issue-1996-08-08•Federal Register final rules — 1996-08-08
Federal Register final rules — 1996-08-08
issue-1996-08-08Federal Register final rules — 1996-08-08Regulation
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FR Doc. 96-20292 Relocation of FIRMR Provisions Relating To GSA's Role in the Disposal of Excess and Exchange/Sale Information Technology (IT) Equipment
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41352-41355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20292]
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GENERAL SERVICES ADMINISTRATION
41 CFR Parts 101-43 and 101-46
[FPMR Temp. Reg. H-28]
RIN 3090-AG01
Relocation of FIRMR Provisions Relating To GSA's Role in the
Disposal of Excess and Exchange/Sale Information Technology (IT)
Equipment
AGENCY: Office of Policy Planning and Evaluation, GSA.
ACTION: Temporary regulation.
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SUMMARY: This regulation redesignates certain provisions of the Federal
Information Resources Management Regulation (FIRMR) to the Federal
Property Management Regulation
[[Page 41353]]
(FPMR). The regulation also makes a few changes to existing parts of
the FPMR to update old references to the FIRMR. This change is
necessary because the Information Technology Management Reform Act of
1996, effectively disestablishes the FIRMR. The referenced FIRMR
provisions that apply to the transfer and disposal of excess IT
equipment, will be maintained in the FPMR after August 7, 1996.
DATES: This rule is effective August 8, 1996. Comments are solicited
and are due: October 7, 1996.
Expiration Date: December 31, 1997.
ADDRESSES: Comments may be mailed to General Services Administration,
Office of Policy, Planning and Evaluation, Strategic IT Analysis
Division (MKS), 18th and F Streets, NW., Room 3224, Washington, DC
20405.
FOR FURTHER INFORMATION CONTACT: R. Stewart Randall, GSA, Office of
Policy, Planning and Evaluation, Strategic IT Analysis Division (MKS),
18th and F Streets, NW., Room 3224, Washington, DC 20405, telephone
FTS/Commercial (202) 501-3194 (v) or (202) 501-0657 (tdd), or Internet
([email protected]).
SUPPLEMENTARY INFORMATION: (1) The President signed the National
Defense Authorization Act (NDAA) For Fiscal Year 1996, Pub. L. 104-106,
on February 10, 1996. Included in the NDAA was Division E, the
Information Technology Management Reform Act of 1996. Section 5101 of
the Act repeals section 111 of the Federal Property and Administrative
Services Act of 1949, as amended (the Brooks Act) (40 U.S.C. 759). The
Brooks Act was the authority for many of the provisions in GSA's
Federal Information Resources Management Regulation; its repeal
effectively results in the disestablishment of the FIRMR. Any FIRMR
provisions not affected by the repeal of the Brooks Act, such as Part
201-23--Disposition, concerned with the utilization of excess IT
equipment, are being removed from the FIRMR and reestablished in the
Federal Property Management Regulation or other documents, as
appropriate.
(2) Most of the provisions now contained in part 101-43 of the FPMR
were moved almost verbatim from part 201-23 of the FIRMR except for
changes in terminology, e.g., Federal information processing to
information technology. Such change was needed to make the regulation
consistent with relevant legislation. A few provisions were added to
include essential information from FIRMR Bulletin C-2, which will be
discontinued when the FIRMR is disestablished in August 1996.
Additionally, a few changes were made to existing provisions of part of
101-43 and to part 101-46 to correct or remove out of date references
to FIRMR parts.
(3) GSA has determined that this rule is not a significant rule for
the purposes of Executive Order 12866 of September 30, 1993, because it
is not likely to result in any of the impacts noted in Executive Order
12866, affect the rights of specified individuals, or raise issues
arising from the policies of the Administration. GSA has based all
administrative decisions underlying this rule on adequate information
concerning the need for and consequences of this rule; has determined
that the potential benefits to society from this rule outweigh the
potential costs; has maximized the net benefits; and has chosen the
alternative approach involving the least net cost to society.
List of Subjects in 41 CFR Parts 101-43 and 101-46
Archives and records, Computer technology, Information technology,
Government procurement, Property management, Records management, and
Telecommunications.
GENERAL SERVICES ADMINISTRATION
Washington, DC 20405
FEDERAL PROPERTY MANAGEMENT REGULATIONS TEMPORARY REGULATION H-28
TO: Heads of Federal agencies
SUBJECT: Relocation of FIRMR provisions relating to GSA's role in
the disposal of excess and exchange/sale information technology (IT)
equipment
1. Purpose. This regulation moves certain provisions in 41 CFR
part 201-23 of the Federal Information Resources Management
Regulation (FIRMR) to 41 CFR Part 101-43.6 of the Federal Property
Management Regulations (FPMR).
2. Effective date. This regulation is effective on August 8,
1996.
3. Expiration date. This regulation expires on December 31,
1997, unless sooner superseded or canceled.
4. Background. The President signed the National Defense
Authorization Act (NDAA) For Fiscal Year 1996, Pub. L. 104-106, on
February 10, 1996. Included in the NDAA was Division E, the
Information Technology Management Reform Act of 1996. Section 5101
of the Act repeals section 111 of the Federal Property and
Administrative Services Act of 1949, as amended (the Brooks Act) (40
U.S.C. 759). The Brooks Act was the authority for many of the
provisions in GSA's FIRMR; its repeal effectively results in the
disestablishment of the FIRMR. Any FIRMR provisions not affected by
the repeal of the Brooks Act, such as Part 201-23--Disposition,
concerned with the disposal of excess IT equipment, are being
removed from the FIRMR and reestablished in the FPMR or other
documents, as appropriate. Most of the provisions now contained in
part 101-43 of the FPMR were moved almost verbatim from part 201-23
of the FIRMR except for changes in terms, i.e., Federal information
processing to information technology. That change was needed to make
the regulation consistent with relevant legislation. A few sentences
were added to include essential information from FIRMR Bulletin C-2,
which will be discontinued when the FIRMR is disestablished in
August 1996. Additionally, changes were made to existing provisions
of part 101-43 and to part 101-46 to correct or remove out of date
FPMR references to FIRMR parts.
5. Agency Comments. Comments concerning this regulation should
be submitted to the General Services Administration, Office of
Policy, Planning and Evaluation, Strategic IT Analysis Division
(MKS), 18th and F Streets, NW., Room 3224, Washington, DC 20405, no
later than October 7, 1996.
6. Explanation of changes.
For the reasons set forth in the preamble, 41 CFR Part 101 is
amended as follows:
PART 101-43--UTILIZATION OF PERSONAL PROPERTY
1. The authority citation for part 101-43 continues to read as
follows:
Authority: 40 U.S.C. 486(c) and 1412.
2. Section 101-43.000 is revised to read as follows:
Sec. 101-43.000 Scope of part.
This part prescribes the policies and methods governing the
economic and efficient utilization of personal property located within
and outside the United States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, Guam, the Commonwealth of
the Northern Mariana Islands, the Trust Territory of the Pacific
Islands, and the Virgin Islands. Section 101-43.6 prescribes the
specific policies and procedures governing the worldwide utilization of
excess information technology resources. Additional guidelines
regarding reutilization of hazardous materials are prescribed in part
101-2.
3. Subpart 101-43.6 is added to read as follows:
Subpart 101-43.6--Diposition of IT Excess Personal Property
101-43.600 Scope of subpart.
101-43.601 General.
101-43.602 Policies.
101-43.603 Procedures.
Subpart 101-43.6--Disposition of IT Excess Personal Property
Sec. 101-43.600 Scope of subpart.
This subpart prescribes policies and procedures to be followed by
agencies for disposing of Government-owned information technology (IT)
equipment
[[Page 41354]]
and software that is no longer needed for the purpose for which it was
acquired. Information technology means any equipment or interconnected
system or subsystem of equipment, that is used in the automatic
acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or
information by an executive agency. The term includes computers,
ancillary equipment, software, firmware and similar procedures,
services (including support services), and related resources.
Sec. 101-43.601 General.
(a) Government-owned IT equipment that is no longer needed for the
purpose for which it was acquired is either--
(1) Reassigned within the agency;
(2) Declared excess to the agency's needs and made available for
transfer to another agency;
(3) Exchanged or sold as part of a transaction to acquire
replacement IT equipment; or
(4) Declared surplus and made available for donation.
(b) IT software that is no longer needed for the purpose for which
it was acquired is either--
(1) Reassigned within the agency consistent with the limitations of
any applicable license; or
(2) Otherwise disposed of consistent with the limitations of any
applicable license.
Sec. 101-43.602 Policies.
Agencies shall--
(a) Use IT equipment or IT software that is available for
reassignment within the agency or by transfer from another agency when
such use is the most advantageous alternative to satisfy the agency's
requirements.
(b) Make available for reassignment within the agency IT equipment
that is not outdated and that is no longer needed for the purpose for
which it was acquired.
(c) Make available for interagency screening and transfer to
another agency, excess IT equipment that is not outdated and has an
original acquisition cost (OAC) per component of $1 million or more.
Outdated IT equipment means any IT equipment over six years old, based
on the initial commercial installation date of that model of equipment,
and that is no longer in current production. Interagency transfer of IT
equipment that is not outdated with an OAC per component of less than
$1 million, is permitted if the holding agency learns of a potential
user outside of the screening process. Agencies may interagency screen
and transfer excess IT equipment without GSA approval.
(d) Make available for surplus donation or subsequent sale, excess
IT equipment not exchanged, sold, reassigned or transferred.
(e) Consistent with the limitations of any applicable license--
(1) Make available for reassignment within the agency IT software
that is no longer needed for the purpose for which it was acquired;
(2) Make available for interagency transfer, excess IT software not
exchanged or sold, if the holding agency learns of a potential user
outside of the screening process (GSA does not require interagency
screening of IT software);
(3) For excess IT software not reassigned, transferred, exchanged,
or sold, either:
(i) Return it to the licensor, or
(ii) Destroy it after a duly authorized agency official determines
in writing that destruction is the most cost-effective disposal
approach.
Sec. 101-43.603 Procedures.
(a) Each agency head shall designate an agency point of contact for
managing the disposition of IT equipment and software. Each agency
shall submit the name, address, and phone number of this individual to
the General Services Administration/MKS, 18th & F Streets, NW.,
Washington, DC 20405. GSA will maintain a list of these coordinators on
the IT Policy Home Page. The URL is http: //www.itpolicy.gsa.gov.
(b) GSA will convene meetings with agency points of contacts
periodically to discuss emerging issues relating to the disposition of
excess IT resources.
(c) Agencies shall--
(1) Establish procedures for the reassignment of IT equipment and
software within the agency; and
(2) Obtain approval from the agency Chief Information Officer
before reassigning outdated IT equipment.
(d) Agencies shall offer excess IT equipment that is not outdated
and has an OAC per component of $1 million or more to other Federal
agencies by:
(1) Notifying other excess IT coordinators of the availability of
the IT equipment;
(2) Fully and accurately describing the IT excess equipment by
providing the following information:
(i) Condition code as defined in 41 CFR 101-43.4801;
(ii) Manufacturer's name;
(iii) Equipment type and model;
(iv) Description, including the supplier's nomenclature for the
component;
(v) List of elements removed from each component, if applicable;
(vi) Description of available software, engineering drawings,
manuals, etc; and
(vii) Contractor-held equipment, if applicable.
(3) Allowing agencies 15 days to assess their need for the excess
IT equipment.
(e) Agencies may conduct exchange/sale transactions of IT equipment
and software not transferred to another agency without GSA approval.
(Exchange/sale transactions for IT equipment may be initiated in
parallel with interagency screening, but screening of exchange/sale
transactions with an OAC per component of $1 million or more shall be
completed prior to concluding an exchange/sale transaction.) When an
agency determines that IT equipment will be replaced by exchanging or
selling it, the agency shall follow the contracting policies and
procedures in the Federal Acquisition Regulation (FAR) and the policies
and procedures on exchange/sale contained in 41 CFR part 101-46. IT
software transactions must be consistent with the limitations of any
applicable license.
(f) Agencies shall make available for surplus donation or
subsequent sale, in accordance with 41 CFR parts 101-44 and 101-45,
excess IT equipment not exchanged, sold, reassigned, or transferred.
(g) Agencies shall apply the policies and procedures of this
subpart 101-43.6 to IT equipment used by grantees and contractors when
IT equipment is--
(1) Acquired by the contractor or grantee under a contract or grant
and the terms vest title in the Government or the Government is
obligated or has the option to take over title;
(2) Furnished to the grantee or contractor by the Government
(Transfer of excess IT equipment to agency project grantees shall be
conducted in accordance with 41 CFR 101-43.314.); or
(3) Operated by the grantee or contractor as part of a Government-
owned or Government-controlled facility.
(h) Agencies may request GSA to review another agency's decision to
transfer excess IT equipment. Requests shall be sent to the General
Services Administration/MKS, 18th & F Streets, NW., Washington, DC
20405.
Sec. 101-43.4801 [Amended]
4. Section 101-43.4801 is amended by removing paragraph (c) and
redesignating existing paragraphs (d), (e) and (f) as paragraphs (c),
(d) and (e), respectively.
[[Page 41355]]
PART 101-46--UTILIZATION AND DISPOSAL OF PERSONAL PROPERTY PURSUANT
TO EXCHANGE/SALE AUTHORITY
5. The authority citation for part 101-46 continues to read as
follows:
Authority: 40 U.S.C. 1412; Sec. 205(c), 63 Stat. 390; (40 U.S.C.
486(c)).
Sec. 101-46.201-2 [Amended]
6. Section 101-46.201-2 is amended in paragraph (a) by removing the
last sentence.
Dated: July 31, 1996.
David J. Barram,
Acting Administator of General Services.
[FR Doc. 96-20292 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-25-P
Complete official Federal Register PDF
FR Doc. 96-20257 Fisheries of the Exclusive Economic Zone Off Alaska; Atka Mackerel in the Central Aleutian District
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Page 41363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20257]
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DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960129019-6019-01; I.D. 080296B]
Fisheries of the Exclusive Economic Zone Off Alaska; Atka
Mackerel in the Central Aleutian District
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS is closing the directed fishery for Atka mackerel in the
Central Aleutian District and Bering Sea subarea of the Aleutian
Islands management area (BSAI). This action is necessary to prevent
exceeding the total allowable catch of Atka mackerel in this area.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), August 4, 1996,
until 12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR part 679 and Subpart H of 50 CFR part 600.
The total allowable catch of Atka mackerel for the Central Aleutian
District was established by the Final 1996 Harvest Specifications of
Groundfish (61 FR 4311, February 5, 1996) for the BSAI and subsequent
reserve apportionment (61 FR 16085, April 11, 1996) as 33,600 metric
tons (mt). The directed fishery for Atka mackerel in the Central
Aleutian District was closed under Sec. 679.20(d)(iii) on April 14,
1996, (61 FR 16883, April 18, 1996) and reopened on July 1, 1996 (62 FR
33046, June 26, 1996). The fishery was again closed on July 13, 1996
(61 FR 36306, July 10, 1996) and reopened on July 31, 1996 (61 FR
40353).
The Director, Alaska Region, NMFS (Regional Director), has
determined, in accordance with Sec. 679.20(d)(i), that the Atka
mackerel total allowable catch in the Central Aleutian District subarea
soon will be reached. Therefore, the Regional Director has established
a directed fishing allowance of 33,500 mt after determining that 100 mt
will be taken as incidental catch in directed fishing for others
species in the Central Aleutian District. Consequently NMFS is
prohibiting directed fishing for Atka mackerel in the Central Aleutian
District.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 679.29(e).
Classification
This action is taken under Sec. 679.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 2, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-20257 Filed 8-5-96; 4:14 pm]
BILLING CODE 3510-22-M
Complete official Federal Register PDF
FR Doc. 96-20256 Fisheries of the Exclusive Economic Zone Off Alaska
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41363-41364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20256]
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DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 080596A]
Fisheries of the Exclusive Economic Zone Off Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS is prohibiting directed fishing for species that comprise
the
[[Page 41364]]
shallow-water species fishery by vessels using trawl gear in the Gulf
of Alaska (GOA), except for vessels fishing for pollock using pelagic
trawl gear in those portions of the GOA open to directed fishing for
pollock. This action is necessary because the third seasonal bycatch
allowance of Pacific halibut apportioned to the shallow-water species
fishery in the GOA has been caught.
EFFECTIVE DATE: 1200 hrs, Alaska local time (A.l.t.), August 5, 1996,
until 2400 hrs, A.l.t., October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
The shallow-water species fishery was apportioned 200 metric tons
of Pacific halibut prohibited species catch for the third season, the
period July 1, 1996, through September 30, 1996 (61 FR 4304, February
5, 1996). (See Sec. 679.21(d).)
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 679.21(d)(7)(i), that vessels participating in the trawl
shallow-water species fishery in the GOA have caught the third seasonal
bycatch allowance of Pacific halibut apportioned to that fishery.
Therefore, NMFS is prohibiting directed fishing for each species and
species group that comprise the shallow-water species fishery by
vessels using trawl gear in the GOA, except for vessels fishing for
pollock using pelagic trawl gear in those portions of the GOA open to
directed fishing for pollock. The species and species groups that
comprise the shallow-water species fishery are: Pollock, Pacific cod,
shallow-water flatfish, flathead sole, Atka mackerel, and ``other
species.''
Maximum retainable bycatch amounts for applicable gear types may be
found at Sec. 679.20(e).
Classification
This action is taken under 50 CFR 679.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 5, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-20256 Filed 8-5-96; 4:14 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-20251 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41338-41342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20251]
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ENVIRONMENT PROTECTION AGENCY
40 CFR Part 52
[IL122-1a; FRL-5530-5]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
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SUMMARY: On November 30, 1994, the Illinois Environmental Protection
Agency (IEPA) submitted an adopted rule and supporting information for
the control of volatile organic liquid (VOL) storage operations for the
Chicago and East St. Louis ozone nonattainment areas as a requested
State Implementation Plan (SIP) revision. This rule is part of the
State's control measures for volatile organic compound (VOC) emissions,
for the Chicago and East St. Louis ozone nonattainment areas, and is
intended to satisfy part of the requirements of section 182(b)(2) of
the Clean Air Act (Act), as amended in 1990. VOCs are air pollutants
which combine on hot summer days to form ground-level ozone, commonly
known as smog. Ozone pollution is of particular concern because of its
harmful effects upon lung tissue and breathing
[[Page 41339]]
passages. This regulation requires a reasonably available control
technology (RACT) level of control for VOL storage operations, as
required by the amended Act. In this document, USEPA is approving
Illinois' rule. The rationale for the approval is set forth in this
final rule; additional information is available at the address
indicated below. Elsewhere in this Federal Register USEPA is proposing
approval and soliciting public comment on this requested revision to
the SIP. If adverse comments are received on this direct final rule by
September 9, 1996, USEPA will withdraw the final rule and address the
comments received in a new final rule. Unless this final rule is
withdrawn, no further rulemaking will occur on this requested SIP
revision.
DATES: This final rule is effective October 7, 1996 unless adverse
comments are received by September 9, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments can be mailed to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), Air and
Radiation Division, U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois, 60604.
Copies of the SIP revision request are available for inspection at
the following address: (It is recommended that you telephone Steven
Rosenthal at (312) 886-6052, before visiting the Region 5 office.) U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Air Programs Branch
(AR-18J) (312) 886-6052.
SUPPLEMENTARY INFORMATION:
Background
Under the Act, as amended in 1977, ozone nonattainment areas were
required to adopt RACT for sources of VOC emissions. USEPA issued three
sets of control technique guidelines (CTGs) documents, establishing a
``presumptive norm'' for RACT for various categories of VOC sources.
The three sets of CTGs were (1) Group I--issued before January 1978 (15
CTGs); (2) Group II--issued in 1978 (9 CTGs); and (3) Group III--issued
in the early 1980's (5 CTGs). Those sources not covered by a CTG were
called non-CTG sources. USEPA determined that an area's SIP-approved
attainment date established which RACT rules the area needed to adopt
and implement. In those areas where the State sought an extension of
the attainment date under section 172(a)(2) to as late as December 31,
1987, RACT was required for all CTG sources and for all major (100 tons
per year or more of VOC emissions under the pre-amended Act) non-CTG
sources. Illinois sought and received such an extension for the Chicago
area.
Section 182(b)(2) of the Act, as amended in 1990, requires States
to adopt RACT rules for all areas designated nonattainment for ozone
and classified as moderate or above. There are three parts to the
section 182(b)(2) RACT requirement: (1) RACT for sources covered by an
existing CTG--i.e., a CTG issued prior to the enactment of the amended
Act of 1990; (2) RACT for sources covered by a post-enactment CTG; and
(3) all major sources not covered by a CTG. These section 182(b)(2)
RACT requirements are referred to as the RACT ``catch-up''
requirements.
Section 183 of the amended Act requires USEPA to issue CTGs for 13
source categories by November 15, 1993. A CTG was published by this
date for two source categories--Synthetic Organic Chemical
Manufacturing Industry (SOCMI) Reactors and Distillation; however, the
CTGs for the remaining source categories have not been completed. The
amended Act requires States to submit rules for sources covered by a
post-enactment CTG in accordance with a schedule specified in a CTG
document. Accordingly, States must submit a RACT rule for SOCMI reactor
processes and distillation operations before March 23, 1994.
The USEPA created a CTG document as Appendix E to the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990. (57 FR 18070, 18077, April 28, 1992). In Appendix
E, USEPA interpreted the Act to allow a State to submit a non-CTG rule
by November 15, 1992, or to defer submittal of a RACT rule for sources
that the State anticipated would be covered by a post-enactment CTG,
based on the list of CTGs USEPA expected to issue to meet the
requirement in section 183. Appendix E states that if USEPA fails to
issue a CTG by November 15, 1993 (which it did for 11 source
categories), the responsibility shifts to the State to submit a non-CTG
RACT rule for those sources by November 15, 1994. In accordance with
section 182(b)(2), implementation of that RACT rule should occur by May
31, 1995.
On November 30, 1994, IEPA submitted adopted VOC rules and
supporting information for the control of VOL storage operations in the
Chicago ozone severe nonattainment area and the Metro-East (East St.
Louis) ozone moderate nonattainment area. These rules were intended to
satisfy, in part, the major non-CTG control requirements of section
182(b)(2). USEPA has not issued a CTG for this source category.
However, USEPA did prepare a January 1994 ``Alternative Control
Techniques Document (ACT): Volatile Organic Liquid Storage in Floating
and Fixed Roof Tanks.'' The purpose of an ACT document is to provide
information on alternative control techniques for the specified source
category. As such, this ACT document is the chief basis for RACT for
the control of VOL storage operations.
Evaluation of Rules
Subpart B: Definitions
Illinois has added the following two definitions to Subpart B:
``Fill,'' and ``Maximum True Vapor Pressure.'' These definitions
accurately describe the specified terms and are necessary for
implementation of the VOL storage rules. These definitions are,
therefore, approvable.
Subpart B: Organic Emissions From Storage and Loading Operations
Subpart B of Part 218 (for the Chicago area) and Part 219 (for the
East St. Louis area) has been amended with rules covering VOL storage
operations. For the reasons discussed below, USEPA has reviewed these
rules and determined that they are consistent with the ACT, and,
therefore, approvable.
Section 218/219.119 Applicability for VOL--This section establishes
which VOL storage operations are subject to the control requirements in
Section 218/219.120. VOL storage operations with a maximum true vapor
pressure of 0.5 pounds per square inch absolute (psia) or greater in
any storage tank of 40,000 gallons capacity or greater are subject to
these control requirements. These control requirements (in 218/219.120)
do not apply to vessels storing petroleum liquids, which are regulated
in other sections.
In a July 28, 1995, letter from Bharat Mathur, Chief, Bureau of Air
for IEPA, to Stephen Rothblatt, Chief, Air Programs Branch for Region
5, USEPA clarifies that ``* * * for purposes of the rule for Batch
Operations, otherwise applicable unit operations within a batch process
remain subject to Subpart V (and not B), even if the unit operation
performs what could be considered storage as some part of its
operation. More specifically, those unit operations which form the
batch process train are covered by Subpart V.'' Section 218/219.120
Control Requirements for Storage Containers--(a) Every owner or
[[Page 41340]]
operator storing VOL in a vessel of 40,000 gallons or greater with a
maximum true pressure equal to 0.75 psia, or greater, but less than
11.1 psia, is required to reduce its storage tank emissions in
accordance with one of the following.
218/219.120(a)(1) Each fixed roof tank must be equipped with an
internal floating roof, or be equipped with a vapor control system that
meets the specifications in subsection (a)(4), that rests or floats on
the liquid surface. Each internal floating roof must be equipped with a
foam or liquid-filled seal mounted in contact with the liquid (liquid-
mounted seal); two seals mounted one above the other so that each forms
a continuous closure that completely covers the space between the wall
of the storage vessel and the edge of the internal floating roof; or a
mechanical shoe seal. Compliance with the control requirements in 218/
219.120(a)(1) (for fixed roof tanks lacking floating roofs as of the
date of rule adoption-October 20, 1994) is required by March 15, 1996.
Compliance with the control requirements in 218/219.120(a)(2) for
internal floating roof tanks is required by the next scheduled tank
cleaning or before March 15, 2004, whichever comes first.
Section 218/219.120(a)(3) requires that external floating roof
tanks be equipped with a closure device between the wall of the storage
vessel and the roof edge. The closure device is to consist of a primary
seal and a secondary seal. The primary seal is required to completely
cover the annular space between the edge of the floating roof and tank
wall. The secondary seal is required to completely cover the annular
space between the external floating roof and the wall of the storage
vessel in a generally continuous fashion. Compliance with the control
requirements in 218/219.120(a)(3) is required after the next scheduled
tank cleaning but no later than March 15, 2004.
218/219.120(a)(4) provides the closed vent system and control
device specifications. The closed vent system must be designed to
collect all VOC vapors and gases discharged from the storage vessel and
operated with no detectable emissions as indicated by an instrument
reading of less than 500 parts per million above background and visual
inspections. A control device must be designed and operated to reduce
inlet VOC emissions by 95 percent or greater.
Sections 218/219.120(a)(5) allows an alternative emission control
plan equivalent to the requirements of (a)(1), (a)(2), (a)(3), or
(a)(4) that has been approved by IEPA and USEPA in a federally
enforceable permit or as a SIP revision.
On December 17, 1992, (57 FR 59928) USEPA approved Illinois'
existing Operating Permit program as satisfying USEPA's June 28, 1989,
(54 FR 27274) five criteria for establishing Federally Enforceable
State Operating Permit programs. One of the criteria is that permits
may not be issued that make less stringent any SIP limitation or
requirement. USEPA's December 17, 1992, notice states that operating
permits issued by Illinois in conformance with the five criteria
(including the prohibition against States issuing operating permit
limits less stringent than the regulations in the SIP) discussed in
this document will be considered federally enforceable. This document
also states Illinois' operating permit program allows USEPA to deem an
operating permit not ``federally enforceable.''
On July 21, 1992, USEPA promulgated a new part 70 of chapter 1 of
title 40 of the Code of Federal Regulations. See 57 FR 32250. This new
part 70 contains regulations, required by Title V of the Act, that
require and specify the minimum elements of State operating permit
programs. Part 70 is therefore an appropriate basis for evaluating the
acceptability of Illinois' use of federally enforceable State operating
permits (FESOP) and Title V permits in its VOC rules.
Section 70.6(a)(1)(iii) states:
If an applicable implementation plan allows a determination of
an alternative emission limit at a part 70 source, equivalent to
that contained in the plan, to be made in the permit issuance,
renewal, or significant modification process, and the State elects
to use such process, any permit containing such equivalency
determination shall contain provisions to ensure that any resulting
emissions limit has been demonstrated to be quantifiable,
accountable, enforceable, and based on replicable procedures.
USEPA has therefore determined that this alternative control
requirement, in subsections 218/219.120(a)(5), is approvable because it
requires that any alternative must be equivalent to the underlying SIP
requirements (consistent with part 70) and USEPA can deem a permit
containing an alternative control plan to be not ``federally
enforceable'' if it determines that a permit is not quantifiable or
practically enforceable or a permit relaxes the SIP. The underlying
SIP, to which any equivalent alternative control plan must be compared,
has federally enforceable control requirements, test methods, and
recordkeeping and reporting requirements. In addition, IEPA's September
13, 1995, letter contains the specific procedures for USEPA review and
approval.
Section 218/219.120(b) requires 40,000 gallon or greater storage
vessels which contain VOL that has a maximum true vapor pressure
greater than or equal to 11.1 psia to be equipped with a closed vent
system and control device as specified in (a)(4).
Section 218/219.125 Compliance Dates--Fixed roof tanks and closed
vent system and control device equipped tanks are required to comply
with control device requirements by March 15, 1996. Internal and
external floating roof tanks are required to comply with the control
requirements during the next scheduled tank cleaning or by March 15,
2004, whichever comes first.
Section 218/219.127 Testing VOL Operations--Subsection (a) requires
visual inspections for the internal floating roof, the primary seal and
the secondary seal. Subsection (b) requires that for external floating
roof tanks the gap areas and maximum gap widths between the primary
seal and the wall of the storage vessel and between the secondary seal
and the wall of the storage vessel be determined. Testing requirements
for closed vent systems and control devices are contained in 40 CFR
60.485(c) and the general test methods in 218/219.105(d) and (f),
respectively.
218/219.128 Monitoring VOL Operations--This section deals primarily
with determining the maximum true vapor pressure of the VOL.
Section 218/219.129 Recordkeeping and Reporting for VOL
Operations--Subsection 129(a) specifies recordkeeping and reporting
requirements for fixed roof and internal floating roof tanks. This
subsection requires records of each inspection that is performed.
Reporting is required of any defects found and subsequent repairs made.
Subsection 120(b) specifies recordkeeping and reporting requirements
for external floating roof tanks. Records of seal gap measurements are
required as are reports of these measurements. Reports are also
required which identify any seal gap measurements that exceed gap
limitations and the subsequent date of repair. Subsection (e) requires
that records be maintained of the storage vessel dimensions and an
analysis of the storage vessel capacity. Subsection (f) requires that a
record of the VOL storage, the period of storage, and the maximum true
vapor pressure of the VOL during the respective storage period be
maintained.
[[Page 41341]]
Final Rulemaking Action
Illinois' rules for VOL storage operations are consistent with
USEPA's guidance in the ACT for this category and are, therefore,
considered to constitute RACT. USEPA, therefore, approves these rules
in Part 218 (for the Chicago ozone nonattainment area), in Part 219
(for the East St. Louis ozone nonattainment area) and the related
definitions in Part 211, as submitted on November 30, 1994.
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. The action will become
effective on October 7, 1996. However, if we receive adverse comments
by September 9, 1996, then USEPA will publish a document that withdraws
this final action. If no request for a public hearing has been
received, USEPA will address the public comments received in a new
final rule on the requested SIP revision based on the proposed rule
located in the proposed rules section of this Federal Register. If a
public hearing is requested, USEPA will publish a document announcing a
public hearing and reopening the public comment period until 30 days
after the public hearing. At the conclusion of this additional public
comment period, USEPA will publish a final rule responding to the
public comments received and announcing final action.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
USEPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the USEPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the USEPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The USEPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the USEPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
This final rule only approves the incorporation of existing State
rules into the SIP and imposes no additional requirements. This rule is
estimated to result in the expenditure by State, local, and tribal
governments or the private sector of less than $100 million in any one
year. USEPA, therefore, has not prepared a budgetary impact statement
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Furthermore, because small
governments will not be significantly or uniquely affected by this
rule, the USEPA is not required to develop a plan with regard to small
governments. This rule only approves the incorporation of existing
state rules into the SIP. It imposes no additional requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids USEPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. USEPA, 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 7, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Dated: June 11, 1996.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart O--Illinois
2. Section 52.720 is amended by adding paragraph (c)(128) to read
as follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(128) On November 30, 1994, the State submitted volatile organic
compound control regulations for incorporation in the Illinois State
Implementation Plan for ozone.
[[Page 41342]]
(i) Incorporation by reference. (A) Title 35: Environmental
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control
Board, Subchapter c: Emission Standards and Limitations for Stationary
Sources, Part 211: Definitions and General Provisions, Subpart B:
Definitions, Sections 211.2300, 211.3695. These sections were adopted
on October 20, 1994, Amended at 18 Ill. Reg. 16929, and effective
November 15, 1994.
(B) Title 35: Environmental Protection, Subtitle B: Air Pollution,
Chapter I: Pollution Control Board, Subchapter c: Emission Standards
and Limitations for Stationary Sources, Part 218: Organic Material
Emission Standards and Limitations for the Chicago Area, Subpart B:
218.119, 218.120, 218.125, 218.127, 218.128, 218.129. These sections
were adopted on October 20, 1994, Amended at 18 Ill. Reg. 16950, and
effective November 15, 1994.
(C) Title 35: Environmental Protection, Subtitle B: Air Pollution,
Chapter I: Pollution Control Board, Subchapter c: Emission Standards
and Limitations for Stationary Sources, Part 219: Organic Material
Emission Standards and Limitations for the Metro East Area, Subpart B:
219.119, 219.120, 219.125, 219.127, 219.128, 219.129. These sections
were adopted on October 20, 1994, Amended at 18 Ill. Reg. 16980, and
effective November 15, 1994.
* * * * *
[FR Doc. 96-20251 Filed 8-7-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20248 Delaware; Final Authorization of State Hazardous Waste Management Program Revisions
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41345-41352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20248]
-----------------------------------------------------------------------
ENVIRONMENT PROTECTION AGENCY
40 CFR Parts 271 and 272
[FRL-5547-5]
Delaware; Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency.
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: Delaware has applied for final authorization of revisions to
its hazardous waste program under the Resource Conservation and
Recovery Act (RCRA). The Environmental Protection Agency (EPA) has
reviewed Delaware's application and has made a decision, subject to
public review and comment, that Delaware's hazardous waste program
revisions satisfy all of the requirements necessary to qualify for
final authorization. Thus, EPA intends to approve Delaware's hazardous
waste program revisions. Delaware's application for program revision is
available for public review and comment.
DATES: Final authorization of Delaware's program revisions shall be
effective October 7, 1996, unless EPA publishes a prior Federal
Register notice withdrawing this immediate final rule. All comments on
Delaware's program revision application must be received by the close
of business September 9, 1996.
ADDRESSES: Copies of Delaware's program revision application are
available from 8 a.m. to 4:30 p.m., Monday through Friday, at the
following addresses for inspection and copying: Delaware Department of
Natural Resources and Environmental Control, 89 Kings Highway, P.O. Box
1401, Dover, DE 19903, and USEPA, Region 3, Library, 3rd Floor, 841
Chestnut Street, Philadelphia, PA 19107, phone (215) 566-5000. Written
comments should be sent to Marie Owens, Mail Code: 3HW60, State
Programs Branch, Office of RCRA Programs, USEPA Region 3, 841 Chestnut
Street, Philadelphia, PA 19107, phone (215) 566-3384.
FOR FURTHER INFORMATION CONTACT: Marie Owens, Mail Code: 3HW60, State
Programs Branch, Office of RCRA Programs, USEPA Region 3, 841 Chestnut
Street, Philadelphia, PA 19107, phone (215) 566-3384.
SUPPLEMENTARY INFORMATION:
A. Background
States with final authorization under Section 3006(b) of the
Resource Conservation and Recovery Act (``RCRA'' or ``the Act''), 42
U.S.C. 6929(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. Program revision
may be necessary when the controlling Federal or State statutory or
regulatory authority is modified or supplemented. Certain program
revisions were necessitated by the provisions of the Hazardous and
Solid Waste Amendments of 1984 (Public Law 98-616, November 8, 1984),
hereinafter ``HSWA''.
B. Delaware
Delaware received final authorization effective June 22, 1984 (see
Federal Register 23837, June 8, 1984) to implement its hazardous waste
management program in lieu of the Federal program. On January 31, 1986
(see 51 FR 3954), the authorized Delaware program was incorporated by
reference into the Code of Federal Regulations (CFR). On April 9, 1996,
Delaware submitted a program revision application for additional
approval in accordance with the requirements of 40
[[Page 41346]]
CFR 271.21 (Procedures for Revision of State Programs).
EPA has reviewed Delaware's application, and has made an immediate
final decision that Delaware's hazardous waste program revisions
satisfy all of the requirements necessary to qualify for final
authorization. Consequently, EPA intends to grant final authorization
for the additional program modifications. The public may submit written
comments on EPA's immediate final decision until September 9, 1996.
Copies of Delaware's application for program revision are available for
inspection and copying at the locations indicated in the Addresses
section of this notice.
Approval of Delaware's program revision shall become effective in
60 calendar days unless an adverse comment pertaining to the State's
revision discussed in this notice is received by the end of the comment
period. If an adverse comment is received, EPA will publish either (1)
a withdrawal of the immediate final decision or (2) a notice containing
a response to comments which either affirms that the immediate final
decision takes effect or reverses the decision.
Delaware's program revision application includes State regulatory
changes that are at least equivalent to the rules promulgated in the
Federal RCRA implementing regulations in 40 CFR Parts 124, 260 through
266, and 270 that were published in the Federal Register through June
30, 1991. This proposed approval includes the provisions that are
listed in the chart below. This chart also lists the State analogs that
are being recognized as equivalent to the appropriate Federal
requirements.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Checklist Federal requirement FR reference FR date Delaware authority
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-HSWA Requirements prior to Non-HSWA Cluster I
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................. Biennial Report.......... 48 FR 3977 1/28/83...................... 7 Delaware Code Annotated (Del.
C.), 1991 Replacement, Secs.
6305(a), 6304; Delaware
Regulations Governing Hazardous
Waste (DRGHW), 1992, Secs.
262.40(b), 262.41, 264.75, 264.76,
264.77, and 265.75, 265.76,
265.77, 265.94(a)(2), (b)(2),
122.30(k)(9) as adopted 11/19/80
and amended 3/21/84.
2................. Permit Rules; Settlement 48 FR 39611 9/1/83....................... 7 Del. C. Secs. 6305(a), 6307;
Agreement. DRGHW Secs. 122.11(a)(1), (a)(3),
(d), 122.30(d) as adopted 3/21/84.
3................. Interim Status Standards; 48 FR 52718 11/22/83..................... 7 Del. C. Secs. 6305(a), 6307(g);
Applicability. DRGHW Sec. 265.1(b) as adopted 11/
21/85.
4................. Chlorinated Aliphatic 49 FR 5308 2/10/84...................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Hydrocarbon Listing Sec. 261.31, Part 261 Appendix
(F024). VII, Part 261 Appendix VIII as
adopted 2/5/85.
5................. National Uniform Manifest 49 FR 10490 3/20/84...................... 7 Del. C. Secs. 6305(a), 6306;
DRGHW Secs. 260.10, 262.20(a),
262.21(a), (b), 262.50(b)(3),
(b)(4), 262.50(d), (e), Part 262
Appendix II as adopted 9/20/84.
7................. Part 261--Warfarin and 49 FR 19922 5/10/84...................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Zinc Phosphide Listing. Sec. 261.33(e), (f) as adopted 8/
29/88.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-HSWA Cluster I
--------------------------------------------------------------------------------------------------------------------------------------------------------
AI................ State Availability of HSWA Sec. 3006(f) 11/8/84...................... 7 Del. C. Sec. 6304(c); 29 Del. C.
Information. Sec. 10005(b); DRGHW Hazardous
Waste Disclosure Regulations as
adopted 8/29/88.
9................. Household Waste.......... 49 FR 44978 11/13/84..................... 7 Del. C. Sec. 6305(a); DRGHW Sec.
261.4(b)(1) as adopted 5/8/86.
10................ Interim Status Standards; 49 FR 46094 11/21/84..................... 7 Del. C. Secs. 6305(a), 6307(g);
Applicability. DRGHW Sec. 265.1(a), (b) as
adopted 11/21/85.
11................ Corrections to Test 49 FR 47390 12/4/84...................... 7 Del. C. Sec. 6305(a), Sec.
Methods Manual. 6306(d); DRGHW Secs. 260.11(a),
122.6(a) as adopted 5/8/86.
12................ Satellite Accumulation... 49 FR 49568 12/20/84..................... 7 Del. C. Sec. 6305(a) and Sec.
6306; DRGHW Sec. 262.34(c) as
adopted 8/29/88.
13................ Definition of Solid Waste 50 FR 614, 50 FR 14216, 50 FR 33541 11/4/85, 4/11/85, 8/20/85.... 7 Del. C. Sec. 6305(a); DRGHW
Secs. 260.10, 260.30, 260.31,
260.32, 260.33, 260.40, 260.41,
261.1(b), 261.1(c), 261.2,
261.2(a), (b), (c), (c)(2)-(4),
(d)-(f), 261.3(c)(2), 261.4(a)(6),
261.4(a)(7), 261.5(c), 261.6,
261.31, 261.33, 264.1(f)(2),
264.340(a), 265.1(c)(6),
265.340(a), 265.370, 266.20,
266.21, 266.22, 266.23, 266.30,
266.32, 266.33, 266.34, 266.35(c),
266.36, 266.70, 266.80 as adopted
11/21/85 and 8/29/88.
15................ Interim Status Standards 50 FR 16044 4/23/85...................... 7 Del. C. Secs. 6305(a) and 6307;
for Treatment, Storage, DRGHW Secs. 265.222, 265.229,
and Disposal Facilities. 265.272(a), 265.310(a)&(b),
265.315 as adopted 11/21/85.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 41347]]
Non-HSWA Cluster II
--------------------------------------------------------------------------------------------------------------------------------------------------------
26................ Listing of Spent Pickle 51 FR 19320 5/28/86...................... 7 Del. C. Sec. 6305(a); DRGHW Sec.
Liquor (KO62). 261.32.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-HSWA Cluster III
--------------------------------------------------------------------------------------------------------------------------------------------------------
MW................ Radioactive Mixed Waste.. 51 FR 24504 7/3/86....................... 7 Del. C. Secs. 6302, 6305(a);
DRGHW Sec. 261.3.
27................ Liability Coverage; 51 FR 25350 7/11/86...................... 7 Del. C. Sec. 6305(a); DRGHW
Corporate Guarantee. Secs. 264.147(a)(2), (a)(3),
(b)(2), (b)(3), (f), 264.151(g),
(h)(2), 265.147(a)(2), (a)(3),
(b)(2), (b)(3), 265.147(f) as
adopted 8/29/88.
28N............... Standards for Hazardous 51 FR 25422, 51 FR 29430 7/14/86, 8/15/86............. 7 Del. C. Secs. 6304, 6305(a)(4),
Waste Storage and 6306, 6307; DRGHW Secs. 260.10,
Treatment Tank Systems. 261.4(a)(8), 262.34(a)(1), (d)(2),
(d)(3), 264.15(b)(4),
264.73(b)(6), 264.110(b)(3),
264.140(b)(3), 264.190, 264.191,
264.192, 264.193(a)-(f),
264.193(g), 264.193(g)(3), (g)(4),
264.193(h), 264.193(i), 264.194,
264.195, 264.196, 264.197,
264.198, 264.199, 265.13(b)(6),
265.15(b)(4), 265.73(b)(3),
(b)(6), 265.110(b)(2), 265.140(b),
265.190, 265.191, 265.192,
265.193, 265.194, 265.195,
265.196, 265.197, 265.198,
265.199, 265.200, 265.201,
122.14(b)(5), (b)(13), 122.16,
122.72(e) as adopted 8/10/90.
29................ Correction to Listing of 51 FR 28296 8/6/86....................... See Delaware's authorities listed
Commercial Chemical under 53 FR 13382, 4/22/88 (CL
Products and Appendix 46).
VIII Constituents.
35................ Revised Manual SW-846; 52 FR 8072 3/16/87...................... 7 Del. C. Secs. 6305(a), 6306(d);
Amended Incorporation by DRGHW Secs. 260.11, 122.6(a) as
Reference. adopted 8/29/88.
36................ Closure/Post-Closure Care 52 FR 8704 3/19/87...................... 7 Del. C. Secs. 6305(a) and 6307;
for Interim Status DRGHW Secs. 265.228 as adopted 8/
Surface Impoundments. 29/88.
37................ Definition of Solid 52 FR 21306 6/5/87....................... 7 Del. C. Sec. 6305(a); DRGHW
Waste; Technical Secs. 261.33, 266.20(a)(2),
Corrections. (a)(3) as adopted 8/29/88.
38................ Amendments to Part B 52 FR 23447, 52 FR 33936 6/22/87, 9/9/87.............. 7 Dec. C. Sec. 6305(a), 6304;
Information Requirements DRGHW Sec. 122.14(c)(7),
for Land Disposal (c)(8)(v) as adopted 8/29/88.
Facilities.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-HSWA Cluster IV
--------------------------------------------------------------------------------------------------------------------------------------------------------
40................ List (Phase 1) of 52 FR 25942 7/9/87....................... 7 Del. C. Sec. 6305(a); DRGHW
Hazardous Constituents Secs. 264.98(h)(2), (h)(3),
for Ground-water (h)(4)(i), 264.99(f), Part 264
Monitoring. Appendix IX, 122.14(c)(4)(ii) as
adopted 8/29/88.
41................ Identification and 52 FR 26012 7/10/87...................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Listing of Hazardous Sec. 261.33(c) as adopted 8/10/
Waste. 90.
43................ Liability Requirements 52 FR 44314 11/18/87..................... 7 Del. C. Sec. 6305(a); DRGHW
for Hazardous Waste Secs. 264.147(f)(2),
Facilities; Corporate 264.151(h)(2), 265.147(f)(2) as
Guarantee. adopted 8/29/88.
45................ Hazardous Waste 52 FR 46946 12/10/87..................... 7 Del. C. Secs. 6305(a), (a)(4),
Miscellaneous Units. (a)(6), (a)(10), (a)(13), 6304;
DRGHW Secs. 260.10, 264.10(b),
264.15(b)(4), 264.18(b)(1)(ii),
264.73(b)(6), 264.90(d),
264.111(c), 264.112(a)(2),
264.114, 264.117(a)(1),
264.118(b)(1), 264.118(b)(2),
264.142(a), 264.144(a),
264.147(b), 264.600, 264.601,
264.602, 264.603, 122.14(b)(5),
(b)(13), 122.23 as adopted 8/10/
90.
46................ Technical Correction; 53 FR 13382 4/22/88...................... 7 Del. C. Secs. 6305(a)(1); DRGHW
Identification and Secs. 261.33(e), (f), Part 261
Listing of Hazardous Appendix VIII as adopted 8/10/90.
Waste.
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[[Page 41348]]
Non-HSWA Cluster V
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49................ Identification and 53 FR 27290 7/19/88...................... 7 Del. C. Secs. 6305(a), (c);
Listing of Hazardous DRGHW Secs. 260.10, 261.4(e),
Waste; Treatability 261.4(f) as adopted 8/10/90.
Studies Sample Exemption.
52N............... Hazardous Waste 53 FR 34079 9/2/88....................... 7 Del. C. Secs. 6304, 6305(a)(4),
Management System; 6306, 6307; DRGHW Secs. 260.10,
Standards for Hazardous 264.114, 264.190, 264.193(f)(3),
Waste Storage and 264.196, 265.110(b)(2), 265.114,
Treatment Tank Systems. 265.190, 265.193(f)(3),
(g)(3)(iii), 265.196,
265.201(c)(3), 122.2 as adopted 8/
10/90.
53................ Identification and 53 FR 35412 9/13/88...................... 7 Del. C. Secs. 6305(a)(1);
Listing of Hazardous 261.32, Part 261 Appendix VII as
Waste; and Designation, adopted 8/10/90.
Reportable Quantities,
and Notification.
54................ Permit Modifications for 53 FR 37912, 53 FR 41649 9/28/88, 10/24/88............ 7 Del. C. Secs. 6305(a), 6307;
Hazardous Waste DRGHW Secs. 124.5(c)(1), (c)(3),
Management Facilities. 264.54, 264.112(c), (c)(1),
(c)(2), 264.118(d), (d)(1),
(d)(2), 265.112(c)(3), (c)(4),
265.118(d)(3), (d)(4), 122.2,
122.4(a), 122.30(l)(2), 122.40,
122.41, 122.41(a)(3), (a)(5),
122.42, 122.42 Appendix I,
122.62(a), (b)(10), 122.63(d) as
adopted 8/10/90.
55................ Statistical Methods for 53 FR 39720 10/11/88..................... 7 Del. C. Secs. 6305(a), 6307;
Evaluating Ground-Water DRGHW Secs. 264.91(a)(1), (a)(2),
Monitoring Data from 264.92, 264.97(a)(1), (a)(3), (g)-
Hazardous Waste (j), 264.98(c), (d), (f)-(h),
Facilities. 264.99(c), (d), (f)-(j) as adopted
8/10/90.
56................ Identification and 53 FR 43878 10/31/88..................... 7 Del. C. Secs. 6305(a)(1); DRGHW
Listing of Hazardous Secs. 261.33(f), Part 261
Waste; Removal of Iron Appendix VIII as adopted 8/10/90.
Dextran from the List of
Hazardous Wastes.
57................ Identification and 53 FR 43881 10/31/88..................... 7 Del. C. Secs. 6305(a)(1); DRGHW
Listing of Hazardous Secs. 261.33(e), Part 261
Waste; Removal of Appendix VIII as adopted 8/10/90.
Strontium Sulfide from
the List of Hazardous
Wastes.
58................ Standards for Generators 53 FR 45089 11/8/88...................... 7 Del. C. Secs. 6305(a), 6306;
of Hazardous Waste; DRGHW Secs. 262.20(a), Part 262
Manifest Renewal. Appendix II as adopted 8/10/90.
59................ Hazardous Waste 54 FR 615 1/9/89....................... 7 Del. C. Secs. 6305(a); DRGHW
Miscellaneous Units; Secs. 122.14(b)(5), (b)(13) as
Standards Applicable to adopted 8/10/90.
Owners and Operators.
60................ Amendment to Requirements 54 FR 4286 1/30/89...................... 7 Del. C. Secs. 6305(a); DRGHW
for Hazardous Waste Sec. 122.62(d) as adopted 8/10/90
Incinerator Permits. and amended 11/19/93.
61................ Changes to Interim Status 54 FR 9596 3/7/89....................... 7 Del. C. Secs. 6305(a)(3), 6307;
Facilities for Hazardous DRGHW Secs. 124.1, 124.15(a),
Waste Management (b), 122.1(e), 122.10(c), 122.29,
Permits; Modifications 122.42 Appendix I, 122.72(a), (b),
of Hazardous Waste (b)(1)-(6), 122.73(e)-(g) as
Management Permits; adopted 6/19/92.
Procedures for Post-
Closure Permitting.
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[[Page 41349]]
Non-HSWA Cluster VI
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24 (Amended)...... Financial Responsibility; 55 FR 25976 6/26/90...................... 7 Del. C. Secs. 6305(a), 6307;
Settlement Agreement; DRGHW Secs. 260.10, 264.110,
Correction. 264.111, 264.112, 264.113,
264.114, 264.115, 264.116,
264.117, 264.118, 264.119,
264.120, 264.141(f), 264.142(a)-
(c), 264.143(a)(10), (b)(4)(ii),
(c)(5), (d)(8), (e)(5),
(f)(1)(i)(B), (f)(1)(i)(D),
(f)(1)(ii)(B), (f)(1)(ii)(D),
(f)(2), (i), 264.144(a)-(c),
264.145 introductory paragraph,
264.145(a)(11), (b)(4)(ii),
(c)(5), (d)(9), (e)(5),
(f)(1)(i)(B), (f)(1)(i)(D),
(f)(1)(ii)(B), (f)(1)(ii)(D),
(f)(2), (i), 264.147(d),
264.151(b), (f)(5), (g)(5),
265.110, 265.111, 265.112,
265.113, 265.114, 265.115,
265.116, 265.117, 265.118,
265.119, 265.120, 265.140(a),
265.142(a)-(c), 265.143(a)(10),
(b)(4)(ii), (c)(8), (d)(5),
(e)(1)(i)(B), (e)(1)(i)(D),
(e)(1)(ii)(B), (e)(1)(ii)(D),
(e)(2), (h), 265.144(a)-(c),
265.145 introductory paragraph,
265.145(a)(11), (b)(4)(ii),
(c)(9), (d)(5), (e)(1)(i)(B),
(e)(1)(i)(D), (e)(1)(ii)(B),
(e)(1)(ii)(D), (e)(2), (h),
265.147(d), 122.14(b)(14)-(16),
122.42(d), 122.72(d) as adopted 8/
10/90.
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HSWA Cluster I
--------------------------------------------------------------------------------------------------------------------------------------------------------
BB................ Exceptions to the Burning HSWA Sec. 3004(q)(2)(A), Sec. ............................. 7 Del. C. Secs. 6305(a)(12).
and Blending of 3004(r)(2)&(3)
Hazardous Waste.
CP................ Hazardous and Used Oil HSWA Sec. 3006(h), Sec. 3008(d), ............................. 7 Dec. C. Secs. 6309(f) through
Fuel Criminal Penalties. Sec. 3014 (n).
14................ Dioxin Waste Listing and 50 FR 1978 1/14/85...................... 7 Del. C. Secs. 6305(a), 6307;
Management Standards. DRGHW Secs. 261.5(e),
261.7(b)(1), 261.7(b)(3),
261.30(d), 261.31, 261.33(f), Part
261 Appendices III, VII, VIII, X,
264.175(c)&(d), 264.194(c)(2),
264.200(a), 264.231, 264.259,
264.283, 264.317, 264.343(a),
265.1(d)(1), 265.352, 265.383,
122.14(b)(7), 122.16(g),
122.17(i), 122.18(j), 122.20(i),
122.21(j) as adopted 11/21/85.
16................ Paint Filter Test........ 50 FR 18370 4/30/85...................... 7 Del. C. Sec. 6305(a), 6306(d);
DRGHW Secs. 264.13(b)(6),
264.73(b)(3), 264.314(c),
265.13(b)(6), 265.73(b)(3),
265.314(d) as adopted 5/8/86.
SI................ Sharing Information With HSWA Sec. 3019(b) 7/15/85...................... 7 Del. C. Secs. 6304; DRGHW
the Agency for Toxic Hazardous Waste Disclosure
Substances and Disease Regulations as adopted 8/29/88.
Registry.
17A............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... See Delaware's authorities listed
Small Quantity under 51 FR 10146, 3/24/86 (CL
Generators. 23).
17C............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Sec. 6305(a); DRGHW Sec.
Household Waste. 261.4(b)(1) as adopted 5/8/86.
17D............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a),
Waste Minimization. 6305(a)(6), (a)(10), (a)(13),
6306; DRGHW Secs. 262.41(a)(6)-
(8), Part 262 Appendix II, 264.70,
264.73(b)(9), 122.30(j)(2),
122.70(a), 122.70(c) as adopted 11/
21/85 and 5/8/86.
17E............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a), 6307;
Location Standards for DRGHW Secs. 264.18(c), 265.18 as
Salt Domes, Salt Beds, adopted 5/8/86.
Underground Mines and
Caves.
17F............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a), 6306(d);
Liquids in Landfills. DRGHW Secs. 264.314(a), (b), (e),
265.314(a), (b), (f), 122.21(h)
adopted 5/8/86 and amended 8/29/
88.
17G............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Sec. 6305(a)(12); DRGHW
Dust Suppression. Secs. 266.23 as adopted 8/29/88.
[[Page 41350]]
17I............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Sec. 6305(a); DRGHW
Ground-Water Monitoring. Secs. 264.90(b), 264.222,
264.226(b)(3), 264.228(b)(2),
264.228(d), 264.252, 264.253,
264.254, 264.302, 264.303(b)(2),
264.310(b)(2), 264.310(c) as
adopted 8/29/88.
17J............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a), (a)(12);
Cement Kilns. DRGHW Secs. 261.6(a)(2), 261.33,
266.31(c) as adopted 11/21/85.
17K............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... See Delaware's authorities listed
Fuel Labeling. under 51 FR 49164, 11/29/85 (CL
19).
17M............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Sec. 6305(a)(3); DRGHW
Pre-construction Ban. Secs. 122.10(f) as adopted 5/8/
86.
17N............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a)(3), 6307;
Permit Life. DRGHW Secs. 122.41(a)(6) and
122.50(d) as adopted 5/8/86.
17O............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a)(2)-(4),
Omnibus Provision. 6307; DRGHW Secs. 122.32(b) as
adopted 5/8/86.
17P............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a), 6307;
Interim Status. DRGHW Secs. 122.10(a), (c),
(e)(1), (e)(4), 122.30(j)(2),
122.70(a), (c), 122.73(c)-(f) as
adopted 5/8/86.
17Q............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6305(a) and 6307;
Research and Development DRGHW Secs. 122.10(a), 122.65 as
Permits. adopted 5/8/86.
17R............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... See Delaware's authorities listed
Hazardous Waste Exports. under 51 FR 28664, 8/8/86 (CL 31).
17S............... HSWA Codification Rule: 50 FR 28702 7/15/85...................... 7 Del. C. Secs. 6304, 6305(a)(3),
Exposure Information. 6307; DRGHW Secs. 122.10(c), (j)
as amended 5/8/86.
18................ Listing of TDI, TDA, DNT. 50 FR 42936 10/23/85..................... 7 Del. C. Secs. 6305(a)(1); DRGHW
Secs. 261.32, 261.33(f), Part 261
Appendices III, VII, VIII as
adopted 5/8/86.
19................ Burning of Waste Fuel and 50 FR 49164, 52 FR 11819 11/29/85, 4/13/87............ 7 Del. C. Secs. 6305(a), 6307;
Used Oil Fuel in Boilers DRGHW Secs. 261.3(c)(2)(ii)(B),
and Industrial Furnaces. 261.5(b), 261.5(k),
261.6(a)(2)(iii),
261.6(a)(3)(iii),
261.6(a)(3)(vii),
261.6(a)(3)(viii),
261.6(a)(3)(ix), 264.340(a)(2),
265.340(a)(2), 266.30, 266.31,
266.32, 266.33, 266.34, 266.35,
266.40, 266.41, 266.42, 266.43,
266.44 as adopted 8/29/88.
20................ Listing of Spent Solvents 50 FR 53315, 51 FR 2702 12/31/85, 1/21/86............ 7 Del. C. Sec. 6305(a)(1); DRGHW
Sec. 261.31 as adopted 8/29/88.
21................ Listing of EDB Waste..... 51 FR 5327 2/13/86...................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Sec. 261.32, Part 261 Appendices
III, VII as adopted 8/29/88.
22................ Listing of Four Spent 51 FR 6537 2/25/86...................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Solvents. Secs. 261.31, 261.33(f), Part 261
Appendices III, VII, VIII as
adopted 8/29/88.
23................ Generators of 100 to 1000 51 FR 10146 3/24/86...................... 7 Del. C. Secs. 6305(a), 6306;
kg Hazardous Waste. DRGHW Secs. 260.10, 261.1(a)(1),
261.5, 261.33(f), 262.34(a), (d),
(e), (f), 262.44, 122.1(a)(2)(i),
122.10(e)(1)(iii) as adopted 8/29/
88.
25................ Codification Rule; 51 FR 19176 5/28/86...................... 7 Del. C. Secs. 6305(a) and
Technical Correction 6306(d); DRGHW Secs. 265.314(d)
(Paint Filter Test). as adopted 8/29/88.
28H............... Standards for Hazardous 51 FR 25422, 51 FR 29430 7/14/86, 8/15/86............. See Delaware's authorities listed
Waste Storage and under 51 FR 25422 (7/14/86) and 51
Treatment Tanks Systems FR 29430 (8/15/86) in Non-HSWA
(HSWA provisions). Cluster V.
30................ Biennial Report; 51 FR 28556 8/8/86....................... 7 Del. C. Secs. 6304, 6305(a),
Correction. 6305(a)(6), 6305(a)(10),
6305(a)(13), 6306; DRGHW Secs.
264.75(h)-(j), 265.75(h)-(j) as
adopted 8/29/88.
31................ Exports of Hazardous 51 FR 28664 8/8/86....................... 7 Del. C. Secs. 6305(a)(2),
Waste. (a)(4), (a)(8), (a)(13), 6306;
DRGHW Secs. 261.5(f)(3), (g)(3),
261.6(a)(3)(i), 262.41(a), (a)(3)-
(5), (b), 262.50, 262.51. 262.52,
262.53, 262.54, 262.55, 262.56,
262.57, 262.58, 262.60, 262.70,
Part 262 Appendix II, 263.20(a),
(c), (e)(2), (f)(2), (g)(3),
(g)(4) as adopted 8/29/88.
32................ Standards for Generators; 51 FR 35190 10/1/86...................... 7 Del. C. Secs. 6305(a), (a)(6),
Waste Minimization (a)(10), (a)(13), and 6306; DRGHW
Certifications. Part 262 Appendix II as adopted 8/
29/88.
