94-01-05]
Airworthiness Directives: Allied Signal Aerospace Company, Air
Transport Avionics (Formerly Bendix/King Air Transport Avionics
Division) Traffic Alert and Collision Avoidance System II Processors
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to certain Allied Signal Aerospace Company, Air Transport
Avionics (Allied Signal) Traffic Alert and Collision Avoidance System
(TCAS) II processors that are installed on aircraft. This action
requires replacing the existing TCAS II processor with a new processor
that incorporates updated computer logic. The development of candidate
enhancements to TCAS II logic that improves its utility and increases
its overall operational acceptance prompted the proposed action. The
actions specified by this AD are intended to prevent collisions or near
misses caused by incompatibility between the TCAS II processors and the
current air traffic control system.
EFFECTIVE DATE: February 4, 1994.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, room 1558, 601 E. 12th Street, Kansas City,
Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. A. E. Clark, Manager, Systems and
Equipment Branch, FAA, Atlanta Aircraft Certification Office, 1669
Phoenix Parkway, suite 210C, Atlanta, Georgia 30349; telephone (404)
991-3020; facsimile (404) 991-3606.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations to include an AD that applies to certain Allied
Signal TCAS II processors that are installed on aircraft was published
in the Federal Register on September 9, 1993 (58 FR 47405). The action
proposed to require (1) removing from service all processors that do
not have computer logic ``Change 6.04A'' incorporated; and (2)
mandatory incorporation of ``Change 6.04A'' into the TCAS II computer
system.
The affected TCAS II processors are not designed for a specific
aircraft type. These Allied Signal TCAS II processors are installed on,
but not limited to the following airplanes:
Aerospatiale ATR-42;
Airbus Industries A-340;
Beech Model 65-A90 airplanes;
Boeing 727-100, 727-200, 737-200, 737-300, 737-400, 737-
500, 747-100, 747-200, 747-300, 747-400, 747SP, 757-200, 767-200, and
767-300 Series airplanes;
de Havilland DHC-7 series and Model DHC-8-100 airplanes;
Fokker Models F.28 Mark 1000 and Mark 4000 airplanes;
General Dynamics Models Convair 340 and 440 airplanes;
Gulfstream Models G-159 and G-IV airplanes;
Lockheed L1011 series airplanes;
McDonnell Douglas--DC-8-60, DC-9-31, DC-9-51, DC-10-10 DC-
10-30, DC-13-30F, MD-11, and MD-80 series airplanes; and
Rockwell International NA-265-65 airplanes.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received from 33 different owners, operators,
manufacturers, and organizations.
All commenters express their concern of the FAA's compliance date
of December 30, 1993, especially since Allied Signal's service bulletin
will not be available until early 1994. The following summarizes the
compliance times that the commenters recommended:
18 recommended one year or less;
5 recommended longer than one year; and
10 recommended an extension without a proposed time.
The National Air Traffic Controllers Association and the Airline Pilots
Association both recommend an ``aggressive implementation'' of ``Change
6.04A''. The FAA has re-evaluated the December 30, 1993, compliance
time and has determined that the compliance time should be changed to
December 31, 1994. In addition, ``Change 6.04A'' has been upgraded to
``Change 6.04A Enhanced'', which eliminates unnecessary non-crossing
resolution advisories (RA's) included in ``Change 6.04A''. Allied
Signal has assured the FAA that (1) the upgrade to ``Change 6.04A
Enhanced'' is minor and will be incorporated in the logic change for
the TCAS II processor upgrades; and (2) this compliance time correlates
with their schedule for disseminating service information and kits
necessary to accomplish the incorporation of ``Change 6.04A Enhanced''.
The proposed AD has been changed to reflect the compliance time change
and logic change described above.
In addition, Allied Signal states that ``Change 6.04'', which is
FAA-certified and is currently in service, accomplishes the major
intent of ``Change 6.04A Enhanced'' and should be considered as an
acceptable interim version to allow the eventual upgrade to ``Change
6.04A Enhanced''. The FAA recognizes that ``Change 6.04'' incorporates
several of the features of ``Change 6.04A Enhanced''. However, the FAA
has determined that (1) ``Change 6.04'' does not provide an equivalent
level of safety to that of ``Change 6.04A Enhanced''; and (2) ``Change
6.04A Enhanced'' should be incorporated as a way to prevent collisions
or near misses caused by incompatibility between the TCAS II processors
and the current air traffic control system. Compliance time extension
consideration will be given on a case-by-case basis to airlines or
operators experiencing compliance difficulties that arise because of
fleet size. The proposed AD remains unchanged as a result of this
comment.
