issue-1996-05-07•Federal Register final rules — 1996-05-07
Federal Register final rules — 1996-05-07
issue-1996-05-07Federal Register final rules — 1996-05-07Regulation
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FR Doc. 96-11374 Amendment of the Type Certification Procedures for Changes in Helicopter Type Design to Attach or Remove External Equipment
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20696-20699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11374]
[[Page 20695]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 21
Type Certification Procedures: Changes in Helicopter Type Design for
External Equipment; Final Rule
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20696]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 21
[Docket No. 28334; Amendment No. 21-73]
RIN 2120-AF10
Amendment of the Type Certification Procedures for Changes in
Helicopter Type Design to Attach or Remove External Equipment
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the existing helicopter noise
certification procedures with respect to certain changes in type
designs. The applicability of the noise certification procedures is
amended to exclude those changes in type design that involve the
attachment or removal of external equipment, floats and skis, and
certain airframe and operational changes made to accommodate such
changes in type design (acoustical change requirements). Also excluded
from the applicability of the acoustical change requirements are
helicopter flight operations with doors and/or windows removed or in an
open position. This amendment also makes U.S. helicopter noise
certification regulations more consistent with the International Civil
Aviation Organization (ICAO) standards.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Kenneth E. Jones, Research and Engineering Branch (AEE-110),
Technology Division, Office of Environment and Energy, FAA, 800
Independence Avenue, SW., Washington, D.C. 20591; telephone (202) 267-
8933, facsimile (202) 267-5594.
SUPPLEMENTARY INFORMATION: The purpose of this rulemaking is to amend
the applicability of the helicopter noise certification procedures to
exclude those changes in helicopter type design that involve the
attachment or removal of external equipment, floats and skis, and
certain airframe and operational changes made to accommodate such
changes in type design (acoustical change requirements). Also excluded
from the acoustical change requirements are helicopter flight
operations with doors and/or windows removed or in an open position.
This amendment is based on Notice of Proposed Rulemaking (NPRM) Notice
No. 95-15 (60 FR 48790, September 20, 1995; Docket No. 28334) in which
comments were invited. No comments were received in the docket in
response to the NPRM. Accordingly, the final rule is adopted as
proposed in the NPRM.
Background
Statement of the Problem
The certification procedures for aeronautical products and parts
are contained in 14 CFR part 21. Under part 21, an applicant for
approval of a change to a helicopter type certificate must show
compliance with the noise regulations in 14 CFR part 36 (part 36) if
the change in type design may increase the noise level of the
helicopter (an acoustical change). Section 21.93 defines an
``acoustical change'' and classifies the aircraft which must
demonstrate compliance with part 36 following an acoustical change.
Section 21.93(b)(4) describes helicopters required to demonstrate
compliance with part 36 for an acoustical change, and specifically
excludes helicopters designated exclusively for ``agricultural aircraft
operations,'' ``dispensing firefighting materials,'' or ``carrying
external loads.'' The intent of the existing Sec. 21.93(b)(4) is to
exclude helicopters designated exclusively to carry external loads from
the requirement to demonstrate compliance with part 36.
This amendment addresses type certification (including noise
requirements) procedures for changes to helicopter type designs to
configure helicopters for carriage of external equipment. External
equipment is defined herein as any instrument, mechanism, part,
apparatus, or accessory that is attached to or extends from the
helicopter exterior but is not used nor is intended to be used in
operating or controlling a helicopter in flight and its not part of an
airframe or engine. Examples of external equipment are spotlights,
cameras, airborne signs, and cargo tanks and baskets.
External equipment may be attached to a helicopter as a Class A
Rotorcraft External Load Combination under 14 CFR part 133 (part 133)
``Rotorcraft External Load Operations'', or alternatively, the external
equipment may be attached to the helicopter as a change in type design
under Subpart D of part 21. The noise certification requirements do not
apply to any helicopter, regardless of airworthiness certification
category, that is designated exclusively for carrying external loads
pursuant to part 133. Section 133.51 states that ``[a] Rotocraft
External-Load Operator Certificate is a current and valid airworthiness
certificate for each rotocraft . . . listed by registration number on a
list attached to the certificate, when the rotocraft is being used in
operations conducted under [part 133].'' However, when the original
helicopter noise certification rules were adopted in part 21, external
equipment was not excluded from the acoustical change provisions of
Sec. 21.93. Thus, except for helicopters operated under part 133, the
addition of external equipment was, prior to this amendment, subject to
the acoustical change provisions of Sec. 21.93. This amendment of
Sec. 21.93 reconciles the procedural treatment of external equipment
added to helicopters with the intent of Sec. 21.93(b)(4) by expanding
the acoustical change exception to include carriage of external
equipment.
History of Aircraft Noise Certification Regulations Relevant to This
Amendment
On November 3, 1969, the Administrator of the FAA adopted part 36
entitled ``Noise Standards: Aircraft Type Certification.'' That action
implemented the FAA's regulatory noise abatement program by prescribing
type certification noise standards for subsonic turbojet powered
airplanes. Procedural changes were concurrently made to part 21,
``Certification Procedures for Products and Parts,'' to provide
criteria and requirements for demonstrating compliance with the
specifications in part 36 (34 FR 18355, November 18, 1969). The noise
certification requirements of parts 21 and 36 are designed to promote
the incorporation of noise abatement technology into aircraft design.
Parts 21 and 36 have been amended as appropriate to add new aircraft
types to the certification requirements or change the technical
specifications as necessary. Subsequently, helicopter noise
certification requirements were adopted with amendment 36-14 to part 36
and amendment 21-61 to part 21 (53 FR 3534, February 5, 1988).
The first amendment to part 21 relevant to the original aircraft
noise certification regulation was amendment 21-27 (34 FR 18355,
November 10, 1969). That amendment established the general requirement
that an applicant must demonstrate compliance with the applicable
provisions of the part 36 procedures prior to issuance of an original,
amended, or supplemental type certificate. The same amendment to part
21 included the addition under Sec. 21.93(b) that specified an
``acoustical change'' as any voluntary change in type design of a
transport category or turbojet-powered airplane that may increase the
noise levels of that airplane. Section 21.93 was subsequently amended
in response to
[[Page 20697]]
the promulgation of part 36 noise standards for propeller-driven
airplanes (Amdt. 21-42; 40 FR 1029, January 6, 1975), supersonic
airplanes (Amdt. 21-47; 43 FR 28406, June 29, 1978), commuter category
airplanes (Amdt. 21-59; 52 FR 1806, January 15, 1987), and helicopters
(Admt. 21-61; 53 FR 3534, February 5, 1988).
Section 21.93 has also been amended to exclude certain changes in
aircraft type design from the acoustical change requirements. The
necessity for excluding these changes in type design became apparent
only after experience was gained from implementation of the original
noise certification regulations for the aircraft type in question. For
turbojet-powered airplanes, amendment 21-56 (47 FR 756, January 7,
1982) excludes time-limited engine and/or nacelle changes, where the
change in type design specifies that the airplane may not be operated
for a period of more than 90 days, and amendment 21-62 (53 FR 16360,
May 6, 1988) excludes both gear down flight with one or more
retractable landing gear down during the entire flight and spare engine
and nacelle carriage external to the skin of the aircraft. For
propeller-driven commuter category and propeller-driven small
airplanes, amendment 21-63 (53 FR 47394, November 22, 1988) excludes
``antique'' airplanes (i.e., those airplanes that have flight time
before January 1, 1955) and land configurated aircraft reconfigured
with floats and skis.
Synopsis of the Amendment
This amendment changes the acoustical change provisions of
Sec. 21.93 to exclude helicopters that have been modified by the
addition or removal of external equipment mounted on the helicopter
airframe or floats (rigid or bag) and skis. This amendment also
excludes certain changes in helicopter type design from the acoustical
change requirements otherwise applicable to certain airframe changes
made to accommodate the external equipment and to helicopter flight
operations with doors and/or windows removed or in an open position.
This amendment also applies to any operating limitations placed on, or
removed from the helicopter as a consequence of the addition or removal
of external equipment, floats, and skis.
The FAA recognizes the utility aspect of the helicopter as an
aerial platform of external equipment. It is a common practice in the
helicopter industry to add or remove external equipment as mission
requirements vary. Although external equipment may be offered by the
original manufacturer of the helicopter, it is usually added as an
after-market addition by individual operators to meet specific mission
needs. Given the potential variety of external equipment, the nature of
the external equipment is not considered part of the basic design of a
given helicopter and does not influence the basic aerodynamic design or
the incorporation of noise abatement technology into the helicopter
design. As stated in the preamble of the final rule (cited previously)
for the original helicopter noise certification rulemaking, ``. . . the
[helicopter] noise standards apply [only] to internal load
configurations.''
This amendment is consistent with a similar provision in the
applicability section of the helicopter noise certification standard
approve by the ICAO under its International Standards and Recommended
Practices: Environmental Protection; Annex 16, Volume 1, Chapters 8 and
11 (Third Edition-July 1993). This amendment brings the acoustical
change provision in the U.S. noise certification regulations into
closer harmony with that used by foreign noise certification
authorities.
The FAA has determined that this amendment will provide benefits in
the form of regulatory relief to the helicopter industry and to
individual helicopter operators. This amendment will result in little
or no increase of public exposure to helicopter noise emissions. Prior
to this amendment, type certification procedures and the helicopter
regulations changed by this amendment imposed an undue financial burden
on the helicopter industry and operators without providing any
measurable benefit to the public.
Details of the amendment and limitations of the amendment are
provided in the following analysis.
Sec. 21.93 Classification of changes in type design.
Part 21 prescribes that certain types of aircraft, including
helicopters, must demonstrate compliance with the applicable
requirements of part 36 if a change in type design results in an
acoustical change. Section 21.93 specifies an ``acoustical change'' as
any voluntary change in type design (including operational limitations)
that may increase the noise levels of an aircraft. This amendment,
applicable only to helicopters, excludes the installation or removal of
external equipment from being considered an acoustical change. The
amendment specifically excludes from the acoustical change provision
the addition or removal of all external equipment where ``external
equipment'' means any instrument, mechanism, part, apparatus,
appurtenance, or accessory (e.g., spotlights, cameras and other optical
devices, public address systems, hoists, airborne signs, tow banners,
cargo tanks and baskets, emergency flotation gear, personnel platforms,
wire strike kits, crop spraying equipment, scientific apparatus and
their accessories) that is not used or intended to be used in operating
or controlling an aircraft in flight, that is attached to the
helicopter, and is not part of an airframe or engine. This amendment
applies to changes in the airframe made to:
(1) Accommodate the addition or removal of external equipment:
(2) Facilitate the use of external equipment; or
(3) Facilitate the safe operation of the helicopter with external
equipment mounted on the helicopter.
Examples of airframe changes that are excepted include fairings,
attachment hardware, cavities constructed in the airframe to
accommodate conformally attached equipment, and bubble windows. This
amendment also excludes from the acoustical change provision external
load attaching means, the airworthiness certification of which is
specified in Secs. 27.865 and 29.865.
This amendment excludes the addition or removal of floats and skis
on helicopters from the acoustical change provision. This amendment
makes it clear that any changes in the operating limitations placed on
the helicopter as a consequence of the addition or removal of external
equipment, floats, and skis is not an acoustical change. Similarly, it
also excludes flight operations conducted with one or more doors and/or
windows removed or in an open position.
The FAA has included addition or removal of floats and skis on
helicopters under this amendment in order to provide the same provision
for helicopters as is currently provided small propeller driven
airplanes and propeller driven commuter category airplanes under
Sec. 21.93(b)(3). The acoustical change requirements of Sec. 21.93 do
not require a noise certification compliance demonstration for such
airplanes because the FAA did not have a rational basis to consider
such design configurations in the original rulemaking that established
noise certification requirements for theses aircraft. While the
addition of floats and skis adversely affects the aerodynamic
performance, and consequently the noise levels, of both small airplanes
and helicopters, the FAA lacks the acoustical and performance data
necessary to develop
[[Page 20698]]
noise certification regulations relevant to small airplanes and
helicopters that are reconfigured by the addition of floats or skis.
If a noise compliance demonstration is otherwise required for
compliance with part 36, the noise flight test must be conducted
without any external equipment, floats, or skis mounted to the
helicopter and with doors and windows mounted and closed (i.e.,
aerodynamically clean configuration) unless otherwise approved or
required by the FAA. In granting such approvals or establishing such
requirements, the rationale for the FAA's decision will be based on
whether or not the measured helicopter noise levels from a proposed
noise compliance demonstration would be representative of a ``clean
configured'' helicopter. For example, assume a cavity was created in
the fuselage (as a related airframe change) to accommodate a
conformally (flush) fitted camera. Under this amendment, both the
camera and the cavity are excluded from the acoustical change
requirements of part 21. However, in the event of any future noise
testing of that helicopter for a change in type design unrelated to the
camera and cavity, such a noise test without the camera mounted and the
cavity exposed would likely lead to unrepresentative noise levels due
to alternation of the aerodynamic performance of the helicopter. In
this example, during the actual noise test for the unrelated change in
type design, the FAA would probably require that the flush-mounted
camera be inserted in its associated fuselage cavity or that the
fuselage cavity be covered in a manner that would return the fuselage
to its original aerodynamic shape. Similarly, any analysis for the
purpose of demonstrating a ``non-acoustical change'' under Sec. 21.93
must assume performance levels consistent with an aerodynamically clean
helicopter (relative to the changes in type design excluded under this
amendment). That is, a decrease in a noise certification level effected
by the addition of equipment excluded under this amendment may not be
used to ``mathematically'' offset an increase in noise from a change in
type design not affected by this amendment. For example, assuming the
certification basis for a given helicopter is part 36 Appendix J, an
increase in the flyover noise certification level caused by the upgrade
of a transmission may not be offset by the decrease in noise from the
assumed addition of external equipment, floats or skis as part of the
change in type design for the transmission.
The FAA also deletes by this amendment the previous text in
Sec. 21.93(b)(4)(i) and (ii). Those paragraphs indicated examples of
design changes which would be considered acoustical changes. Since
Sec. 21.93(b) already makes it clear that ``any voluntary change in the
type design of an aircraft that may increase the noise levels of the
aircraft is an `acoustical change' . . . .'' paragraphs
Sec. 21.93(b)(4)(i) and (ii) could have been erroneously interepreted
to indicate that (any) change to a muffler (including a change to a
quieter muffler) is by regulation an acoustical change. Paragraphs (i)
and (ii) did not represent a regulatory requirement and added nothing
toward the interpretation of the acoustical change requirements for
helicopters. The amended text addresses the definition of external
equipment and the exclusions discussed earlier in this synopsis.
The FAA has examined such factors as the utility aspect of the
helicopter mission, the necessity for the addition or removal of
external equipment to meet mission needs, the relevance of such
equipment with regard to the incorporation of noise abatement
technology in the design of the helicopter, and the desire for
commonality of U.S. noise certification regulations with relevant
international standards and foreign national regulations. After
consideration of these factors, the Administrator determined that the
amendment is consistent with the criteria set forth for proposing and
amending aircraft noise abatement regulations under the authority of
Sec. 611(d) of the Federal Aviation Act of 1958.
International Compatibility
The FAA has reviewed corresponding ICAO standards and JAA
regulations, were they exist. This amendment makes U.S. helicopter
noise certification regulations more consistent with the ICAO
standards.
Paper Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
511), there are no requirements for information collection associated
with this amendment.
Regulatory Evaluation Summary
Three principal requirements pertain to the economic impacts of
changes to the Federal Regulations. First, Executive Order 12866
directs Federal agencies to promulgate new regulations or modify
existing regulations only if the expected benefits to society outweigh
the expected costs. Second, the regulatory Flexibility Act of 1980
requires agencies to analyze the economic impact of regulatory changes
on small entities. Finally, the Office of Management and Budget directs
agencies to assess the effect of regulatory changes on international
trade. In conducting these analyses, the FAA has determined that this
rule: (1) Will generate benefits exceeding costs; (2) is not
``significant'' as defined in the Executive Order and DOT's policies
and procedures; (3) will not have a significant impact on a substantial
number of small entities; (4) will lessen restraints on international
trade. These analyses, available in the docket, are summarized below.
Benefits
The final rule will provide regulatory relief and a cost savings of
$31,690,468 (non-discounted) or $23,409,159 discounted, over a ten year
period, to helicopter manufacturers, modifers, and operators. Of this
amount, the projected cost savings for part 36 noise certification
testing are as follows: Appendix H testing for helicopter manufacturers
is $4,800,000 (non-discounted) or $4,264,244 discounted; Appendix J
testing for helicopter manufacturers is $3,000,000 (non-discounted) or
$2,330,305 discounted; and Appendix J Testing for modifers, $22,500,000
(non-discounted) or $15,803,025 discounted. The FAA will also realize
administrative cost savings under these appendices as follows: Appendix
H, $222,460 (non-discounted) or $178,312 discounted; Appendix J,
$231,740 (non-discounted) or $173,525 discounted; and Appendix J (for
modifiers), $936,268 (non-discounted) or $659,748 discounted.
Costs
From a number of noise certification studies, the FAA has learned
that allowing applicants to attach external equipment to their
helicopters will result in no net increase in helicopter noise or, at
worst, insignificant increases in noise levels.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule will have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. FAA Order 2100.14A, Regulatory Flexibility
Criteria and Guidance prescribes standards for complying with RFA
review requirements in FAA
[[Page 20699]]
rulemaking actions. The order defines ``small entities'' in terms of
size thresholds, ``significant economic impact'' in terms of annualized
cost threshold, and ``substantial number'' as a number that is not less
than eleven and that is more than one-third of the small entities
subject to the final rule.
The FAA has determined that, in accordance with the above order,
the final rule to part 21 will not have a significant economic impact
on a substantial number of small entities. The final rule will directly
affect two types of entities: (1) Light helicopter manufacturers, and
(2) small helicopter modifiers.
For small aircraft and aircraft parts manufacturers, Order 2100.14A
specifies a size threshold for classification as a small entity as 75
or fewer employees. Based upon this size threshold, all of the affected
U.S. manufacturers are large. For the purpose of the regulatory
flexibility determination, an aircraft modifier is considered a small
entity if it has 200 on fewer employees.
The FAA concludes that a substantial number of small entities (less
than one third) will not be significantly affected by the final rule.
Therefore, the final rule will not impose a significant economic impact
on a substantial number of small entities, and a regulatory flexibility
analysis is not required.
Trade Impact Assessment
The FAA has determined that the final rule will neither affect the
sale of foreign aviation products and services in the United States nor
the sale of U.S. products and services in foreign countries. This
determination is based on the FAA's contention that the final rule will
align the U.S. standards more closely with foreign standards for noise
certification of external equipment.
Federalism Implications
The regulations herein will not have a substantial direct effects
on the states, on the relationship between the national government and
the states, or on the distribution of power and responsibilities among
the various levels of government. Therefore, in accordance with
Executive Order 12612, it is determined that this proposed rule would
not have sufficient federalism implications to warrant the preparation
of a Federalism Assessment.
Environmental Analysis
Pursuant to the Department of Transportation ``Policies and
Procedures for Considering Environmental Impacts'' (FAA Order 1050.1D),
the FAA has determined that this rule does not significantly affect the
human environment. A Finding of No Significant Impact has been prepared
and placed in the docket.
Justification for Immediate Adoption
The FAA has determined that further delay in the adoption of this
rule would cause undue burden to U.S. manufacturers, modifiers, and
operators of helicopters. This final rule does not impose new
regulatory requirements; rather, it corrects an oversight in the
original helicopter noise certification rulemaking, which unnecessarily
applied acoustical change noise certification requirements to some
external load configurations. Although the preamble of that original
rulemaking stated that the noise certification regulations applied only
to internal load configurations, the necessary amendatory language that
would effect that applicability was not made in all of the relevant
portions of the noise certification regulations. At present, there are
several applications pending for changes in helicopter type design
which call for the addition of external equipment. Without this rule,
those applicants are unintentionally subject to costly noise
certification testing. Accordingly, the FAA has determined that good
cause exist to make this rule effective in less than 30 days.
Conclusion
The FAA has determined that this final rule: (1) is not a
significant regulatory action under Executive Order 12866; (2) is not a
significant regulatory action under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. In addition, this final rule will have little or no
affect on trade opportunities for U.S. firms doing business overseas,
or on foreign firms doing business in the United States.
List of Subjects in 14 CFR Part 21
Aircraft, Helicopters, Noise control.
The Amendment
Accordingly, the Federal Aviation Administration amends 14 CFR part
21 as follows:
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS
1. The authority citation for part 21 continues to read as follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113,
44701-44702, 44707, 44709, 44711, 44713, 44715, 45303.
2. Section 21.93 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 21.93 Classification of changes in type design.
* * * * *
(b) * * *
(4) Helicopters except:
(i) Those helicopters that are designated exclusively:
(A) for ``agricultural aircraft operations'', as defined in
Sec. 137.3 of this chapter, as effective on January 1, 1966;
(B) for dispensing fire fighting materials; or
(C) for carrying external loads, as defined in Sec. 133.1(b) of
this chapter, as effective on December 20, 1976.
(ii) Those helicopters modified by installation or removal of
external equipment. For purposes of this paragraph, ``external
equipment'' means any instrument, mechanism, part, apparatus,
appurtenance, or accessory that it attached to, or extends from, the
helicopter exterior but is not used nor is intended to be used in
operating or controlling a helicopter in flight and is not part of an
airframe or engine An ``acoustical change'' does not include:
(A) addition or removal of external equipment;
(B) changes in the airframe made to accommodate the addition or
removal of external equipment, to provide for an external load
attaching means, to facilitate the use of external equipment or
external loads, or to facilitate the safe operation of the helicopter
with external equipment mounted to, or external loads carried by, the
helicopter;
(C) reconfiguration of the helicopter by the addition or removal of
floats and skis;
(D) flight with one or more doors and/or windows removed or in an
open position; or
(E) any changes in the operational limitations placed on the
helicopter as a consequence of the addition or removal of external
equipment, floats, and skis, or flight operations with doors and/or
windows removed or in an open position.
* * * * *
Issued in Washington DC on May 1, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-11374 Filed 5-6-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-11373 Transportation of Hazardous Materials Regulations; Technical Amendment
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20496-20497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11373]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 397
RIN 2125-AD90
Transportation of Hazardous Materials Regulations; Technical
Amendment
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; technical amendment.
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SUMMARY: This document makes a technical amendment to correct the
authority citation for 49 CFR part 397. A citation which was
erroneously deleted will be reinserted, and other specific references
will be added to update this authority citation.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Nathan C. Root, Office of Motor
Carrier Research and Standards, (202) 366-4009 or Raymond W. Cuprill,
Office of Chief Counsel, (202) 366-0834. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
In 1988, in the course of making other changes to part 397, the
Federal Highway Administration (FHWA) inadvertently eliminated from the
authority citation the reference to section 204 of the Interstate
Commerce Act, as amended (formerly found at 49 U.S.C. 304). The FHWA
did not intend to eliminate this reference, and with this rulemaking,
the FHWA is simply reinserting into the authority citation this
reference (now codified at 49 U.S.C. 31502). The FHWA is also adding to
the authority a reference to 49 U.S.C. 31136 (formerly section 206 of
the Motor Carrier Safety Act of 1984). This citation refers to the
authority of the Secretary of Transportation to prescribe regulations
on commercial motor vehicle safety. In addition, the FHWA is amending
in the authority section the current reference to 49 U.S.C. 5101 et
seq. in order to reflect the specific sections of the law--49 U.S.C.