[[Page 41351]]
33................ Listing of EBDC.......... 51 FR 37725 10/24/86..................... 7 Del. C. Sec. 6305(a)(1); DRGHW
Secs. 261.32, Part 261 Appendices
III, VII as adopted 8/29/88.
--------------------------------------------------------------------------------------------------------------------------------------------------------
HSWA Cluster II
--------------------------------------------------------------------------------------------------------------------------------------------------------
47................ Identification and 53 FR 27162 7/19/88...................... 7 Del. C. Secs. 6305(a), 6306;
Listing of Hazardous DRGHW Secs. 261.5(e), (f)(2) as
Waste; Technical adopted 8/10/90.
Correction.
48................ Farmer Exemptions; 53 FR 27164 7/19/88...................... 7 Del. C. Secs. 6305(a)(2),
Technical Corrections. (a)(4), (a)(8), (a)(13), and 6306;
DRGHW Secs. 262.10(b), 262.10(d),
264.1(f)(4), 265.1(c)(7),
268.1(c)(5), 122.1(c)(2)(ii) as
adopted 8/10/90.
52H............... Hazardous Waste 53 FR 34079 9/2/88....................... See Delaware's authorities listed
Management System; under 53 FR 34079 (9/2/88) in Non-
Standards for Hazardous HSWA Cluster V).
Waste Storage and
Treatment Tank Systems
(HSWA Provisions).
74................ Toxicity Characteristic 55 FR 11798, 55 FR 26986 3/29/90, 6/29/90............. 7 Del. C. Secs. 6305(a), 6306,
Revisions. 6307; DRGHW Secs. 261.4(b)(6)(i),
(b)(9), (b)(10), 261.8, 261.24,
261.30(b), Part 261 Appendix II,
264.301(e)(1), 265.221(d)(1),
265.273(a), Part 268 Appendix I as
adopted 6/19/92.
--------------------------------------------------------------------------------------------------------------------------------------------------------
RCRA Cluster I
--------------------------------------------------------------------------------------------------------------------------------------------------------
81................ Petroleum Refinery 55 FR 46354, 55 FR 51707 11/2/90, 12/17/90............ 7 Del. C. Secs. 6305(a); DRGHW
Primary and Secondary Secs. 261.31(a), (b), Part 261
Oil/Water/Solids Appendix VII as adopted 11/19/93.
Separation Sludge
Listings (F037 and F038).
84................ Toxicity Characteristic; 56 FR 5910 2/13/91...................... 7 Del. C. Secs. 6305(a), DRGHW
Chlorofluorocarbon Secs. 261.4(b)(12) as adopted 7/
Refrigerants. 26/94.
89................ Revision to F037 and F038 56 FR 21955 5/13/91...................... 7 Del. C. Secs. 6305(a); DRGHW
Listings. Secs. 261.31(a) as adopted 7/26/
94.
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA shall administer any RCRA hazardous waste permits, or portions
of permits, that contain conditions based upon the Federal program
provisions for which the State is applying for authorization and which
were issued by EPA prior to the effective of this authorization. EPA
will suspend issuance of any further permits under the provisions for
which the State is being authorized on the effective date of this
authorization.
Delaware is not seeking authority over Indian Lands since there are
no Federally recognized Indian Lands in the State at this time.
C. Decision
I conclude that Delaware's application for program revision meets
all of the statutory and regulatory requirements established by RCRA.
Accordingly, Delaware is granted final authorization to operate its
hazardous waste program as revised.
Delaware now has responsibility for permitting treatment, storage,
and disposal facilities within its borders and carrying out the aspects
of the RCRA program described in its revised program application,
subject to the limitations of the HSWA. Delaware also has primary
enforcement responsibilities, although EPA retains the right to conduct
inspections under Section 3007 of RCRA and to take enforcement actions
under Sections 3008, 3013 and 7003 of RCRA.
D. Codification in Part 272
EPA uses Part 272 for codification of the decision to authorize
Delaware's program and for incorporation by reference of those
provisions of Delaware's statutes and regulations that EPA will enforce
under Sections 3008, 3013 and 7003 of RCRA. EPA is reserving amendment
of 40 CFR Part 272, Subpart I, until a later date.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Certification Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UNRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
[[Page 41352]]
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates for State, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``Federal mandate'' duties that arise from
participation in a voluntary Federal program, except in certain cases
where a ``federal intergovernmental mandate'' affects an annual federal
entitlement program of $500 million or more that are not applicable
here. Delaware's request for approval of revisions to its authorized
hazardous waste program is voluntary and imposes no Federal mandate
within the meaning of the Act. Rather, by having these revisions to its
hazardous waste program approved, Delaware will gain the authority to
implement these federally authorized revisions to its hazardous waste
program within its jurisdiction, in lieu of EPA thereby eliminating
duplicative State and Federal requirements. If a State chooses not to
seek authorization for administration of a hazardous waste program
under RCRA Subtitle C, RCRA regulation is left to EPA.
In any event, EPA has determined that this rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments in the aggregate, or the
private sector in any one year. EPA does not anticipate that the
approval of Delaware's revisions to its hazardous waste program
referenced in today's notice will result in annual costs of $100
million or more. EPA's approval of state programs, and revisions
thereto, generally may reduce, not increase, compliance costs for the
private sector since the State, by virtue of the approval, may now
administer the program in lieu of EPA and exercise primary enforcement
for those regulations for which they have been authorized. Hence,
owners and operators of treatment, storage, or disposal facilities
(TSDFs) will continue to generally no longer face dual Federal and
State compliance requirements, thereby reducing overall compliance
costs. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. The Agency recognizes that small governments may own and/
or operate TSDFs or that will become subject to the requirements of an
approved State hazardous waste program. However, such small governments
which own and/or operate TSDFs are already subject to the requirements
in 40 CFR parts 264, 265, and 270 and are not subject to any additional
significant or unique requirements by virtue of this program approval.
Once EPA authorizes a State to administer its own hazardous waste
program and any revisions to that program, these same small governments
will be able to own and operate their TSDFs under the approved State
program, in lieu of the Federal program.
Certification Under the Regulatory Flexibility Act
EPA has determined that this authorization will not have a
significant economic impact on a substantial number of small entities.
EPA recognizes that small entities may own and/or operate TSDFs that
will become subject to the requirements of an approved state hazardous
waste program. However, since such small entities which own and/or
operate TSDFs are already subject to the requirements in 40 CFR Parts
264, 265 and 270, this authorization does not impose any additional
burdens on these small entities. This is because EPA's authorization
would result in an administrative change (i.e., whether EPA or the
state administers the RCRA Subtitle C program in that state), rather
than result in a change in the substantive requirements imposed on
small entities. Once EPA authorizes a state to administer its own
hazardous waste program and any revisions to that program, these same
small entities will be able to own and operate their TSDFs under the
approved state program, in lieu of the federal program. Moreover, this
authorization, in approving a state program to operate in lieu of the
federal program, eliminates duplicative requirements for owners and
operators of TSDFs in that particular state.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this authorization will not have a significant
economic impact on a substantial number of small entities. This
authorization effectively approves the Delaware program to operate in
lieu of the federal program, thereby eliminating duplicative
requirements for handlers of hazardous waste in the state. It does not
impose any new burdens on small entities. This rule, therefore, does
not require a regulatory flexibility analysis.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 272
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste transportation,
Hazardous waste, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Authority: This notice is issued under the authority of Sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: July 26, 1996.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 96-20248 Filed 8-7-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20241 Approval and Promulgation of Implementation Plans; Massachusetts; Emissions Banking, Trading, and Averaging Program Approval
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41335-41338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20241]
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ENVIRONMENT PROTECTION AGENCY
40 CFR Part 52
[FRL-5533-2]
Approval and Promulgation of Implementation Plans; Massachusetts;
Emissions Banking, Trading, and Averaging Program Approval
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving, in final, a State Implementation Plan
(SIP) revision submitted by Massachusetts. This revision establishes a
voluntary emissions banking, trading, and averaging program for
eligible sources of volatile organic compounds (VOC), nitrogen oxides
(NOX), or carbon monoxide (CO). The goal of these regulations is
to encourage the creation, trading, and averaging of emission reduction
credits in order for facilities to comply with new source review
offsetting, netting, and reasonably available control technology (RACT)
requirements in the most cost-effective manner. The program was adopted
as a discretionary Economic Incentive Program, developed pursuant to
EPA's guidance. This revision includes provisions which EPA proposed to
approve in a document published on February 22, 1995.
DATES: This action is effective October 7, 1996, unless notice is
received by September 9, 1996 that adverse or critical comments will be
submitted. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Region I, JFK Federal Bldg., Boston, MA 02203. Copies of the State
submittal and EPA's technical support document are available for public
inspection during normal business hours, by appointment at the Office
of Ecosystem Protection, U.S. Environmental Protection Agency, Region
I, One Congress Street, 11th floor, Boston, MA, and the Division of Air
Quality Control, Massachusetts Department of Environmental Protection,
One Winter Street, 8th floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Steven A. Rapp, Environmental
Engineer, Air Quality Planning Unit (CAQ), United States Environmental
Protection Agency, Region 1, JFK Federal Building, Boston, MA 02203.
(617) 565-2773.
SUPPLEMENTARY INFORMATION:
I. Background
On April 7, 1994, EPA published final rules for Economic Incentive
Programs (59 FR 16690). The notice set forth Economic Incentive Program
(EIP) rules which could be adopted by certain ozone and carbon monoxide
nonattainment areas which were mandated by sections 182(g)(3),
182(g)(5), 187(d)(3), and 187(g) of the Clean Air Act (Act) to use or
consider EIPs. The notice also served as interim guidance for States to
develop discretionary EIPs for any criteria pollutant in all areas.
Massachusetts has developed emissions banking and trading, and
emissions averaging regulations as a discretionary EIP. The program was
developed pursuant to EPA's EIP guidance. These regulations establish a
voluntary emissions banking, trading, and averaging program for
eligible sources of volatile organic compounds (VOC), nitrogen oxides
(NOX), or carbon monoxide (CO). The goal of these regulations is
to encourage the creation, trading, and averaging of emission reduction
credits in order for facilities to comply with new source review
offsetting, netting, and reasonably available control technology (RACT)
requirements in the most cost-effective manner.
II. State Submittal
Massachusetts submitted an emissions banking and trading, and
emissions averaging regulations in two separate SIP submittals. First,
on February 9, 1994, the Massachusetts Department of Environmental
Protection (MA DEP) submitted Sections 310 CMR 7.00 Appendix B(1), (2),
(3), and (5) as a revision to its SIP. These sections of the
regulations establish requirements for the certification of emission
reduction credits (ERCs), or ``banking,'' as well as for the trading of
the ERCs between facilities. On February 22, 1995, EPA proposed
approval of this submittal. Subsequently, on April 14, 1995, the EPA
received a request from the Massachusetts DEP to revise the SIP for
ozone, including amendments to 310 CMR 7.18 and 7.19, regarding
emissions averaging at VOC and NOX RACT sources, concurrent with
the addition of sections 310 CMR 7.00 Appendix B(4) and (6), which deal
with emissions averaging and public participation procedures,
respectively, in the EIP.
[[Page 41336]]
Additionally, on February 8, 1996, MA DEP submitted supplemental
information to EPA which provides a quantitative demonstration that the
use of ERCs certified under 310 CMR 7.00 Appendix B, including the use
of credits created by one-time actions, or unused credits carried over
from year to year, i.e., the inter-temporal use of credits, will be
consistent with the requirements of the Massachusetts SIP, Reasonable
Further Progress (RFP) and Rate of Progress (ROP) plans, and area wide
RACT requirements.
The following is a description of the changes being approved in
this action:
A. 310 CMR 7.00 Appendix B(1), (2), (3), and (5)
Sections (1), (2), (3), and (5) of Appendix B establish a
discretionary economic incentive program (EIP) under Section 182 of the
Clean Air Act of emission banking and trading. The EIP rule classifies
EIPs into three broad categories: emission limiting, market response,
and directionally sound. Since this EIP will limit total mass emission,
related parameters, or specify levels of emission reductions from
eligible sources, it is classified as emission-limiting. Under this
EIP, individuals and companies can voluntarily reduce emissions at
eligible stationary sources (e.g., factories), mobile sources (e.g.,
automobiles), or area sources (e.g., residential heating systems) below
the level required by State and federal regulations and then ``bank''
the surplus reductions as credit. This program also establishes the
requirements for the transfer credits between eligible entities. Under
this program, stationary sources can use credits to comply with new
source review offsetting, netting, and reasonably available control
technology (RACT) requirements. These sections of the regulations
became effective in Massachusetts on September 10, 1993.
B. 310 CMR 7.00 Appendix B(4)
The goal of this part of the regulations is to allow sources of
NOX and VOC to utilize emissions averaging, or ``bubbling'', in
order to comply with RACT requirements. The addition of 310 CMR 7.00
Appendix B(4), in combination to the changes made to 310 CMR 7.18 and
7.19, establishes a system by which facilities owned by the same
person(s) can average, or ``bubble'' emissions. These rule changes
became effective in Massachusetts on January 27, 1995. This means that
facilities which reduce emissions below the level required by State and
federal regulation at some emission sources, can control less at other
emission sources, provided that the net effect to the environment is as
if all the emission sources applied the otherwise required controls.
This regulation replaces the former 310 CMR 7.00 Appendix B.
C. 310 CMR 7.00 Appendix B(6)
Section 310 CMR 7.00 Appendix B(6) was added to establish public
participation procedures which apply to applications processed under
310 CMR 7.00 Appendix B. These rule changes became effective in
Massachusetts on January 27, 1995. These provisions require that the MA
DEP propose publicly whether an application should be approved,
approved with conditions, or disapproved. Additionally, these
provisions require the MA DEP to make all non-confidential information
available to the public, to publish a public notice, to provide a 30
day public comment period, and conduct a public hearing. The inclusion
of these requirements, in combination with the other requirements of
310 CMR 7.00 Appendix B, will allow EPA to consider permits issued
consistent with Appendix B, for the certification, withdrawal,
transfer, or use of ERCs, to be considered federally enforceable
without the need for further EPA approval.
D. 310 CMR 7.18(2)(b)
The changes adopted to 310 CMR 7.18 consist of providing facility
owners with the option to utilize emissions averaging to comply with
VOC RACT emission limitations contained in 310 CMR 7.18 (3) through
(7), (10) through (12), and (14) through (16). Also, these provisions
require any facility utilizing emissions averaging to comply with the
requirements of 310 CMR 7.18 to be subject to the emissions averaging
requirements of 310 CMR 7.00 Appendix B(4).
E. 310 CMR 7.19(2)(d), (2)(g), and (14)
The changes adopted to 310 CMR 7.19 allow any source subject to the
NOX RACT requirements of 310 CMR 7.19 either to comply with a more
stringent limitation, in order to create emission reduction (ERCs)
credits or offsets, or to comply with the emission limitations of 310
CMR 7.19 by averaging emissions or by using ERCs. Section 310 CMR
7.19(14) allows emission units subject to the emission standards in 310
CMR 7.19(4), (5), (7), (8), or (12) to comply by emissions averaging.
Further, this section provides the conversion factors necessary for
averaging emissions between stationary reciprocating internal
combustion engines or stationary combustion turbines with boilers.
Additionally, this section requires such averaging emission units to
meet the testing, monitoring, record keeping, and reporting
requirements of 310 CMR 7.19(13)(b), (c), and (d), which includes the
requirements to use NOX CEMS on averaging units.
III. Analysis of State Submittal and Supporting Material
EPA has evaluated the Massachusetts emissions banking, trading, and
averaging regulations and supporting documentation against applicable
EPA guidance, including, the Economic Incentive Program rules (40 CFR
Sec. 51.490-494) and the EPA's June 28, 1989 guidance on requirements
of State implementation plans (54 FR 27274). EPA has determined that
all applicable requirements of these guidance documents have been met.
EPA has developed a technical support document (TSD) that contains a
detailed description of this analysis. The TSD is part of the docket
supporting this action and is available upon request.
IV. Issues
On February 22, 1995, EPA published a notice of proposed rulemaking
(NPR) proposing to approve portions of 310 CMR 7.00 Appendix B as a
non-generic economic incentive program (60 FR 9810). In response to
that notice, EPA received four comments. The commenters raised two
major areas of concern. First, three of the commenters argued that EPA
should grant ``generic'' authority to Massachusetts to allow the State
to approve emissions trades without further EPA approval. Second, one
commenter asserted that this EIP could result in pollution ``spikes''
if facilities traded emission reduction credits such that they would
emit more during the summer ozone season than the underlying control
requirements would have allowed absent the EIP.
However, since the publication of that notice, Massachusetts
adopted a number of regulatory changes which address the deficiencies
outlined in the NPR, including providing for public notice and comment
on each trade or credit certification. Also, Massachusetts has
submitted a quantitative analysis showing that the use of credits under
310 CMR 7.00 Appendix B(3), including the use of one-time or carry over
credits during time periods other than when they were generated (i.e.,
the inter-temporal use of credits), will be consistent with the
requirements of the Massachusetts SIP, RFP and ROP plans, and area wide
RACT requirements. EPA also performed an analysis of the potential
buffering effect inherent in implementation of the State's current
regulations. Based upon the regulatory
[[Page 41337]]
changes and additional analyses, EPA believes that the Massachusetts
emissions banking, trading program now fully meets the applicable EPA
guidance documents. Additionally, EPA has determined that the emissions
averaging portion of the program also meets the applicable EPA
guidance. Therefore, in lieu of finalizing the proposed final approval
of 310 CMR 7.00: Appendix B(1), (2), (3), and (5), and proposing
approval of the other provisions as a separate action, EPA is approving
all of 310 CMR 7.00 Appendix B, as well as 310 CMR 7.18(2)(b), 310 CMR
7.19(2)(d), 7.19(2)(g), and 7.19(14), as a fully generic EIP. The TSD
provides a detailed explanation of how EPA is addressing the comments
received on its earlier proposal, and how this current submittal
responds to the concerns raised in those comments.
V. Final Action
EPA is approving all of 310 CMR 7.00 Appendix B, as submitted to
date, as well as 310 CMR 7.18(2)(b), 310 CMR 7.19(2)(d), 7.19(2)(g),
and 7.19(14), as a fully generic EIP. Additionally, upon approval of
these regulations as part of the SIP, EPA will consider any emission
control plans or credit certifications issued according to the
requirements of 310 CMR 7.00 Appendix B since January 27, 1995, i.e.,
the effective date of the modified regulations, as federally
enforceable without the need for further EPA approval. EPA is
publishing this action without prior proposal because the Agency views
this as a noncontroversial amendment and anticipates no adverse
comments. However, in a separate document in this Federal Register
publication, EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. This action will be effective
October 7, 1996 unless adverse or critical comments are received by
September 9, 1996.
If the EPA receives such comments, this action will be withdrawn
before the effective date by simultaneously publishing a subsequent
notice that will withdraw the final action. All public comments
received will then be addressed in a subsequent final rule based on
this action serving as a proposed rule. The EPA will not institute a
second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, the public is advised that this action will be
effective on October 7, 1996.
VI. Procedural Background
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
VII. Regulatory Process
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. A future document will inform the general public of these
tables. The Office of Management and Budget (OMB) has exempted this
action from review under Executive Order 12866.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
EPA's action does not create any new requirements, but simply
approves requirements that the State is already imposing. Therefore,
because the federal SIP-approval does not impose any new requirements,
I certify that it does not have a significant impact on any small
entities affected. Moreover, due to the nature of the federal-State
relationship under the CAA, preparation of a regulatory flexibility
analysis would constitute federal inquiry into the economic
reasonableness of State action. The CAA forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. USEPA, 427 US
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410 (a)(2).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must assess whether various actions undertaken in association
with proposed or final regulations that include a Federal mandate that
may result in estimated costs of $100 million or more to the private
sector, or to State, local, or tribal governments in the aggregate.
EPA has determined, as discussed earlier, that the finding that is
the subject of this final action does not impose any federal
intergovernment mandate, as defined in Sec. 101 of the Unfunded
Mandates Act. This action consists of factual determinations based upon
the State's adoption of a voluntary program. Accordingly, no additional
costs to State, local, or tribal governments, or to the private sector
result from this action. This action also will not impose a mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Reporting and recordkeeping requirements.
Note: Incorporation by reference of the State Implementation
Plan for the State of Massachusetts was approved by the Director of
the Federal Register on July 1, 1982.
Dated: June 18, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q
[[Page 41338]]
Subpart W--Massachusetts
2. Section 52.1120 is amended by adding paragraph (c)(112) to read
as follows:
Sec. 52.1120 Identification of plan.
* * * * * *
(c) * * *
(112) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on February 9,
1994, and April 14, 1995, concerning emissions banking, trading, and
averaging.
(i) Incorporation by reference.
(A) Letters from the Massachusetts Department of Environmental
Protection dated February 9, 1994, and March 29, 1995, submitting
revisions to the Massachusetts State Implementation Plan.
(B) Regulations 310 CMR 7.00 Appendix B(1); 310 CMR 7.00 Appendix
B(2); 310 CMR 7.00 Appendix B(3), except 310 CMR 7.00 Appendix
B(3)(e)5.h; and, 310 CMR 7.00 Appendix B(5); effective on January 1,
1994. Also, regulations 310 CMR 7.00 Appendix B(4); 310 CMR 7.00
Appendix B(6); 310 CMR 7.18(2)(b); 310 CMR 7.19(2)(d); 310 CMR
7.19(2)(g); and, 310 CMR 7.19(14); effective on January 27, 1995.
(ii) Additional materials.
(A) Letter and attachments from the Massachusetts Department of
Environmental Protection dated February 8, 1996, submitting
supplemental information concerning the demonstration of balance
between credit creation and credit use.
3. In Sec. 52.1167, table 52.1167 is amended by removing the
existing entry for ``310 CMR 7.00 Appendix B'' and replacing it with
the new entry ``310 CMR 7.00 Appendix B, except for 310 CMR 7.00
Appendix B(3)(e)5.h''; and by adding new entries in numerical order to
existing state citations ``310 CMR 7.18'' and ``310 CMR 7.19'' to read
as follows:
Sec. 52.1167 EPA-approved Massachusetts State regulations.
* * * * *
Table 52.1167.--EPA-Approved Massachusetts Regulations
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Date submitted by Federal Register Comments/unapproved
State citation Title/subject State Date approved by EPA citation 52.1120(c) sections
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* * * * * * *
310 CMR 7.00 Appendix B (except Emissions Banking, 2/9/94 and......... Aug. 8, 1996.......... [FR citation from 112 Replaces earlier
310 CMR 7.00 Appendix Trading, and 3/29/95............ published date]. emissions averaging
B(3)(e)5.h). Averaging. rules with emissions
banking, trading, and
averaging.
* * * * * * *
310 CMR 7.18 (2)(b)............ Generic VOC bubble 3/29/95............ Aug. 8, 1996.......... [FR citation from 112 Replaces earlier
for surface published date]. emissions averaging
coaters. rules for surface
coaters.
* * * * * * *
310 CMR 7.19 (2)(d)............ Generic NOX 3/29/95............ Aug. 8, 1996.......... [FR citation from 112 Adds credit creation
bubbling and published date]. option for NOX RACT
trading for RACT sources.
sources.
310 CMR 7.19 (2)(g)............ Generic NOX 3/29/95............ Aug. 8, 1996.......... [FR citation from 112 Adds credit use option
bubbling and published date]. for NOX RACT sources.
trading for RACT
sources.
310 CMR 7.19 (14).............. Generic NOX 3/29/95............ Aug. 8, 1996.......... [FR citation from 112 Adds quantification,
bubbling for RACT published date]. testing, monitoring,
sources. record keeping,
reporting, and
emission control plan
requirements for
averaging NOX RACT
sources.
* * * * * * *
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[FR Doc. 96-20241 Filed 8-07-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20229 Clean Air, Clean Water, Solid Waste, Pesticides Programs; Removal of Legally Obsolete Rule
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41330-41331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20229]
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ENVIRONMENT PROTECTION AGENCY
40 CFR Part 5
[FRL-5548-8]
Clean Air, Clean Water, Solid Waste, Pesticides Programs; Removal
of Legally Obsolete Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today removing
from
[[Page 41331]]
the Code of Federal Regulations (CFR) 40 CFR Part 5. This outdated rule
created a schedule of tuition fees for technical and managerial
training conducted directly by EPA under its programs in air, water,
solid waste, radiation and pesticides. This rule is no longer legally
in effect because it is inconsistent with how Government fees and
charges are currently assessed under 31 U.S.C. 9701. Deleting this rule
from the CFR will clarify the legal status of this rule for personnel
of State and local governmental agencies, other Federal agencies,
private industries, universities, and other non-EPA agencies and
organizations. This action is in furtherance of government streamlining
and will not adversely impact public health or the environment.
EFFECTIVE DATE: This final rule takes effect on August 8, 1996.
FOR FURTHER INFORMATION CONTACT: James H. Carr, EPA Institute (Mail
Code 3632), EPA, 401 M Street, SW., Washington, DC 20460. Telephone:
(202) 260-8047; or E-mail to: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 4, 1995, the President directed all Federal agencies and
departments to conduct a comprehensive review of the regulations they
administer and, by June 1, 1995, to identify those rules that are
obsolete or unduly burdensome. EPA has conducted a review of its rules,
including 40 CFR Part 5 issued under the authority of 31 USC Sec. 483a.
That law was enacted to allow federal agencies to recoup costs from
identifiable special beneficiaries where the services rendered inured
to the benefit of special recipients not the general public.
The removal of this rule from the CFR is in keeping with the policy
view that charges should be set at rates rather than fixed dollar
amounts in order to reflect changes in costs to the Government or
changes in market prices of the property, resource or service provided.
See OMB Circular A-25.
Inasmuch as this rule relates to Agency practice and in view of the
subject matter, notice of proposed rule making and public comment were
considered unnecessary.
II. Obsolete Rule
Part 5--Tuition Fees for Direct Training. 40 CFR Part 5 requires
EPA to charge a schedule of tuition fees for all persons attending EPA
technical and managerial training conducted directly by EPA (direct
training) under its programs in air, water, solid waste, radiation and
pesticides which commence on or after January 1, 1974. On January 1,
1974, EPA issued a regulation which set a schedule of fixed dollar
amounts for direct training.
On September 13, 1982, 31 USC Sec. 483a was replaced by 31 USC
Sec. 9701, which established more objective criteria to recoup charges
for governmental services or things of value. Accordingly, EPA is
removing the current schedule of fixed dollar amounts in 40 CFR Part 5
from the CFR.
III. Rulemaking Analysis
Regulatory Flexibility Act
The EPA certifies that this rule does not have a significant
economic impact on a substantial number of small entities.
Executive Order 12866
Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to 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.
Unfunded Mandates Reform Act
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This is not a ``major rule'' as defined by section 804(2) of the APA as
amended.
List of Subjects in 40 CFR Part 5
Environmental protection, Education, Intergovernmental relations.
Dated: July 29, 1996.
Alvin M. Pesachowitz,
Acting Assistant Administrator, Office of Administration and Resources
Management.
For the reasons set out in the preamble, 40 CFR chapter I under the
authority of 31 U.S.C. 9701 is amended as follows.
PART 5--[REMOVED]
1. Part 5 is removed.
[FR Doc. 96-20229 Filed 8-7-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20215 Codes and Standards for Nuclear Power Plants; Subsection IWE and Subsection IWL
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41303-41312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20215]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
RIN 3150-AC93
Codes and Standards for Nuclear Power Plants; Subsection IWE and
Subsection IWL
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to incorporate by reference the 1992 Edition with the 1992
Addenda of Subsection IWE, ``Requirements for Class MC and Metallic
Liners of Class CC Components of Light-Water Cooled Power Plants,'' and
Subsection IWL, ``Requirements for Class CC Concrete Components of
Light-Water Cooled Power Plants,'' of Section XI, Division 1, of the
American Society of Mechanical Engineers Boiler and Pressure Vessel
Code (ASME Code) with specified modifications and a limitation.
Subsection IWE of the ASME Code provides rules for inservice
inspection, repair, and replacement of Class MC pressure retaining
components and their integral attachments and of metallic shell and
penetration liners of Class CC pressure retaining components and their
integral attachments in light-water cooled power plants. Subsection IWL
of the ASME Code provides rules for inservice inspection and repair of
the reinforced concrete and the post-tensioning systems of Class CC
components. Licensees will be required to incorporate Subsection IWE
and Subsection IWL into their inservice inspection (ISI) program.
Licensees will also be required to expedite implementation of the
containment examinations and to complete the expedited examination in
accordance with Subsection IWE and Subsection IWL within 5 years of the
effective date of this rule. Provisions have been included that will
prevent unnecessary duplication of examinations between the expedited
examination and the routine 120-month ISI examinations. Subsection IWE
and Subsection IWL have not been previously incorporated by reference
into the NRC regulations. The final rule specifies requirements to
assure that the critical areas of containments are routinely inspected
to detect and take corrective action for defects that could compromise
a containment's structural integrity.
EFFECTIVE DATE: September 9, 1996. The incorporation by reference of
certain publications listed in the regulations is approved by the
Office of the Director of the Office of the Federal Register as of
September 9, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. W. E. Norris, Division of
Engineering Technology, Office of Nuclear Regulatory Research, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)
415-6796.
SUPPLEMENTARY INFORMATION: The NRC is amending its regulations to
incorporate by reference the 1992 Edition with the 1992 Addenda of
Subsection IWE and Subsection IWL to assure that the critical areas of
containments are routinely inspected to detect and take corrective
action for defects that could compromise a containment's structural
integrity. The rate of occurrence of degradation in containments is
increasing. Appendix J to 10 CFR part 50 requires a general visual
inspection of the containment but does not provide specific guidance on
how to perform the necessary containment examinations. This has
resulted in a large variation with regard to the performance and the
effectiveness of containment examinations. The rate of occurrence of
corrosion and degradation of containment structures has been increasing
at operating nuclear power plants. There have been 32 reported
occurrences of corrosion in metal containments and the liners of
concrete containments. This is one-fourth of all operating nuclear
power plants. Only four of the 32 occurrences were detected by current
containment inspection programs. Nine of these occurrences were first
identified by the NRC through its inspections or structural audits.
Eleven occurrences were detected by licensees after they were alerted
to a degraded condition at another site or through activity other than
containment inspection. There have been 34 reported occurrences of
degradation of the concrete or of the post-tensioning systems of
concrete containments. This is nearly one-half of these types of
containments. It is clear that current licensee containment inspection
programs have not proved to be adequate to detect the types of
degradation which have been reported. Examples of degradation not found
by licensees, but initially detected at plants through NRC inspections
include: (1) Corrosion of steel containment shells in the drywell sand
cushion region, resulting in wall thickness reduction to below the
minimum design thickness; (2) corrosion of the torus of the steel
containment shell (wall thickness below minimum design thickness); (3)
corrosion of the liner of a concrete containment to approximately half-
depth; (4) grease leakage from the tendons of prestressed concrete
containments; and (5) leaching as well as excessive cracking in
concrete containments.
There are several General Design Criteria (GDC) and ASME Code
sections which establish minimum requirements for the design,
fabrication, construction, testing, and performance of structures,
systems, and components important to safety in water-cooled nuclear
power plants. The GDC serve as fundamental underpinnings for many of
the most safety important commitments in
[[Page 41304]]
licensee design and licensing bases. GDC 16, ``Containment design,''
requires the provision of reactor containment and associated systems to
establish an essentially leak-tight barrier against the uncontrolled
release of radioactivity into the environment and to ensure that the
containment design conditions important to safety are not exceeded for
as long as required for postulated accident conditions.
Criterion 53, ``Provisions for containment testing and
inspection,'' requires that the reactor containment design permit: (1)
Appropriate periodic inspection of all important areas, such as
penetrations; (2) an appropriate surveillance program; and (3) periodic
testing at containment design pressure of the leak-tightness of
penetrations which have resilient seals and expansion bellows. Appendix
J, ``Primary Reactor Containment Leakage Testing for Water-Cooled Power
Reactors,'' of 10 CFR part 50 contains specific rules for leakage
testing of containments. Paragraph III. A. of Appendix J requires that
a general inspection of the accessible interior and exterior surfaces
of the containment structures and components be performed prior to any
Type A test to uncover any evidence of structural deterioration that
may affect either the containment structural integrity or leak-
tightness (Type A test means tests intended to measure the primary
reactor containment overall integrated leakage rate: (1) after the
containment has been completed and is ready for operation, and (2) at
periodic intervals thereafter).
The metal containment structure of operating nuclear power plants
were designed in accordance with either Section III, Subsection NE,
``Class MC Components,'' or Section VIII, of the ASME Code. These
subsections contain provisions for the design and construction of metal
containment structures, including methods for determining the minimum
required wall thicknesses. The minimum wall thickness is that thickness
that would ensure that the metal containment structure would continue
to maintain its structural integrity under the various stressors and
degradation mechanisms which could act on it.
The prestressed concrete containments of most operating nuclear
reactors were designed in accordance with ACI-318 provisions taking
into consideration their unique features in the design of the post-
tensioning system and in determining the prestressing forces. The post-
tensioning system is designed so that the concrete containment
structure will continue to maintain its structural integrity under the
various stressors and degradation mechanisms which act on it. The
liners of concrete containments provide a leak-tight barrier.
These requirements for minimum design wall thicknesses and
prestressing forces as provided in these industry standards used to
design containment structures are reflected in license conditions,
technical specifications, and licensee commitments (e.g., the Final
Safety Analysis Report).
None of the existing requirements, however, provide specific
guidance on how to perform the necessary containment examinations. This
lack of guidance has resulted in a large variation with regard to the
performance and the effectiveness of licensee containment examination
programs. Based on the results of inspections and audits, as well as
plant operational experiences, it is clear that many licensee
containment examination programs have not detected degradation that
could ultimately result in a compromise to the pressure-retaining
capability. Some containment structures have been found to have
undergone a significant level of degradation that was not detected by
these programs.
The Nuclear Management and Resources Council (NUMARC) (which has
since become the Nuclear Energy Institute (NEI)) developed a number of
industry reports to address license renewal issues. Two of those, one
for Pressurized Water Reactor (PWR) containments and the other for
Boiling Water Reactor (BWR) containments, were developed for the
purpose of managing age-related degradation of containments on a
generic basis. The NUMARC plan for containments relies on the
examinations contained in Subsection IWE and Subsection IWL to manage
age-related degradation, and this plan assumes that these examinations
are ``in current and effective use.'' In the BWR Containment Industry
Report, NUMARC concluded that ``On account of these available and
established methods and techniques to adequately manage potential
degradation due to general corrosion of freestanding metal
containments, no additional measures need to be developed and, as such,
general corrosion is not a license renewal concern if the containment
minimum wall thickness is maintained and verified.'' Similarly, in the
PWR Containment Industry Report, NUMARC concluded that potentially
significant degradation of concrete surfaces, the post-tensioning
system, and the liners of concrete containments could be managed
effectively if periodically examined in accordance with the
requirements contained in Subsection IWE and Subsection IWL. The NRC
agrees with NEI that these ASME standards, which the industry has
participated in developing, would be an effective means for managing
age-related containment degradation. Thus, the NRC believes that
adoption of these standards is the best approach.
Background
On January 7, 1994 (59 FR 979), the NRC published in the Federal
Register a proposed amendment to its regulation, 10 CFR part 50,
``Domestic Licensing of Production and Utilization Facilities,'' to
incorporate by reference the 1992 Edition with the 1992 Addenda of
Subsection IWE, and Subsection IWL, of Section XI, Division 1, of the
ASME Code with specified modifications and a limitation.
Five modifications were specified in the proposed rule to address
two concerns of the NRC. The first concern is that four recommendations
for tendon examinations that are included in Regulatory Guide 1.35,
``Inservice Inspection of Ungrouted Tendons in Prestressed Concrete
Containments,'' Rev. 3, are not addressed in Subsection IWL (this
involves four of the modifications, (Sec. 50.55a(b)(2)(ix)(A)-(D)).
Regulatory Guide 1.35, Rev. 3, describes a basis acceptable to the NRC
staff for developing an appropriate inservice inspection and
surveillance program for ungrouted tendons in prestressed concrete
containment structures. The four recommendations contained in
Regulatory Guide 1.35, Rev. 3, which are not addressed by Subsection
IWL, provide positions on issues such as failed wires and tendon
sheathing filler grease conditions. (The ASME Code has considered the
four issues involved and is in the process of adopting them into
addenda of Subsection IWL). The second NRC concern is that if there is
visible evidence of degradation of the concrete (e.g., leaching,
surface cracking) there may also be degradation of inaccessible areas.
The fifth modification (Sec. 50.55a(b)(2)(ix)(E)) requires that
inaccessible areas be evaluated when visible conditions exist that
suggest the possibility of degradation of these areas.
The limitation which was included in the proposed rule specified
the 1992 Edition with the 1992 Addenda of Subsection IWE and Subsection
IWL as the earliest version of the ASME Code the NRC finds acceptable.
This is because this is the first edition including addenda combination
acceptable to the NRC staff that incorporates the concept of base metal
examinations and also provides a
[[Page 41305]]
comprehensive set of rules for the examination of post-tensioning
systems. As originally published in 1981, Subsection IWE preservice
examination and inservice examination rules focused on the examination
of welds. This weld-based examination philosophy was established in the
1970s as plants were being constructed. It was based on the premise
that the welds in pressure vessels and piping were the areas of
greatest concern. As containments have aged, degradation of base metal,
rather than welds, has been found to be the issue of concern. The 1991
Addenda to the 1989 Edition, the 1992 Edition and the 1992 Addenda to
Section XI, Subsection IWE, have promoted the incorporation of base
metal examinations.
The proposed rulemaking incorporated a provision for an expedited
examination schedule. This expedited examination schedule is necessary
to prevent the delay in implementation of Subsection IWE and Subsection
IWL (the Summary of Documented Evaluation lists each plant and the
delay in implementation which would be encountered if the subsections
were implemented through routine updates of the ISI programs).
Provisions were incorporated in the proposed rule to ensure that the
expedited examination which would be completed within 5 years from the
effective date of the rule and the routine 120-month examinations did
not duplicate examinations.
On March 4, 1994, the NRC received a request from the Nuclear
Management and Resources Council (which has since become part of the
Nuclear Energy Institute (NEI)) to extend the public comment period
from March 23, 1994 until April 25, 1994, to enable NEI to ``provide
necessary and constructive comments on the proposed rule change.'' This
was granted, and on March 28, 1994 (59 FR 14373), the NRC published in
the Federal Register a notice of extension of the public comment
period.
Summary of Comments
Comments were received from 25 separate sources. These sources
consisted of 15 utilities, one service organization (Entergy
Operations, Inc.) representing five nuclear plants, the Nuclear Energy
Institute (NEI), the Nuclear Utility Backfitting and Reform Group
(NUBARG) represented by the firm of Winston & Strawn, one owner's group
(BWR Owner's Group (BWROG)), one architect and engineering firm (Stone
& Webster Engineering Corporation), one public citizens group (Ohio
Citizens for Responsible Energy (OCRE)), three individuals, and one
consulting firm (VSL Corporation).
Comments received could be divided into three groups. The first
group contains those comments which address the administrative aspects
of the rule (e.g., backfit considerations, effectiveness of current
containment examinations), and the modifications specified by the NRC
in the proposed rule. The second and third groups contain those
comments which address the technical provisions of Subsection IWE, and
Subsection IWL, respectively. The summary and resolution of public
comments and all of the verbatim comments which were received (grouped
by subject area) are contained in the Summary of Documented Evaluation.
The majority of comments generally addressed one of the following
subject areas: (1) The incorporation by reference of Subsection IWE and
Subsection IWL into Sec. 50.55a; (2) the development of guidance
documents instead of regulatory requirements; (3) the rationale for the
proposed backfit; (4) endorsement of the BWROG comments; and (5) the 5-
year expedited implementation. These subject areas encompass the
comments submitted by NEI and NUBARG, and their comments, if any, are
discussed separately in each subject area.
The comments on subject area number one from those that approve of
the incorporation by reference of Subsection IWE and Subsection IWL
into Sec. 50.55a, can be summarized as follows: (1) There is a need for
the periodic examination of containment structures to assure the
containment's pressure-retaining and leak-tight capability; (2) Section
XI requirements define concise, technically sound programs to assure
continuing containment integrity; and (3) input in the development of
these rules was provided by all interested parties involved in
containment inservice inspection--users, regulators, manufacturers,
engineering organizations, and enforcement organizations.
The comments on the other four subject areas are summarized below.
The resolution of public comments contains all of the comments which
were received. Some of the comments resulted in modifications to the
rule, and some of the comments have been transmitted to the ASME for
their consideration. A discussion of the comments which led to
modifications follows the summary of comments on subject area number
five. The resolution of public comments package contains those comments
transmitted to the ASME. Those comments asked for interpretations of
the ASME Code rules.
Regarding subject area number two, eleven commenters believe that
additional specific guidance in the form of a guidance document would
be more appropriate than a regulation. They concur with NEI that
current regulatory requirements for containment integrity and
examinations are already provided by existing regulations (GDC 16 and
53 and Appendix J) and licensee commitments. If more detail on how to
perform containment examinations is needed, the commenters (including
NEI) state that the details could be provided in a regulatory guide,
Information Notice, Generic Letter, or in an industry developed
guidance document. The NRC does not believe that existing regulations
and licensee commitments are adequate. Existing regulations and
licensee commitments have not proved to be adequate to detect the types
of problems which have been experienced in operating reactors. This is
evidenced by the large number of instances of degradation that were
found by the NRC through its inspections or audits of plant structures,
or by licensees because they were alerted to a degraded condition at
another site. Licensee containment inspection programs have generally
not detected the types of degradation being reported (only four of the
32 reported instances of corrosion in Class MC containments were
discovered as a result of the Appendix J general inspection). Further,
the NRC does not believe that providing guidance through a regulatory
guide or industry report would generally improve containment
examination practices. Licensees were made aware of containment
degradation through several industry notices, and yet the staff is
still detecting many of occurrences of degradation. The increasing rate
of occurrence of containment degradation, the number of occurrences,
the extent to which some containments were degraded, the high number of
instances discovered through NRC inspections or by licensees because
they were alerted to a degradation condition at another site, the time-
dependent mechanisms, and the results of the survey performed by the
NRC Regional Offices regarding current containment inspections all
point to the necessity of imposing additional requirements to ensure
that containments comply with design wall thicknesses and prestressing
forces. This is a compliance backfit.
With regard to subject area number three, six general comments were
received from the Nuclear Utility Backfitting and Reform Group (NUBARG)
and from the Nuclear Energy
[[Page 41306]]
Institute (NEI) (which were endorsed by other commenters) regarding the
incorporation by reference of Subsection IWE and Subsection IWL which
are similar in nature. The first comment is that the application of the
compliance exception to this rulemaking is inappropriate, and that the
proposed rule constitutes a backfit for which a cost-benefit analysis
should be performed. The NRC agrees that the rulemaking is a backfit.
However, as discussed under the Backfit Statement, the NRC believes
that the compliance exception to the backfit rule is appropriate.
The second comment was a citation of a paragraph from the Statement
of Considerations to the 1985 final backfit rule which addressed the
compliance exception. That paragraph addressed ``Section 50.109(a)(4)
which creates exceptions for modifications necessary to bring a
facility into compliance or to ensure through immediately effective
regulatory action that a licensee meets a standard of no undue risk to
public health and safety.'' Both NEI and NUBARG assert that the
proposed rule is a new interpretation of how to demonstrate compliance
with existing standards and therefore constitutes a backfit under 10
CFR 50.109(a)(1). The NRC does not believe that the use of the
compliance exception must be confined only to the situation addressed
in the Statement of Consideration to the 1985 final backfit rule--
``omission or mistake of fact.'' In any event, the current
unsatisfactory status of containment inservice inspections can be
characterized fairly as, in retrospect, a mistake about and omission
from the necessary elements of a satisfactory inspection program.
The third comment is that containments must experience corrosion or
degradation that is so unanticipated and excessive so as to constitute
a genuine compliance concern. Another commenter expressed the idea
somewhat differently believing that a broad-based concern with the
operability of containment structures through the industry must be
demonstrated to be a compliance issue. The NRC agrees with those
criteria and concludes, in fact, that there is a broad-based concern
regarding the structural integrity of containment structures. The NRC's
approach focuses on two questions: (1) Is the corrosion such that there
is a basis for reasonably concluding that additional instances of
noncompliance with the relevant GDCs, Appendix J, and/or licensee
commitments at numerous plants; and (2) whether there is a basis for
reasonably believing that the corrosion would have been identified and
properly addressed by the licensees in the absence of additional
regulatory requirements. Based on the: (1) Number of occurrences of
containment degradation; (2) increasing rate of containment
degradation; (3) locations of the degradation; (4) two instances where
containment wall thicknesses were below minimum design wall thickness;
(5) number of corrosion paths which have been reported; and (6) higher
than anticipated corrosion rates in many of the occurrences, the NRC
believes that containments are experiencing corrosion or degradation
that is unanticipated and excessive. Further, based upon factors (1) to
(6) above, the NRC concludes that additional criteria are necessary to
ensure that compliance with existing requirements for minimum accepted
design wall thicknesses and prestressing forces are maintained (and
thereby the ability of the containment to continue to perform its
intended safety function).
The fourth comment by NUBARG and NEI suggested that it is part of
the anticipated process for the industry to rely upon NRC inspections
and audits to identify problems and then alert the industry through NRC
documents such as information notices and generic letters. During the
presentation to the ACRS on February 10, 1995, NEI asserted that ``[i]t
really doesn't matter how the utilities identify these instances of
degradation.'' The NRC believes that inspections conducted by licensees
should be adequate to ensure that containment degradation is identified
without reliance upon NRC inspections.
The fifth NEI and NUBARG comment is that to ensure compliance the
NRC could take individual enforcement action rather than endorse ASME
standards. The NRC believes that the best approach is to adopt the
industry consensus standards (i.e., endorse ASME Section XI Subsection
IWE and Subsection IWL). Containment corrosion and degradation have
been reported since 1986. The patterns of degradation and the
corrective actions were not immediately obvious. Given the number and
the extent of the occurrences, and the variability among plants with
regard to the performance and the effectiveness of containment
inspections, the NRC believes that the best course of action is to
endorse ISI requirements to ensure that containments comply with design
wall thicknesses and prestressing forces.
The sixth comment is that GDC 16 required containments to be
designed and constructed with an allowance for corrosion or degradation
of the containment wall over the projected design life of the plant.
NEI and NUBARG assert that ``[i]t is therefore hardly surprising that,
as noted in the Statement of Considerations, `[o]ver one-third of the
containments have experienced corrosion or other degradation.' ''
Therefore, they believe there is not a broad-based concern with
operability of containment structures. The NRC rejects the argument
that because containments have corrosion allowances and corrosion was
expected to occur that, ipso facto, further inspections are not
necessary and the compliance exception is inappropriate. As previously
pointed out, in many cases, the corrosion rate has been found to be
greater than that for which the containment was designed (in some cases
the rate was twice that predicted). Some of the more extreme cases of
wall thinning occurred in plants with corrosion allowances. The
existence of a corrosion allowance at any given plant is, of course
relevant, but only in the context of determining whether a relevant
requirement or commitment is likely to be violated during the OL term.
A corrosion allowance simply increases the tolerance (time period) for
corrosion. However, once the allowance is eroded, then concern with
compliance becomes relevant. Based upon the staff's finding of the
number and extent of corrosion to date, and the lack of activities to
manage the degradation by many licensees, the NRC concludes that it is
likely that those licensees will be in violation of applicable
requirements for containment structural integrity and leak-tightness
during the OL term, absent the imposition of Subsections IWE and IWL.
Because licensees have been unable to ensure compliance with current
regulatory requirements, the NRC believes that more specific ISI
requirements, which expand upon existing requirements for the
examination of containment structures in accordance with GDC 16, 53,
Appendix A to 10 CFR part 50, and Appendix J to 10 CFR part 50, are
needed and are justified for the purpose of ensuring that containments
continue to maintain or exceed minimum accepted design wall thicknesses
and prestressing forces as provided for in industry standards used to
design containments (e.g., Section III and Section VIII of the ASME
Code, and the American Concrete Institute Standard ACI-318), as
reflected in license conditions, technical specifications, and written
licensee commitments (e.g., the Final Safety Analysis Report). The NRC
believes that the occurrences of corrosion and other degradation would
have been detected by licensees when
[[Page 41307]]
conducting the periodic examinations set forth in Subsection IWE and
Subsection IWL.
With regard to subject area number four, six commenters believe
that the Boiling Water Reactors Owner's Group (BWROG) containment
inspection plan (CIP) will adequately address examinations for the
primary containment when used in conjunction with other existing
examination requirements such as Appendix J. The staff does not believe
that the CIP is a comprehensive containment examination program. In the
CIP, there is a comparison between the CIP and Subsection IWE. The CIP
dismisses seven of the eighteen identified Subsection IWE examinations
as not being justifiable even though some of these areas are likely to
experience accelerated corrosion. The CIP enumerates the conservatisms
and margins against failure in the design of Mark I and II containments
and concludes that in a typical plant probabilistic risk assessment of
failure, the contribution to failure of the containment steel structure
is negligible. The NRC believes that the conservatisms and margins
referred to are not additional tolerances which allow areas of
containments to go unexamined. These conservatisms and margins were
required allowances in the design because of the uncertainties in
loadings, in material properties, in analysis, and in the variation of
steel thicknesses. Examination of large areas of the containment cannot
be dismissed as being non-critical based on conservatisms and margins
when corrosion has clearly eroded the margin of safety in some cases.
In addition, given that only four of the 32 occurrences of corrosion in
metal containments and the liners of concrete containments were
detected during the pre-integrated leakage rate test examination, the
NRC does not believe that the CIP used in conjunction with other
existing examination requirements such as Appendix J will adequately
address examinations for the primary containment as asserted. The
industry initiative that allows a decrease in the frequency of Appendix
J leakage rate testing further erodes confidence in the acceptability
of the BWROG approach.
Comments were received from ten sources on proposed
Sec. 50.55a(g)(6)(ii)(B) which would require a 5-year expedited
examination schedule (subject area number five). Most of these comments
asked for clarifications of the NRC staff intent of this provision.
Some commenters interpreted this provision as a requirement to perform
all of the examinations specified for a 10-year interval in 5 years,
which was not the intent. Sec. 50.55a(g)(6)(ii)(B) has been changed to
clarify that for Subsection IWE, the baseline inspection will be the
inservice examinations which are to be performed during the first
period of the first interval. For Subsection IWL, the baseline
inspection will be the required inservice examinations which correspond
to the year of operation for each unit. The result of the clarification
is that Sec. 50.55a(g)(6)(ii)(B)(1) addresses Subsection IWE and
Sec. 50.55a(g)(6)(ii)(B)(2) addresses Subsection IWL.
Sec. 50.55a(g)(6)(ii)(B)(2) in the proposed rule has become
Sec. 50.55a(g)(6)(ii)(B)(3) and Sec. 50.55a(g)(6)(ii)(B)(3) has become
Sec. 50.55a(g)(6)(ii)(B)(4) in the final rule.
There was one additional comment submitted by NEI. The proposed
rule discussed NEI's (then NUMARC) position on the role of Subsection
IWE and Subsection IWL in license renewal. Subsections IWE and IWL were
referenced many times as one acceptable approach for managing age-
related degradation. The plan for managing age-related degradation
assumes that these examinations are ``in current and effective use.''
NEI commented on the above statements in the proposed rule; ``Although
the BWR and PWR containment IRs [Industry Reports] do reference
Subsections IWE and IWL, their identification in the IRs should not be
misrepresented to imply that Subsections IWE and IWL are being
implemented or that they are required for operating plants during their
initial licensing term.'' The NRC agrees that the IRs were not to be
represented as a requirement for operating licensees to implement
Subsection IWE and Subsection IWL or their equivalent, and that these
subsections were referenced as one acceptable approach of managing age-
related degradation for the license renewal period. However, present
licensee containment examination programs have not proved to be
effective in detecting the types of degradation which have been
reported. The number of occurrences and the extent of degradation
(which includes cases of noncompliance) leads to the conclusion that
additional requirements are needed for managing containment degradation
during the operating term. Because Subsections IWE and IWL were
developed by the ASME with industry input and found to be acceptable by
NEI for managing age-related degradation for the license renewal
period, the NRC believes that adoption of those programs at this time
is the best approach. The NRC also believes that with implementation of
Subsections IWE and IWL, the detrimental effects of containment aging
will be managed during the current operating term, as well as during
the license renewal term.
As a result of the comments received, there is one editorial
change, two clarifications, and four modifications in the final rule.
With respect to the editorial change, a commenter suggested that the
wording of Sec. 50.55a(b)(2)(ix)(D)(2) in the proposed rule be revised
to be consistent with Sec. 50.55a(b)(2)(ix)(D)(1) and
Sec. 50.55a(b)(2)(ix)(D)(3) of the same paragraph.
Sec. 50.55a(b)(2)(ix)(D) addresses the sampling of the grease contained
in post-tensioning systems, and conditions, which if found, are
reportable. The suggested wording has been adopted in the final rule.
One of the clarifications was to proposed Sec. 50.55(g)(6)(ii)(B).
This change was discussed previously in subject area number five.
Sec. 50.55a(g)(6)(ii)(B)(1) and Sec. 50.55a(g)(6)(ii)(B)(2) require
that licensees conduct the first containment examinations in accordance
with Subsection IWE and Subsection IWL (1992 Edition with the 1992
Addenda), modified by Sec. 50.55a(b)(2)(ix) and Sec. 50.55a(b)(2)(x)
within 5 years of the effective date of the final rule. This expedited
examination schedule is necessary to prevent possible delays in the
implementation of Subsection IWE by as much as 20 years and Subsection
IWL by as much as 15 years. Subsection IWE, Table IWE-2500-1, permits
the deferral of many of the required examinations until the end of the
10-year inspection interval. Adding the 10 years that could pass before
some utilities are required to update their ISI plans, a period of 20
years could pass before the first examinations would take place.
Subsection IWL is based on a 5-year inspection interval. Adding the
possible 10 years before update of existing ISI plans, a period of 15
years could pass before the examinations were performed by plants that
have not voluntarily adopted the provisions of Regulatory Guide 1.35,
Rev. 3. Expediting implementation of the containment examinations is
considered necessary because of the problems that have been identified
at various plants, the need to establish expeditiously a baseline for
each facility, and the need to identify any existing degradation.
Paragraphs (g)(6)(ii)(B)(3) and (g)(6)(ii)(B)(4) each provide a
mechanism for licensees to satisfy the requirements of the routine
containment examinations and the expedited examination without
duplication. Paragraph (g)(6)(ii)(B)(3) permits licensees to avoid
duplicating
[[Page 41308]]
examinations required by both the periodic routine and expedited
examination programs. This provision is intended to be useful to those
licensees that would be required to implement the expedited examination
during the first periodic interval that routine containment
examinations are required. Paragraph (g)(6)(ii)(B)(4) allows licensees
to use a recently performed examination of the post-tensioning system
to satisfy the requirements for the expedited examination of the
containment post-tensioning system. This situation would occur for
licensees who perform an examination of the post-tensioning system
using Regulatory Guide 1.35 between the effective date of this rule and
the beginning of the expedited examination.
The four modifications are: (1) Sec. 50.55a(b)(2)(x)(A) expands the
evaluation of inaccessible areas of concrete containments (Class CC) to
metal containments and the liners of concrete containments (Class MC);
(2) Sec. 50.55a(b)(2)(x)(B) permits alternative lighting and resolution
requirements for remote visual examination of the containment; (3)
Sec. 50.55a(b)(2)(x)(C) makes the examination of pressure retaining
welds and pressure retaining dissimilar metal welds optional; and (4)
Sec. 50.55a(b)(2)(x)(D) has been added to provide an alternative
sampling plan. Section 50.55a(b)(2)(x)(E), a clarification, more
clearly defines the frequency of the Subsection IWE general visual
examination.
The first modification, Sec. 50.55a(b)(2)(x)(A), which expands the
evaluation of inaccessible areas of concrete containments (Class CC) to
metal containments and the liners of concrete containments (Class MC),
was the result of a comment received on Sec. 50.55a(b)(2)(ix)(E) of the
proposed rule. The commenter believed that given the number of
occurrences of corrosion in Class MC containments, the proposed
provision (which only addressed concrete containments) should be
expanded in the final rule to include metal containments and the liners
of concrete containments.
The second modification, Sec. 50.55a(b)(2)(x)(B), was added to the
final rule to permit alternative lighting and resolution requirements
for remote visual examination of the containment. Subsection IWE
references the lighting and resolution requirements contained in IWA-
2200. The lighting and resolution requirements contained in IWA-2200
would on a practical basis preclude remote containment examination.
The third modification, Sec. 50.55a(b)(2)(x)(C), makes the
examinations of Subsection IWE, Examination Category E-B (pressure
retaining welds) and Subsection IWE, Examination Category E-F (pressure
retaining dissimilar metal welds) optional. The NRC staff concludes
that requiring these examinations is not appropriate. There is no
evidence of problems associated with welds of this type under the given
operating conditions. In addition, the occupational radiation exposure
that would be incurred while performing these examinations cannot be
justified. It is estimated that the total occupational exposure that
would be incurred yearly in the performance of the containment weld
examinations in accordance with Examination Categories E-B and E-F
would be 440 person-rems.
The fourth modification, Sec. 50.55a(b)(2)(x)(D), provides an
alternative to the ASME Section XI requirements for ``additional
examinations'' (note: additional examinations'' are required during the
same outage when acceptance criteria are exceeded). The alternative
would allow licensees to determine the number of additional components
to be examined based on an evaluation to determine the extent and
nature of the degradation. Five commenters believe that the
requirements for additional examinations used in other subsections of
Section XI is inappropriate for containment components. Additional
examinations are incorporated into Section XI to determine the extent
to which degradation found in one component exists in other similar
components. In some instances, a large number of additional
examinations could be required. The commenters believe that a review of
the operational history of containment components shows that the
degradation is limited to the area in question and is not widespread.
This makes the Section XI requirements for additional examinations
burdensome and inappropriate for application to containments. The NRC
agrees and revised the rule to permit the alternative to the Section XI
requirements for additional examinations.
The NRC believes that these modifications improve the final rule
and will improve the containment inspection program as set forth by
Subsection IWE and Subsection IWL. Some of the public comments cited
failure data which have been accumulated in recent years in support of
various NRC staff activities and industry initiatives. Most of this
data has been accumulated since the ASME committees developed these
subsections. Without the benefit of this recently accumulated
operational data, the ASME committees responsible for developing
Subsection IWE and Subsection IWL modelled those subsections on other
subsections of Section XI and the experience gained from application of
those other subsections. With the additional insights drawn from
analysis of this new data, it is apparent that many aspects of
containments are unique compared to components of other systems. Some
of the containment components which were expected to experience
degradation, based on experience with other systems, have proved not to
be susceptible to the same type of degradation. The ASME working groups
are considering these issues. However, based on initial committee
discussion, it is anticipated that similar changes will be made to
Subsection IWE and Subsection IWL, but the length of the ASME consensus
process precludes the possibility of the changes being adopted into the
ASME Code in the near term. Hence, the NRC has determined to adopt the
1992 Edition with the 1992 Addenda of Subsection IWE and Subsection IWL
with the modifications which were previously discussed.
Other Provisions Contained in the Final Rule
The following paragraph was contained in the proposed rule and has
not been discussed previously. This paragraph received comments which
resulted in the provision being dropped in the final rule. Section
50.55a(b)(2)(x) was a provision in the proposed rule intended to
provide licensees with a mechanism to merge the Subsection IWE and
Subsection IWL ISI program with their routine 120-month ISI program.
Those licensees who were near the end of their present 10-year ISI
interval when the final rule becomes effective would have been given an
additional 2 years to submit their containment ISI program. Several
commenters responded that due to the time constraints of having to
develop the containment ISI program and then perform the required
examinations within 5 years, the additional 2 years could not be
utilized. Therefore, Sec. 50.55a(b)(2)(x) as it appeared in the
proposed rule has been deleted, and Sec. 50.55a(b)(2)(x) in the final
rule contains the modifications which were added as a result of public
comment on the proposed rule.
The provisions in this paragraph and the following four paragraphs
were contained in the proposed rule and have not changed due to
comments. Section 50.55a(b)(2)(vi) incorporates a limitation specifying
the 1992 Edition with 1992
[[Page 41309]]
Addenda of Subsection IWE and Subsection IWL as the earliest ASME Code
version the NRC finds acceptable. This edition and addenda incorporate
the concept of base metal examinations and also provide a comprehensive
set of rules for the examination of post-tensioning systems. It should
be noted that the wording of this provision has been changed in the
final rule in order to make it consistent with other provisions in
Sec. 50.55a(b).