Allied Signal also lists several additional aircraft that these
TCAS II processor units are certified for installation. The FAA has
incorporated these into the proposed AD.
One commenter, who supports the implementation of ``Change 6.04A
Enhanced'', requests that the FAA issue a supplementary notice of
proposed rulemaking (NPRM) to propose installing this revised software
by June 30, 1995. This commenter states that significant differences
exist between ``Change 6.04A'' and ``Change 6.04A Enhanced''. The FAA
does not concur. Comments received in response to the proposed AD
reflect unanimous support for implementing ``Change 6.04A Enhanced''.
The FAA considers the logic change (which reduces non-crossing RA's) to
be minor. The intent is to correct the unsafe condition by installing
modified TCAS II computer units that incorporate updated logic. The FAA
has determined that the requirement to implement Version 6.04A
software, including the latest enhancement, will (1) correct the unsafe
condition; (2) maintain the same intent originally proposed without
altering the substance of the proposed rule; and (3) impose no
additional burden on the public than was previously proposed.
In addition, issuing a supplemental NPRM would necessitate (under
the provisions of the Administrative Procedures Act) reissuing the
notice, reopening the public comment period, considering any additional
comments received, and eventually issuing a final rule. The time
required for these procedures could take as long as four additional
months. In light of this, and in consideration of the amount of time
that has already elapsed since issuance of the original NPRM, the FAA
concludes that soliciting further public comment is not necessary and
that further delay of the final rule action is not appropriate.
Several commenters request that the FAA revise the economic impact
specified in the proposed AD to reflect costs associated with the
development, testing prior to certification, and certification of the
modified processor. These costs would be absorbed by suppliers,
installers, and airline operators. The FAA does not concur that the
economic impact statement include this information. The 1 workhour
necessary to accomplish the proposed action was provided to the FAA by
the TCAS II processor manufacturer based on the best data available to
date. This number represents the time required to install the revised
software. The cost analysis in AD rulemaking actions typically does not
include costs associated with development, testing prior to
certification, and certification of a modified processor. The proposed
action remains unchanged as a result of these comments.
After careful review of all available information including the
comments noted above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
the change in compliance time, the logic reference change, the
incorporation of known aircraft that these TCAS II processor units are
installed on, and minor editorial corrections. The FAA has determined
that these changes and corrections will not change the meaning of the
AD nor add any additional burden upon the public than was already
proposed.
The FAA estimates that 3,000 TCAS II processors in the U.S.
registry will be affected by this AD, that it will take approximately 1
workhour per processor to accomplish the required action, and that the
average labor rate is approximately $55 an hour. Based on these
figures, the total cost impact of this AD on U.S. operators is
estimated to be $165,000. These figures are based on the assumption
that none of the operators of the airplanes equipped with the affected
TCAS II processors have accomplished the actions specified in this AD.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends 14 CFR part
39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C.
106(g); and 14 CFR 11.89.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new AD:
93-01-05 Allied Signal Aerospace Company, Air Transport Avionics
(formerly Bendix/King Air Transport Avionics Division): Amendment
39-8787; Docket No. 93-CE-46-AD.
Applicability: Traffic Alert and Collision Avoidance System II
processors that are installed on, but not limited to the following
airplanes (all serial numbers), certificated in any category:
Aerospatiale ATR-42;
Airbus Industries A-340;
Beech Model 65-A90 airplanes;
Boeing 727-100, 727-200, 737-200, 737-300, 737-400, 737-500, 747-
100, 747-200, 747-300, 747-400, 747SP, 757-200, 767-200, and 767-300
Series airplanes;
de Havilland DHC-7 series and Model DHC-8-100 airplanes;
Fokker Models F.28 Mark 1000 and Mark 4000 airplanes;
General Dynamics Models Convair 340 and 440 airplanes;
Gulfstream Models G-159 and G-IV airplanes;
Lockheed L1011 series airplanes;
McDonnell Douglas--DC-8-60, DC-9-31, DC-9-51, DC-10-10 DC-10-30, DC-
13-30F, MD-11, and MD-80 series airplanes; and
Rockwell International NA-265-65 airplanes.
Compliance: Prior to December 31, 1994, unless already
accomplished.