5112 and 5125--that provide the authority for the regulations found in
subparts C through E of 49 CFR part 397.
Rulemaking Analyses and Notices
This final rule simply revises the authority citation for the
FHWA's Transportation of Hazardous Materials regulations to remove an
incorrect reference and to insert several references, one of which was
used previously but was then erroneously removed. Thus, the FHWA
believes that prior notice and opportunity for comment are unnecessary
under 5 U.S.C. 553(b)(3)(B). Similarly, due to the editorial nature of
this final rule, the FHWA has determined that prior notice and
opportunity for comment are not required under the Department of
Transportation's regulatory policies and procedures. It is not
anticipated that provision of a comment period would result in the
receipt of useful information. In this final rule, the FHWA is not
exercising discretion in a way that could be meaningfully affected by
public comment.
In addition, the FHWA finds that good cause exists to dispense with
the 30-day delay in the effective date required by 5 U.S.C. 553(d) due
to the minor and technical nature of these amendments. Thus, the FHWA
is proceeding directly with a final rule which will be effective on its
date of publication.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
Because this rule simply makes minor, technical corrections to the
authority citation for 49 CFR part 397, this rulemaking is not likely
to have an annual effect on the economy of $100 million or more. It is
also not expected to cause an adverse effect on any sector of the
economy. In addition, no serious inconsistency or interference with
another agency's actions or plans will result. Thus, the FHWA has
determined that this action is not a significant regulatory action
under Executive Order 12866. Neither is it a significant rulemaking
under the Department of Transportation's regulatory policies and
procedures because it also does not concern a matter about which there
is substantial public interest or controversy; it will not have a
substantial effect on State and local governments or raise a major
transportation safety problem; in addition, it will not initiate a
substantial regulatory program or change in policy. Therefore, a full
regulatory evaluation is not warranted.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based upon this evaluation, the FHWA certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12612 (Federalism Assessment)
The FHWA has reviewed this action to ensure its compliance with the
principles and criteria contained in Executive Order 12612, and it has
been determined that this rulemaking does not raise sufficient
federalism issues to warrant the preparation of a separate Federalism
Assessment. This final rule will not preempt any State law or State
regulation, and no additional costs or burdens will be imposed on the
States. In addition, this rule will have no effect on the States'
ability to discharge traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Number 20.217, Motor Carrier
Safety. The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for the purposes of the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has reviewed this action to ensure compliance with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action will have no effect on the quality of the
environment. Thus, an environmental impact statement is not required.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 397
Hazardous materials transportation, Highway safety, Highways and
roads, Motor carriers, Motor vehicle safety.
[[Page 20497]]
Issued on: April 29, 1996.
Rodney E. Slater,
Federal Highway Administrator.
The FHWA hereby amends 49 CFR part 397 by revising the authority
citation to read as follows:
PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND
PARKING RULES--[AMENDED]
Authority: 49 U.S.C. 322; 49 CFR 1.48. Subpart A also issued
under 49 U.S.C. 31136, 31502. Subparts C, D, and E also issued under
49 U.S.C. 5112, 5125.
[FR Doc. 96-11373 Filed 5-6-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-11351 Exchange Visitor Program
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Page 20437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11351]
=======================================================================
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Interim rule; partial stay.
-----------------------------------------------------------------------
SUMMARY: The Agency hereby stays the effective date of
Sec. 514.20(j)(2)(i). This regulation was promulgated pursuant to
interim rule published on April 8, 1996 (61 FR 15373). This stay will
delay by 150 days, the requirement that program extension requests for
professor or research scholar participants be received by the Agency
ninety days prior to the expiration of the participant's program. This
stay will permit a transition period for the requirement set forth in
Sec. 514.20(j)(2)(i). This stay does not apply to any other section of
the interim rule published on April 8, 1996.
DATES: This stay is effective from May 7, 1996, until October 4, 1996.
FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information
Agency, 301 4th Street, SW., Washington, DC 20547; telephone, (202)
619-4979.
List of Subjects in 22 CFR Part 514
Cultural Exchange Programs.
Dated: May 2, 1996.
Les Jin,
General Counsel.
Accordingly, 22 CFR Part 514 is amended as follows:
PART 514--EXCHANGE VISITOR PROGRAM
1. The authority citation for Part 514 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3
CFR, 1977 Comp. p 200; E.O. 12048, 43 FR 13361, 3 CFR, 1978 Comp. p
168, USIA Delegation order No. 85-5 (50 FR 27393).
2. Section Sec. 514.20 (j)(2)(i) is stayed from May 7, 1996 until
October 4, 1996.
[FR Doc. 96-11351 Filed 5-6-96; 8:45 am]
BILLING CODE 8230-01-M
Complete official Federal Register PDF
FR Doc. 96-11326 Radio Broadcasting Services; Saltville, VA and Jefferson, NC
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)] [Rules and Regulations] [Pages 20490-20491] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-11326] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MM Docket No. 91-137, RM-7494] Radio Broadcasting Services; Saltville, VA and Jefferson, NC AGENCY: Federal Communications Commission. ACTION: Final rule; denial of reconsideration. ----------------------------------------------------------------------- SUMMARY: The Chief, Policy and Rules Division denied the petition for reconsideration, filed by Smith Communications, Inc., of the Report and Order in this proceeding, 56 FR 23260, published May 21, 1991. The Chief also affirmed the Report and Order and its use of the Commission's standard propagation prediction methodology. The Report and Order had granted the petition (RM-7494) of 106.1, Inc. to upgrade the construction permit at Saltville from Channel 291A to Channel 291C3, to reallot it to Jefferson, and to modify its permit to specify Jefferson as the new community of license. With [[Page 20491]] this action, the proceeding is terminated. EFFECTIVE DATE: May 7, 1996. FOR FURTHER INFORMATION CONTACT: J. Bertron Withers, Jr., Mass Media Bureau, (202) 418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Memorandum Opinion and Order, MM Docket No. 91-137, adopted April 19, 1996 and released April 30, 1996. The full text of this Commission decision is available for inspection and copying during normal business hours in FCC's Reference Center (Room 239), 1919 M Street, NW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, 2100 M Street, NW., Suite 140, Washington, DC 20037, (202) 857-3800. Federal Communications Commission. Douglas W. Webbink, Chief, Policy and Rules Division, Mass Media Bureau. [FR Doc. 96-11326 Filed 5-6-96; 8:45 am] BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11325 Radio Broadcasting Services; Garberville and Hydesville, CA
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Page 20490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11325]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 94-61; RM-8464]
Radio Broadcasting Services; Garberville and Hydesville, CA
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document allots Channel 231C1 to Hydesville, California.
This document also dismisses a proposal by Brett E. Miller to reallot
Channel 279C1 from Garberville, California, to Hydesville, California.
See 59 FR 35081, July 8, 1996. The reference coordinates for Channel
231C1 are 40-27-58 and 124-04-28. With this action, the proceeding is
terminated.
DATES: Effective June 14, 1996. The window period for filing
applications will open on June 14, 1996, and close on July 15, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Hayne, Mass Media Bureau, (202)
418-2177.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order in MM Docket No. 94-61, adopted April 16, 1996, and
released April 30, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractor, International Transcription Service,
Inc., (202) 857-3800, 1919 M Street, NW., Room 246, or 2100 M Street,
NW., Suite 140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under California,
is amended by adding Hydesville, Channel 231C1.
Federal Communications Commission.
John A Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-11325 Filed 5-6-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11282 Claims Pursuant to the Government Losses in Shipment Act
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Page 20437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11282]
=======================================================================
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DEPARTMENT OF THE TREASURY
Fiscal Service
31 CFR Part 361
Claims Pursuant to the Government Losses in Shipment Act
AGENCY: Bureau of the Public Debt, Fiscal Service, Department of the
Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends 31 CFR Part 361 to reflect the change
of address which resulted when the Bureau of the Public Debt's Division
of Financial Management was moved from Washington, D.C. to Parkersburg,
West Virginia.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Lisa Yoke Martin, Attorney-Adviser,
Office of the Chief Counsel, Bureau of the Public Debt, Parkersburg,
WV, at 304-480-5197, or via the Internet at [email protected], or
Kila Frank, CFO Coordinator, Division of Financial Management, Bureau
of the Public Debt, Parkersburg, WV, at 304-480-6201. A copy of this
final rule has been made available for downloading from the Bureau of
the Public Debt home page at the following address: http://
www.ustreas.gov/treasury/bureaus/pubdebt/pubdebt.html
SUPPLEMENTARY INFORMATION:
Background
The Bureau of the Public Debt has consolidated many of its
functions and offices, including its Division of Financial Management,
into its offices in Parkersburg, West Virginia. Accordingly, reports
and claims pursuant to the Government Losses in Shipment Act should now
be sent directly to the Division's Parkersburg address.
Procedural Requirements
This final rule is not a ``significant regulatory action'' pursuant
to Executive Order 12866. This final rule merely reflects the change of
address which resulted when the Bureau of the Public Debt's Division of
Financial Management was moved from Washington, DC to Parkersburg, WV.
Accordingly, notice and public procedure thereon is unnecessary.
Pursuant to 5 U.S.C. 553(d)(3), good cause is found for making this
rule effective upon publication. As no notice of proposed rulemaking is
required, the provisions of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.) do not apply. There are no collections of information
required by this rule, and, therefore, the Paperwork Reduction Act does
not apply.
List of Subjects in 31 CFR Part 361
Claims, Common carriers, Fiscal Service, Freight, Government
property.
Dated: May 1, 1996.
Richard L. Gregg,
Commissioner of the Public Debt.
For the reasons set out in the preamble, 31 CFR Part 361 is amended
as follows:
PART 361--CLAIMS PURSUANT TO THE GOVERNMENT LOSSES IN SHIPMENT ACT
1. The authority citation for Part 361 continues to read as
follows:
Authority: Sec. 6, 50 Stat. 480; 40 U.S.C. 728.
2. Paragraph (a) of Sec. 361.7 is amended by revising the first
sentence to read as follows:
Sec. 361.7 Report of loss, destruction or damage.
(a) If a consignor receives notice that loss or destruction of, or
damage to, valuables shipped in accordance with the Act has occurred,
an immediate written report shall be forwarded by the consignor to the
Secretary, to the attention of the Bureau of the Public Debt, Division
of Financial Management, Room 201, P. O. Box 1328, Parkersburg, WV
26106-1328. * * *
* * * * *
3. Section 361.8 is amended by revising the first sentence to read
as follows:
Sec. 361.8 Claim for replacement.
Claim for replacement shall be made in writing to the Secretary, to
the attention of the Bureau of the Public Debt, Division of Financial
Management, Room 210, P. O. Box 1328, Parkersburg, WV 26106-1328. * * *
[FR Doc. 96-11282 Filed 5-6-96; 8:45 am]
BILLING CODE 4810-39-P
Complete official Federal Register PDF
FR Doc. 96-11281 Schedule for Rating Disabilities; Endocrine System Disabilities
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20440-20447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11281]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AE41
Schedule for Rating Disabilities; Endocrine System Disabilities
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends that portion of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities that addresses
the Endocrine System. The effect of this action is to update the
endocrine portion of the rating schedule to ensure that it uses current
medical terminology and unambiguous criteria, and that it reflects
medical advances which have occurred since the last review.
DATES: This amendment is effective June 6, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff (211B), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of
the rating schedule since 1945, VA published a proposal to amend 38 CFR
4.119, which addresses the endocrine system, in the Federal Register of
January 22, 1993 (58 FR 5691-95). Interested persons were invited to
submit written comments on or before March 23, 1993. We received
comments from The American Legion, Disabled American Veterans, Veterans
of Foreign Wars, Paralyzed Veterans of America, and VA employees.
There were a number of general comments. Two commenters requested
that we establish more objective criteria, especially for thyroid
disease, parathyroid disease, and diabetes mellitus. One of them noted
that a substantial number of subjective descriptors remained. The other
recommended that we remove ambiguous and undefined terms. One commenter
said that the schedule should eliminate, as much as possible, the
potential for inconsistency and error. Another suggested that removing
comparative descriptions such as ``severe,'' ``moderate'', etc., would
not disturb the remaining criteria and would result in more uniform
rating decisions.
Although the commenters offered no specific alternatives for
consideration, VA agrees that objective rating criteria help assure
consistency of evaluations. With that in mind, we have revised the
proposed criteria. In some cases we have simply removed subjective
terms such as ``marked'', ``increasingly severe'', and ``pronounced''
when they did not substantively explain or clarify the evaluation
criteria. In other cases, we have supplied objective definitions of
terms. In still others, establishing more objective, consistent, and
unambiguous criteria required more detailed modification of the
proposed criteria, which will be discussed under the affected
diagnostic codes.
One commenter, while agreeing with the removal of ambiguous words
such as ``severe,'' urged that the rules not be made too concrete and
thus sterile.
We believe that providing clear and objective criteria is the best
way to assure that disabilities will be evaluated fairly and
consistently. Judgment and flexibility are required in the evaluation
process, since patients do not commonly present as textbook models of
disease, and those evaluating disabilities always have the task of
assessing which evaluation level best represents the overall picture.
(See 38 CFR 4.7.)
One commenter stated that it would be helpful to have additional
notes, such as the note under DC 7913 on the evaluation of the
complications of diabetes mellitus, discussing pertinent clinical and
nonclinical factors to be considered in assigning evaluations.
In general, we have retained or expanded upon such notes. Where it
seemed more appropriate, we have incorporated the content of notes into
the evaluation criteria. We have not added notes containing background
material, such as general medical information that is available in
standard textbooks, or other material that neither prescribes VA policy
nor establishes procedures a rating board must follow, because such
material is not appropriate in a regulation.
We have revised hyperthyroidism, DC 7900, in response to the
comment suggesting more objectivity. The proposed criteria required
``severe tachycardia'' at the 100 percent level and ``tachycardia'' at
all other levels. According to ``The Merck Manual'' (463, 16th ed.
1992), tachycardia is a heart rate greater than 100 beats per minute,
but the medical literature does not define ``severe'' tachycardia.
Using the word ``severe'' therefore imposed upon the rater the burden
of subjectively determining its meaning, and we have removed ``severe''
at the 100 percent level. We have also made the criteria more objective
by indicating that tachycardia means more than 100 beats per minute.
We proposed that the criteria for hyperthyroidism include ``marked
sympathetic nervous system, cardiovascular, or gastrointestinal
symptoms'' at the 100 percent level and ``marked emotional
instability'' at the 60 percent level. In both cases, we have removed
the indefinite word ``marked'' because it does not substantively
explain or clarify the evaluation criteria, and the criteria are clear
without it.
One commenter suggested that we specify the symptoms of the
sympathetic nervous system proposed as criteria at the 100 percent
level of evaluation under DC 7900.
VA does not concur. The sympathetic nervous system innervates
thoracic, abdominal, and pelvic viscera as well as blood vessel walls.
Therefore, exaggerated sympathetic nervous system activity can have
widespread manifestations including, but not limited to, elevated blood
pressure, increased cardiac output, increased metabolic rate, sweating,
nervousness, weight loss, tachycardia, palpitations, increased
frequency of bowel movements, and heat intolerance. Certain conditions,
hyperthyroidism among them, are known as sympathomimetic conditions
because they mimic the effects of increased activity of the sympathetic
nervous system, although the sympathetic nervous system itself is
normal. Since the particular signs and symptoms that might be exhibited
vary widely from individual to individual, limiting the criteria at the
100 percent level to a few selected symptoms of the sympathetic nervous
system would be inappropriate.
We proposed that increased pulse pressure be one of the criteria
for the 60 percent and 30 percent levels of hyperthyroidism. One
commenter questioned the use of pulse pressure as a criterion, stating
that it is not a diagnostic marker and is not routinely recorded on an
examination report.
Pulse pressure is the difference between the systolic and diastolic
blood pressures, and it is readily available for anyone who has had a
blood pressure recorded. Hyperthyroidism is one of a number of diseases
that may produce an increased (or widened) pulse pressure, which
results from an elevated systolic blood pressure and a lowered
diastolic blood pressure. Because increased pulse pressure is a common
sign of hyperthyroidism, it is an appropriate criterion to use in
evaluating hyperthyroidism.
One commenter suggested that tremor (one of several proposed
criteria for hyperthyroidism at the 10 and 30
[[Page 20441]]
percent levels of evaluation) be evaluated as a secondary condition
with a minimum evaluation of 20 percent, even for involvement of only
one hand, because it is an employment handicap.
VA does not concur. There are several types of tremors, and it
appears that the commenter may have based his suggestion on the
observation of an individual with a tremor other than the type
characteristic of hyperthyroidism. The tremor of hyperthyroidism is a
fine tremor most noticeable in the outstretched hands. It is
characterized as a physiologic tremor, i.e., one that is an
exaggeration of the normal physiologic tremor that virtually everyone
experiences at times (``Harrison's Principles of Internal Medicine''
167 (Jean D. Wilson, M.D. et al. eds., 12th ed. 1991)), and is not
severely disabling. Including tremor as one of the requirements at the
10 and 30 percent levels of evaluation for hyperthyroidism takes into
account the type and severity of the characteristic hyperthyroid-
induced tremor. In our judgment, the presence of such a tremor would
not, in and of itself, warrant the 20 percent evaluation the commenter
suggests.
One commenter suggested that emotional disorders and
gastrointestinal and cardiovascular symptoms due to thyroid conditions
(hyperthyroidism, DC 7900; toxic adenoma of thyroid gland, DC 7901;
hypothyroidism, DC 7903) be evaluated separately rather than being part
of the evaluation criteria for thyroid conditions.
Severe thyroid disease may produce distinct secondary conditions,
including certain mental disorders, and such conditions can always be
service-connected and separately evaluated (see 38 CFR 3.310(a)). Some
secondary conditions, e.g., dementia under hypothyroidism (DC 7903),
are specifically included in the evaluation criteria for the 60- or
100-percent levels of thyroid disease. This does not exclude the
possibility of service-connecting and separately evaluating the
secondary condition, but provides an alternative means of evaluation by
allowing the secondary condition to be used to support the 60- or 100-
percent evaluation level of thyroid disease. However, the same
condition cannot be separately evaluated and concurrently used to
evaluate the primary condition (DC's 7900, 7901, or 7903). (See 4.14 of
this part.) This is comparable to the evaluation of diabetes mellitus
(DC 7913), where compensable complications of diabetes may be either
separately evaluated or used to support a 100-percent evaluation.
The request for separate evaluation of symptoms is a different
issue. Because of the widespread effects of thyroid hormone, the
symptoms of thyroid disease are diverse, reflecting effects on multiple
body systems. However, the presence of such symptoms (e.g.,
gastrointestinal symptoms under hyperthyroidism (DC 7900)) can be an
inherent part of thyroid disease and does not ordinarily indicate that
a separate and distinct secondary condition is present. Unless they are
clearly part of a distinct condition secondary to thyroid disease, the
symptoms must be used in the overall evaluation criteria for the
thyroid condition. The evaluation of secondary conditions is discussed
in the preceding paragraph.
In the previous schedule, nontoxic adenoma of the thyroid (DC 7902)
was evaluated on the basis of pressure symptoms or marked
disfigurement. We proposed that it be evaluated at the 20 percent level
if there is ``marked disfigurement of the head or neck.'' One commenter
suggested that nontoxic adenoma of the thyroid be rated analogous to DC
7800 (scars, disfiguring, head, face, or neck).
We do not concur. Disfigurement from a nontoxic adenoma of the
thyroid is not a skin phenomenon but an enlargement of the thyroid that
produces an unsightly neck mass through sheer bulk. Factors that are
used to evaluate skin conditions, such as discoloration and color
contrast, are not appropriate for evaluating that type of
disfigurement. In response to the general request for more objective
criteria previously mentioned, we have removed the word ``marked'',
leaving ``with disfigurement of the head or neck'' as the sole
criterion for a 20 percent evaluation. In our judgment, any adenoma
that is substantial enough to be disfiguring warrants a 20 percent
evaluation. This does not represent a substantive change from the
proposed criteria.
The proposed note under DC 7902 stated to rate as impairment of
affected organ if a higher evaluation is warranted. For the sake of
clarity, we have revised the note to state that if there are symptoms
due to pressure on adjacent organs such as the trachea, larynx, or
esophagus, nontoxic adenoma of the thyroid will be evaluated under the
diagnostic code for disability of that organ, if doing so would result
in a higher evaluation. This does not represent a substantive change
from the proposed note.
We proposed to delete the zero percent level of evaluation for
nontoxic adenoma (DC 7902) that was present in the previous schedule.
However, to clarify that not all nontoxic adenomas are considered
disfiguring, we have restored the zero percent level for those
``without disfigurement of the head or neck.'' This does not represent
a substantive change.
For the sake of clarity, we have also removed the indefinite word
``severe'' before ``cold intolerance'' in the proposed criteria for a
100 percent evaluation for hypothyroidism (DC 7903) and revised the
indefinite criterion ``slow pulse'' to the more precise medical term
``bradycardia'', which is defined as less than 60 beats per minute. We
have also revised the requirement of ``mental symptoms'' to ``mental
disturbance,'' since some of the possible manifestations are symptoms
but others are distinct mental disorders. These are not substantive
changes.
One commenter, stating that obesity is such a pervasive problem in
American society that weight gain is not a true measure or mark of a
specific disorder, felt that weight gain should not be included in the
criteria for the 60 percent evaluation for hypothyroidism (DC 7903).
VA does not concur. There are special characteristics of the weight
gain associated with hypothyroidism that distinguish it from the weight
gain seen in simple obesity. The weight gain in hypothyroidism is
largely due to fluid retention, which appears as ascites, pleural
effusion, edema of the extremities, or even edema of the nervous system
(``Williams Textbook of Endocrinology'' 447-48 (Jean D. Wilson, M.D.
and Daniel W. Foster, M.D. eds., 8th ed. 1992)). This type of weight
gain is unlikely to be confused with obesity. For this reason, we
believe that weight gain is appropriate as part of the overall criteria
for the evaluation of hypothyroidism, and we have retained it among the
criteria for the 60 percent level.
The previous schedule included ``sluggish mentality and other
indications of myxedema'' in the criteria for the 30 percent evaluation
level of hypothyroidism (DC 7903). We proposed to retain mental
sluggishness as one of the criteria, but to delete the term myxedema. A
commenter objected to the removal of myxedema, saying there is no basis
for our contention that myxedema is seldom encountered.