Section 50.55a(b)(2)(ix) specifies five modifications that must be
implemented when using Subsection IWL. Four of these issues are
identified in Regulatory Guide 1.35, Revision 3, but are not currently
addressed in Subsection IWL. Section 50.55a(b)(2)(ix)(A) requires that
grease caps which are accessible must be visually examined to detect
grease leakage or grease cap deformation. Section 50.55a(b)(2)(ix)(B)
requires the preparation of an Engineering Evaluation Report when
consecutive surveillances indicate a trend of prestress loss to below
the minimum prestress requirements. Section 50.55a(b)(2)(ix)(C)
requires an evaluation to be performed for instances of wire failure
and slip of wires in anchorages. Section 50.55a(b)(2)(ix)(D) addresses
sampled sheathing filler grease and reportable conditions. A comment
was received on this provision which resulted in an editorial change
(this was discussed on page 12). Section 50.55a(b)(2)(ix)(E) requires
that licensees evaluate the acceptability of inaccessible areas of
concrete containments when conditions exist in accessible areas that
suggest the possibility of degradation in inaccessible areas.
Existing Sec. 50.55a(g), ``Inservice inspection requirements,''
specifies the requirements for preservice and inservice examinations
for Class 1 (Class 1 refers to components of the reactor coolant
pressure boundary), Class 2 (Class 2 quality standards are applied to
water- and steam-containing pressure vessels, heat exchangers (other
than turbines and condensers), storage tanks, piping, pumps, and valves
that are part of the reactor coolant pressure boundary (e.g., systems
designed for residual heat removal and emergency core cooling)), and
Class 3 (Class 3 quality standards are applied to radioactive-waste-
containing pressure vessels, heat exchangers (other than turbines and
condensers), storage tanks, piping, pumps, and valves (not part of the
reactor coolant pressure boundary)) components and their supports.
Subsection IWE (Class MC--metal containments) and Subsection IWL (Class
CC--concrete containments) are incorporated by reference into the NRC
regulations for the first time.
Section 50.55a(g)(4) specifies the containment components to which
the ASME Code Class MC and Class CC inservice inspection
classifications incorporated by reference in this rule will apply.
Section 50.55a (g)(4)(v)(A), (v)(B), and (v)(C) specify the
Subsection IWE and Subsection IWL rules for inservice inspection,
repair, and replacement of metal and concrete containments. This is
consistent with the long-standing intent and ongoing application by NRC
and licensees to utilize the rules of Section XI when performing
inservice inspection, repairs, and replacements of applicable
components and their supports.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
Finding of No Significant Environmental Impact
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
subpart A of 10 CFR part 51, that this rule is not a major Federal
action that significantly affects the quality of the human environment
and therefore an environmental impact statement is not required.
This final rule is one part of a regulatory framework directed to
ensuring containment integrity. Therefore, in the general sense, this
rule will have a positive impact on the environment. This rule
incorporates by reference into the NRC regulations requirements
contained in the ASME Code for the inservice inspection of the
containments of nuclear power plants. The performance of containment
examinations, as set forth by the provisions of this final rule, for
PWRs, Ice Condensers, and BWR Mark IIs and IIIs is not expected to
result in significant occupational radiation exposure (1.0 person-rems
per year or 0.04 person-rems per unit averaged over 27 examinations
each year). The above categories of plants, for which the occupational
radiation exposure is insignificant, represent the vast majority of
units (89). For BWR Mark I containments, the estimated occupational
radiation exposure which would be incurred per year while performing
BWR Mark I containment examination is 29.4 person-rems per year or 4.2
person-rems per unit averaged over 7 examinations per year. However,
the estimated occupational radiation exposure per unit does not provide
an accurate representation of the actual radiological exposure that
would be incurred by any one individual. 10 CFR 20.101, ``Radiation
dose standards for individuals in restricted areas'' only permits a
whole body dose of 1.25 rem per calendar quarter. As a practical
matter, licensees carefully manage the exposure incurred by any one
individual by practicing and applying ``as low as reasonably
achievable'' (ALARA) principles to protect the health and safety of
personnel. In the performance of the examination of BWR Mark I
containments, this is accomplished by having several individuals
perform the examinations to ``spread out'' the exposure. In this
manner, no one individual will suffer any significant health effects.
It also must be kept in mind that these containment examinations are
scheduled to occur at the interval of once every 3\1/3\ years. This
provides licensees ample time for planning the examinations, and
scheduling personnel in accord with ALARA considerations. Therefore,
the occupational radiation exposure is insignificant given the
relatively low exposure on a unit basis and the licensees' programs for
controlling the impact of exposure for any one individual.
Actions required of applicants and licensees to implement
containment examinations are of the same nature that applicants and
licensees have been performing for many years in other Section XI ISI
programs. Extension of these actions to additional components,
therefore, should not increase the potential for a negative
environmental impact.
The environmental assessment and finding of no significant impact
on which this determination is based are available for inspection at
the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC. Single copies of the environmental assessment and the
finding of no significant impact are available from Mr. W. E. Norris,
Division of Engineering Technology, Office of Nuclear Regulatory
Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
telephone (301) 415-6796.
Paperwork Reduction Act Statement
This final rule amends information collection requirements that are
subject
[[Page 41310]]
to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These
requirements were approved by the Office of Management and Budget,
approval number 3150-0011.
The public reporting burden for this collection of information is
estimated to average 4,000 hours per response for development of an
initial inservice inspection plan, and 8,000 hours per response for the
update of the plan and periodic examinations, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. The estimate of 8,000 hours for plan update
and performing periodic examinations is a 2,000 hour reduction from the
estimate given in the proposed rulemaking. This reduction results from
changes made in response to public comment. A number of examinations
have been modified or made optional greatly reducing the effort
required to comply with the requirements contained in the final rule.
Send comments on any aspect of this collection of information,
including suggestions for reducing the burden, to the Information and
Records Management Branch (T-6 F33), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
at [email protected]; and to the Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202, (3150-0011), Office of Management and
Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule affects only the operation of nuclear power plants. 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 set out in
regulations issued by the Small Business Administration at 13 CFR part
121. Since these companies are dominant in their service areas, this
rule does not fall within the purview of the Act.
Backfit Statement
The NRC is amending its regulations to incorporate by reference the
1992 Edition with the 1992 Addenda of Subsection IWE and Subsection IWL
to assure that the critical areas of containments are routinely
inspected to detect defects that could compromise a containment's
structural integrity. Based on a preponderance of reliable information,
the NRC concludes that this rule is a compliance backfit, and therefore
a backfit analysis is not required pursuant to 10 CFR 50.109(a)(4)(i).
A summary of noncompliance is set forth below. The documented
evaluation required by Sec. 50.109(a)(4) to support this conclusion 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 Mr. W.E. Norris, Division of Engineering Technology,
Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, telephone (301) 415-6796.
The rate of occurrence of corrosion and degradation of containment
structures has been increasing at operating nuclear power plants. There
have been 32 reported occurrences of corrosion in metal containments
and the liners of concrete containments. This is approximately one-
fourth of all operating nuclear power plants. Only four of the 32
occurrences were detected by current licensee containment inspection
programs. Nine of these occurrences were first identified by the NRC
through its inspections or structural audits. Eleven occurrences were
detected by licensees after they were alerted to a degraded condition
at another site or through activity other than containment inspection.
There have been 34 reported occurrences of degradation of the concrete
or of the post-tensioning systems of concrete containments. This is
nearly one-half of these types of containments. It is clear that
current licensee containment inspection programs have not proved to be
adequate to detect the types of degradation which have been reported.
Examples of degradation not found by licensees, but initially detected
at plants through NRC inspections include: (1) Corrosion of steel
containment shells in the drywell sand cushion region, resulting in
wall thickness reduction to below the minimum design thickness; (2)
corrosion of the torus of the steel containment shell (wall thickness
below minimum design thickness); (3) extensive corrosion of the liner
of a concrete containment with local degradation at many locations to
approximately half-depth; (4) grease leakage from the tendons of
prestressed concrete containments; and (5) leaching as well as
excessive cracking in concrete containments.
None of the existing requirements for containment inspection
provide specific guidance on how to perform the necessary containment
examinations. This lack of guidance has resulted in a large variation
with regard to the performance and the effectiveness of licensee
containment examination programs. Based on the results of inspections
and audits, and plant operational experiences, it is clear that many
licensee containment examination programs have not detected degradation
that could result in a compromise of pressure-retaining capability.
Most of those occurrences were first identified by the NRC through
its inspections or audits of plant structures, or by licensees while
performing an unrelated activity or, after they were alerted to a
degraded condition at another site. In analyzing the reported
containment degradation, it is apparent that all containments are
subject to certain type(s) of degradation depending on the design.
Information gathered by the staff indicates that many licensees still
have not reacted to this serious safety concern and have not initiated
comprehensive containment inservice inspection. As a result of the rate
of occurrence of containment degradation, and the extent of containment
degradation, the NRC believes that there is a basis for reasonably
concluding that such degradation is widespread and affects virtually
all plants. Because of the serious degradation which has occurred, the
belief that additional occurrences of noncompliance with required
minimum wall thicknesses and prestressing forces will be reported, and
the high likelihood that some of those occurrences could result in loss
of structural integrity and leak-tightness, the NRC has determined that
imposition of these containment inservice inspection requirements under
the compliance exception to 10 CFR 50.109(a)(4)(i) is appropriate.
The NRC believes that the final action would also result in a
substantial safety increase and that the direct and indirect costs of
implementation are justified in view of the significant safety benefit
to be gained. The NRC believes that the inspections contained in
Subsections IWE and IWL will improve significantly the ability to
detect degradation and take timely action to correct degradation of
containment structures. A review of early implementation of the
maintenance rule (10 CFR 50.65) at nine
[[Page 41311]]
nuclear power plants, which is documented in NUREG-1526, indicates that
most licensees assigned a low priority to the monitoring of structures.
Several licensees incorrectly assumed that many of their structures are
inherently reliable. This is true so long as there is no degradation.
However, the degradation of structures can reduce high margins of
safety to a low or negligible margin of safety. As discussed earlier,
such substantial containment degradations have been detected at a large
number of nuclear power plants, and their detection to date can best be
characterized as happenstance. The final rule will provide for improved
periodic examination of containment structures assuring that the
critical areas of containment are periodically inspected to detect and
take corrective action for defects that could compromise the
containment's pressure-retaining and leak-tight capability. The NRC
believes, therefore, that the final action can be justified as a cost-
justified safety enhancement backfit, as well as a compliance backfit.
List of Subjects in 10 CFR Part 50
Antitrust, Classified information, Criminal Penalties, Fire
protection, Incorporation by reference, Intergovernmental relations,
Nuclear power plants and reactors, Radiation protection, Reactor siting
criteria, Reporting and recordkeeping requirements.
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. 533, the NRC is adopting the
following amendments to 10 CFR part 50.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
1. The authority citation for part 50 continues to read as follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd)
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58,
50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939
(42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184,
68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. Section 50.55a is amended by adding paragraphs (b)(2)(vi),
(b)(2)(ix), (b)(2)(x), (g)(4)(v), and (g)(6)(ii)(B), and revising the
introductory text of paragraphs (b)(2) and (g)(4) to read as follows:
Sec. 50.55a Codes and standards.
* * * * *
(b) * * *
(2) As used in this section, references to Section XI of the ASME
Boiler and Pressure Vessel Code refer to Class 1, Class 2, and Class 3
components of Section XI, Division 1, and include addenda through the
1988 Addenda and editions through the 1989 Edition, and Class MC and
Class CC components of Section XI, Division 1, 1992 Edition with the
1992 Addenda, subject to the following limitations and modifications:
* * * * *
(vi) Effective edition and addenda of Subsection IWE and Subsection
IWL, Section XI. The 1992 Edition with the 1992 Addenda of Subsection
IWE and Subsection IWL shall be used by licensees when performing
containment examinations as modified and supplemented by the
requirements in Sec. 50.55a(b)(2)(ix) and Sec. 50.55a(b)(2)(x).
* * * * *
(ix) Examination of concrete containments. (A) Grease caps that are
accessible must be visually examined to detect grease leakage or grease
cap deformations. Grease caps must be removed for this examination when
there is evidence of grease cap deformation that indicates
deterioration of anchorage hardware.
(B) When evaluation of consecutive surveillances of prestressing
forces for the same tendon or tendons in a group indicates a trend of
prestress loss such that the tendon force(s) would be less than the
minimum design prestress requirements before the next inspection
interval, an evaluation shall be performed and reported in the
Engineering Evaluation Report as prescribed in IWL-3300.
(C) When the elongation corresponding to a specific load (adjusted
for effective wires or strands) during retensioning of tendons differs
by more than 10 percent from that recorded during the last measurement,
an evaluation must be performed to determine whether the difference is
related to wire failures or slip of wires in anchorages. A difference
of more than 10 percent must be identified in the ISI Summary Report
required by IWA-6000.
(D) The licensee shall report the following conditions, if they
occur, in the ISI Summary Report required by IWA-6000:
(1) The sampled sheathing filler grease contains chemically
combined water exceeding 10 percent by weight or the presence of free
water;
(2) The absolute difference between the amount removed and the
amount replaced exceeds 10 percent of the tendon net duct volume.
(3) Grease leakage is detected during general visual examination of
the containment surface.
(E) For Class CC applications, the licensee shall evaluate the
acceptability of inaccessible areas when conditions exist in accessible
areas that could indicate the presence of or result in degradation to
such inaccessible areas. For each inaccessible area identified, the
licensee shall provide the following in the ISI Summary Report required
by IWA-6000:
(1) A description of the type and estimated extent of degradation,
and the conditions that led to the degradation;
(2) An evaluation of each area, and the result of the evaluation,
and;
(3) A description of necessary corrective actions.
(x) Examination of metal containments and the liners of concrete
containments. (A) For Class MC applications, the licensee shall
evaluate the acceptability of inaccessible areas when conditions exist
in accessible areas that could indicate the presence of or result in
degradation to such inaccessible areas. For each inaccessible area
identified, the licensee shall provide the following in the ISI Summary
Report required by IWA-6000:
(1) A description of the type and estimated extent of degradation,
and the conditions that led to the degradation;
(2) An evaluation of each area, and the result of the evaluation,
and;
(3) A description of necessary corrective actions.
(B) When performing remotely the visual examinations required by
Subsection IWE, the maximum direct examination distance specified in
Table IWA-2210-1 may be extended and the minimum illumination
requirements specified in Table IWA-2210-1 may be decreased provided
that the conditions or indications for which the visual
[[Page 41312]]
examination is performed can be detected at the chosen distance and
illumination.
(C) The examinations specified in Examination Category E-B,
Pressure Retaining Welds, and Examination Category E-F, Pressure
Retaining Dissimilar Metal Welds, are optional.
(D) Section 50.55a(b)(2)(x)(D) may be used as an alternative to the
requirements of IWE-2430.
(1) If the examinations reveal flaws or areas of degradation
exceeding the acceptance standards of Table IWE-3410-1, an evaluation
shall be performed to determine whether additional component
examinations are required. For each flaw or area of degradation
identified which exceeds acceptance standards, the licensee shall
provide the following in the ISI Summary Report required by IWA-6000:
(i) A description of each flaw or area, including the extent of
degradation, and the conditions that led to the degradation;
(ii) The acceptability of each flaw or area, and the need for
additional examinations to verify that similar degradation does not
exist in similar components, and;
(iii) A description of necessary corrective actions.
(2) The number and type of additional examinations to ensure
detection of similar degradation in similar components.
(E) A general visual examination as required by Subsection IWE
shall be performed once each period.
* * * * *
(g) * * *
(4) Throughout the service life of a boiling or pressurized water-
cooled nuclear power facility, components (including supports) which
are classified as ASME Code Class 1, Class 2, and Class 3 must meet the
requirements, except design and access provisions and preservice
examination requirements, set forth in Section XI of editions of the
ASME Boiler and Pressure Vessel Code and Addenda that become effective
subsequent to editions specified in paragraphs (g)(2) and (g)(3) of
this section and that are incorporated by reference in paragraph (b) of
this section, to the extent practical within the limitations of design,
geometry and materials of construction of the components. Components
which are classified as Class MC pressure retaining components and
their integral attachments, and components which are classified as
Class CC pressure retaining components and their integral attachments
must meet the requirements, except design and access provisions and
preservice examination requirements, set forth in Section XI of the
ASME Boiler and Pressure Vessel Code and Addenda that are incorporated
by reference in paragraph (b) of this section, subject to the
limitation listed in paragraph (b)(2)(vi) and the modifications listed
in paragraphs (b)(2)(ix) and (b)(2)(x) of this section, to the extent
practical within the limitations of design, geometry and materials of
construction of the components.
* * * * *
(v) For a boiling or pressurized water-cooled nuclear power
facility whose construction permit was issued after January 1, 1956:
(A) Metal containment pressure retaining components and their
integral attachments must meet the inservice inspection, repair, and
replacement requirements applicable to components which are classified
as ASME Code Class MC;
(B) Metallic shell and penetration liners which are pressure
retaining components and their integral attachments in concrete
containments must meet the inservice inspection, repair, and
replacement requirements applicable to components which are classified
as ASME Code Class MC; and
(C) Concrete containment pressure retaining components and their
integral attachments, and the post-tensioning systems of concrete
containments must meet the inservice inspection and repair requirements
applicable to components which are classified as ASME Code Class CC.
* * * * *
(6) * * *
(ii) * * *
(B) Expedited examination of containment. (1) Licensees of all
operating nuclear power plants shall implement the inservice
examinations specified for the first period of the first inspection
interval in Subsection IWE of the 1992 Edition with the 1992 Addenda in
conjunction with the modifications specified in Sec. 50.55a (b)(2)(ix)
by September 9, 2001. The examination performed during the first period
of the first inspection interval shall serve the same purpose for
operating plants as the preservice examination specified for plants not
yet in operation.
(2) Licensees of all operating nuclear power plants shall implement
the inservice examinations which correspond to the number of years of
operation which are specified in Subsection IWL of the 1992 Edition
with the 1992 Addenda in conjunction with the modifications specified
in Sec. 50.55a (b)(2)(ix) by September 9, 2001. The first examination
performed shall serve the same purpose for operating plants as the
preservice examination specified for plants not yet in operation.
(3) The expedited examination for Class MC components may be used
to satisfy the requirements of routinely scheduled examinations of
Subsection IWE subject to IWA-2430(d) when the expedited examination
occurs during the first containment inspection interval.
(4) The requirement for the expedited examination of the
containment post-tensioning system may be satisfied by the post-
tensioning system examinations performed after September 9, 1996 as a
result of licensee post-tensioning system programs accepted by the NRC
prior to September 9, 1996.
(5) Licensees do not have to submit to the NRC staff for approval
of their containment inservice inspection program which was developed
to satisfy the requirements of Subsection IWE and Subsection IWL with
specified modifications and a limitation. The program elements and the
required documentation shall be maintained on site for audit.
* * * * *
Dated at Rockville, Maryland, this 12th day of June 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-20215 Filed 8-7-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-20201 Office of the Assistant Secretary for Fair Housing and Equal Opportunity; Revision of HUD's Fair Housing Complaint Processing
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41480-41482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20201]
[[Page 41479]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 103
Revision of HUD's Fair Housing Complaint Processing; Interim Rule
Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41480]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 103
[Docket No. FR-4031-I-01]
RIN 2529-AA79
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity; Revision of HUD's Fair Housing Complaint Processing
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends HUD's regulations governing fair
housing complaint processing. Specifically, this rule removes the
provision allowing a respondent to request a subpoena during a fair
housing investigation. The removal of this provision will eliminate the
delays associated with subpoena requests and expedite the investigation
process. Further, the rule will prevent the appearance of a conflict of
interest between HUD's dual role as investigator and impartial arbiter
of discovery disputes between complainants and respondents. This
interim rule will also conform HUD's investigation practices with those
of other Federal administrative agencies.
DATES: Effective date: September 9, 1996.
Comments due date: October 7, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
the interim rule to the Office of the General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying during regular business
hours (7:30 a.m. to 5:30 p.m. Eastern Time) at the above address.
FOR FURTHER INFORMATION CONTACT: Susan Forward, Deputy Assistant
Secretary for Enforcement and Investigations, Room 5106, Department of
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC
20410, telephone number (202) 708-4211. For hearing- and speech-
impaired persons, this number may be accessed via TTY by calling the
Federal Information Relay Service at 1-800-877-8339. (With the
exception of the ``800'' number, these numbers are not toll free.)
SUPPLEMENTARY INFORMATION:
I. Background
A. Respondent's Right to Request Subpoena
The Fair Housing Amendments Act of 1988 amended section 811 of the
Fair Housing Act (title VIII of the Civil Rights Act of 1968, as
amended, 42 U.S.C. 3601 et seq.) (the Act). Section 811, as amended,
authorizes the Secretary of HUD to issue subpoenas and order discovery
in aid of fair housing investigations and hearings. The Secretary has
delegated this investigative authority to the Assistant Secretary for
Fair Housing and Equal Opportunity. The Secretary's authority to
conduct hearings has been delegated to HUD's administrative law judges.
Prior to the Fair Housing Amendments Act of 1988, the Act did not
contain an administrative hearing process with discovery available to
the parties. However, the original language of section 811(b) of the
Act permitted a respondent to request the issuance of a subpoena during
a fair housing investigation:
Upon written application to the Secretary, a respondent shall be
entitled to the issuance of a reasonable number of subpoenas by and
in the name of the Secretary to the same extent and subject to the
same limitations as subpoenas issued by the Secretary himself.
Subpoenas issued at the request of a respondent shall show on
their face the name and address of such respondent and shall state
that they were issued at his request. 42 U.S.C. 3611(b) (1969).
The Fair Housing Amendments Act of 1988 removed the above-quoted
provision from the Act and granted the Secretary sole authority for
conducting discovery during fair housing investigations. However, HUD's
regulation at 24 CFR 103.215, published on January 23, 1989, includes a
provision which permits a respondent to request a subpoena during an
investigation. HUD's regulations do not provide a complaining party
with the opportunity to request issuance of a subpoena. However, the
complainant is permitted to request that the Assistant Secretary for
Fair Housing and Equal Opportunity revoke, quash or modify a
respondent's subpoena. This difference was based, in part, on the
assumption that HUD would be representing the interests of the
complaining party, and therefore the respondent should be offered the
ability to discover information in its own defense.
A recent Department of Justice memorandum 1 calls that
assumption into question. The memorandum states that the responsibility
of the government in the conduct of fair housing cases is not to
advocate for the complainant, but to serve the government's goals of
doing justice and correcting societal wrongs. Consequently, HUD's role
in a fair housing investigation is to objectively consider the facts
and determine whether cause exists to believe that a violation of the
Act has occurred, not to represent the interests of the complainant.
---------------------------------------------------------------------------
\1\ Assistant Attorney General Walter Dellinger, memorandum to
Deval L. Patrick, Assistant Attorney General for Civil Rights, The
Relationship Between Department Attorneys and Persons on Whose
Behalf the United States Initiates Cases Under the Fair Housing Act
(January 20, 1995).
---------------------------------------------------------------------------
B. Revision of 24 CFR 103.215
The lack of statutory support discussed above has prompted HUD to
publish this interim rule, which revises Sec. 103.215 to delete the
requirement that HUD issue a subpoena at the request of a respondent.
There are additional reasons for HUD's decision to take this action:
1. Prevents Appearance of Conflict of Interest
This interim rule prevents the appearance of a conflict of interest
between the Assistant Secretary's dual roles as investigator and as
impartial arbiter of discovery disputes between complainants and
respondents by removing the requirement that HUD engage in discovery at
the direction of one of the parties. The refereeing of these disputes
is a function more properly allocated to the administrative law judges
in the context of administrative hearings, or district court judges in
the context of elected federal litigation.
2. Expedites Investigation Process
This interim rule eliminates delays in the investigation process
which are associated with processing subpoena requests from
respondents. The Act charges HUD with completing all fair housing
investigations within a 100-day period, if practicable. If the fair
housing investigation cannot be completed within that time, the
Secretary is required to notify the complainant and the respondent of
the reasons for the delay. (42 U.S.C. 3610(a)(1).) However, the United
States Commission on Civil Rights noted, in its report on enforcement
of the Act, that the complexity of some cases and the heavy caseload
burden on investigative staff
[[Page 41481]]
bore out the observation that HUD frequently is not able to close
complaints or make determinations in 100 days.2 HUD has determined
that pursuing discovery at the direction of the respondent, in addition
to the discovery that HUD determines is necessary to the investigation,
is not necessary to a fair and impartial determination and can actually
impede HUD's efforts to complete the investigation in a timely manner.
---------------------------------------------------------------------------
\2\ United States Commission on Civil Rights, The Fair Housing
Amendments Act of 1988: The Enforcement Report, at 40-42 (1994).
---------------------------------------------------------------------------
3. Conforms HUD's Investigative Practices to Other Federal Agencies
This interim rule will conform HUD's investigation practices with
those of other Federal administrative agencies, which do not provide
for discovery by parties during the investigation of civil rights
complaints. HUD's review of the relevant regulations of the Equal
Employment Opportunity Commission for Title VII of the Civil Rights Act
of 1968 (29 CFR part 1601), the Americans with Disabilities Act (29 CFR
part 1630), the Equal Pay Act (29 CFR part 1620), and the Age
Discrimination in Employment Act (29 CFR part 1626) revealed that a
respondent does not have an opportunity to request a subpoena during
the government's investigation of a civil rights complaint under any of
these regulations. Similar regulations governing the Department of
Education's enforcement of Title IX of the Education Amendments of 1972
(34 CFR part 106), and the Department of Justice's enforcement of the
Immigration Reform and Control Act of 1986 (28 CFR part 44) also do not
contain any provisions authorizing a respondent to request a subpoena
during a civil rights investigation under these statutes.
HUD believes that the experience of other Federal administrative
agencies provides positive guidance for this decision to streamline and
simplify the investigation process.
C. Respondent's Ability To Prepare Its Defense
HUD believes it is important to emphasize that this interim rule
does not compromise a respondent's ability to prepare its own defense.
A respondent may continue to conduct an independent investigation of
the facts underlying the fair housing complaint and may obtain the
Final Investigative Report on which HUD's determination is based. This
interim rule does not change a respondent's ability to compel discovery
or request a subpoena from an administrative law judge during the
administrative hearing process. (See 24 CFR 104.500-104.590.) This
interim rule only affects the ability of a respondent to compel the use
of HUD's resources to subpoena evidence independent of the evidence
which HUD has determined is necessary to the investigation.
II. Justification for Interim Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that in this case prior
public comment is contrary to the public interest, since immediate
implementation of this interim rule will benefit the public.
This interim rule removes a respondent's right to request a
subpoena during the course of a fair housing investigation. HUD's
processing of these subpoena requests may delay, and often has delayed,
its investigation of complaints alleging discriminatory housing
practices. By eliminating these delays, this interim rule expedites
HUD's investigations and its ability to enforce the Act. Further, the
rule prevents the appearance of a conflict of interest between HUD's
dual roles as investigator and impartial arbiter of discovery disputes
between complainants and respondents. Such an appearance weakens HUD's
ability to conduct fair housing complaint investigations.
This interim rule does not compromise a respondent's ability to
prepare its own defense. Respondents will still be able to compel
discovery or request subpoenas during the administrative hearing
process. The rule only affects the ability of a respondent to compel
use of HUD's resources to subpoena evidence over and above the
information which HUD has determined is necessary to a full and fair
investigation.
Although HUD believes issuing this interim rule for immediate
effect will benefit the public, HUD welcomes public comment. All
comments will be considered in the development of the final rule.
III. Other Matters
A. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule streamlines
HUD's regulations governing fair housing complaint processing. The rule
will have no adverse or disproportionate economic impact on small
businesses.
B. Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking amends an existing regulation by streamlining provisions and
does not alter the environmental effect of the regulations being
amended. A Finding of No Significant Impact with respect to the
environment was made in accordance with HUD regulations in 24 CFR part
50 that implement section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332) at the time of development of
regulations implementing the Act. That finding remains applicable to
this rule, and is available for public inspection between 7:30 a.m. and
5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of
General Counsel, Room 10276, Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC.
C. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal government and
the States, or on the distribution of power and responsibilities among
the various levels of government. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
D. Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
[[Page 41482]]
E. Executive Order 12866, Regulatory Planning and Review
This interim rule was reviewed by the Office of Management and
Budget under Executive Order 12866, Regulatory Planning and Review. Any
changes made to the interim rule as a result of that review are clearly
identified in the docket file, which is available for public inspection
in the office of the Department's Rules Docket Clerk, Room 10276, 451
Seventh Street, SW., Washington, DC 20410-0500.
List of Subjects in 24 CFR Part 103
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR part 103 is amended as follows:
PART 103--FAIR HOUSING--COMPLAINT PROCESSING
1. The authority citation for 24 CFR part 103 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), 3601-3619.
2. Section 103.215 is amended by revising paragraph (b) to read as
follows:
Sec. 103.215 Conduct of investigations.
* * * * *
(b) The Assistant Secretary may conduct and order discovery in aid
of the investigation by the same methods and to the same extent that
discovery may be ordered in an administrative proceeding under 24 CFR
part 104, except that the Assistant Secretary shall have the power to
issue subpoenas described in 24 CFR 104.590 in support of the
investigation. Subpoenas issued by the Assistant Secretary must be
approved by the General Counsel as to their legality before issuance.
Dated: April 23, 1996.
Elizabeth K. Julian,
Deputy Assistant Secretary for Policy and Initiatives.
[FR Doc. 96-20201 Filed 8-7-96; 8:45 am]
BILLING CODE 4210-28-P
Complete official Federal Register PDF
FR Doc. 96-20195 Common Crop Insurance Regulations; Texas Citrus Fruit Crop Insurance Provisions
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41297-41303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20195]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 457
RIN 0563-AB56
Common Crop Insurance Regulations; Texas Citrus Fruit Crop
Insurance Provisions
AGENCY: Federal Crop Insurance Corporation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Crop Insurance Corporation (FCIC) finalizes
specific crop provisions for the insurance of Texas citrus fruit. The
provisions will be used in conjunction with the Common Crop Insurance
Policy Basic Provisions, which contain standard terms and conditions
common to most crops. The intended effect of this action is to provide
policy changes to better meet the needs of the insured and combine the
current Texas Citrus Endorsement with the Common Crop Insurance Policy
for ease of use and consistency of terms.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Louise Narber, Program Analyst,
Research and Development Division, Product Development Branch, Federal
Crop Insurance Corporation, United States Department of Agriculture,
9435 Holmes Road, Kansas City, MO 64131, telephone (816) 926-7730.
SUPPLEMENTARY INFORMATION:
Executive Order No.12866 and Departmental Regulation 1512-1
This action has been reviewed under United States Department of
Agriculture (USDA) procedures established by Executive Order No. 12866
and Departmental Regulation 1512-1. This action constitutes a review as
to the need, currency, clarity, and effectiveness of these regulations
under those procedures. The sunset review date established for these
regulations is April 30, 2001.
This rule has been determined to be not significant for the
purposes of Executive Order No. 12866 and, therefore, has not been
reviewed by the Office of Management and Budget (OMB).
Paperwork Reduction Act of 1995
Following publication of the proposed rule, the public was afforded
60 days to submit comments, data, and opinions on information
collection requirements previously approved by OMB under OMB control
number 0563-0003 through September 30, 1998. No public comments were
received.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, FCIC
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures of State, local, or tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When such a statement is needed for a rule, section 205 of
the UMRA generally requires FCIC to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, more
cost-effective or least burdensome alternative that achieves the
objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) of State, local, and tribal
governments or the private sector. Thus, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Executive Order No. 12612
It has been determined under section 6(a) of Executive Order No.
12612, Federalism, that this rule does not have sufficient Federalism
implications to warrant the preparation of a Federalism Assessment. The
provisions contained in this rule will not have a substantial direct
effect on States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
Government.
Regulatory Flexibility Act
This regulation will not have a significant impact on a substantial
number of small entities. Under the current regulations, a producer is
required to complete an application and acreage report. If the crop is
damaged or destroyed, the insured is required to give notice of loss
and provide the necessary information to complete a claim for
indemnity. An insured must also annually certify to the previous years
production or receive a transitional yield. The producer must maintain
the production records to support the certified information for at
least 3 years. This regulation does not alter those requirements. The
amount of work required of the insurance companies delivering and
servicing
[[Page 41298]]
these policies will not increase significantly from the amount of work
currently required. This rule does not have any greater or lesser
impact on the producer. Therefore, this action is determined to be
exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C.
Sec. 605), and no Regulatory Flexibility Analysis was prepared.
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order No. 12372
This program is not subject to the provisions of Executive Order
No. 12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order No. 12778
The Office of the General Counsel has determined that these
regulations meet the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order No. 12778. The provisions of this rule will
not have a retroactive effect prior to the effective date. The
provisions of this rule will preempt State and local laws to the extent
such State and local laws are inconsistent herewith. The administrative
appeal provisions published at 7 CFR parts 11 and 780 must be exhausted
before action for judicial review may be brought.
Environmental Evaluation
This action is not expected to have a significant impact on the
quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review Initiative to eliminate unnecessary or duplicative
regulations and improve those that remain in force.
Background
On Wednesday, June 5, 1996, FCIC published a proposed rule in the
Federal Register at 61 FR 28512-28517 to add to the Common Crop
Insurance Regulations (7 CFR part 457), a new section, 7 CFR 457.119,
Texas Citrus Fruit Crop Insurance Provisions. The new provisions will
be effective for the 1998 and succeeding crop years. These provisions
will replace the current provisions for insuring Texas citrus fruit
found at 7 CFR 401.115 (Texas Citrus Endorsement), thereby limiting the
effect of the current provisions to the 1997 and prior crop years.
After this final rule becomes effective, the current provisions for
insuring Texas citrus fruit will be removed from Sec. 401.115 and that
section will be reserved.
Following publication of that proposed rule, the public was
afforded 30 days to submit written comments, data, and opinions. A
total of 25 comments were received from producers, trade associations,
the crop insurance industry and FSA. The comments received, and FCIC's
responses are as follows:
Comment: A representative of FSA suggested that the word ``type''
be changed to ``crop'' throughout the provisions where appropriate
since the citrus type designations used in the past will be replaced
with individual crop codes beginning with the 1998 crop year.
Response: FCIC agrees and has made this change as well as deleting
the definition of type.
Comment: The crop insurance industry commented that the proposed
rule did not contain any reference to acreage reporting and suggested
that such reference be added.
Response: Section 6 (Report of Acreage) of the Basic Provisions
provides information on the reporting of acreage and specifies that the
acreage reporting date will be included in the Special Provisions. No
changes have been made to these provisions.
Comment: The crop insurance industry stated that the definition for
``excess rain'' is not very precise when compared to the definition for
``excess wind''.
Response: FCIC agrees, however it is impossible to specify an
amount of precipitation that would damage the crop. Different soil
types, temperatures, weather patterns, etc., may result in significant
variation in the amount of precipitation that can be tolerated before
the crop is damaged. No changes have been made to the definition.
Comment: A trade association was concerned about the deletion of
``frost'' as a cause of loss. They believed that the proposed
definition for freeze appeared adequate for fruit and tree damage, but
was concerned about frost damage during the bloom period.
Response: The definition of freeze is changed to also include the
formation of ice in the cells of the blossoms.
Comment: The crop insurance industry stated that the provisions
refer to a pro rata refund when optional units are combined into basic
units whenever the insured reported optional units but does not
qualify. They questioned on what basis a pro rata refund would be
determined.
Response: The reference to a pro rata refund has been deleted and
the sentence changed to read ``If failure to comply with these
provisions is determined to be inadvertent, and the optional units are
combined into a basic unit, that portion of the premium paid for the
purpose of electing optional units will be refunded to you for the
units combined.''
Comment: The crop insurance industry stated that they did not
understand why all optional units must be identified on the acreage
report for each crop year. They said that listing every possible
combination for every crop on a policy could test the limits on the
number of policy lines allowed.
Response: Although more than one method is available to determine
optional units, only one method may be used in any given crop year.
Only those optional units determined under the selected method for the
crop year for which the acreage report is completed must be listed.
Optional unit designation from past years or that could have been
established for the current year, should not be listed on the current
crop years' acreage report. The phrase ``established for a crop year''
has been added to the provisions for clarification.
Comment: The crop insurance industry suggested that the provision,
``You must have records, which can be independently verified, of
acreage and production for each optional unit for at least the last
crop year used to determine your production guarantee,'' would cause
confusion between the APH and policy year.
Response: The APH is based on the actual production of the producer
for each crop year in which a crop is produced to a maximum of 10 crop
years. There is no requirement that the producers have insured the crop
before its production be included in the APH data base. FCIC believes
the provision is clearly stated and has not made changes.
Comment: The crop insurance industry suggested that section 3(a)
begin with the phrase ``You may select only one price percentage * *
*.'' It would not then be necessary to include complex provisions
regarding different varieties with different maximum prices.
Response: Methods used to select price elections vary between
insurance providers. While some require selection of a percentage,
others require selection of a specific dollar amount. The suggested
change will not work in all
[[Page 41299]]
circumstances. No change has been made to the provisions.
Comment: The crop insurance industry suggested that the order of
the provisions in section 3 (Insurance Guarantees, Coverage Levels, and
Prices for Determining Indemnities) be rearranged for clarity.
Response: FCIC agrees and has rearranged the provisions in this
section.
Comment: The crop insurance industry questioned if the phrase ``Any
acreage of citrus damaged to the extent that the majority of producers
in the area would not further maintain it will be deemed to have been
destroyed even though you may continue to maintain it'' is necessary to
the policy and what it means.
Response: This provision is intended to limit acreage to the first
stage production guarantee when the crop is damaged to the extent that
a majority of producers in the area would not continue to maintain it.
This intent has been clarified.
Comment: A producer and a trade association stated that
establishing yields based on APH regulations will not work following a
general and severe loss. They contend that the citrus trees are still
recovering from the 1989 freeze and have only begun producing in the
last three to four years and still have not reached peak production.
Therefore, APH yields may not accurately reflect production potential.
Also, some citrus tends to be alternate bearing which will make it
difficult to develop acceptable T-yields and to apply APH rules. The
yields of tree crops are affected by tree age, size of canopy, and
other constraints, which do not affect annual crops. The planting of
new trees impacts the APH yield even if the trees are not damaged. Full
production for new trees generally occurs the sixth year after planting
and at least 25-30% of the citrus acreage has not reached full
production.
Response: FCIC believes that section 3(d) in the proposed rule (now
3(e)) provides the flexibility needed to allow yield determination by
appraisal when past production history is inadequate.
Comment: The crop insurance industry questioned if the lag year
should apply to the provision that requires that the acreage produce an
average yield of at least 3 tons per acre the previous year to be
insurable.
Response: The provision for the grove to have produced at least 3
tons per acre the previous year to be insurable will only be required
if the yield is determined by APH yields. For other methods, there must
be at least a 3-ton per acre appraised yield potential to be insured.
Comment: The crop insurance industry questioned why 30 days were
changed to 10 days in section 9(a)(1) of the policy that states ``* * *
if the application is accepted by us after November 20, insurance will
attach on the 10th day after the application is received in your
insurance provider's local office * * *.'' and if the 10-day period
would allow enough time to complete inspections.
Response: The language in section 9(a)(1) has been changed as
follows ``Coverage begins on November 21 of each crop year, except that
for the year of application, if your application is received after
November 11 but prior to November 21, insurance will attach on the 10th
day after your properly completed application is received in our local
office unless we inspect the acreage during the 10-day period and
determine that it does not meet insurability requirements. You must
provide any information that we require for the crop or to determine
the condition of the grove.'' These provisions were modified so that
they will not be interpreted as allowing late-filed applications.
Further, a thirty-day period was not reasonable. Ten days is sufficient
to prevent adverse selection and avoid unnecessary exposure to
uninsured losses during the waiting period. The insurance provider must
expedite its review of the application and any supporting documentation
filed by the producer, determine if a visual inspection is necessary,
and perform any necessary inspections within the 10-day period. The
period of 10 days is believed appropriate to meet the needs of both the
producer and the insurance provider.
Comment: The crop insurance industry stated that some flexibility
may be needed for obtaining signatures and for mail time if a transfer
takes place shortly before the acreage reporting date but the transfer
form does not reach the company office until after the acreage
reporting date.
Response: Section 9(b)(2)(ii) (Insurance Period) states ``We are
notified by you or the transferee in writing of such transfer on or
before the acreage reporting date * * *.'' If the transferor or the
transferee signs the properly completed transfer form and gives the
form to the crop insurance agent on or before the acreage reporting
date, this requirement will be met. No change has been made to the
provisions.
Comment: The crop insurance industry and a trade association
questioned whether changing an insured cause of loss from ``failure of
the irrigation water supply'' to ``failure of the irrigation water
supply, if caused by an insured peril that occurs during the insurance
period'' would be an insurable cause of loss if the drought started in
one crop year and reduced the available water to ``barely enough'' and
continued into another crop year. They also stated that drought needs
to be a covered cause of loss as well as failure of the irrigation
supply because producers count on rainfall, as well as irrigation to
produce normal tonnage and quality of fruit. If the trees were under
stress from drought in the summer or fall before bloom, which would be
prior to the beginning of the insurance period, the bloom and
consequently fruit set would be affected.
Response: Drought is a covered cause of loss for crops requiring
irrigation to be insurable. However, the commenters are suggesting that
drought be covered even though the damage from the drought occurred
before insurance attached for the crop year. It is contrary to
insurance principles to cover a loss that occurred prior to insurance
attaching. If there is insufficient water available at the time
insurance attached, the crop is not insurable. If there is sufficient
water available at the time insurance attaches, but a continuing
drought results in insufficient water and damage to the crop, any
resulting loss would be insured. No change has been made.
Comment: The crop insurance industry suggested that the last line
of section 9(b)(2)(ii) of the proposed rule should be a separate line.
Response: FCIC has reformatted and changed the wording of this
provision to improve the readability.
Comment: A trade association believes that the requirement for a
producer to give 15 days notice for an appraisal before any fruit is
marketed directly to consumers is totally unworkable. Their biggest
concern is that the appraisal may not be completed in a timely manner.
Response: The producer is required to give notice at least 15 days
prior to any production being marketed directly to consumers and the
insurance provider is required to complete the appraisal within that 15
day period. The production may be marketed directly to consumers any
time after the end of the 15-day waiting period regardless of whether
or not the insurance provider has fulfilled their responsibility of
appraising the crop. FCIC believes that 15 days is appropriate to meet
the needs of both the producer and the insurance provider.
Comment: The crop insurance industry believes that the policy
should
[[Page 41300]]
not allow the producer to defer settlement and wait for a later,
generally lower, appraisal on insured acreage the producer intends to
abandon or no longer care for.
Response: The later appraisal will only be necessary if the
insurance provider agrees that such appraisal would result in a more
accurate determination, and if the producer continues to care for the
crop. If the producer does not care for the crop, the original
appraisal is used. If the insurance provider believes the original
appraisal is accurate, resolution of the dispute may be sought through
arbitration or appeal procedures, whichever is applicable. No change
will be made to these provisions.
Comment: The crop insurance industry suggested combining the
provisions contained in section 13(e) with the provisions in section
13(a).
Response: The provisions are clearly stated and have not been
combined.
Comment: The crop insurance industry stated that they believe the
written agreement should be continuous if no substantive changes occur
from one year to the next.
Response: The written agreement can only be valid for one year
because it must contain all the variable terms of the contract
including, but not limited to, crop type or variety, the guarantee,
premium rate, and price election. One or more of these variables often
changes from year to year. No change has been made to these provisions.
In addition, written agreements are, by design, temporary and should be
replaced by applicable policy provisions.
In addition to the changes described above, FCIC has made the
following changes to the Texas Citrus Fruit Provisions:
1. Section 1--Added definitions for ``crop'' and ``varieties'' for
clarification.
2. Section 1--Changed the definition of ``non-contiguous land'' so
that a producer who share rents acreage is not prohibited from having
optional units on non-contiguous land to conform to other perennial
policies.
3. Section 1--Changed the definition of `` Excess wind'' and
``production guarantee (per acre)'' for clarification.
4. Section 3(d)--Add a provision requiring the producer to report
any circumstance that may reduce the yield to include other causes that
may not be encompassed by the other listed events.
5. Section 7--Added a provision to state that production that is
direct marketed to consumers is not insurable unless allowed by the
Special Provisions or by written agreement.
6. Section 8--Changed provisions regarding interplanted acreage so
that all insurability requirements contained in the policy are
applicable, not just these crop provisions.
7. Section 9--Clarified that the transferee must be an eligible
person.
8. Section 11--Changed the wording for clarification and added a
provision requiring the producer to give notice before beginning to
harvest any damaged production so the insurer may have an opportunity
to inspect it if the insured intends to claim an indemnity on any unit.
9. Section 12--Changed the wording for simplification and clarity.
10. Section 13--Changed the format and wording for clarity.
Good cause is shown to make this rule effective upon publication in
the Federal Register. This rule improves the Texas citrus fruit
insurance coverage and brings it under the Common Crop Insurance Policy
Basic Provisions for consistency among policies. The contract change
date required for new policies is August 31, 1996. It is therefore
imperative that these provisions be made final before that date so that
the reinsured companies and insureds may have sufficient time to
implement the new provisions. Therefore public interest requires the
agency to act immediately to make these provisions available for the
1998 crop year.
List of Subjects in 7 CFR Part 457
Crop insurance, Texas citrus fruit.
Final Rule
Pursuant to the authority contained in the Federal Crop Insurance
Act, as amended (7 U.S.C. 1501 et seq.), the Federal Crop Insurance
Corporation hereby amends the Common Crop Insurance Regulations (7 CFR
part 457), effective for the 1998 and succeeding crop years, to read as
follows:
PART 457--[AMENDED]
1. The authority citation for 7 CFR part 457 continues to read as
follows:
Authority: 7 U.S.C. 1506(l), and 1506(p).
2. 7 CFR part 457 is amended by adding a new Sec. 457.119 to read
as follows:
Sec. 457.119 Texas Citrus Fruit Crop Insurance Provisions.
The Texas Citrus Fruit Crop Insurance Provisions for the 1998 and
succeeding crop years are as follows:
United States Department of Agriculture; Federal Crop Insurance
Corporation; Texas Citrus Fruit Crop Provisions
If a conflict exists among the Basic Provisions (Sec. 457.8),
these crop provisions, and the Special Provisions; the Special
Provisions will control these crop provisions and the Basic
Provisions; and these crop provisions will control the Basic
Provisions.
1. Definitions
Crop--Specific groups of citrus fruit as listed in the Special
Provisions.
Crop year--The period beginning with the date insurance attaches
to the citrus crop and extending through the normal harvest time. It
is designated by the calendar year following the year in which the
bloom is normally set.
Days--Calendar days.
Direct marketing--Sale of the insured crop directly to consumers
without the intervention of an intermediary such as a wholesaler,
retailer, packer, processor, shipper, or buyer. Examples of direct
marketing include selling through an on-farm or roadside stand,
farmer's market, and permitting the general public to enter the
field for the purpose of picking all or a portion of the crop.
Excess rain--An amount of precipitation that damages the crop.
Excess wind--A natural movement of air that has sustained speeds
exceeding 58 miles per hour recorded at the U. S. Weather Service
reporting station operating nearest to the grove at the time of
damage.
Freeze--The formation of ice in the cells of the tree, its
blossoms, or its fruit caused by low air temperatures.
FSA--The Farm Service Agency, an agency of the United States
Department of Agriculture, or any successor agency.
Good farming practices--The cultural practices generally in use
in the county for the crop to make normal progress toward maturity
and produce at least the yield used to determine the production
guarantee, and generally recognized by the Cooperative Extension
Service as compatible with agronomic and weather conditions in the
county.
Harvest--The severance of mature citrus fruit from the tree by
pulling, picking, or any other means, or by collecting marketable
fruit from the ground.
Hedged--A process of trimming the sides of the citrus trees for
better or more fruitful growth of the citrus fruit.
Interplanted--Acreage on which two or more crops are planted in
any form of alternating or mixed pattern.
Irrigated practice--A method of producing a crop by which water
is artificially applied during the growing season by appropriate
systems and at the proper times, with the intention of providing the
quantity of water needed to produce at least the yield used to
establish the irrigated production guarantee on the irrigated
acreage planted to the insured crop.
Local market price--The applicable citrus price per ton offered
by buyers in the area in which you normally market the insured crop.
Non-contiguous land--Any two or more tracts of land whose
boundaries do not touch at any point, except that land separated
only by a public or private right-of way, waterway, or an irrigation
canal will be considered as contiguous.
Production guarantee (per acre):
[[Page 41301]]
(a) First stage production guarantee--The second stage
production guarantee multiplied by forty percent (40%).
(b) Second stage production guarantee--The quantity of citrus
(in tons) determined by multiplying the yield determined in
accordance with section 3 by the coverage level percentage you
elect.
Ton--Two thousand (2,000) pounds avoirdupois.
Topped--A process of trimming the uppermost portion of the
citrus trees for better and more fruitful growth of the citrus
fruit.
Varieties--Subclasses of crops as listed in the Special
Provisions.
Written agreement--A written document that alters designated
terms of a policy in accordance with section 13.
2. Unit Division
(a) A unit as defined in section 1 (Definitions) of the Basic
Provisions (Sec. 457.8), will be divided into basic units by each
citrus crop designated in the Special Provisions.
(b) Unless limited by the Special Provisions, these basic units
may be divided into optional units if, for each optional unit you
meet all the conditions of this section or if a written agreement to
such division exists.
(c) Basic units may not be divided into optional units on any
basis including, but not limited to, production practice, type, and
variety, other than as described in this section.
(d) If you do not comply fully with these provisions, we will
combine all optional units that are not in compliance with these
provisions into the basic unit from which they were formed. We will
combine the optional units at any time we discover that you have
failed to comply with these provisions. If failure to comply with
these provisions is determined to be inadvertent, and the optional
units are combined into a basic unit, that portion of the premium
paid for the purpose of electing optional units will be refunded to
you for the units combined.
(e) All optional units established for a crop year must be
identified on the acreage report for that crop year.
(f) The following requirements must be met for each optional
unit:
(1) You must have records, which can be independently verified,
of acreage and production for each optional unit for at least the
last crop year used to determine your production guarantee; and
(2) You must have records of marketed production or measurement
of stored production from each optional unit maintained in such a
manner that permits us to verify the production from each optional
unit, or the production from each unit must be kept separate until
loss adjustment is completed by us.
(3) Each optional unit must meet one of the following criteria,
as applicable:
(i) Optional Units by Section, Section Equivalent, or FSA Farm
Serial Number: Optional units may be established if each optional
unit is located in a separate legally identified section. In the
absence of sections, we may consider parcels of land legally
identified by other methods of measure including, but not limited to
Spanish grants, railroad surveys, leagues, labors, or Virginia
Military Lands, as the equivalent of sections for unit purposes. In
areas that have not been surveyed using the systems identified
above, or another system approved by us, or in areas where such
systems exist but boundaries are not readily discernible, each
optional unit must be located in a separate farm identified by a
single FSA Farm Serial Number; or
(ii) Optional Units on Acreage Located on Non-Contiguous Land:
In lieu of establishing optional units by section, section
equivalent or FSA Farm Serial Number, optional units may be
established if each optional unit is located on non-contiguous land.
3. Insurance Guarantees, Coverage Levels, and Prices for
Determining Indemnities In addition to the requirements of section 3
(Insurance Guarantees, Coverage Levels, and Prices for Determining
Indemnities) of the Basic Provisions (Sec. 457.8):
(a) You may select only one price election and coverage level
for each citrus fruit crop designated in the Special Provisions that
you elect to insure. The price election you choose for each crop
need not bear the same percentage relationship to the maximum price
offered by us for each crop. For example, if you choose one hundred
percent (100%) of the maximum price election for early oranges, you
may choose seventy-five percent (75%) of the maximum price election
for late oranges. However, if separate price elections are available
by variety within each crop, the price elections you choose within
the crop must have the same percentage relationship to the maximum
price offered by us for each variety within the crop.
(b) The production guarantee per acre is progressive by stage
and increases at specific intervals to the final stage production
guarantee. The stages and production guarantees per acre are:
(1) The first stage extends from the date insurance attaches
through April 30 of the calendar year of normal bloom. The
production guarantee will be forty percent (40%) of the yield
calculated in section 3(e) multiplied by your coverage level.
(2) The second or final stage extends from May 1 of the calendar
year of normal bloom until the end of the insurance period. The
production guarantee will be the yield calculated in section 3(e)
multiplied by your coverage level.
(c) Any acreage of citrus damaged in the first stage to the
extent that the majority of producers in the area would not further
maintain it will be limited to the first stage production guarantee
even though you may continue to maintain it.
(d) In addition to the reported production, each crop year you
must report by type:
(1) The number of trees damaged, topped, hedged, pruned or
removed; any change in practices or any other circumstance that may
reduce the expected yield below the yield upon which the insurance
guarantee is based; and the number of affected acres;
(2) The number of bearing trees on insurable and uninsurable
acreage;
(3) The age of the trees and the planting pattern; and
(4) For the first year of insurance for acreage interplanted
with another perennial crop, and anytime the planting pattern of
such acreage is changed:
(i) The age of the interplanted crop, and type if applicable;
(ii) The planting pattern; and
(iii) Any other information that we request in order to
establish your approved yield.
We will reduce the yield used to establish your production
guarantee as necessary, based on our estimate of the effect of the
following: interplanted perennial crop; removal, topping, hedging,
or pruning of trees; damage; change in practices and any other
circumstance on the yield potential of the insured crop. If you fail
to notify us of any circumstance that may reduce your yields from
previous levels, we will reduce your production guarantee as
necessary at any time we become aware of the circumstance.
(e) The yield used to compute your production guarantee will be
determined in accordance with Actual Production History (APH)
regulations, 7 CFR part 400, subpart G, and applicable policy
provisions unless damage or changes to the grove or trees, require
establishment of the yield by another method. In the event of such
damage or changes, the yield will be based on our appraisal of the
potential of the insured acreage for the crop year.
(f) Instead of reporting your citrus production for the previous
crop year, as required by section 3 of the Basic Provisions
(Sec. 457.8), there is a one year lag period. Each crop year you
must report your production from two crop years ago, e.g., on the
1998 crop year production report, you will provide your 1996 crop
year production.
4. Contract Changes
In accordance with section 4 (Contract Changes) of the Basic
Provisions (Sec. 457.8), the contract change date is August 31
preceding the cancellation date.
5. Cancellation and Termination Dates
In accordance with section 2 (Life of Policy, Cancellation, and
Termination) of the Basic Provisions (Sec. 457.8), the cancellation
and termination dates are November 20.
6. Annual Premium
In lieu of the premium computation method in section 7 (Annual
Premium) of the Basic Provisions (Sec. 457.8), the annual premium
amount is computed by multiplying the second stage production
guarantee per acre by the price election, the premium rate, the
insured acreage, your share at the time coverage begins, and by any
applicable premium adjustment percentages contained in the Special
Provisions.
7. Insured Crop
In accordance with section 8 (Insured Crop) of the Basic
Provisions (Sec. 457.8), the crop insured will be all the acreage in
the county of each citrus crop designated in the Special Provisions
that you elect to insure and for which a premium rate is provided by
the actuarial table:
(a) In which you have a share;
(b) That are adapted to the area;
(c) That are irrigated;
(d) That has produced an average yield of at least three tons
per acre the previous year, or we have appraised the yield potential
of at least three tons per acre;
[[Page 41302]]
(e) That is grown in a grove that, if inspected, is considered
acceptable by us; and
(f) That is not sold by direct marketing, unless allowed by the
Special Provisions or by written agreement.
8. Insurable Acreage
In lieu of the provisions in section 9 (Insurable Acreage) of
the Basic Provisions (Sec. 457.8), that prohibit insurance attaching
to a crop planted with another crop, citrus interplanted with
another perennial crop is insurable unless we inspect the acreage
and determine it does not meet the requirements contained in your
policy.
9. Insurance Period
(a) In accordance with the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) Coverage begins on November 21 of each crop year, except
that for the year of application, if your application is received
after November 11 but prior to November 21, insurance will attach on
the 10th day after your properly completed application is received
in our local office, unless we inspect the acreage during the 10 day
period and determine that it does not meet insurability
requirements. You must provide any information that we require for
the crop or to determine the condition of the grove.
(2) The calendar date for the end of the insurance period for
each crop year is the second May 31st of the crop year.
(b) In addition to the provisions of section 11 (Insurance
Period) of the Basic Provisions (Sec. 457.8):
(1) If you acquire an insurable share in any insurable acreage
after coverage begins, but on or before the acreage reporting date
for the crop year, and after an inspection we consider the acreage
acceptable, insurance will be considered to have attached to such
acreage on the calendar date for the beginning of the insurance
period.
(2) If you relinquish your insurable share on any insurable
acreage of citrus on or before the acreage reporting date for the
crop year, insurance will not be considered to have attached to, and
no premium will be due, and no indemnity paid for such acreage for
that crop year unless:
(i) A transfer of coverage and right to an indemnity, or a
similar form approved by us, is completed by all affected parties;
(ii) We are notified by you or the transferee in writing of such
transfer on or before the acreage reporting date; and
(iii) The transferee is eligible for crop insurance.
10. Causes of Loss
(a) In accordance with the provisions of section 12 (Causes of
Loss) of the Basic Provisions (Sec. 457.8), insurance is provided
only against the following causes of loss that occur within the
insurance period:
(1) Excess rain;
(2) Excess wind;
(3) Fire, unless weeds and other forms of undergrowth have not
been controlled or pruning debris has not been removed from the
grove;
(4) Freeze;
(5) Hail;
(6) Tornado;
(7) Wildlife; or
(8) Failure of the irrigation water supply if caused by an
insured peril that occurs during the insurance period.
(b) In addition to the causes of loss excluded in section 12
(Causes of Loss) of the Basic Provisions (Sec. 457.8), we will not
insure against damage or loss of production due to:
(1) Disease or insect infestation, unless a cause of loss
specified in section 10(a):
(i) Prevents the proper application of control measures or
causes properly applied control measures to be ineffective; or
(ii) Causes disease or insect infestation for which no effective
control mechanism is available;
(2) Inability to market the citrus for any reason other than
actual physical damage from an insurable cause specified in this
section. For example, we will not pay you an indemnity if you are
unable to market due to quarantine, boycott, or refusal of any
person to accept production.
11. Duties in the Event of Damage or Loss
In addition to the requirements of section 14 (Duties in the
Event of Damage or Loss) of the Basic Provisions (Sec. 457.8), the
following will apply:
(a) If the Special Provisions permit or a written agreement
authorizing direct marketing exists, you must notify us at least 15
days before any production from any unit will be sold by direct
marketing. We will conduct an appraisal that will be used to
determine your production to count for production that is sold by
direct marketing. If damage occurs after this appraisal, we will
conduct an additional appraisal. These appraisals, and any
acceptable records provided by you, will be used to determine your
production to count. Failure to give timely notice that production
will be sold by direct marketing will result in an appraised amount
of production to count of not less than the production guarantee per
acre if such failure results in our inability to make the required
appraisal.
(b) If you intend to claim an indemnity on any unit, you must
notify us before beginning to harvest any damaged production so we
may have an opportunity to inspect it. You must not sell or dispose
of the damaged crop until after we have given you written consent to
do so. If you fail to meet the requirements of this section all such
production will be considered undamaged and included as production
to count.
12. Settlement of Claim
(a) We will determine your loss on a unit basis. In the event
you are unable to provide acceptable production records:
(1) For any optional unit, we will combine all optional units
for which such production records were not provided; or
(2) For any basic unit, we will allocate any commingled
production to such units in proportion to our liability on the
harvested acreage for each unit.
(b) In the event of loss or damage covered by this policy, we
will settle your claim on a unit basis by:
(1) Multiplying the insured acreage for each crop, or variety if
applicable, by its respective production guarantee (see sections 1
and 3);
(2) Multiplying the results of section 12(b)(1) by the
respective price election for each crop or variety, if applicable;
(3) Totaling the results of section 12(b)(2);
(4) Multiplying the total production to count of each variety,
if applicable (see section 12(c)) by the respective price election;
(5) Totaling the results of section 12(b)(4);
(6) Subtracting this result of section 12(b)(5) from the result
of section 12(b)(3); and
(7) Multiplying the result of section 12(b)(6) by your share.