To prevent collisions or near misses caused by incompatibility
between the traffic alert and collision avoidance system (TCAS) II
processors and the current air traffic control system, accomplish
the following:
(a) Remove any TCAS II processor with a part number (P/N) suffix
listed in the ``Existing P/N Suffix'' column of the table below, and
install a corresponding TCAS II processor with a P/N listed in the
``New P/N Suffix'' column of the table below:
------------------------------------------------------------------------
New P/N
Existing P/N suffix suffix
------------------------------------------------------------------------
-0102 or -0107................................................ -0108
-0203 or -0207................................................ -0208
-0301, -0302, or -0307........................................ -0308
-0402, -0405, or -0407........................................ -0408
-0504 or -0507................................................ -0508
-0606 or -0607................................................ -0608
-8101......................................................... -0108
------------------------------------------------------------------------
(b) Special flight permits may be issued in accordance with FAR
21.197 and 21.199 to operate the airplane to a location where the
requirements of this AD can be accomplished.
(c) An alternative method of compliance or adjustment of the
compliance times that provides an equivalent level of safety may be
approved by the Manager, Atlanta Aircraft Certification Office, 1669
Phoenix Parkway, Suite 210C, Atlanta, Georgia 30349. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Atlanta
Aircraft Certification Office (ACO).
Note: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
(d) Information that relates to the proposed AD may be examined
at the FAA, Central Region, Office of the Assistant Chief Counsel,
Room 1558, 601 E. 12th Street, Kansas City, Missouri 64106.
(e) This amendment (39-8787) becomes effective on February 4,
1994.
Issued in Kansas City, Missouri, on December 29, 1993.
Gerald W. Pierce,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 93-32113 Filed 12-30-93; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 93-32112 Misleading Containers; Nonfunctional Slack-Fill
[Federal Register Volume 59, Number 3 (Wednesday, January 5, 1994)]
[Rules and Regulations]
[Pages 536-537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 93-32112]
[[Page Unknown]]
[Federal Register: January 5, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 93N-0439]
21 CFR Part 100
Misleading Containers; Nonfunctional Slack-Fill
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is revoking a
regulation that implements section 403(d) of the Federal Food, Drug,
and Cosmetic Act (the act) by defining the circumstances in which a
food is misbranded, and that became final by operation of law on May
10, 1993. In addition, the agency is replacing this revoked regulation
with one that was included in a final rule that published in the
Federal Register of December 6, 1993 (58 FR 64123).
EFFECTIVE DATE: January 5, 1994.
FOR FURTHER INFORMATION CONTACT: Michelle A. Smith, Center for Food
Safety and Applied Nutrition (HFS-158), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-205-5099.
SUPPLEMENTARY INFORMATION: The Nutrition Labeling and Education Act of
1990 (the 1990 amendments) (Pub. L. 101-535) became law on November 8,
1990. Section 6 of the 1990 amendments established a procedure under
which FDA was given 30 months from the date of their enactment to
promulgate final rules implementing that section. Pursuant to that
procedure, FDA published a proposal on January 6, 1993 (58 FR 2957)
(the misleading container proposal), to amend its regulations by
implementing new Sec. 100.100 (21 CFR 100.100) to define the
circumstances in which a food is misbranded under section 403(d) of the
act (21 U.S.C. 343(d)).
Section 6(b)(3)(D)(ii) of the 1990 amendments provides that, if the
final rule to implement section 403(d) of the act is not promulgated
within 30 months of the date of passage of the 1990 amendments
(November 8, 1990), then the regulation proposed to implement that
section is to be considered a final regulation. Further, section 6
provides that States and their political subdivisions shall be
preempted with respect to section 403(d) of the act at that time.
The 30-month period established by the 1990 amendments expired on
May 9, 1993. Because FDA was unable to publish a final rule, in the
proceeding instituted in January 1993, by May 9, 1993, FDA published a
document in the Federal Register of May 12, 1993 (58 FR 27932) (the May
12, 1993, regulation), announcing that the regulation that FDA had
proposed in the misleading container proposal was considered to be a
final regulation by operation of law, effective May 10, 1993. This
document did not conclude the rulemaking begun in January, 1993,
however. Rather, the May 12, 1993, regulation was part of a separate
proceeding that is compelled under section 6(b)(3)(D)(ii) of the 1990
amendments (see H. Rept. 101-538, 101st Cong., 2d sess. 18 and 136
Congressional Record 5842 on the effect of this ``hammer'' provision).
In the Federal Register of December 6, 1993 (58 FR 64123), FDA
published a final rule on the circumstances in which containers are
misleading and thus would misbrand the food under section 403(d) of the
act. This final rule concluded the proceeding that the agency
instituted with the misleading container proposal. In the May 12, 1993,
document, FDA stated that when it issued such a final rule, it would
act to supersede the regulation that had become final by operation of
law. Thus, the agency proposed to withdraw the May 10, 1993, regulation
in the Federal Register of December 6, 1993 (58 FR 64208).