The term myxedema is sometimes used loosely to refer to
hypothyroidism in general, but in its stricter meaning, it is full-
blown hypothyroidism with fluid retention. Hypothyroidism may present
at any level of severity, including a subclinical form, and myxedema in
the strict sense is found only in severe disease, when hypothyroidism
is
[[Page 20442]]
untreated or has reached an advanced stage. We therefore replaced
``sluggish mentality with other indications of myxedema'' at the 30
percent level with less ambiguous criteria: fatigability, constipation,
and mental sluggishness.
The previous schedule assigned hyperthyroidism (DC 7900) and
hypothyroidism (DC 7903) minimum ten percent evaluations when
continuous medication is required for control. We proposed to delete
the minimum evaluations, and three commenters objected.
Upon further review, VA agrees that a ten percent evaluation is
appropriate when continuous medication is required for control of these
conditions because such treatment implies both the need for repeated
medical evaluations and the possibility of side effects that may
themselves require treatment. We have therefore restored the ten
percent evaluation level under diagnostic codes 7900 and 7903 for those
who require continuous medication. For the sake of consistency, we have
also added a ten percent evaluation level under hyperparathyroidism (DC
7904) for those who require continuous medication. We have recast the
note under hypoparathyroidism (DC 7905) establishing a minimum
evaluation of ten percent when continuous medication is required as ten
percent evaluation criteria. The change under DC 7905 is editorial in
nature and does not represent any substantive change to the criteria as
proposed.
``Decreased levels of circulating thyroid hormones (T4 and/or T3 by
specific assays)'' was one of the criteria for a 100 percent evaluation
for hypothyroidism (DC 7903) in the previous schedule. We proposed a
change to ``undetectable levels of circulating thyroid hormones'' as
one of the criteria for the 100 percent level. Two commenters felt that
the proposed change made the criteria too stringent.
VA concurs. Therapy is instituted as soon as medical personnel
learn that there are no detectable levels of hormone; the therapy
produces a rapid reversion of hormone levels toward normal but leaves
the clinical signs of disease to resolve more slowly. Although many
endocrine conditions require laboratory confirmation of hormone levels
for diagnosis, the hormone levels may not correlate with the severity
of the clinical findings, and laboratory findings are therefore more
useful for diagnosis than evaluation. For these reasons, we have
removed: (1) ``undetectable levels of circulating thyroid hormones''
from the criteria for the 100 percent level of hypothyroidism (DC
7903), (2) ``decreased levels of circulating thyroid hormone'' from the
60 percent and 30 percent levels of hypothyroidism, (3) ``elevated
levels of circulating thyroid hormones'' as a requirement for the 100
and 60 percent levels of hyperthyroidism (DC 7900), and (4) ``elevated
blood and urine calcium levels'' as a requirement for the 100 and 60
percent levels of hyperparathyroidism (DC 7904).
One commenter suggested that we quantify weight loss by indicating
a percentage below normal weight or similar objective measure rather
than using the term ``marked weight loss'' for the 100 and 60 percent
levels of hyperparathyroidism (DC 7904).
In addition to removing the references to laboratory findings, as
discussed above, we have modified the criteria for hyperparathyroidism
by removing ``marked weight loss'' from the criteria for the 100 and 60
percent levels. Since severe hyperparathyroidism may manifest itself
through a variety of gastrointestinal symptoms, weight loss being only
one (Williams, 1431), we have replaced the separate requirement for
weight loss with the more flexible requirement for ``gastrointestinal
symptoms (nausea, vomiting, anorexia, constipation, weight loss, or
peptic ulcer)'' at the 100 and 60 percent levels. This change
recognizes that gastrointestinal symptoms are part of an overall
pattern of abnormalities, but that any individual symptom, such as a
specified amount of weight loss, is not required for either level of
severity. This offers more flexibility than the proposed requirement
for marked weight loss.
We proposed that ocular disturbances be one of the criteria for
both the 100 percent and 60 percent levels of evaluation for
hypoparathyroidism (DC 7905). One commenter, while giving no reason,
requested that ocular disturbances be removed as a criterion.
There are two distinct types of ocular disturbance that may occur
in hypoparathyroidismcataracts and papilledema (Williams, 1456-57;
Harrison, 1915-16). Papilledema, if present, would be an indication of
the increased intracranial pressure that sometimes occurs in
hypoparathyroidism, but it is only one possible manifestation of
increased intracranial pressure. Cataracts are unrelated to increased
intracranial pressure. For the sake of making the criteria clearer and
more objective, we have substituted ``cataract or evidence of increased
intracranial pressure (such as papilledema)'' for ``ocular
disturbances''.
One commenter mentioned hypoparathyroidism as another example of a
condition where objective criteria should be employed in place of
ambiguous terms.
Criteria we proposed for the 100 percent level of
hypoparathyroidism, in addition to ocular disturbances, were: seizures
or convulsions, muscular spasm (tetany), or marked neuromuscular
excitability. Since muscular spasms and convulsions are themselves two
specific manifestations of marked neuromuscular excitability, for more
clarity and to eliminate redundancy, we have retained marked
neuromuscular excitability as one of the criteria, giving its most
common manifestationsconvulsions, muscular spasms (tetany), and
laryngeal stridorin parentheses. By providing this list of conditions,
we have made the meaning of ``marked'' definite enough that it
substantively clarifies the degree of neuromuscular excitability needed
to support a 100 percent evaluation.
For the 60 percent level of hypoparathyroidism, the proposed
criteria were: marked neuromuscular excitability, ocular disturbances,
and constipation or numbness and tingling of the extremities. We have
revised the proposed criteria by providing three alternative sets of
criteria: marked neuromuscular excitability, a combination of
paresthesias (of arms, legs, or circumoral area) and cataract, or a
combination of paresthesias and increased intracranial pressure. While
this represents a substantive change, it responds to the general
comment that we eliminate, as much as possible, the potential for
inconsistency and error. The proposed criteria appeared to be more
stringent at the 60 percent level than at the 100 percent level, and
there also could have been confusion about which of the criteria listed
were required and which were alternatives. The revision eliminates this
confusion, affords more flexibility, and provides a clearer
differentiation between the 100 and 60 percent levels.
We deleted the word ``marked'', modifying loss of muscle strength,
at the 100 percent level of Cushing's syndrome (DC 7907). This is more
objective because the rater does not now have to estimate whether a
reported loss of muscle strength is ``marked.'' The change allows any
reported loss of muscle strength to serve as one of the requirements at
the 100 percent level.
We proposed to retain 100 and 60 percent levels of evaluation for
Cushing's syndrome, as in the previous schedule. One commenter stated
that the condition warrants additional levels of evaluation, especially
when it is secondary to medication.
VA agrees. Although secondary Cushing's syndrome (due to steroid
[[Page 20443]]
therapy) has physical findings indistinguishable from primary Cushing's
syndrome (Harrison, 1723), there is a wide range of severity depending
on the dosage of steroids used, duration of therapy, etc. We have
therefore added a 30 percent level of Cushing's syndrome for those with
milder manifestations: striae, obesity, moon face, glucose intolerance,
and vascular fragility.
The previous schedule required increased intracranial pressure,
hypertension, genital decline and atrophy, hypotrichosis, hypoglycemia,
obesity, and asthenia for a 100 percent evaluation of acromegaly (DC
7908). We proposed to revise the criteria by requiring increased
intracranial pressure, arthropathy, glucose intolerance, hypertension,
cardiomegaly, and visual impairment. One individual felt that
represents a tightening of the requirements and recommended that
cardiomegaly not be required at the 100 percent level.
Upon further consideration, VA has revised the proposed criteria
for the 100 percent level. Cardiomegaly is present in 80 percent of
acromegalics and may be part of the generalized organomegaly that is
sometimes seen (Williams, 272). It is therefore seen commonly enough to
be an appropriate criterion. Hypertension occurs in approximately 20-40
percent of acromegalics, and overactivity of the sympathetic nervous
system has been suggested as a possible etiology. Hypertension and
cardiomegaly are thus independent entities, with apparently different
etiologies (although they may be associated when hypertension results
in cardiomegaly). Because either may be a manifestation of acromegaly,
instead of removing cardiomegaly, we have made cardiomegaly an
alternative criterion to hypertension at the 100 percent level, rather
than requiring both.
The previous schedule required intracranial pressure as one of the
criteria for the 100 percent level of acromegaly, and symptoms of
intracranial pressure in the optic region for the 60 percent level. We
proposed to require both increased intracranial pressure and visual
impairment for the 100 percent level. One commenter, noting that
increased intracranial pressure specifically impairs peripheral vision,
stated that ``visual impairment'' is too broad a term. He said we
should distinguish visual field loss from central visual acuity loss
and other visual deficits.
We agree. The term ``visual impairment'' can have many meanings,
and not all types of visual impairment result from acromegaly. Those
that do occur are the result of localized or generalized increased
intracranial pressure because acromegaly is almost always due to a
pituitary adenoma (Merck, 1064). There may, for example, be a visual
field defect when the pituitary tumor presses on the optic chiasm.
However, it is increased intracranial pressure from the tumor that is
the underlying cause of any visual impairment that is present, and the
increased pressure is at times manifested only by findings other than
visual impairment. We have therefore revised the criteria by deleting
the requirement for both increased intracranial pressure and visual
impairment in favor of a more flexible, but also more specific,
requirement for evidence of increased intracranial pressure ``such as
visual field defect.'' This will allow other possible manifestations of
increased intracranial pressure, such as papilledema, headaches, etc.,
to satisfy one of the requirements for a 100 percent level of
evaluation and will exclude as criteria visual impairments that have no
relationship to acromegaly.
In further response to the general request for more objective
criteria, we have revised the proposed criteria for diabetes insipidus
(DC 7909) by removing the subjective terms ``excessive thirst'' and
``severe polyuria'' wherever they occurred in favor of the more
objective phrase ``polyuria with near-continuous thirst.'' We also
revised the criteria for the 100 percent evaluation, which we proposed
to be: ``excessive thirst and severe polyuria requiring parenteral
hydration therapy, episodes of syncope, and low systolic and diastolic
blood pressure'' to a requirement for ``polyuria with near-continuous
thirst, and more than two documented episodes of dehydration requiring
parenteral hydration in the past year.'' The excretion of large
quantities of very dilute urine is the underlying abnormality in this
condition, and this leads to dehydration and hypovolemia. Syncope and
low blood pressure are not isolated separate signs but are common
effects of dehydration, and these criteria therefore encompass both
parenteral hydration therapy, used to treat dehydration, and two of the
signs of dehydration (syncope and low blood pressure).
The proposed criteria for the 60 percent level included excessive
thirst, polyuria, dehydration, serum osmolality greater than 295 mOsm/
kg., and urine osmolality less than 38 mOsms/kg. We revised these to a
requirement for one or two documented episodes of dehydration requiring
parenteral hydration in the past year, in addition to the basic
requirements of thirst and polyuria. Serum and urine osmolality levels
are objective criteria, but osmolality levels were not proposed as
criteria for the 20, 40, or 100 percent levels. The change in favor of
specifying the number of episodes of dehydration provides criteria that
are more parallel and comparable from one level to the next, and are
objective enough that the additional laboratory tests are not needed to
determine a 60 percent level of severity. Finally, we have changed the
proposed requirement for the 40 percent level from ``polyuria,
excessive thirst, and dehydration'' to ``polyuria with near-continuous
thirst, and one or more episodes of dehydration in the past year not
requiring parenteral hydration.''
We have also deleted the words ``increasingly,'' ``severe,''
``pronounced,'' and ``marked'' wherever they occurred in the proposed
evaluation criteria for Addison's disease (DC 7911). These words did
not substantively explain or clarify the evaluation criteria, and the
criteria are clear without them.
The proposed criteria for the 20 percent level of Addison's disease
required either corticosteroid therapy or a combination of weakness and
fatigability. In response to the commenter who said that the schedule
should eliminate the potential for inconsistency, we have added
alternative criteria for the 20 percent level that are parallel to the
higher levels. These criteria require one or two crises or two to four
episodes during the past year, which assures consistency of evaluation
for those with fewer crises or episodes. For further clarity of the
criteria, we added two notes under DC 7911 that define Addisonian
``crises'' and Addisonian ``episodes.''
In the previous schedule, under diabetes mellitus (DC 7913),
regulation or careful regulation of activities (defined as avoidance of
strenuous occupational and recreational activities) was one of the
criteria at the 100 percent and 40 percent evaluation levels. We
proposed ``regulation of activities,'' not further defined, as a
criterion at the 100, 60, and 40 percent levels. One commenter felt
that the proposed change in language made the meaning less clear.
We agree and have retained the definition used in the previous
rating schedule, ``avoidance of strenuous occupational and recreational
activities,'' and included it in the evaluation criteria for the 100
percent level.
The same commenter said that it is meaningless to include
limitation of
[[Page 20444]]
activities as a factor in evaluating diabetes mellitus since
information of this type is not provided in a VA examination.
VA disagrees. VA's Physician's Guide for Disability Evaluation
Examinations is meant to insure that all necessary tests are performed
and that all findings are provided for diagnosis and/or evaluation to
meet the specific requirements of the Schedule for Rating Disabilities
and related programs. It is available to VA and fee-basis examiners
conducting examinations for VA disability benefits. The Guide will be
revised to provide detailed guidelines for examinations reflecting the
revised provisions of the rating schedule. It is incumbent upon the
rating board to return to the examiner reports that lack information
necessary to apply the provisions of the rating schedule (see Sec. 4.2
of 38 CFR).
The proposed 100 percent level for diabetes mellitus required
``repeated'' episodes of ketoacidosis or hypoglycemic reactions
requiring, among other things, ``frequent'' hospital or physician
treatment. We received one comment requesting that we clearly define
``frequent treatment.''
We concur and have revised that portion of the criteria to require
``episodes of ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a diabetic care
provider.'' Similarly, for the 60 percent level we have changed the
requirement from ``occasional'' episodes of ketoacidosis or
hypoglycemic reactions to ``episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or twice a
month visits to a diabetic care provider.'' The change from a
requirement for physician treatment to a requirement for visits to a
diabetic care provider reflects the fact that diabetics are usually
under the care of a multidisciplinary diabetic team, and at any given
visit may see a nurse practitioner, physician's assistant, etc.
The previous schedule required ``severe complications'' as one of
the alternative criteria for the 100 percent level of diabetes mellitus
(DC 7913). The proposed revision instead required ``severe
complications such as retinopathy, nephropathy, arteriosclerosis, or
neuropathy'' as one of the alternatives. For the 60 percent level the
previous schedule required ``mild complications, such as pruritus ani,
mild vascular deficiencies, or beginning diabetic ocular
disturbances.'' The proposed revision required ``mild complications
such as mild vascular deficiencies or beginning diabetic ocular
disturbances.''
A commenter stated that the word ``severe,'' referring to
complications at the 100 percent level of diabetes mellitus, is a
subjective description that should be changed.
VA agrees. We have revised the language at both the 60 and 100
percent levels to make it more objective, consistent from level to
level, and more precise. We have revised the 100 percent criteria to
require complications that would be compensable if separately evaluated
and the 60 percent criteria to require complications that would not be
compensable if separately evaluated. This is also consistent with note
(1), following DC 7913, that directs that compensable complications of
diabetes mellitus are to be rated separately unless they support a 100
percent evaluation and that noncompensable complications are considered
part of the diabetic process under DC 7913.
One commenter questioned whether a 10 percent evaluation included
those with Type II (adult onset) diabetes without symptoms and not
following a restricted diet.
The criterion we proposed for the 10 percent level, ``controlled by
restricted diet only,'' refers to anyone with diabetes mellitus mild
enough not to require insulin or oral hypoglycemics. For the sake of
greater clarity, we have revised the requirement for zero percent to
``manageable by restricted diet only.'' This does not represent a
substantive change.
A proposed note under diabetes mellitus (DC 7913) stated that when
diabetes mellitus has been definitely diagnosed, a glucose tolerance
test need not be ordered solely for rating purposes. A commenter said
that the term ``definitely diagnosed'' is an entirely subjective
descriptor.
To assure that there is no misunderstanding about the meaning, we
have changed the term ``definitely diagnosed'' to ``conclusively
diagnosed.'' The intent of the term ``conclusively diagnosed'' is to
indicate those individuals who have a diagnosis of diabetes mellitus
that has been established through the usual medical means, both
clinical and laboratory, and to exclude those with insufficient
evidence to support a clear diagnosis.
One commenter stated that the revision should address the basic
concept of lost earnings due to time lost from work. He suggested no
alternatives.
In our judgment, the evaluation criteria we have provided are
clearly linked to lost earnings because they include such things as
periods of hospitalization, episodes of incapacitating symptoms,
muscular weakness, arthropathy, fatigability, etc., all of which may
affect the ability to work. Furthermore, we have provided criteria for
the 100 percent levels that indicate a degree of severity that would
render the average person completely unable to work. Thus the proposed
criteria do address the effects of time lost from work.
An additional general comment was that recently discharged veterans
would be discriminated against by being evaluated under the revised
rating schedule, which he said is ``deliberalized''.
VA disagrees. 38 U. S. C. gives the Secretary the authority to
readjust the schedule of ratings from time to time in accordance with
experience. The significant medical advances that have occurred since
1945 form part of the experience that must be taken into account in
revising the rating schedule. In order to assure fair and consistent
evaluations for veterans, the schedule must reflect actual residuals of
disease or injuries, not what residuals might have been in the past.
Furthermore, Congress foresaw that evaluations might change when the
rating schedule is revised and amended 38 U.S.C. 1155 to prohibit a
reduction in a veteran's disability rating because of a readjustment of
the rating schedule unless an improvement in the disability has been
shown.
The previous schedule had a 100 percent evaluation for one year
following the cessation of treatment of malignancies. We proposed that
the 100 percent evaluation continue indefinitely but that there be a
mandatory VA examination six months following the cessation of
treatment, with any change in evaluation based on that or any
subsequent examination, to be implemented under the provisions of 38
CFR 3.105(e). Three commenters recommended that VA retain the
evaluation criteria from the previous schedule.
We do not concur. An examination six months following the cessation
of treatment affords sufficient time for convalescence and
stabilization of residuals because the rule requires an examination,
not a reduction, six months after the cessation of treatment. In fact,
the rule precludes a reduction at that time because the process of re-
evaluation does not begin until then.
First, there must be a VA examination six months after completion
of treatment. If the results of that or any subsequent examination
warrant a reduction in evaluation, the reduction will be implemented
under the provisions of 38 CFR 3.105(e), which
[[Page 20445]]
require a 60 day notice before VA reduces an evaluation and an
additional 60 day notice before the reduced evaluation takes effect.
The revision not only requires a current examination to assure that all
residuals are documented, but also offers the veteran more
contemporaneous notice of any proposed action and expands the veteran's
opportunity to present evidence showing that the proposed action should
not be taken. In our judgment, this method will better ensure that
actual side-effects and recuperation times are taken into account
because they will be noted on the required VA exam.
Because of commenters' concerns, however, we have revised the note
under this code so that it cannot be misinterpreted as requiring a
reduction six months after treatment is terminated. We have also added
to the note a direction to rate on residuals, if there has been no
local recurrence or metastasis, in order to make these provisions
consistent with those we provided for malignancies of the revised
genitourinary system. This is not a substantive change, but has been
made to provide further clarity, as well as internal consistency within
the rating schedule.
One commenter said that VA exceeded its mandate by proposing the
change in convalescence.
VA does not concur. VA's mandate arises from 38 U.S.C. 1155, which
authorizes the Secretary to readjust the rating schedule from time to
time in accordance with experience.
Another commenter objected to the change in convalescence, saying
that the average person would require at least 12 months of
convalescence for brain surgery.
VA does not agree. The convalescent periods adopted in this change
represent, in our judgment, based on sound medical advice, neither the
longest nor shortest periods that any individual patient might require
for recovery, but the usual or normal periods during which a normal
patient, under normal circumstances, would be expected to recover from
a specific condition or surgical procedure. Furthermore, these
convalescent periods represent the point at which the individual
patient's condition is to be evaluated by examination, and do not
preclude an extension of a total evaluation, if appropriate, based on
the individual patient's condition.
Another commenter said that the proposed changes in convalescent
periods appear to be purely economically based.
The myriad of advances in medicine that have occurred since 1945,
such as early ambulation, better surgical techniques, new anesthetics,
and better control of infectious diseases, have led to strikingly
shorter periods of convalescence after both medical and surgical
treatment. The revisions were proposed based on medical considerations;
no cost studies or projections were conducted in conjunction with this
review. Cost cutting was therefore not an issue.
One commenter stated that applying Sec. 3.105(e) will cause
significant problems from an administrative standpoint and will often
significantly lengthen the periods for which a convalescent rate is
paid.
VA believes that the changes in convalescence following treatment
of malignancy where Sec. 3.105(e) must be applied can be implemented
without serious administrative problems. Similar changes are being made
in each body system, and any procedural changes that may be necessary
to implement the new process will be made as needed. We have included
the implementation of the provisions of Sec. 3.105(e) to assure that
veterans are afforded due process before convalescent ratings are
reduced, and if administrative delays do occur from time to time, they
cannot operate to the disadvantage of veterans. Also, since
Sec. 3.105(e) applies only to reductions in ``compensation payments
currently being made,'' it need not be applied in cases where a total
evaluation will be assigned and reduced retroactively.
One commenter urged that VA provide zero percent evaluations for
all diagnostic codes.
We do not agree. On October 6, 1993 VA revised its regulation
addressing the issue of zero percent evaluations (38 CFR 4.31) to
authorize assignment of a zero percent evaluation for any disability in
the rating schedule when minimum requirements for a compensable
evaluation are not met. In general, that regulatory provision precludes
the need for zero percent evaluation criteria. We have retained zero
percent evaluation criteria only when necessary to give the rater clear
and unambiguous instructions on rating where it might otherwise be
unclear whether commonly occurring minor findings warrant a compensable
evaluation.
One commenter noted that veterans are receiving diagnoses of
hyperlipidemia, elevated triglycerides, and elevated cholesterol, and
the commenter asked that we address the handling of claims for these
findings.
The diagnoses listed by the commenter are actually laboratory test
results, and are not, in and of themselves, disabilities. They are,
therefore, not appropriate entities for the rating schedule to address.
In addition, they have no special relationship to the endocrine system.
We have made several additional changes based on our own review of
the proposed regulation. For example, we edited the proposed note under
malignant neoplasm (DC 7914) by modifying the sentence ``Any change in
evaluation based upon that examination shall be subject to the
provisions of Sec. 3.105(e) of this chapter'' to ``Any change in
evaluation based upon that or any subsequent examination shall be
subject to the provisions of Sec. 3.105(e) of this chapter.'' The
change assures that the veteran will be given the notices described
above regardless of when an examination leading to a proposed change in
evaluation is done and is consistent with changes we have made in the
revision of other portions of the rating schedule. This represents no
substantive change.
The previous schedule had a note under DC 7900, hyperthyroidism,
addressing the issue of evaluating hyperthyroid heart disease if
disease of the heart predominates. We have expanded the note for
clarity by adding ``if doing so would result in a higher evaluation
than using the criteria above.''