(c) The total production to count (in tons) from all insurable
acreage on the unit will include:
(1) All appraised production as follows:
(i) Not less than the production guarantee per acre for acreage:
(A) That is abandoned;
(B) For which you fail to provide acceptable production records;
(C) That is damaged solely by uninsured causes; or
(D) From which production is sold by direct marketing, if direct
marketing is specifically permitted by the Special Provisions or a
written agreement, and you fail to meet the requirements contained
in section 11;
(ii) Production lost due to uninsured causes;
(iii) Unharvested production; and
(iv) Potential production on insured acreage you intend to
abandon or no longer care for, if you and we agree on the appraised
amount of production. Upon such agreement, the insurance period for
that acreage will end. If you do not agree with our appraisal, we
may defer the claim only if you agree to continue to care for the
crop. We will then make another appraisal when you notify us of
further damage or that harvest is general in the area unless you
harvested the crop, in which case we will use the harvested
production. If you do not continue to care for the crop, our
appraisal made prior to deferring the claim will be used to
determine the production to count; and
(2) All harvested production from the insurable acreage.
(d) Any citrus fruit that is not marketed as fresh fruit and,
due to insurable causes, does not contain 120 or more gallons of
juice per ton, will be adjusted by:
(1) Dividing the gallons of juice per ton obtained from the
damaged citrus by 120; and
(2) Multiplying the result by the number of tons of such citrus.
If individual records of juice content are not available, an
average juice content from the nearest juice plant will be used, if
available. If not available, a field appraisal will be made to
determine the average juice content.
(e) Where the actuarial table provides, and you elect, the fresh
fruit option, citrus fruit that is not marketable as fresh fruit due
to insurable causes will be adjusted by:
(1) Dividing the value per ton of the damaged citrus by the
price of undamaged citrus fruit; and
[[Page 41303]]
(2) Multiplying the result by the number of tons of such citrus
fruit. The applicable price for undamaged citrus fruit will be the
local market price the week before damage occurred.
(f) Any production will be considered marketed or marketable as
fresh fruit unless, due solely to insured causes, such production
was not marketed as fresh fruit.
(g) In the absence of acceptable records of disposition of
harvested citrus fruit, the disposition and amount of production to
count for the unit will be the guarantee on the unit.
(h) Any citrus fruit on the ground that is not harvested will be
considered totally lost if damaged by an insured cause.
13. Written Agreements
Designated terms of this policy may be altered by written
agreement in accordance with the following:
(a) You must apply in writing for each written agreement no
later than the sales closing date, except as provided in section
(13)(e);
(b) The application for written agreement must contain all terms
of the contract between you and us that will be in effect if the
written agreement is not approved;
(c) If approved, the written agreement will include all variable
terms of the contract, including, but not limited to, crop type or
variety, the guarantee, premium rate, and price election;
(d) Each written agreement will only be valid for one year (If
the written agreement is not specifically renewed the following
year, insurance coverage for subsequent crop years will be in
accordance with the printed policy); and
(e) An application for written agreement submitted after the
sales closing date may be approved if, after a physical inspection
of the acreage, it is determined that no loss has occurred and the
crop is insurable in accordance with the policy and written
agreement provisions.
Signed in Washington, DC, on August 2, 1996.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-20195 Filed 8-7-96; 8:45 am]
BILLING CODE 3410-FA-P
Complete official Federal Register PDF
FR Doc. 96-20192 Federal Acquisition Regulation; Legal Proceedings Costs
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41476-41477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20192]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAC 90-41; FAR Case 93-010; Item V]
RIN 9000-AG65
Federal Acquisition Regulation; Legal Proceedings Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) to make the costs of pre- or
post-award protests unallowable. An exception to this requirement is
made for costs incurred to defend against a protest, if the costs are
incurred pursuant to a written request from the contracting officer.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Olson at (202) 501-3221 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 93-010.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule adds another category of unallowable costs to the
list at 31.205-47(f). The rule disallows costs in connection with
protests or the defense against protests of solicitations or contract
awards, unless the costs of defending against a protest are incurred
pursuant to a written request from the contracting officer. A proposed
rule was published in the Federal Register on October 26, 1995, at 60
FR 54918. Twelve sources submitted public comments. All comments were
considered in developing the final rule.
[[Page 41477]]
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies to
this final rule and a Final Regulatory Flexibility Analysis (FRFA) has
been performed. Although a number of respondents took exception to the
statement in the Federal Register that the proposed rule ``is not
expected to have a significant economic impact on a substantial number
of small entities * * * because most contracts awarded to small
entities are awarded on a competitive, fixed-price basis and the cost
principles do not apply'', they added that (1) many contracts awarded
to small entities are cost-reimbursable and cost principles apply; (2)
cost principles apply when small entities negotiate annual overhead
rates; and (3) cost principles apply whenever a cost analysis is
performed. We agree that cost principles apply in these cases, but the
analysis concluded that a substantial number of small businesses are
not involved. In addition, this rule only applies to those small
entities (1) whose contracts are governed by cost principles; and (2)
who file a protest, or are defending against a protest. Based on the
data available, the analysis concludes that the percentage of small
entities who meet this second criterion is well below 5 percent. A copy
of the FRFA may be obtained from the FAR Secretariat.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 31 is amended as set forth below:
PART 31-CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 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).
2. Section 31.205-47 is amended by adding paragraph (f)(8) to read
as follows:
31.205-47 Costs related to legal and other proceedings.
* * * * *
(f) * * *
(8) Protests of Federal Government solicitations or contract
awards, or the defense against protests of such solicitations or
contract awards, unless the costs of defending against a protest are
incurred pursuant to a written request from the cognizant contracting
officer.
* * * * *
[FR Doc. 96-20192 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20191 Federal Acquisition Regulation; Federal Acquisition and Community Right-to-Know
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41473-41475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20191]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 23 and 52
[FAC 90-41; FAR Case 95-305; Item III]
RIN 9000-AG68
Federal Acquisition Regulation; Federal Acquisition and Community
Right-to-Know
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) Parts 23 and 52 to implement
Executive Order 12969. The Executive order requires that Federal agency
contractors report in a public manner on toxic chemicals released to
the environment. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 95-305.
SUPPLEMENTARY INFORMATION:
A. Background-
An interim rule with request for public comment was published on
October 30, 1995 (60 FR 55306). Thirty-four comments were received from
eight respondents. As a result of analyzing the public comments, the
rule was revised to clarify that the owner or operator of a facility
that is subject to the Emergency Planning and Community Right-to-Know
Act of 1986 (EPCRA) and the Pollution Prevention Act (PPA) reporting
requirements is required to file Toxic Chemical Release Inventory Forms
with the Environmental Protection Agency, and that offerors will submit
certifications regarding only those facilities that the offeror owns or
operates that will be used in performing the contract. This final rule
also
[[Page 41474]]
simplifies the language of the certification at FAR 52.223-13.
B. Regulatory Flexibility Act-
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. The rule requires only that
offerors in competitive acquisitions exceeding $100,000 in value agree
to comply with, or identify the basis for their exemption from,
existing EPCRA and PPA reporting requirements. There were no public
comments in response to the Regulatory Flexibility Statement published
with the interim rule. The rule does not apply to acquisitions of
commercial items or to contractor facilities located outside the United
States.
C. Paperwork Reduction Act-
The final rule imposes no new information collection requirements
that require approval of the Office of Management and Budget (OMB)
under 44 U.S.C. 3501, et seq. The information collection requirements
imposed by the interim rule have been approved by OMB under OMB
Clearance Number 9000-0139 through September 30, 1996.
List of Subjects in 48 CFR Parts 23 and 52-
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
-Therefore, 48 CFR Parts 23 and 52 are amended as set forth
below:-
1. The authority citation for 48 CFR Parts 23 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 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE-
2. Section 23.901 is amended by adding a parenthetical at the end
to read as follows:
23.901 Purpose.-
* * * (See also EPA Notice, ``Guidance Implementing Executive Order
12969'' (60 FR 50738, September 29, 1995).)
23.902 [Amended]-
3. Section 23.902 is amended by redesignating the first sentence as
paragraph (a) and adding a comma after the word ``land'', and
redesignating the second sentence as (b) and revising it to read as
follows:
23.902 General.
* * * * *-
(b) Under EPCRA section 313 (42 U.S.C. 11023), and PPA section 6607
(42 U.S.C. 13106), the owner or operator of certain manufacturing
facilities is required to submit annual reports on toxic chemical
releases and waste management activities to the Environmental
Protection Agency (EPA) and the States.-
4. Section 23.903(b)(1) is revised to read as follows:
23.903 Applicability.
* * * * *-
(b) * * *--
(1) Acquisitions of commercial items as defined in part 2; or
* * * * *-
5. Section 23.906 is amended by revising paragraphs (a), (b), and
(c) to read as follows:
23.906 Requirements.-
(a) E.O. 12969 requires that solicitations for competitive
contracts expected to exceed $100,000 (including all options) include,
to the maximum extent practicable, as an award eligibility criterion, a
certification by the offeror that, if awarded a contract, either----
(1) As the owner or operator of facilities to be used in the
performance of the contract that are subject to Form R filing and
reporting requirements, the offeror will file, and will continue to
file throughout the life of the contract, for such facilities, the
Toxic Chemical Release Inventory Form (Form R) as described in EPCRA
sections 313 (a) and (g) and PPA section 6607; or--
(2) Facilities to be used in the performance of the contract are
exempt from Form R filing and reporting requirements because the
facilities--
(i) Do not manufacture, process, or otherwise use any toxic
chemicals listed under section 313(c) of EPCRA, 42 U.S.C. 11023(c);---
(ii) Do not have 10 or more full-time employees as specified in
section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A);---
(iii) Do not meet the reporting thresholds of toxic chemicals
established under section 313(f) of EPCRA, 42 U.S.C. 11023(f)
(including the alternate thresholds at 40 CFR 372.27, provided an
appropriate certification form has been filed with EPA);---
(iv) Do not fall within Standard Industrial Classification Code
(SIC) designations 20 through 39 as set forth in 19.102; or---
(v) Are not located within any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the United States Virgin Islands, the Northern Mariana Islands,
or any other territory or possession over which the United States has
jurisdiction.-
(b) A determination that it is not practicable to include the
solicitation provision at 52.223-13, Certification of Toxic Chemical
Release Reporting, in a solicitation or class of solicitations shall be
approved by a procurement official at a level no lower than the head of
the contracting activity. Prior to making such a determination for a
solicitation or class of solicitations with an estimated value in
excess of $500,000 (including all options), the agency shall consult
with the Environmental Protection Agency, Director, Environmental
Assistance Division, Office of Pollution Prevention and Toxic
Substances (Mail Code 7408), Washington, DC 20460.-
(c) Award shall not be made to offerors who do not certify in
accordance with paragraph (a) of this section when the provision at
52.223-13, Certification of Toxic Chemical Release Reporting, is
included in the solicitation. If facilities to be used by the offeror
in the performance of the contract are not subject to Form R filing and
reporting requirements and the offeror fails to check the appropriate
box(es) in 52.223-13, Certification of Toxic Chemical Release
Reporting, such failure shall be considered a minor informality or
irregularity.
* * * * *-
6. Section 23.907 is revised in the introductory text and paragraph
(a) to read as follows:
23.907 Solicitation provision and contract clause.-
Except for acquisitions of commercial items as defined in part 2,
the contracting officer shall---
(a) Insert the provision at 52.223-13, Certification of Toxic
Chemical Release Reporting, in all solicitations for competitive
contracts expected to exceed $100,000 (including all options) and
competitive 8(a) contracts, unless it has been determined in accordance
with 23.906(b) that to do so is not practicable; and
* * * * *
[[Page 41475]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
7. Section 52.223-13 is revised to read as follows:
52.223-13 Certification of Toxic Chemical Release Reporting.-
As prescribed in 23.907(a), insert the following provision:
CERTIFICATION OF TOXIC CHEMICAL RELEASE REPORTING
October 7, 1996-
(a) Submission of this certification is a prerequisite for
making or entering into this contract imposed by Executive Order
12969, August 8, 1995.-
(b) By signing this offer, the offeror certifies that----
(1) As the owner or operator of facilities that will be used in
the performance of this contract that are subject to the filing and
reporting requirements described in section 313 of the Emergency
Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C.
11023) and section 6607 of the Pollution Prevention Act of 1990
(PPA) (42 U.S.C. 13106), the offeror will file and continue to file
for such facilities for the life of the contract the Toxic Chemical
Release Inventory Form (Form R) as described in sections 313(a) and
(g) of EPCRA and section 6607 of PPA; or--
(2) None of its owned or operated facilities to be used in the
performance of this contract is subject to the Form R filing and
reporting requirements because each such facility is exempt for at
least one of the following reasons: (Check each block that is
applicable.)-
{time} (i) The facility does not manufacture, process, or
otherwise use any toxic chemicals listed under section 313(c) of
EPCRA, 42 U.S.C. 11023(c);-
{time} (ii) The facility does not have 10 or more full-time
employees as specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C.
11023(b)(1)(A);-
{time} (III) The facility does not meet the reporting
thresholds of toxic chemicals established under section 313(f) of
EPCRA, 42 U.S.C. 11023(f) (including the alternate thresholds at 40
CFR 372.27, provided an appropriate certification form has been
filed with EPA);
{time} (iv) The facility does not fall within Standard
Industrial Classification Code (SIC) designations 20 through 39 as
set forth in Section 19.102 of the Federal Acquisition Regulation;
or
{time} (v) The facility is not located within any State of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands, the
Northern Mariana Islands, or any other territory or possession over
which the United States has jurisdiction.
(End of provision)
8. Section 52.223-14 is revised to read as follows:
52.223-14 Toxic Chemical Release Reporting.
As prescribed in 23.907(b), insert the following clause:
TOXIC CHEMICAL RELEASE REPORTING October 7, 1996
(a) Unless otherwise exempt, the Contractor, as owner or
operator of a facility used in the performance of this contract,
shall file by July 1 for the prior calendar year an annual Toxic
Chemical Release Inventory Form (Form R) as described in sections
313(a) and (g) of the Emergency Planning and Community Right-to-Know
Act of 1986 (EPCRA) (42 U.S.C. 11023(a) and (g)), and section 6607
of the Pollution Prevention Act of 1990 (PPA) (42 U.S.C. 13106). The
Contractor shall file, for each facility subject to the Form R
filing and reporting requirements, the annual Form R throughout the
life of the contract.-
(b) A Contractor owned or operated facility used in the
performance of this contract is exempt from the requirement to file
an annual Form R if--
(1) The facility does not manufacture, process, or otherwise use
any toxic chemicals listed under section 313(c) of EPCRA, 42 U.S.C.
11023(c);
(2) The facility does not have 10 or more full-time employees as
specified in section 313(b)(1)(A) of EPCRA, 42 U.S.C.
11023(b)(1)(A);-
(3) The facility does not meet the reporting thresholds of toxic
chemicals established under section 313(f) of EPCRA, 42 U.S.C.
11023(f) (including the alternate thresholds at 40 CFR 372.27,
provided an appropriate certification form has been filed with EPA);
(4) The facility does not fall within Standard Industrial
Classification Code (SIC) designations 20 through 39 as set forth in
Section 19.102 of the Federal Acquisition Regulation (FAR); or-
(5) The facility is not located within any State of the United
States, the District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands, the Northern
Mariana Islands, or any other territory or possession over which the
United States has jurisdiction.
(c) If the Contractor has certified to an exemption in
accordance with one or more of the criteria in paragraph (b) of this
clause, and after award of the contract circumstances change so that
any of its owned or operated facilities used in the performance of
this contract is no longer exempt--
(1) The Contractor shall notify the Contracting Officer; and-
(2) The Contractor, as owner or operator of a facility used in
the performance of this contract that is no longer exempt, shall (i)
submit a Toxic Chemical Release Inventory Form (Form R) on or before
July 1 for the prior calendar year during which the facility becomes
eligible; and (ii) continue to file the annual Form R for the life
of the contract for such facility.-
(d) The Contracting Officer may terminate this contract or take
other action as appropriate, if the Contractor fails to comply
accurately and fully with the EPCRA and PPA toxic chemical release
filing and reporting requirements.
(e) Except for acquisitions of commercial items as defined in
FAR Part 2, the Contractor shall--
(1) For competitive subcontracts expected to exceed $100,000
(including all options), include a solicitation provision
substantially the same as the provision at FAR 52.223-13,
Certification of Toxic Chemical Release Reporting; and
(2) Include in any resultant subcontract exceeding $100,000
(including all options), the substance of this clause, except this
paragraph (e).
(End of clause)
[FR Doc. 96-20191 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20190 Federal Acquisition Regulation; Compliance With Immigration and Nationality Act Provisions
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41472-41473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20190]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 9
[FAC 90-41, FAR Case 96-320, Item II]
RIN 9000-AHXX
Federal Acquisition Regulation; Compliance With Immigration and
Nationality Act Provisions
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 Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule amending
the Federal Acquisition Regulation (FAR) Part 9 to implement Executive
Order 12989 of February 13, 1996, Economy and Efficiency in Government
Procurement Through Compliance With Certain Immigration and Nationality
Act Provisions. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993, and is not a major rule under 5 U.S.C. 804.
DATES: Effective Date: August 8, 1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before October 7, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.
Please cite FAC 90-41, FAR case 96-320, in all correspondence related
to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 96-320.
SUPPLEMENTARY INFORMATION:
A. Background
Executive Order 12989, Economy and Efficiency in Government
Procurement Through Compliance With Certain Immigration and Nationality
Act Provisions, was signed on February 13, 1996. The Executive Order
provides that a contractor may be debarred upon a determination by the
Attorney General that the contractor is not in compliance with the
employment provisions of the Immigration and Nationality Act (INA).
This interim rule revises FAR 9.406-2, to specify that such a
determination by the Attorney General is a basis for debarment, and
9.406-4, to stipulate the duration of the debarment mandated by the
Executive order.
B. Regulatory Flexibility Act
This interim rule is not expected to have a significant impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Only a small number of
Federal contractors are likely to be the subject of a determination, by
the Attorney General, that they are not in compliance with the
employment provisions of the Immigration and Nationality Act. An
Initial Regulatory Flexibility Analysis has, therefore, not been
performed. 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 96-320), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling
[[Page 41473]]
reasons exist to promulgate this interim rule without prior opportunity
for public comment. This action is necessary to implement Executive
Order 12989, Economy and Efficiency in Government Procurement Through
Compliance With Certain Immigration and Nationality Act Provisions,
which was effective upon its execution (February 13, 1996). However,
pursuant to Public Law 98-577 and FAR 1.501, public comments received
in response to this interim rule will be considered in the formation of
the final rule.
List of Subjects in 48 CFR Part 9
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Part 9 is amended as set forth below:
1. The authority citation for 48 CFR Part 9 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 9--CONTRACTOR QUALIFICATIONS
2. Section 9.406-2 is amended in paragraph (a)(4) in the second
parenthetical by removing ``section'' and inserting ``Section'' in its
place, and by revising (b) to read as follows:
9.406-2 Causes for debarment.
* * * * *
(b)(1) The debarring official may debar a contractor, based upon a
preponderance of the evidence, for--
(i) Violation of the terms of a Government contract or subcontract
so serious as to justify debarment, such as--
(A) Willful failure to perform in accordance with the terms of one
or more contracts; or
(B) A history of failure to perform, or of unsatisfactory
performance of, one or more contracts.
(ii) Violations of the Drug-Free Workplace Act of 1988 (Public Law
100-690), as indicated by--
(A) The offeror's submission of a false certification;
(B) The contractor's failure to comply with its certification; or
(C) Such a number of contractor employees having been convicted of
violations of criminal drug statutes occurring in the workplace, as to
indicate that the contractor has failed to make a good faith effort to
provide a drug-free workplace (see 23.504).
(iii) Intentionally affixing a label bearing a ``Made in America''
inscription (or any inscription having the same meaning) to a product
sold in or shipped to the United States, when the product was not made
in the United States (see Section 202 of the Defense Production Act
(Public Law 102-558)).---
(iv) Commission of an unfair trade practice as defined in 9.403
(see Section 201 of the Defense Production Act (Public Law 102-558)).
(2) The debarring official may debar a contractor, based on a
determination by the Attorney General of the United States, or
designee, that the contractor is not in compliance with Immigration and
Nationality Act employment provisions (see Executive Order 12989). The
Attorney General's determination is not reviewable in the debarment
proceedings.
* * * * *
3. Section 9.406-4 is amended by revising paragraphs (a) and (b) to
read as follows:
9.406-4 Period of debarment.
(a)(1) Debarment shall be for a period commensurate with the
seriousness of the cause(s). Generally, debarment should not exceed 3
years, except that--
(i) Debarment for violation of the provisions of the Drug-Free
Workplace Act of 1988 (see 23.506) may be for a period not to exceed 5
years; and
(ii) Debarments under 9.406-2(b)(2) shall be for one year unless
extended pursuant to paragraph (b) of this subsection.
(2) If suspension precedes a debarment, the suspension period shall
be considered in determining the debarment period.
(b) The debarring official may extend the debarment for an
additional period, if that official determines that an extension is
necessary to protect the Government's interest. However, a debarment
may not be extended solely on the basis of the facts and circumstances
upon which the initial debarment action was based. Debarments under
9.406-2(b)(2) may be extended for additional periods of one year if the
Attorney General or designee determines that the contractor continues
to be in violation of the employment provisions of the Immigration and
Nationality Act. If debarment for an additional period is determined to
be necessary, the procedures of 9.406-3 shall be followed to extend the
debarment.
* * * * *
[FR Doc. 96-20190 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20189 Federal Acquisition Regulation; Small Entity Compliance Guide
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41477-41478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20189]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Regulation; Small Entity Compliance Guide
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Small Entity Compliance Guide.
-----------------------------------------------------------------------
SUMMARY: This document is issued under the joint authority of the
Secretary of Defense, the Administrator of General Services and the
Administrator for the National Aeronautics and Space Administration as
the Federal Acquisition Regulation (FAR) Council. This Small Entity
Compliance Guide has been prepared in accordance with Section 212 of
the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L.
104-121). It consists of a summary of rules appearing in Federal
Acquisition Circular (FAC) 90-41 which amend the FAR. Further
information regarding these rules may be obtained by referring to FAC
90-41 which precedes this notice. This document may be obtained from
the Internet at http://www.gsa.gov/far/compliance.
FOR FURTHER INFORMATION CONTACT: Beverly Fayson, FAR Secretariat, (202)
501-4755.
SUPPLEMENTARY INFORMATION:
List of Rules in FAC 90-41
------------------------------------------------------------------------
Item Subject FAR case
------------------------------------------------------------------------
I Information Technology 96-319
Management Reform Act of 1996.
II Compliance with Immigration and 96-320
Nationality Act Provisions.
III Federal Acquisition and 95-305
Community Right-to-Know.
IV Restrictions on Certain Foreign 95-303
Purchases.
V Legal Proceedings Costs......... 93-010
------------------------------------------------------------------------
Item I--Information Technology Management Reform Act of 1996 (FAR
Case 96-319)
This interim rule implements the Information Technology Management
Reform Act (ITMRA) of 1996 (Division E of Public Law 104-106). ITMRA
seeks to improve Federal information management and to facilitate
acquisition of state-of-the-art information technology that is critical
for improving the efficiency and effectiveness of Government
operations. Under ITMRA, each executive agency is authorized to acquire
information technology, including entering into contracts that provide
for multi-agency acquisitions of information technology in accordance
with guidance issued by the Office of Management and Budget. This
interim rule also contains certain policies and procedures from the
Federal Information Resources Management Regulation (FIRMR). The
changes to the FAR include (1) addition of a definition of
``information technology'' at 2.101; (2) relocation of the definition
of ``major system'' from 34.001 to 2.101; (3) addition of a new Subpart
8.9, Financial Management Systems Software (FMSS) Mandatory Multiple
Award Schedule (MAS) Contracts Program; (4) revision of Part 39,
Acquisition of Information Technology; (5) addition of a new clause at
52.239-1, Privacy or Security Safeguards; and (6) various conforming
amendments in other parts of the FAR.
Item II--Compliance With Immigration and Nationality Act Provisions
(FAR Case 96-320)
This interim rule amends FAR 9.406 to implement Executive Order
12989 of February 13, 1996, Economy and Efficiency in Government
Procurement Through Compliance with Certain Immigration and Nationality
Act Provisions. The Executive Order provides that a contractor may be
debarred upon a determination by the Attorney General that the
contractor is not in compliance with the employment
[[Page 41478]]
provisions of the Immigration and Nationality Act.
Item III--Federal Acquisition and Community Right-to-Know (FAR Case 95-
305)
The interim rule published in FAC 90-34 is revised and finalized.
The rule implements Executive Order 12969, Federal Acquisition and
Community Right-to-Know, which requires that Government contractors
report in a public manner on toxic chemicals released into the
environment. The final rule differs from the interim rule in that it
amends FAR Subpart 23.9, the provision at 52.223-13, and the clause at
52.223-14 to clarify that (1) an offeror must submit a Certification of
Toxic Chemical Release Reporting regarding only those facilities that
it owns or operates, and (2) a contractor must file a Toxic Chemical
Release Inventory Form with the Environmental Protection Agency only
for its facilities that are subject to the reporting requirements of
the Emergency Planning and Community Right-to-Know Act of 1986.
Item IV--Restrictions on Certain Foreign Purchases (FAR Case 95-
303)
This final rule amends FAR Subpart 25.7 and the clause at 52.225-11
to (1) implement Executive Order 12959, Prohibiting Certain
Transactions with Respect to Iran, and (2) reflect the regulations of
the Department of the Treasury, Office of Foreign Assets Control (31
CFR Chapter V). Iran and Libya are added to the list of sources from
which procurement is restricted; Vietnam, Cambodia, and South Africa
are removed from the list.
Item V--Legal Proceedings Costs (FAR Case 93-010)
This final rule amends FAR 31.205-47 to make the costs of pre- or
post-award protests unallowable. An exception to this requirement is
made for costs incurred to defend against a protest, if the costs are
incurred pursuant to a written request from the contracting officer.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 96-20189 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20188 Federal Acquisition Regulation; Restrictions on Certain Foreign Purchases
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41475-41476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20188]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAC 90-41; FAR Case 95-303; Item IV]
RIN 9000-AG82
Federal Acquisition Regulation; Restrictions on Certain Foreign
Purchases
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule to amend
the Federal Acquisition Regulation (FAR) Parts 25 and 52 to implement
Executive Order 12959, Prohibiting Certain Transactions with Respect to
Iran, and to conform the FAR to other current restrictions of the
Department of the Treasury. This regulatory action was not subject to
Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
EFFECTIVE DATE: October 7, 1996.
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, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 95-303.
SUPPLEMENTARY INFORMATION:
A. Background-
This final rule amends FAR Parts 25 and 52 to implement Executive
Order
[[Page 41476]]
12959, Prohibiting Certain Transactions with Respect to Iran, which
became effective May 6, 1995, and to conform the FAR to current
restrictions in 31 CFR Chapter V (Office of Foreign Assets Control,
Department of the Treasury). Subpart 25.7 and the clause at 52.225-11
are revised to add Iran and Libya to the list of prohibited sources,
and to delete restrictions on procurement from Vietnam, Cambodia, and
South Africa. A proposed rule was published in the Federal Register on
February 22, 1996, at 61 FR 6910. No public comments were received. No
changes were made to the proposed rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not
impose any new requirements on contractors, large or small. The rule
merely notifies contractors of changes in the existing prohibitions
against transactions with certain countries. This change should have
minimal impact on U.S. firms. There were no public comments in response
to the Regulatory Flexibility Act Statement published with the proposed
rule.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of the Office of
Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 25 and 52 are amended as set forth below:
1. The authority citation for 48 CFR Parts 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 25--FOREIGN ACQUISITION-
2. Subpart 25.7 is revised to read as follows:
Subpart 25.7--Restrictions on Certain Foreign Purchases
Sec.
25.701 Restrictions.
25.702 Contract clause.
25.701 Restrictions.
(a) The Government does not acquire supplies or services from
foreign governments or their organizations when these supplies or
services cannot be imported lawfully into the United States. Therefore,
agencies and their contractors and subcontractors shall not acquire any
supplies or services originating from sources within, or that were
located in or transported from or through--
(1) Cuba (31 CFR part 515);
(2) Iran (31 CFR part 560);
(3) Iraq (31 CFR part 575);
(4) Libya (31 CFR part 550); or
(5) North Korea (31 CFR part 500).
(b) Agencies and their contractors and subcontractors shall not
acquire any supplies or services from entities controlled by the
Government of Iraq (Executive Orders 12722 and 12724).
(c) Questions concerning these restrictions should be referred to
the Department of the Treasury, Office of Foreign Assets Control,
Washington, DC 20220, (202) 622-2520.
25.702 Contract clause.
The contracting officer shall insert the clause at 52.225-11,
Restrictions on Certain Foreign Purchases, in solicitations and
contracts over $2,500.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 52.225-11 is revised to read as follows:
52.225-11 Restrictions on Certain Foreign Purchases.
As prescribed in 25.702, insert the following clause:
Restrictions on Certain Foreign Purchases
October 7, 1996
(a) Unless advance written approval of the Contracting Officer
is obtained, the Contractor shall not acquire, for use in the
performance of this contract, any supplies or services originating
from sources within, or that were located in or transported from or
through, countries whose products are banned from importation into
the United States under regulations of the Office of Foreign Assets
Control, Department of the Treasury. Those countries include Cuba,
Iran, Iraq, Libya, and North Korea.
(b) The Contractor shall not acquire for use in the performance
of this contract any supplies or services from entities controlled
by the Government of Iraq.
(c) The Contractor agrees to insert the provisions of this
clause, including this paragraph (c), in all subcontracts hereunder.
(End of clause)
[FR Doc. 96-20188 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20187 Federal Acquisition Regulation; Information Technology Management Reform Act of 1996 (ITMRA)
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41467-41472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20187]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, 7, 8, 9, 12, 15, 16, 17, 19, 22, 32, -33, 34,
37, 38, 39, 45, 46, 51, 52, and 53
[FAC 90-41, FAR Case 96-319, Item I]
RIN 9000-AHXX
Federal Acquisition Regulation; Information Technology Management
Reform Act of 1996 (ITMRA)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule amending
the Federal Acquisition Regulation (FAR) to provide for a simplified,
clear, and understandable process for acquiring information technology
(IT) that addresses the management of risk. This interim rule
implements the Information Technology Management Reform Act (ITMRA),
Division E of Public Law 104-106, dated February 10, 1996. The interim
rule also incorporates the recommendations of the Federal Information
Resources Management Regulation (FIRMR) Transition Committee,
relocating those provisions of the FIRMR, which were recommended for
retention, in the FAR. This regulatory action was not subject to Office
of Management and Budget (OMB) review under Executive Order 12866,
dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
DATES: Effective Date: August 8, 1996.
Applicability: This regulation applies to all IT solicitations
issued on or after August 8, 1996. The General Services Board of
Contract Appeals (GSBCA) will not accept any protest received on or
after August 8, 1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before October 7, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.
Please cite FAC 90-41, FAR case 96-319 in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-41, FAR case 96-319.
SUPPLEMENTARY INFORMATION:
A. Background
Federal information systems are critical to every American. The
efficiency and effectiveness of the Federal Government is dependent
upon the effective use of information. The Information Technology
Management Reform Act (ITMRA) of 1996 seeks to improve Federal
information management and to facilitate Federal Government acquisition
of state-of-the-art IT that is critical for improving the efficiency
and effectiveness of Federal Government operations.
Under ITMRA, each executive agency is authorized to acquire IT,
including entering into contracts that provide for multi-agency
acquisitions of IT in accordance with guidance issued by OMB. The Chief
Information Officer (CIO) of each agency is responsible for the IT
programs of the agency. The Director of OMB is responsible for
improving the acquisition, use, and disposal of IT by the Federal
Government. The development and use of best practices in the
acquisition of IT will be encouraged. Additionally, the Director will
monitor the effectiveness of, and compliance with, directives issued
under ITMRA. The Director will also coordinate the development and
review of policy by the Administrator, Office of Information and
Regulatory Affairs, with the Office of Federal Procurement Policy.
In light of the passage of ITMRA, and the recognition by the CIO
Council that a new regulatory framework is necessary to effect the
tenor and tenets of the ITMRA, the FIRMR Transition Committee reviewed
the FIRMR (41 CFR Chapter 201) and made recommendations as to
provisions of the FIRMR that should be included in the FAR. The
language resulting from those recommendations is included in this
interim rule.
This interim rule implements ITMRA, the recommendations of the
FIRMR Transition Committee, and the goals of transforming acquisition
of IT into a results-oriented procurement system which ensures
responsibility and accountability of Federal agencies in the use of IT
in support of agency missions.
Section 5202 of ITMRA encourages agency heads to use modular
contracting or incremental acquisition when acquiring a major
information technology system. A proposed rule giving guidance to
contracting officers on use of this technique will be developed after
publication of this interim rule. Regulation drafters will work closely
with industry and contracting agencies to ensure that the proposed rule
provides guidance to agencies using this technique.
B. Regulatory Flexibility Act
This rule is expected to have a significant beneficial 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
simplifies and streamlines procedures for the acquisition of
information technology. An Initial Regulatory Flexibility Analysis
(IRFA) has been prepared and will be provided to the Chief Counsel for
Advocacy of the Small Business
[[Page 41468]]
Administration. A copy of the IRFA may be obtained from the FAR
Secretariat. Comments are invited. Comments from small entities
concerning the affected FAR subparts 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 96-319), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (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 ITMRA, passed February 10, 1996, should be effective by
August 8, 1996. Regulations should be in effect by that date. However,
pursuant to Public Law 98-577 and FAR 1.501, public comments received
in response to this interim rule will be considered in the formation of
the final rule.
List of Subjects in 48 CFR Parts 2, 5, 7, 8, 9, 12, 15, 16, 17, 19, 22,
32, 33, 34, 37, 38, 39, 45, 46, 51, 52 and 53
Government procurement.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 2, 5, 7, 8, 9, 12, 15, 16, 17, 19, 22, 32,
33, 34, 37, 38, 39, 45, 46, 51, 52, and 53 are amended as set forth
below:
1. The authority citation for 48 CFR Parts 2, 5, 7, 8, 9, 12, 15,
16, 17, 19, 22, 32, 33, 34, 37, 38, 39, 45, 46, 51, 52 and 53 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 2--DEFINITIONS OF WORDS AND TERMS
2. Section 2.101 is amended by adding, in alphabetical order, the
definitions for ``Information technology'' and ``Major system'' to read
as follows:
2.101 Definitions.
* * * * *
Information technology means any equipment, or interconnected
system(s) or subsystem(s) of equipment, that is used in the automatic
acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or
information by the agency.
(a) For purposes of this definition, equipment is used by an agency
if the equipment is used by the agency directly or is used by a
contractor under a contract with the agency which--
(1) Requires the use of such equipment; or
(2) Requires the use, to a significant extent, of such equipment in
the performance of a service or the furnishing of a product.
(b) The term information technology includes computers, ancillary
equipment, software, firmware and similar procedures, services
(including support services), and related resources.
(c) The term information technology does not include any equipment
that is acquired by a contractor incidental to a contract.
Major system means that combination of elements that will function
together to produce the capabilities required to fulfill a mission
need. The elements may include hardware, equipment, software, or any
combination thereof, but exclude construction or other improvements to
real property. A system shall be considered a major system if--
(a) The Department of Defense is responsible for the system and the
total expenditures for research, development, test, and evaluation for
the system are estimated to be more than $75,000,000 (based on fiscal
year 1980 constant dollars) or the eventual total expenditure for the
acquisition exceeds $300,000,000 (based on fiscal year 1980 constant
dollars);
(b) A civilian agency is responsible for the system and total
expenditures for the system are estimated to exceed $750,000 (based on
fiscal year 1980 constant dollars) or the dollar threshold for a
``major system'' established by the agency pursuant to Office of
Management and Budget Circular A-109, entitled ``Major System
Acquisitions,'' whichever is greater; or
(c) The system is designated a ``major system'' by the head of the
agency responsible for the system.
* * * * *
PART 5--PUBLICIZING CONTRACT ACTIONS
5.207 [Amended]
3. Section 5.207 is amended in paragraph (g)(1) by revising in the
table the entry for ``Code D'' to read ``Information technology
services, including telecommunications services.''; and in (g)(2) by
revising in the table the entry for ``Code 70'' to read ``General-
purpose information technology equipment.''
PART 7--ACQUISITION PLANNING
4. Section 7.403(b)(1) is revised to read as follows:
7.403 General Services Administration assistance.
* * * * *
(b) * * *
(1) Center for Strategic IT Analysis (MKS), Washington, DC 20405,
for information on acquisition of information technology.
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.002 [Amended]
5. Section 8.002 is amended by removing paragraph (d) and
redesignating paragraphs (e) through (g) as (d) through (f),
respectively.
8.402 [Reserved]
6. Section 8.402 is removed and reserved.
7. Subpart 8.9 is added to read as follows:
Subpart 8.9--Financial Management Systems Software (FMSS) Mandatory
Multiple Award Schedule (MAS) Contracts Program
Sec.
8.901 General.
8.902 Policy.
8.903 Exceptions.
8.904 Procedures.
8.901 General.
(a) OMB has established a mandatory Governmentwide Financial
Management Systems Software (FMSS) program.
(b) Agencies may obtain information and assistance concerning the
use of the FMSS MAS contracts program from: General Services
Administration, Procurement Services Center (KRB), FMSS Contracting
Officer, 18th and F Streets, NW, Washington, DC 20405.
(c) OMB Circular No. A-127, Revised, ``Financial Management
Systems,'' provides further policy direction regarding the FMSS
program.
[[Page 41469]]
8.902 Policy.
The FMSS MAS contracts program is mandatory for use by executive
agencies for the acquisition of commercial software for core financial
systems and for the acquisition of services and support related to the
implementation of such software.
8.903 Exceptions.
(a) If an executive agency holds a licensing agreement for a
software package that is available on the FMSS MAS contracts, and the
package was obtained under a contract awarded before the award of the
FMSS MAS contracts, the agency's use of the FMSS MAS contracts program
is optional for the acquisition of services and support related to the
implementation of that package until the previous non-MAS contract
expires.
(b) Use of the FMSS MAS contracts program by Federal agencies that
are not executive agencies is optional and is subject to the FMSS
contractor accepting the order.
(c) An executive agency shall obtain a waiver from GSA if it
determines that its requirements for financial management systems
software cannot be satisfied through use of the FMSS MAS contracts
program.
(1) The request for a waiver shall contain the following
information--
(i) A description of the agency's requirements;
(ii) The reasons the FMSS MAS contracts program does not satisfy
the requirements; and
(iii) A description of how the agency proposes to satisfy its needs
for financial management system software.
(2) Agencies shall send waiver requests to GSA at the address in
8.901(b).
8.904 Procedures.
(a) The contracting officer shall announce the agency's
requirements in a letter of interest (LOI) to all contractors
participating in the FMSS MAS contracts program.
(b) At the time of issuance, the contracting officer shall provide
a copy of the LOI to--
(1) GSA at the address in 8.901(b);
(2) OMB at: Office of Federal Financial Management, Federal
Financial Systems Branch, Office of Management and Budget, 725 17th
Street, NW, Washington, DC 20503; and
(3) Department of Treasury at: Division of Financial Management,
Financial Management Service, Department of the Treasury, PG Center #2,
Room 800A, Hyattsville, MD 20782.
(c) The LOI shall--
(1) Contain sufficient information to enable a competitive
acquisition under the FMSS MAS contracts program;
(2) Include instructions to the FMSS MAS contractors for responding
to the LOI; and
(3) Include evaluation and award factors.
(d) The agency shall conduct an analysis of the offerings of the
FMSS MAS contractors and issue a delivery order to the contractor that
provides the most advantageous alternative to the Government.
(e) The contracting officer may issue single or multiple delivery
orders to satisfy the total requirement.
(f) The contracting officer shall provide a copy of each delivery
order, or modification thereto, to OMB and the Department of Treasury
at the address shown in paragraph (b) of this section and to GSA at the
address in 8.901(b).
PART 9--CONTRACTOR QUALIFICATIONS
8. Section 9.508(e) is revised to read as follows:
9.508 Examples.
* * * * *
(e) Before an acquisition for information technology is conducted,
Company A is awarded a contract to prepare data system specifications
and equipment performance criteria to be used as the basis for the
equipment competition. Since the specifications are the basis for
selection of commercial hardware, a potential conflict of interest
exists. Company A should be excluded from the initial follow-on
information technology hardware acquisition.
* * * * *
PART 12--ACQUISITION OF COMMERCIAL ITEMS
9. Section 12.603(c)(2)(xiii) is revised to read as follows:
12.603 Streamlined solicitation for commercial items.
* * * * *
(c) * * *
(2) * * *
(xiii) A statement regarding any additional contract requirement(s)
or terms and conditions (such as contract financing arrangements or
warranty requirements) determined by the contracting officer to be
necessary for this acquisition and consistent with customary commercial
practices.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
13.103 [Amended]
10. Section 13.103 is amended by removing ``GSA Nonmandatory
Schedule Contracts for FIP Resources,'' in paragraph (a).
11. Section 13.202(c)(3) is revised to read as follows:
13.202 Establishment of blanket purchase agreements (BPA's).
* * * * *
(c) * * *
(3) Federal Supply Schedule contractors if not inconsistent with
the terms of the applicable schedule contract.
PART 15--CONTRACTING BY NEGOTIATION
15.805-1 [Amended]
12. Section 15.805-1(d) is amended in the sixth sentence by
removing ``the FIRMR'', and by removing ``regulatory'' and inserting
``regulations'' in its place.
PART 16--TYPES OF CONTRACTS
13. Section 16.500 is amended by revising the fourth and fifth
sentences to read as follows:
16.500 Scope of subpart.
* * * Therefore, GSA regulations and the coverage for the Federal
Supply Schedule program in subpart 8.4 and part 38 take precedence over
this subpart. This subpart may be used to acquire information
technology requirements that are not satisfied
under the Federal Supply Schedule
program. * * *
PART 17--SPECIAL CONTRACTING METHODS
14. Section 17.200 is revised to read as follows:
17.200 Scope of subpart.
This subpart prescribes policies and procedures for the use of
option solicitation provisions and contract clauses. Except as provided
in agency regulations, this subpart does not apply to contracts for (a)
services involving the construction, alteration, or repair (including
dredging, excavating, and painting) of buildings, bridges, roads, or
other kinds of real property; (b) architect-engineer services; and (c)
research and development services. However, it does not preclude the
use of options in those contracts.
15. Section 17.204(e) is amended by removing the last sentence and
adding in its place two new sentences to read as follows:
[[Page 41470]]
17.204 Contracts.
* * * * *
(e) * * * These limitations do not apply to information technology
contracts. However, statutes applicable to various classes of
contracts, for example, the Service Contract Act (see 22.1002-1), may
place additional restrictions on the length of contracts.
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
16. Subsection 19.502-1 is amended by revising the last sentence to
read as follows:
19.502-1 Requirements for setting aside acquisitions.
* * * This requirement does not apply to purchases of $2,500 or
less, or purchases from required sources of supply under Part 8 (e.g.,
Federal Prison Industries, Committee for Purchase from People Who are
Blind or Severely Disabled, and Federal Supply Schedule contracts).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1006 [Amended]
17. Section 22.1006(e)(1) is amended by removing the acronym
``ADP'' and inserting ``information technology'' in its place.
PART 32--CONTRACT FINANCING
18. Section 32.602(h) is revised to read as follows:
32.602 General.
* * * * *
(h) Reimbursement of costs, as provided in 33.102(b) and
33.104(h)(1), paid by the Government where a postaward protest is
sustained as a result of an awardee's misstatement, misrepresentation,
or miscertification.
19. Section 32.603 is revised to read as follows:
32.603 Applicability.
Except as otherwise specified, this subpart applies to all debts to
the Government arising in connection with contracts and subcontracts
for the acquisition of supplies or services, and debts arising from the
Government's payment of costs, as provided in 33.102(b) and
33.104(h)(1), where a postaward protest is sustained as a result of an
awardee's misstatement, misrepresentation, or miscertification.
PART 33--PROTESTS, DISPUTES, AND APPEALS
20. Section 33.102 is amended by revising the first sentence of
paragraph (a); in (b)(3)(i) by removing ``or GSBCA''; in (c) by
removing ``or GSBCA'' and by removing ``90 working'' and inserting
``100'' in its place; and by revising (e). The revised text reads as
follows:
33.102 General.
(a) Contracting officers shall consider all protests and seek legal
advice, whether protests are submitted before or after award and
whether filed directly with the agency or the General Accounting Office
(GAO). * * *
* * * * *
(e) An interested party wishing to protest is encouraged to seek
resolution within the agency (see 33.103) before filing a protest with
the GAO, but may protest to the GAO in accordance with GAO regulations
(4 CFR part 21).
33.104 [Amended]-
21. Section 33.104 is amended in paragraph (a)(3)(i) introductory
text by removing ``35'' and inserting ``30'' in its place, and in
paragraph (f) by removing ``125'' and inserting ``100'' in its place.
33.105 [Reserved]-
22. Section 33.105 is removed and reserved.
PART 34--MAJOR SYSTEM ACQUISITION
34.001 [Amended]-
23. Section 34.001 is amended by removing the definition for
``Major system''.
PART 37--SERVICE CONTRACTING-
24. Section 37.202(a) is revised to read as follows:
37.202 Exclusions.
* * * * *
(a) Routine information technology services unless they are an
integral part of a contract for the acquisition of advisory and
assistance services.
* * * * *
PART 38--FEDERAL SUPPLY SCHEDULE CONTRACTING
38.000 [Amended]
25. Section 38.000 is amended by removing the second sentence. -
26. Part 39 is revised to read as follows:
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
Sec.
39.000 Scope of part.
39.001 Applicability.
39.002 Definitions.
Subpart 39.1--General
39.101 Policy.
39.102 Management of risk.
39.103 [Reserved]
39.104 [Reserved]
39.105 Privacy.
39.106 Contract clause.
39.000 Scope of part.-
This part prescribes acquisition policies and procedures for use in
acquiring information technology consistent with other parts of this
chapter and OMB Circular No. A-130, Management of Federal Information
Resources.
39.001 Applicability.-
This part applies to the acquisition of information technology by
or for the use of agencies except for acquisitions of information
technology for national security systems. However, acquisitions of
information technology for national security systems shall be conducted
in accordance with 40 U.S.C. 1412 with regard to requirements for
performance and results-based management; the role of the agency Chief
Information Officer in acquisitions; and accountability. These
requirements are addressed in OMB Circular No. A-130.
39.002 Definitions.-
National security system, as used in this part, means any
telecommunications or information system operated by the United States
Government, the function, operation, or use of which---
(a) Involves intelligence activities;-
(b) Involves cryptologic activities related to national security;-
(c) Involves command and control of military forces;-
(d) Involves equipment that is an integral part of a weapon or
weapons system; or-
(e) Is critical to the direct fulfillment of military or
intelligence missions. This does not include a system that is to be
used for routine administrative and business applications, such as
payroll, finance, logistics, and personnel management applications.
Subpart 39.1--General
39.101 Policy.-
In acquiring information technology, agencies shall identify their
requirements pursuant to OMB Circular A-130, including consideration of
[[Page 41471]]
security of resources, protection of privacy, national security and
emergency preparedness, accommodations for individuals with
disabilities, and energy efficiency. When developing an acquisition
strategy, contracting officers should consider the rapidly changing
nature of information technology through market research (see part 10)
and the application of technology refreshment techniques.
39.102 Management of risk.-
(a) Prior to entering into a contract for information technology,
an agency should analyze risks, benefits, and costs. (See part 7 for
additional information regarding requirements definition.) Reasonable
risk taking is appropriate as long as risks are controlled and
mitigated. Contracting and program office officials are jointly
responsible for assessing, monitoring and controlling risk when
selecting projects for investment and during program implementation. -
(b) Types of risk may include schedule risk, risk of technical
obsolescence, cost risk, risk implicit in a particular contract type,
technical feasibility, dependencies between a new project and other
projects or systems, the number of simultaneous high risk projects to
be monitored, funding availability, and program management risk.-
(c) Appropriate techniques should be applied to manage and mitigate
risk during the acquisition of information technology. Techniques
include, but are not limited to: prudent project management; use of
modular contracting; thorough acquisition planning tied to budget
planning by the program, finance and contracting offices; continuous
collection and evaluation of risk-based assessment data; prototyping
prior to implementation; post implementation reviews to determine
actual project cost, benefits and returns; and focusing on risks and
returns using quantifiable measures.
39.103-39.104 [Reserved]
39.105 Privacy.-
Agencies shall ensure that contracts for information technology
address protection of privacy in accordance with the Privacy Act (5
U.S.C. 552a) and part 24. In addition, each agency shall ensure that
contracts for the design, development, or operation of a system of
records using commercial information technology services or information
technology support services include the following:-
(a) Agency rules of conduct that the contractor and the
contractor's employees shall be required to follow.-
(b) A list of the anticipated threats and hazards that the
contractor must guard against.-
(c) A description of the safeguards that the contractor must
specifically provide.-
(d) Requirements for a program of Government inspection during
performance of the contract that will ensure the continued efficacy and
efficiency of safeguards and the discovery and countering of new
threats and hazards.
39.106 Contract clause.-
The contracting officer shall insert a clause substantially the
same as the clause at 52.239-1, Privacy or Security Safeguards, in
solicitations and contracts for information technology which require
security of information technology, and/or are for the design,
development, or operation of a system of records using commercial
information technology services or support services.
PART 45--GOVERNMENT PROPERTY
45.608-1 [Amended]-
27. Section 45.608-1 is amended in Table 45-1 under the Screening
Category ``Special Items'' by removing in the second column ``Automatic
data processing equipment.'', and in the third column by removing
``(see 45.608-5(d))'' and revising ``(see 45.608-5(e))'' to read ``(see
45.608-5(d))''.
45.608-5 [Amended]-
28. Section 45.608-5 is amended by removing paragraph (d) and by
redesignating paragraph (e) as (d).
PART 46--QUALITY ASSURANCE-
29. Section 46.801 is amended by revising the first sentence of
paragraph (a) to read as follows:
46.801 Applicability.-
(a) This subpart applies to contracts other than those for (1)
information technology, including telecommunications, (2) construction,
(3) architect-engineer services, and (4) maintenance and rehabilitation
of real property. * * *
* * * * *
PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS-
30. Section 51.103(c) is revised to read as follows:
51.103 Ordering from Government supply sources.
* * * * *
(c) Contractors placing orders under indefinite delivery contracts
issued by GSA for automatic data processing equipment, software and
maintenance, communications equipment and supplies, and teleprocessing
services shall follow the terms of the applicable contract and the
procedures in 51.103(a)(1) and (2).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES-
31. Section 52.212-5 is amended by revising the clause date; by
removing from paragraph (a)(2) ``and 40 U.S.C. 759'' and from the
introductory text of paragraph (b) ``and FIRMR''; and by revising
(b)(16) and (17) to read as follows:
52.212-5 Contract terms and conditions required to implement statutes
or executive orders--commercial items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders-Commercial Items (Aug. 1996)
* * * * *--
(b) * * *--
______ (16) 52.239-1, Privacy or Security Safeguards (5 U.S.C.
552a).-
______ (17) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (46 U.S.C. 1241).
* * * * *
(End of clause)
32. Section 52.222-48 is amended by revising the section heading,
the clause heading and date, and by removing from paragraph (a)(2)
``ADP'' and inserting ``information technology'' in its place. The
revised text reads as follows:
52.222-48 Exemption from Application of Service Contract Act
Provisions for Contracts for Maintenance, Calibration, and/or Repair of
Certain Information Technology, Scientific and Medical and/or Office
and Business Equipment--Contractor Certification.
* * * * *
Exemption From Application of Service Contract Act Provisions For
Contracts For Maintenance, Calibration, and/or Repair of Certain
Information Technology, Scientific and Medical and/or Office and
Business Equipment--Contractor Certification (Aug. 1996)
* * * * *
(End of clause)-
33. Section 52.233-2 is revised to read as follows:
52.233-2 Service of Protest.-
As prescribed in 33.106(a), insert the following provision:
[[Page 41472]]
Service of Protest (Aug. 1996)-
(a) Protests, as defined in section 33.101 of the Federal
Acquisition Regulation, that are filed directly with an agency, and
copies of any protests that are filed with the General Accounting
Office (GAO), shall be served on the Contracting Officer (addressed
as follows) by obtaining written and dated acknowledgment of receipt
from ______. [Contracting Officer designate the official or location
where a protest may be served on the Contracting Officer.]-
(b) The copy of any protest shall be received in the office
designated above within one day of filing a protest with the GAO.
(End of provision)
-34. Section 52.233-3 is amended by revising the clause date and
the first sentence of paragraph (f) to read as follows:
52.233-3 Protest after Award.
* * * * *
Protest After Award (Aug. 1996)
* * * * *-
(f) If, as the result of the Contractor's intentional or
negligent misstatement, misrepresentation, or miscertification, a
protest related to this contract is sustained, and the Government
pays costs, as provided in FAR 33.102(b)(2) or 33.104(h)(1), the
Government may require the Contractor to reimburse the Government
the amount of such costs. * * *
(End of clause)
* * * * *-
35. Section 52.239-1 is added to read as follows:
52.239-1 Privacy or Security Safeguards.-
As prescribed in 39.106, insert a clause substantially the same as
the following:
Privacy or Security Safeguards (Aug. 1996)-
(a) The Contractor shall not publish or disclose in any manner,
without the Contracting Officer's written consent, the details of
any safeguards either designed or developed by the Contractor under
this contract or otherwise provided by the Government.-
(b) To the extent required to carry out a program of inspection
to safeguard against threats and hazards to the security, integrity,
and confidentiality of Government data, the Contractor shall afford
the Government access to the Contractor's facilities, installations,
technical capabilities, operations, documentation, records, and
databases.-
(c) If new or unanticipated threats or hazards are discovered by
either the Government or the Contractor, or if existing safeguards
have ceased to function, the discoverer shall immediately bring the
situation to the attention of the other party.
(End of clause)
PART 53-FORMS-
36. Section 53.245(a) is amended by revising the last sentence to
read as follows:
53.245 Government property.-
* * * * *
(a) * * * (See 45.608-2(b)(2) and 45.608-8.)
* * * * *
[FR Doc. 96-20187 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20186 Federal Acquisition Regulation; Introduction of Miscellaneous Amendments
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41466-41467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20186]
[[Page 41465]]
_______________________________________________________________________
Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Ch. 1, et al.
Federal Acquisition Regulations; Introduction of Miscellaneous
Amendments; Final and Interim Rules
Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41466]]
DEPARTMENT OF DEFENSE-
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Federal Acquisition Circular 90-41]
Federal Acquisition Regulation; Introduction of Miscellaneous
Amendments
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules.
-----------------------------------------------------------------------
SUMMARY: This document serves to introduce and relate together the
interim and final rule documents which follow and which comprise
Federal Acquisition Circular (FAC) 90-41. The Civilian Agency
Acquisition Council and the Defense Acquisition Regulations Council
have agreed to issue FAC 90-41 to amend the Federal Acquisition
Regulation (FAR) to implement changes in the following subject areas. A
companion document, the Small Entities Compliance Guide, follows this
FAC and may be located on the Internet at http://www.gsa.gov/far/
compliance.
----------------------------------------------------------------------------------------------------------------
Item- Subject FAR case- Analyst
----------------------------------------------------------------------------------------------------------------
I.................... Information Technology 96-319 O'Neill.
Management Reform Act of
1996.
II................... Compliance with Immigration 96-320- DeStefano.-
and Nationality Act
Provisions.
III.................. Federal Acquisition and 95-305- DeStefano.
Community Right-to-Know.
IV................... Restrictions on Certain 95-303 O'Such.
Foreign Purchases.
V.................... Legal Proceedings Costs-.... 93-010 Olson.
----------------------------------------------------------------------------------------------------------------
DATES: For effective dates and comment dates, see individual documents
which appear elsewhere in this separate part.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in
relation to each FAR case or subject area. For general information,
contact the FAR Secretariat, Room 4037, GS Building, Washington, DC,
20405 (202) 501-4755. Please cite FAC 90-41 and FAR case number(s).
SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-41 amends
the FAR as specified below:
CASE SUMMARIES-
For the actual revisions and/or amendments to these FAR cases,
refer to the specific item number and subject set forth in the
documents following these item summaries.
Item I--Information Technology Management Reform Act of 1996 (FAR
Case 96-319)
This interim rule implements the Information Technology Management
Reform Act (ITMRA) of 1996 (Division E of Public Law 104-106). ITMRA
seeks to improve Federal information management and to facilitate
acquisition of state-of-the-art information technology that is critical
for improving the efficiency and effectiveness of Government
operations. Under ITMRA, each executive agency is authorized to acquire
information technology, including entering into contracts that provide
for multi-agency acquisitions of information technology in accordance
with guidance issued by the Office of Management and Budget. This
interim rule also contains certain policies and procedures from the
Federal Information Resources Management Regulation (FIRMR). The
changes to the FAR include (1) addition of a definition of
``information technology'' at 2.101; (2) relocation of the definition
of ``major system'' from 34.001 to 2.101; (3) addition of a new Subpart
8.9, Financial Management Systems Software (FMSS) Mandatory Multiple
Award Schedule (MAS) Contracts Program; (4) revision of Part 39,
Acquisition of Information Technology; (5) addition of a new clause at
52.239-1, Privacy or Security Safeguards; and (6) various conforming
amendments in other parts of the FAR.
Item II--Compliance with Immigration and Nationality Act Provisions
(FAR Case 96-320)
This interim rule amends FAR 9.406 to implement Executive Order
12989 of February 13, 1996, Economy and Efficiency in Government
Procurement Through Compliance with Certain Immigration and Nationality
Act Provisions. The Executive Order provides that a contractor may be
debarred upon a determination by the Attorney General that the
contractor is not in compliance with the employment provisions of the
Immigration and Nationality Act.
Item III--Federal Acquisition and Community Right-to-Know (FAR Case
95-305)
The interim rule published in FAC 90-34 is revised and finalized.
The rule implements Executive Order 12969, Federal Acquisition and
Community Right-to-Know, which requires that Government contractors
report in a public manner on toxic chemicals released into the
environment. The final rule differs from the interim rule in that it
amends FAR Subpart 23.9, the provision at 52.223-13, and the clause at
52.223-14 to clarify that (1) an offeror must submit a Certification of
Toxic Chemical Release Reporting regarding only those facilities that
it owns or operates, and (2) a contractor must file a Toxic Chemical
Release Inventory Form with the Environmental Protection Agency only
for its facilities that are subject to the reporting requirements of
the Emergency Planning and Community Right-to-Know Act of 1986.
Item IV--Restrictions on Certain Foreign Purchases (FAR Case 95-
303)-
This final rule amends FAR Subpart 25.7 and the clause at 52.225-11
to (1) implement Executive Order 12959, Prohibiting Certain
Transactions with Respect to Iran, and (2) reflect the regulations of
the Department of the Treasury, Office of Foreign Assets Control (31
CFR Chapter V). Iran and Libya are added to the list of sources from
which procurement is restricted; Vietnam, Cambodia, and South Africa
are removed from the list.
Item V--Legal Proceedings Costs (FAR Case 93-010)
This final rule amends FAR 31.205-47 to make the costs of pre- or
post-award protests unallowable. An
[[Page 41467]]
exception to this requirement is made for costs incurred to defend
against a protest, if the costs are incurred pursuant to a written
request from the contracting officer.
Dated: August 2, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Federal Acquisition Circular
August 8, 1996; Number 90-41
Federal Acquisition Circular (FAC) 90-41 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
FAR case 96-320 is effective August 8, 1996. FAR cases 93-010, 95-
303, and 95-305 are effective October 7, 1996. Far Case 96-319 is
effective August 8, 1996, and applies to all information technology
solicitations issued on or after August 8, 1996.
Dated: July 29, 1996.
Eleanor R. Spector,
Director, Defense Procurement.
Dated: July 23, 1996.
Edward C. Loeb,
Acting Deputy Associate Administrator, Office of Acquisition Policy,
General Services Administration.
Tom Luedtke,
Deputy Associate Administrator for Procurement, National Aeronautics
and Space Administration.
[FR Doc. 96-20186 Filed 8-7-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-20166 Biological Warfare Experts Group Meeting: Implementation of Changes to Export Administration Regulations; ECCNs 1C991, 1C61B, 1B71E, and 1C91F
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41326-41329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20166]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 774 and 799A
[Docket No. 960723206-6206-0]
RIN 0694-AB37
Biological Warfare Experts Group Meeting: Implementation of
Changes to Export Administration Regulations; ECCNs 1C991, 1C61B,
1B71E, and 1C91F
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Export Administration (BXA) maintains the
Commerce Control List (CCL) as part of the Export Administration
Regulations (EAR). This rule amends the CCL by revising Export Control
Classification Numbers (ECCNs) 1C991, 1C61B, 1B71E, and 1C91F. The
changes made by this rule are based on discussions in the Biological
Warfare Experts Group (a subgroup of the Australia Group (AG)).
This rule will minimally increase the number of validated export
licenses required for items classified under ECCN 1C61B and 1B71E.