FDA explained that it was proposing to do so for two reasons.
First, the May 10, 1993, regulation did not have the benefit of public
comment. Thus, the regulation included in the December 6, 1993, final
rule (the December 6, 1993 regulation), which was the product of notice
and comment rulemaking, is better able than the May 10, 1993,
regulation to ensure adequate implementation of section 403(d) of the
act and to facilitate compliance. Second, FDA tentatively found that
because of the minor differences between the May 10, 1993, regulation
and the December 6, 1993, regulation, replacing the former with the
latter will not result in any hardship to manufacturers who have relied
on the May 10, 1993, regulation.
FDA gave interested persons 10 days to comment on its proposal to
withdraw the May 10, 1993, regulation. It also proposed to make any
final rule that issues in this proceeding effective on the date of its
publication in order to ensure that the supersession of the May 10,
1993, regulation proceeded as expeditiously as possible and with a
minimum of confusion or ambiguity.
The comment period on the proposal to withdraw the May 10, 1993,
regulation closed on December 17, 1993. FDA received no comments on
this proposed action. Therefore, FDA advises that the May 10, 1993,
regulation, which became final by operation of law, is withdrawn. FDA
advises that it is replacing that regulation with the December 6, 1993,
regulation.
Environmental Impact
In the December 6, 1993, proposal (58 FR 64208 at 64209), FDA
stated that it had determined under 21 CFR 25.24(a)(ii) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment, and that as a result,
neither an environmental assessment nor an environmental impact
statement is required. FDA received no comments on the conclusion;
therefore FDA restates it here.
Economic Impact
In the December 6, 1993, proposal (58 FR 64208 at 64209), FDA
incorporated the conclusion from the December 6, 1993, final rule on
slack-fill that the agency's action in replacing the May 10, 1993,
regulation would not have any significant economic effects. The agency
received no comments on this conclusion and consequently is restating
it here.
List of Subject in 21 CFR Part 100
Administrative practice and procedure, Food labeling, Foods.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
100 is amended as follows:
PART 100--GENERAL
1. The authority citation for 21 CFR part 100 continues to read as
follows:
Authority: Secs. 201, 301, 307, 402, 403, 409, 701 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 337, 342,
343, 348, 371).
Sec. 100.100 [Removed]
2. Subpart F consisting of Sec. 100.100 Misleading containers (as
published in the Federal Register of May 12, 1993 (58 FR 27932), is
removed.
3. For the convenience of the reader, FDA is republishing without
change new subpart F, consisting of Sec. 100.100 (as published in the
Federal Register of December 6, 1993 (58 FR 64136) to read as follows:
Subpart F--Misbranding for Reasons Other Than Labeling
Sec. 100.100 Misleading containers.
In accordance with section 403(d) of the act, a food shall be
deemed to be misbranded if its container is so made, formed, or filled
as to be misleading.
(a) A container that does not allow the consumer to fully view its
contents shall be considered to be filled as to be misleading if it
contains nonfunctional slack-fill. Slack-fill is the difference between
the actual capacity of a container and the volume of product contained
therein. Nonfunctional slack-fill is the empty space in a package that
is filled to less than its capacity for reasons other than:
(1) Protection of the contents of the package;
(2) The requirements of the machines used for enclosing the
contents in such package;
(3) Unavoidable product settling during shipping and handling;
(4) The need for the package to perform a specific function (e.g.,
where packaging plays a role in the preparation or consumption of a
food), where such function is inherent to the nature of the food and is
clearly communicated to consumers;
(5) The fact that the product consists of a food packaged in a
reusable container where the container is part of the presentation of
the food and has value which is both significant in proportion to the
value of the product and independent of its function to hold the food,
e.g., a gift product consisting of a food or foods combined with a
container that is intended for further use after the food is consumed;
or durable commemorative or promotional packages; or
(6) Inability to increase level of fill or to further reduce the
size of the package (e.g., where some minimum package size is necessary
to accommodate required food labeling (excluding any vignettes or other
nonmandatory designs or label information), discourage pilfering,
facilitate handling, or accommodate tamper-resistant devices).
(b) [Reserved]
Dated: December 30, 1993.
William K. Hubbard,
Acting Deputy Commissioner for Policy.
[FR Doc. 93-32112 Filed 12-30-93; 2:40 pm]
BILLING CODE 4160-01-F
Continua la tua ricerca in ChatGPT o Claude
Collega Omnilex per cercare nel corpus legale dal tuo assistente IA.