We also made a nonsubstantive editorial change in the note
following pheochromocytoma (DC 7918) from the proposal to rate
hyperpituitarism, hyperaldosteronism and pheochromocytoma as malignant
or benign neoplasm under DC 7914 or 7915, whichever is applicable, to a
direction to evaluate those conditions under benign or malignant
neoplasms as appropriate.
For the sake of greater clarity and ease of comparison, we
rearranged the order of the criteria for diabetes mellitus (DC 7913)
regarding need for insulin or an oral hypoglycemic agent, diet, and
regulation of activities, putting them in the same order at all levels
where they appear. This does not represent a substantive change.
We proposed that constipation be one of the criteria for the 60
percent level of hypoparathyroidism (DC 7905). However, because
standard medical textbooks such as ``The Merck Manual'' and ``Williams
Textbook of Endocrinology'' do not include it as a characteristic
clinical manifestation of hypoparathyroidism, we have concluded that it
is not appropriate as
[[Page 20446]]
part of VA's evaluation criteria, and we have, therefore, removed it.
We proposed that DC 7901 (thyroid gland, toxic adenoma of) be rated
as DC 7900 (hyperthyroidism). For the convenience of rating
specialists, we have instead repeated the rating criteria for DC 7900
under DC 7901. For the same reason, we have repeated the note under DC
7914, which explains evaluation of malignant neoplasms, under C-cell
hyperplasia of the thyroid (DC 7919), rather than instructing to rate
C-cell hyperplasia of the thyroid as malignant neoplasm, as we
proposed. These changes reduce the risk of error because the necessary
criteria are closely associated with the diagnostic code rather than on
another page, and they also save time for the rating specialist. They
do not represent substantive changes.
We have made additional nonsubstantive editorial changes in
language by substituting ``evaluate'' for ``rate'' in several instances
and by changing ``neoplasms'' to ``neoplasm'' in DC's 7914 and 7915,
for internal consistency in the rating schedule.
VA appreciates the comments submitted in response to the proposed
rule, which is now adopted with the amendments noted above.
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
This regulatory amendment has been reviewed by the Office of
Management and Budget under the provisions of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993.
The Catalog of Federal Domestic Assistance program numbers are
64.104 and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: December 5, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 4, subpart
B, is amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155.
Subpart B--Disability Ratings
2. Section 4.119 is revised to read as follows:
Sec. 4.119 Schedule of ratings--endocrine system.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
7900 Hyperthyroidism
Thyroid enlargement, tachycardia (more than 100 beats per
minute), eye involvement, muscular weakness, loss of weight,
and sympathetic nervous system, cardiovascular, or
astrointestinal symptoms..................................... 100
Emotional instability, tachycardia, fatigability, and
increased pulse pressure or blood pressure................... 60
Tachycardia, tremor, and increased pulse pressure or blood
pressure..................................................... 30
Tachycardia, which may be intermittent, and tremor, or;
continuous medication required for control................... 10
Note (1): If disease of the heart is the predominant finding,
evaluate as hyperthyroid heart disease (DC 7008) if doing so
would result in a higher evaluation than using the criteria
above.
Note (2): If ophthalmopathy is the sole finding, evaluate as
field vision, impairment of (DC 6080); diplopia (DC 6090); or
impairment of central visual acuity (DC 6061-6079).
7901 Thyroid gland, toxic adenoma of
Thyroid enlargement, tachycardia (more than 100 beats per
minute), eye involvement, muscular weakness, loss of weight,
and sympathetic nervous system, cardiovascular, or
gastrointestinal symptoms.................................... 100
Emotional instability, tachycardia, fatigability, and
increased pulse pressure or blood pressure................... 60
Tachycardia, tremor, and increased pulse pressure or blood
pressure..................................................... 30
Tachycardia, which may be intermittent, and tremor, or;
continuous medication required for control................... 10
Note (1): If disease of the heart is the predominant finding,
evaluate as hyperthyroid heart disease (DC 7008) if doing so
would result in a higher evaluation than using the criteria
above.
Note (2): If ophthalmopathy is the sole finding, evaluate as
field vision, impairment of (DC 6080); diplopia (DC 6090); or
impairment of central visual acuity (DC 6061-6079).
7902 Thyroid gland, nontoxic adenoma of
With disfigurement of the head or neck........................ 20
Without disfigurement of the head or neck..................... 0
Note: If there are symptoms due to pressure on adjacent organs
such as the trachea, larynx, or esophagus, evaluate under the
diagnostic code for disability of that organ, if doing so
would result in a higher evaluation than using this
diagnostic code.
7903 Hypothyroidism
Cold intolerance, muscular weakness, cardiovascular
involvement, mental disturbance (dementia, slowing of
thought, depression), bradycardia (less than 60 beats per
minute), and sleepiness...................................... 100
Muscular weakness, mental disturbance, and weight gain........ 60
Fatigability, constipation, and mental sluggishness........... 30
Fatigability, or; continuous medication required for control.. 10
7904 Hyperparathyroidism
Generalized decalcification of bones, kidney stones,
gastrointestinal symptoms (nausea, vomiting, anorexia,
constipation, weight loss, or peptic ulcer), and weakness.... 100
Gastrointestinal symptoms and weakness........................ 60
Continuous medication required for control.................... 10
Note: Following surgery or treatment, evaluate as digestive,
skeletal, renal, or cardiovascular residuals or as endocrine
dysfunction.
7905 Hypoparathyroidism
Marked neuromuscular excitability (such as convulsions,
muscular spasms (tetany), or laryngeal stridor) plus either
cataract or evidence of increased intracranial pressure (such
as papilledema).............................................. 100
Marked neuromuscular excitability, or; paresthesias (of arms,
legs, or circumoral area) plus either cataract or evidence of
increased intracranial pressure.............................. 60
Continuous medication required for control.................... 10
7907 Cushing's syndrome
As active, progressive disease including loss of muscle
strength, areas of osteoporosis, hypertension, weakness, and
enlargement of pituitary or adrenal gland.................... 100
Loss of muscle strength and enlargement of pituitary or
adrenal gland................................................ 60
With striae, obesity, moon face, glucose intolerance, and
vascular fragility........................................... 30
Note: With recovery or control, evaluate as residuals of
adrenal insufficiency or cardiovascular, psychiatric, skin,
or skeletal complications under appropriate diagnostic code.
7908 Acromegaly
[[Page 20447]]
Evidence of increased intracranial pressure (such as visual
field defect), arthropathy, glucose intolerance, and either
hypertension or cardiomegaly................................. 100
Arthropathy, glucose intolerance, and hypertension............ 60
Enlargement of acral parts or overgrowth of long bones, and
enlarged sella turcica....................................... 30
7909 Diabetes insipidus
Polyuria with near-continuous thirst, and more than two
documented episodes of dehydration requiring parenteral
hydration in the past year................................... 100
Polyuria with near-continuous thirst, and one or two
documented episodes of dehydration requiring parenteral
hydration in the past year................................... 60
Polyuria with near-continuous thirst, and one or more episodes
of dehydration in the past year not requiring parenteral
hydration.................................................... 40
Polyuria with near-continuous thirst.......................... 20
7911 Addison's disease (Adrenal Cortical Hypofunction)
Four or more crises during the past year...................... 60
Three crises during the past year, or; five or more episodes
during the past year......................................... 40
One or two crises during the past year, or; two to four
episodes during the past year, or; weakness and fatigability,
or; corticosteroid therapy required for control.............. 20
Note (1): An Addisonian ``crisis'' consists of the rapid onset
of peripheral vascular collapse (with acute hypotension and
shock), with findings that may include: anorexia; nausea;
vomiting; dehydration; profound weakness; pain in abdomen,
legs, and back; fever; apathy, and depressed mentation with
possible progression to coma, renal shutdown, and death.
Note (2): An Addisonian ``episode,'' for VA purposes, is a
less acute and less severe event than an Addisonian crisis
and may consist of anorexia, nausea, vomiting, diarrhea,
dehydration, weakness, malaise, orthostatic hypotension, or
hypoglycemia, but no peripheral vascular collapse.
Note (3): Tuberculous Addison's disease will be evaluated as
active or inactive tuberculosis. If inactive, these
evaluations are not to be combined with the graduated ratings
of 50 percent or 30 percent for non-pulmonary tuberculosis
specified under Sec. 4.88b. Assign the higher rating.
7912 Pluriglandular syndrome
Evaluate according to major manifestations.
7913 Diabetes mellitus
Requiring more than one daily injection of insulin, restricted
diet, and regulation of activities (avoidance of strenuous
occupational and recreational activities) with episodes of
ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a
diabetic care provider, plus either progressive loss of
weight and strength or complications that would be
compensable if separately evaluated.......................... 100
Requiring insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if separately
evaluated.................................................... 60
Requiring insulin, restricted diet, and regulation of
activities................................................... 40
Requiring insulin and restricted diet, or; oral hypoglycemic
agent and restricted diet.................................... 20
Manageable by restricted diet only............................ 10
Note (1): Evaluate compensable complications of diabetes
separately unless they are part of the criteria used to
support a 100 percent evaluation. Noncompensable
complications are considered part of the diabetic process
under diagnostic code 7913.
Note (2): When diabetes mellitus has been conclusively
diagnosed, do not request a glucose tolerance test solely for
rating purposes.
7914 Neoplasm, malignant, any specified part of the endocrine
system......................................................... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic chemotherapy
or other therapeutic procedure. Six months after
discontinuance of such treatment, the appropriate disability
rating shall be determined by mandatory VA examination. Any
change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec.
3.105(e) of this chapter. If there has been no local
recurrence or metastasis, rate on residuals.
7915 Neoplasm, benign, any specified part of the endocrine
system rate as residuals of endocrine dysfunction.
7916 Hyperpituitarism (prolactin secreting pituitary
dysfunction)
7917 Hyperaldosteronism (benign or malignant)
7918 Pheochromocytoma (benign or malignant)
Note: Evaluate diagnostic codes 7916, 7917, and 7918 as
malignant or benign neoplasm as appropriate.
7919 C-cell hyperplasia of the thyroid......................... 100
Note: A rating of 100 percent shall continue beyond the
cessation of any surgical, X-ray, antineoplastic chemotherapy
or other therapeutic procedure. Six months after
discontinuance of such treatment, the appropriate disability
rating shall be determined by mandatory VA examination. Any
change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec.
3.105(e) of this chapter. If there has been no local
recurrence or metastasis, rate on residuals.
------------------------------------------------------------------------
[FR Doc. 96-11281 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11280 Removal of References to ``Vicious Habits''
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Page 20438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11280]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH87
Removal of References to ``Vicious Habits''
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Certain Department of Veterans Affairs (VA) regulations state
that to be eligible for pension a veteran must be permanently and
totally disabled from nonservice-connected disability not due to the
veteran's own willful misconduct or vicious habits. The statute upon
which these regulations is based was changed in 1978 to delete
references to ``vicious habits.'' The purpose of this rule is to
conform the regulations to the statute.
EFFECTIVE DATE: This amendment is effective May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION: Before 1978, the statute governing
entitlement to pension for nonservice-connected disability (now 38
U.S.C. 1521(a)) provided that VA pension was potentially payable to a
veteran who was permanently and totally disabled from non-service-
connected disability not the result of the veteran's willful misconduct
or vicious habits. In 1978 the Veterans' and Survivors' Pension
Improvement Act of 1978, Public Law 95-588, deleted the words ``vicious
habits'' from the pension statute.
In 1990 VA amended 38 CFR 3.301(b) to delete the reference to
``vicious habits'' (55 FR 13529). 38 CFR 3.301(b) now states simply
that ``disability pension is not payable for any condition due to the
veteran's own willful misconduct.''
There are additional references to ``vicious habits'' in 38 CFR
sections 3.314(b)(2), and 3.323(b) which apparently were overlooked
when 38 CFR 3.301(b) was amended in 1990. This rule deletes those
references and conforms the rules to the current language of 38 U.S.C.
1521(a).
Since these amendments are in the nature of a technical correction,
the Secretary finds that notice and public procedure thereon are
unnecessary. Accordingly, these amendments are promulgated without
regard to the notice-and-comment and effective-date provisions of 5
U.S.C. 553.
Because no notice of proposed rulemaking was required in connection
with the adoption of this final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C.
601-612). Even so, the Secretary hereby certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act.
This amendment will directly affect VA beneficiaries but will not
affect small businesses.
The catalog of Federal Domestic Assistance program number is
64.104.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: April 19, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Sec. 3.314 Basic pension determinations.
2. In Sec. 3.314(b)(2) remove the words ``or vicious habits''.
Sec. 3.323 Combined ratings.
3. In Sec. 3.323(b)(1) and (b)(2) remove the words ``or vicious
habits''.
[FR Doc. 96-11280 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11279 Appeals Regulations, Rules of Practice: Single Member and Panel Decisions; Reconsiderations; Order of Consideration
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20447-20453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11279]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
Board of Veterans' Appeals
38 CFR Parts 19 and 20
RIN 2900-AH16
Appeals Regulations, Rules of Practice: Single Member and Panel
Decisions; Reconsiderations; Order of Consideration
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Appeals Regulations and Rules of
Practice of the Board of Veterans'' Appeals. The amendments incorporate
recent statutory changes (including provisions to allow matters to be
decided by individual Board members), set forth procedures regarding
reconsideration of decisions, change office names and designations due
to administrative changes within the Board, and make other
nonsubstantive changes.
DATES: Effective Date: This final rule is effective May 7, 1996.
Applicability Dates: The incorporation of statutory provisions and
statutory interpretations contained in this final rule will be applied
retroactively from the effective dates of the statutory provisions. For
more information concerning the application of the provisions of this
final rule, see the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board
of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont
Avenue, NW, Washington, DC 20420 (202-565-5978).
SUPPLEMENTARY INFORMATION: This document amends the Appeals
Regulations, 38 CFR Part 19, and the Rules of Practice, 38 CFR Part 20,
of the
[[Page 20448]]
Board of Veterans' Appeals (Board). The Board adjudicates appeals of
denials of claims for veterans' benefits.
Public Law 103-271
In large part, the amendments made by this document reflect
statutory changes made by Public Law 103-271.
Changes are made to Secs. 19.3, 19.9, 19.11, 19.12, 19.76, 20.3,
20.102, 20.401, 20.606, 20.700, 20.702 through 20.705, 20.707 through
20.708, 20.711, 20.714 through 20.717, 20.901, 20.1003, and 20.1100, to
reflect that, under Public Law 103-271, the Board's Chairman may assign
matters, including hearings, to individual Board members or to panels
of three or more members.
Changes are made to Secs. 19.3, 19.11, 20.102, 20.608, 20.707,
20.711, 20.717, and 20.1304 to reflect that, under Public Law 103-271,
a proceeding may not be assigned to the Chairman as an individual
member but that the Chairman may participate in a proceeding assigned
to a panel, or in a reconsideration assigned to a panel, and to reflect
how a reconsideration panel is to be constituted.
Changes are made to Secs. 19.11 and 20.707 to reflect that, under
Public Law 103-271, reconsideration of a matter heard by a single
member shall be referred to a panel of not less than three Board
members, that reconsideration of a matter heard by a panel of members
shall be referred to an enlarged panel, and that a reconsideration
panel may not include any member who made the decision that is being
reconsidered.
Changes are made to Secs. 19.75 and 20.704 to reflect that, under
Public Law 103-271, hearings at a facility within the area served by a
VA regional office shall be scheduled to be held in the order in which
requested, but may be scheduled earlier if the appellant is seriously
ill or under severe financial hardship.
Changes are made to Sec. 20.3 to reflect that, under Public Law
103-271, in lieu of a personal hearing, an appellant may participate in
a Board hearing through picture or through voice transmission, by
electronic or other means, with the Board member or members at the
Board's principal location.
Miscellaneous
In addition, definitions of ``electronic hearing'' and ``presiding
member'' have been added to Sec. 20.3 to reflect the Board's
interpretation of Public Law 103-271 and, in Sec. 20.900, paragraph (b)
has been revised and paragraph (d) added to reflect the Board's
interpretation of the requirement, established by Public Law 103-446,
Section 302, that cases remanded by the Court of Veterans Appeals be
treated expeditiously.
Further, Sec. 19.11(b) has been amended to provide that
reconsideration panels are to be enlarged in increments of three as
necessary to obtain a majority decision. This constitutes the policy
for the Board to use in implementing the provisions of Public Law 103-
271.
Finally, Parts 19 and 20 are amended to update current titles and
designations within the Board, and to make other nonsubstantive
changes.
This final rule consists of incorporation of statutory provisions,
interpretive rules, rules of agency procedure or practice, and
nonsubstantive changes and, therefore, is not subject to the notice and
comment and effective date provisions of 5 U.S.C. 553.
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-602, since it does not contain any substantive provisions. This
final rule would not cause a significant effect on any entities.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Incorporation of statutory provisions and statutory interpretations
made by this final rule will be applied retroactively from the
effective dates of the statutory provisions. The dates of application
for such changes and for certain of the nonsubstantive changes made for
clarity, to correct typographical errors, or to reflect statutory
recodification changes are as follows:
July 1, 1994: Secs. 19.3(a) and (b); 19.4; 19.9; 19.11; 19.12(b);
19.75; 19.76; 20.3(h) and (n); 20.102(c) and (d); 20.401(b); 20.606(a),
(b), and (d); 20.608(b)(2); 20.700(b) and (d); 20.702(a), (c), (d), and
(e); 20.704(a), (c), (d), (e), and (f); 20.705(b); 20.707; 20.708;
20.711(e) and (h); 20.714(a)(4); 20.715; 20.716; 20.717(d); 20.901(e);
20.1003; 20.1100(a); and 20.1304(b).
November 2, 1994: Sec. 20.900(b) and (d).
List of Subjects
38 CFR Part 19
Administrative practice and procedure, Claims, Veterans.
38 CFR Part 20
Administrative practice and procedure, Claims, Lawyers, Legal
services, Veterans.
Approved: April 30, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, title 38 of the Code of
Federal Regulations, parts 19 and 20, are amended under the authority
of Public Law 103-271, 108 Stat. 740, and Public Law 103-446, 108 Stat.
4645, as set forth below:
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
1. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a)
Subpart A--Operation of the Board of Veterans' Appeals
2. Section 19.2 is revised to read as follows:
Sec. 19.2 Composition of the Board.
The Board consists of a Chairman, Vice Chairman, Deputy Vice
Chairmen, Members and professional, administrative, clerical and
stenographic personnel. Deputy Vice Chairmen are Members of the Board
who are appointed to that office by the Secretary upon the
recommendation of the Chairman.
(Authority: 38 U.S.C. 501(a), 512, 7101(a))
3. Section 19.3 is revised to read as follows:
Sec. 19.3 Assignment of proceedings.
(a) Assignment. The Chairman may assign a proceeding instituted
before the Board, including any motion, to an individual Member or to a
panel of three or more Members for adjudication or other appropriate
action. The Chairman may participate in a proceeding assigned to a
panel of Members.
(Authority: 38 U.S.C. 7102)
(b) Inability to serve. If a Member is unable to participate in the
disposition of a proceeding or motion to which the Member has been
assigned, the Chairman may assign the proceeding or motion to another
Member or substitute another Member (in the case of a proceeding or
motion assigned to a panel).
Authority: 38 U.S.C. 7101(a), 7102)
Sec. 19.4 [Amended]
In Sec. 19.4 the authority citation is revised to read as follows:
(Authority: 38 U.S.C. 7102, 7104, 7107)
5. Section 19.7 is amended by adding a new paragraph (c) to read as
follows:
Sec. 19.7 The decision.
* * * * *
[[Page 20449]]
(c) A decision by a panel of Members will be by a majority vote of
the panel Members.
6. Section 19.9 is revised to read as follows:
Sec. 19.9 Remand for further development.
When, during the course of review, it is determined that further
evidence or clarification of the evidence or correction of a procedural
defect is essential for a proper appellate decision, a Member or panel
of Members of the Board shall remand the case to the agency of original
jurisdiction, specifying the action to be undertaken.
(Authority: 38 U.S.C. 7102, 7104(a))
7. Section 19.11 is revised to read as follows:
Sec. 19.11 Reconsideration panel.
(a) Assignment of Members. When a motion for reconsideration is
allowed, the Chairman will assign a panel of three or more Members of
the Board, which may include the Chairman, to conduct the
reconsideration.
(b) Number of Members constituting a reconsideration panel. In the
case of a matter originally heard by a single Member of the Board, the
case shall be referred to a panel of three Members of the Board. In the
case of a matter originally heard by a panel of Members of the Board,
the case shall be referred to an enlarged panel, consisting of three or
more Members than the original panel. In order to obtain a majority
opinion, the number of Members assigned to a reconsideration panel may
be increased in successive increments of three.
(c) Members included in the reconsideration panel. The
reconsideration panel may not include any Member who participated in
the decision that is being reconsidered. Additional Members will be
assigned in accordance with paragraph (b) of this section.
(Authority: 38 U.S.C. 7102, 7103)
8. Section 19.12(b) is revised to read as follows:
Sec. 19.12 Disqualification of Members.
* * * * *
(b) Appeal on same issue subsequent to decision on administrative
appeal. Any Member of the Board who made the decision on an
administrative appeal will disqualify himself or herself from acting on
a subsequent appeal by the claimant on the same issue.
(Authority: 38 U.S.C. 7102, 7104, 7106)
* * * * *
Subpart B--Appeals Processing by Agency of Original Jurisdiction
Sec. 19.30 [Amended]
9. In Sec. 19.30 paragraph (b), is amended by removing ``VA Form 1-
9'' and adding, in its place, ``VA Form 9''.
Sec. 19.31 [Amended]
10. In Sec. 19.31, the last sentence is removed.
Sec. 19.35 [Amended]
11. Section 19.35 is amended by removing ``VA Form 1-8'' and
adding, in its place, ``VA Form 8''.
Subpart C--Administrative Appeals
12. Section 19.51(a)(1) is revised to read as follows:
Sec. 19.51 Officials authorized to file administrative appeals and
time limits for filing.
* * * * *
(a) Central Office--(1) Officials. The Under Secretary for Benefits
or a service director of the Veterans Benefits Administration, the
Under Secretary for Health or a service director of the Veterans Health
Administration, and the General Counsel.
* * * * *
13. The heading for Subpart D is revised to read as follows:
Subpart D--Hearings Before the Board of Veterans' Appeals at
Department of Veterans Affairs Field Facilities
14. Section 19.75 is revised to read as follows:
Sec. 19.75 Hearing docket.
Hearings on appeal held at Department of Veterans Affairs field
facilities will be scheduled for each area served by a regional office
in the order in which requests for such hearings within that area are
received by the Department except when a motion to advance the case on
the hearing docket is granted under Rule of Practice 704(f) (38 CFR
20.704(f)).
(Authority: 38 U.S.C. 7107)
15. Section 19.76 is revised to read as follows:
Sec. 19.76 Notice of time and place of hearing before the Board of
Veterans' Appeals at Department of Veterans Affairs field facilities.