The EAR have been completely amended by an interim rule published
on March 25, 1996 (61 FR 12714) that provides for a transition period
within which exporters can take advantage of both the old rules and the
new rules until November 1, 1996. Therefore, this rule and all other
amendments to the EAR during the transition period will amend both the
new EAR and the old EAR, which are now designated with the letter ``A''
following the part number. This rule consists primarily of changes to
the old EAR to conform to the new EAR, except changes to ECCNs 1C991
and 1C91F.
DATES: This rule is effective August 8, 1996.
FOR FURTHER INFORMATION CONTACT: For questions on foreign policy
controls, call Patricia Sefcik, Bureau of Export Administration,
Telephone: (202) 482-0707.
For questions of a technical nature on chemical weapon precursors,
biological agents, and equipment that can be used to produce chemical
and biological weapons agents, call James Seevaratnam, Bureau of Export
Administration, Telephone: (202) 482-3343.
For questions of a general nature, call Hillary Hess, Bureau Export
Administration, Telephone: (202) 482-2440.
SUPPLEMENTARY INFORMATION:
Background
Consultations of the Biological Warfare Experts Group were held
October 16-19, 1995 in conjunction with the Australia Group plenary
meeting. The consultations resulted in changes to the list of
controlled items, including the following revisions to the names of
certain microorganisms: Changing Rickettsia quintana to Bartonella
quintana (Rochalimea quintana, Rickettsia quintana), Pseudomonas mallei
to Burkholderia mallei (Pseudomonas mallei), and Pseudomonas
pseudomallei to Burkholderia pseudomallei (Pseudomonas pseudomallei).
It was also agreed to place the former name in parentheses following
the new name on the list in order to assist in appropriate
identification for export control purposes.
This rule revises the note in the requirement section of ECCN 1C61B
to exclude immunotoxins. A technical note added to ECCN 1C61B provides
the definitions of ``immunotoxin'' and ``subunit''. Immunotoxins are
therapeutics with no biological warfare application. Immunotoxins have
been added to ECCN 1C91F and are eligible for export under the
provisions of General License G-DEST to all destinations but those
listed in Country Groups S, Z, and Iran. In addition, a technical note
that adds the definition of ``immunotoxin'' has been added to ECCN
1C91F. This rule makes parallel changes to ECCN 1C991.
This rule also implements changes in the area of dual-use
biological equipment. In ECCN 1B71E, ``Equipment that can be used in
the production of biological weapons'', the capacity parameter for
fermenters, within paragraph (b), is decreased from ``equal to or
greater than 300 liters'' to ``equal to or greater than 100 liters''.
This is done to expand export controls to capture smaller fermenters
that can be used for biological warfare purposes.
Prior to this final rule, fermenters of the designated size were
controlled only if they either contained ``double or multiple sealing
joints within the steam containment area'' or were ``capable of in-situ
sterilization in a closed state.'' These two modifiers or limiting
[[Page 41327]]
descriptors have been removed by this final rule.
This rule also makes a clarification to cross-flow filtration
equipment (ECCN 1B71E paragraph (d)). Where the control language
formerly stated ``cross-flow filtration equipment designed for
continuous separation * * *'', this final rule controls ``Cross-flow
filtration equipment capable of continuous separation * * *''.
Lastly, this rule expands controls on aerosol chambers within ECCN
1B71E paragraph (g). Where the control language used to state
``Chambers designed for aerosol challenge testing with pathogenic
microorganisms * * *'', it will now state ``Chambers designed for
aerosol challenge testing with microorganisms * * *''. The word
``pathogenic'' is removed to expand export controls to aerosol chambers
not specifically designed for pathogenic microorganisms.
Although the Export Administration Act (EAA) expired on August 20,
1994, the President invoked the International Emergency Economic Powers
Act and continued in effect, to the extent permitted by law, the
provisions of the EAA and the EAR in Executive Order 12924 of August
19, 1994, as extended by the President's notice of August 15, 1995 (60
FR 42767).
Saving Clause
Shipments of items removed from general license authorizations as a
result of this regulatory action that were on dock for loading, on
lighter, laden aboard an exporting carrier, or en route aboard a
carrier to a port of export pursuant to actual orders for export before
August 8, 1996 may be exported under the previous general license
provisions up to and including September 9, 1996. Any such items not
actually exported before midnight September 9, 1996, require a
validated export license in accordance with this regulation.
Rulemaking Requirements
1. This final rule has been determined to be not significant for
purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is
required to respond to nor shall a person be subject to a penalty for
failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act unless that collection of
information displays a currently valid OMB Control Number. This rule
involves collections of information subject to the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.). These collections have been
approved by the Office of Management and Budget under control numbers
0694-0005, 0694-0010, 0694-0067, and 0694-0088.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
4. Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by section
553 of the Administrative Procedure Act (5 U.S.C. 553) or by any other
law, under section 3(a) of the Regulatory Flexibility Act (5 U.S.C.
603(a) and 603(b)) no initial or final Regulatory Flexibility Analysis
has to be or will be prepared.
5. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military and foreign affairs
function of the United States. Section 13(b) of the EAA does not
require that this rule be published in proposed form because this rule
does not impose a new control. Further, no other law requires that a
notice of proposed rulemaking and an opportunity for public comment be
given for this rule.
Therefore, this regulation is issued in final form. Although there
is no formal comment period, public comments on this regulation are
welcome on a continuing basis. Comments should be submitted to Hillary
Hess, Regulatory Policy Division, Office of Exporter Services, Bureau
of Export Administration, Department of Commerce, PO Box 273,
Washington, DC 20044.
List of Subjects
15 CFR Part 774
Exports, Foreign trade.
15 CFR Part 799A
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 774 and 799A of the Export Administration
Regulations (15 CFR parts 730-799) are amended as follows:
PART 774--[AMENDED]
1. The authority citation for 15 CFR part 774 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C.
287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; Sec. 201, Pub. L. 104-
58, 109 Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C.
2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50
U.S.C. app. 5; E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917;
Notice of August 15, 1995 (60 FR 42767, August 17, 1995).
Supplement No. 1 to Part 774
2. In Category 1, Materials, ECCN 1C991 is revised to read as
follows:
1C991 Vaccines containing items controlled by ECCNs 1C351, 1C352,
1C353 and 1C354, and immunotoxins.
Licenses Requirements
Reason for Control: AT
------------------------------------------------------------------------
Control(s) Country chart
------------------------------------------------------------------------
AT applies to entire entry............... AT Column 1.
------------------------------------------------------------------------
License Exceptions
LVS: N/A
GBS: N/A
CIV: N/A
List of Items Controlled
Unit: $ value
Related Controls: N/A
Related Definitions: For the purposes of this entry ``immunotoxin''
is defined as an antibody-toxin conjugate intended to destroy specific
target cells (e.g., tumor cells) that bear antigens homologous to the
antibody.
Items:
The list of items controlled is contained in the ECCN heading.
PART 799A--[AMENDED]
3. The authority citation for 15 CFR part 799A continues to read as
follows:
Authority: Pub. L. 90-351, 82 Stat. 197 (18 U.S.C. 2510 et
seq.), as amended; Pub. L. 95-223, 91 Stat. 1626 (50 U.S.C. 1701 et
seq.); Pub. L. 95-242, 92 Stat. 120 (22 U.S.C. 3201 et seq. and 42
U.S.C. 2139a); Pub. L. 96-72, 93 Stat. 503 (50 U.S.C. App. 2401 et
seq.), as amended [(extended by Pub. L. 103-10, 107 Stat. 40 and by
Pub. L. 103-277, 108 Stat. 1407)]; Pub. L. 102-484, 106 Stat. 2575
(22 U.S.C. 6004); E.O. 12002 of July 7, 1977 (42 FR 35623, July 7,
1977), as amended; E.O. 12058 of May 11, 1978 (43 FR 20947, May 16,
1978); E.O. 12214 of May 2, 1980 (45 FR 29783, May 6, 1980); E.O.
12735 of November 16, 1990 (55 FR 48587, November 20, 1990), as
continued by Notice of November 12, 1993 (58 FR 60361, November 15,
1993); E.O. 12851 of June 11, 1993 (58 FR 33181, June 15, 1993);
E.O. 12867 of September 30, 1993 (58 FR 51747, October 4, 1993);
E.O. 12930 of September 29, 1994 (59 FR 50475, October 3, 1994);
E.O. 12924 of August 19, 1994 (59 FR 43437 of August 23, 1994); E.O.
12930 (59 FR 50475 of October 3, 1994); and Notice of August 15,
1995 (60 FR 42767).
Supplement No. 1 to Sec. 799A.1
4. In Category 1, Materials, ECCNs 1B71E, 1C61B, and 1C91F are
revised to read as follows:
[[Page 41328]]
1B71E Equipment that can be used in the production of biological
weapons.
Requirements
Validated License Required: SZ, Supplement 5 to Part 778 (see Note)
Unit: Number
Reason for Control: CB
GLV: $0
GCT: No
GFW: No
Note: Special chemical License Available: see Sec. 773.9 of this
subchapter.
List of Items Controlled
a. Biohazard containment equipment as follows:
a.1. Complete containment facilities at P3 or P4 containment level;
and
a.2. Equipment that incorporates or is contained in a P3 or P4
containment housing.
b. Fermenters capable of cultivation of pathogenic microorganisms,
viruses or for toxin production, without the propagation of aerosols,
having a capacity equal to or greater than 100 liters.
Note: Sub-groups of fermenters include bioreactors, chemostats,
and continuous-flow systems.
c. Centrifugal separators capable of the continuous separation of
pathogenic microorganisms, without the propagation of aerosols, and
having all of the following characteristics:
c.1. A flow rate greater than 100 liters per hour;
c.2. Components of polished stainless steel or titanium;
c.3. Double or multiple sealing joints within the stream
containment area;
c.4. Capable of in-situ stream sterilization in a closed state.
Note: Centrifugal separators include decanters.
d. Cross-flow filtration equipment capable of continuous separation
of pathogenic microorganisms, viruses, toxins, and cell cultures
without the propagation of aerosols, having all of the following
characteristics:
d.1. Equal to or greater than 5 square meters;
d.2. Capable of in-situ sterilization.
e. Steam sterilizable freeze-drying equipment with condenser
capacity greater than 50 kgs. but less than 1,000 kgs. of ice in 24
hours.
f. Equipment that incorporates or is contained in P3 or P4
containment housing, as follows:
f.1. Independently ventilated protective full or half suits; and
f.2. Class III biological safety cabinets or isolators with similar
performance standards.
g. Chambers designed for aerosol challenge testing with
microorganisms, viruses, or toxins and having a capacity of 1 cubic
meter or greater.
1C61B Microorganisms, toxins, and aflatoxins.
Requirements
Validated License Required: QSTVWYZ
Unit: $ value
Reason For Control: CB
GLV: $0
GCT: No
GFW: No
Note: Notwithstanding the provisions of this entry, all vaccines
and immunotoxins are excluded from the scope of this entry. See ECCN
1C91F.
Technical Note: For the purposes of ECCN 1C61B, the following
definitions apply:
a. ``Immunotoxin'' is an antibody-toxin conjugate intended to
destroy specific target cells, e.g., tumor cells, that bear antigens
homologous to the antibody; and
b. ``Subunit'' is a portion of the toxin.
List of Items Controlled
a. Viruses, as follows:
a.1. African swine fever virus;
a.2. Avian influenza virus;
a.3. Bluetongue virus;
a.4. Chikungunya virus
a.5. Congo-Crimean haemorrhagic fever virus;
a.6. Dengue fever virus;
a.7. Eastern equine encephalitis virus;
a.8. Ebola virus;
a.9. Foot and mouth disease virus;
a.10. Goat pox virus;
a.11. Hantaan virus;
a.12. Herpes virus (Aujeszky's disease);
a.13. Hog cholera virus;
a.14. Japanese encephalitis virus;
a.15. Junin virus;
a.16. Lassa fever virus;
a.17. Lymphocytic choriomeningitis virus;
a.18. Machupo virus;
a.19. Marburg virus;
a.20. Monkey pox virus;
a.21. Newcastle disease virus;
a.22. Peste des petits ruminants virus;
a.23. Porcine enterovirus type 9;
a.24. Rift Valley fever virus;
a.25. Rinderpest virus;
a.26. Sheep pox virus;
a.27. Teschen disease virus;
a.28. Tick-borne encephalitis virus (Russian Spring-Summer
encephalitis virus);
a.29. Variola virus;
a.30. Venezuelan equine encephalitis virus;
a.31. Vesicular stomatitis virus;
a.32. Western equine encephalitis virus;
a.33. White pox; or
a.34. Yellow fever virus.
b. Rickettsiae, as follows:
b.1. Bartonella quintana (Rochalimea quintana, Rickettsia
quintana);
b.2. Coxiella burnetii;
b.3. Rickettsia prowasecki; or
b.4. Rickettsia rickettsii.
c. Bacteria, as follows:
c.1. Bacillus anthracis;
c.2. Brucella abortus;
c.3. Brucella melitensis;
c.4. Brucella suis;
c.5. Burkholderia mallei (Pseudomonas mallei);
c.6. Burkholderia pseudomallei (Pseudomonas pseudomallei);
c.7. Chlamydia psittaci;
c.8. Clostridium botulinum;
c.9. Francisella tularensis;
c.10. Mycoplasma mycoides;
c.11. Pseudomonas solanacerum;
c.12. Salmonella typhi;
c.13. Shigella dysenteriae;
c.14. Vibrio cholerae;
c.15. Xanthonomas albilineas;
c.16. Xanthonomas campestris pv citri;
c.17. Xanthomonas campestris pv oryzae; or
c.18. Yersinia pestis.
d. Fungi, as follows:
d.1. Cochliobolus miyabeanus (Helminthosporium oryzae);
d.2. Colletotrichum coffeanum var. virulans (Colletotrichum
kahawae);
d.3. Heliminthosporium maydis;
d.4. Heliminthosprium oryzae;
d.5. Microcyclus ulei (syn. Dothidella ulei);
d.6. Puccinia glumarum;
d.7. Puccinia graminis (syn. Puccinia graminis f. sp. tritici);
d.8. Puccinia striiformis (syn. Puccinia glumarum);
d.9. Pyricularia grisea/Pyricularia oryzae; or
d.10. Ustilago maydis.
e. Genetically modified microorganisms, as follows:
e.1. Genetically modified micro-organisms or genetic elements that
contain nucleic acid sequences associated with pathogenicity and are
derived from organisms identified in this ECCN;
e.2. Genetically modified micro-organisms or genetic elements that
contain nucleic acid sequences associated with pathogenicity derived
from plant pathogens identified in this ECCN; or
e.3. Genetically modified microorganisms or genetic elements that
contain nucleic acid sequences coding for any of the toxins, or their
subunits listed in paragraph f of this ECCN.
f. Toxins, as follows and subunits thereof:
[[Page 41329]]
f.1. Botulinum toxins;
f.2. Clostridium perfringens toxins;
f.3. Conotoxin;
f.4. Microcystin (cyanogenosin);
f.5. Ricin;
f.6. Saxitoxin;
f.7. Shiga toxin;
f.8. Staphylococcus aureus toxins;
f.9. Tetrodotoxin; or
f.10. Verotoxin.
1C91F Vaccines containing microorganisms and/or toxins controlled by
ECCN 1C61B, and immunotoxins.
Requirements
Validated License Required: SZ, Iran
Unit: $ value
Reason for Control: FP
GLV: No
GCT: No
GFW: No
Note: Vaccines that do not contain items controlled by ECCN
1C61B are controlled by ECCN 1C96G.
Technical Note: For the purposes of ECCN 1C91F, the definition of
``Immunotoxin'' is an antibody-toxin conjugate intended to destroy
specific target cells, e.g., tumor cells, that bear antigens homologous
to the antibody.
Dated: July 30, 1996.
Sue E. Eckert,
Assistant Secretary for Export Administration.
[FR Doc. 96-20166 Filed 8-7-96; 8:45 am]
BILLING CODE 3510-DT-P
Complete official Federal Register PDF
FR Doc. 96-20165 Fisheries of the Exclusive Economic Zone Off Alaska; Atka Mackerel in the Eastern Aleutian District and Bering Sea Subarea
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41362-41363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20165]
=======================================================================
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[[Page 41363]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960129019-6019-01; I.D. 080296A]
Fisheries of the Exclusive Economic Zone Off Alaska; Atka
Mackerel in the Eastern Aleutian District and Bering Sea Subarea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for Atka mackerel in the
Eastern Aleutian District and Bering Sea subarea of the Bering Sea and
Aleutian Islands management area (BSAI). This action is necessary to
prevent exceeding the total allowable catch of Atka mackerel in this
area.
EFFECTIVE DATE: 1200 hours, Alaska local time (A.l.t.), August 2, 1996,
until 2400 hours, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at subpart H of 50 CFR part 600 and 50 CFR part 679.
In accordance with Sec. 679.20(c)(3)(iii), the total allowable
catch of Atka mackerel for the Eastern Aleutian District and Bering Sea
subarea was established by the Final 1996 Harvest Specifications of
Groundfish (61 FR 4311, February 5, 1996) for the BSAI and subsequent
reserve apportionment (61 FR 16085, April 11, 1996) as 26,700 metric
tons (mt). The directed fishery for Atka mackerel in the Eastern
Aleutian District and Bering Sea subarea was closed under
Sec. 679.20(d)(iii) on February 14, 1996, (61 FR 6323, February 20,
1996) and reopened on July 1, 1996 (61 FR 33046, June 26, 1996). The
fishery was again closed on July 8, 1996 (61 FR 36306, July 10, 1996)
and reopened on July 31, 1996 (61 FR 33387, July 27, 1996).
The Director, Alaska Region, NMFS (Regional Director), has
determined, in accordance with Sec. 679.20(d)(iii), that the Atka
mackerel total allowable catch in the Eastern Aleutian District and
Bering Sea subarea soon will be reached. Therefore, the Regional
Director has established a directed fishing allowance of 26,600 mt
after determining that 100 mt will be taken as incidental catch in
directed fishing for other species in the Eastern Aleutian District and
Bering Sea subarea. Consequently NMFS is prohibiting directed fishing
for Atka mackerel in the Eastern Aleutian District and Bering Sea
subarea.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 679.20(e).
Classification
This action is taken under Sec. 679.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 2, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-20165 Filed 8-5-96; 12:53pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-20139 Clean Air Act Approval and Promulgation of Carbon Monoxide Implementation Plan for the State of Washington: Puget Sound Emission Inventory
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41331-41335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20139]
-----------------------------------------------------------------------
ENVIRONMENT PROTECTION AGENCY
40 CFR Part 52
[WA47-7120a; FRL-5543-9]
Clean Air Act Approval and Promulgation of Carbon Monoxide
Implementation Plan for the State of Washington: Puget Sound Emission
Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving the 1990 base year and 1995 projected year
carbon monoxide emission inventory portion of the Puget Sound carbon
monoxide (CO) State Implementation Plan (SIP) submitted on September
30, 1994, by the State of Washington Department of Ecology (Ecology)
for the purpose of bringing about the attainment of the national
ambient air quality standard (NAAQS) for CO.
DATES: This action is effective on September 23, 1996 unless adverse or
critical comments are received by September 9, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue,
Seattle, Washington 98101.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation
[[Page 41332]]
Docket and Information Center, Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460. Copies of material submitted to EPA
may be examined during normal business hours at the following
locations: EPA, Region 10, Office of Air Quality, 1200 Sixth Avenue
(OAQ-107), Seattle, Washington 98101, and Washington State Department
of Ecology, 300 Desmond Drive, Olympia, WA 98504.
FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, EPA Region 10,
Office of Air Quality (OAQ-107), Seattle WA 98101, (206) 553-6917.
SUPPLEMENTARY INFORMATION:
I. Background
In a March 15, 1991, letter to the EPA Region 10 Administrator, the
Governor of Washington recommended the Seattle-Tacoma-Everett area,
including the western portions of King, Pierce, and Snohomish Counties,
be designated as nonattainment for CO as required by section
107(d)(1)(A) of the 1990 Clean Air Act Amendments (CAAA or the Act)
(Public Law 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q).
The area, which includes lands within the Puyallup Reservation, Tulalip
Reservation and Muckleshoot Reservation, was designated nonattainment
and classified as ``moderate'' under the provisions outlined in
sections 186 and 187 of the CAA. (See 56 FR 56694 (Nov. 6, 1991),
codified at 40 CFR part 81, Sec. 81.348.) Because the Seattle-Tacoma-
Everett area had a design value of 14.8 ppm (based on 1987 data), it
was classified as ``moderate > 12.7 ppm'' (moderate plus).
Under the Clean Air Act as amended, States have the responsibility
to inventory emissions contributing to NAAQS nonattainment, to track
these emissions over time, and to ensure that control strategies are
being implemented that reduce emissions and move areas towards
attainment. Under section 187(a)(1), the CAAA requires moderate CO
nonattainment areas to submit a base year CO inventory that represents
actual emissions in the CO season by November 15, 1992. Stationary
point, stationary area, on-road mobile, and non-road mobile sources of
CO are to be included in the inventory. This inventory is for calendar
year 1990 and is denoted as the base year inventory. The inventory is
to address actual CO emissions for the area during the peak CO season.
The peak CO season should reflect the months when peak CO air quality
concentrations occur. Moderate CO nonattainment areas are required to
submit a periodic inventory that represents actual emissions no later
than September 30, 1995, and every three years thereafter until the
area is redesignated to attainment (section 187(a)(5)). Moderate CO
nonattainment areas with a design value of 12.7 parts per million (ppm)
or more are required to submit an attainment demonstration plan by
November 15, 1992 that demonstrates attainment by December 31, 1995
(187(a)(7)). To make the Attainment Demonstration, base year and
projected modeling inventories are needed. The base year inventory is
the primary inventory from which the periodic and modeling inventories
are derived. Further information on these inventories and their purpose
can be found in the document ``Emission Inventory Requirements for
Carbon Monoxide State Implementation Plans,'' EPA, Office of Air
Quality Planning and Standards, Research Triangle Park, North Carolina,
March 1991.
II. Today's Action
The EPA is approving the carbon monoxide (CO) base year 1990 and
projected year 1995 emission inventory submitted to EPA on September
30, 1994, based on the Level I, II, and III review findings.
III. Review of State Submittal
The Level I and II review process is used to determine that all
components of the base year inventory are present. The review also
evaluates the level of supporting documentation provided by the State
and assesses whether the emissions were developed according to current
EPA guidance. Washington's inventory satisfies both Level I and Level
II requirements. The Level III review process is outlined here and
consists of 9 points that the inventory must include. For a base year
emission inventory to be acceptable it must pass all of the following
acceptance criteria:
1. An approved Inventory Preparation Plan (IPP) must be provided
and the Quality Assurance (QA) program contained in the IPP must be
performed and its implementation documented.
2. Adequate documentation must be provided that enables the
reviewer to determine the emission estimation procedures and the
data sources used to develop the inventory.
3. The point source inventory must be complete.
4. Point source emissions must have been prepared or calculated
according to the current EPA guidance.
5. The area source inventory must be complete.
6. The area source emissions must have been prepared or
calculated according to the current EPA guidance.
7. The method (e.g., Highway Performance Modelling System (HPMS)
or a network transportation planning model) used to develop vehicle
miles travelled (VMT) estimates must follow EPA guidance, which is
detailed in the document, ``Procedures for Emission Inventory
Preparation, Volume IV: Mobile Sources'', December 1992. The VMT
development methods must be adequately described and documented in
the inventory report.
8. The MOBILE model must be correctly used to produce emission
factors for each of the vehicle classes.
9. Non-road mobile emissions must be prepared according to
current EPA guidance for all of the source categories.
The EPA is approving this emission inventory as meeting the
requirements of section 187(a)(1) of the Act. The reasons why this
submittal meets the Level III criteria are discussed below.
Initially, EPA subjected the Washington State CO emission
inventories to a rigorous review. This review pointed out various
deficiencies in the inventory. In their updates to the original
emissions inventory submitted January 24, 1993, the Puget Sound Air
Pollution Control Agency (PSAPCA) corrected these deficiencies. Further
corrections were made and submitted September 30, 1994.
Inventory Preparation Plan
Washington submitted its final Inventory Preparation Plan (IPP) and
accompanying final Quality Assurance Plan on October 2, 1991. These
plans satisfied the EPA's requirements.
Quality Assurance
Throughout the emissions inventory, PSAPCA provides documentation
of quality assurance. For each source category, PSAPCA identifies the
methodology employed. Where PSAPCA methods deviate from EPA suggested
procedures, the rationale for the alternate method is noted. For each
CO source category, PSAPCA provides the reference from which it
excerpted information. When needed, projection equations are provided
to show emission amounts beyond the base year. In many cases, the 1995
inventory ``grows'' the 1990 numbers by a particular factor (e.g.
population growth). If 1995 values are the same as 1990 values, reasons
for the lack of growth in emissions are noted.
Point source inventory: PSAPCA's point source inventory identifies
sources whose emissions equal or exceed twenty-five tons per year of
carbon monoxide. There are 18 CO point sources in the Puget Sound
nonattainment area. The dominant industry with CO point sources is pulp
and paper processing.
To compile the point source inventory, PSAPCA inventories all
[[Page 41333]]
subject point sources on an annual basis. Each source sends PSAPCA an
annual questionnaire (``Form B'') that chronicles its emissions. The
form includes SIC classification, normal operating schedule, criteria
air contaminants (in tons/year), an emission point/segment summary,
including CAS (chemical abstract services) numbers of the chemicals
involved. PSAPCA engineers then review the data, which may also be
verified by field inspectors.
PSAPCA reports that point source emissions for 1990 and 1995 are
identical, at 136,600 pounds per day.
Area source inventory: PSAPCA's inventory for CO area sources is
divided into the following categories: industrial fossil fuel use,
commercial fossil fuel use, residential fuel use, residential wood
burning, engine testing, residential garbage, land clearing burning,
yard waste burning, structure burning, and waste management. The
largest contributor to CO emissions was wood burning. Emissions for
each source category are calculated for the three counties that
comprise the nonattainment area (King, Pierce, and Snohomish). The
inventory provides a discussion per category, and displays equations
that were used to develop emissions estimates. Sources of information
are provided as needed (e.g. population from the 1990 Census). In some
cases, PSAPCA's methodology differs from EPA's recommended procedures.
When this occurs, PSAPCA notes the reason for the difference. Usually,
PSAPCA uses data tailored to the local or state area rather than using
the national equations or factors. For the 1995 emission inventory,
numbers are frequently ``grown'' from the 1990 inventory. Where
necessary, projection equations are provided. Area source totals for
1990 were 620,762 pounds per winter day (lb/wd) within the CO
nonattainment area, and 637,720 lb/wd for 1995. Additionally, for the
1995 stationary area source inventory, PSAPCA provides a trend analysis
and states an explanation for why increase or decrease in emissions may
have occurred.
Vehicle miles travelled (VMT): Washington created a ``Memorandum of
Understanding'' between the Puget Sound Regional Council, Spokane
Regional Council, Washington State Department of Ecology and Washington
State Department of Transportation to apportion responsibility for
reporting of vehicle miles travelled to these agencies. Puget Sound
Regional Council and Spokane Regional Council develop peer review draft
vehicle miles travelled reports for their respective Federal Aid Urban
Areas, based on data submitted by the Department of Transportation. The
draft reports are submitted to Ecology, which then submits the final
vehicle miles travelled annual report to EPA.
The Puget Sound Regional Council, which develops VMT forecasts for
the Puget Sound CO nonattainment area, uses a four-part model
consisting of a trip generation component, a trip distribution
component, a mode choice component, and a transportation/mode
assignment component. The model considers residential factors,
employment, road network, land use, population, etc., and is
reevaluated several times per year.
The VMT development methods were adequately described and
documented in the SIP and satisfy EPA's requirements.
Use of the Mobile model: The mobile5a model was correctly used to
produce emission factors for each of the vehicle classes. The model
employs the 2500 idle test even though Washington's program uses both
the loaded idle and the 2500 idle. This is because Mobile5a allots
higher emission factors for the loaded idle test than for the 2500
idle. Inputs to the mobile5a model reflect Washington's program: 2.7%
oxygenate, 15% waiver rate for cars 1968-1980, 14% waiver rate for cars
1981 and younger, 90% compliance rate, biennial inspection, centralized
program, etc. The Washington State Department of Ecology was
responsible for the on-road section of the emissions inventory. Quality
Assurance is provided within the on-road discussion. Additionally, the
EPA QA checklist was used to check data. On-road mobile sources are
4,347,800 lb/day for 1990 and 2,717,600 lb/day for 1995.
Please note that the emission inventory mobile source estimates are
not the same as those in the IM SIP. The IM SIP uses mobile5ah and
gives credit to technician training. Washington has elected to use the
mobile5a outputs for its attainment demonstration, and to use mobile5ah
to show that it meets EPA's low enhanced performance standard. This
discrepancy is further discussed in the Technical Support Document.
Non-road inventory: PSAPCA describes each category and the
methodology employed. Methodology is taken from Procedures for the
Preparation of Emission Inventories for Carbon Monoxide and Precursors
of Ozone, unless otherwise noted. When PSAPCA's methodology deviates
from EPA guidance, it is usually because PSPACA uses numbers reflective
of local scenarios as opposed to national averages. Assumptions,
equations, and sources are noted per source category. Major non-road
contributors are lawn and garden equipment, industrial and wholesale
equipment, and aircraft and marine sources. Nonroad totals are 396,336
lb/day for 1990 and 434,863 lb/day for 1995. For the 1995 inventory,
PSAPCA comments on the trends since 1990 and provides explanations for
why the increase or decrease in emission was projected to occur.
IV. Procedural Background
The Act requires States to observe certain procedural requirements
in developing emission inventory submissions to EPA. Section 110(a)(2)
of the Act requires that each emission inventory submitted by a State
has to be adopted after reasonable notice and public hearing.1
Final approval of the inventory will not occur until the State revises
the inventory to address public comments. CO nonattainment areas with
design values greater than 12.7 ppm must submit the entire SIP
(emissions inventories, attainment demonstrations, and control
strategies) by November 15, 1992, and EPA expects the emissions
inventories to have gone through the public hearing process as part of
the full CO SIP.2
---------------------------------------------------------------------------
\1\ Also Section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
\2\ Memorandum from John Calcagni, Director, Air Quality
Management Division, and William G. Laxton, Director, Technical
Support Division, to Regional Air Division Directors, Region I-X,
``Public Hearing Requirements for 1990 Base-Year Emission
Inventories for Ozone and Carbon Monoxide Nonattainment Areas,''
September 29, 1992.
---------------------------------------------------------------------------
The State of Washington held a public hearing on September 8, 1994
to entertain public comment on the 1990 base year emission inventory
for the Puget Sound Carbon Monoxide Nonattainment Area. Following the
public hearing the inventory was adopted by the State and signed by the
Governor on September 30, 1994, and submitted to EPA on September 30,
1994 as a proposed revision to the SIP.
The emission inventory was reviewed by EPA to determine
completeness shortly after its submittal, in accordance with the
completeness criteria set out at 40 CFR Part 51, Appendix V (1991), as
amended by 57 FR 42216 (August 26, 1991). The submittal was found to be
complete on March 30, 1995.
V. Implications of Today's Action
The EPA is approving the Puget Sound carbon monoxide emission
inventory submitted as ``replacement pages'' to the Washington SIP on
September 30, 1994. The State has submitted a complete inventory
[[Page 41334]]
containing point, area, on-road, and non-road mobile source data, and
documentation. Emissions for these groupings are presented in the
following table:
------------------------------------------------------------------------
Daily Emissions (lbs/
day) (rounded to the
nearest 100)
Emission Category -----------------------
Base year Projected
1990 year 1995
------------------------------------------------------------------------
Point sources................................... 136,000 136,000
Area sources.................................... 620,700 637,700
Non-road mobile sources......................... 396,300 435,000
On-road mobile sources.......................... 4,347,800 2,717,600
-----------------------
Total....................................... 5,492,200 3,928,000
------------------------------------------------------------------------
This inventory is complete and approvable according to the criteria
set out in the November 12, 1992 memorandum from J. David Mobley, Chief
Emission Inventory Branch, Technical Support Document (TSD) to G.T.
Helms, Chief Ozone/Carbon Monoxide Programs Branch, AQMD.
As noted, additional submittals of SIP emission inventories for the
nonattainment areas are due at later dates. The EPA will determine the
adequacy of any such submittal as appropriate.
VI. Administrative Review
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the state is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to the SIP shall be
considered separately in light of specific technical, economic and
environmental factors and in relation to relevant statutory and
regulatory requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from E.O. 12866 review.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective September 23, 1996 unless, by September 9, 1996, adverse or
critical comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective September 23, 1996.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 7, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2), 42 U.S.C.
7607(b)(2).
Note: Incorporation by reference of the Implementation Plan for
the State of Washington was approved by the Director of the Office
of Federal Register on July 1, 1982.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Reporting and
recordkeeping requirements.
[[Page 41335]]
Dated: July 22, 1996.
Randall F. Smith,
Acting Regional Administrator.
PART 52--[AMENDED]
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(63) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(63) On September 30, 1994, the Director of WDOE submitted to the
Regional Administrator of EPA a revision to the carbon monoxide State
Implementation Plan for, among other things, the 1990 and 1995 Emission
Inventories for Area, Nonhighway Mobile, and On-Road Mobile Sources.
(i) Incorporation by reference.
(A) September 30, 1994, letter from WDOE to EPA submitting emission
inventories for the Puget Sound CO nonattainment area (adopted on
September 30, 1994); NonHighway Mobile Sources Emission Inventory for
Carbon Monoxide and Precursors of Ozone for King, Pierce and Snohomish
Counties Base Year 1990, dated December 1993; Stationary Area Sources
Emission Inventory for Carbon Monoxide and Precursors of Ozone for
King, Pierce and Snohomish Counties Base Year 1990, dated December
1993; Stationary Area Sources Emission Inventory for Carbon Monoxide
and Precursors of Ozone for King, Pierce and Snohomish Counties
Projection Year 1995, dated September 1994; Supplement to the SIP,
``Puget Sound Carbon Monoxide Nonattainment Area,'' Replacement Pages,
dated September 1994; Non-Road Mobile Sources Emission Inventory for
Carbon Monoxide and Precursors of Ozone for King, Pierce and Snohomish
Counties, Base Year 1990, dated September 1994; Non-Highway Mobile
Sources Projections for 1995 Emission Inventory for Carbon Monoxide and
Precursors of Ozone for King, Pierce and Snohomish Counties, dated
September 1994; Seattle-Tacoma Urban Carbon Monoxide Nonattainment Area
1990 Base Year On Road Mobile Source Emissions Inventory, dated August
1994; and Seattle-Tacoma Urban Carbon Monoxide Nonattainment Area 1995
Projected Year On Road Mobile Source Emissions Inventory, dated August
1994.
[FR Doc. 96-20139 Filed 8-7-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20138 Federal Service Impasses Panel General; Procedures of the Panel; Impasses Arising Pursuant to Agency Determinations Not To Establish or To Terminate Flexible or Compressed Work Schedules; Miscellaneous Requirements
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41293-41297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20138]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41293]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2470, 2471, 2472, and 2473
Federal Service Impasses Panel-- General; Procedures of the
Panel; Impasses Arising Pursuant to Agency Determinations Not To
Establish or To Terminate Flexible or Compressed Work Schedules;
Miscellaneous Requirements
AGENCY: Federal Service Impasses Panel, FLRA.
ACTION: Final rules.
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SUMMARY: The Federal Service Impasses Panel is amending its
regulations, primarily to take advantage of existing technology and to
make them more easily understood by agencies, labor organizations, and
individuals. The final revisions will allow parties to file requests
for Panel assistance, and other documents, by facsimile transmission
and will generally reorganize and modify those portions of the rules
pertaining to filing and service. A final new section will establish
procedures by which a party to a Panel proceeding may seek to obtain a
subpena. These final revisions will make the regulations clearer and
more user-friendly and will provide quicker access to the Panel's
procedures.
EFFECTIVE DATE: August 18, 1996.
FOR FURTHER INFORMATION CONTACT: Linda A. Lafferty, Executive Director,
Federal Service Impasses Panel, 607 14th Street, NW., Suite 220,
Washington, DC. 20424-0001. Telephone (202) 482-6670.
SUPPLEMENTARY INFORMATION:
Notice and Opportunity to Comment
The Federal Service Impasses Panel proposed revisions to its
regulations to take advantage of existing technology and to make them
more easily understood by agencies, labor organizations, and
individuals. The proposed revisions primarily were for the purpose of
permitting parties to file requests for Panel assistance, and other
documents, by facsimile transmission (Parts 2471 and 2472), and to
establish procedures by which a party to a Panel proceeding may seek to
obtain a subpena (Part 2473). The proposed rules were published in the
Federal Register for notice and comment on June 6, 1996. Formal written
comments were submitted by one agency. The comments have been
considered, and two have prompted revisions to the proposed rules, one
pertaining to Part 2471, the other to Part 2472. These revisions are
noted in the sectional analysis.
Sectional Analysis
The following sectional analysis reflects three revisions to the
proposed changes. The changes involve Part 2471--Procedures of the
Panel (Sec. 2471.6(a)(2)(ii)), Part 2472--Impasses Arising Pursuant to
Agency Determinations Not to Establish or to Terminate Flexible or
Compressed Work Schedules (Sec. 2472.3), and Part 2473--Miscellaneous
Requirements (Sec. 2473.1(f)). For Part 2470--General, and all other
sections of Parts 2471, 2472, and 2473, no sectional analysis is
provided because the final rules are the same as the proposed rules.
Part 2471
Section 2471.6(a)(2)(ii)
Paragraph (a)(2)(ii) lists the most common procedures used by the
Panel, and ends with the sentence: ``Following procedures used by the
Panel, it may issue a report to the parties containing recommendations
for settlement.'' The commenter noted that the sentence was unclear
because it implied that there may be times when the Panel only
recommends methods for settlements instead of issuing a final and
binding decision. If this were the case, because most parties come to
the Panel for a binding decision, the commenter suggested that the
factors considered by the Panel in deciding whether to issue a final
and binding decision or recommendations for settlement should be
spelled out in the regulation. Agreeing that the proposed regulation
may be interpreted to imply that there are times when the Panel's final
action is the issuance of a recommendation for settlement, the final
regulation has been revised to clarify that such recommendations for
settlement, when they occur, are only issued by the Panel prior to
taking final action to resolve the impasse.
Part 2472
Section 2472.3
This section, among other things, updates the Panel's address and
phone number to reflect its current office location. The commenter
recommended that the Panel's facsimile number also be provided. The
final regulation has been revised to include the Panel's facsimile
number.
Part 2473
Section 2473.1(f)
Section 2473.1(f) generally establishes a procedure for the
enforcement of subpenas issued under this part. It has been revised to
be clearer and more consistent with the regulations of the FLRA
pertaining to the same topic (5 CFR 2429.7). It now specifies that,
upon the failure of any person to comply with an issued subpena, the
party on whose behalf the subpena was issued may request the Solicitor
of the FLRA to institute enforcement proceedings in the appropriate
district court, unless to do so would be inconsistent with the law and
policies of the Federal Service Labor-Management Relations Statute.
List of Subjects
5 CFR Part 2470
Government employees, Labor-management relations.
5 CFR Parts 2471, 2472, and 2473
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Service
Impasses Panel amends 5 CFR Ch. XIV, Parts 2470, 2471, and 2472, and
add 5 CFR Ch. XIV, Part 2473, as follows:
PART 2470--GENERAL
1. The authority citation for Part 2470 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
2. In Sec. 2470.1, a new last sentence is added to read as follows:
[[Page 41294]]
Sec. 2470.1 Purpose.
* * * It is the policy of the Panel to encourage labor and
management to resolve disputes on terms that are mutually agreeable at
any stage of the Panel's procedures.
PART 2471--PROCEDURES OF THE PANEL
3. The authority citation for part 2471 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
4. Section 2471.2 is revised to read as follows:
Sec. 2471.2 Request form.
A form is available for use by the parties in filing a request for
consideration of an impasse or approval of a binding arbitration
procedure. Copies are available from the Office of the Executive
Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite
220, Washington, DC. 20424-0001. Telephone (202) 482-6670. Use of the
form is not required provided that the request includes all of the
information set forth in Sec. 2471.3.
5. Section 2471.3 is amended by revising paragraphs (a)(1), (b)(1),
and (b)(4) to read as follows:
Sec. 2471.3 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(b) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(4) Statement as to whether any of the proposals to be submitted to
the arbitrator contain questions concerning the duty to bargain and a
statement of each party's position concerning such questions; and
* * * * *
6. Section 2471.4 is revised to read as follows:
Sec. 2471.4 Where to file.
Requests to the Panel provided for in this part, and inquiries or
correspondence on the status of impasses or other related matters,
should be addressed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
7. Section 2471.5 is amended by revising the section heading and
paragraphs (a), (b), (d), and (e) to read as follows:
Sec. 2471.5 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse or a request for approval
of a binding arbitration procedure shall file an original and one copy
with the Panel. A clean copy may be submitted for the original.
Requests may be submitted in person or by registered mail, certified
mail, regular mail, or private delivery service. Requests may also be
accepted by the Panel if transmitted to the facsimile machine of its
office. A party submitting a request by facsimile shall also file an
original for the Panel's records, but failure to do so shall not affect
the validity of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, upon parties not so represented, and upon
any mediation service which may have been utilized. Service upon such
counsel or representative shall constitute service upon the party, but
a copy also shall be transmitted to the party. Service of a request may
be made in person or by registered mail, certified mail, regular mail,
or private delivery service. With the permission of the person
receiving the request, service may be made by facsimile transmission or
by any other agreed-upon method. When the Panel acts on a request from
the Federal Mediation and Conciliation Service or acts on a request
from the Executive Director under Sec. 2471.1(a), it will notify the
parties to the dispute, their counsel of record, if any, and any
mediation service which may have been utilized.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse or a request for approval of a
binding arbitration procedure shall file an original and one copy with
the Panel. A clean copy may be submitted for the original. Documents
may be submitted to the Panel in person or by registered mail,
certified mail, regular mail, or private delivery service. Documents
may also be accepted by the Panel if transmitted to the facsimile
machine of its office, but only with advance permission, which may be
obtained by telephone. A party submitting a document by facsimile shall
also file an original for the Panel's records, but failure to do so
shall not affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, or upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a document may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the document, service may be made by
facsimile transmission or by any other agreed-upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail or
is delivered in person or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
section, together with any enclosure filed therewith, shall be
typewritten on 8\1/2\ x 11 inch plain white paper, shall have margins
no less than 1 inch on each side, shall be in typeface no smaller than
10 characters per inch, and shall be numbered consecutively.
Nonconforming papers may, at the Panel's discretion, be rejected.
8. Section 2471.6 is amended by revising the section heading and
paragraphs (a)(2) and (b) to read as follows:
Sec. 2471.6 Investigation of request; Panel procedures; approval of
binding arbitration.
(a) * * *
(1) * * *
(2) Assert jurisdiction and
(i) Recommend to the parties procedures for the resolution of the
impasse; and/or
(ii) Assist the parties in resolving the impasse through whatever
methods and procedures the Panel considers appropriate. The procedures
utilized by the Panel may include, but are not limited to: informal
conferences with a Panel designee; factfinding (by a Panel designee or
a private factfinder); written submissions; show cause orders; oral
presentations to the Panel; and arbitration or mediation-arbitration
(by a Panel designee or a private arbitrator). Following procedures
used by the
[[Page 41295]]
Panel, it may issue a report to the parties containing recommendations
for settlement prior to taking final action to resolve the impasse.
(b) Upon receipt of a request for approval of a binding arbitration
procedure, the Panel or its designee will promptly conduct an
investigation, consulting when necessary with the parties and with any
mediation service utilized. After due consideration, the Panel shall
promptly approve or disapprove the request, normally within five (5)
workdays.
9. Sec. 2471.7, the section heading and the introductory text are
revised; (paragraphs (a) and (b), introductory text, are removed, and
paragraphs (b) (1) through (6) are redesignated as (a) through (f)
respectively. The revisions read as follows:
Sec. 2471.7 Preliminary factfinding procedures.
When the Panel determines that a factfinding hearing is necessary
under Sec. 2471.6, and it appoints one or more of its designees to
conduct such hearing, it will issue and serve upon each of the parties
a notice of hearing and a notice of prehearing conference, if any.
* * * * *
10. The section heading of Sec. 2471.8 is revised to read as
follows:
Sec. 2471.8 Conduct of factfinding and other hearings; prehearing
conferences.
* * * * *
11. Section 2471.9 is amended by revising paragraph (a) to read as
follows:
Sec. 2471.9 Report and recommendations.
(a) When a report is issued after a factfinding hearing is
conducted pursuant to Sec. 2471.7 and 2471.8, it normally shall be in
writing and, when authorized by the Panel, shall contain
recommendations.
* * * * *
PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT
TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES
12. The authority citation for part 2472 is revised to read as
follows:
Authority: 5 U.S.C. 6131.
13. In Sec. 2472.2, paragraphs (d) through (n) are redesignated as
paragraphs (e) through (o), new paragraph (d) is added, and newly
redesignated paragraph (j) is revised to read as follows:
Sec. 2472.2 Definitions.
* * * * *
(d) The term duly authorized delegatee means an official who has
been delegated the authority to act for the head of the agency in the
matter concerned.
* * * * *
(j) The term hearing means a factfinding hearing or any other
hearing procedures deemed necessary to accomplish the purpose of 5
U.S.C. 6131.
* * * * *
14. Section 2472.3 is revised to read as follows:
Sec. 2472.3 Request for Panel consideration.
Either party, or the parties jointly, may request the Panel to
resolve an impasse resulting from an agency determination not to
establish or to terminate a flexible or compressed work schedule by
filing a request as hereinafter provided. A form is available for use
by the parties in filing a request with the Panel. Copies are available
from the Office of the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674. Use of the form is
not required provided that the request includes all of the information
set forth in Sec. 2472.4.
15. Section 2472.4 is amended by revising paragraphs (a)(1) and
(a)(6) to read as follows:
Sec. 2472.4 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(6) A copy of the agency's written determination and the finding on
which the determination is based, including, in a case where the
finding is made by a duly authorized delegatee, evidence of a specific
delegation of authority to make such a finding; and
* * * * *
16. Section 2472.5 is revised to read as follows:
Sec. 2472.5 Where to file.
Requests to the Panel provided for in these rules, and inquiries or
correspondence on the status of impasses or other related matters,
should be directed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
Secs. 2472.7 through 2472.12 [Redesignated as Secs. 2472.6 through
2472.11]
17. Section 2472.6 is removed and Sec. 2472.7 through 2472.12 are
redesignated as Sec. 2472.6 through 2472.11, respectively.
18. Newly designated Sec. 2472.6 is amended by revising the section
heading and paragraphs (a), (b), (d), (e), and (f) to read as follows:
Sec. 2472.6 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse filed pursuant to
Sec. 2472.3 of these rules shall file an original and one copy with the
Panel. A clean copy may be submitted for the original. Requests may be
submitted in person or by registered mail, certified mail, regular
mail, or private delivery service. Requests will also be accepted by
the Panel if transmitted to the facsimile machine of its office. A
party submitting a request by facsimile shall also file an original for
the Panel's records, but failure to do so shall not affect the validity
of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, and upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a request may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the request, service may be made by
facsimile transmission or by any other agreed-upon method.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse filed pursuant to Sec. 2472.3 shall
file an original and one copy with the Panel. A clean copy may be
submitted for the original. Documents may be submitted to the Panel in
person or by registered mail, certified mail, regular mail, or private
delivery service. Documents may also be accepted by the Panel if
transmitted to the facsimile machine of its office, but only with
advance permission, which may be obtained by telephone. A party
submitting a document by facsimile shall also file an original for the
Panel's records, but failure to do so shall not affect the validity of
the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or
[[Page 41296]]
other designated representative(s) of parties, or upon parties not so
represented. Service upon such counsel or representative shall
constitute service upon the party, but a copy also shall be transmitted
to the party. Service of a document may be made in person or by
registered mail, certified mail, regular mail, or private delivery
service. With the permission of the person receiving the document,
service may be made by facsimile transmission or by any other agreed-
upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail, is
delivered in person, or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
part, together with any enclosure filed therewith, shall be typewritten
on 8\1/2\ x 11 inch plain white paper, shall have margins no less than
1 inch on each side, shall be in typeface no smaller than 10 characters
per inch, and shall be numbered consecutively. Nonconforming papers
may, at the Panel's discretion, be rejected.
(f) An impasse arising pursuant to section 6131(c) (2) or (3) of
the Act will not be considered to be filed, and no Panel action will be
taken, until the party initiating the request has complied with
Sec. 2472.4, 2472.5, and 2472.6 of these regulations.
19. Newly designated Sec. 2472.7 is amended by revising paragraph
(b) to read as follows:
Sec. 2472.7 Investigation of request; Panel assistance.
* * * * *
(b) The procedures utilized by the Panel shall afford the parties
an opportunity to present their positions, including supporting
evidence and arguments orally and/or in writing. They include, but are
not limited to: informal conferences with a Panel designee; factfinding
(by a Panel designee or a private factfinder); written submissions;
show cause orders; and oral presentations to the Panel.
20. Newly designated Sec. 2472.8 is revised to read as follows:
Sec. 2472.8 Preliminary hearing procedures.
When the Panel determines that a hearing shall be held, and it
appoints one or more of its designees to conduct such a hearing, it
will issue and serve upon each of the parties a notice of hearing and a
notice of prehearing conference, if any. The notice will state:
(a) The names of the parties to the dispute;
(b) The date, time, place, type, and purpose of the hearing;
(c) The date, time, place, and purpose of the prehearing
conference, if any;
(d) The name of the designated representative(s) appointed by the
Panel;
(e) The issue(s) to be resolved; and
(f) The method, if any, by which the hearing shall be transcribed.
21. Newly designated Sec. 2472.10 is revised to read as follows:
Sec. 2472.10 Reports.
When a report is issued after a hearing conducted pursuant to
Sec. 2472.8 and 2472.9, it normally shall be in writing and shall be
submitted to the Panel, with a copy to each party, within a period
normally not to exceed 30 calendar days after the close of the hearing
and receipt of briefs, if any.
22. In Sec. 2472.11, the introductory text of paragraph (a) and
paragraph (b) are amended to read as follows:
Sec. 2472.11 Final action by the Panel.
(a) After due consideration of the parties' positions, evidence,
and arguments, including any report submitted in accordance with
Sec. 2472.10, the Panel shall take final action in favor of the
agency's determination if:
* * * * *
(b) If the finding on which an agency determination under 5 U.S.C.
6131(c)(2) or (c)(3) is based is not supported by evidence that the
schedule is likely to cause or has caused an adverse agency impact, the
Panel shall take whatever final action is appropriate.
* * * * *
23. Part 2473 is added to read as follows:
Sec. 2473.1 Subpenas.
(a) Any member of the Panel, the Executive Director, or other
person designated by the Panel, may issue subpenas requiring the
attendance and testimony of witnesses and the production of documentary
or other evidence. However, no subpena shall be issued under this
section which requires the disclosure of intramanagement guidance,
advice, counsel, or training within an agency or between an agency and
the Office of Personnel Management.
(b) Where the parties are in agreement that the appearance of
witnesses or the production of documents is necessary, and such
witnesses agree to appear, no such subpena need be sought.
(c) A request for a subpena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Executive Director,
not less than fifteen (15) days prior to the opening of a hearing, or
with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents
sought, and state the reasons therefor. The Panel, Executive Director,
or any other person designated by the Panel, as appropriate, shall
grant the request upon the determination that the testimony or
documents appear to be necessary to the matters under consideration and
the request describes with sufficient particularity the documents
sought. Service of an approved subpena is the responsibility of the
party on whose behalf the subpena was issued. The subpena shall show on
its face the name and address of the party on whose behalf the subpena
was issued.
(e) Any person served with a subpena who does not intend to comply
shall within five (5) days after the date of service of the subpena
upon such person, petition in writing to revoke the subpena. A copy of
any petition to revoke a subpena shall be served on the party on whose
behalf the subpena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Executive Director. A petition to revoke a subpena filed during the
hearing, and a written statement of service shall be filed with the
appropriate presiding official(s). The Executive Director, or the
appropriate presiding official(s) will, as a matter of course, cause a
copy of the petition to revoke to be served on the party on whose
behalf the subpena was issued, but shall not be deemed to assume
responsibility for such service. The Panel, Executive Director, or any
other person designated by the Panel, as appropriate, shall revoke the
subpena if the evidence the production of which is required does not
relate to any matter under consideration in the proceedings, or the
subpena does not describe with sufficient particularity the evidence
the production of which is required, or if for any other reason
sufficient in law the subpena is invalid. The Panel, Executive
Director, or any other person designated by the Panel, as appropriate,
shall make a simple statement of procedural or other ground for the
ruling on the
[[Page 41297]]
petition to revoke. The petition to revoke, any answer thereto, and any
ruling thereon shall not become part of the official record except upon
the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpena issued,
and upon the request of the party on whose behalf the subpena was
issued, the Solicitor of the FLRA shall, on behalf of such party,
institute proceedings in the appropriate district court for the
enforcement thereof, unless to do so would be inconsistent with law and
the policies of the Federal Service Labor-Management Relations Statute.
The Solicitor of the FLRA shall not be deemed thereby to have assumed
responsibility for the effective prosecution of the same before the
court thereafter.
(g) All papers submitted to the Executive Director under this
section shall be filed in duplicate, along with a statement of service
showing that a copy has been served on the other party to the dispute.
(h)(1) Witnesses (whether appearing voluntarily or under a subpena)
shall be paid the fee and mileage allowances which are paid subpenaed
witnesses in the courts of the United States: Provided, that any
witness who is employed by the Federal Government shall not be entitled
to receive witness fees in addition to compensation received in
conjunction with official time granted for such participation,
including necessary travel time, as occurs during the employee's
regular work hours and when the employee would otherwise be in a work
or paid leave status.
(2) Witness fees and mileage allowances shall be paid by the party
at whose instance the witnesses appear except when the witness receives
compensation in conjunction with official time as described in
paragraph (h)(1) of this section.
(5 U.S.C. 7119, 7134).
Dated: August 2, 1996.
Linda A. Lafferty,
Executive Director, Federal Service Impasses Panel.
[FR Doc. 96-20138 Filed 8-7-96; 8:45 am]
BILLING CODE 6727-01-P
Complete official Federal Register PDF
FR Doc. 96-20121 Living in the Same Household and the Lump-Sum Death Payment
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41329-41330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20121]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Part 404
[Regulations No. 4]
RIN 0960-AE20
Living in the Same Household and the Lump-Sum Death Payment
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are revising our rules on ``living in the same household''
(LISH) and the lump-sum death payment (LSDP) to bring them into accord
with legislation that restricted the payment of the LSDP. This revision
includes the removal from our regulations of several outdated sections
and paragraphs. We also are incorporating into our rules the policy
established previously in a Social Security Ruling (SSR) that
interpreted the definition of LISH to allow for extended separations
that are based solely on medical reasons.
EFFECTIVE DATE: These rules are effective September 9, 1996.
FOR FURTHER INFORMATION CONTACT: Daniel T. Bridgewater, Legal
Assistant, Division of Regulations and Rulings, Social Security
Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)
965-3298 for information about these rules. For information on
eligibility or claiming benefits, call our national toll-free number,
1-800-772-1213.
SUPPLEMENTARY INFORMATION:
Background
Prior to passage of the Omnibus Budget Reconciliation Act of 1981,
Public Law 97-35, the widow(er) of a deceased worker could qualify for
the LSDP if he/she had been LISH with the deceased at the time of death
or, under certain conditions, if he/she paid the burial expenses of the
deceased. Thus, a widow(er) who was not LISH with the deceased could
still receive the LSDP if he/she paid the deceased's burial expenses.
Public Law 97-35 redefined who could qualify for the LSDP.
Effective September 1, 1981, the LSDP no longer was payable to any
individuals, other than those described in Public Law 97-35, or to
funeral homes.
Under Public Law 97-35, the LSDP is payable to 3 categories of
individuals: (1) the surviving spouse of the deceased who was LISH with
the deceased at the time of death; (2) a person who is entitled to (or
was eligible for) benefits on the deceased's earnings record for the
month of death as a widow(er) or as the mother or father of a child of
the deceased; or (3) a child of the deceased who is entitled to (or was
eligible for) benefits on the deceased's earnings record for the month
of death.
For those widow(ers) who were not LISH, a possible anomaly was
created by the LSDP limitations in Public Law 97-35 and existing
regulations. An example of such an anomaly is the following situation.
A worker had been living in a nursing home for 3 years prior to his
death because his wife was unable to provide the daily medical care he
needed. Until his death, the worker was visited frequently by his wife,
who lived in the house to which the worker would have returned if he
were able. The widow was receiving a Retirement Insurance Benefit (RIB)
which exceeded her late husband's Primary Insurance Amount (PIA). Based
on Public Law 97-35 and a strict interpretation of the regulatory
definition of LISH, this widow would not qualify for the LSDP because
she was neither LISH nor entitled to benefits based on her late
husband's earnings record. (However, if the widow's RIB did not exceed
her late husband's PIA, she would qualify for the LSDP.)
Present Policy
Operating instructions, as well as most of the pertinent regulatory
sections, have been changed to reflect the changes in the law
established by Public Law 97-35. To qualify as a LISH spouse, the
widow(er) and the deceased must have ``customarily lived together as
husband and wife in the same residence'' (Sec. 404.347). While
temporary separations do not necessarily preclude the Social Security
Administration (SSA) from considering a couple to be LISH, extended
separations (including most that last 6 months or more) generally
indicate the couple was not LISH.
However, in order to avoid the possible anomaly discussed above,
SSR 82-50 was issued to provide for an exception when an extended
separation is based solely on medical reasons. SSR 82-50 states:
If a husband and wife are (or were) separated and continue(d) to
be separated, solely for medical reasons, SSA may consider them to
be living in the same household even if the separation is (or was)
likely to be permanent and there is (or was) little or no
expectation of the parties again physically residing together. As
long as the spouse who is now applying for the LSDP or spouse's
benefits based on a deemed marriage has continued to demonstrate
strong personal and/or financial concern for the worker, SSA will
assume they would have lived together (absent evidence to the
contrary) had the medical reasons not necessitated their separation,
and will pay the LSDP or spouse's benefits to the spouse.
New Policy
Since there are still some sections of our regulations that refer
to the law on entitlement to the LSDP which predated Public Law 97-35
and since these sections no longer are applicable, we are updating or
removing them. We are eliminating obsolete Secs. 404.393, 404.394,
404.395, and 404.765 and paragraphs 404.2(a)(2) through (a)(6),
404.3(a), 404.612(e), and 404.615(b).
Also, we are incorporating the LISH policy interpretation found in
SSR 82-50 into our regulations. The new regulatory definition will
clearly allow for extended separations due to the confinement of either
spouse in a nursing home, hospital, or other medical institution. As
long as evidence indicates the husband and wife were initially
separated, and continue to be separated, solely for medical reasons and
would otherwise have resided together, they will be considered to be
LISH. Because of this action, we are rescinding SSR 82-50 upon the
effective
[[Page 41330]]
date of these rules. This rescission appears in the ``Notices'' section
of today's Federal Register.
On December 6, 1995, we published these final rules as proposed
rules in the Federal Register at 60 FR 62354 with a 60-day comment
period. We received comments from only one source, which represents the
largest professional organization of funeral directors in the United
States. The commenter fully supported the proposed rules. Therefore, we
are publishing the final rules essentially unchanged from the proposed
rules.
Regulatory Procedures
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities since these
rules affect only individuals. Therefore, a regulatory flexibility
analysis as provided in Public Law 96-354, the Regulatory Flexibility
Act, is not required.
Paperwork Reduction Act
These final rules impose no additional reporting or recordkeeping
requirements subject to the Office of Management and Budget clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security--Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.004 Social Security--Survivors Insurance)
List of Subjects in 20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
Dated: July 25, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, subparts A, D, G, and H of
part 404 of chapter III of title 20 of the Code of Federal Regulations
are amended as follows:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart A--[Amended]
1. The authority citation for subpart A of part 404 continues to
read as follows:
Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the
Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)).
Sec. 404.2 [Amended]
2. Section 404.2 is amended by removing paragraphs (a)(2) through
(a)(6) and redesignating paragraph (a)(7) as paragraph (a)(2).
Sec. 404.3 [Amended]
3. Section 404.3 is amended by removing paragraph (a) and
redesignating paragraphs (b) and (c) as paragraphs (a) and (b),
respectively.
Subpart D--[Amended]
4. The authority citation for subpart D of part 404 continues to
read as follows:
Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,
403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
5. Section 404.347 is revised to read as follows:
Sec. 404.347 ``Living in the same household'' defined.
Living in the same household means that you and the insured
customarily lived together as husband and wife in the same residence.
You may be considered to be living in the same household although one
of you is temporarily absent from the residence. An absence will be
considered temporary if:
(a) It was due to service in the U.S. Armed Forces;
(b) It was 6 months or less and neither you nor the insured were
outside of the United States during this time and the absence was due
to business, employment, or confinement in a hospital, nursing home,
other medical institution, or a penal institution;
(c) It was for an extended separation, regardless of the duration,
due to the confinement of either you or the insured in a hospital,
nursing home, or other medical institution, if the evidence indicates
that you were separated solely for medical reasons and you otherwise
would have resided together; or
(d) It was based on other circumstances, and it is shown that you
and the insured reasonably could have expected to live together in the
near future.
6. Section 404.390 is amended by revising the second sentence to
read as follows:
Sec. 404.390 General.
* * * If the insured is not survived by a widow(er) who meets this
requirement, all or part of the $255 payment may be made to someone
else as described in Sec. 404.392.
7. Section 404.392 is amended by revising the section heading and
the introductory text of paragraph (a) to read as follows:
Sec. 404.392 Who is entitled to the lump-sum death payment when there
is no widow(er) who was living in the same household.
(a) General. If the insured individual is not survived by a
widow(er) who meets the requirements of Sec. 404.391, the lump-sum
death payment shall be paid as follows:
* * * * *
Sec. 404.393 [Removed]
8. Section 404.393 is removed.
Sec. 404.394 [Removed]
9. Section 404.394 is removed.
Sec. 404.395 [Removed]
10. Section 404.395 is removed.
Subpart G--[Amended]
11. The authority citation for subpart G of part 404 continues to
read as follows:
Authority: Secs. 202(i), (j), (o), (p), and (r), 205(a),
216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act
(42 U.S.C. 402(i), (j), (o), (p), and (r), 405(a), 416(i)(2),
423(b), 428(a), and 902(a)(5)).
Sec. 404.612 [Amended]
12. Section 404.612 is amended by removing paragraph (e) and
redesignating paragraphs (f), (g), and (h) as paragraphs (e), (f), and
(g), respectively.
Sec. 404.615 [Amended]
13. Section 404.615 is amended by removing paragraph (b) and
redesignating paragraphs (c) and (d) as paragraphs (b) and (c),
respectively.
Subpart H--[Amended]
14. The authority citation for subpart H of part 404 continues to
read as follows:
Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act
(42 U.S.C. 405(a) and 902(a)(5)).
Sec. 404.765 [Removed]
15. Section 404.765 is removed.
[FR Doc. 96-20121 Filed 8-7-96; 8:45 am]
BILLING CODE 4190-22-P
Complete official Federal Register PDF
FR Doc. 96-20020 Facilities Transferring Oil or Hazardous Materials in Bulk
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41452-41462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20020]
[[Page 41451]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
33 CFR Parts 154 and 156
Facilities Transferring Oil or Hazardous Materials in Bulk; Final Rule
Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41452]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 154 and 156
[CGD 93-056]
RIN 2115-AE59
Facilities Transferring Oil or Hazardous Materials in Bulk
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is revising the regulations covering
facilities transferring oil or hazardous materials in bulk. These
revisions are intended to update and clarify the current regulations.
The revisions should result in regulations that are more effective in
providing a high level of safety and environmental protection.
DATES: This rule is effective on February 5, 1997. The Director of the
Federal Register approves as of February 5, 1997 the incorporation by
reference of certain publications listed in the regulations.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC
20593-0001, between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander, John W. Farthing, Office of Compliance, (202)
267-0505.
SUPPLEMENTARY INFORMATION:
Regulatory History
On February 23, 1995, the Coast Guard published a notice of
proposed rulemaking (NPRM) entitled ``Facilities Transferring Oil or
Hazardous Materials in Bulk'' in the Federal Register (60 FR 10044).
The Coast Guard received 28 letters commenting on the proposal. One
public meeting was requested; however, due to budgetary constraints and
limitations imposed by organizational changes, none was held.
Background and Purpose
Until 1990, the regulations covering the transfer of products
between vessels and facilities capable of transferring oil or hazardous
materials in bulk to or from a vessel with a capacity of 250 barrels or
more were contained in two different parts of the Code of Federal
Regulations (CFR). Facilities transferring oil in bulk were covered by
33 CFR part 154, while those transferring hazardous materials in bulk
were covered by 33 CFR part 126 (Handling of Explosives or Other
Dangerous Cargoes Within or Contiguous to Waterfront Facilities). The
Coast Guard consolidated and revised the provisions in part 154
(Facilities Transferring Oil or Hazardous Materials in Bulk) in a final
rule published on September 4, 1990 (55 FR 6252). Since that time,
numerous comments have been received from industry and Coast Guard
personnel about problems arising from implementation of part 154. The
NPRM addressed proposed changes to alleviate these problems.
These regulations have also been reviewed under the Coastal Zone
Management Act of 1972 (CZMA), (16 U.S.C. 1451 et seq.), as amended,
and its implementing regulations, 15 CFR Parts 921, 923, 925, 927, 928,
932 and 933 as promulgated by the National Oceanic and Atmospheric
Administration (NOAA). Among other things, the CZMA requires that an
applicant for a Federal license or permit to conduct any activity
``affecting any land or water use or natural resource of the coastal
zone'' must provide to the licensing or permitting agency a
certification that the proposed activity will comply with the approved
Coastal Zone Management Program of any affected State (16 U.S.C.
1456(c)(3)). The CZMA Federal consistency requirements further provide
that no Federal license or permit may be granted until the affected
State(s) have concurred with the applicant's certification, such
concurrence is presumed, or the Secretary of Commerce has found that
the activity either is consistent with the CZMA or in the interest of
national security (16 U.S.C. 1456(c)(3)(A)).
However, 16 U.S.C. 1456(f) exempts from Federal consistency
determinations any requirement imposed by or established pursuant to
the Federal Water Pollution Control Act (FWPCA), as amended (33 U.S.C.
1251 et seq.).
Similarly, 16 U.S.C. 1456(e)(1) provides that the CZMA does not
diminish Federal or state jurisdiction over the planning, development,
or control of water resources, submerged lands, or navigable waters,
among other things.
The regulations established in parts 154 and 156 of this rulemaking
could appear to implicate the CZMA and its Federal consistency
requirement because they require Coast Guard approval for bulk
transfers of oil or hazardous materials between facility's and vessels,
for approval of a facility's Operations Manual, and for any alternative
procedure or equipment used to comply with these regulations. These
activities appear to be the type that may affect land or water use or a
natural resource of a coastal zone.
These requirements are intended to protect the coastal environment.
The Coast Guard does not anticipate any conflict between these
regulations and a State's coastal zone management plan. However,
because these regulations are issued under the authority of the FWPCA,
as amended by the Water Quality Act of 1987 (Pub. L. 100-4, 101 Stat.
75) and the Oil Pollution Act of 1990 (Pub. L. 101-380, 104 Stat. 507
et seq.), the Coast Guard finds they are exempt from CZMA consistency
requirements under 16 U.S.C. 1456(f).
The FWPCA requires the issuance of regulations to prevent the
discharge of oil or hazardous materials from vessels and facilities, to
require installation and inspection of discharge removal equipment on
vessels, and to require monitoring, reporting, and recordkeeping
regarding discharges of oil or hazardous materials by facilities (33
U.S.C. 1321(j)(1) (C) and (D), (j)(6) and (m)(2)).
The Coast Guard notes that the existing part 154 and 156
regulations also cite the Ports and Waterways Safety Act (33 U.S.C.
1231) regarding ports and waterways regulations and 46 U.S.C. 3715
regarding lightering; however, those provisions do not address the core
purpose of this rulemaking, which is to regulate bulk oil and hazardous
materials transfers between facilities and vessels. In contrast, the
regulations being implemented today are promulgated under the mandate
of the FWPCA and are consequently exempt from the CZMA's Federal
consistency requirements (16 U.S.C. 1456(f)).
Discussion of Comments and Changes
The Coast Guard received 28 letters commenting on the NPRM entitled
``Facilities Transferring Oil or Hazardous Materials in Bulk''
published in the Federal Register on February 23, 1995 (60 FR 10044),
and has considered the comments in developing this final rule.
Weights and Measures
Coast Guard regulatory practice is that primary weights and
measures be specified in metric units. Therefore, this rule specifies
all weights and measures in metric units followed by English
equivalents. The conversion of weights and measures ensure that
equipment or procedures complying with the English values in the NPRM
will also comply with the metric values in this rule.
[[Page 41453]]
Therefore, the conversions should have no impact on compliance with
this rule.
Applicability
Four comments addressed the proposed changes to Sec. 154.100. Two
of these comments requested that the wording of this section be
clarified to state that these regulations do not apply to offshore
facilities regulated under the Department of Interior's (DOI's)
Minerals Management Service (MMS) regulations in 33 CFR 250. Under
Executive Order 12777, jurisdictional responsibility for offshore
facilities was delegated to MMS. On February 3, 1994, under the
Memorandum of Understanding (MOU) between DOI, the Environmental
Protection Agency (EPA) and the Department of Transportation (DOT),
spill prevention and control, contingency planning, and equipment
inspection activities associated with offshore facilities were assigned
to the DOI. Section 154.100 has been revised to clarify that this part
does not apply to offshore facilities operating under the jurisdiction
of the Secretary of the DOI.
A new paragraph is added to the applicability section which
specifies all of the requirements that are applicable to mobile
transfer facilities.
Definitions
The definitions of ``caretaker status'', ``marine transfer area'',
and ``onshore facility'' have been added, and the definitions of
``facility'', ``offshore facility'' and ``transfer'' have been revised.
The Coast Guard is adding a definition of ``caretaker status'' to
these regulations. ``Caretaker status'' is used to identify a facility
whose marine transfer equipment has been taken out of service. Two
comments discussed the proposed definition of ``caretaker status'' in
the NPRM. One of these comments stated that existing state requirements
for decommissioning criteria obviate the need for a new Federal
definition. One of these comments stated that the Coast Guard should
further justify the need to define the term ``caretaker status''. The
Coast Guard does not agree with these comments. The revised regulations
contain numerous references to facilities that are in a ``caretaker
status''. Without clear definition of this term, it would be difficult
for industry to comply with Coast Guard regulations. The proposed
definition has been clarified to state that it only applies to those
parts of a waterfront facility subject to Coast Guard jurisdiction.
The Coast Guard is also adding a definition for ``marine transfer
area'' to these regulations. This term is used several times in the
existing and revised regulations but has not been previously defined.
The new definition is similar to the one found in other Coast Guard
waterfront facility regulations and is intended to delineate those
areas of a waterfront facility subject to Coast Guard jurisdiction.
Two comments addressed the proposed definition of ``facility''. One
comment requested that a definition of ``onshore facility'' be added to
the regulations. The Coast Guard agrees with this comment and is adding
the definition of ``onshore facility'' as found in the Federal Water
Pollution Control Act (FWPCA) [33 U.S.C. Sec. 1321(a)(10)]. The
definition of ``facility'' has also been clarified to exclude offshore
facilities operating under the jurisdiction of the Secretary of the
DOI. Additionally, the definition of ``offshore facility'' has been
revised to conform with the definition in the authorizing legislation.
Eight comments addressed the proposed revision to the definition of
``transfer''. One comment supported the proposed definition as written.
Seven comments strongly objected to the proposed definition. The
majority of the dissenting comments stated that the proposed definition
would create a regulatory conflict with the requirements of 33 CFR
156.150 which specifies that a transfer may not take place until the
declaration of inspection and all necessary inspections have been
completed by the persons in charge. One comment also requested that the
definition be revised to indicate when a transfer is considered
complete. After review of industry comments, the Coast Guard is
revising the definition of ``transfer'' to state that a transfer begins
when the persons in charge meet to begin the process of completing the
declaration of inspection. This revised definition recognizes standard
industry practices and better focuses the intent of the regulations on
those actions that directly lead to the flow of products. The
definition of ``transfer'' is also being revised to state that a
transfer is considered complete when all the connections for the
transfer have been uncoupled and secured, and when the persons in
charge have completed the declaration of inspection to specify the date
and time the transfer was completed. The rule contains an amendment
that is consistent with the regulations in Sec. 156.150.
Alternatives
Three comments discussed the proposed changes to Sec. 154.107.
These comments generally objected to the extended time frame for review
of a request for alternative procedures, methods or equipment
standards, suggesting that industry could be subjected to hardship if a
facility operator had to wait 60 days for the Captain of the Port
(COTP) to complete the examination of a request for an alternative.
After further review, the Coast Guard is retaining the 30 day time
period for COTPs to review proposed alternatives.
Letter of Intent
One comment was received on the proposed changes to Sec. 154.110
citing that it would be more appropriate to change the requirement in
Sec. 154.1035 to include the requirement for the name of the facility
owner in the Facility Response Plan (FRP). The Coast Guard disagrees
with this comment. The Coast Guard recognizes that including this
information may be duplicative of the FRP requirements; however, FRP
requirements currently only apply to facilities transferring oil and
not to those facilities transferring hazardous materials. As stated in
the preamble to the NPRM, this additional information will be of great
assistance in determining and locating the responsible party during a
spill or other emergency.
Operations Manual: Contents
Seven comments discussed the proposed changes to Sec. 154.310. The
majority of the comments stated that the proposed facility map
requirement was redundant to the information required in the FRP. The
Coast Guard recognizes that this requirement may be duplicative for
some facilities; however, the FRP requirements currently only apply to
those facilities that transfer oil, not to those facilities
transferring hazardous materials. Several of these comments also
objected to the requirement for a single map of the facility, drawn to
scale, to be included in the Operations Manual. The majority of these
comments noted that, for large facilities, a single map of this type
would be impractical. The Coast Guard agrees with these comments and is
revising the proposed requirement to allow multiple maps, plans,
drawings, diagrams or aerial photographs that are considered acceptable
by the COTP in order to comply with this requirement.
Four comments addressed the proposal that Material Safety Data
Sheets (MSDS) be included in the Operations Manual rather than the
information currently required by paragraph 154.310(a)(5). The majority
of comments supported the use of the MSDS, but objected to the
requirements that they be included in the Operations
[[Page 41454]]
Manual. Several comments noted that as large facilities routinely
handle a high volume of products, the Operations Manual could increase
in size by more than a thousand pages. The Coast Guard agrees with
these comments. Noting that facilities are currently required to
maintain MSDSs under subpart F of this part, and under other Federal,
State or local regulations, the Coast Guard is retaining the current
product information requirements in Sec. 154.310(a)(5).
Eight comments discussed the proposal to add the names and
telephone numbers of state and local officials to the list of names and
addresses currently required under paragraph 154.310(a)(7). The
majority of the comments stated that the inclusion of this information
was redundant to the information required by the FRP. The Coast Guard
recognizes this information may be duplicative for some facilities;
however, the Coast Guard emphasizes the importance of this information
and the necessity that it be readily available to transfer personnel.
Several comments requested that the requirement be reworded to allow
the title and position of the appropriate Federal, State and/or local
officials' name to be listed, because of the frequency in personnel
changes. The Coast Guard agrees with these comments and has revised the
regulations to require that the title and/or position instead of the
name be included.
Two comments discussed the proposed requirement that the maximum
allowable working pressure (MAWP) be recorded in the Operations Manual.
Both comments supported the inclusion of this information; therefore,
the proposed language is retained. An editorial correction is also made
to paragraph 154.310(a)(15) to correct the reference.
Four comments addressed the proposed extension of the response
period from 14 to 45 days under paragraph 154.320(a)(1), which amends
the Operations Manual after examination by the COTP. All of these
comments supported the extension of the facility response time in order
to better identify any inadequacies found by the COTP. The proposed
language is retained. Also, an editorial correction is made to
paragraph 154.320(d) to correct the reference.
Operations Manual: Procedures for Examination
The Coast Guard is revising its procedures for reviewing and
approving Operations Manuals in paragraphs 154.300 and 154.325. Rather
than issue a Letter of Adequacy each time an Operations Manual is
reviewed and/or amended, COTPs will now examine the manual to verify it
meets the requirements of this chapter. Facility operators will now
submit two copies of their Operations Manual, or any changes, to the
COTP for review. If the manual, as submitted, meets the requirements of
this chapter, the COTP will return one copy to the facility operator
marked ``Examined by the Coast Guard''. This change will alleviate some
of the paperwork burden on COTPs and on the industry, and conform the
Operations Manual regulations in this chapter to other U.S. Coast Guard
waterfront facility regulations.
Hose Assemblies
Five comments discussed the proposed changes to Sec. 154.500. One
comment supported the proposed language as written. Another comment
stated that some arrangement must be made to ensure that vessels
pumping ashore to the receiving facility do not exceed the facility's
MAWP. The Coast Guard agrees with this comment, and an amendment that
conforms to Sec. 156.120 is being included to ensure that as part of
the process of completing the declaration of inspection, the persons in
charge shall ensure that the transfer pressure does not exceed the
facility's MAWP. Two comments objected to the proposed change, stating
that the current requirements have become industry standards and
changing them would be counterproductive to the intent of the proposed
rule. The Coast Guard does not agree with these comments. As stated in
the NPRM, it is more reasonable for the MAWP to be based on the actual
operational pressure of the transfer system, rather than a pre-
specified number. When the MAWP is based on the actual operational
pressure, industry can develop tests and inspection criteria based on
the needs of the system, avoiding unnecessary expense by testing to a
level far higher than that of their systems' operational pressure.
Closure Devices
Two comments agreed with the proposed changes to Sec. 154.520. One
of these comments requested that language be included stating that a
gasket or other suitable material be installed along with a closure
device. The Coast Guard agrees with this comment and has added language
similar to the requirement in Sec. 156.130 for closure devices.
Small Discharge Containment
Thirteen comments addressed the proposed changes to Sec. 154.530.
All of these comments objected to adding the proposed requirement that
fixed or portable containment be placed under each hose connection
during coupling, uncoupling, and transfer. The majority of the comments
noted that hoses used for transfer operations are normally comprised of
several lengths of hoses flanged together with permanent connections
and it would be infeasible to provide containment under every
connection as they are often located over water or in a vertical
alignment where it is impossible to place containment. Noting that
paragraph 156.120(p) requires the persons in charge to ensure that all
connections in the transfer system are leak free prior to transfer and
that paragraph 156.130 allows for permanently connected flanges, the
Coast Guard has clarified Sec. 154.530 to state that containment is
required under each hose connection that will be coupled or uncoupled
as part of the transfer operation during coupling, uncoupling and
transfer.
Discharge Removal
Ten comments discussed proposed changes to Sec. 154.540. All of
these comments objected to the proposed 1 hour time requirement for
removal of any discharge into the containment. These comments opposed
the new requirement as too restrictive and requested that the
flexibility of the existing language be retained. Noting the
requirement in paragraph 156.120(n) and that the discharge containment
should be periodically drained to provide the required capacity, the
Coast Guard is revising the proposed language to require that any
discharged product by removed from the containment within 1 hour of
completion of the transfer.
The NPRM proposed to add a paragraph to Sec. 154.545 that would
specify that equipment required to be retained under this section may
be used in the planning requirements of the facility response plan
required by subpart F. No comments were received on this recommendation
and the proposed language is retained.
Communications
Four comments discussed the proposed changes to Sec. 154.560. Two
comments agreed with the proposed changes. One comment noted that
labels tend to wear off over time or become unreadable and, as an
alternative, suggested that each facility should be allowed to maintain
documentation on
[[Page 41455]]
the premises certifying that the equipment in use is intrinsically
safe. The Coast Guard agrees with this comment and has revised the
proposed language to allow facility operators the option of maintaining
documentation at the facility, which shows that the equipment in use
meets the requirements of this part. An amendment which conforms to
Sec. 154.740 is also included in the requirement to have these records
available for inspection by the COTP.
Persons in Charge: Designation and Qualification
Fifteen comments discussed the proposed changes to Sec. 154.710.
Some confusion resulted from a misprint in the NPRM that listed
Sec. 154.720(a)(23) as a reference. The correct reference should have
read Sec. 154.310(a)(21), which requires a description of the training
program for persons in charge to be included in the Operations Manual.
The majority of the comments objected to a separate approval of the
facility's training program by the COTP, as this could lead to vast
disparity among the different COTPs as to what training is required.
The majority of the comments also noted that by examining the
Operations Manual, the COTP is already examining the training program
since it is described there in accordance with Sec. 154.310(a)(21). The
Coast Guard agrees with these comments and is removing the requirement
for the COTP to separately approve the facility's training program.
Seven comments addressed the proposal that the person in charge
(PIC) should be in visual sight of the transfer system from the time a
hose connection is completed, until the time the connection is broken.
All of these comments objected to this requirement as unreasonable and
impractical. Several of these comments also noted the requirements in
paragraphs 156.160 (a) and (c) where each PIC must directly supervise
certain critical operations and must be in the immediate vicinity,
immediately available to the transfer personnel. Upon further review,
the Coast Guard is removing this proposal.
The Coast Guard wishes to clarify that the requirements for
designation and qualification as a PIC in this rule apply only to
waterfront facility personnel. The requirements for designation and
qualification as a PIC on vessels are contained in a separate
rulemaking entitled ``Qualifications for Tankermen, and for Persons in
Charge of Transfers of Dangerous Liquids and Liquefied Gases'' (61 FR
17134; April 4, 1995).
New paragraph (e) is being added to Sec. 154.710 to state that
training to meet other regulatory requirements can be used to meet the
requirements of this section as long as that training addresses the
requirements of this section.
Safety Requirements
Twelve comments discussed the proposed changes to Sec. 154.735. Two
of these comments supported the continuation of the hot work permit
program. Several comments supported doing away with the hot work
permit, but objected to the responsibility for the safety of all hot
work on vessels moored to the facility being placed on the facility's
owner and operator. These comments noted the difficulty a facility
would have in providing oversight and subsequent liability concerns.
The Coast Guard agrees with these comments and has removed the language
concerning hot work on vessels, noting that hot work on tankships and
tank barges is already regulated under 46 CFR
35.01-1.
Three comments addressed the proposed changes to Sec. 154.735(s)
providing that tank cleaning or gas freeing operations conducted by the
facility on vessels carrying oil residues or mixtures be conducted in
accordance with specified sections of the International Safety Guide
for Oil Tankers and Terminals (ISGOTT). The provision to allow facility
owners or operators to request the COTP to approve, in accordance with
Sec. 154.107, alternative methods of compliance based on sound industry
practices satisfied these comments. One comment stated that the ISGOTT
manual was being revised in the near future and that the referenced
sections would have to be updated. The Coast Guard has reviewed the new
version of the ISGOTT manual and revised this section accordingly.
Seven comments addressed the proposed security requirements for
waterfront facilities. All of these comments objected to the proposed
requirements. These comments outlined the existing procedures currently
used by facilities for controlling access to marine transfer areas such
as fencing, gates, and video surveillance. The revised rule has been
reworded in a manner similar to the existing text to allow facilities
more flexibility in their security arrangements based on existing
procedures and local conditions. The proposed requirement that
personnel have facility-issued identification cards has been removed.
No comments were received on the proposal to prohibit smoking at
waterfront facilities except in designated areas; therefore, the
proposed language is retained.
Five comments discussed the proposal to require that three-way
warning signs, similar to those required under 33 CFR 126.15(o)(2)(i),
be displayed on the facility at the point of transfer, without
obstruction, at all times, on a fixed facility, and during coupling,
transfer operations, and uncoupling on a mobile facility. Two of these
comments supported the proposal as written. One comment requested that,
since the requirements for tank vessels and tank barges already cover
the requirements for warning signs at the point of transfer, the
location of the warning signs should be at each shoreside entrance to
the dock or berth for fixed facilities. The Coast Guard agrees with
this comment and has revised the final rule accordingly. One of these
comments requested that facilities with non-exclusive use of dock space
be allowed to use portable signs posted only during transfer
operations. While the Coast Guard agrees with this comment, it believes
this method does not need to be a regulatory requirement, but rather an
alternative that the COTP can approve on a case by case basis.
Records
Seven comments discussed the proposed changes to Sec. 154.740. The
majority of these comments supported the maintaining of records in a
central location. However, all of the comments objected to the
requirement that these records be maintained in the same location as
the Operations Manual. The majority of these comments noted that,
particularly at large facilities, there are multiple copies of the
Operations Manual scattered throughout the facility; however, requiring
these records at each location would create a heavy paperwork burden on
the industry. The majority of these comments requested that the
facility be allowed to designate a centralized location for these
records, since many of them are already computerized. The Coast Guard
agrees with these comments and has revised the final rule to allow
facilities flexibility in designating a centralized location where the
records will be kept.
Conforming changes to certain sections of 33 CFR part 156 have been
made to ensure consistency with the changes made to part 154.
Requirements for Transfer
In 33 CFR 156.120 the definition of ``transfer'' has been revised
to conform to the definition in Sec. 154.105. As previously discussed,
other amendments have been revised to conform to Sec. 156.120(w)(5) to
ensure that transfer pressures do not exceed a
[[Page 41456]]
facility's maximum allowable working pressure (MAWP). A new paragraph
(dd) has been added to Sec. 156.120 to clarify that welding, hot work
and smoking will not be permitted on vessels during transfer
operations. The Coast Guard recognizes that smoking on tank barges or
tank vessels is currently regulated under 46 CFR 35.30-5. However,
numerous problems have developed because vessel personnel have been
discovered smoking during the bunkering of freight vessels which are
not currently covered under the regulations. An editorial correction is
made to Sec. 156.120(f) to correct the reference.
Supervision by Person in Charge
Eight comments addressed the proposed changes to Sec. 156.160. All
of these comments objected to the proposed requirement as impractical
and infeasible due to the length of time that transfers take, and the
need to occasionally stop a transfer for weather, other facility
operations, equipment checks, or crew rest breaks. The Coast Guard
agrees with these comments and has retained the original text of the
regulations.
Equipment Tests and Inspections
Five comments addressed the proposed changes to Sec. 156.170. One
comment requested that, as stated in the preamble, language in the
final rule include a provision stating that the test medium does not
have to be water. The Coast Guard agrees with this comment and has
revised the final rule accordingly. However, facility operators are
cautioned against using oil or hazardous material as a test medium.
Because leaks are an expected result of any test, a discharge of oil or
hazardous material resulting from a test could be considered a willful
discharge. An editorial correction is made to Sec. 156.170(c)(1)(i) to
correct the reference.
One comment requested that components that have been gas-freed and
blanked-off be exempted from the testing requirements. This comment
stated that industry frequently takes some components out of service
for extended periods of time; therefore, these components should not be
required to be tested unless they are returned to service. The
revisions to the proposed text allow this option as the Coast Guard has
removed the word ``active'' from the proposed Sec. 156.170(f)(1) so
that facilities that are not in a caretaker status will be required to
conduct their tests either annually, or not less than 30 days prior to
the first transfer past the one year inspection date. For example, if a
facility had previously tested its components, and then had removed
these components from service for the previous 15 months, this facility
would be required to test the components that had been removed from
service not less than 30 days prior to the first transfer using the
components.
Two comments supported the proposal to give the COTP the authority
to approve alternative methods of compliance to the testing
requirements in this section. Therefore, the proposed language is
retained.
Exemptions
Editorial corrections are being made to Sec. 154.108 and
Sec. 156.110 to reflect the change in the office title from Chief,
Office of Marine Safety, Security and Environmental Protection to the
Chief, Marine Safety and Environmental Protection. This change is a
result of recent Coast Guard streamlining initiatives.
Incorporation by Reference
The Director of the Federal Register has approved the material in
Sec. 154.106 for incorporation by reference under 5 U.S.C. 552 and 1
CFR part 51. The material is available as indicated in that section.
Regulatory Evaluation
This is not a significant regulatory action under section 3(f) of
Executive Order 12866 and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that order. It has not been
reviewed by the Office of Management and Budget under that order. It is
not significant under the regulatory policies and procedures of the
Department of Transportation (DOT) (44 11040; February 26, 1979). A
draft Regulatory Evaluation under paragraph 10e of the regulatory
policies and procedures of DOT has been prepared and is available in
the docket for inspection or copying where indicated under ADDRESSES.
The Evaluation is summarized as follows:
It is estimated that 2,591 fixed and 539 mobile marine
transportation related facilities will be affected by these
regulations. Many of the revisions are clarifying changes that will
impose no additional costs on facilities presently in compliance with
the regulations. For example, information previously kept separately is
now required to be kept in the same location. Since this information is
not required to be included in the operations manual, no additional
cost is incurred for the review by the Coast Guard or the facility.
There are some new requirements associated with this Final Rule.
These requirements include the following: a map or maps, drawings, or
other diagrams acceptable to the COTP showing the boundaries of the
Coast Guard's jurisdiction (Sec. 154.310(a)(2)); additional
requirements for mobile transfer facilities including sufficient fire
extinguishers, protective equipment, three-way warning signs,
electrical wiring and the ``person in charge requirements''
(Sec. 154.100(d)); a more extensive training and qualification program
for persons in charge (Sec. 154.710(c)); and three-way warning signs
(Sec. 154.735(v)).
However, other revisions lessen the burden on industry. Examples of
the reduction in burden are the deletion of the requirement that
transfer hoses have a maximum allowable working pressure of at least
150 psi (Sec. 154.500(b)) and deletion of the requirement for a
facility to obtain a hot work permit (Sec. 154.735(1)).
In consideration of the additions and deletions to part 154 and
156, it is estimated that the annual net cost to all facilities would
be $5,448,235, when capital costs are incurred over a 5 year period.
The overriding benefit of the regulations to industry and the Coast
Guard would be the establishment of rules that are easier to understand
and that would facilitate and foster industry compliance, leading to a
higher level of environmental protection.
The direct monetary benefit of increased protection would come from
the reduction of spills resulting from facility operations. These
regulations are designed to achieve an overall reduction of oil and
hazardous materials spilled into the water by 20%. The weighted average
of the annual volume of bulk oil and hazardous material spilled from
1986 to 1995 from facilities was 4,124,430 gallons. The estimated costs
of spill cleanup, third party damages, and natural resource damages
resulting from this volume total $82,488,600. a 20% reduction will give
an annual benefit of $16,497,720.
Comparing the monetary benefits of the provisions against the
compliance cost to industry, the annual benefit of the regulations is
estimated to be $11,049,485.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and
1996 amendments (enacted as Chapter 8 of Title 5, U.S. Code) the Coast
Guard must consider whether this rule, if adopted, will have a
significant economic impact on a substantial number of small
[[Page 41457]]
entities. ``Small entities'' may include (1) small businesses and not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields and (2) governmental jurisdictions
with populations of less than 50,000.
The majority of facilities are owned by large corporations. The new
requirements established by this rule, measured against the proposed
relief from other requirements currently in effect, will result in a
negligible cost increase for facilities that presently comply with part
154.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule, as adopted, will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the
Office of Management and Budget (OMB) reviews each proposed rule that
contains a collection-of-information requirement to determine whether
the practical value of the information is worth the burden imposed by
its collection. Collection-of-information requirements include
reporting, recordkeeping, notification, and other, similar
requirements.
This rule contains new collection-of-information requirements in
the following sections: Sec. 154.310 and Sec. 154.560. The following
particulars apply:
DOT No.: 2115.
OMB Control No.: 2115-0078.
Administration: U.S. Coast Guard.
Title: Changes to regulations covering Facilities Transferring Oil
or Hazardous Materials in Bulk.
Need for Information: It is required that information, presently
kept separately, now be kept in a centralized location. However, little
new information is required. Maintaining all records in one location
where they are readily accessible will encourage facility owners and
operators to be better prepared and thereby help to prevent spills and
accidents resulting from improper procedures.
Proposed Use of Information: To determine regulatory compliance.
Frequency of Response: On occasion.
Burden Estimate: 22,632 hours per year.
Respondents: 3,130 operators of bulk oil and hazardous materials
transfer facilities.
Form(s): Not applicable.
Average Burden Hours per Respondent: 15.8 hours to prepare and
submit an amendment to an existing Operations Manual and 88 hours to
prepare and submit a new Operations Manual.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number. This final
rule contains information collection requirements which have been
approved under OMB no. 2115-0078 and which expires on July 31, 1996.
The Coast Guard has submitted the requirements to OMB for review and
renewal under section 3504(h) of the Paperwork Reduction Act.
The U.S. Coast Guard will publish a notice in the Federal Register
prior to the effective date of this final rule of OMB's decision to
approve, modify or disapprove the information collection requirements.
Individuals and organizations may submit comments on the information
collection requirements by October 7, 1996, and should direct them to
the Executive Secretary, Marine Safety Council (address above) and to
the Office of Information and Regulatory Affairs, OMB, New Executive
Office Bldg., rm 10235, 725 17th St. NW., Washington, DC 20503,
Attention: Desk Officer for DOT.
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this final
rule and concluded that, under paragraph 2.B.2.e(34)(A), (D), and (E)
of Commandant Instruction M16475.1B, this rulemaking is categorically
excluded from further environmental documentation.
This rulemaking will have no direct environmental impact. This
rulemaking will revise the regulations covering facilities transferring
oil or hazardous material in bulk. these revisions will clarify and
consolidate the present rules, as well as adding a number of new
operational requirements. A ``Categorical Exclusion Determination'' is
available in the docket for inspection or copying where indicated under
``ADDRESSES''.
List of Subjects
33 CFR Part 154
Fire prevention, Hazardous substances, Oil pollution, Reporting and
recordkeeping requirements, Incorporation by reference.
33 CFR Part 156
Hazardous substances, Oil pollution, Reporting and recordkeeping
requirements, Water pollution control.
For the reasons set out in the preamble, the Coast Guard is
amending 33 CFR parts 154 and 156 as follows:
PART 154--FACILITIES TRANSFERRING OIL OR HAZARDOUS MATERIAL IN BULK
1. The authority citation for part 154 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321(j)(1)(C), (j)(5), (j)(6) and
(m)(2); sec. 2, E.O. 12777, 56 FR 54757; 49 CFR 1.46. Subpart F is
also issued under 33 U.S.C. 2735.
Subpart A--General
2. In Sec. 154.100, paragraph (a) is revised and paragraph (d) is
added to read as follows:
Sec. 154.100 Applicability.
(a) This part applies to each facility that is capable of
transferring oil or hazardous materials, in bulk, to or from a vessel,
where the vessel has a total capacity, from a combination of all bulk
products carried, of 39.75 cubic meters (250 barrels) or more. This
part does not apply to the facility when it is in a caretaker status.
This part does not apply to any offshore facility operating under the
jurisdiction of the Secretary of the Department of Interior.
* * * * *
(d) The following sections of this part apply to mobile facilities:
(1) Section 154.105 Definitions.
(2) Section 154.107 Alternatives.
(3) Section 154.108 Exemptions.
(4) Section 154.110 Letter of Intent.
(5) Section 154.120 Facility examinations.
(6) Section 154.300 Operations Manual: General.
(7) Section 154.310 Operations Manual: Contents. Paragraphs (a)(2),
(a)(3), (a)(5) through (a)(7), (a)(9), (a)(12), (a)(14), (a)(16),
(a)(17)(ii) through (a)(17)(iv), (a)(18), (a)(20) through (23), (c) and
(d).
(8) Section 154.320 Operations Manual: Amendment.
(9) Section 154.325 Operations Manual: Procedures for examination.
(10) Section 154.500 Hose assemblies. Paragraphs (a), (b), (c),
(d)(1) through (3) and (e)(1) through (3).
(11) Section 154.520 Closure devices.
(12) Section 154.530 Small discharge containment. Paragraphs (a)(1)
through (3) and (d).
(13) Section 154.545 Discharge containment equipment.
(14) Section 154.550 Emergency shutdown.
[[Page 41458]]
(15) Section 154.560 Communications.
(16) Section 154.570 Lighting. Paragraphs (c) and (d).
(17) Section 154.700 General.
(18) Section 154.710 Persons in charge: Designation and
qualification. Paragraphs (a) through (c), (d)(1) through (3), (d)(7)
and (e).
(19) Section 154.730 Persons in charge: Evidence of designation.
(20) Section 154.735 Safety requirements. Paragraphs (d), (f), (g),
(j)(1) through (2), (k)(1) through (2), (m), (o) through (q), (r)(1)
through (3), (s) and (v).
(21) Section 154.740 Records. Paragraphs (a) through (f) and (j).
(22) Section 154.750 Compliance with Operations Manual.
3. In Sec. 154.105, the following definitions of ``Caretaker
Status'', ``Marine Transfer Area'', and ``Onshore Facility'' are added
in alphabetical order and the definitions of ``Facility'', ``Offshore
Facility'' and ``Transfer'' are revised to read as follows:
Sec. 154.105 Definitions.
* * * * *
Caretaker Status denotes a facility where all piping, hoses,
loading arms, storage tanks, and related equipment in the marine
transfer area are completely free of oil or hazardous materials, where
these components have been certified as being gas free, where piping,
hoses, and loading arms terminating near any body of water have been
blanked, and where the facility operator has notified the COTP that the
facility will be in caretaker status.
* * * * *
Facility means either an onshore or offshore facility, except for
an offshore facility operating under the jurisdiction of the Secretary
of the Department of Interior, and includes, but is not limited to,
structure, equipment, and appurtenances thereto, used or capable of
being used to transfer oil or hazardous materials to or from a vessel
or public vessel. Also included are facilities that tank clean or strip
and any floating structure that is used to support an integral part of
the facility's operation. A facility includes federal, state,
municipal, and private facilities.
* * * * *
Marine transfer area means that part of a waterfront facility
handling oil or hazardous materials in bulk between the vessel, or
where the vessel moors, and the first manifold or shutoff valve on the
pipeline encountered after the pipeline enters the secondary
containment around the bulk storage tank required under 40 CFR 112.7
inland of the terminal manifold or loading arm, or, in the absence of
secondary containment, to the valve or manifold adjacent to the bulk
storage tank, including the entire pier or wharf to which a vessel
transferring oil or hazardous materials is moored.
* * * * *
Offshore facility means any facility of any kind located in, on, or
under, any of the navigable waters of the United States, and any
facility of any kind which is subject to the jurisdiction of the United
States and is located in, on, or under any other waters, other than a
vessel or a public vessel.
* * * * *
Onshore facility means any facility (including, but not limited to,
motor vehicles and rolling stock) of any kind located in, on, or under
any land within the United States other than submerged land.
* * * * *
Transfer means any movement of oil or hazardous material to, from,
or within a vessel by means of pumping, gravitation, or displacement. A
transfer is considered to begin when the person in charge on the
transferring vessel or facility and the person in charge on the
receiving facility or vessel first meet to begin completing the
declaration of inspection as required by Sec. 156.150 of this chapter.
A transfer is considered to be complete when all the connections for
the transfer have been uncoupled and secured with blanks or other
closure devices and both of the persons in charge have completed the
declaration of inspection to include the date and time the transfer was
complete.
* * * * *
4. In Sec. 154.106, paragraphs (a) and (b) and the entries for
``National Fire Protection Association (NFPA)'' and ``Oil Companies
International Marine Forum (OCIMF)'' are revised to read as follows:
Sec. 154.106 Incorporation by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other
than that specified in paragraph (b) of this section, the Coast Guard
must publish notice of change in the Federal Register and make the
material available to the public. All approved material is on file at
the Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC and at the U.S. Coast Guard, Office of the
Compliance (G-MOC), Room 1116, 2100 Second Street SW., Washington, DC
20593-0001, and is available from the sources indicated in paragraph
(b) of this section.
(b) The material approved for incorporation by reference in this
part and the sections affected are:
* * * * *
National Fire Protection Association (MFPA), 1 Batterymarch Park,
Quincy, MA 02269-9101
NFPA 51B, Standard for Fire Prevention in Use of Cutting and
Welding Processes, 1994.........................................154.735
* * * * *
Oil Companies International Marine Forum (OCIMF), 96 Victoria Street,
15th Floor, London SW1E 5JW, England
International Safety Guide for Oil Tankers and Terminals, Section
6.10, Fourth Ed., 1996..........................................154.810
International Safety Guide for Oil Tankers and Terminals,
Sections 9.1, 9.2, 9.3 and 9.5, Fourth Ed., 1996................154.735
5. Section 154.107 is amended by revising paragraph (b) to read as
follows:
Sec. 154.107 Alternative.
* * * * *
(b) The COTP takes final approval or disapproval action on the
request, submitted in accordance with paragraph (a) of this section, in
writing within 30 days of receipt of the request.
6. Section 154.108 is amended by revising paragraphs (a)
introductory text and (d) to read as follows:
Sec. 154.108 Exemptions.
(a) The Chief, Marine Safety and Environmental Protection, acting
for the Commandant, grants an exemption or partial exemption from
compliance with any requirement in this part if:
* * * * *
(d) An exemption is granted or denied in writing. The decision of
the Chief, Marine Safety and Environmental Protection is a final agency
action.
7. In Sec. 154.110, paragraph (b)(1) is revised to read as follows:
Sec. 154.110 Letter of intent.
* * * * *
(b) * * *
(1) The names, addresses, and telephone numbers of the facility
operator and the facility owner;
* * * * *
Subpart B--Operations Manual
8. In Sec. 154.300, paragraphs (a) introductory text, (c), (e) and
(f) are revised to read as follows (the note following paragraph (b) is
unchanged):
Sec. 154.300 Operations Manual: General.
(a) The facility operator of each facility to which this part
applies shall
[[Page 41459]]
submit, with the letter of intent, two copies of an Operations Manual
that:
* * * * *
(c) The COTP shall examine the Operations Manual when submitted,
after any substantial amendment, and as otherwise required by the COTP.
* * * * *
(e) If the manual meets the requirements of this part and part 156
of this chapter, the COTP will return one copy of the manual marked
``Examined by the Coast Guard'' as described in Sec. 154.325.
(f) The facility operator shall ensure that a sufficient number of
copies of the examined Operations Manual, including a sufficient number
of the translations required by paragraph (a)(3) of this section, are
readily available for each facility person in charge while conducting a
transfer operation.
* * * * *
9. In Sec. 154.310, paragraphs (a)(2), (a)(7), (a)(15), (a)(16) and
(a)(22) are revised and paragraph (a)(23) is added to read as follows:
Sec. 154.310 Operations manual: Contents.
(a) * * *
(2) A physical description of the facility including a plan and/or
plans, maps, drawings, aerial photographs or diagrams, showing the
boundaries of the facility subject to Coast Guard jurisdiction, mooring
areas, transfer locations, control stations, wharfs, the extent and
scope of the piping subject to the tests required by Sec. 156.170(c)(4)
of this chapter, and the locations of safety equipment. For mobile
facilities, a physical description of the facility;
* * * * *
(7) The name and telephone number of the qualified individual
identified under Sec. 154.1026 of this part and the title and/or
position and telephone number of the Coast Guard, State, local, and
other personnel who may be called by the employees of the facility in
an emergency;
* * * * *
(15) Quantity, type, location, and instructions for use of fire
extinguishing equipment required by Sec. 154.735(d) of this part;
(16) The maximum allowable working pressure (MAWP) of each loading
arm, transfer pipe system, and hose assembly required to be tested by
Sec. 156.170 of this chapter, including the maximum relief valve
setting (or maximum system pressure when relief valves are not
provided) for each transfer system;
* * * * *
(22) Statements explaining that each hazardous materials transfer
hose is marked with either the name of each product which may be
transferred through the hose or with letters, numbers, symbols, color
codes or other system acceptable to the COTP representing all such
products and the location in the Operations Manual where a chart or
list of symbols utilized is located and a list of the compatible
products which may be transferred through the hose can be found for
consultation before each transfer; and
(23) For facilities that conduct tank cleaning or stripping
operations, a description of their procedures.
* * * * *
10. In Sec. 154.320, paragraphs (a)(1) and (d) are revised to read
as follows:
Sec. 154.320 Operations manual: Amendment.
(a) * * *
(1) The COTP will notify the facility operator in writing of any
inadequacies in the Operations Manual. The facility operator may submit
written information, views, and arguments regarding the inadequacies
identified, and proposals for amending the Manual, within 45 days from
the date of the COTP notice. After considering all relevant material
presented, the COTP shall notify the facility operator of any amendment
required or adopted, or the COTP shall rescind the notice. The
amendment becomes effective 60 days after the facility operator
receives the notice, unless the facility operator petitions the
Commandant to review the COTP's notice, in which case its effective
date is delayed pending a decision by the Commandant. Petitions to the
Commandant must be submitted in writing via the COTP who issued the
requirement to amend the Operations Manual.
* * * * *
(d) Amendments to personnel and telephone number lists required by
Sec. 154.310(a)(7) of this part do not require examination by the COTP,
but the COTP must be advised of such amendments as they occur.
11. Section 154.325 is revised to read as follows:
Sec. 154.325 Operations Manual: Procedures for examination.
(a) The operator of a facility shall submit two copies of the
Operations Manual to the Captain of the Port of the zone in which the
facility is located.
(b) Not less than 60 days prior to any transfer operation, the
operator of a new facility shall submit, with the letter of intent, two
copies of the Operations Manual to the Captain of the Port of the zone
in which the facility is located.
(c) After a facility is removed from caretaker status, not less
than 30 days prior to any transfer operation the operator of that
facility shall submit two copies of the Operations Manual to the COTP
of the zone in which the facility is located unless the manual has been
previously examined and no changes have been made since the
examination.
(d) If the COTP finds that the Operations Manual meets the
requirements of this part and part 156 of this chapter, the COTP will
return one copy of the manual to the operator marked ``Examined by the
Coast Guard''.
(e) If the COTP finds that the Operations Manual does not meet the
requirements of this part and/or part 156 of this chapter, the COTP
will return the manuals with an explanation of why it does not meet the
requirements of this chapter.
(f) No person may use any Operations Manual for transfer operations
as required by this chapter unless the Operations Manual has been
examined by the COTP.
(g) The Operations Manual is voided if the facility operator--
(1) Amends the Operations Manual without following the procedures
in Sec. 154.320 of this part;
(2) Fails to amend the Operations Manual when required by the COTP;
or
(3) Notifies the COTP in writing that the facility will be placed
in caretaker status.
Subpart C--Equipment Requirements
12. In Sec. 154.500, paragraphs (a) and (b) are revised to read as
follows:
Sec. 154.500 Hose assemblies.
* * * * *
(a) The minimum design burst pressure for each hose assembly must
be at least four times the sum of the pressure of the relief valve
setting (or four times the maximum pump pressure when no relief valve
is installed) plus the static head pressure of the transfer system, at
the point where the hose is installed.
(b) The maximum allowable working pressure (MAWP) for each hose
assembly must be more than the sum of the pressure of the relief valve
setting (or the maximum pump pressure when no relief valve is
installed) plus the static head pressure of the transfer system, at the
point where the hose is installed.
* * * * *
13. Section 154.520 is revised to read as follows:
Sec. 154.520 Closure devices.
(a) Except as provided in paragraph (b) of this section, each
facility to which
[[Page 41460]]
this part applies must have enough butterfly valves, wafer-type
resilient seated valves, blank flanges, or other means acceptable to
the COTP to blank off the ends of each hose or loading arm that is not
connected for the transfer of oil or hazardous material. Such hoses
and/or loading arms must be blanked off during the transfer of oil or
hazardous material. A suitable material in the joints and couplings
shall be installed on each end of the hose assembly or loading arm not
being used for transfer to ensure a leak-free seal.
(b) A new, unused hose, and a hose that has been cleaned and is gas
free, is exempt from the requirements of paragraph (a) of this section.
14. In Sec. 154.530, paragraph (a) is revised and paragraph (e) is
added to read as follows:
Sec. 154.530 Small discharge containment.
(a) Except as provided in paragraphs (c), (d), and (e) of this
section, each facility to which this part applies must have fixed
catchments, curbing, or other fixed means to contain oil or hazardous
material discharged in at least--
(1) Each hose handling and loading arm area (that area on the
facility that is within the area traversed by the free end of the hose
or loading arm when moved from its normal stowed or idle position into
a position for connection);
(2) Each hose connection manifold area; and
(3) Under each hose connection that will be coupled or uncoupled as
part of the transfer operation during coupling, uncoupling, and
transfer.
* * * * *
(e) Fixed or portable containment may be used to meet the
requirements of paragraph (a)(3) of this section.
15. Section 154.540 is revised to read as follows:
Sec. 154.540 Discharge removal.
Each facility to which this part applies must have a means to
safely remove discharged oil or hazardous material, within one hour of
completion of the transfer, from the containment required by
Sec. 154.530 of this part without discharging the oil or hazardous
material into the water.
16. In Sec. 154.545, paragraph (e) is added to read as follows:
Sec. 154.545 Discharge containment equipment.
* * * * *
(e) Equipment and procedures maintained to satisfy the provisions
of this chapter may be utilized in the planning requirements of subpart
F of this part.
17. In Sec. 154.560, paragraph (e) is revised to read as follows:
Sec. 154.560 Communications.
* * * * *
(e) Portable radio devices used to comply with paragraph (a) of
this section during the transfer of flammable or combustible liquids
must be marked as intrinsically safe by the manufacturer of the device
and certified as intrinsically safe by a national testing laboratory or
other certification organization approved by the Commandant as defined
in 46 CFR 111.105-11. As an alternative to the marking requirement,
facility operators may maintain documentation at the facility
certifying that the portable radio devices in use at the facility are
in compliance with this section. Subpart D--Facility Operations.
18. In Sec. 154.710, paragraphs (b), (c), (d) introductory text,
(d)(7) and (d)(8) are revised and paragraph (e) is added to read as
follows:
Sec. 154.710 Persons in charge: Designation and qualification.
* * * * *
(b) The person has had at least 48 hours of experience in transfer
operations at a facility in operations to which this part applies. The
person also has enough experience at the facility for which
qualification is desired to enable the facility operator to determine
that the person's experience is adequate;
(c) The person has completed a training and qualification program
established by the facility operator and described in the Operations
Manual in accordance with Sec. 154.310(a)(21), that provides the person
with the knowledge and training necessary to properly operate the
transfer equipment at the facility, perform the duties described in
paragraph (d) of this section, follow the procedures required by this
part, and fulfill the duties required of a person in charge during an
emergency, except that the COTP may approve alternative experience and
training requirements for new facilities; and
(d) The facility operator must certify that each person in charge
has the knowledge of, and skills necessary to--
* * * * *
(7) Follow local discharge reporting procedures; and
(8) Carry out the facility's response plan for discharge reporting
and containment.
(e) Training conducted to comply with the hazard communication
programs required by the Occupational Safety and Health Administration
(OSHA) of the Department of Labor (DOL) (29 CFR 1910.1200) or the
Environmental Protection Agency (EPA) (40 CFR 311.1), or to meet the
requirements of subpart F of this part may be used to satisfy the
requirements in paragraphs (c) and (d) of this section, as long as the
training addresses the requirements in paragraphs (c) and (d) of this
section.
19. In Sec. 154.735, the introductory text, paragraphs (l) and (s)
through (t) are revised and paragraphs (u) through (v) are added to
read as follows:
Sec. 154.735 Safety requirements.
Each operator of a facility to which this part applies shall ensure
that the following safety requirements are met at the facility:
* * * * *
(l) All welding or hot work conducted on or at the facility is the
responsibility of the facility operator. The COTP may require that the
operator of the facility notify the COTP before any welding or hot work
operations are conducted. Any welding or hot work operations conducted
on or at the facility must be conducted in accordance with NFPA 51B.
The facility operator shall ensure that the following additional
conditions or criteria are met:
(1) Welding or hot work is prohibited during gas freeing
operations, within 30.5 meters (100 feet) of bulk cargo operations
involving flammable or combustible materials, within 30.5 meters (100
feet) of fueling operations, or within 30.5 meters (100 feet) of
explosives or 15.25 meters (50 feet) of other hazardous materials.
(2) If the welding or hot work is on the boundary of a compartment
(i.e., bulkhead, wall or deck) an additional fire watch shall be
stationed in the adjoining compartment.
(3) Personnel on fire watch shall have no other duties except to
watch for the presence of fire and to prevent the development of
hazardous conditions.
(4) Flammable vapors, liquids or solids must first be completely
removed from any container, pipe or transfer line subject to welding or
hot work.
(5) Tanks used for storage of flammable or combustible substances
must be tested and certified gas free prior to starting hot work.
(6) Proper safety precautions in relation to purging, inserting, or
venting shall be followed for hot work on containers;
(7) All local laws and ordinances shall be observed;
(8) In case of fire or other hazard, all cutting, welding or other
hot work equipment shall be completely secured.
* * * * *
(s) Tank cleaning or gas freeing operations conducted by the
facility on vessels carrying oil residues or mixtures shall be
conducted in accordance with
[[Page 41461]]
sections 9.1, 9.2, 9.3, and 9.5 of the OCIMF International Safety Guide
for Oil Tankers and Terminals (ISGOTT), except that--
(1) Prohibitions in ISGOTT against the use of recirculated wash
water do not apply if the wash water is first processed to remove
product residues;
(2) The provision in ISGOTT section 9.2.10 concerning flushing the
bottom of tanks after every discharge of leaded gasoline does not
apply;
(3) The provision in ISGOTT section 9.2.11 concerning that removal
of sludge, scale, and sediment does not apply if personnel use
breathing apparatus which protect them from the tank atmosphere; and
(4) Upon the request of the facility owner or operator in
accordance with Sec. 154.107, the COTP may approve the use of
alternative standards to ISGOTT if the COTP determines that the
alternative standards provide an equal level of protection to the
ISGOTT standards.
(t) Guards are stationed, or equivalent controls acceptable to the
COTP are used to detect fires, report emergency conditions, and ensure
that access to the marine transfer area is limited to--
(1) Personnel who work at the facility including persons assigned
for transfer operations, vessel personnel, and delivery and service
personnel in the course of their business;
(2) Coast Guard personnel;
(3) Other Federal, State, or local governmental officials; and
(4) Other persons authorized by the operator.
(u) Smoking shall be prohibited at the facility except that
facility owners or operators may authorize smoking in designated areas
if--
(1) Smoking areas are designated in accordance with local
ordinances and regulations;
(2) Signs are conspicuously posted marking such authorized smoking
areas; and
(3) ``No Smoking'' signs are conspicuously posted elsewhere on the
facility.
(v) Warning signs shall be displayed on the facility at each
shoreside entry to the dock or berth, without obstruction, at all times
for fixed facilities and for mobile facilities during coupling,
transfer operation, and uncoupling. The warning signs shall conform to
46 CFR 151.45-2(e)(1) or 46 CFR 153.955.
20. In Sec. 154.740, the introductory text and paragraph (b) are
revised and paragraph (j) is added to read as follows:
Sec. 154.740 Records.
Each facility operator shall maintain at the facility and make
available for examination by the COTP:
* * * * *
(b) The name of each person designated as a person in charge of
transfer operations at the facility and certification that each person
in charge has completed the training requirements of Sec. 154.710 of
this part;
* * * * *
(j) If they are not marked as such, documentation that the portable
radio devices in use at the facility under Sec. 154.560 of this part
are intrinsically safe.
PART 156--OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS
21. The authority citation for part 156 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321(j)(1) (C) and (D); 46 U.S.C.
3715; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351, 49 CFR
1.46. Section 156.120(bb) is issued under the authority of section
4110, Pub. L. 101-380, 104 Stat. 515.
Subpart A--Oil and Hazardous Materials Transfer Operations
22. Section 156.110 is amended by revising paragraphs (a)
introductory text and (d) to read as follows:
Sec. 156.110 Exemptions.
(a) The Chief, Marine Safety and Environmental Protection, acting
for the Commandant, may grant an exemption or partial exemption from
compliance with any requirement in this part, and the District
Commander may grant an exemption or partial exemption from compliance
with any operating condition or requirement in subpart C of this part,
if:
* * * * *
(d) An exemption is granted or denied in writing. The decision of
the Chief, Marine Safety and Environmental Protection is a final agency
action.
23. In Sec. 156.120, the introductory text and paragraphs (f) and
(w)(5) are revised and paragraphs (cc) and (dd) are added to read as
follows:
Sec. 156.120 Requirements for transfer.
A transfer is considered to begin when the person in charge on the
transferring vessel or facility and the person in charge on the
receiving facility or vessel first meet to begin completing the
declaration of inspection, as required by Sec. 156.150 of this part. No
person shall conduct an oil or hazardous material transfer operation
unless:
* * * * *
(f) The end of each hose and loading arm that is not connected for
the transfer of oil or hazardous material is blanked off using the
closure devices required by Secs. 154.520 and 155.805 of this chapter;
* * * * *
(w) * * *
(5) Details of the transferring and receiving systems including
procedures to ensure that the transfer pressure does not exceed the
maximum allowable working pressure (MAWP) for each hose assembly,
loading arm and/or transfer pipe system;
* * * * *
(cc) Smoking is not permitted in the facilities marine transfer
area except in designated smoking areas.
(dd) Welding, hot work operations and smoking are prohibited on
vessels during the transfer of flammable or combustible materials,
except that smoking may be permitted in accommodation areas designated
by the master.
24. In Sec. 156.150, paragraphs (c)(3) and (c)(5) are revised and
paragraph (c)(6) is added to read as follows:
Sec. 156.150 Declaration of inspection.
* * * * *
(c) * * *
(3) The date and time the transfer operation is started;
* * * * *
(5) A space for the date, time of signing, signature, and title of
each person in charge during transfer operations on the transferring
vessel or facility and a space for the date, time of signing,
signature, and title of each person in charge during transfer
operations on the receiving facility or vessel certifying that all
tests and inspections have been completed and that they are both ready
to begin transferring product; and
(6) The date and time the transfer operation is completed.
* * * * *
25. In Sec. 156.170, paragraphs (c)(1)(i), (c)(1)(iv) and (f)(1)
are revised, paragraph (f)(2) is revised and redesignated as (f)(3) and
paragraphs (f)(2) and (h) are added to read as follows:
Sec. 156.170 Equipment tests and inspections.
* * * * *
(c) * * *
(1) * * *
(i) Have no unrepaired loose covers, kinks, bulges, soft spots or
any other defect which would permit the discharge of oil or hazardous
material through the hose material, and no
[[Page 41462]]
gouges, cuts or slashes that penetrate the first layer of hose
reinforcement as defined in Sec. 156.120(i).
* * * * *
(iv) Hoses not meeting the requirements of paragraph (c)(1)(i) of
this section may be acceptable after a static liquid pressure test is
successfully completed in the presence of the COTP. The test medium is
not required to be water.
* * * * *
(f) * * *
(1) For facilities, annually or not less than 30 days prior to the
first transfer conducted past one year from the date of the last tests
and inspections;
(2) For a facility in caretaker status, not less than 30 days prior
to the first transfer after the facility is removed from caretaker
status; and
(3) For vessels, annually or as part of the biennial and mid-period
inspections.
* * * * *
(h) Upon the request of the owner or operator, the COTP may approve
alternative methods of compliance to the testing requirements of
paragraph (c) of this section if the COTP determines that the
alternative methods provide an equal level of protection.
Dated: July 30, 1996.
J.C. Card,
U.S. Coast Guard, Chief, Marine Safety and Environmental Protection.
[FR Doc. 96-20020 Filed 8-7-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-19888 Designation of Areas for Air Quality Planning Purposes; Illinois
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41342-41345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19888]
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ENVIRONMENT PROTECTION AGENCY
40 CFR Parts 52 and 81
[IL146-1a; FRL-5540-6]
Designation of Areas for Air Quality Planning Purposes; Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: In this action EPA is approving the State Implementation Plan
(SIP) submitted by the State of Illinois through the Illinois
Environmental Protection Agency (IEPA) on June 2, 1995, and January 9,
1996, for the purpose of redesignating the portion of LaSalle County
currently designated as nonattainment to attainment status for the
particulate matter National Ambient Air Quality Standard (NAAQS). The
EPA is also approving the maintenance plan for the LaSalle County PM
nonattainment area, which was submitted with the redesignation request
to ensure that attainment will be maintained.
DATES: The ``direct final'' is effective on October 7, 1996, unless EPA
receives adverse or critical comments by September 9, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Copies of the revision request are available for inspection
at the following address: U.S. Environmental Protection Agency, Region
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604. (It is recommended that you telephone David Pohlman at
(312) 886-3299 before visiting the Region 5 Office.)
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
FOR FURTHER INFORMATION CONTACT: David Pohlman at (312) 886-3299.
SUPPLEMENTARY INFORMATION:
I. Background
On July 1, 1987 (52 FR 24634), EPA revised the NAAQS for
particulate matter (PM) with a new indicator that includes only those
particles with an aerodynamic diameter less than or equal to a nominal
10 micrometers. (See 40 CFR Sec. 50.6). The 24-hour primary PM standard
is 150 micrograms per cubic meter (g/m3), with no more
than one expected exceedance per year. The annual primary PM standard
is 50 g/m3 expected annual arithmetic mean. The secondary
PM standards are identical to the primary standards.