The agency of original jurisdiction will notify the appellant and
his or her representative of the place and time of a hearing before the
Board of Veterans' Appeals at a Department of Veterans Affairs field
facility not less than 60 days prior to the hearing date. This time
limitation does not apply to hearings which have been rescheduled due
to a postponement requested by an appellant, or on his or her behalf,
or due to the prior failure of an appellant to appear at a scheduled
hearing before the Board of Veterans' Appeals at a Department of
Veterans Affairs field facility with good cause. The right to notice at
least 60 days in advance will be deemed to have been waived if an
appellant accepts an earlier hearing date due to the cancellation of
another previously scheduled hearing.
(Authority: 38 U.S.C. 7107)
Sec. 19.77 [Removed and revised]
16. Section 19.77 is removed, and revised.
Subpart E--Simultaneously Contested Claims
17. Section 19.101 is amended by removing ``VA Form 1-9'' and
adding, in its place, ``VA Form 9''.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
18. The authority citation for part 20 continues to read as
follows:
Authority: 38 U.S.C. 501(a)
Subpart A--General
19. Section 20.3 is amended by redesignating paragraphs (h), (i),
(j), (k), (l), (m), and (n) as (i), (j), (k), (l), (m), (o), and (p)
respectively, and adding new paragraphs (h) and (n) to read as follows:
Sec. 20.3 Rule 3. Definitions.
* * * * *
(h) Electronic hearing means a hearing on appeal in which an
appellant or a representative participates, through voice transmission
or through picture and voice transmission, by electronic or other
means, in a hearing with a Member or Members sitting at the Board's
principal location in Washington, DC.
* * * * *
(n) Presiding Member means that Member of the Board who presides
over a hearing, whether conducted as a single Member or panel hearing.
* * * * *
Subpart B--The Board
20. In Sec. 20.102 paragraph (d) is removed, and paragraph (c) is
revised to read as follows:
Sec. 20.102. Rule 102. Delegation of authority--Rules of Practice.
* * * * *
(c) The authority exercised by the Chairman of the Board of
Veterans'
[[Page 20450]]
Appeals described in Rules 2 and 606(e) (Secs. 20.2, and 20.606(e) of
this part), may also be exercised by the Vice Chairman of the Board; by
Deputy Vice Chairmen of the Board; and, in connection with a proceeding
or motion assigned to them by the Chairman, by a Member or Members of
the Board.
* * * * *
Subpart C--Commencement and Perfection of Appeal
Sec. 20.202 [Amended]
21. Section 20.202 is amended by removing ``VA Form 1-9'' and
adding, in its place, ``VA Form 9''.
Subpart E--Administrative Appeals
22. In Sec. 20.401, paragraph (b) is revised to read as follows:
Sec. 20.401 Rule 401. Effect of decision on administrative or merged
appeal on claimant's appellate rights.
* * * * *
(b) Appeal not merged. If the claimant does not authorize merger,
normal appellate rights on the same issue are preserved, and the
Chairman will assign the proceeding to a Member or panel of Members of
the Board who did not make the decision on the administrative appeal.
The period of time from the date of notification to the claimant of the
administrative appeal to the date of the Board's decision on the
administrative appeal is not chargeable to the claimant for purposes of
determining the time limit for perfecting his or her separate appeal.
* * * * *
Subpart G--Representation
Sec. 20.603 [Amended]
23. Section 20.603(a) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.604 [Amended]
24. Section 20.604(a) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.605 [Amended]
25. Section 20.605(c) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.606 [Amended]
26. In Sec. 20.606, paragraph (a) is amended by removing ``before
traveling Sections of the Board''. Paragraph (b) is amended by removing
``Chief, Hearing Section (014B)'' and adding, in its place, ``Director,
Administrative Service (014)''; and by removing ``appeals before
traveling Sections of the Board'' and adding, in its place, ``hearings
before a Member or Members of the Board at Department of Veterans field
facilities''; and by removing ``traveling Section'' and adding, in its
place, ``hearing''. Paragraph (d) is amended by removing ``Chief of
Hearing Section'' and adding, in its place, ``Director of the
Administrative Service''; and by removing ``proceedings before
traveling Sections'' and adding, in its place, ``hearings before a
Member or Members''; and by revising the phrase ``not more than 10 days
prior to the scheduled hearing date'' to read, ``not less than 10 days
prior to the scheduled hearing date,'' and reinserting it directly
after the first appearance of ``attorney-at-law'' in the second
sentence; and removing ``traveling Section'' in the third sentence and
adding, in its place, ``hearing''.
Sec. 20.608 [Amended]
27. In Sec. 20.608, paragraph (b)(2), the last sentence is removed.
28. The heading for Subpart H is revised to read as follows:
Subpart H--Hearings on Appeal
29. In Sec. 20.700, paragraph (b) is amended in the third sentence
by removing ``personal'', and by removing ``of the hearing panel
involved'' in the last sentence and adding, in its place, ``assigned to
conduct the hearing''; paragraph (d) is amended in the second sentence
by removing ``a Board of Veterans' Appeals hearing panel'' and adding,
in its place, ``the Board of Veterans Appeals'', and by removing
``panel members'' in the third sentence and adding, in its place,
``Member or Members to whom the appeal has been assigned for a
determination''; a new paragraph (e) is added; and the authority
citation is revised to read as follows.
Sec. 20.700 Rule 700. General.
* * * * *
(e) Electronic hearings. When suitable facilities and equipment are
available, an appellant may be scheduled for an electronic hearing. Any
such hearing will be in lieu of a hearing held by personally appearing
before a Member or panel of Members of the Board and shall be conducted
in the same manner as, and considered the equivalent of, such a
hearing. If an appellant declines to participate in an electronic
hearing, the appellant's opportunity to participate in a hearing before
the Board shall not be affected.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.701 [Amended]
30. In Sec. 20.701, the authority citation is revised to read as
follows:
(Authority: 38 U.S.C. 7102, 7105, 7107)
31. Section 20.702 is amended by revising the last sentence in
paragraph (c)(1), the last two sentences in paragraph (c)(2), the
fourth and last sentences in paragraph (d), the last sentence in
paragraph (e), and the authority citations for paragraphs (a) through
(e) to read as follows:
Sec. 20.702 Rule 702. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals in Washington, DC.
(a) * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(b) * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(c) Requests for changes in hearing dates. (1) * * * In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, such requests for a new hearing date must be filed
with: Director, Administrative Service (014), Board of Veterans'
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(2) * * * In the case of a hearing conducted by the Board of
Veterans' Appeals in Washington, DC, whether good cause for
establishing a new hearing date has been shown will be determined by
the presiding Member assigned to conduct the hearing. In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, the motion for a new hearing date must be filed with:
Director, Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)
(d) Failure to appear for a scheduled hearing. * * * In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, the motion must be filed with: Director, Administrative
Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,
Washington, DC 20420. * * * In the case of hearings before the Board of
Veterans' Appeals in Washington, DC, whether good cause for such
failure to appear has been established will be determined by the
presiding Member assigned to conduct the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)
(e) Withdrawal of hearing requests. * * * In the case of hearings
to be conducted by the Board of Veterans' Appeals in Washington, DC,
the notice of withdrawal must be sent to: Director, Administrative
Service (014), Board of
[[Page 20451]]
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(Approved by the Office of Management and Budget under control
number 2900-0085)
32. Section 20.703 is revised to read as follows:
Sec. 20.703 Rule 703. When right arises to hearing before the Board of
Veterans' Appeals at a Department of Veterans Affairs field facility.
A hearing before the Board of Veterans' Appeals at a Department of
Veterans Affairs field facility is a ``hearing on appeal.''
Accordingly, there is no right to such a hearing until a Notice of
Disagreement has been filed. Any request for such a hearing filed with
a Notice of Disagreement, or filed subsequent to the filing of a Notice
of Disagreement, will be accepted by the agency of original
jurisdiction. Requests for such hearings filed before a Notice of
Disagreement has been filed, or after the Board has entered a final
decision in the case on the issue (or issues) appealed will be
rejected, except for requests for such hearings after a Notice of
Disagreement has been filed appealing a denial of benefits in a
reopened claim which followed a prior Board decision or after a motion
for reconsideration of a prior Board decision has been granted.
(Authority: 38 U.S.C. 7105(a), 7107)
33. In Sec. 20.704, the section heading; paragraphs (a), (c), (d),
and (e); and the authority citation are revised and paragraph (f) is
added to read as follows:
Sec. 20.704 Rule 704. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals at Department of Veterans Affairs field
facilities.
(a) General. Hearings are conducted by a Member or Members of the
Board of Veterans' Appeals during prescheduled visits to Department of
Veterans Affairs facilities having adequate physical resources and
personnel for the support of such hearings. The hearings will be
scheduled in the order in which requests for such hearings within that
area were received by the agency of original jurisdiction, except as
provided in paragraph (f). Requests for such hearings must be submitted
to the agency of original jurisdiction, in writing, and should not be
submitted directly to the Board of Veterans' Appeals.
* * * * *
(c) Requests for changes in hearing dates. Requests for a change in
a hearing date may be made at any time up to two weeks prior to the
scheduled date of the hearing if good cause is shown. Such requests
must be in writing, must explain why a new hearing date is necessary,
and must be filed with the office of the official of the Department of
Veterans Affairs who signed the notice of the original hearing date.
Examples of good cause include, but are not limited to, illness of the
appellant and/or representative, difficulty in obtaining necessary
records, and unavailability of a necessary witness. If good cause is
shown, the hearing will be rescheduled for the next available hearing
date after the appellant or his or her representative gives notice that
the contingency which gave rise to the request for postponement has
been removed. If good cause is not shown, the appellant and his or her
representative will be promptly notified and given an opportunity to
appear at the hearing as previously scheduled. If the appellant elects
not to appear at the prescheduled date, the request for a hearing will
be considered to have been withdrawn. In such cases, however, the
record will be submitted for review by the Member who would have
presided over the hearing. If the presiding Member determines that good
cause has been shown, the hearing will be rescheduled for the next
available hearing date after the contingency which gave rise to the
request for postponement has been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled hearing
and a request for postponement has not been received and granted, the
case will be processed as though the request for a hearing had been
withdrawn. No further request for a hearing will be granted in the same
appeal unless such failure to appear was with good cause and the cause
for the failure to appear arose under such circumstances that a timely
request for postponement could not have been submitted prior to the
scheduled hearing date. A motion for a new hearing date following a
failure to appear for a scheduled hearing must be in writing, must be
filed within 15 days of the originally scheduled hearing date, and must
explain why the appellant failed to appear for the hearing and why a
timely request for a new hearing date could not have been submitted.
Such motions must be filed with: Director, Administrative Service
(014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington,
DC 20420. Whether good cause for such failure to appear and the
impossibility of timely requesting postponement have been established
will be determined by the Member who would have presided over the
hearing. If good cause and the impossibility of timely requesting
postponement are shown, the hearing will be rescheduled for the next
available hearing date at the same facility after the appellant or his
or her representative gives notice that the contingency which gave rise
to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be
withdrawn by an appellant at any time before the date of the hearing. A
request for a hearing may not be withdrawn by an appellant's
representative without the consent of the appellant. Notices of
withdrawal must be submitted to the office of the Department of
Veterans Affairs official who signed the notice of the hearing date.
(f) Advancement of the case on the hearing docket. A hearing may be
scheduled at a time earlier than would be provided for under paragraph
(a) upon written motion of the appellant or the representative showing
that the appellant is seriously ill or under severe financial hardship.
The motion must be filed with the Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion
will be by the Member assigned as the presiding Member for the hearing.
(Authority: 38 U.S.C. 7107)
(Approved by the Office of Management and Budget under control
number 2900-0085)
34. Section 20.705(b) and the authority citation are revised to
read as follows:
Sec. 20.705 Rule 705. Where hearings are conducted.
* * * * *
(b) At a Department of Veterans Affairs facility having adequate
physical resources and personnel for the support of such hearings.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.706 [Amended]
35. In Sec. 20.706, the authority citation is revised to read as
follows:
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
36. Section 20.707 is revised to read as follows:
Sec. 20.707 Rule 707. Designation of Member or Members to conduct the
hearing.
The Member or panel to whom a proceeding is assigned under
Sec. 19.3 of this part shall conduct any hearing before the Board in
connection with that proceeding. Where a proceeding has been assigned
to a panel, the Chairman,
[[Page 20452]]
or the Chairman's designee, shall designate one of the Members as the
presiding Member. The Member or Members who conduct the hearing shall
participate in making the final determination of the claim, subject to
the exception in Sec. 19.11(c) of this part (relating to
reconsideration of a decision).
(Authority: 38 U.S.C. 7102, 7107)
37. Section 20.708 is revised to read as follows:
Sec. 20.708 Rule 708. Prehearing conference.
An appellant's authorized representative may request a prehearing
conference with the presiding Member of a hearing to clarify the issues
to be considered at a hearing on appeal, obtain rulings on the
admissibility of evidence, develop stipulations of fact, establish the
length of argument which will be permitted, or take other steps which
will make the hearing itself more efficient and productive. With
respect to hearings to be held before the Board at Washington, DC,
arrangements for a prehearing conference must be made through:
Director, Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing
conferences in cases involving hearings to be held before the Board at
Department of Veterans Affairs field facilities must be addressed to
the office of the Department of Veterans Affairs official who signed
the letter giving notice of the time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.709 [Amended]
38. Section 20.709 is amended by revising the authority citation to
read as follows:
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
39. Section 20.710 is amended by revising the authority citation to
read as follows:
Sec. 20.710 Rule 710. Witnesses at hearings.
* * * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
40. Section 20.711 is amended by revising paragraphs (e) and (h)
and the authority citation to read as follows:
Sec. 20.711 Rule 711. Subpoenas.
* * * * *
(e) Ruling on motion for subpoena. Where the Chairman has assigned
the appeal to a Member or panel, the ruling on the motion will be made
by that Member or panel. Where the appeal has not been assigned, the
Chairman will assign the matter for the purpose of ruling on the
motion. Where the moving party seeks production of documents or other
tangible evidence, the Member or panel may condition the granting of
the motion upon the advancement by the moving party of the reasonable
cost of producing the books, paper, documents, or other tangible
evidence requested.
* * * * *
(h) Motion to quash or modify subpoena. If an individual served
with a subpoena considers the subpoena to be unreasonable or
oppressive, he or she may move that the subpoena be quashed or
modified. Such motions must be in writing and must explain why the
subpoena is unreasonable or oppressive and what relief is sought. Such
motions must be filed with the Board not more than 10 days following
receipt of the subpoena. Rulings on such motions will be made by the
Member or panel authorizing the subpoena, who will inform all
interested parties of the ruling in writing. The quashing of any
subpoena will be conditional upon the return of the check for fees and
mileage to the party on whose behalf the subpoena was issued.
(Authority: 38 U.S.C. 5711, 7102(a), 7107)
41. In Sec. 20.714, paragraph (a) introductory text is amended by
revising the first sentence; paragraph (a)(1) is amended by removing
``of the hearing panel'' in the second sentence, and by removing
``Chief, Hearing Section (014B)'' in the last sentence and adding, in
its place, ``Director, Administrative Service (014); and paragraph
(a)(4) introductory text and the authority citation at the end of the
section are revised to read as follows:
Sec. 20.714 Rule 714. Record of hearing.
(a) Board of Veterans' Appeals. A hearing before a Member or panel
of Members of the Board, whether held in Washington, DC, or at a
Department of Veterans Affairs field facility, will be recorded on
audio tape. * * *
* * * * *
(4) With respect to hearings conducted by a Member or Members of
the Board at a Department of Veterans Affairs field facility : * * *
* * * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
42. In Sec. 20.715 the last two sentences and the authority
citation are revised to read as follows:
Sec. 20.715 Rule 715. Recording of hearing by appellant or
representative.
* * * In the case of hearings held before the Board of Veterans'
Appeals in Washington, DC, arrangements must be made with the Director
of the Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held
before the Board at Department of Veterans Affairs field facilities,
arrangements must be made through the office of the Department of
Veterans Affairs official who signed the letter giving notification of
the time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
43. In Sec. 20.716 the last two sentences and the authority
citation are revised to read as follows:
Sec. 20.716 Rule 716. Correction of hearing transcripts.
* * * In the case of hearings held before the Board of Veterans'
Appeals, whether in Washington, DC, or in the field, the motion must be
filed with the Director, Administrative Service (014), Board of
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The
ruling on the motion will be made by the presiding Member of the
hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
44. Section 20.717, paragraph (c) is amended by removing ``Chief,
Hearing Section (0141F)'' and adding, in its place, ``Director,
Administrative Service (014); and by revising paragraph (d) and the
authority citation to read as follows:
Sec. 20.717 Rule 717. Loss of hearing tapes or transcripts--motion for
new hearing.
* * * * *
(d) Ruling on motion for a new hearing. The ruling on the motion
for a new hearing will be made by the Member who presided over the
hearing. If the presiding Member is no longer available, the ruling on
the motion may be made by the Member or Members to whom the case has
been assigned for a determination. In cases in which a final Board of
Veterans' Appeals decision has already been promulgated with respect to
the appeal in question, the Chairman will assign the matter in
accordance with Sec. 19.3 of this title. Factors to be considered in
ruling on the motion include, but will not be limited to, the extent of
the loss of the record in those cases where only a portion of a hearing
tape is unintelligible or only a portion of a transcript has been lost
or destroyed, and the extent and reasonableness of any delay in moving
for a new hearing. If a new hearing is granted in a case in which a
final Board of Veterans' Appeals decision has already been promulgated,
a supplemental decision will be issued.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
[[Page 20453]]
Subpart J--Action by the Board
45. Section 20.900 is amended by revising paragraph (b) and the
authority citation, and by adding a new paragraph (d) to read as
follows:
Sec. 20.900 Rule 900. Order of consideration of appeals.
* * * * *
(b) Appeals considered in docket order. Appeals are considered in
the order in which they are entered on the docket, except as provided
in paragraphs (c) and (d).
* * * * *
(d) Consideration of appeals remanded by the United States Court of
Veterans Appeals. A case remanded by the United States Court of
Veterans Appeals for additional development or other appropriate action
will be treated expeditiously by the Board without regard to its place
on the Board's docket.
(Authority: 38 U.S.C. 7107, Pub. Law No. 103-446 Sec. 302)
46. Section 20.901(e) is revised to read as follows:
Sec. 20.901 Rule 901. Medical opinions and opinions of the General
Counsel.
* * * * *
(e) For purposes of this section, the term ``the Board'' includes
the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any
Member of the Board before whom a case is pending.
(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)
Subpart K--Reconsideration
47. Section 20.1003 is revised to read as follows:
Sec. 20.1003 Rule 1003. Hearings on reconsideration.
After a motion for reconsideration has been allowed, a hearing will
be granted if an appellant requests a hearing before the Board. The
hearing will be held by a Member or Members assigned to the
reconsideration panel. A hearing will not normally be scheduled solely
for the purpose of receiving argument by a representative. Such
argument should be submitted in the form of a written brief. Oral
argument may also be submitted on audio cassette for transcription for
the record in accordance with Rule 700(d) (Sec. 20.700(d) of this
part). Requests for appearances by representatives alone to personally
present argument to a Member or panel of Members of the Board may be
granted if good cause is shown. Whether good cause has been shown will
be determined by the presiding Member.
(Authority: 38 U.S.C. 7102, 7103, 7105(a))
Subpart L--Finality
48. In section 20.1100(a), the last sentence is amended by removing
``Section'' and adding, in its place, ``Panel''; and the first sentence
is revised to read as follows:
Sec. 20.1100 Rule 1100. Finality of decisions of the Board.
(a) General. All decisions of the Board will be stamped with the
date of mailing on the face of the decision. * * *
* * * * *
Subpart N--Miscellaneous
Sec. 20.1304 [Amended]
49. In Sec. 20.1304 paragraph (b) is amended by removing the next-
to-the-last sentence reading ``The ruling on the motion will be by the
Chairman.''.
[FR Doc. 96-11279 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11278 Delegations of Authority; Nonsubstantive Miscellaneous Changes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20437-20438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11278]
=======================================================================
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[[Page 20438]]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 2
RIN 2900-AI08
Delegations of Authority; Nonsubstantive Miscellaneous Changes
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the delegation of authority regulations
by removing redundant material and by removing other information not
required to be published in the Federal Register.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Dawn McGowan, Chief, Directives,
Forms, Records Management, Headquarters Health Administration Service
(161A4), Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420, (202) 565-7444. (This is not a toll free number.)
SUPPLEMENTARY INFORMATION: This final rule consists of nonsubstantive
changes and, therefore, is not subject to the notice and comment and
effective date provisions of 5 U.S.C. 553.
The Secretary hereby certifies that the rule will not have a
significant economic impact on a substantial number of small entitles
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This rule merely consists of nonsubstantive changes.
There is no Catalog of Federal Domestic Assistance Number.
List of Subjects in 38 CFR Part 2
Authority delegations (Government agencies).
Approved: April 29, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 2 is amended
as set forth below:
PART 2--DELEGATIONS OF AUTHORITY
1. The authority citation for part 2 is revised to read as follows:
Authority: 5 U.S.C. 302; 38 U.S.C. 501, 512; 44 U.S.C. 3702.
Secs. 2.3, 2.72, 2.73, 2.74, 2.91, 2.93, 2.94 [Removed]
2. In part 2, Secs. 2.3, 2.72, 2.73, 2.74, 2.91, 2.93, and 2.94 are
removed.
[FR Doc. 96-11278 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11277 VA Acquisition Regulations: Loan Guaranty and Vocational Rehabilitation and Counseling Programs
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20493-20494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11277]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
48 CFR Part 871
RIN 2900-AG65
VA Acquisition Regulations: Loan Guaranty and Vocational
Rehabilitation and Counseling Programs
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document adopts as a final rule without substantive
change the provisions of a proposed rule to amend the Department of
Veterans Affairs (VA) acquisition regulations (VAAR). This final rule
increases to $500 the blanket advance authority of management brokers
to incur routine charges in connection with the management of
properties acquired by VA under VA's housing and small business loan
programs (38 U.S.C. Chapter 37). It also increases to $500 the property
holders' emergency repair threshold. In addition, Regional Office
Directors, Loan Guaranty Officers, and Assistant Loan Guaranty Officers
are authorized to approve repair programs where the estimated cost
(i.e., the aggregate amount of the proposed contracts to purchase
supplies and services as contemplated in a property analysis by the
Loan Guaranty activity) does not exceed $25,000. Further,
nonsubstantive changes are made for purposes of clarity and to reflect
organizational changes. These changes are intended to promote the
efficient management of VA's acquired property inventory.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Wanza E. Lewis, Acquisition Policy
Division (95A), Office of Acquisition and Materiel Management,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420, (202) 565-4424.