Portions of LaSalle County were designated as a moderate PM
nonattainment area upon enactment of the Clean Air Act (Act) Amendments
of 1990 (November 15, 1990). 56 FR 56694 at 56705-706, 56714 (November
6, 1991). The nonattainment area includes the following townships,
ranges, and sections: T32N, R1E, S1; T32N, R2E, S6; T33N, R1E, S24;
T33N, R1E, S25; T33N, R2E, S30; T33N, R2E, S31; AND T33N, R1E, S36. The
area is known as the Oglesby PM nonattainment area, after the nearby
town of Oglesby, Illinois.
II. Evaluation Criteria
Title I, section 107(d)(3)(D) of the amended Act and the general
preamble to Title I [57 FR 13498 (April 16, 1992)], allow the Governor
of a State to request the redesignation of an area from nonattainment
to attainment. The criteria used to review redesignation requests are
derived from the Act, general preamble, and the following policy and
guidance memorandum from the Director of the Air Quality Management
Division to the Regional Air Directors, September 4, 1992, Procedures
for Processing Requests to Redesignate Areas to Attainment. An area can
be redesignated to attainment if the following conditions are met:
1. The area has attained the applicable NAAQS;
2. The area has a fully approved SIP under section 110(k) of the
Act;
3. The air quality improvement must be permanent and enforceable;
4. The area has met all relevant requirements under section 110 and
Part D of the Act;
5. The area must have a fully approved maintenance plan pursuant to
section 175(A) of the Act.
III. Review of State Submittal
Under cover letters dated June 2, 1995, and January 9, 1996, the
State submitted a redesignation request for the LaSalle County PM
nonattainment area. A public hearing was held on September 22, 1995.
The request was reviewed by EPA to determine completeness shortly after
its submittal, in accordance with the completeness criteria set out at
40 CFR Part 51, Appendix V (1991), as amended by 57 FR 42216 (August
26, 1991). The submittal was found to be complete and a letter dated
February 29, 1996, was forwarded to the Chief, Bureau of Air, Illinois
Environmental Protection Agency, indicating the completeness of the
submittal and the next steps to be taken in the review process. The
following is a description of how the State's redesignation request
meets the requirements of Section 107(d)(3)(E).
1. Attainment of the PM NAAQS
According to EPA guidance, the demonstration that the area has
attained the PM NAAQS involves submittal of ambient air quality data
from an ambient air monitoring network representing peak PM
concentrations, which should be recorded in the Aerometric Information
Retrieval System (AIRS). The area must show that the average annual
number of expected exceedances of the 24-hour PM standard is less than
or equal to 1.0 pursuant to 40 CFR Part 50, section 50.6. The data must
represent the most recent three consecutive years of complete ambient
air quality monitoring data collected in accordance with EPA
methodologies.
The IEPA operates one PM monitoring site in the nonattainment area.
Illinois submitted ambient air quality data from the monitoring site
which demonstrates that the area has attained the PM NAAQS. This air
quality data was
[[Page 41343]]
verified in AIRS. Quality assurance procedures are a component of the
AIRS data entry process. No exceedance of the 24-hour NAAQS has been
measured since 1991, and no exceedance of the annual NAAQS has been
measured since 1990. Therefore, the State has adequately demonstrated,
through ambient air quality data, that the PM NAAQS has been attained
in LaSalle County, with 1993 as the attainment year.
2. State Implementation Plan Approval
Those States containing initial moderate PM nonattainment areas
were required to submit a SIP by November 15, 1991 which implemented
reasonably available control measures (RACM) by December 10, 1993 and
demonstrated attainment of the PM NAAQS by December 31, 1994. The SIP
for the area must be fully approved under section 110(k) of the Act,
and must satisfy all requirements that apply to the area. On October
21, 1993, (58 FR 54291), EPA approved the LaSalle County PM
nonattainment area SIP originally submitted by the State on October 16,
1991.
3. Improvement in Air Quality Due to Permanent and Enforceable Measures
The State must be able to reasonably attribute the improvement in
air quality to permanent and enforceable emission reductions. In making
this showing, the State must demonstrate that air quality improvements
are the result of actual enforceable emission reductions.
The PM dispersion modeling conducted as part of the LaSalle County
PM SIP predicted that the control measures included in the SIP were
sufficient to provide for attainment and maintenance of the PM NAAQS.
The State has adequately demonstrated that the improvement in air
quality is due to permanent and enforceable emission reductions of PM
as a result of implementing the federally enforceable control measures
in the SIP.
4. Meeting Applicable Requirements of Section 110 and Part D of the Act
To be redesignated to attainment, section 107(d)(3)(E) requires
that an area must have met all applicable requirements of section 110
of part D of title I of the Act. The EPA interprets this to mean that
for a redesignation request to be approved, the State must have met all
requirements that applied to the subject area prior to or at the time
of a complete redesignation request.
A. Section 110 Requirements. Section 110(a)(2) contains general
requirements for nonattainment plans. For purposes of redesignation,
the Illinois SIP was reviewed to ensure that all applicable
requirements under the amended Act were satisfied. These requirements
were met with Illinois' October 16, 1991, and November 13, 1991,
submittal for the LaSalle County nonattainment area. This submittal was
approved by the EPA on October 21, 1993. See 58 FR 12006 (March 2,
1993), and 58 FR 54291 (October 21, 1993).
B. Part D Requirements. Before a PM nonattainment area may be
redesignated to attainment, the State must have fulfilled the
applicable requirements of part D. Subpart 1 of part D establishes the
general requirements applicable to all nonattainment areas and subpart
4 of part D establishes specific requirements applicable to PM
nonattainment areas.
The requirements of sections 172(c) and 189(a) for providing for
attainment of the PM NAAQS, and the requirements of section 172(c) for
requiring reasonable further progress, imposition of RACM, the adoption
of contingency measures, and the submission of an emission inventory
have been satisfied through the October 21, 1993, approval of the
LaSalle County PM SIP (58 FR 54291), the July 13, 1995, approval of the
Illinois PM contingency measures SIP (60 FR 36060), and the
demonstration that the area is now attaining the standard. The
requirements of the Part D--New Source Review (NSR) permit program will
be replaced by the Part C--Prevention of Significant Deterioration
(PSD) program once the area has been redesignated. However, in order to
ensure that the PSD program will become fully effective immediately
upon redesignation, either the State must be delegated the Federal PSD
program or the State must make any needed modifications to its rules to
have the approved PSD program apply to the affected area upon
redesignation. The PSD program was delegated to the State of Illinois
on January 29, 1981 (46 FR 9584).
5. Fully Approved Maintenance Plan Under Section 175(A) of the Act
Section 175(A) of the Act requires states that submit a
redesignation request for a nonattainment area under section 107(d) to
include a maintenance plan to ensure that the attainment of NAAQS for
any pollutant is maintained. The plan must demonstrate continued
attainment of the applicable NAAQS for at least ten years after the
approval of a redesignation to attainment. Eight years after the
redesignation, the State must submit a revised maintenance plan
demonstrating attainment for the ten years following the initial ten
year period.
The State of Illinois adequately demonstrated attainment and
maintenance of the PM NAAQS through the dispersion modeling submitted
as part of the LaSalle County PM attainment demonstration SIP. Since
emissions in the area are not expected to increase substantially in the
next 10 years, that initial attainment demonstration is still
appropriate. Further, emissions from the area's only significant PM
source, the Lone Star portland cement plant (and its associated quarry,
are currently only about 75% of the levels modeled for the 1991
submittal. Thus, even if production should increase, emissions would
likely not exceed the modeled amounts. Also, emissions from any new
sources would be restricted by PSD requirements.
Once an area has been redesignated, the State must continue to
operate an appropriate air quality monitoring network, in accordance
with 40 CFR Part 58, to verify the attainment status of the area. The
maintenance plan should contain provisions for continued operation of
air quality monitors that will provide such verification. Illinois
operates one PM air monitoring site in the nonattainment area. This
site is approved annually by the EPA, and any future change would
require discussion with EPA. In its submittal, the State commits to
continue to operate the PM monitoring station to demonstrate ongoing
compliance with the PM NAAQS.
Section 175(A) of the Act also requires that a maintenance plan
include contingency provisions, as necessary, to promptly correct any
violation of the NAAQS that occurs after redesignation of the area.
These contingency measures are distinguished from those generally
required for nonattainment areas under section 172(c)(9). However, if
the contingency measures in a nonattainment SIP have not been
implemented to attain the standards and they include a requirement that
the State will implement all of the PM control measures which were
contained in the SIP before redesignation to attainment, then they can
be carried over into the area's maintenance plan.
Under a cover letter dated July 29, 1994, IEPA submitted a State
Rule to satisfy the contingency measures requirements specified in
section 172(c)(9) for the LaSalle County PM nonattainment area, among
others. This rule is eligible to also be used as the section 175(A)
contingency measures, because the State was able to attain the PM NAAQS
with the limitations and control measures already contained in
[[Page 41344]]
the SIP. On July 13, 1995, the EPA approved the rule into the Illinois
SIP in a direct final rulemaking (60 FR 36060), which became effective
on September 11, 1995. Also, Illinois' June 2, 1995, and January 9,
1996, submittal included a commitment by the State to take action to
reduce PM emissions when monitored 24-hour PM concentrations exceed 90%
of the NAAQS.
IV. Final Rulemaking Action
In this action, EPA is approving the State of Illinois' request to
redesignate the LaSalle County PM nonattainment area to attainment. The
EPA is also approving the maintenance plan for the LaSalle County PM
nonattainment area, which was submitted with the redesignation request
to ensure that attainment will be maintained. The EPA has completed an
analysis of this SIP revision request based on a review of the
materials presented and has determined that it is approvable because
all requirements for redesignation have been met as discussed above.
The EPA is publishing this action without prior proposal because
EPA views this action as a noncontroversial revision and anticipates no
adverse comments. However, EPA is publishing a separate document in
this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
October 7, 1996, unless EPA receives adverse or critical comments by
September 9, 1996. If EPA receives comments adverse to or critical of
the approval discussed above, EPA will withdraw this approval before
its effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in subsequent rulemaking. Please be aware that EPA
will institute another comment period on this action only if warranted
by significant revisions to the rulemaking based on any comments
received in response to today's action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, EPA hereby advises the public that this action
will be effective on October 7, 1996.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 9, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from Executive Order 12866 review.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. EPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
EPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the EPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the EPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The EPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the EPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
Because this final rule is estimated to result in the expenditure
by State, local, and tribal governments or the private sector of less
then $100 million in any one year, the EPA has not prepared a budgetary
impact statement or specifically addressed the selection of the least
costly, most cost-effective, or least burdensome alternative. Because
small governments will not be significantly or uniquely affected by
this rule, the EPA is not required to develop a plan with regard to
small governments. This rule only approves the incorporation of
existing state rules into the SIP. It imposes no additional
requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. (5 U.S.C. 603 and 604.)
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. EPA., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 7, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
[[Page 41345]]
Dated: July 3, 1996.
Valdas V. Adamkus,
Regional Administrator.
For reasons stated in the preamble, parts 52 and 81 of chapter I,
title 40 of the Code of Federal Regulations are amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart O--Illinois
2. Section 52.725 is amended by adding paragraph (d) to read as
follows:
Sec. 52.725 Control strategy: Particulates.
* * * * *
(d) Approval--On June 2, 1995, and January 9, 1996, the State of
Illinois submitted a maintenance plan for the particulate matter
nonattainment portion of LaSalle County, and requested that it be
redesignated to attainment of the National Ambient Air Quality Standard
for particulate matter. The redesignation request and maintenance plan
satisfy all applicable requirements of the Clean Air Act.
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.314, the table for ``Illinois PM-10'' is amended by
revising the table heading and the entry for ``LaSalle County'' to read
as follows:
Sec. 81.314 Illinois.
* * * * *
Illinois--PM-10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -----------------------------------------------------------------------------------------------------------------------
Date Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
LaSalle County October 7, 1996............. Attainment
Oglesby including the
following Townships,
ranges, and sections: T32N,
R1E, S1; T32N, R2E, S6;
T33N, R1E, S24; T33N, R1E,
S25; T33N, R2E, S30; T33N,
R2E, S31; and T33N, R1E,
S36
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 96-19888 Filed 8-7-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19511 Supervisory Committee Audits and Verifications
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41312-41326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19511]
=======================================================================
-----------------------------------------------------------------------
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 701
Supervisory Committee Audits and Verifications
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Credit Union Administration (NCUA) is amending
its regulations governing credit union supervisory committee audits and
verifications. The final amendments clarify existing audit scope;
expand audit scope and reporting requirements for compensated auditors
only; require a comprehensive engagement letter setting forth minimum
contracting terms and conditions; clarify existing working paper access
requirements; expressly state available administrative sanctions for
failure to comply with supervisory
[[Page 41313]]
committee audit requirements and working paper access requirements; and
add relevant definitions of accounting/auditing terms use throughout
the regulation.
EFFECTIVE DATE: December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Karen Kelbly, Accounting Officer,
Office of Examination and Insurance (703) 518-6360, or Michael McKenna,
Attorney, Office of General Counsel (703) 518-6540, at 1775 Duke
Street, Alexandria, Virginia 22314-3428.
SUPPLEMENTARY INFORMATION:
A. Background
Section 701.12 of NCUA's Regulations sets forth the supervisory
committee's responsibility in meeting the audit and verification
requirements of section 115 of the Federal Credit Union Act, 12 U.S.C.
Sec. 1761d. A supervisory committee audit is required at least once
every calendar year covering the period since the last audit. The scope
of the audit must be sufficient, at a minimum, to test the federal
credit union's assets, liabilities, equity, income, and expenses for
existence, proper cut off, valuations, ownership, disclosures and
classification, and internal controls. Section 741.202 of NCUA's Rules
and Regulations, 12 CFR 741.12, make these requirements applicable to
federally insured state-chartered credit unions.
NCUA continues to have concerns with the scope of the supervisory
committee audit and with access to working papers supporting such
audits. The Board felt there was a need to amend the regulation
because:
Many supervisory committee audits have been inadequate;
Examiners have been placed in the position of brokering
disputes between external auditors and supervisory committees relative
to audit inadequacy;
The standards supervisory committee have been held to are
not definitive;
Examiner access to ``proprietary working papers'' has been
limited;
Greater uniformity in audit scope is needed; and
The addition of definitions is needed to enhance clarity.
Consequently, on October 19, 1995, the Board issued proposed
amendments to the regulation governing credit union supervisory
committee audits and verifications (Section 701.12 of NCUA's
Regulations) 60 F.R. 55663 (November 2, 1995). On December 19, 1995,
the Board extended the comment period to January 18, 1996. 60 F.R.
66952 (December 27, 1995). The proposed amendments: (1) clarified
existing audit scope; (2) expanded audit scope and reporting
requirements for compensated auditors only; (3) required a
comprehensive engagement letter setting forth minimum contracting terms
and conditions; (4) clarified existing working paper access
requirements; (5) expressly stated available administrative sanctions
for failure to comply with supervisory committee audit requirements and
working paper access requirements; and (6) added relevant definitions
of accounting/auditing terms used throughout the regulation.
B. Comments
One hundred and eighteen comments were received. Comments were
received from sixty-nine federal credit unions, nine state chartered
credit unions, twenty-one state leagues, four national credit union
trade associations, eleven certified public accounting firms, one
internal auditor, one certified public accountant trade organization,
and one government agency. NCUA also received one anonymous electronic
mail.
Eight commenters express complete support for the proposal. Fifteen
commenters oppose the entire proposal. Twelve of these commenters
believe that the current system is working well and that the proposed
amendments will simply result in increased costs without any increased
service. Ninety-seven commenters express varied levels of support for
the proposal; however, most of these commenters had one or more
objections to the proposal. A recurring theme among these commenters
was that the proposal would hurt small credit unions. Another recurring
theme was that the proposed amendments, in effect, require an opinion
audit. Finally, a number of commenters believe the proposed amendments
would increase costs to credit unions.
The Board believes the final regulation reasonably balances the
concerns of those opposing additional burden for small credit unions
with the need for complete and reliable credit union audits. The Board
appreciates the obstacles small credit unions face when operating in
today's environment and does not wish to add to that burden
unnecessarily. The amendments to this regulation will not have a
significant impact on a credit union which meets its supervisory
committee audit obligations in any of the following ways:
The credit union's supervisory committee performs the
audit itself.
The credit union's internal auditor performs the audit.
The supervisory committee recruits a member or volunteer
who performs the audit (i.e., the member or volunteer is not in the
business of performing compensated audits for credit unions).
The supervisory committee obtains an opinion audit.
If the supervisory committee itself or its uncompensated designated
representative performs the supervisory committee audit as prescribed
in Sec. 701.12(c)(5)(i)(D), the following portions of the proposed
regulation will not apply to the supervisory committee audit:
Sec. 701.12(c)(4)--Increased scope requirements in
designated areas;
Sec. 701.12(c)(5)(i)(A-C)--Opinion audits and agreed-upon
procedures in relation to compensated auditors; and
Sec. 701.12(d)--Engagement letter requirements.
Additionally, NCUA will revise its Supervisory Committee Guide for
Federal Credit Unions for targeted release prior to December 31, 1996.
The revised Guide will provide guidance to assist a supervisory
committee itself or its uncompensated designated representative in
meeting the applicable requirements of this regulation.
If the supervisory committee employs an auditor who is defined as a
``compensated auditor'' to perform (or assist in performing) the audit,
the following additional requirements will be necessary:
An engagement letter between the credit union and the
compensated auditor;
Expanded audit scope in certain areas if the compensated
auditor is engaged to address, and agrees to take on, these areas; and
Notification in writing of reportable conditions or errors
and irregularities, if any, discovered in the normal course of the
audit.
------------------------------------------------------------------------
SC Audit performed by
---------------------------------------
Supervisory
Requirement addressed committee or
designated non- Compensated
compensated auditor
auditor
------------------------------------------------------------------------
Engagement Letter............... No engagement Engagement letter
letter required.
requirement.
[[Page 41314]]
Scope........................... As exists under As exists under
current current
regulation. regulation, plus
expanded scope in
identified
areas.1
Testing/Procedures Performed in Regulation Regulation
Accordance With. identifies identifies
specific specific
standards which standards which
apply. apply.
Reporting Standards............. As exists under As exists under
current current
regulation. regulation, plus
``reportable
conditions,'' if
any, and ``errors
and
irregularities,''
if any, simply
``reduced to
writing''.1
------------------------------------------------------------------------
1 Distinguishable from an opinion audit because the following are not
required: full scope of opinion audit, financial statements, related
disclosures, auditor's opinion, or negative assurance.
Comments Relating to Current Sec. 701.12. Throughout the comment
letters of accounting/auditing professionals were a series of comments
addressing conditions which apply equally to the current and to the
revised Sec. 701.12. These include:
1. Auditing work should not be performed by lay individuals; CPAs
alone have the professional proficiency to perform audits.
2. The proposed regulations put CPAs at an economic disadvantage to
compete in the credit union marketplace. A CPA performing a supervisory
committee audit would be bound by the professional auditing standards
promulgated by AICPA and the State Board of Accountancy, while a non-
CPA is not so burdened. CPA would not be able to charge fees
competitive with (i.e., as low as) that of non-CPA.
3. CPAs are concerned about the ability of non-CPA examiners to
review CPA's work.
4. CPAs may limit themselves to performing only opinion audits for
credit unions. A new auditing standard, Statement of Auditing Standard
(SAS) No. 75, governing agreed-upon procedures engagements requires
users of agreed-upon procedures reports to acknowledge the sufficiency
of such procedures in satisfying the requirements of the specified
user. If the CPA cannot get the specified user to do this (in advance
of the engagement), then the only work a CPA could perform for a
specified user would be an opinion audit. The thrust of this comment is
that NCUA would qualify as a ``specified user'' and would, therefore,
have to acknowledge the sufficiency of the procedures prior to each
credit union's engagement of a CPA.
Each of these comments applies equally to the current regulation
and the amended version being issued as a final rule; they are not
exacerbated by the amendments. The source of some of the conditions
addressed in the comments is not, if fact, any action by NCUA, but
rather, exists due to the actions of others. The first three
conditions, which we will address first, are relatively straight-
forward; the SAS No. 75 issue is more complex and is addressed in
section K.
The first condition will exist as long as NCUA allows auditors
other than licensed, independent certified public accountants to
perform supervisory committee audits. Since the NCUA Board is committed
to allowing credit union supervisory committees the option to engage
non-CPA accounting/auditing professionals, there can be no ready
resolution of this concern either under the current or the amended
final regulation.
As to the second area of concern, that CPAs are bound by
professional standards imposed by state licensing authorities and by
the AICPA (e.g., education, proficiency, peer review, AICPA
professional ethics, GAAS, etc.), while non-CPAs are not, this is not
the result of any additional requirements imposed by NCUA. The NCUA
Board has no jurisdiction over the imposition of auditing standards
governing the work of CPAs. The only way to ``regulate away'' the
purported ``economic disadvantage'' the CPAs would be to limit the
performance of supervisory committee audits to licensed, independent
certified public accountants. This would create an ``economic
disadvantage'' as to all other types of auditors, particularly those
who audit small credit unions. The NCUA Board does not believe this is
a viable solution.
Third, examiners review the work of compensated auditors for
compliance with this section. Wherein such examination requires the
non-CPA examiner to review compensated auditor's work for compliance
with GAAS and a deficiency is suspected, NCUA recognizes it is not an
authority on GAAP or GAAS. Referral to state accountancy licensing
authorities or the AICPA Ethics Division, where applicable, will be
NCUA's means of seeking assistance to make such determinations. NCUA is
sympathetic to the argument that non-CPAs do not have the knowledge and
proficiency necessary to determine the extent of substantive testing
required under GAAS, but it believes they can do so under this section
which is a lesser, and regulatory defined, standard.
As to the fourth area of comment, this area is somewhat more
perplexing. We have discussed SAS No. 75 and related issues in section
K. Suffice it to say here that this condition exists as a result of the
new auditing standard promulgated by auditing standards-setters which
became effective May 1, 1996. The condition exists under the current
regulation and was not created or aggravated by any NCUA effort to
amend this regulation. The timing of the SAS No. 75 effective date and
NCUA's efforts to revise this part are coincidental.
Areas Seemingly Misunderstood. The comment relative to ``burden on
small credit unions'' are believed to have resulted primarily from a
misunderstanding of the proposed amendments. Such comments made
include:
The regulations essentially require an opinion audit.
Audit scope will have to be expanded substantially to
generate the two additional reports required.
Working paper access requirements will generate increased
travel and credit union staff costs.
Each of these areas are discussed at length below.
C. Definitions
The proposal added a set of definitions for terms used in the
regulation. Many of these terms, while familiar to accounting/auditing
professionals, may be less well know to supervisory committee
volunteers. The proposed definitions included: (1) Agreed-upon
procedures; (2) Applicable generally accepted auditing standards
(GAAS); (3) Audit or Opinion audit; (4) Compensated auditor; (5)
Financial statements; (6) Generally accepted
[[Page 41315]]
accounting principles (GAAP); (7) Generally accepted auditing standards
(GAAS); (8) Independence or Independent; (9) Independent, licensed,
certified public accountant; (10) Internal controls; (11) Other
comprehensive basis of accounting; (12) Related party transactions;
(13) Reportable conditions; (14) Substantive testing; (15) Supervisory
committee; (16) Supervisory committee audit; and (17) Working papers.
The NCUA Board also requested comment on whether any additional terms
should be defined in the regulation.
Eight commenters believe no further terms should be defined while
three commenters believe the final amendments should define additional
terms. One commenter requests a definition of ``verifications.'' One
commenter requests NCUA define ``summary of operations'' One commenter
believes NCUA should define ``internal auditor'' and ``Standards for
the Professional Practice of Internal Auditing.'' Thirteen commenters
believe that the proposal adequately defined the terms listed. Three of
these commenters state that the definitions are valuable to credit
unions. Four commenters believed that the proposal does not adequately
define the listed terms.
Generally, if several commenters suggested redefinitions along the
same lines and the suggested language was technically correct, the
final regulation reflects the revised language. Definitions for
``internal auditor'' and ``Standards for the Professional Practice of
Internal Auditing'' were not added as neither of these terms are used
anywhere in the regulation. A definition for ``verifications'' was not
added since it is defined and discussed fully in the existing
regulation, Sec. 701.12(e). ``Summary of operations'' is simply a
phrase which was used within the ``financial statements'' definition
which is not critical to an understanding of the definition or the
regulation; this phrase was dropped. One definition was added and that
was the SAS No. 75 definition of ``specified elements, accounts or
items of a financial statement.''
The definition of ``applicable GAAS'' and the use of that term was
dropped throughout the regulation. In the proposed regulation, we had
defined ``applicable GAAS'' as GAAS excluding the second general
standard and the standards of reporting. In the final regulation, we
dropped the term ``applicable GAAS'' and instead spelled out five
specific standards, contained in paragraph (c)(2). The five standards
were adopted with modifications from the AICPA's ten generally accepted
auditing standards, again excluding the second general standard and the
standards of reporting. The Board believes that the use of the term
``applicable GAAS'' may intimidate laymen; spelling out the specific
standards intended should help eliminate any apprehension. The Board
believes these standards are reasonable and attainable.
The proposal defined ``audit or opinion audit'' in part, as an
examination of the financial statements performed by an independent,
licensed, certified public accountant in accordance with generally
accepted auditing standards. One commenter believes that this
definition must be modified. This commenter states that an ``audit''
and an ``opinion audit'' are not the same thing, and not all credit
unions need an opinion audit which is performed by an ``independent,
licensed, certified public accountant.'' One commenter states that
since the definition applies to the word ``audit'' alone it is unclear
if this requirement applies everywhere in the regulation where the term
is used. For example, this commenter states that ``Supervisory
Committee Audit'' could mean an ``audit'' by a CPA, which the commenter
believes is beyond the scope of what NCUA is requiring with this
proposal. This commenter suggests restricting the definition to only
``opinion audits.'' One commenter states that there is an inconsistency
between the definition of ``audit'' or ``opinion audit'' and the
proposed supervisory committee audit in Section 701.12(c). This
commenter states that the definition states an audit is to be performed
by an independent, licensed, certified public accountant; whereas
Section 701.12(c) provides other alternatives in the completion of an
audit and specifically provides that someone other than a certified
public accountant such as the supervisory committee may conduct audits.
Within the accounting profession and as represented in GAAS,
``audit'' is the term used for an ``opinion audit''. In fact, ``opinion
audit'' is jargon for ``audit''; the terms are synonymous. However,
since the use of the term ``audit'' in the regulation without an
accompanying adjective such as ``opinion'' or ``supervisory committee''
was confusing to some of the commenters, we have eliminated the
definition of ``audit,'' narrowed the definition to ``opinion audit''
and use only the term ``audit'' (when used as a noun) throughout the
regulation preceded by descriptive terms, e.g., opinion audit, or
supervisory committee audit. As to the alternatives set forth in
Sec. 701.12(c), these relate to the performance of a supervisory
committee audit. The scope of an opinion audit exceeds that a
supervisory committee audit. Thus, an opinion audit which complies with
GAAS, would exceed the requirements of the regulation.
The proposal defined a ``compensated auditor'' as any accounting/
auditing professional who is compensated for performing the supervisory
committee audit and/or verification services. Thirteen commenters
believe that the term ``compensated auditor'' should be revised so as
to distinguish between the credit union's internal auditor and the
credit union's contracted external auditor. These commenters believe
the proposal could be interpreted so that a compensated auditor is
defined as an accounting or auditing professional who is employed
directly by the credit union. Two commenters believe that the term
``compensated auditor'' should not include someone who simply lends a
hand to the supervisory committee in completing the audit. Two
commenters believe that external auditors should be licensed
professionals (such as CPAs) to ensure that audits are detailed and
reflect the actual financial condition of the institution.
The Board found the comments in this area helpful and has amended
the definitions in response to some of the suggestions. It is not the
Board's intent to include credit union employees acting in the course
of their employment (internal auditors) or someone who simply lends a
hand (volunteer). Nor is the Board comfortable with restricting the
performance of supervisory committee audits to licensed professionals.
The definition has been changed to exclude employees and to exclude
individuals who perform no more than one compensated supervisory
committee audit per calendar year. The later provision was added to
ease the burden for small credit unions who may benefit through the
assistance of a volunteer, someone who simply lends a hand, e.g., the
local bookkeeper who, while compensated, performs the supervisory
committee audit (one per calendar year) for a minimal and reasonable
remuneration.
The proposal defined generally accepted auditing standards (GAAS)
in part as the standards approved and adopted by the American Institute
of Certified Public Accountants which apply when ``independent,
licensed certified public accountants'' audit financial statements. One
commenter believes this definition will substantially increase the
costs of audits for smaller credit unions that do not use a CPA. One
commenter believes that the definition implies that a CPA is bound
[[Page 41316]]
by GAAS but non-CPAs are exempted from certain provisions and that this
is unfair to the CPA. One commenter states that the definition does not
identify which items of GAAS do not apply to the supervisory committee
or its uncompensated auditor.
In the final regulation, the Board has eliminated the use of the
term ``applicable GAAS'' and refers to GAAS only once in the final
regulation--in paragraph (c)(4), in conjunction with expanded scope for
compensated auditors. The term ``applicable GAAS'' appeared to
intimidate many commenters. The Board has replaced this approach by
listing five relevant standards in the body of the regulation. The
standards were adopted with modifications from the AICPA's ten
generally accepted auditing standards, again excluding the second
general standard and the standards of reporting. Procedures and testing
performed consistent with the five identified standards are required
for credit union supervisory committees, whether they hire a
compensated auditor or not. Scope of work within the guidelines of the
regulation, and degree of substantive testing (nature, extent and
timing), are set by the supervisory committee or its designated
representative based on its assessment of inherent risk, after gaining
an understanding of the internal control environment. This approach
does not bind a supervisory committee or its designated representatives
to those requirements of GAAS which are definitionally unattainable,
e.g., certain GAAS provisions a non-CPA cannot meet by virtue of the
fact that he is not a CPA.
There is no additional burden imposed in redefining the standard
supervisory committees must meet in the performance of procedures and
testing. By eliminating the term ``professional auditing procedures and
standards'' which is non-specific, and replacing it with a listing of
the five specific, relevant standards, the Board is issuing clearer
standards. The amendment will not substantially increase burden on
small credit unions because the regulation clearly does not require a
CPA opinion audit, neither in scope of work nor reporting burden. There
is no requirement for financial statements to accompany the report; no
opinion is necessary; and negative assurance is not required. Since
many of the commenters misunderstood certain provisions of the proposed
regulation, their estimates of burden were based on a scope of work and
reporting requirements substantially greater than what was actually
proposed and/or intended. An additional burden exists only in the area
of audit scope (not reporting) when the work is performed by a
compensated auditor. While there is increased burden to some credit
unions resulting from this requirement, the Board believes it is
necessary and minimal.
The proposal defines ``independence and independent'' as ``without
bias with respect to the credit union so as to maintain the
impartiality necessary for the reliability of the compensated auditor's
findings. Independence requires the exercise of fairness toward credit
union management, members, creditors and others who may rely upon the
independent, compensated auditor's report. Auditors must be independent
in fact and in appearance.''
Eighteen commenters believe that this definition may pose problems
for state leagues because some leagues are owned by credit unions for
which the league provides audit services. These commenters request that
the definition be clarified because they believe if the proposed
definition of ``independence'' is strictly applied it could put league
audit services out of business. They request that the preamble to the
final amendments specifically state that league auditing programs are
considered independent under the regulation. Seven commenters believe
that a league audit is considerably cheaper than an audit by an
accounting firm and if the state league was prohibited from doing the
audit it would result in increased costs to credit unions. Some
commenters also believe this definition should not be construed to mean
that only CPAs could perform audits for credit unions. Several
commenters recommend deleting the following sentence from the
definition: ``Auditors must be independent in fact and in appearance.''
NCUA has revised the definition for ``independence'' to exclude the
following: ``without bias with respect to the credit union'' and
``Auditors must be independent in fact and in appearance.'' Further, it
is not the Board's intent to exclude league auditing services from
performing supervisory committee audits or to require such services to
use report terminology reserved by state laws specifically for CPAs.
The Board is persuaded, however, that to be considered independent,
league auditors must be independently managed. League auditors will not
be considered independent in providing supervisory committee audits for
a credit union if the credit union to be audited has an executive/
employee on the affiliated league board who influences board decisions
relative to the league auditing service. League auditors would be
considered independent if the executive/employee on the affiliated
league board recuses himself from all discussions, decisions, or
actions directly or indirectly related to the league auditing service/
department/function and/or meeting any requirements of this section.
Additionally, the recusal must be documented in the written board
minutes. Another alternative would be for reciprocity of league
auditing services between leagues and credit unions subject to this
restrictive interpretation. A third alternative would be for the league
auditing service to periodically obtain a peer review from another
league auditing service, similar to current practice for AICPA-
affiliated, CPA firms in public practice. Such a peer review would
provide a reasonably independent quality review of the league auditing
service's compliance with required auditing standards in the
performance, documentation, and reporting of auditing services provided
to federally-insured credit unions. The written peer review report
would be available to NCUA, upon request, in conjunction with the
examination of a particular credit union's supervisory committee audit
and verification.
The proposal defined ``internal controls'' in part as the process,
established by the credit union's board of directors, officers and
employees designed to provide reasonable assurance of reliable
financial reporting and safeguarding of assets against unauthorized
acquisition, use or disposition. Furthermore, this definition stated
that a credit union's internal control structure consists of five
components: control environment; risk assessment; control activities;
information and communication; and monitoring. One commenter states
that this definition could result in a decrease in testing of internal
control structures.
The supervisory committee's responsibilities with regard to
internal controls is clearly set forth in Sec. 701.12(b)(2)(i) and
(c)(2). The compensated auditor's further responsibility with regard to
internal controls is set forth in Sec. 701.12(c). The proposed and
final regulation does not decrease the amount of testing of internal
control structures than is required in the existing regulation, nor
does it drastically expand required testing. The Board intends that the
supervisory committee attain an understanding of the internal control
structure; assess the level of control risk; and based thereon,
determine the nature, timing, and extent of substantive testing
necessary to comply with the
[[Page 41317]]
minimum supervisory audit scope. The materiality level the supervisory
committee chooses to govern scope and testing must encompass reasonable
tests of the internal control structure commensurate with the size and
complexity of the credit union under audit. Choosing a materiality
level which results in no reasonable testing of internal controls would
not be acceptable. Expanding audit scope to achieve a complete audit of
the credit union's system of internal controls (commenter terms this
``full compliance audit'') is not intended. The Board is simply seeking
the extent of internal control testing which is normal in the audit of
financial statements. The distinction would be clear to accounting/
auditing professionals; it may be less so to supervisory committee
member volunteers.
The proposal defined ``related party transactions'' as transactions
among or between parties where one party controls or can significantly
influence the management or operating policies of the other so as to
prevent the other party from pursuing exclusively its own interests.
The proposals provided the following examples of related parties:
credit union members and their families, and credit union officials and
their families. The proposal also stated that examples of ``related
party transactions'' include: interest-free loans or loans at below
market rates; sale of real estate significantly below appraised value;
nonmonetary exchange of property; and making of loans lacking scheduled
terms for repayment. Three commenters believe the definition of
``related party transactions'' should include examples of related
parties similar to those used in the preamble rather than those
provided in the proposed definition. Two commenters believe that the
examples of related parties in the definition is vague and obscures the
meaning of the term.
The definition of related parties has been changed to eliminate
credit union members and their families and to add examples of related
parties to include: executive management, board members, supervisory
committee members, credit committee members, employees and their
families.
The proposal defined ``supervisory committee audit'' in part as an
examination of the credit union's financial statement in accordance
with applicable GAAS, which is performed by the supervisory committee
or its designated representative as required by the regulation.
Furthermore, the last sentence of the definition stated that an opinion
audit as defined by this regulation satisfies the definition of
``supervisory committee audit.'' One commenter states that the
supervisory committee responsibilities need to be specifically defined,
as well as any sanctions or penalties, if any, that may be assessed and
how they will be determined. One commenter states that the last
sentence of this proposed definition should be eliminated. One
commenter states that this definition implies that a supervisory
committee audit must be undertaken by a certified public accountant.
This commenter suggests NCUA use ``supervisory committee review''
instead of ``supervisory committee audit'' to clarify this issue.
The Board changed the definition of ``supervisory committee audit''
to drop the ``applicable GAAS'' reference, consistent with the addition
of paragraph (c)(2) detailing five specific standards which must be met
in the conduct of the supervisory committee audit. We continue to
include the last sentence in the definition but have revised it to
indicate that an opinion audit is one of several ways to satisfy the
requirements of the regulation. It is a misinterpretation of the
proposed regulation to conclude that a supervisory committee audit must
be undertaken by a certified public accountant. The Board continues to
use the term ``supervisory committee audit'' because this is how the
function is identified in the Federal Credit Union Act. The Board is
satisfied that the final regulation clearly defines the supervisory
committee responsibilities, short of providing a written audit program.
Available sanctions and penalties are those that are normally available
to NCUA in dealing with regulatory non-compliance as granted throughout
the Federal Credit Union Act and administered through the NCUA's
Regulations.
The proposal defined ``working papers'' in part as the principal
record, in any form, of the work performed by the auditor and/or
supervisory committee to support its findings and/or conclusions
concerning significant matters. The definition provided the following
examples of documents that meet this definition: the written record of
procedures applied, tests performed, information obtained, and
pertinent conclusions reached in the engagement, audit programs,
analyses, memoranda, letters of confirmation and representation,
abstracts of credit union documents, reviewer's notes, if retained, and
schedules or commentaries prepared or obtained by the independent,
compensated auditor. One commenter specifically supports this
definition. Several commenters believe that although they agree with
the ``working papers'' definition, they do not agree that all of the
examples of working papers cited therein meet the definition. They
believe that all of the auditors' memoranda, personal notes, and
commentaries do not make up the principal record of the work performed.
They suggest references to these items be eliminated from the list of
examples provided in the definition of working papers. One commenter
believes the definition is so extensive that it may discourage the
compilation of notes and other internal memoranda, to the detriment of
the credit union having a thorough audit.
The Board believes that, in the past, accounting/auditing
professionals have afforded themselves broad license in determining
what they will provide to NCUA staff in the way of working papers. This
situation has resulted through a wide interpretation, by some
compensated auditors, of what constitutes ``proprietary information.''
The Board is persuaded that such discretion needs to be limited. NCUA
staff needs access to a complete set of working papers. The Board
believes much of what compensated auditors have held back as
``proprietary'' is integral to NCUA staff in assessing if the audit
meets regulatory requirements. Requiring full access to existing
working papers should in no way discourage the compilation of notes and
other internal memoranda, to the detriment of the credit union having a
thorough audit. The standards requiring working paper documentation is
not changed, lessened or strengthened by this final regulation which is
simply seeking full disclosure to NCUA staff of existing working paper
information. Photocopies are not required.
D. Expanded Audit Scope
The proposed amendments expanded the required audit scope when a
supervisory committee employs the services of a compensated auditor.
The Board proposed the changes to address practical enforcement
problems in the existing regulation, some of which have arisen through
the examination process as a matter of course and others of which have
arisen in litigation and in negotiating settlements. Additionally the
changes were intended to eliminate vagueness regarding the required
audit scope as well as improving supervisory committee audits. The
vagueness of audit scope has been the subject of complaints from both
credit unions and examiners.
The Board proposed that the supervisory committee audit shall be
made by the supervisory committee or
[[Page 41318]]
its designated representative using applicable GAAS. Furthermore, the
Board proposed that for the compensated auditor, audit testing of the
following areas must satisfy applicable GAAS for expressing an opinion
on the financial statements taken as a whole: internal controls, cash,
loans and interest thereon, shares and dividends and/or interest
thereon, related party transactions, and the detection and reporting of
errors and irregularities with regard to each of these areas.
Three commenters specifically support the new audit scope. Two
commenters believe the clarification eliminates any possible confusion
regarding the overall requirements of the audit. One commenter
recommends that this section be revised to state that the supervisory
committee shall determine whether the established internal controls are
sufficient to identify/detect material errors and fraud. The Board does
not believe it is necessary to revise this section to include the
suggested language because the responsibilities of the supervisory
committee with regard to ``internal controls'' and ``error,
carelessness, conflict of interest, self-dealing and fraud errors and
irregularities'' are already set forth.
Seventeen commenters believe a compensated auditor should follow
GAAS. Two of these commenters believe credit union auditors should be
held to the same high standards as auditors in other industries. One of
these commenters stated that GAAS is the acceptable standard for all
audits. One of these commenters believes that a compensated auditor
should be required to follow GAAS but it should not be required by
regulation. One supporting commenter believes that this amendment will
have numerous unintended consequences, one of which will result in
requiring any audit performed by a CPA to be an opinion audit. This
commenter also believes the proposal could harm small credit unions by
having them seek less qualified individuals.
As addressed above, the Board does not wish to require an opinion
audit for credit unions. To require compensated auditors to meet GAAS
in scope of work, audit testing and reporting would be to require an
opinion audit by a licensed, independent certified public accountant.
The Board believes adopting the five specific standards set forth in
the final regulation is preferable to the existing rule's reference to
``professional auditing procedures and standards''; the former is
specific while still allowing for reasonable judgment, the later is too
vague. And while the expanded audit scope may slightly increase costs
to some credit unions, the Board believes this burden is reasonable and
necessary in light of the substandard audits NCUA found in some credit
unions.
Twenty commenters believe compensated auditors should not be
required to follow GAAS. One of these commenters believes that it
appears to have the practical effect of requiring the performance of an
opinion audit, except the actual issuance of an opinion, whenever an
outside auditor is used. Six of the commenters believe such a
requirement will increase credit union costs. Three commenters believe
this requirement will hurt small credit unions. One commenter believes
that the proposed GAAS requirements could result in small credit unions
employing CPAs to perform the audit and could discourage members from
volunteering to serve on the supervisory committee. In the final
regulation, a standard far short of GAAS is being required. Five
specific standards governing performance of the work are set forth in
the final regulation. Financial statements are not necessary, an
opinion or attestation is not required, negative assurance is not
sought, and GAAS reporting standards do not have to be met, paragraph
(c)(4). Only compensated auditors are being held to GAAS-level scope
and testing (not reporting), and then, only in selected risk areas. We
continue to believe that the increased burden estimates were based on a
misunderstanding of proposed regulatory requirements.
One commenter states requiring non-CPA auditors to meet CPA
standards is tantamount to requiring CPA audits. Another commenter
states that league auditors are not allowed by AICPA rules to use the
terms GAAS and GAAP in their audit reports. Furthermore, the commenter
states that if these terms are required it will mean that only CPAs
could audit credit unions which would prohibit league audits as well as
increase credit union costs. The proposed and final regulations do not
require non-CPAs to use GAAS and GAAP references or language in
supervisory committee audit reports. In the proposed regulation the
definition of ``applicable GAAS'' excluded the ``standards of
reporting.'' The final regulation continues to exclude these reporting
standards. The relevant standards governing performance of work have
been more specifically identified in the final regulation in paragraph
(c)(2).
One commenter believes that NCUA should determine what additional
procedures should be performed, if any, on a credit union by credit
union basis, rather than requiring all compensated auditors to complete
an expanded scope. Another commenter also states that NCUA should not
require expanded scope for all credit unions. It is not practical for
NCUA to determine what additional procedures should be performed, if
any, on a credit union by credit union basis, thus this alternative of
requiring the supervisory committee or its designated representative to
attain an understanding of the internal control environment, assess
control risk, and based thereon, determine the extent of substantive
testing necessary to meet the requirements of this section. The
guidelines NCUA primarily will use in assessing the adequacy of the
expanded scope under paragraph (c)(4) will be the AICPA's guide,
``Audits of Credit Unions'', relevant chapters, subheading ``Audit
Objectives and Procedures'' where discussions are provided on audit
objectives, planning considerations, internal control structure, tests
of controls, and substantive tests. The expanded scope in selected,
identified areas for all credit unions that employ a compensated
auditor should contribute to improved consistency and uniformity.
One commenter believes the proposed amendments impose different and
higher standards for supervisory committee audits conducted by
compensated auditors than those performed by supervisory committees or
uncompensated auditors. Two commenters believe the proposed amendment
is an attempt to permit non-CPAs to perform the work of CPAs when
auditing credit unions. Both commenters believe that this poses an
increased risk of substandard audits which will fail in detecting
serious accounting deficiencies and internal control weaknesses.
Another commenter believes a non-licensed accountant attempting to
comply with the regulation may be violating state accountancy law by
performing duties which can only be performed by a licensed CPA.
Another commenter does not believe it is realistic or feasible to
require volunteer supervisory committee members to comply with a
complex body of standards that require significant education and
training to understand.
While the Board appreciates the seemingly unfairness of imposing a
different and higher standard for supervisory committee audits
conducted by compensated auditors than for those performed by
supervisory committees or uncompensated auditors, the Board must be
realistic in
[[Page 41319]]
recognizing that imposing an expanded scope requirement for supervisory
committee audits performed by layman would be to invite certain
disappointment. NCUA will need to review supervisory committee audits
for thoroughness and sufficiency, and recommend needed supplemental
procedures and testing to enhance the effectiveness of the audit
process. Furthermore, for those supervisory committees that continue to
perform the audit and/or verification themselves, where the credit
union's sophistication and complexity have grown beyond the
capabilities of the resident supervisory committee and its staff, it
will be incumbent upon NCUA to recognize the deficiencies in the audit
which diminish the committee's usefulness in the oversight process
assigned it under Sec. 701.12. NCUA has significant flexibility under
Sec. 701.13 of NCUA's Regulations, through FIRREA, to call for the
conduct of a second audit, one which will fulfill the intended
objectives of this regulation. The requirement for a second audit would
add burden since it must be performed by an independent public
accountant.
E. Engagement Letter Requirement
The Board proposed to require credit unions which employ
compensated auditors to memorialize the terms and conditions of the
engagement in a comprehensive engagement letter, which constitutes an
enforceable contract between the compensated auditor and the
supervisory committee. The proposal also set forth the minimum
requirements of an audit engagement to be addressed in such a letter.
The Board made this proposal to further reduce the confusion for
required scope components that are excluded from the audit engagement.
Thirty-eight commenters support this proposal. Fourteen of these
commenters believe the requirements for an engagement letter should
adequately protect the interests of the supervisory committee. Five
commenters believe the engagement letter will formalize the
expectations of the supervisory committee. Four commenters believe that
this proposal would eliminate any misunderstandings between the
supervisory committee and the auditing firm. One commenter supports the
requirement to provide an appendix to the engagement letter specifying
the procedures to be performed.
Seven commenters believe it should be left to the discretion of the
credit union to determine what specific details should be included in
the engagement letter. Conversely, two commenters believe that NCUA
should produce a form engagement letter in the final rule. In current
practice, the engagement letter has been written primarily by the
compensated auditor, for the compensated auditor. Many credit unions
have signed the engagement letters thus drafted without a real
knowledge or understanding of what specific details should be included.
Through the engagement letter requirement, the Board hopes to help
credit unions in its business dealings with the professional auditor.
The regulation sets forth minimums; the credit union has full
discretion to include other provisions.
The compensated auditor has the option to exclude from his scope of
work any areas for which he is uncomfortable/unwilling to perform the
expanded audit scope, if such exclusion is agreeable to his credit
union client. He is obligated then only to caution the supervisory
committee in the engagement letter that the supervisory committee will
remain obligated to perform or have performed this required but
excluded work. As concerns areas excluded from the audit engagement,
simple, general statements, such as is demonstrated in the current
AICPA Guide, Audits of Credit Unions, illustrative engagement letter,
with the added caution required in the rule, Sec. 701.12(d)(3)(i)(C),
is the minimum NCUA is seeking. For example, ``The scope of this audit
* * * does not include an evaluation of all areas that generally are of
higher risk in the credit union industry, such as securities held or
the collectibility of loans, the adequacy of collateral thereon, or the
reasonableness of the allowance for loan losses,'' plus cautionary
language required consistent with this section.
Five commenters stated that the requirement in the proposal that
the engagement letter specify a date of delivery of the written audit
report is unrealistic. They believe that the auditor can not complete
the audit if the required information is not available. One commenter
believes this requirement puts undue pressure on the auditor. One of
these commenters stated that we should not require an exact delivery
date but rather a ``target'' delivery date. The Board agrees with this
commenter. Delivery date has been changed to ``target date of
delivery.'' The intent is to provide the auditor with flexibility in
dealing with unforeseen events while providing NCUA with a target date
for receiving the report.
Nine commenters do not believe NCUA should require a formal
engagement letter. One commenter believes that the requirement for an
engagement letter will not adequately protect the interests of the
supervisory committee. One commenter states this should not be a
regulatory requirement since most credit unions already use an
engagement letter. One commenter states that the use of an engagement
letter is a management decision. One commenter believes the additional
cost for this separate letter far outweighs the perceived benefit. Two
commenters believe regulating the content of an engagement letter is
unnecessary. One commenter states that the criteria and the matter to
be included in the engagement letter as outlined by SAS 75 address
questions concerning the conditions for engagement preference, the
sufficiency of procedures, the nature, timing and extent of procedures
and will address issues that may arise between the auditor and the
supervisory committee.
The NCUA Board believes the engagement letter requirement will
protect the credit union, will compel communication concerning the
audit engagement, and will provide all parties with an enforceable
contract and a documented record of accountability which hopefully will
preclude NCUA from brokering disputes between the credit union and the
compensated auditor. Credit unions are free to include any additional
criteria, conditions, terms in the engagement letter beyond those
required (such as those additionally outlined in SAS No. 75); again,
the regulation is suggesting the minimum requirements. The final
amendment reflects engagement letter requirements, generally as
proposed, with the addition of target date of delivery, and working
paper retention requirements for 3 years from the date of the audit
report.
F. Requirement for a Written Report of Internal Control Exceptions or
Reportable Conditions and a Written Report of Irregularities or Illegal
Acts
The proposed amendments required written reports of any internal
control exceptions or reportable conditions noted and of any
irregularities or illegal acts noted. Eighteen commenters support the
requirement to report on internal controls and possible illegalities.
Ten commenters state that requiring these reports will not increase the
cost of a supervisory audit. Two commenters, although supporting the
requirement, believe it will increase credit union costs. Three
commenters state that the information in the reports is already
available in some form of report. We agree the information is already
available as a result of performing the supervisory committee
[[Page 41320]]
audit, but current requirements do not mandate written communication.
Thirty-seven commenters oppose this requirement. Twenty-six
commenters state that requiring these reports will increase the cost of
supervisory committee audits. Five commenters wondered why the auditor
cannot simply report any such findings in their normal report to the
supervisory committee instead of creating two new reports. This option
is agreeable to NCUA; we are simply seeking such information be
``reduced to writing.'' Three commenters believe that no report should
be required if no internal control exceptions, reportable conditions or
irregularities or illegal acts were noted. This is also agreeable to
NCUA; we are not seeking negative assurance. One commenter states that
auditors that find problems during the scope of their normal audit
already comment on internal controls and fraud when appropriate in the
audit report to the credit union. Not necessarily; CPAs are not
required to communicate such matters in writing. One commenter states
that one report should be able to handle both issues. The Board agrees
and the final regulation reflects this.
Two commenters believe this requirement will hurt smaller credit
unions since they usually have weaker controls due to small staffs.
This requirement was not added to ``hurt smaller credit unions,'' but
often these are the very credit unions where efforts are needed to
bolster internal controls. One commenter states that the requirement to
have the compensated auditor report on internal control and fraud may
not be valid for all credit unions. This commenter believes that credit
unions having an internal audit function should be exempted from this
requirement to avoid duplication of efforts and costs. The internal
audit function could be the means by which the supervisory committee
chooses to comply with this section.
This was one of the most misunderstood proposed amendments to the
regulation. NCUA is simply asserting that any instances of reportable
conditions or errors and irregularities which are identified in the
normal course of a supervisory committee audit, be reduced to writing.
Currently, while such information must be reported, GAAS does not
require this information to be in writing. Without written
communication of these items, NCUA has limited assurance of gaining
knowledge of the auditor's observations in these areas, unless the
credit union provides notification voluntarily.
NCUA does not expect or require any negative assurance; no report
is required if internal control exceptions, reportable conditions or
irregularities or illegal acts were not noted. In many supervisory
committee audit reports prepared by compensated auditors other than
CPAs under existing guidelines, such internal control and fraud
problems/weaknesses uncovered during the scope of their normal audit
are already commented upon, when appropriate, in the audit report to
the credit union. This practice continues to meet regulatory
requirements under the final regulation.
NCUA has no preference whether the auditor prepares one report
including this information, two reports or three; what matters is that
the information is reduced to writing. NCUA does not expect supervisory
committees to direct audit scope at discovering such problems. Nor is
NCUA seeking a specific report on the control structure and any
breaches of that structure or to specifically note the absence or
presence of any irregular or illegal act; NCUA recognizes this would
require a substantially different level of audit than heretofore has
been required. The NCUA Board believes it is possible that those who
argued ``burden to small credit unions'' in this reporting aspect
misunderstood the intended reporting requirements in this instance, and
mistakenly magnified cost estimates accordingly.
G. Clarification on Access to Original Working Papers
The proposal clarified that NCUA has unconditional access to a
complete set of original working papers including all the existing
documentation relative to the audit. Such access would be either at the
offices of the credit union or at a mutually acceptable location.
Thirty-four commenters provide varying support for the clarification.
Sixteen commenters believe that unconditional NCUA access to original
working papers is not overly burdensome and intrusive. Six commenters
do not believe unconditional access to working papers will cause an
increase in administrative and other expenses. One commenter believes
that such access to original working papers will assist NCUA in its
exams and that the clarification makes good business sense. Five
commenters state that it is important to maintain the confidentiality
of the working papers. NCUA appreciates the auditor's concerns about
maintaining the confidentiality of working papers and will cooperate
reasonably with auditors to achieve this end.
Two commenters believe this section should be clarified to provide
that copies, certified copies or electronic formatted data are
``originals'' for the purpose of this section. Relevant to the most
recent audit completed and awaiting NCUA review, the Board rejects the
notion that ``copies, certified copies or electronic formatted data are
``originals'' for the purpose of this section.'' Subsequently, and for
purposes of meeting the three year working papers retention
expectation, accessible alternative electronic storage is acceptable.
One commenter, although supporting the proposal, believes this proposal
may increase credit union costs. NCUA does not believe this
clarification to the existing regulation will increase the costs to
credit unions. This requirement would simply be included in the
engagement letter as a clarified condition of engagement.
Three commenters state that the location for viewing the working
papers must be flexible because the credit union may be located some
distance from the office of the auditor. Two commenters believe that
the location for NCUA access should include the external auditor's
place of business. The ``mutually agreeable location'' alternative does
provide for the external auditor's place of business. One commenter
recommends that working papers should be made available only at the
auditor's place of business for the NCUA to copy or review. This the
Board finds too restrictive and continues to prefer ``or at a mutually
agreeable location.'' One commenter requests that the final regulation
clarify that the working papers be available, either at the auditor's
or credit union's office with adequate notice and under the auditor's
supervision. The proposal stated that working paper access could be at
the offices of the credit union or at a mutually agreeable location. A
``mutually agreeable location'' could be at the credit union, at the
auditor's place of business, or other location agreeable to the
auditor. NCUA staff will be instructed to be reasonable in their
negotiation of ``mutually agreeable location.'' One commenter would
also put in the regulation that such access would be at an agreed upon
time and an agreed upon location. The Board believes this to be the
normal business practice. This commenter also believes that notes could
be made but not copies. Several other commenters state that copies of
the working papers should not be permitted. The Board did not propose
and will not incorporate in the final regulation any requirement for
NCUA to photocopy the working papers.
Twenty-seven commenters oppose the clarification on working papers.
Twelve commenters stated that complete access to the original working
papers is overly
[[Page 41321]]
burdensome and intrusive. Such access exists under the current
regulation. Eight commenters believe unconditional access to working
papers will cause an increase in administrative and other expenses.
This should not be the case since: such access exists under the current
regulation and such access will be a condition of engagement. Several
commenters believe that the working papers are the property of the
compensated auditor and not the credit union unless the papers are
prepared by the supervisory committee. NCUA recognizes that the working
papers prepared by a compensated auditor are the property of the
compensated auditor. Several commenters were concerned with an examiner
copying the working papers and then having the examiner retire and
compete with the auditor using the auditor's program. Examiners are
prohibited from copying audit programs for their personal use.
One commenter believes that the supervisory committee should not be
held accountable for making sure that an independent auditor makes his
or her original working papers available to NCUA since that provision
is already included in the engagement letter and, as a practical
matter, there is not much the supervisory committee can do to enforce
that provision beyond the confines of the engagement letter. NCUA
disagrees; the supervisory committee can enforce its audit contract.
Several commenters believe that original working papers are the
property of the auditor. NCUA acknowledges this. One of these
commenters states that while the auditor can and must agree to make
those papers available, NCUA has no role in enforcing that requirement
against an independent auditor over whom it has no regulatory powers.
NCUA acknowledges that enforcement lies with the supervisory committee.
One commenter states that the proposal puts the credit union in a ``no-
win'' situation. If the auditor fails to cooperate with the supervisory
committee by not making the papers available, rejection of the audit is
a possibility, which may result in additional expenses for a new audit
or the NCUA may seek formal administration sanctions against the
supervisory committee. This is true, but presently, without this
provision, NCUA is ``brokering disputes'' between compensated auditors
and supervisory committees. An enforceable contract should remove both
NCUA and supervisory committees from the middle. With an enforceable
contract, there will be a clearly defined line of responsibility and
thus, a business pressure, if not the possibility of litigative
pressure, for the honoring of contract terms. If a compensated auditor
does not wish for NCUA to review his working papers, he should not
agree to be engaged by a credit union.
One commenter believes NCUA should specify a working paper
retention policy to clarify how long the working papers must be
available for review. The Board agrees that an auditor should not have
to retain his/her working papers indefinitely. Therefore, the Board has
amended the regulation to require retention of working papers by
compensated auditors for a minimum of three years from the date of the
written audit report. The audit working papers for the most recent
audit would need to be retained in paper form; subsequently,
alternative, accessible storage would be acceptable.
H. Enforcement Mechanism
The Board proposed an enforcement mechanism to ensure compliance
with this regulation by authorizing the regional director, as a first
step toward enforcement, to reject as deficient the supervisory
committee audit and the reports thereof. Two commenters support this
proposal. One commenter encourages the NCUA Board to ensure that all
regional offices use the same criteria for determining whether or not
to accept a supervisory committee audit (whether or not performed by a
compensated auditor). Two commenters oppose the proposal. One of these
commenters believes that only state credit union supervisory agencies
should initiate administrative sanctions against the supervisory
committee of a state chartered credit union. Furthermore, this
commenter notes that the proposed amendments bestow a great deal of
discretionary authority upon regional directors and suggests the Board
instruct regional directors not to reject audits which are flawed by
minor technicalities.
In the case of a federally-insured state chartered credit union,
the Board believes it is appropriate for the state regulator to first
attempt to resolve any problems concerning the supervisory committee
audit. The Regional Director will take action after the state regulator
has had a reasonable opportunity to reach a satisfactory result. The
Board will instruct its regional offices on the proper criteria in
determining whether to accept or reject a supervisory committee audit
to minimize differences among the regions and provide more consistency.
NCUA will not be rejecting supervisory committee audits for minor
technicalities.
I. Effective Date
Section 302 of the Riegle Community Development and Regulatory
Improvement Act of 1994 requires the federal regulators of banks and
savings associations to make all regulations that impose new
requirements take effect on the first date of the calendar quarter
following publication of the rule unless good reason exists for some
other effective date. Although NCUA is not formally subject to this
requirement, Letter to Credit Unions #158 stated that the requirements
would be beneficial to credit unions and that NCUA planned to implement
it whenever practicable. NCUA believes that delaying the effective date
to December 31, 1996 is necessary so that credit unions and individuals
conducting supervisory committee audits have sufficient time to
understand the regulation and determine what type of audit will best
serve their needs. Therefore, the regulation will be effective for
audits conducted for, and covering, the audit period ending on December
31, 1996, and thereafter.
J. Request for Comment on Whether Credit Unions Should Have an
Ongoing Internal Audit Function
The Board requested comment on whether it should mandate an
internal audit function and, if so, whether such a requirement should
be imposed on all or only some credit unions, and on what basis.
Seventeen commenters support mandating an internal audit function. Ten
commenters believe an audit function should be required based on some
combination of asset size and complexity of operations. Two commenters
believe it should be required for credit unions with assets in excess
of $100 million. Another commenter believes it should be required for
credit unions with assets over $150 million. Another commenter believes
asset size should be the basis for requiring an internal audit
function. One commenter believes the audit function should be based on
complexity of operations and not asset size.