SUPPLEMENTARY INFORMATION: On February 14, 1994, we published in the
Federal Register (59 FR 6942) a proposal to amend provisions of the
VAAR captioned ``LOAN GUARANTY AND VOCATIONAL REHABILITATION AND
COUNSELING PROGRAMS''. We solicited comments concerning the proposal
for 60 days ending April 15, 1994. We did not receive any comments. The
information presented in the proposal still provides a basis for this
final rule. We are making several nonsubstantive changes, but
otherwise, based on the rationale set forth in the proposal, we are
adopting the provisions of the proposed rule as a final rule without
change.
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule would not cause a significant effect on any
entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is
exempt from the initial and final regulatory flexibility analyses
requirements of Secs. 603 and 604.
This document is made effective on the date of publication. It
restates statutory provisions and relieves restrictions.
List of Subjects in 48 CFR Part 871
Government procurement, Loan programs-social programs, Loan
programs-veterans, Reporting and recordkeeping requirements, Vocational
rehabilitation.
Approved: March 18, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 48 CFR part 871 is
amended as set forth below:
PART 871--LOAN GUARANTY AND VOCATIONAL REHABILITATION AND
COUNSELING PROGRAMS
1. The authority citation for part 871 is revised to read as
follows:
Authority: 10 U.S.C. ch. 106, 107, 1606; 38 U.S.C. 501, ch. 30,
31, 32, 35, 36, 37; 40 U.S.C. 486(c).
Subpart 871.1--Loan Guaranty Program
2. Section 871.101 is revised to read as follows:
871.101 Policy.
All acquisitions for the repair and maintenance of VA property
acquired under 38 U.S.C. Chapter 37 shall be made in accordance with
FAR Parts 14, 15, and 16; (VAAR) 48 CFR Parts 814, 815, and 816; and
(VAAR) 48 CFR subpart 871.1.
(Authority: 10 U.S.C. ch. 106, 107, 1606; 38 U.S.C. 501, ch. 37; 40
U.S.C. 486(c))
871.102 [Amended]
3. In Sec. 871.102, paragraph (a) is amended by adding ``, Loan
Guaranty Officers, and Assistant Loan Guaranty Officers'' after
``Directors''; by removing ``purchase supplies and services for the
repair to'' and adding, in its place, ``approve a repair program for'';
and by removing ``$5,000 on any single transaction'' and adding in its
place ``$25,000. A repair program means the aggregate amount of the
proposed contracts which are contemplated in a property analysis by the
Loan Guaranty activity''.
[[Page 20494]]
4. In Sec. 871.102, paragraph (b) is amended by removing ``$5,000''
and adding in its place ``$25,000'' and by removing ``Chief Benefits
Director'' and adding in its place ``Under Secretary for Benefits''.
5. In Sec. 871.102, in paragraph (c) the second sentence is amended
by removing ``Chief Benefits Director'' and adding in its place ``Under
Secretary for Benefits''.
6. In Sec. 871.102, paragraph (d) is amended by removing ``$200''
and adding in its place ``$500''.
7. In Sec. 871.102, in paragraph (e) the first sentence is amended
by removing ``listed with him/her'' and adding in its place
``assigned''; the second sentence is amended by removing ``$200'' and
adding in its place ``$500'' and by removing ``his/her'' and adding in
its place ``the''; and the third sentence is amended by removing
``$200'' and adding in its place ``$500''.
871.103 [Removed]
8. Section 871.103 is removed.
871.105 [Removed]
9. Section 871.105 is removed.
871.106 [Amended]
10. In Sec. 871.106, in paragraph (b) the second sentence is
amended by removing ``or material men'' and is amended by removing
``his/her'' and adding in its place ``the subcontractor's''.
Subpart 871.2--Vocational Rehabilitation and Counseling Program
11. Section 871.200 is revised to read as follows:
871.200 Scope of subpart.
This subpart establishes policy and procedures for the vocational
rehabilitation and counseling program as it pertains to contracts for
training and rehabilitation services, approval of institutions
(including rehabilitation facilities), training establishments, and
employers under 38 U.S.C. Chapter 31, and contracts for counseling
services under 38 U.S.C. Chapters 30, 31, 32, 35, and 36 and 10 U.S.C.
Chapters 106, 107, and 1606.
(Authority: 10 U.S.C. ch. 106, 107, 1606; 38 U.S.C. 501, ch. 30, 31,
32, 35, 36; 40 U.S.C. 486(c))
871.201-3 [Amended]
12. Section 871.201-3 is amended by removing ``Veterans Health
Services and Research Administration'' and adding in its place
``Veterans Health Administration''.
871.207 [Amended]
13. In Sec. 871.207, paragraph (b)(2) is amended by removing
``Veterans Administration'' and adding in its place ``Department of
Veterans Affairs''.
[FR Doc. 96-11277 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11276 VA Acquisition Regulations: Miscellaneous Amendments
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20491-20493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11276]
=======================================================================
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 803, 804, 805, 806, 808, 810, 812, 813, 815, 816,
820, 822, 828, 833, 834, 836, 837, and 846
RIN 2900-AI02
VA Acquisition Regulations: Miscellaneous Amendments
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Department of Veterans Affairs
Acquisition Regulations (VAAR) to eliminate restatements of the Federal
Acquisition Regulation (FAR), to eliminate provisions duplicative of
other provisions in the VAAR, to eliminate internal procedures not
required to be included in regulations, to eliminate provisions that
refer to activities that no longer can occur (such as regulations
concerning VA depots which no longer exist), to make corrections, and
to make clarifications.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Sherry Patton for parts 801, 803, 804,
805, 834, 836 and 837; Don Kaliher for parts 806, 808, 810, 812, 828
and 833; Wanza Lewis for parts 813, 815, 816, 820 and 822; and Ramona
Jones for part 846; Acquisition Policy Division (95A), Office of
Acquisition and Materiel Management, Department of Veterans Affairs,
810 Vermont Avenue NW., Washington, DC 20420, (202) 565-4424.
SUPPLEMENTARY INFORMATION: This final rule consists of nonsubstantive
changes and, therefore, is not subject to the notice and comment and
effective date provisions of 5 U.S.C. 553. Also, this final rule is not
a significant revision as defined in FAR 1.501-1.
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-602. This final rule would not cause a significant effect on any
entities since it does not contain any substantive provisions.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
List of Subjects
48 CFR Parts 801 and 836
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 803
Antitrust, Conflict of interest, Government procurement.
48 CFR Parts 804, 805, 806, 810, 812, 813, 815, 816, , 834, 837 and
846.
Government procurement.
48 CFR Part 808
Government procurement, Utilities.
48 CFR Parts 820 and 822
Government procurement, Labor.
48 CFR Part 828
Government procurement, Insurance, Surety bonds.
48 CFR Part 833
Administrative practice and procedure, Government procurement.
Approved: April 29, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 48 CFR Chapter 8 is
amended as follows:
PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM
1. The authority citation for parts 801, 803, 804, 805, 806, 808,
810, 812, 813, 815, 816, 822, 828, 833, 836, 837, and 846 is revised to
read as follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
801.104 [Removed]
2. Section 801.104 is removed.
801.104-1 [Removed]
3. Section 801.104-1 is removed.
801.104-3 [Removed]
4. Section 801.104-3 is removed.
801.201 [Removed]
5. Section 801.201 is removed.
801.301 [Amended]
6. In Sec. 801.301, paragraph (c) is removed.
801.403 [Amended]
7. In Sec. 801.403, paragraph (b) is amended by removing the last
sentence.
801.470 [Removed]
8. Section 801.470 is removed.
801.602-72 [Amended]
9. In Sec. 801.602-72, paragraph (e)(5) is amended by removing
``806.303'' and adding, in its place, ``FAR 6.303''.
801.670-6 [Removed]
10. Section 801.670-6 is removed.
PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
803.101-3 [Amended]
11. In Sec. 803.101-3, paragraph (a) is amended by removing the
second and third sentences; paragraph (c) is removed; and paragraph (d)
is redesignated as a new paragraph (c).
803.104-5 [Removed]
12. Section 803.104-5 is removed.
803.104-9 [Removed]
13. Section 803.104-9 is removed.
803.104-11 [Removed]
14. Section 803.104-11 is removed.
803.104-12 [Removed]
15. Section 803.104-12 is removed.
803.3 [Amended]
16. In subpart 803.3, the subpart heading is amended by removing
``IDENTICAL BIDS AND''.
803.301 [Removed]
17. Section 803.301 is removed.
803.408 [Removed]
18. Section 803.408 is removed.
803.408-1 [Removed]
19. Section 803.408-1 is removed.
803.409 [Amended]
20. In Sec. 803.409, paragraph (a) is removed and the paragraph
designation ``(b)'' is removed.
803.603 [Removed]
21. Subpart 803.6 consisting of Sec. 803.603 is removed.
[[Page 20492]]
PART 804--ADMINISTRATIVE MATTERS
804.101 [Amended]
22. In Sec. 804.101, paragraph (a) is removed and the paragraph
designation ``(b)'' is removed.
PART 805--PUBLICIZING CONTRACT ACTIONS
805.202 [Amended]
23. Section 805.202 is amended by removing the second and third
sentences.
805.207 [Amended]
24. In Sec. 805.207, paragraphs (a), (b)(1), (b)(2) and (b)(3) are
removed and the paragraph designation ``(b)'' is removed.
PART 806--COMPETITION REQUIREMENTS
806.302-3 [Amended]
25. Section 806.302-3 is amended by removing ``sections 806.303
and'' and adding, in its place, ``FAR 6.303 and 48 CFR''.
806.302-5 [Amended]
26. Section 806.302-5 is amended by removing ``806.303'' each of
the three times it appears and adding, in its place, each time ``FAR
6.303''.
806.302-7 [Amended]
27. Section 806.302-7(b) is amended by removing ``806.303'' and
adding, in its place, ``FAR 6.303''.
806.303 [Removed]
28. Section 806.303 is removed.
806.303-1 [Removed]
29. Section 806.303-1 is removed.
806.304 [Amended]
30. In Sec. 806.304, paragraph (a) is amended by removing ``6.303
and 806.303'' and adding, in its place, ``6.303,''.
806.502 [Amended]
31. Section 806.502 is amended by removing paragraphs (d) and (e).
806.570 [Amended]
32. In Sec. 806.570, paragraphs (a) and (c) are removed, the
paragraph designation ``(b)'' is removed, and paragraphs (b) (1)
through (5) are redesignated as paragraphs (a) through (e),
respectively.
PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
808.001 [Amended]
33. In Sec. 808.001, paragraph (a)(2) is removed and paragraphs
(a)(3) through (a)(10) are redesignated as paragraphs (a)(2) through
(a)(9), respectively.
808.304-1-808.304-5, 808.307-2, 808.304-70 [Removed]
34. Subpart 808.3 consisting of Secs. 808.304-1 through 808.304-5,
Sec. 808.307-2 and Sec. 808.304-70 are is removed.
808.405-5 [Removed]
35. Section 808.405-5 is removed.
PART 810--SPECIFICATIONS, STANDARDS, AND PURCHASE ORDER
DESCRIPTIONS
Sec. 810.007 [Amended]
36. In Sec. 810.007, paragraph (a)(2)(i) is removed, paragraph
(a)(2)(ii) is amended by removing ``When the deviation specified in
paragraph (a)(2)(i) of this section is for an item that is not being
purchased for depot stock, document'' and adding, in its place,
``Document''; and paragraphs (a)(2)(ii) and (a)(2)(iii) are
redesignated as paragraphs (a)(2)(i) and (a)(2)(ii), respectively.
PART 812--CONTRACT DELIVERY OR PERFORMANCE
Sec. 812.503 [Removed]
37. Subpart 812.5 consisting of Sec. 812.503 is removed.
PART 813--SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES
Sec. 813.103 [Removed]
38. Subpart 813.1 consisting of Sec. 813.103 is removed.
PART 815--CONTRACTING BY NEGOTIATION
Sec. 815.502 [Removed]
39. Section 815.502 is removed.
Sec. 815.800 [Removed]
40. Section 815.800 is removed.
Sec. 815.7001-815.7002 [Removed]
41. Subpart 815.70 consisting of Secs. 815.7001 through 815.7002 is
removed.
PART 816--TYPES OF CONTRACTS
Sec. 816.102 [Amended]
42. In Sec. 816.102, paragraphs (a) and (c) are removed, paragraph
(b) is amended by removing ``of the type specified in paragraph (a)(3)
of this section''; paragraphs (b), (d), and (e) are redesignated as
paragraphs (a), (b), and (c), respectively, and the new redesignated
paragraph (c) is amended by removing the reference to paragraph ``(d)''
and adding, in its place, ``(b)''.
Sec. 816.306 [Removed]
43. Subpart 816.3 consisting of Sec. 816.606 is removed.
Sec. 816.603 [Removed]
44. Subpart 816.6 consisting of Sec. 816.603 is removed.
PART 820--[REMOVED]
45. Part 820 is removed.
PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Sec. 822.471 [Removed]
46. Section 822.471 is removed.
PART 828--BONDS AND INSURANCE
Sec. 828.307-1 [Removed]
47. Section 828.307-1 is removed.
PART 833--PROTESTS, DISPUTES, APPEALS
Sec. 833.103 [Amended]
48. In Sec. 833.103, paragraphs (a), (b)(1), (b)(4), and
(b)(7)(vii) are removed; paragraph (b) is redesignated as paragraph
(a), the new designated paragraphs (a)(2), (a)(3), (a)(5), (a)(6) and
(a)(7) are redesignated as paragraphs (a)(1) through (a)(5),
respectively; the new designated paragraphs (a)(5)(viii) through
(a)(5)(x) are redesignated as paragraphs (a)(5)(vii) through
(a)(5)(ix), respectively; and paragraphs (c), (d), (e), and (f) are
redesignated as paragraphs (b), (c), (d), and (e), respectively.
Sec. 833.211 [Amended]
49. In Sec. 833.211, paragraphs (d) and (e) are removed.
PART 834--[REMOVED]
50. Part 834 is removed.
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Sec. 836.202 [Amended]
51. In Sec. 836.202, paragraph (a) is removed and the introductory
text is redesignated as new paragraph (a).
Sec. 836.211 [Amended]
52. In Sec. 836.211, paragraphs (a), (b), and (d) are removed, and
the paragraph designation ``(c)'' is removed.
Sec. 836.371 [Amended]
53. In Sec. 836.371, paragraph (a) is amended by removing the
second and third sentences.
Sec. 836.601 [Removed]
54. Section 836.601 is removed.
[[Page 20493]]
Sec. 836.602-1 [Amended]
55. In Sec. 836.602-1, paragraph (c) is removed and paragraph (d)
is redesignated as new paragraph (c).
Sec. 836.602-3 [Removed]
56. Section 836.602-3 is removed.
Sec. 836.606-70 [Amended]
57. In Sec. 836.606-70, the first 5 sentences are removed.
Sec. 836.606-71 [Amended]
58. In Sec. 836.606-71, the second and fourth sentences are
removed.
Sec. 836.606-73 [Amended]
59. In Sec. 836.606-73, paragraph (a) is amended by removing ``fee
limitation on architect or engineer services set forth in section
304(b) of the Federal Property and Administration Services Act of 1949,
as amended, and referred to in FAR 15.903(d)(1)(ii), applies to those
services generally required in preparing working drawings and
specifications which form the basis for bidding and for the award of
construction contract. The fixed''.
PART 837--SERVICE CONTRACTING
Sec. 837.104 [Amended]
60. In Sec. 837.104, paragraph (a) is amended by removing ``,
except to the extent indicated in 815.204 and subpart 837.2,''.
Sec. 837.200 [Removed]
61. Section 837.200 is removed.
Sec. 837.204 [Removed]
62. Section 837.204 is removed.
Sec. 837.205 [Removed]
63. Section 837.205 is removed.
Sec. 837.271-5 [Amended]
64. Section 837.271-5 and Appendices A and B to subpart 837.2 are
removed.
Sec. 837.7002-7002 [Amended]
65. In Sec. 837.7002, the last sentence is removed.
PART 846--QUALITY ASSURANCE
Sec. 846.302 [Removed]
66. Section 846.302 is removed.
Sec. 846.403 [Removed]
67. Section 846.403 is removed.
Sec. 846.408-72 [Removed]
68. Section 846.408-72 is removed.
[FR Doc. 96-11276 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11275 Schedule for Rating Disabilities; Fibromyalgia
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20438-20440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11275]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AH05
Schedule for Rating Disabilities; Fibromyalgia
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This document amends the Department of Veterans Affairs (VA)
Schedule for Rating Disabilities by adding a diagnostic code and
evaluation criteria for fibromyalgia. The intended effect of this rule
is to ensure that veterans receive consistent evaluations for this
condition.
DATES: This interim final rule is effective May 7, 1996. Comments must
be received on or before July 8, 1996.
[[Page 20439]]
ADDRESSES: Mail written comments to: Director, Office of Regulations
Management (02D), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420 or hand deliver written comments to: Office
of Regulations Management, Room 1176, 801 Eye St., NW., Washington, DC
20001. Comments should indicate that they are submitted in response to
``RIN 2900-AH05.'' All written comments received will be available for
public inspection in the Office of Regulations Management, Room 1176,
801 Eye St., NW., Washington, DC 20001 between the hours of 8:00 a.m.
and 4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: The VA Schedule for Rating Disabilities,
which constitutes 38 CFR Part 4, is a guide for the evaluation of
disability resulting from diseases or injuries. This document adds to
the musculoskeletal section of the Schedule, Sec. 4.71a, a new
diagnostic code, 5025, for fibromyalgia, also called fibrositis or
primary fibromyalgia syndrome, and establishes criteria for its
evaluation.
Fibromyalgia is a syndrome of chronic, widespread musculoskeletal
pain associated with multiple tender or ``trigger'' points, and often
with multiple somatic complaints. Sleep disorders are present in more
than half of the patients. Anxiety, fatigue, headache, and irritable
bowel symptoms are also common. Some patients complain of neurologic
symptoms such as numbness and weakness, but objective neurologic
abnormalities are not found. Other associated findings include
depression, Raynaud's-like symptoms, and stiffness. The etiology is
unknown.
Classification criteria for fibromyalgia for research and
epidemiological purposes were established by the American College of
Rheumatology in 1990. The first requirement is a history of widespread
pain, which means pain in both the left and right sides of the body,
pain both above and below the waist, and pain in both the axial
(cervical spine, anterior chest, thoracic spine, or low back) and
peripheral (extremity) skeleton. The second requirement is the presence
of pain on digital palpation at a minimum of 11 of the following 18
tender point sites: occiput, low cervical, trapezius, supraspinatus,
second rib, lateral epicondyle, gluteal, greater trochanter, knee
(there is a left site and a right site at each location). In clinical
practice, the diagnosis is often made on less stringent criteria, with
fewer tender points required.
We are providing three levels of evaluation: 10, 20, and 40
percent, consistent, in our judgment, with the clinical range of
impairment of this condition. While patients may have numerous symptoms
that may be chronic, it is a benign disease that does not result in
loss of musculoskeletal function. For the 40 percent level, the
requirements are that the widespread pain and multiple tender points,
with or without certain associated complaints, be constant, or nearly
so, and refractory to therapy. For the 20 percent level, the
requirements are that the pain and tender points, etc., be episodic,
with exacerbations often precipitated by environmental or emotional
stress or by overexertion, but present more than one-third of the time.
For the 10 percent level, the requirement is that the pain and tender
points, etc., require continuous medication for control.
It is necessary to make this rule effective upon publication.
Conditions not listed in the Schedule may be evaluated under a closely
related condition in which anatomical localization, functions affected,
and symptomatology are closely analogous. (See 38 CFR 4.20.) However,
because of the variety of analogous conditions under which fibromyalgia
may be evaluated, it is necessary to establish a final rule immediately
in order to avoid inconsistency in evaluations. Comments are being
solicited for 60 days after publication of this document. VA may modify
the rule in response to comments, if appropriate.
Because no notice of proposed rulemaking was required in connection
with the adoption of this interim final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Further, this amendment would not directly affect any small
entities since it would affect only individuals.
This rule has been reviewed as a ``significant regulatory action''
under E.O. 12866 by the Office of Management and Budget.
The Catalog of Federal Domestic Assistance program numbers are
64.104 and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: December 7, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 4, subpart B
is amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155.
Subpart B--Disability Ratings
2. In Sec. 4.71a, diagnostic code 5025 is added immediately after
the sentence that follows diagnostic code 5024, to read as follows:
Sec. 4.71a Schedule of ratings--musculoskeletal system.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
* * * *
* * *
5025 Fibromyalgia (fibrositis, primary fibromyalgia
syndrome)
With widespread musculoskeletal pain and tender points,
with or without associated fatigue, sleep disturbance,
stiffness, paresthesias, headache, irritable bowel
symptoms, depression, anxiety, or Raynaud's-like
symptoms:
That are constant, or nearly so, and refractory to
therapy........................................... 40
That are episodic, with exacerbations often
precipitated by environmental or emotional stress
or by overexertion, but that are present more than
one-third of the time............................. 20
That require continuous medication for control..... 10
* * * *
* * *
------------------------------------------------------------------------
Note: Widespread pain means pain in both the left and right sides of the
body, that is both above and below the waist, and that affects both
the axial skeleton (i.e., cervical spine, anterior chest, thoracic
spine, or low back) and the extremities.
[[Page 20440]]
[FR Doc. 96-11275 Filed 5-6-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-11224 Decision of the United States Supreme Court Concerning an Agency Interpretation of the Federal Hours of Service Laws; Change in Agency Interpretation; Enforcement Policy Regarding Violations of Laws as Previously Interpreted
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20494-20496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11224]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 228
Decision of the United States Supreme Court Concerning an Agency
Interpretation of the Federal Hours of Service Laws; Change in Agency
Interpretation; Enforcement Policy Regarding Violations of Laws as
Previously Interpreted
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Statement of agency policy and interpretation.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that, in accordance with the decision
of the United States Supreme Court in Brotherhood of Locomotive
Engineers v. Atchison, Topeka and Santa Fe R.R., all time spent
awaiting the arrival of a deadhead vehicle for transportation to the
point of final release, when no additional services are required of
railroad carrier employees, shall be treated by FRA as time neither on
nor off duty for purposes of the Federal hours of service laws
(``HSL''), throughout the entire nation. FRA is amending its current
interpretive statement to reflect this Supreme Court decision.
EFFECTIVE DATE: January 8, 1996.
FOR FURTHER INFORMATION CONTACT: Edward R. English, Director, Office of
Safety Assurance and Compliance, Office of Safety, FRA, 400 Seventh
Street, S.W., Washington, D.C. 20590 (telephone: 202-366-9252); or
David H. Kasminoff, Trial Attorney, Office of Chief Counsel, FRA, 400
Seventh Street, S.W., Washington, D.C. 20590 (telephone: 202-366-0628).
SUPPLEMENTARY INFORMATION:
Public Participation
In this notice FRA is announcing that it has changed its
interpretation of the HSL (49 U.S.C. 20102, 21101-21108, 21303, and
21304), consistent with a unanimous decision of the United States
Supreme Court, concerning the treatment of time spent awaiting the
arrival of deadhead transportation to the point of final release.