Fifty-three commenters oppose requiring a credit union to have an
ongoing internal audit function. Thirty-three commenters believe the
decision to have an internal audit function should be made by credit
union management. Four commenters believe that many credit unions can
not afford an internal audit function. Two commenters believe the
internal audit function is costly and that the internal auditor may not
adequately scrutinize operations. Several commenters believe NCUA
should not require but instead
[[Page 41322]]
encourage large and complex credit unions to have an internal audit
function.
Three commenters believe that both compensated auditors and
internal auditors should be hired, report to and receive instructions
from the supervisory committee. They believe any other line of
reporting compromises the integrity of the communication. Sixteen
commenters believe it is not always feasible or desirable for the
auditor to report directly to the supervisory committee, especially if
the credit union is relatively large. Most of these commenters believe
that each credit union should decide to whom the auditor reports.
The Board is not requiring an internal audit function at this time
because it believes that the costs of mandating such a function for all
credit unions outweighs the perceived benefit. The Board, however,
continues to encourage credit unions to have an ongoing internal audit
function if management believes it would be helpful as well as
economically prudent. The Board also believes it is important to
minimize possible conflicts of interest when determining to whom the
internal auditor reports. Management should carefully consider whether
it is feasible for their credit union to have the compensated or
internal auditor report to the supervisory committee.
K. Relevance of SAS No. 75 to CPAs and Its Impact on Supervisory
Committee Audits
Effective May 1, 1996, the AICPA adopted SAS No. 75 which provides
in pertinent part:
b. The accountant and the specified users agree upon the procedures
performed or to be performed by the accountant.
c. The specified users take responsibility for the sufficiency of
the agreed-upon procedures for their purposes. (emphasis added)
In essence, SAS No. 75 requires the CPA to identify the ``specified
users'' of a ``report on agreed-upon procedures'' and, in advance of
such an engagement, to obtain an acknowledgment from all identified
specified users that the procedures the auditor will perform are
sufficient to satisfy the ``specified user's'' needs. There is no doubt
that a credit union's supervisory committee and its board of directors
are ``specified users'' because they will rely on the auditor's report.
However, some may contend that, in addition, NCUA itself is a
``specified user'' of each credit union's supervisory committee audit
report. This would put NCUA in the position of having to agree with the
CPA and each credit union as to the agreed-upon procedures the CPA will
use to ensure that each credit union's audit satisfies the requirements
of Sec. 701.12.
To expect NCUA to acknowledge the sufficiency of a set of
procedures in meeting this part prior to the credit union's engagement
of a CPA is both infeasible and would shift the responsibility for the
supervisory audit from the credit union's supervisory committee to
NCUA. The supervisory committee or its designated representative, not
NCUA, is uniquely able to ``attain an understanding of the internal
control environment, assess control risk, and based on the control
risk, determine the substantive testing (nature, extent, and timing)
necessary'' to comply with this section.
Many credit union supervisory committees hire a compensated auditor
because they do not have the expertise necessary to perform the
supervisory committee audit. Supervisory committees consisting
primarily of volunteers cannot be expected to acknowledge the
sufficiency of a set of agreed-upon procedures developed by accounting
professionals. In such cases, the supervisory committee would naturally
rely upon the assistance of a CPA to attain an understanding of the
internal control environment, assess control risk, and based on the
control risk, determine the substantive testing that is necessary.
Since 1985, NCUA's objective has been to place with the credit
union and its supervisory committee the responsibility for sufficiency
of audit procedures and testing. This approach was enunciated in the
preamble to the 1985 rule, as follows:
The supervisory committee must carry out its duties in a manner
responsive to each credit union's circumstances, i.e., the supervisory
committee must use good judgment in determining the scope, the
frequency, and the detail of the committee's activities. (Deregulation
efforts recognized that) * * * a credit union's audits and reviews must
reflect each credit union's business activities and financial and
operating condition. The committee's work requires judgment of each
credit union's needs based on an analysis of each institution's
strengths and weaknesses * * * Since the committee is responsible for
the audit, it should determine the scope of the work to be performed.
The scope of the work should be varied based on the nature of risk and
exposure for each transaction or account being audited within each
federal credit union. [50 CFR 8710, March 5, 1985] (emphasis added).
NCUA's approach is consistent with the approach of the auditing
profession today. In fact, SAS No. 75 is premised upon this same line
of reasoning, shifting this burden away from the independent accountant
to the specified user.
The issue created by AICPA's adoption of SAS No. 75 exists under
both the current, and this revised supervisory committee audit
regulation. Some compensated auditors suggest that SAS No. 75 limits
them to performing only opinion audits for credit unions. To the extent
that this claim is true, both the cause and the remedy for this
limitation resides with
FR Doc. 96-19511 Supervisory Committee Audits and Verifications
the accounting profession.
The NCUA Board continues to welcome the CPA practitioner in the
performance of supervisory committee audits as one of several favorable
options for credit union supervisory committees. It is the NCUA Board's
intent to allow credit unions a full range of options in whom they may
contract with to have their audit work performed. NCUA will continue to
work with the AICPA toward a practicable solution to this question to
enable CPA practitioners to perform non-opinion, supervisory committee
audits.
L. Comments Received on Regulatory Procedures
Regulatory Flexibility Act
The NCUA Board has certified that small credit unions (less than $1
million in assets) will not see a significant impact because of this
proposal. Fourteen commenters believe that NCUA's assessment of the
monetary costs of these changes is wrong. Two of these commenters
believe it will effect credit unions under $50 million in assets by
doubling the cost of the supervisory committee audit. Another commenter
states it will substantially increase the cost for small credit unions.
NCUA believes these burden estimates are based on a misunderstanding of
the proposed requirements as discussed above, especially in the areas
of scope of work and reporting.
In the final analysis, a cost of doing business as a credit union
or any other financial institution is the conduct of an audit to ensure
member confidence. The audit must be performed by persons with audit
skills commensurate with the complexities of the credit union. For
credit unions under $1 million who are already hiring a compensated
auditor to perform the supervisory committee audit, NCUA believes the
engagement letter requirement, the expanded scope requirement, and
``reducing to writing'' identified reportable conditions/errors
[[Page 41323]]
or irregularities may minimally increase costs. It is a normal business
practice for compensated auditors to obligate audit clients to sign
engagement letters and many of the affected credit unions are already
doing so. Merely ``reducing to writing'' identified and known
reportable conditions and/or errors and irregularities cannot be
significantly burdensome. The expanded scope requirements then require
examination.
Cost can be controlled or reduced by the credit union establishing
or strengthening its system of sound internal controls which serve to
contain control risk. Favorable control risk can mean the reduced
necessity for extensive substantive testing, thus, lower audit costs.
We estimate that approximately 64% of the credit unions under $1
million have supervisory committee audits which are performed by the
supervisory committee itself (not affected); receive opinion audits
(already meet expanded scope); or engage outside auditors who do not
meet the definition of ``compensated auditor'' (not affected). Thus,
few, if any, of these estimated credit unions will be significantly
affected by the expanded scope requirements of this section.
Paperwork Reduction Act
In the proposal the NCUA Board estimated that for most credit
unions the additional paperwork will require only one to three hours a
year of additional time. One commenter asks if NCUA has determined the
extra time needed for auditors to complete the additional reports
required by the proposed regulation. Another commenter believes the
paperwork requirements are much higher than stated in the proposal.
The additional paperwork burden to the credit union is only
relevant to credit unions hiring compensated auditors and lies
primarily in the engagement letter requirement and in ``reducing to
writing'' reportable conditions and/or errors and irregularities, if
any, NCUA did not include paperwork burden as to the compensated
auditor, simply additional paperwork burden as to the credit union.
NCUA continues to believe the paperwork burden to credit unions is in
line with original estimates.
M. Miscellaneous
One commenter requested that the final rule or its preamble
explicitly state that this rule does not apply to corporate credit
unions. Section 701.12 does not apply to corporate credit unions. One
commenter believes that the proposal unfairly singles out those credit
unions that are attempting to upgrade their operation by hiring an
independent auditor to do the annual supervisory committee audit. NCUA
encourages supervisory committes to avail themselves of the services of
compensated auditors when it is advisable and feasible to do so; this
regulation is in no way designed to discourage credit unions from doing
so. The Board is persuaded in all but the exceptional case, supervisory
committees will choose the auditor alternative which is best for its
credit union under the circumstances. Failing this, the Board is
confident that the annual examination process will identify those
credit unions in which evoking the FIRREA provisions of Sec. 701.13
will become necessary.
The Board is not issuing any changes to the current regulation
regarding the independence and verification of members' accounts but
they will be redesignated as Sec. 701.12(g) and (h), respectively. The
Board is adopting in final the one proposed change to Sec. 701.13 to
redesignate the current Sec. 701.12(e) as Sec. 701.12(h).
N. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe any significant economic impact a proposed regulation may
have on a substantial number of small credit unions (primarily those
under $1 million in assets). As noted above, NCUA determined in the
proposed rule that there was no significant economic impact on small
credit unions. Comments received are discussed above. Accordingly, the
NCUA Board determines and certifies that this final amendment does not
have a significant economic impact on a substantial number of small
credit unions and that a Regulatory Flexibility Analysis is not
required.
Paperwork Reduction Act
Comments received on paperwork collection requirements are
discussed above. The information collection requirements in the final
rule have been submitted to the Office of Management and Budget. The
control number assigned for this rule is 3133-0059, approved for use
through April 30, 1997.
Executive Order 12612
Executive Order 12612 requires NCUA to consider the effect of its
actions on state interests. The final amendments will not have a
substantial direct effect on the states, on the relationship between
the national government and the states, or on the distribution of
rights and responsibilities among the various levels of government.
List of Subjects in 12 CFR Part 701
Credit unions, Reporting and recordkeeping requirements.
By the National Credit Union Administration Board on July 24,
1996.
Becky Baker,
Secretary of the Board.
Accordingly, NCUA amends 12 CFR part 701 as follows:
PART 701--ORGANIZATION AND OPERATIONS OF FEDERAL CREDIT UNIONS
1. The authority citation for Part 701 continues to read as
follows:
Authority: 12 U.S.C. 1752(5), 1755, 1756, 1757, 1759, 1761a,
1761b, 1766, 1767, 1782, 1784, 1787, 1789, 1798 and Public Law 101-
73. Section 701.6 is also authorized by 31 U.S.C. 3717. Section
701.31 is also authorized by 15 U.S.C. 1601, et seq., 42 U.S.C. 1981
and 42 U.S.C. 3601-3610.
2. Sec. 701.12 is amended by redesignating paragraphs (d) and (e)
as paragraphs (g) and (h), by revising paragraphs (a) through (c), and
by adding new paragraphs (d) through (f) to read as follows:
Sec. 701.12 Supervisory committee audits and verifications.
(a) Definitions. As used in this chapter:
(1) Agreed-upon procedures engagement refers to the performance by
an independent, licensed certified public accountant of an engagement
in which the scope is limited to applying specified agreed-upon
procedures to one or more specified elements, accounts or items of a
financial statement. Such procedures are insufficient to express an
opinion regarding either the financial statements taken as a whole, or
the specified elements, accounts or items under examination.
(2) Compensated auditor refers to any accounting/auditing
professional, excluding credit union employees, who is compensated for
performing more than one compensated supervisory committee audit and/or
verification of members' accounts, or opinion audit, per calendar year.
(3) Financial statements refers to a presentation of financial
data, including accompanying notes, derived from accounting records of
the credit union, and intended to disclose a credit union's economic
resources or obligations at a appoint in time, or the changes therein
for a period of time, in conformity with GAAP or RAP, as
[[Page 41324]]
defined herein. Each of the following is considered to be a financial
statement: a balance sheet or statement of financial condition;
statement of income or statement of operations; statement of undivided
earnings; statement of cash flows; statement of changes in members'
equity; statement of assets and liabilities that does not include
members' equity accounts; statement of revenue and expenses; and
statement of cash receipts and disbursements.
(4) GAAP is an acronym for ``generally accepted accounting
principles'' which refers to the conventions, rules, and procedures
which define accepted accounting practice. GAAP includes both broad
general guidelines and detailed practices and procedures, provides a
standard by which to measure financial statement presentations, and
encompasses not only accounting principles and practices but also the
methods of applying them.
(5) GAAS is an acronym for ``generally accepted auditing
standards'' which refers to the standards approved and adopted by the
American Institute of Certified Public Accountants which apply when an
``independent, licensed certified public accountant'' audits financial
statements. Auditing standards differ from auditing procedures in that
``procedures'' address acts to be performed, whereas ``standards''
measure the quality of the performance of those acts and the objectives
to be achieved by use of the procedures undertaken. In addition,
auditing standards address the auditor's professional qualifications as
well as the judgment exercised in performing the audit and in preparing
the report of the audit. Copies of GAAS may be obtained from the AICPA,
Order Department, Harborside Financial Center, 201 Plaza Three, Jersey
City, NJ 07311-3881, telephone (800) TO-AICPA or (800) 862-4272.
(6) Independence and Independent means the impartiality necessary
for the reliability of the compensated auditor's findings. Independence
requires the exercise of fairness toward credit union officials,
members, creditors and others who may rely upon the supervisory
committee audit report.
(7) Internal controls refers to the process, established by the
credit union's board of directors, officers and employees, designed to
provide reasonable assurance of reliable financial reporting and
safeguarding of assets against unauthorized acquisition, use, or
disposition. A credit union's internal control structure consists of
five components: control environment; risk assessment; control
activities; information and communication; and monitoring. Reliable
financial reporting refers to preparation of financial statements that
``present fairly'' the financial position of the credit union and
results of its operations and its cash flows, in conformity with GAAP
or RAP, as defined herein. Internal control over safeguarding of assets
against unauthorized acquisition, use, or disposition refers to
prevention or timely detection of transactions involving such
unauthorized access, use, or disposition of assets which could result
in a loss that is material to the financial statements.
(8) Licensed, certified public accountant refers to an accounting/
auditing professional who has received a certificate and license from a
duly-appointed state licensing authority to practice accounting/
auditing, and is independent as defined herein.
(9) Opinion audit refers to an examination of the financial
statements performed by an independent, licensed, certified public
accountant in accordance with GAAS. The objective of an ``opinion
audit'' is to express an opinion as to whether those financial
statements of the credit union present fairly, in all material
respects, the financial position and the results of its operations and
its cash flows in conformity with GAAP or RAP, as defined herein.
(10) RAP is an acronym for ``regulatory accounting practices''
which refer to the conventions, rules, and procedures governing
accepted accounting practices, other than GAAP, for credit unions and
having the substantial support of either the NCUA or the applicable
state credit union supervisor.
(11) Related party transactions refers to transactions among or
between parties where one party controls or can significantly influence
the management or operating policies of the other so as to prevent the
other party from pursuing exclusively its own interests. Examples of
related parties include: executive management, board members,
supervisory committee members, credit committee members, and employees,
and their families. Examples of ``related party transactions'' include:
interest-free loans or loans at below market rates; sale of real estate
significantly below appraised value; nonmonetary exchange of property;
below market fees, and making of loans lacking scheduled terms for
repayment.
(12) Reportable conditions refers to a matter coming to the
attention of the independent, compensated auditor which, in his or her
judgment, represents a significant deficiency in the design or
operation of the internal control structure of the credit union, which
could adversely affect its ability to record, process, summarize, and
report financial data consistent with the representations of management
in the financial statements.
(13) Specified elements, accounts or items of a financial statement
refers to accounting information that is a part of, but significantly
less than, a financial statement. These may be directly identified in a
financial statement or notes thereto; or they may be derived from a
financial statement by analysis, aggregation, summarization, or
mathematical computation.
(14) Substantive testing refers to testing of details and
analytical procedures to detect material misstatements in the account
balance, transaction class, and disclosure components of financial
statements.
(15) Supervisory committee refers to a supervisory committee as
defined in Section 111(b) of the Federal Credit Union Act, 12 U.S.C.
1786(r). For some federally-insured state chartered credit unions, the
``audit committee'' designated by state statute or regulation is the
equivalent of a supervisory committee.
(16) Supervisory committee audit refers to an examination of
specified elements, accounts or items of the credit union's financial
statement to the full extent required in this part. An opinion audit as
defined herein exceeds the requirements of a ``supervisory committee
audit.''
(17) Working papers refers to the principal record, in any form, of
the work performed by the auditor and/or supervisory committee to
support its findings and/or conclusions concerning significant matters.
Examples include the written record of procedures applied, tests
performed, information obtained, and pertinent conclusions reached in
the engagement, proprietary audit programs, analyses, memoranda,
letters of confirmation and representation, abstracts of credit union
documents, reviewer's notes, if retained, and schedules or commentaries
prepared or obtained by the independent, compensated auditor.
(b) Supervisory committee responsibilities. (1) The supervisory
committee is responsible for ensuring that:
(i) The financial condition of the credit union is accurately and
fairly presented in the credit union's financial statements; and
(ii) The credit union's management practices and procedures are
sufficient to safeguard members' assets.
[[Page 41325]]
(2) To meet its responsibilities, the supervisory committee shall
determine whether:
(i) Internal controls are established and effectively maintained to
achieve the credit union's financial reporting objectives which must be
sufficient to satisfy the requirements of the supervisory committee
audit, verification of members' accounts and its additional
responsibilities;
(ii) The credit union's accounting records and financial reports
are promptly prepared and accurately reflect operations and results;
(iii) The relevant plans, policies, and control procedures
established by the board of directors are properly administered; and
(iv) Policies and control procedures are sufficient to safeguard
against error, carelessness, conflict of interest, self-dealing and
fraud.
(c) Supervisory committee audit. (1) A supervisory committee audit
of each Federal credit union shall occur at least once every calendar
year and shall cover the period elapsed since the last audit period.
The supervisory committee audit shall be performed by the supervisory
committee or its designated representative, as prescribed in paragraph
(c)(5) of this section.
(2) Standards for Performing Supervisory Committee Audit. The
supervisory committee audit procedures/testing must be performed in
accordance with the following standards:
(i) The audit is to be performed by a person or persons having
adequate technical training and proficiency as an auditor commensurate
with the level of sophistication and complexity of the credit union
under audit.
(ii) Reasonable care is to be exercised in the performance of the
audit and the preparation of the report.
(iii) The work is to be adequately planned and assistants, if any,
are to be properly supervised.
(iv) The person or persons performing the audit must attain a
sufficient understanding of the internal control structure to plan the
audit and to determine the nature, timing, and extent of tests to be
performed.
(v) The person or persons performing the audit must, through
inspection, observation, inquiry, and confirmation obtain sufficient
evidence to afford a reasonable basis for the financial statement
elements, accounts or items under audit.
(3) Scope of Supervisory Committee Audit. The scope of the
supervisory committee audit shall consist of:
(i) Attaining an understanding of the internal control structure;
(ii) Assessing the level of control risk; and
(iii) Based on the level of control risk, determining the nature,
timing, and extent of substantive testing necessary to confirm the
assertions made by management regarding each of assets, liabilities,
equity, income, and expenses for the following attributes:
(A) Existence or occurrence;
(B) Completeness;
(C) Valuation or allocation;
(D) Rights and obligations; and
(E) Presentation and disclosures.
(4) In addition to scope requirements set forth in paragraph (c)(3)
of this section, an audit performed by an independent, compensated
auditor which includes any of the following areas must, with respect to
audit scope but not with respect to reporting, satisfy GAAS for
expressing an opinion on the financial statements taken as a whole:
(i) Internal controls;
(ii) Cash;
(iii) Loans and interest thereon;
(iv) Investments and interest thereon;
(v) Shares and dividends and/or interest thereon;
(vi) Related party transactions; and
(vii) The reporting of identified errors and irregularities with
regard to each of the items in paragraphs (c)(4) (i) through (vi) of
this section.
(5)(i) The requirements of the annual supervisory committee audit
may be satisfied by one of the following:
(A) An opinion audit of the credit union's financial statements
performed by an independent, licensed, certified public accountant;
(B) An ``agreed-upon procedures engagement'' performed by an
independent, licensed, certified public accountant, which by itself or
in combination with procedures performed by the supervisory committee,
fulfills the required scope of the supervisory committee audit;
(C) A supervisory committee audit performed by an independent,
compensated auditor other than an independent, licensed, certified
public accountant which by itself or in combination with procedures
performed by the supervisory committee, fulfills the scope of a
supervisory committee audit; or
(D) A supervisory committee audit by the supervisory committee or
its designated, uncompensated representative.
(ii) In all cases, an independent, compensated auditor is required
to contract directly with the supervisory committee for the audit
engagement and to deliver its written reports directly to the
supervisory committee.
(iii) For a supervisory committee audit performed by the
supervisory committee or its designated, uncompensated representative,
the supervisory committee shall prepare a written report of the
supervisory committee audit.
(d) Engagement letter. (1) The engagement of an independent,
compensated auditor to perform all or a portion of the scope of a
supervisory committee audit shall be evidenced by an engagement letter.
The engagement letter shall be signed by the compensated auditor and
acknowledged therein by the supervisory committee prior to commencement
of a supervisory committee audit. The engagement letter shall:
(i) Specify the terms, conditions, and objectives of engagement;
(ii) Identify the basis of accounting to be used, e.g., GAAP or
RAP;
(iii) Include an appendix setting forth the procedures to be
performed (if not an opinion audit);
(iv) Specify the rate of, or total, compensation to be paid for the
audit;
(v) Provided that the audit shall, upon completion of the
engagement, deliver to the supervisory committee:
(A) A written report of the supervisory committee audit; and
(B) Notice in writing, either within the report or communicated
separately, of any internal control reportable conditions and/or
irregularities or illegal acts which come to the auditor's attention
during the normal course of the audit (i.e., no additional duty is
imposed nor additional written communications beyond (A) is required if
none of these is noted);
(vi) Specify a target date of delivery of the written reports;
(vii) Certify that NCUA staff or its designated representative will
be provided unconditional access to the complete set of original
working papers either at the credit union or at a mutually agreeable
location, for purposes of inspection; and
(viii) Acknowledge that working papers shall be retained for a
minimum of three years from the date of the written audit report.
(2) In the case of a supervisory committee audit engagement which
addresses all of the financial statement elements, accounts or items
and attributes prescribed in paragraphs (c)(3) and (c)(4) of this
section, the engagement letter shall certify that the contracted scope
of the audit satisfies the requirements of a complete supervisory
committee audit.
(3) In the case of a supervisory committee audit engagement which
excludes any financial statement elements, accounts or items and
attributes prescribed in paragraphs (c)(3)
[[Page 41326]]
and (c)(4) of this section, the engagement letter shall:
(i) Identify the elements, accounts or items and attributes
excluded from the audit;
(ii) State that, because of the exclusion(s), the resulting audit
will not, by itself, fulfill the scope of a supervisory committee
audit; and
(iii) Caution that the supervisory committee will remain
responsible for fulfilling the scope of a supervisory committee audit
with respect to the excluded elements, accounts or items and
attributes.
(e) Audit reports and working paper access. (1) Upon completion or
receipt of the written supervisory committee audit reports, the
supervisory committee shall provide the reports to the board of
directors. The supervisory committee shall ensure that the independent,
compensated audit and its reports comply with the terms of the
engagement letter prescribed in this section. The supervisory committee
shall, upon request, provide to the National Credit Union
Administration a copy of the written reports received from the auditor.
(2) The supervisory committee shall be responsible for preparing
and maintaining, or making available, a complete set of original
working papers supporting each supervisory committee audit. The
supervisory committee shall, upon request, provide NCUA staff
unconditional access to such working papers either at the offices of
the credit union or at a mutually agreeable location, for purposes of
inspecting such working papers.
(f) Sanctions. (1) Failure of a supervisory committee and/or its
independent compensated auditor to comply with the requirements of this
section, or the terms of an engagement letter required by this section,
is grounds for:
(i) The regional director to reject the supervisory committee
audit;
(ii) The regional director to impose the remedies available in
Sec. 701.13, provided any of the conditions specified in Sec. 701.13 is
present; and
(iii) The NCUA to seek formal administrative sanctions against the
supervisory committee and/or its independent, compensated auditor
pursuant to section 206(r) of the Federal Credit Union Act, 12 U.S.C.
1786(r).
(2) In the case of a federally-insured state chartered credit
union, NCUA shall provide the state regulator an opportunity to timely
impose a remedy satisfactory to NCUA before seeking to impose a
sanction permitted under (f)(1) of this section.
* * * * *
Sec. 701.13 [Amended]
3. Section 701.13 is amended in paragraph (a)(2) by revising
``Sec. 701.12(e)'' to read ``Sec. 701.12(h)''.
[FR Doc. 96-19511 Filed 8-7-96; 8:45 am]
BILLING CODE 7535-01-M
Complete official Federal Register PDF
FR Doc. 96-19353 Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices and Associated Equipment
[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41355-41362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19353]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 80-9; Notice 12]
RIN 2127-AF59
Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices
and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule.
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SUMMARY: This document requires that the rear of truck tractors be
equipped with retroreflective material similar to that required on the
rear of the trailers they tow to increase nighttime conspicuity.
Manufacturers may choose either retroreflective sheeting or reflex
reflectors. In the case of truck tractors delivered with a temporary
mudflap arrangement rather than permanent equipment, the requirement
for retroreflective material near the top of the mudflap may be
satisfied with material carried by the temporary mudflap brackets that
is transferable to the permanent mudflap system. Retroreflective
material is also required near the top of the cab in a pattern similar
to that used on trailers. NHTSA estimates that the incidence of crashes
involving truck tractors struck in the rear by other vehicles in
darkness could be reduced by 15 to 25 percent by enhancing conspicuity
as required by this rule.
DATES: The effective date for the final rule is July 1, 1997. Petitions
for reconsideration of the rule must be received not later than
September 23, 1996. Petitions filed after that time will be considered
petitions for rulemaking pursuant to 49 CFR part 552.
ADDRESSES: Petitions for reconsideration should refer to the docket
number and notice number, and be submitted to: Administrator, NHTSA,
400 Seventh Street, SW, Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For Technical Issues: Patrick Boyd,
Office of Safety Performance Standards, NPS-31, telephone (202) 366-
6346, FAX (202) 366-4329. For Legal Issues: Taylor Vinson, Office of
Chief Counsel, NCC-20, telephone (202) 366-2992, FAX (202) 366-3820.
SUPPLEMENTARY INFORMATION:
Background
On December 10, 1992, NHTSA published a final rule amending Federal
Motor Vehicle Safety Standard No. 108 Lamps, Reflective Devices, and
Associated Equipment to add paragraph S5.7 Conspicuity Systems. (57 FR
58406) Effective December 1, 1993, the rule required large trailers,
particularly the type hauled by truck tractors, to be equipped with
reflective marking (either retroreflective tape or reflex reflectors)
to enhance their detectability at night or under other conditions of
reduced visibility. The preamble to the rule explained that the
conspicuity requirements applied only to large trailers because most
fatal accidents at night in which a truck is struck involve a truck
tractor-trailer combination vehicle. But the notice also mentioned that
the night accident involvement rate of truck tractors alone was much
greater than that of other single-unit trucks. The agency announced
that it was considering truck tractors for future conspicuity
rulemaking.
As part of its petition for reconsideration of the final rule, the
Insurance Institute for Highway Safety (IIHS) asked that the
conspicuity requirement be extended to single unit trucks and to truck
tractors, citing accident statistics in support of its request.
Aided by its fleet study of heavy trailers using a similar rear
conspicuity treatment, NHTSA tentatively concluded that motor vehicle
safety would be enhanced if a conspicuity marking scheme were extended
to truck tractors. Under 49 CFR 571.3(b), a truck tractor ``means a
truck designed primarily for drawing other motor vehicles and not so
constructed as to carry a load other than a part of the weight of the
vehicle and the load so drawn.'' Far fewer crashes involve vehicles
colliding with the rear of truck tractors than with the rear of
trailers, presumably because of a much lower exposure of tractors
operating without trailers. However, NHTSA's data indicate that a
higher proportion of rear end crashes involving truck tractors,
including fatal crashes, occur at night than for either trailers or
trucks.
Truck tractors are less conspicuous at night from the rear than
other motor vehicles because they are subject to fewer rear lighting
requirements of Standard No. 108. Unlike other vehicles over 2032 mm
wide (80 inches), tractors are not required to have rear side marker
lamps, rear clearance lamps, or rear identification lamps. If double
sided turn signal lamps are used on the front fenders, truck tractors
are not required to have rear turn signal lamps either. The only rear
marking lamps required on all truck tractors are the taillamps, and the
taillamps of truck tractors do not mark the full width of the vehicle
as do the taillamps of other vehicles.
Since much of a truck tractor's operational life is spent in
hauling trailers, it does not appear cost beneficial to require it to
have the full panoply of rear lighting equipment required for other
motor vehicles. Further, the configuration of truck tractors presents
practicability problems for the mounting of the tail, stop, and turn
signal lamps at the locations specified for other vehicles. However,
the inexpensive and convenient use of retroreflective material would
improve the detectability of the rear of truck tractors when they are
being operated or parked without trailers. The familiarity of the
public with the Federal conspicuity treatment applied to large trailers
should improve the recognition of similarly treated truck tractors and
make such a treatment more effective for accident prevention than it
would have been in the past.
The Notice of Proposed Rulemaking
In view of the relatively short length of truck tractors and the
fact that they are equipped with a full complement of lamps at the
front, on June 12, 1995, NHTSA proposed (60 FR 30820) a conspicuity
treatment for the rear only. The conspicuity treatment would use the
same retroreflective sheeting or reflex reflectors certified for use on
trailers under the existing regulation (the term ``retroreflective
material'' is used in this document to include both sheeting and reflex
reflectors).
As with large trailers, two strips of white material 300 mm in
length were proposed for application horizontally and vertically to the
right and left upper rear contours of the body (as shown in Figure 31),
as close to the top of the body and as far apart as practicable.
Relocation of the material would be
[[Page 41356]]
allowed to avoid obscuration by vehicle equipment when viewed from
directly behind. If relocation is required for one side of the rear but
not the other, the manufacturer would be permitted to relocate the
other strips to achieve a symmetrical effect.
To indicate the overall width of the truck tractor, two strips of
retroreflective material, 600 mm in length, of alternating colors of
red and white, were proposed for the rear, to be mounted as horizontal
as practicable and as far apart as practicable, not more than 1525 mm
above the road surface. In the proposal, this material could be applied
to the truck body, or, if the tractor is so equipped, to the mudflaps
or mudflap support brackets. However, if the strips were located on the
mudflaps, they would be placed not lower than 300 mm below the mudflap
support bracket to avoid excessive movement. Since the tire diameter,
and consequently the distance from the mudflap support to the road
surface, is nominally 1 meter, the lowest practicable location of the
strips would be about 700 mm above the road surface.
Twenty comments were received in response to the NPRM, representing
the views of truck manufacturers, commercial and private fleet
operators, insurance companies, public interest groups and private
citizens. Details of the issues raised by the comments and NHTSA's
responses are discussed below.
Effectiveness and Necessity of Truck Tractor Conspicuity
Comments from Parents Against Tired Truckers, the Transportation
Safety Equipment Institute, McKenzie Tank Lines, Merrill Allen, and
Marshall Reagle voiced agreement with the proposed regulation and the
reasons for its provisions. Dr. Allen also suggested that all mudflaps
used on tractors and trailers should be white to maximize visibility.
Trans Gulf, Daggett Truck Line, and the National Private Truck
Council expressed reservations about the value of truck tractor
conspicuity. Daggett stated that concern for the visibility of the rear
of truck tractors is a misplaced priority in comparison with the lack
of visibility of trains at road crossings. Trans Gulf stated that truck
tractors have the same rear lighting as automobiles and reflective
material is unnecessary. The National Private Truck Council believes
that the expectation of accident reduction as a result of conspicuity
is unproven.
The agency does not agree that the rear lighting of truck tractors
is comparable to the rear lighting of cars. Truck tractors lack the
center high mounted stop lamp and the mandatory rear mounted turn
signals of cars, and they have far fewer rear lamps than other trucks.
However, the greatest disadvantage of the rear lighting of truck
tractors is the narrow spacing of the taillamps which creates a
deceptive image for distance judgment not shared by cars. (For an
explanation of this phenomenon, see the beginning of the next section,
which is titled ``Location of Material Marking the Width of a Truck
Tractor.'')
The basis of the safety benefits estimated for truck tractor
conspicuity is the fleet study of trailers conducted by the agency in
the 1980's (Improved Commercial Vehicle Conspicuity and Signalling
Systems--Task III, HS 806 923). The rear crash experience is similar
for both trailers and truck tractors operating without trailers in that
the majority of fatal crashes in which they are struck occur at night.
Also, the proportion of less serious crashes occurring at night is even
greater for truck tractors without trailers than for trailers. The
present configuration of tractor rear lighting persuades the agency
that the information available on the effectiveness of retroreflective
conspicuity on trailers provides a reasonable basis upon which to
predict safety benefits for conspicuity material on truck tractors.
The Insurance Institute for Highway Safety, Advocates for Highway
and Auto Safety, and the National Automobile Dealers Association
expressed support of the truck tractor proposal and also urged the
agency to expand the requirements for truck conspicuity in future
rulemakings. Specifically, they suggested a requirement for all single-
unit trucks, a treatment for the side of truck tractor bodies and
cooperation between NHTSA and the Federal Highway Administration (FHWA)
on a retrofit rule for truck tractors.
NHTSA has initiated a study of the effectiveness in service of the
conspicuity treatments that have been required on new trailers
manufactured since December 1, 1993. The results of this study may
improve the agency's ability to estimate or project the safety benefits
of conspicuity treatments on single-unit trucks which have a lower
proportion of nighttime crashes.
The agency did not propose a body side treatment for truck
tractors. There does not appear to be a practicable way to mark the
whole length of the tractor, and a body-only treatment may mask the
true length of the vehicle because of the long untreated frame and
axles behind the body. The safety need is also less obvious for the
side of tractors than for the rear because ordinary traffic situations
place the rear at a much higher level of exposure.
Location of Material Marking the Width of a Truck Tractor
The primary elements of the proposed conspicuity treatment were the
low- mounted red/white strips intended to reveal the vehicle's width as
well as to increase its visibility. The proposal included the options
of placing the material either on the back of the cab (a permitted
location for the present rear reflex reflectors of truck tractors), on
the mudflap brackets or on the top portion of the mudflaps themselves.
This proposal addressed a problem created by the location of the
taillamps of truck tractors. The particularly narrow spacing of their
taillamps make it difficult for following drivers approaching truck
tractors to judge their size and distance correctly at night. The
taillamps are usually mounted much closer together on truck tractors
than on other motor vehicles. A study by the University of Michigan
Transportation Research Institute, titled Effects of the Lateral
Position of Low-beam Headlamps on the Perceived Distance of Vehicles
(UMTRI-95-21), demonstrated that a driver's ability to perceive the
distance of an oncoming vehicle is affected by the transposition on
that vehicle of the lower-beam headlamps from the required outer
position to the inner position used for upper beams. Since the spacing
ratio of ordinary truck taillamps to truck tractor taillamps is at
least twice the spacing ratio of lower beam to upper beam headlamps, a
far greater effect on the ability of following drivers to judge
distance would be expected. In other words, truck tractor taillamps are
spaced even more narrowly (relative to other taillamps) than the
narrowest headlamp spacing in the study (relative to normal headlamp
spacing). Therefore, truck tractor taillamps would be expected to have
a greater affect on distance perception than that demonstrated for
headlamp placement.
MediQuik Express incorrectly concluded that the proposal would
require retroreflective material integral with the mudflaps and
expressed concern that it would ``give mudflap manufacturers an excuse
to double if not triple the cost of mudflaps.'' The NPRM did not assume
the existence of mudflaps with integral retroreflective material in its
cost estimate. The cost estimate of applying the material at the
mudflap included the cost of two mounting plates to which the
retroreflective material would be
[[Page 41357]]
attached. In this example, each mounting plate had the same bolt hole
pattern as the top of the mudflap. The mounting plate carrying the
retroreflective material was secured to the mudflap bracket,
sandwiching the mudflap between the bracket and the mounting plate.
This arrangement would affect neither the design nor the cost of
present mudflaps and mudflap brackets.
However, 3M commented that market pressures, presumably to provide
truck- tractor conspicuity at less than the cost estimated in the NPRM,
would drive the development of adhesives and mechanical mounting
systems to attach material directly to mudflaps. Specialty Adhesive
Film Co. commented that it had already developed an adhesive and a
bonding process to make direct attachment possible. The agency welcomes
the availability of complying alternatives in conspicuity equipment,
but the solution costed in the proposal was developed independently of
them.
McKenzie Tank Lines, which operates a large fleet of tractors,
reported that it had equipped tractors with reflective material on the
mudflap brackets out of concern that the narrowly spaced taillamps
would not create an accurate size image of tractors without trailers
(``bobtail'') to approaching motorists at night. However, it cautioned
that many types of mudflap brackets do not have enough room for
reflective material and that it would be a huge expense for a fleet to
retrofit suitable mudflap brackets. The agency agrees with McKenzie
that the mudflap bracket is the optimum location for conspicuity
material, but it wishes to clarify that the rule is not retroactive.
The agency also points out that the use of retroreflective material
attached to the mudflap bracket by means of the mounting plate
described above achieves the effect desired by McKenzie without relying
on a particular mudflap bracket design.
Mudflap brackets with integral conspicuity material, like mudflaps
themselves with integral conspicuity material, are product ideas with
potential economic and aesthetic benefits, but the practicability of
the final rule does not depend on their availability. It should be
noted that the recent commercial offering by at least two companies of
arrays of conspicuity grade (DOT-C) reflex reflectors in a bar form,
narrower than conspicuity tape, may make the mounting of material
directly to mudflap brackets more practical. The reflex reflector
arrays look like strips of sheeting about 8 or 12 inches long but need
only a width of about 1 inch to attain the required photometric
performance.
Many commenters criticized the proposed alternative of attaching
the red/white material to the rear of the cab. McKenzie believed that
having the material on the cab rather than on the mudflap brackets
could give following traffic a misconception of the location of the
rear of the truck. The American Trucking Associations (ATA) cited an
unsatisfactory experience of the U.S. Military in Germany with
reflectorized placards on truck tractors. In a docketed telephone
conversation, ATA explained to NHTSA that placards were placed on the
back of the cab of a test vehicle, and a panel of observers suggested
that the placards could cause a misconception of the location of the
rear of the tractor in adverse weather at night. As a result, the
military tractors were equipped with placards on the mudflaps. Another
commenter, Mr. Wes Trindal, described a contrary experience of the U.S.
Military in Vietnam. Truck tractors were equipped with lamp packages on
the back of the body at the full width of the vehicle. He cited
satisfaction of the troops using these vehicles and recommended similar
auxiliary lights for truck tractors to use while being operated without
trailers.
The Truck Manufacturers Association (TMA), Navistar, Mack, Ford and
ATA commented that the option of placing the red/white width-marking
part of the treatment on the cab was impractical. They cited a lack of
space around the engine opening at the rear of many cabs and the amount
of equipment obscuring the area necessary for a full width conspicuity
treatment.
The agency has heeded the comments opposing the proposed
alternative, and the final rule requires that the red/white element of
the truck tractor conspicuity treatment be placed on either the mudflap
bracket or the mudflap, or on a fender if the tractor is so equipped.
The same commenters observed that a significant proportion of new
truck tractors are not delivered with permanent mudflaps and mudflap
brackets as original equipment. The manufacturer equips such vehicles
with temporary mudflaps and brackets to satisfy state laws, but
dealers, aftermarket suppliers, or fleet service facilities install the
permanent mudflap or fender equipment. The truck manufacturers, either
individually or as part of TMA, recommended that the installers of
permanent mudflaps be considered as second stage vehicle manufacturers
with responsibility of certifying the compliance of the ``completed''
truck if truck tractor conspicuity is to be a NHTSA requirement for new
vehicles. Navistar also recommended that truck tractor conspicuity
requirements be established as a Federal Motor Carrier Safety
Regulation (administered by FHWA) rather than a requirement of Standard
No. 108 for new motor vehicles regulated by NHTSA.
The agency does not agree that regulatory solutions of greater
complexity are necessary. Manufacturers may certify compliance of
vehicles with temporary mudflap brackets if backing plates with
retroreflective material are installed with the mudflap attaching bolts
as assumed in the cost estimate. The language of the final rule
clarifies that retroreflective treatment of the temporary mudflap
equipment is sufficient for certification if the retroreflective
material is transferable to a permanent mudflap system. Locating
retroreflective material on a heavy aluminum backing plate is the most
obvious universal solution, and the one used in NHTSA's cost estimate,
but the likely development of mudflaps with integral retroreflective
material and reflex reflectors designed for attachment with the mudflap
bolts may offer manufacturers lower cost alternatives for transferable
conspicuity material. The permanent application of retroreflective
material to a temporary mudflap bracket (usually a piece of lumber) is
not an acceptable alternative because there is no assurance that the
permanent bracket will have conspicuity material.
In response to the suggestion that installers of permanent mudflaps
be considered as second stage vehicle manufacturers, NHTSA notes that
those installers would not satisfy the definition of either an
``intermediate manufacturer'' or a ``final stage vehicle manufacturer''
in 49 CFR part 568 Vehicles Manufactured in Two or More Stages.
Further, the truck tractors to which the installers add permanent
mudflaps are not ``incomplete vehicles.'' Therefore, the agency could
not, consistent with part 568, place overall certification
responsibility on those installers.
The agency also believes that conspicuity treatment should be a
new-vehicle requirement and not solely for tractors in use subject to
the regulations of FHWA. FHWA's Motor Carrier Safety regulation for
lighting already incorporates by reference the lighting and reflector
requirements of Standard No. 108 (at 49 CFR 393.11), and applies them
to vehicles under FHWA's jurisdiction. The FHWA will work with the
States through its Motor Carrier Safety Assistance Program to ensure
that inspection personnel are aware that a significant percentage of
truck tractors
[[Page 41358]]
will be shipped with temporary mudflap systems and transferable
material. The FHWA and the States will help to make certain that the
motor carriers operating these vehicles maintain the conspicuity
treatments on the truck tractors. The presence of new truck tractors
with conspicuity material and the availability of convenient new
products are likely to stimulate interest in voluntary retrofit of
existing vehicles. The agency believes that large numbers of trailers
built before December 1, 1993, the effective date of the trailer
conspicuity regulation, have been retrofitted voluntarily with
conspicuity treatments similar to new trailer equipment.
A particular style of mudflap used on many truck tractors is not
rectangular. It has the upper outer corner removed for clearance with
trailer equipment and is supported by a bracket with a 45-degree
downward bend about 8 inches from the outboard end. Manufacturers may
satisfy the final rule by applying conspicuity material to the bracket
despite the bend because such a placement is ``as horizontal as
practicable'' on the bracket. Alternatively, the rule may be met by
securing conspicuity material across the mudflap horizontally below the
corner notch because the rule allows it to be applied as low as 300 mm
below the top of the mudflap. However, the use of transferable
conspicuity material on a temporary rectangular mudflap presents a
problem to an owner installing permanent mudflaps which are not
rectangular. The horizontal top edge of this type of mudflap is only
about 16 inches long, and thus the 600 mm long segments of transferable
conspicuity material must be trimmed to 400 mm to fit. NHTSA will work
with FHWA's Office of Motor Carrier Safety and Technology to develop
inspection procedures to permit the practical use of original-equipment
transferable conspicuity material on subsequently-installed permanent
mudflap equipment.
Upper Cab Contour Markings
The second part of the proposed conspicuity treatment was
illustrated in the NPRM as a pair of inverted ``L'' 's of white
conspicuity material to mark the upper contour of the cab. This element
is identical in shape and purpose to the upper conspicuity marking of
trailers. The purpose of the upper material is to create a two-
dimensional image to improve the judgement of distance and closing
speed on the part of drivers approaching from a distance. On truck
tractors, which are not required to have rear clearance and
identification lamps, cab-mounted conspicuity material may also provide
the only source of visibility when the taillamps and lower conspicuity
material are temporarily obscured by hilly terrain.
The previously discussed comments of ATA, TMA and the vehicle
manufacturers regarding the possibility of a false indication of the
rear of the vehicle as a result of reflective material on the lower cab
and the lack of space on the rear of the cab to mount material were
also directed toward the upper material. Mack and ATA provided pictures
of vehicles to illustrate application difficulties. Navistar and TMA
commented that the addition of non-OEM headboards, sleeper compartments
and tool boxes would obscure the material, and they noted that even if
the material were visible viewed from directly behind, as specified in
the NPRM, it could be obscured viewed from a small angle. TMA asked for
clarification regarding the avoidance of discontinuous surfaces,
whether the vertical and horizontal reflector strips must intersect,
and whether aerodynamic roof fairings are included in the cab contour.
NHTSA does not agree that truck tractor cabs lack the space for the
upper treatment. The exact location of the upper treatment is less
crucial than that of the lower treatment. It is not necessary for it to
mark the extreme width or the extreme height of the cab for it to add a
height dimension to the night image of a truck tractor. Therefore, the
upper marking may be located in spots dictated by practicability and
still fulfill its intended function.
The most common obstructions at the upper cab corners are exhaust
stacks. The NPRM illustrated the right upper marking moved inboard to
clear an exhaust stack, and the proposed regulation permitted
manufacturers to move the marking on the opposite side to achieve a
symmetrical appearance, if desired. The commenters supplied photographs
of various truck tractor configurations illustrating possible
obstructions. The most problematic cases for upper treatment were those
featuring large rear windows with limited space between the rear window
frame and large dual exhaust stacks on each side of the window.
However, even these designs appeared to have enough space between the
window and the stack obstruction for a one-inch wide reflex reflector
bar if not a 2-inch strip of sheeting material. Also, the material may
be attached to the edge of the window itself if the window is so large
as to occupy all the practicable space for an upper treatment. However,
limited obstructions such as fairing support rods and hoses are not
important enough to dictate the placement of the upper treatment.
Accordingly, the final rule permits the upper material to be obscured
up to 25 percent when viewed directly from behind (the rear orthogonal
view).
TMA and Navistar commented that even material on the cab visible in
a rear orthogonal view would not be useful because it could be obscured
by exhaust stacks or other equipment when viewed at a small angle.
However, the purpose of the upper material is to improve the distance
perception of a driver of a faster vehicle approaching in the same
lane. In this circumstance, the usual view of the truck tractor to the
approaching driver is close to orthogonal. The only instance in which a
truck tractor in the same lane would have a difference in heading angle
great enough to cause total obscuration would be in a curve so sharp
that the tractor would not be illuminated by the approaching headlamps.
Likewise, there is little potential for the upper material to create a
misleading impression of the location of rear of the vehicle because it
is only visible at a distance. As the approaching vehicle nears the
truck tractor, the upper treatment becomes very much dimmer than the
lower material at the mudflaps. This occurs because the headlamps of
vehicles close to the truck tractor do not project much light as high
as the upper treatment. The light entrance angle also becomes
unfavorable for retroreflection as the low headlamps approach the high-
mounted material.
TMA was concerned that the existence of stiffening beads, drip
rails and body seams may preclude the mounting of conspicuity material
depending on the agency's definition of ``discontinuous surfaces''. The
current regulatory language for trailers provides that conspicuity
material ``need not be applied to discontinuous surfaces such as
outside ribs, stake post pockets * * * or to items of equipment such as
door hinges and lamp bodies.'' It does not prohibit the placement of
material at difficult locations that may be labor intensive; it simply
allows manufacturers greater discretion in designing a practicable
treatment. The manufacturer may choose to make breaks in the strips to
clear rivets, body seams and shallow stiffening corrugations for ease
of application, but it is not required to do so. Likewise, the
horizontal and vertical strips are not required to intersect, and
Figure 30-1 in the current trailer conspicuity standard illustrates a
trailer treatment in which the position of a hinge would make
intersecting strips impractical. Also, the
[[Page 41359]]
agency does not consider aerodynamic body fairings as part of the cab
contour. In general, fairings would not be an acceptable location for
conspicuity material except as discussed below.
If the addition of OEM equipment obscures the material (equipment
such as headboards, sleeper compartments, tool boxes and aerodynamic
fairings), Standard No. 108, as well as the statute under which it was
issued, requires that auxiliary conspicuity material be applied to
those components prior to the truck tractor's initial sale in order to
restore the truck tractor to conformity. Further, statutory law
prohibits a manufacturer, distributor, dealer, or motor vehicle repair
business from adding, after initial sale of a vehicle, equipment having
an obscuring effect unless the modifier adds compensating auxiliary
conspicuity material. Thus, the consequences of obscuring the
conspicuity material will be the same as the consequences currently of
obscuring auxiliary high mounted stop lamps by the installation of
pickup truck caps. FHWA's Motor Carrier Safety Regulations would
require auxiliary material on obscuring components on all regulated
vehicles in interstate commerce built after the effective date of this
final rule, regardless of who installed the components.
Continued Requirement for Present Truck Reflex Reflectors
Under the final rule, manufacturers of truck tractors have the
option of using an array of reflex reflectors on the rear instead of
retroreflective sheeting, the same option that is available to trailer
manufacturers. However, reflex reflectors will continue to be required
by Table I of Standard No. 108, in addition to the conspicuity
material, whether sheeting or reflectors, as the agency has not amended
paragraphs S5.1.1.1 and S5.1.1.2 of Standard No. 108 which excuse truck
tractors from the full complement of rear lighting equipment required
of trucks.
Presently, mounting of required reflectors or lamps on mudflaps is
prohibited by paragraph S5.3.1. This requires lighting equipment to be
``securely mounted on a rigid part of the vehicle other than glazing
that is not designed to be removed except for repair''. In the past,
NHTSA has deemed mudflaps not to be a ``rigid part of the vehicle.''
However, the prohibition has been subject to the exceptions ``in
succeeding paragraphs of S5.3.1 and S7'', and NHTSA has now included as
exceptions retroreflective sheeting material or reflex reflectors on
mudflaps added in compliance with the conspicuity requirements of S5.7.
Estimate of Benefits
The benefits estimated for the trailer conspicuity regulation offer
a reasonable basis for estimating the benefits of a similar regulation
for truck tractors. The agency concluded that the likely result of
adding conspicuity treatment to trailers was the prevention of 25
percent of rear collisions, and a significant reduction in the severity
of many of the remaining collisions. Although the required rear
lighting for a truck tractor is less than is required for a trailer,
NHTSA believes that the added degree of conspicuity of a tractor that
would be provided by conspicuity treatment is not less than the
relative improvement in conspicuity of a trailer provided by its
treatment. Thus, it is reasonable to assume a similar rate of crash
prevention.
To account for degradation in performance of the conspicuity
material after years of in-use exposure, in estimating benefits, the
agency assumed that the conspicuity material would be effective only
for the first fifteen years of a given model year tractor fleet's life.
This is consistent with the agency's prior conclusion that the material
would remain effective during the nominal fourteen years of life of a
trailer.
NHTSA estimated that the property damage savings of preventing a
crash into the rear end of a trailer, in 1992 dollars, as $10,869, and,
for damage mitigation, as $2,075 (in 1995 dollars, $11,847 and $2,262
respectively). The agency believes that, when the entire truck tractor
population is equipped with conspicuity treatment, on an annual basis
260 collisions can be prevented, resulting in a savings of $3,080,000,
and that the severity of a large number of the remaining 782 collisions
can be mitigated, resulting in a savings of $1,769,000, or total
property damage benefits of $4,849,000. The present value of these
future benefits of a model year fleet would range from $4,399,000 to
$3,176,000 under discount rate assumptions of 2 percent to 10 percent.
However, the primary purposes of a tractor conspicuity regulation
is to save lives and reduce the severity of injuries. If fatalities
involving rear collisions of truck tractors can be reduced by 15 to 25
percent annually, there will be 4 to 7 fewer deaths attributable to
this type of accident. The agency also believes that there will be 94
to 157 fewer injuries annually when full coverage of the tractor
population is achieved.
Estimate of Costs
In estimating costs, NHTSA has used a price for retroreflective
material of $0.675 a linear foot, although market pressures may have
reduced the cost to $0.60 for high volume users. Approximately 8 linear
feet of material (7.8 feet actually) would be required to comply. NHTSA
is also estimating a labor rate of $22.50 an hour, and an installation
time of 10 minutes for the material.
On this basis, NHTSA estimates a manufacturer's cost of $9.15 when
the lower conspicuity treatment is applied directly to the mudflap
brackets, and a consumer cost of $13.82, applying a consumer cost
factor of $1.51. If the manufacturer chooses to apply the treatment to
temporary mudflap brackets, using two reusable mounting plates at an
additional cost to the manufacturer of $1.11 each, the total additional
cost to the consumer would be $3.35. Thus, the cost to the manufacturer
would range between $9.15 and $11.37, and to the consumer, between
$13.82 and $17.17. Using the latter figure, and estimating an annual
production of 170,000 for truck tractors, the agency estimates that the
total annual cost impact of this regulation will not exceed $2,919,500.
The present value of future property damage reduction benefits from
this regulation in property damage alone are expected to be at least
$3,176,000 with a discount rate of 10 percent and more if a lower
discount rate prevails. The prevention of deaths and injuries would be
achieved with no additional cost.
Effective Date
The NPRM proposed a lead time of 120 days. TMA, Navistar and Ford
commented that a one-year lead time, as was established for the trailer
conspicuity requirement, was necessary. They suggested that
manufacturers would change the design of OEM mudflap brackets to
incorporate conspicuity material. Additional time would be required to
design and procure the new types of mudflap brackets as well as the
mounting plates needed for vehicles leaving the factory with temporary
mudflap equipment.
NHTSA also expects that custom-molded reflex reflectors may be an
effective solution to some of the practicability concerns expressed
about the upper conspicuity material and that manufacturers may choose
to change the location of some rear equipment to ease the installation
of conspicuity material. A sufficient lead time to develop products and
designs to simplify the installation of a conspicuity treatment for
truck tractors is justified. Therefore, NHTSA is adopting the one-year
lead time recommended by truck tractor
[[Page 41360]]
manufacturers. The effective date of the final rule is July 1, 1997.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This action has not been reviewed under Executive Order 12866. It
has been determined that the rulemaking action is not significant under
Department of Transportation regulatory policies and procedures.
Implementation of the rule would not have a yearly cost impact that
exceeds $2,920,000 in the aggregate. Although the cost impacts are so
minimal that preparation of a full regulatory evaluation may not be
warranted, the agency has prepared a regulatory evaluation which has
been placed in the docket.
National Environmental Policy Act
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. It is not anticipated that the final
rule will have a significant effect upon the environment. Compliance
would require the application of not more than 8 feet of
retroreflective tape to the rear of a truck tractor (1,360,000 feet for
an estimated year's production of 170,000 truck tractors).
Retroreflective material is currently in use with no known negative
environmental effects.
Regulatory Flexibility Act
The agency has also considered the impacts of this rulemaking
action in relation to the Regulatory Flexibility Act. I certify that
this rulemaking action will not have a significant economic impact upon
a substantial number of small entities. Accordingly, no regulatory
flexibility analysis has been prepared. Manufacturers of truck
tractors, those affected by the rulemaking action, are generally not
small businesses within the meaning of the Regulatory Flexibility Act.
Further, small organizations and governmental jurisdictions will not be
significantly affected because the price of new truck tractors will be
only minimally increased. An increase in cost of less than $18 per
vehicle is expected to be more than offset by savings in repair over
the life of the model year fleet.
Executive Order 12612 (Federalism)
This rulemaking action has also been analyzed in accordance with
the principles and criteria contained in Executive Order 12612, and
NHTSA has determined that this rulemaking action does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Civil Justice
The final rule will not have any retroactive effect. Under 49
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a state may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard. Section 30163 sets forth a procedure for judicial review of
final rules establishing, amending or revoking Federal motor vehicle
safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
In consideration of the foregoing, 49 CFR part 571 is amended as
follows:
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30162; delegation of
authority at 49 CFR 1.50.
2. Section 571.108 is amended by:
(a) Revising paragraphs S5.3.1, S5.7, S5.7.1, S5.7.1.3(a), S5.7.1.4
(a) and (b), and the headings of S5.7.1.4.1 and S5.7.1.4.2,
(b) Adding new paragraph S5.7.1.4.3,
(c) Revising paragraphs S5.7.2 and S5.7.3, and
(d) Adding Figure 31, to read as follows:
Sec. 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective
Devices, and Associated Equipment.
* * * * *
S5.3.1 Except as provided in succeeding paragraphs of S5.3.1, and
paragraphs S5.7 and S7, each lamp, reflective device, and item of
associated equipment shall be securely mounted on a rigid part of the
vehicle other than glazing that is not designed to be removed except
for repair, in accordance with the requirements of Table I and Table
III, as applicable, and in the location specified in Table II
(multipurpose passenger vehicles, trucks, trailers, and buses 80 or
more inches in overall width) or Table IV (all passenger cars, and
motorcycles, and multi-purpose passenger vehicles, truck, trailers and
buses less than 80 inches in overall width), as applicable.
* * * * *
S5.7 Conspicuity Systems. Each trailer of 80 or more inches
overall width, and with a GVWR over 10,000 lbs., manufactured on or
after December 1, 1993, except a trailer designed exclusively for
living or office use, and each truck tractor manufactured on or after
July 1, 1997, shall be equipped with either retroreflective sheeting
that meets the requirements of S5.7.1, reflex reflectors that meet the
requirements of S5.7.2, or a combination of retroreflective sheeting
and reflex reflectors that meet the requirement of S5.7.3.
S5.7.1 Retroreflective sheeting. Each trailer or truck tractor to
which S5.7 applies that does not conform to S5.7.2 or S5.7.3 shall be
equipped with retroreflective sheeting that conforms to the
requirements specified in S5.7.1.1 through S5.7.1.5.
* * * * *
S5.7.1.3 Sheeting pattern, dimensions, and relative coefficients
of retroreflection.
(a) Retroreflective sheeting shall be applied in a pattern of
alternating white and red color segments to the sides and rear of each
trailer, and to the rear of each truck tractor, and in white to the
upper rear corners of each trailer and truck tractor, in the locations
specified in S5.7.1.4, and Figures 30-1 through 30-4, or Figure 31, as
appropriate.
* * * * *
S5.7.1.4 Location. (a) Retroreflective sheeting shall be applied
to each trailer and truck tractor as specified below, but need not be
applied to discontinuous surfaces such as outside ribs, stake post
pickets on platform trailers, and external protruding beams, or to
items of equipment such as door hinges and lamp bodies.
(b) The edge of white sheeting shall not be located closer than 75
mm to the edge of the luminous lens area of any red or amber lamp that
is required by this standard.
* * * * *
S5.7.1.4.1 Rear of trailers. * * *
S5.7.1.4.2 Side of trailers. * * *
S5.7.1.4.3 Rear of truck tractors. Retroreflective sheeting shall
be applied to the rear of each truck tractor as follows:
(a) Element 1: Two strips of sheeting in alternating colors, each
not less than 600 mm long, located as close as practicable to the edges
of the rear fenders, mudflaps or the mudflap support brackets, to mark
the width of the truck tractor. The strips shall be mounted as
horizontal as practicable, in a vertical plane facing the rear, on the
rear fenders, mudflap support brackets, on plates attached to the
mudflap support brackets, or on the mudflaps. Strips on mudflaps shall
be mounted not lower than 300 mm below the lower edge of the mudflap
support bracket. If
[[Page 41361]]
the vehicle is certified with temporary mudflap support brackets, the
strips shall be mounted on the mudflaps or on plates transferable to
permanent mudflap support brackets.
(b) Element 2: Two pairs of white strips of sheeting, each pair
consisting of strips 300 mm long, applied as horizontally and
vertically as practicable, to the right and left upper contours of the
body, as close to the top of the body and as far apart as practicable.
No more than 25 percent of their cumulative area may be obscured by
vehicle equipment as determined in a rear orthogonal view. If one pair
must be relocated to avoid obscuration by vehicle equipment, the other
pair may be relocated in order to be mounted symmetrically.
S5.7.2 Reflex Reflectors. Each trailer or truck tractor to which
S5.7 applies that does not conform to S5.7.1 or S5.7.3 shall be
equipped with reflex reflectors in accordance with this section.
* * * * *
S5.7.3 Combination of sheeting and reflectors. Each trailer or
truck tractor to which S5.7 applies that does not conform to S5.7.1 or
S5.7.2, shall be equipped with retroreflective materials that meet the
requirements of S5.7.1 except that reflex reflectors that meet the
requirements of S5.7.2.1, and that are installed in accordance with
S5.7.2.2, may be used instead of any corresponding element of
retroreflective sheeting located as required by S5.7.1.4.
* * * * *
3. Figure 31 is added as follows:
BILLING CODE: 4910-59-P
[[Page 41362]]
[GRAPHIC] [TIFF OMITTED] TR08AU96.000
BILLING CODE 4910-59-C
Issued on July 24, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-19353 Filed 8-7-96; 8:45 am]
BILLING CODE 4910-59-P
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