Notice and comment procedures are unnecessary with regard to the
general statement of policy and interpretation issued by this notice
because such a statement is excepted from notice and comment procedure
by virtue of 5 U.S.C. 553(b)(3)(A). Statements of policy are also an
exception to the general requirement of publication at least 30 days
prior to the effective date. See 5 U.S.C. 553(d)(2).
Effect of this Notice
On January 8, 1996, the United States Supreme Court issued its
decision in the case of Brotherhood of Locomotive Engineers v.
Atchison, Topeka and Santa Fe R.R.,____ U.S. ____, 116 S.Ct. 595,
affirming the decision of the United States Court of Appeals for the
Seventh Circuit in the case of Atchison, Topeka, and Santa Fe Railway
Co. v. Pena, 44 F.3d 437 (1994). Both cases concern FRA's
interpretation of the HSL as they pertain to the status of train
crewmembers waiting for the arrival of deadhead transportation to their
point of final release. The Supreme Court unanimously held that such
time, when no additional services are required of railroad carrier
employees, should be classified as limbo time (i.e., neither on- nor
off-duty time) for HSL purposes.
The Supreme Court's holding coincided with the position that FRA
had traditionally taken until the agency changed its interpretation of
the HSL in late 1992. Prior to that change, FRA had considered an
employee to be on duty during the time spent waiting for the arrival of
deadhead transportation to the employee's point of final release only
if the employee actually had duties to perform. If the railroad carrier
had relieved the employee of all responsibility, FRA had considered
such time spent merely waiting for the deadhead vehicle to arrive as
limbo time.
However, on September 22, 1992, in response to lawsuits filed by
the United Transportation Union and the Brotherhood of Locomotive
Engineers, a three-judge panel of the United States Court of Appeals
for the Ninth Circuit held that such time spent waiting for
transportation was to be considered on-duty time. United Transportation
Union v. Skinner, 975 F.2d 1421 (9th Cir. 1992). The Ninth Circuit
includes Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana,
Nevada, Oregon, and Washington. Although FRA disagreed with the Ninth
Circuit's legal rationale, FRA recognized both the ambiguity of the
HSL's pertinent provisions and the reasonableness of the court's
ultimate conclusion as to the
[[Page 20495]]
proper reading of those provisions. Accordingly, in the interest of
uniform application of the HSL and to promote the safety of railroad
operations, FRA decided to treat the Ninth's Circuit opinion as binding
throughout the entire nation. That shift in agency policy was announced
in an October 28, 1992 letter to the Association of American Railroads
(AAR), and was later published in the Federal Register. 58 Fed. Reg.
18,193 (1993).
FRA had always believed that both the Ninth Circuit's
interpretation of the relevant HSL provisions, and what became the
Seventh Circuit's interpretation, were reasonable. While FRA adopted
the Ninth Circuit's interpretation in 1992 primarily to achieve
national uniformity, the contrary decision of the Seventh Circuit in
1994 made that goal impossible to achieve until the Supreme Court
finally resolved the split between the circuit courts. Moreover, upon
review of the Seventh Circuit's unanimous, en banc decision, FRA
concluded that the Seventh Circuit's reading of the pertinent HSL
provisions was better reasoned than the decision of the Ninth Circuit.
Accordingly, FRA stated in a March 1, 1995 letter to AAR that,
effective March 6, 1995, with respect to locations outside of the
territory of the Ninth Circuit, FRA would revert to its prior view that
all time spent merely waiting on a train for the arrival of deadhead
transportation to the employee's point of final release would be
treated as limbo time.
Now that the Supreme Court has resolved the split in the circuits,
this means that effective January 8, 1996, FRA treats an employee
merely required to remain on a train--at a location in any state in the
nation--while awaiting the arrival of deadhead transportation to the
employee's point of final release, as neither on nor off duty; the
employee's status most closely resembles, and is part and parcel of,
deadheading from duty.
However, as FRA has long maintained, if an employee is required to
perform service of any kind during that period (e.g., protecting the
train against vandalism, observing passing trains for any defects or
unsafe conditions, flagging, shutting down locomotives, checking fluid
levels, or communicating train consist information via radio), he or
she will be considered as on duty until all such service is completed.
Moreover, the Supreme Court's decision addressed the situation in which
a crew that has expired under the laws is called upon to perform
nonoperational duties (i.e., commingled duties) while it waits for the
arrival of the deadhead vehicle after the expiration of the maximum 12
hours. The Court made clear that the laws account for that circumstance
by treating such time as time on duty pursuant to 49 U.S.C. 21103(b)(3)
(commingled service provision). Of course, where a railroad carrier's
operating rules clearly relieve an employee of all duties during the
waiting period and no duties are specifically assigned, the employee's
waiting time will be considered limbo time.
Consistent with the Supreme Court's holding, FRA is ceasing all
enforcement activity concerning alleged violations of the HSL and hours
of duty records and reporting regulations (49 CFR Part 228, Subpart B)
occurring anywhere in the United States involving only the awaiting
deadhead issue. Allegations of excess service involving only this issue
are no longer being investigated by FRA. Moreover, all case files
containing violation reports involving only this issue, regardless of
the location or the date of the alleged violation, will soon be
terminated. FRA's Office of Chief Counsel will provide the legal
department of each railroad impacted by the Supreme Court's decision
with a complete list of the case files that are affected by this policy
change.
Although time spent awaiting the arrival of deadhead transportation
to the employee's point of final release will now constitute limbo time
and FRA will enforce the laws accordingly, FRA remains concerned about
instances in which employees are held on trains for long periods of
time while awaiting the arrival of deadhead transportation in the
absence of any valid emergency that might explain such an occurrence.
To the extent that the waiting periods are extremely lengthy, current
scientific information concerning sleep cycles and the effects of
fatigue on safety-sensitive performance indicates that the waiting
periods could contribute to the cumulative exhaustion of the employee.
This cumulative exhaustion could occur even though the employee
receives the legally required rest period upon arrival at the point of
final release. Accordingly, it is FRA's expectation that the railroad
carriers will voluntarily employ their best efforts to minimize the
time that employees spend waiting for the arrival of deadhead
transportation. FRA also urges the railroad carriers to devise pilot
projects under the laws, pursuant to 49 U.S.C. 21108, that might reduce
the awaiting-deadhead time in return for flexibility on other hours of
service issues.
FRA is amending its current interpretive statement in Appendix A to
49 CFR Part 228 to reflect the fact that, in addition to computing time
spent in deadhead transportation from the final duty assignment of the
work tour to the point of final release as limbo time (time neither on-
nor off- duty), all time spent awaiting the arrival of a deadhead
vehicle for transportation to the point of final release, when no
additional services are required of the railroad employee, shall also
be treated by FRA as limbo time for purposes of the laws.
List of Subjects in 49 CFR Part 228
Penalties, Railroad employees, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 49 CFR Part 228 is amended as
follows:
PART 228--[AMENDED]
1. The authority citation for 49 CFR Part 228 is revised to read as
follows:
Authority: 49 U.S.C. 20102-20103, 20107-20108, 20111, 20112,
21101-21108, 21303-21304, as amended; 49 U.S.C. App. 1655(e), as
amended; 49 CFR 1.49(d), (m).
2. Appendix A to Part 228 is amended: By revising the second
paragraph of Deadheading, under the undesignated centerheading ``Train
and Engine Service,'' to read as follows:
Appendix A to Part 228--Requirements of the Hours of Service Act:
Statement of Agency Policy and Interpretation
* * * * *
Train and Engine Service
* * * * *
Deadheading. * * *
All time spent awaiting the arrival of a deadhead vehicle for
transportation from the final duty assignment of the work tour to the
point of final release is considered limbo time, i.e., neither time on
duty nor time off duty, provided that the employee is given no specific
responsibilities to perform during this time. However, if an employee
is required to perform service of any kind during that period (e.g.,
protecting the train against vandalism, observing passing trains for
any defects or unsafe conditions, flagging, shutting down locomotives,
checking fluid levels, or communicating train consist information via
radio), he or she will be considered as on duty until all such service
is completed. Of course, where a railroad carrier's operating rules
clearly relieve the employee of all duties during the waiting period
and no duties are specifically assigned, the waiting
[[Page 20496]]
time is not computed as either time on duty or time off duty.
* * * * *
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 96-11224 Filed 5-6-96; 8:45 am]
BILLING CODE 4910-06-P
Complete official Federal Register PDF
FR Doc. 96-11218 National Oil and Hazardous Substances Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Page 20473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11218]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5468-7]
National Oil and Hazardous Substances Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of Deletion of the East Bethel Demolition Landfill
Superfund Site from the National Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the East Bethel Demolition Landfill site in Anoka,
Minnesota from the National Priorities List (NPL). The NPL is Appendix
B of 40 CFR Part 300 which is the National Oil and Hazardous Substances
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), as amended. EPA and the State of
Minnesota have determined that all appropriate Fund-financed responses
under CERCLA have been implemented and that no further response by
responsible parties under CERCLA is appropriate.
EFFECTIVE DATE: May 7, 1996.
FOR FURTHER INFORMATION CONTACT: Rita Garner-Davis at (312) 886-2440,
Associate Remedial Project Manager, Superfund Division, U.S. EPA--
Region V, 77 West Jackson Blvd., Chicago, IL 60604. Information on the
site is available at: EPA Region V docket room at the above address and
at the East Bethel City Hall and the Minnesota Pollution Control Agency
Public Library, 520 Lafayette RD. St. Paul, MN 55155-4194.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is the
East Bethel Demolition Landfill Site in Anoka County, Minnesota. A
Notice of Intent to Delete was published March 13, 1996, (61 FR 10298)
for this site. The closing date for comments on the Notice of Intent to
Delete was April 12, 1996. EPA received no comments.
The EPA identifies sites which appear to present a significant risk
to public health, welfare, or the environment and it maintains the NPL
as the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund-financed remedial actions. Any
site deleted from the NPL remains eligible for Fund-financed remedial
actions in the unlikely event that conditions at the site warrant such
action. Section 300.425(e)(3) of the NCP states that Fund-financed
actions may be taken at sites deleted from the NPL in the unlikely
event that conditions at the site warrant such action. Deletion of a
site from the NPL does not affect responsible party liability or impede
Agency efforts to recover costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Hazardous Waste, Chemicals, Hazardous
substances, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: April 22, 1996.
David A. Ullrich,
Acting Regional Administrator, U.S. EPA, Region V.
40 CFR part 300 is amended as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp.; p. 193.
Appendix B--[Amended]
2. Table 1 of appendix B to part 300 is amended by removing the
East Bethel Demolition Landfill Site, East Bethel Township, Minnesota.
P[FR Doc. 96-11218 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11211 Import/Export User Fees
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20421-20437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11211]
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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.
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Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20421]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 130
[Docket No. 92-174-2]
RIN 0579-AA67
Import/Export User Fees
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending user fees for certain import- and export-
related services we provide for live animals and birds, animal
products, organisms and vectors, and germ plasm and veterinary
diagnostic services. We are also establishing user fees for certain
import- and export-related services we provide for live animals and
birds, and animal products and byproducts. We are also making several
miscellaneous changes, such as amending the definitions of certain
words. These actions are necessary to help ensure that we recover our
costs and to simplify and clarify the application of user fees for the
public. These actions are taken in accordance with the Food,
Agriculture, Conservation, and Trade Act of 1990, as amended, which
gives us the authority to set and collect these user fees.
EFFECTIVE DATE: June 6, 1996.
FOR FURTHER INFORMATION CONTACT: For information concerning services
provided for live animals and birds, and germ plasm, contact Dr. Gary
S. Colgrove, Chief Staff Veterinarian, National Center for Import and
Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231;
(301) 734-3294.
For information concerning services provided for animal products
and byproducts, organisms and vectors, contact Dr. Kathleen Akin,
Senior Staff Veterinarian, Import/Export Products, VS, APHIS, 4700
River Road Unit 40, Riverdale, MD 20737-1231; (301) 734-7830.
For information concerning services provided for veterinary
diagnostics, contact Dr. James E. Pearson, Acting Director, National
Veterinary Services Laboratories, P.O. Box 844, Ames, IA 50010; (515)
239-8266.
For information concerning fees, contact Ms. Barbara Thompson,
Chief, Financial Systems and Services Branch, Budget and Accounting
Division, APHIS, 4700 River Road Unit 54, Riverdale, MD 20737-1232;
(301) 734-5901.
SUPPLEMENTARY INFORMATION:
Background
The Food, Agriculture, Conservation and Trade Act of 1990, as
amended (referred to below as the Farm Bill), authorizes the Secretary
of Agriculture, among other things, to prescribe and collect fees to
reimburse the Secretary for the cost of carrying out the provisions of
the Federal animal quarantine laws that relate to the importation,
entry, and exportation of animals, articles, or means of conveyance
(section 2509(c)(1) of the Farm Bill). The Secretary of Agriculture is
also authorized, under section 2509(c)(2) of the Farm Bill, to
prescribe and collect fees to recover the costs of carrying out certain
veterinary diagnostics services.
The user fee regulations in 9 CFR part 130 (referred to below as
the regulations) prescribe user fees that the Animal and Plant Health
Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA)
collects for various services that APHIS provides. The regulations
currently include user fees for: (1) Providing quarantine, importation,
and entry services within the United States for imported animals; (2)
conducting certain veterinary diagnostics services; (3) endorsing
export health certificates for animals; (4) providing certain
inspection and supervision services within the United States for
animals intended for export; and (5) conducting certain veterinary
inspections outside the United States.
Our user fees are calculated to recover the full cost of providing
the service for which the user fee is charged. The cost of providing a
service includes direct labor costs and a pro rata share of
administrative support, agency overhead, and Departmental charges.
On May 26, 1995, we published in the Federal Register (60 FR 27913-
27924, Docket No. 92-174-1) a proposal to amend the regulations by
revising and adding new hourly, minimum, and flat rate user fees in the
regulations. We proposed to increase most of the hourly, minimum, and
flat rate user fees for import-related services in Secs. 130.2, 130.3,
130.5, 130.6, 130.7, and 130.9 of the regulations and for export-
related services in Secs. 130.9 and 130.21 of the regulations. For
services performed on overtime, we proposed to add new premium hourly
rate user fees, to replace the practice of charging two separate hourly
rates (see Secs. 130.5, 130.9 and 130.21 of the regulations). We
proposed to add a new minimum user fee in Sec. 130.3 of the
regulations. We proposed to add a new Sec. 130.10 for hourly, minimum,
and flat rate user fees for pet birds. We proposed to add new
requirements for special mail handling to be paid for by the user in
Secs. 130.14 through 130.18 of the regulations. We proposed to add a
new fee for nonendorsed export health certificates in Sec. 130.20 of
the regulations. Additionally, we proposed to accept credit cards in
certain locations as an optional payment method. We also proposed to
make several other changes to simplify and clarify the regulations.
We solicited comments concerning our proposal for 60 days ending
July 25, 1995. We received 60 comments by that date. They were from
veterinarians, representatives of agricultural industries, exporters,
producers, a State department of livestock, a Member of Congress, and
other interested parties.
Summary of Changes Made in Response to Comments
We are making the following changes in response to the comments we
received. We are combining the services covered under Sec. 130.4 with
the services covered under Sec. 130.5. Section 130.4 covers inspection
services at privately operated permanent import-quarantine facilities.
Under Sec. 130.4, a flat rate user fee is charged for each animal
quarantined at the facility. Section 130.5 covers inspection services
at privately operated temporary import-quarantine facilities. Under
Sec. 130.5, an hourly user fee is charged for animals quarantined at
the facility. We are adding quarter-hour
[[Page 20422]]
and minimum user fee rates to premium user fees added in Secs. 130.5,
130.9, and 130.21. We are clarifying Sec. 130.20(a) and
Sec. 130.20(b)(1) to specify that the user fees listed in
Sec. 130.20(b)(1) for endorsing export health certificates which
require tests or vaccinations are charged for endorsements when tests
or vaccinations are required. We are changing ``APHIS veterinarian'' to
``designated APHIS employee'' and changing ``requested'' to ``requested
and reviewed'' in Sec. 130.20(d) of this final rule. In addition, we
are revising the text of footnote 9 to reflect the availability of
lists for APHIS offices that accept cash or credit cards. Footnotes to
text or tables in Secs. 130.7, 130.8, 130.10, 130.14, and 130.15 have
been revised to add clarity. The comments and responses are discussed
below by topic.
General Comments
One commenter opposed the entire proposed rule. All of the other
commenters opposed some portion of the proposed rule. Twelve commenters
included the following positive comments concerning user fees and the
services APHIS provides. Several commenters expressed an understanding
of our need to increase user fees or supported user fees which cover
costs. Several expressed appreciation for the services APHIS provides,
such as APHIS' role in disease control and maintenance of a healthy and
robust livestock industry in the United States, helping export business
in the United States, and negotiating import- and export-related issues
with foreign countries. One commenter supported modest increases in
certain user fees as proposed.
1. Taxes and Budget Deficit
Nine commenters expressed concerns about taxes and the budget
deficit. Some commenters expressed more than one concern; specific
concerns follow.
Two commenters stated that APHIS was assessing taxes of its own
volition. Six commenters stated that the APHIS user fee is a tax, not a
fee.
A tax is money paid to support government operations that benefit
the general public. A user fee is money collected for a specific
service provided to a readily identifiable recipient. The 1990 Farm
Bill authorizes USDA to prescribe and collect user fees to reimburse
the cost of carrying out certain import- and export-related services
for animals, animal products, and veterinary diagnostics. The Farm Bill
further states that ``Any person for whom an activity related to the
importation, entry, or exportation of an animal, article, or means of
conveyance or relating to veterinary diagnostics, is performed pursuant
to the section, shall be liable for payment of fees assessed.''
Generally speaking, no one is required to conduct any business or
endeavor which is regulated by APHIS. However, anyone who does so must
comply with APHIS requirements. In this manner, all users ask for
service from APHIS. The APHIS user fees herein are designed to recover
and fund the cost of providing specific services. As such, the APHIS
user fee is a fee for specific services provided to a certain portion
of the public and, therefore, is not a tax.
Three commenters stated that our services are already paid for by
taxes, and therefore, we should not charge fees for them. One commenter
suggested that we should fund increases in the costs through other
methods.
After the passage of the 1990 Farm Bill, Congress reduced APHIS'
appropriations (i.e., tax revenue) by the estimated costs of providing
these import- and export-related services. Congress authorized APHIS to
recover all costs associated with these services by establishing and
charging user fees. Consequently, any increases in our costs must be
recovered by increasing the user fees we charge. Otherwise, we would
have to reduce or discontinue the service or use funds appropriated for
other purposes, to the detriment of the program from which the funds
were reallocated.
One commenter stated that APHIS user fees should not be used for
general Federal budget deficit reduction. One commenter questioned what
will be done with revenues.
The user fees are not being used for general Federal budget deficit
reduction in the sense that the revenue does not fund or offset general
government operations. The user fees collected pay for the actual user
fee services provided and will allow APHIS to continue providing
import- and export-related and veterinary diagnostic services. The user
fees our Agency collects for these services are deposited into user fee
accounts, and the salaries of veterinarians, animal health technicians,
and other APHIS personnel who perform these services are paid from this
account. An employee who spends a portion of his work time on user fee
activities and a portion on other activities is paid the appropriate
percentage of his salary with user fee revenue. In addition, a pro rata
share of administrative support, agency overhead, and Departmental
charges is paid from this account.
Two commenters questioned user fees as they relate to other APHIS
services. One commenter questioned charging user fees for certain
services when other services are provided at no cost. The commenter
referenced free rabies vaccination clinics on reservations.
The Farm Bill identified specific program areas for the
implementation of user fees, generally related to the importation and
exportation of animals and animal products. APHIS does not have the
authority under the Farm Bill to charge fees for other services, such
as rabies vaccinations, which we provide on reservations to protect
public health.
2. Fee Calculations
We received several comments related to how we calculated our user
fees. One commenter was concerned about the methods used to calculate
the fees and the possibility that the user fees are underwriting other
APHIS services. Several comments questioned whether we should include
certain cost factors, for example, agency overhead charges, in
calculating user fees. Other comments stated that we would recover more
money from our proposed user fees than it costs to provide APHIS
services.
As described in the proposal, the user fees were calculated to
recover the full cost of providing the service for which the fee is
charged. ``Full cost'' includes not only the direct labor of the
veterinarian, animal health technician, or other APHIS personnel
providing the service, but a pro rata share of administrative support,
agency overhead, and Departmental charges. These additional indirect
and overhead costs are included as directed in the Office of Management
and Budget (OMB) Circular A-25, User Charges, and in accordance with
generally accepted cost accounting principles.
Had Congress intended for APHIS to recover only direct labor costs,
the authorizing language would have specified that and Congress would
have continued to give APHIS appropriations to fully fund all indirect
and overhead costs associated with import- and export-related services.
The comments that we may be underwriting other services and that we
will recover more money than it costs to provide the service would only
be true if the Farm Bill authorized us to only recover direct costs.
However, because we are authorized to fully recover all costs, our fees
include all appropriate direct, indirect, and overhead costs.
3. Trade Concerns
Twenty-eight commenters expressed concern about the increases in
user fees and the possible subsequent decrease in exports.
[[Page 20423]]
We realize that payment of the proposed user fees will increase the
up-front cost of doing business for importers and exporters. However,
before this time, users have been subsidized by the taxpayers in
general, in that those who receive services from APHIS have not been
charged the full cost for services. As explained above, appropriations
from taxes are not available to fund these services. To continue
providing import- and export-related and veterinary diagnostic
services, APHIS must charge user fees which will recover the costs of
providing services. We attempt to minimize the cost of our services to
keep APHIS user fees at the lowest possible level. We do not anticipate
that exports will decline significantly as a result of these increases
in user fees.
Many commenters stated that our proposed user fees would make it
difficult or impossible for U.S. products to compete in the
international marketplace. Examples of the issues raised included the
following: U.S. products will be less competitive, the increased user
fees will be a deterrent to international trade, exportation of animals
will become unprofitable, and there will be a decrease in export
activity. Many of these comments mentioned trade related issues with
Canada.
Although some countries do not currently charge for import- and
export-related services, user fees for these services are being adopted
by more and more countries. In fact, as of May 3, 1995, Canada charges
user fees for certain import- and export-related animal health services
(see May 3, 1995, Canada Gazette Part II, Vol. 129, No. 9, SOR/DORS/95-
198). Therefore, we do not believe that U.S. exporters are at a
competitive disadvantage compared with exporters in other countries.
4. Other Countries' Requirements
Two commenters raised the following concerns related to the
requirements other countries impose on U.S. exports. One commenter
questioned why it costs significantly more to export animals to Canada
as opposed to exporting animals to the European Union.
APHIS costs for export-related services depend on the importing
countries' requirements. Canada has significantly different paperwork
requirements than most other countries in the world. Often, more work
is required on the part of APHIS employees to ensure the animals being
exported have met all of Canada's paperwork requirements. In those
instances, the user fees for animals being exported to Canada may be
higher than for animals exported to the rest of the world.
One commenter suggested that APHIS should seek elimination of
import- and export-related testing procedures which are not science- or
risk-based and which may add unnecessary costs to import- and export-
related procedures.
According to the World Trade Organization (WTO), as established by
the Uruguay Round of the General Agreement on Tariffs and Trade, and
the North American Free Trade Agreement (NAFTA), effective January
1995, import- and export-related requirements must be science- and
risk-based. Along with the United States, many countries are revising
their requirements to comply with WTO and NAFTA. In addition, APHIS
continually negotiates with other countries to achieve less onerous
import requirements for U.S. exporters. Since our costs vary depending
on the requirements imposed by the importing country, when other
countries lessen their import requirements, our user fees may decrease.
For example, if a country were to no longer require tests or were to
allow more animals on a single export health certificate, the average
amount of time it would take to provide endorsement services would
decrease and the user fees charged could decrease.
5. Improve Services to Lower Costs
Six commenters suggested that we lower costs and simplify paperwork
requirements. Five commenters suggested that we review and improve
services. Specific suggestions included privatizing services,
automating services, streamlining tests, increasing field staff, and
basing user fees on speed of service.
APHIS continually strives to improve efficiency in operations.
APHIS seeks to eliminate duplication of services and to utilize
employees better without jeopardizing the quality of our work in
carrying out the provisions of the Federal animal quarantine laws. Most
paperwork services and the related costs associated with imports and
exports are required by the importing country and we cannot do anything
directly to change those requirements. However, as explained above, we
do try to negotiate with other countries to make requirements less
onerous. If we propose to eliminate a service for which we have a user
fee, then we will also propose to eliminate the user fee. Likewise, if
in the future we propose to add a service, then we may also propose to
add a user fee for the service. If we propose in the future to
substantially change a service for which we charge a user fee, then we
will recalculate the user fee for the service to reflect those changes.
6. Economic Analysis
One commenter stated that we should have included a small business
impact statement in the proposed rule.
A regulatory flexibility analysis, which includes a small business
impact statement, was included in the proposed regulations at 60 FR
27919-27920.
One commenter stated that the costs used in our economic analysis
did not provide an accurate picture of how importers assess costs
related to importing animals. The commenter specified that these costs
are generally broken down into the following three areas: the purchase
price of the animal, freight charges, and importing or exporting
expenses.
The costs used in the economic analysis performed for the
regulatory flexibility analysis for the proposal included all of these
expenses. As stated in the proposal, the figures shown in the analysis
included purchase and import costs, including freight. Therefore, we
are making no changes as a result of this comment.
7. Effective Date
Three commenters suggested that we delay the effective date of the
final rule.
We understand the commenters' desire to make business plans and not
have business affected by increases in our user fees. Our proposal
signaled our intention to revise the import- and export-related service
user fees. The proposal was published in the Federal Register on May
25, 1995, and open for public comments for 60 days. This rule will not
take effect until 30 days after the date it is published in the Federal
Register. This delay should give the commenters and others adequate
time to prepare.
8. Independent Review
One commenter suggested that a review team should be established to
conduct an independent user fee review.
APHIS monitors user fees regularly and reviews user fees at least
annually to ensure that they continue to correspond with our costs. In
addition, outside reviews are performed by the Office of the Inspector
General and the General Accounting Office (GAO).
9. Privately Owned Import Quarantine Facilities (Secs. 130.4 and 130.5)
One commenter pointed out that inspection services for animals
provided for privately owned permanent import quarantine facilities
under Sec. 130.4 are
[[Page 20424]]
similar to those provided for privately owned temporary import
quarantine facilities under Sec. 130.5, and stated that having
different user fees for similar services is unfair. The commenter
stated that depending on the number of animals being imported, the user
fees could be less for the services provided under Sec. 130.5 during
the regular tour of duty and on overtime than the user fee for the same
services if provided under Sec. 130.4. The commenter asked if APHIS is
recovering all the import-related costs from the hourly user fee
charged under Sec. 130.5; and if so, why is there such a difference
between that hourly user fee and the per head flat rate user fee plus
reimbursable overtime proposed under Sec. 130.4 which can be higher.
The commenter is correct that depending on the number of animals
being imported, if service must be provided on overtime, then the per
head user fees charged under Sec. 130.4 can be higher than the hourly
user fees charged under Sec. 130.5. We have evaluated this situation
and have determined that based on the similar nature of the services
being provided, animals that are imported into a permanent facility
should be charged at the same rate as those imported into a temporary
facility. As suggested by the commenter, we are making the fees the
same. We are making this change by eliminating Sec. 130.4 and including
privately owned permanent import quarantine facilities under
Sec. 130.5.
10. Overtime and Premium User Fees (Secs. 130.5, 130.9, and 130.21)
One commenter stated that charging both reimbursable overtime and
the flat rate user fee under Sec. 130.4 is double charging for the time
spent by USDA personnel.
As explained above, we are eliminating Sec. 130.4 and these
services will now be covered under Sec. 130.5. Under Sec. 130.5, during
overtime, only the premium rate user fee will be charged.
One commenter asked if there are any quarter- or half-hour premium
user fee rates for the premium hourly user fee. We are adding quarter-
hour and minimum rates for each of the new premium user fees. Not
listing such rates was an oversight in the proposal. For periods of
less than an hour, the quarter-hour premium rate will be multiplied by
2 or 3 for half and three quarters of an hour, respectively. Therefore,
we are not adding half-hour premium rates. The premium user fee will
become the new hourly overtime charge for import- and export-related
services; it will apply to services provided under Secs. 130.5, 130.9,
and 130.21 and replace our previous policy of charging a user fee at
the hourly rate (per 9 CFR part 130) plus reimbursable overtime at the
hourly rate (per 9 CFR part 97).
One commenter protested that the proposed premium user fee is an
increase over the current overtime rate.
While the hourly rate for the premium user fee is higher than the
hourly reimbursable overtime rate, application of the premium user fee
will decrease the overall user fee charges because the premium user fee
will be charged in lieu of both the hourly user fee and reimbursable
overtime. Therefore, we are making no changes based on this comment.
One commenter questioned how the new premium user fee will apply.
Another commenter, stating that work for which the user fees are
charged usually takes 15 minutes, protested the minimum time charged
for the work during overtime.
For clarification, in Secs. 130.5, 130.9, and 130.21 we will add
that the procedures for applying the new premium user fee rates will
follow the procedures for applying reimbursable overtime as prescribed
under 9 CFR part 97 with regard, for example, to call-backs,
continuation, commuted travel time, and maximum travel times. For
example, when 9 CFR part 97 prescribes a 2 hour minimum, that 2 hour
minimum will be charged at the premium user fee rate. This is
consistent with United States Code, Title 5 Government Organizations
and Employees, Subchapter V Premium Pay, section 5542 (referenced in
the authority citation for this final rule), which states that
``unscheduled overtime work performed by an employee on a day when work
was not scheduled for him, or for which he is required to return to his
place of employment, is deemed at least 2 hours in duration.'' Because
employees are entitled to a 2 hour minimum of pay in these
circumstances, we must charge a minimum of 2 hours in order to recover
the cost of providing that service on overtime.
11. Import Fee (Sec. 130.7)
One commenter stated that the user fee charged in Sec. 130.7 would
not fully recover costs if an APHIS veterinarian had to travel to a
port to perform the inspections. The commenter suggested that we change
this flat rate user fee to an hourly user fee to fully recover costs.
The commenter is correct that, as calculated, the user fees may not
cover the costs of providing import and entry services at any given air
or ocean port. These user fees were calculated based on the average
time required for an APHIS employee to provide import or entry services
at all ports. The occasional inspections which require an APHIS
veterinarian to travel to a limited port, as designated in 9 CFR part
92, were one of the many factors considered in calculating the user
fees. To reflect past experience, the calculation for these user fees
included 2 hours of travel time for 1 percent of the estimated
importations. We are making no changes based on this comment. However,
we will consider this for future revisions to the user fees. All user
fee changes will be published in the Federal Register for public
comment.
12. Germ Plasm User Fees (Sec. 130.8)
One commenter questioned the statement in the proposal that empty
germ plasm containers that have been exported are presented for
inspection when returned to the United States. The commenter asked if
there was a protocol in place to ensure that these containers are
presented for inspection.
APHIS employees review ship manifests to determine which items need
to be held for inspection. The empty germ plasm containers are listed
on the ship manifests, held, and inspected.
One commenter suggested charging an hourly user fee for import germ
plasm inspections because the time spent performing the inspections at
the port is usually 3 hours; this time would not be covered by the flat
rate user fee.
The calculation for the user fee for imported germ plasm considered
inspection at all ports. These user fees were calculated on the average
direct labor hours required for the inspections nationwide. We surveyed
APHIS employees performing the inspections and visited ports to
determine the amount of direct labor required for the inspections.
Therefore, we are making no changes based on this comment. However, we
will consider this for future revisions. All user fee changes will be
published in the Federal Register for public comment.
One commenter suggested we charge the same amount for endorsing
export health certificates for each group of five embryo donor pairs.
We have determined that there is a marginal cost decrease to
endorse additional groups of donor pairs on the same export health
certificate. User fees are calculated to recover only the cost of
services. Therefore, the proposed tiered user fee rate, with a lower
fee for additional groups of donor pairs on the same certificate, is
appropriate. We are making no changes based on this comment.
[[Page 20425]]
13. User Fees for Endorsing Export Health Certificates (Sec. 130.20)
The May 26, 1995, proposed rule also proposed to raise user fees
for endorsing export health certificates for the exportation of animals
and animal products. APHIS employees endorse export health certificates
in accordance with the regulations in 9 CFR part 91. An APHIS
endorsement certifies that animals and animal products being exported
from the United States are free from communicable diseases.
Most of the comments we received addressed these user fees. The
commenters were opposed to any fee increases. The comments raised the
following issues.
User Fee Increases
According to most of the commenters, proposed user fees for
endorsement of export health certificates are too high, and the
increases are not justified.
We understand that some of the proposed user fees for endorsement
of export health certificates are significantly higher than the
previous user fees. The reason is that the previous user fees were
based on estimates and were set too low. The original user fees for
export health certificates implemented in January 1992 were calculated
using the best information available at that time. Since that time,
APHIS has separately identified, through our accounting system, costs
for services for which user fees are authorized. Our accounting data
and a deficit of over $1 million for each fiscal year from 1992 through
1994 for export-related user fee services shows that the previous user
fees have not been recovering our costs. Our proposed user fees were
calculated based on more accurate information, including all of the
costs of providing our services, than was available when we calculated
our previous user fees.
In addition to our accounting data, we surveyed APHIS locations
nationwide where export health certificates are endorsed to identify
the amount of direct labor time APHIS employees spend providing these
services. Direct labor activities may include the following: Telephone
time for providing information about the export health certification
process, mailing information to customers, protocol research, review of
paperwork such as health certificates, verification of laboratory test
results, confirmation that the importing country's requirements have
been met, paperwork completeness review, certification statements
review, endorsement/signing, placing an official seal on documents if
needed, and completing APHIS paperwork related to the endorsement. Many
of the activities listed above must be performed to make it possible
for APHIS employees to endorse the export health certificates. Some
endorsements are for exportations which are routine and require
relatively little time. Other endorsements require more work and
therefore take more time. Further, endorsements of export health
certificates of the same certificate category take different amounts of
time because import requirements differ for each importing country. On
average, when no tests or vaccinations are required, direct labor time
for endorsing export health certificates varies, by category, between
14 and 22 minutes, for example, endorsements for poultry take 18
minutes. On average, when verification of tests or vaccinations is
required, direct labor time for endorsing export health certificates
varies, based on the number of tests, between 45 and 65 minutes for the
first animal on the certificate.
After estimating the average direct labor time involved in
endorsing export health certificates, direct labor costs were
calculated. To calculate the direct labor costs, we used the actual
salary of each individual that provides the services and weighted these
costs according to the number of export health certificates endorsed at
each location to arrive at the average direct labor rate per hour,
$34.06. This includes salary and benefits.
The average number of minutes per endorsement is multiplied by the
average direct labor rate to arrive at the total direct labor cost in
each certificate category.
User fee calculations were based on the direct labor costs and a
pro rata share of support costs, agency overhead, and Departmental
charges. Costs were assigned directly to a service only when the cost
was directly related to providing that service. Where an expense was
attributable to several or all categories of service, it was pro-rated
among the categories based on historic direct labor staff hours. This
calculation provided the raw fee.
As explained in the proposal, we rounded the raw fees up to the
nearest quarter. We rounded them off to simplify collection and
accounting. We rounded our user fees up, rather than down, because if
we were to round down, even if only by pennies, the user fees would not
fully recover our costs. If there is a shortfall for a service
category, we cannot recover it by charging a higher user fee for
another service category.
We compared the resulting user fees and the revenue they generate
to the costs of these activities for reasonableness. Adjustments were
made for anticipated changes in volume, based on past changes and other
factors such as current market and economic conditions.
We put as much of our supporting data in the proposed rulemaking as
possible. However, it was not feasible to include all the materials
used to develop the user fees. Therefore, as stated in the proposed
rulemaking, we made it available for inspection at our headquarters in
Riverdale, MD.
Many of the comments related to the proposed increases in poultry
health certificates. Therefore, we have included an example of the
calculation for the user fee for endorsing export health certificates
for poultry. The average amount of time it takes to endorse an export
health certificate for poultry is 18 minutes, which can include any of
the direct labor activities listed above. Using the average direct
labor rate per hour of $34.06, the direct labor cost for 18 minutes is
$10.08. As described earlier, the following costs are the pro rata
share for endorsing export health certificates. Administrative support
costs are added at about $0.69 for each $1 of direct labor incurred,
adding $6.89. Agency overhead and departmental charges are added at
$2.74 and $1.08, respectively. The total cost is $20.79, which is
rounded up to the nearest quarter to $21.00. When factoring in all of
the costs involved in endorsing an export health certificate, the fees
are reasonable. When comparing the proposed user fees to the previous
user fees, which were too low, they appear high. However, we could not
continue to provide these services if we did not increase the user fees
to fully recover our costs. Therefore, we are making no changes based
on these comments.
Objections to User Fees for Endorsing Export Health Certificates
Many commenters objected in general terms to user fees for
endorsing export health certificates.
Export health certificates are required by the country importing
the animal or animal product; they are not required by APHIS, USDA, or
any other agency or organization within the Federal Government.
Therefore, we are unable to eliminate services and costs associated
with the endorsement of export health certificates. However, we do
attempt, whenever possible, to negotiate with foreign governments to
eliminate export health certificate requirements or make them less
onerous to U.S. exporters. We are continually negotiating with other
countries to
[[Page 20426]]
eliminate or minimize requirements. The success of our negotiations can
be seen in the following changes in other country's requirements.
Canadian test requirements for blue tongue tests on live cattle have
been liberalized. Chile has dropped test requirements for contagious
caprine pleuropneumonia tests on U.S. goats. Argentina has dropped test
requirements for contagious equine metritis test requirements for
horses. In addition, there are ongoing negotiations with Mexico to
eliminate their requirement that breeding swine be tested for porcine
respiratory and reproductive syndrome, and with Russia to sustain
markets for U.S. fresh and frozen poultry meat. We will continue to
work for improvements in these and other areas.
Small Business
Many commenters maintained the proposed APHIS user fees would be
detrimental to small businesses in general, or to specific industries,
such as manufacturers of medical diagnostic reagents. Other commenters
stated that paying the user fees would be a hardship, increase their
cost of doing business, or have other detrimental effects. Some
commenters proposed that we exempt certain industries or classes of
users from the proposed user fees or charge them reduced fees. Among
those mentioned were members of the poultry industry involved in the
National Poultry Improvement Plan.
We realize that the proposed user fees may increase the up-front
cost of doing business. APHIS sympathizes with these commenters and has
attempted to minimize the cost of services to keep the user fees at the
lowest possible level for all users.
However, when Congress authorized APHIS to prescribe and collect
user fees to recover the costs of import- and export-related services
for animals, birds, and animal products, it specifically reduced APHIS'
appropriations by the estimated amount of providing such services.
Currently, APHIS is not appropriated funds to cover the cost of
providing these services. Therefore, APHIS cannot exempt certain
classes of users, such as small businesses, from the user fees, and
cannot charge user fees which recover less than the full cost of
providing the service without using funds appropriated for other
purposes. We are therefore not making any changes based on these
comments.
Services Provided
Nine commenters addressed the services for which APHIS charges user
fees to endorse export health certificates. Several commenters raised
more than one issue; specific issues follow.
Five commenters took exception to the perceived duplication of
services provided by local veterinarians and APHIS veterinarians.
Even though local veterinarians may be federally accredited,
importing countries require an APHIS veterinarian to endorse export
health certificates.
Several commenters objected to user fees for services required by
the regulations, as opposed to voluntary services.
Our authority to collect user fees does not distinguish between
mandatory and voluntary services. Further, we do not agree with the
commenters' basic proposition that users do not ask for APHIS services
if they are complying with a regulatory requirement. As stated in
Sec. 130.20 of the regulations, ``An export certificate may need to be
endorsed for an animal being exported from the United States if the
country to which the animal is being shipped requires one. APHIS
endorses export health certificates as a service.'' No one is required
to conduct any business or endeavor which is regulated by APHIS.
However, anyone who does so must comply with APHIS requirements. In
this manner, all users ask for service from APHIS.
APHIS services are provided to enhance U.S. agriculture. APHIS
services concerning exportation of animals and animal products are
designed either to provide services to exporters which they need in
order to meet requirements of the importing country, or to help ensure
that no infected animals or animal products are exported from the
United States. This service helps protect the individual exporter and
helps foreign markets for American animals and animal products.
Many commenters asserted that most of the work is performed by the
exporters and local veterinarians, and that APHIS only signs the forms.
Even though in some instances it may appear to the person obtaining
the endorsement for the export health certificate that the only step
APHIS does is sign the certificates, there are many other steps that
may be involved. As explained earlier in response to another comment,
direct labor activities may include the following: Telephone time for
providing information about the export health certification process,
mailing information to customers, protocol research, review of
paperwork such as health certificates, verification of laboratory test
results, confirmation that the importing country's requirements have
been met, paperwork completeness review, certification statements
review, endorsement/signing, placing an official seal on documents if
needed, and completing APHIS paperwork related to the endorsement. Many
of the activities listed above must be performed to make it possible
for APHIS employees to endorse the export health certificates.
Multiple Versus Single Export Health Certificates
Three commenters were concerned about whether we would charge for
multiple or single export health certificates in situations where
multiple export health certificates are required for a single
exportation or where multiple similar export health certificates are
required in a limited time. Examples included egg shipments to one
corporate agent who then redistributes the eggs to various customers;
containers of export product which require up to five copies of the
same export health certificate, each requiring an original signature;
and hundreds of export health certificates per month where the
commenter suggested that economies of scale and time management could
be realized if numerous certificates are signed at the same time.
Different countries have different requirements as to the number
and kinds of tests that are required and the number of animals, birds,
or animal products which can be covered by one export health
certificate. As a result, the amount of time required to endorse export
health certificates varies. Since our goal is to fully recover our
costs, we charge the user fee that equals the work required for an
export health certificate going from one consignee to one consignor. If
the APHIS employee responsible for endorsing the export health
certificate determines that the animals, birds, or animal products are
part of one consignment, originating from one farm or ranch and
destined for one location, the user is charged as though all of the
animals, birds, or animal products are on one export health
certificate. If this is not the case, more work may be required for the
endorsement, and a separate fee is assessed for each endorsement. For
occasions where shipments being exported from the same consignor to the
same consignee are presented a day apart, a separate fee is charged for
each endorsement.
Nonendorsed Export Health Certificates
Seven commenters opposed the new user fee in Sec. 130.20(d) for
nonendorsed export health certificates. There
[[Page 20427]]
appeared to be confusion about the reasons for charging the user fee
for nonendorsed export health certificates and when the user fee would
be charged.
To clarify our intentions, we are not charging $16.50 for blank
export health certificates. Rather, the user fee will be assessed after
the APHIS veterinarian has received the export health certificate for
endorsement, has begun to review it, and subsequently finds a problem
which prevents him or her from endorsing the export health certificate
as presented. At this point the APHIS veterinarian will return the
nonendorsed export health certificate to the exporter for corrective
action. Since work has been performed, we must charge the user fee to
recover our costs for the services. To clarify this, we are revising
the wording proposed in Sec. 130.20(d) to specify that the charge
applies to export health certificates presented for endorsement which
were reviewed, but not endorsed.
Nonslaughter Horses to Canada
One commenter raised concerns about the movement of race horses to
Canada. The commenter maintained that export health certificates and
inspections should not be required for race horses, and stated that
Canadian race tracks are dropping the Coggins test requirement.
As explained earlier, we are continually negotiating with Canada
and other countries to eliminate or minimize their import requirements.
The movement of race horses is one of the items under discussion. If
Canadian requirements change, or if a service is no longer required
because Canada has changed its import requirements, any corresponding
fee changes will be published in the Federal Register for public
comment.
Slaughter Animals to Canada or Mexico
One commenter questioned whether, for slaughter animals going to
Canada or Mexico, we will charge the flat rate user fee in
Sec. 130.20(a) or the scaled user fee in Sec. 130.20(b)(1) which is
based on the number of tests or vaccinations required for the animals
listed on the export health certificate. This question was raised
because all cattle, including slaughter cattle, are required to be
tested for tuberculosis and brucellosis prior to exportation.
To fully recover our costs, the user fees in Sec. 130.20(b)(1)
apply whenever tests or vaccinations are required. Costs associated
with endorsing export health certificates which cover individually
identified animals requiring tests or vaccinations are higher than
those which cover animals as a group which do not require tests or
vaccinations. This is because APHIS personnel must verify the results
of tests or vaccinations. The greater the number of animals, and the
larger the number of tests or vaccinations, the more time consuming it
is for APHIS personnel to perform the verifications necessary to
endorse export health certificates. To clarify which fee is charged, we
are revising the text in Sec. 130.20(a) and (b)(1) to indicate that
Sec. 130.20(b)(1) applies when tests or vaccinations are required and
Sec. 130.20(a) applies when tests and vaccinations are not required.
Reconsider User Fee Increases
Three commenters suggested that we reconsider the user fee
increases for export health certificates and get more input from
industry.
By publishing the proposed rule and requesting comments for 60 days
we believe that we have provided industry with ample opportunity to
provide input into the changes in the export health certificate user
fees. Therefore, we are making no changes based on these comments.
APHIS veterinarian
One commenter questioned what would happen when an export health
certificate for an animal product is not endorsed by an APHIS
veterinarian, but by another APHIS employee.
Other designated APHIS employees may endorse export health
certificates for animal products. Therefore, in Sec. 130.20(d), we are
changing the term ``APHIS veterinarian'' to ``designated APHIS
employee''.
14. Payment of User Fees (Sec. 130.50)
One commenter suggested that we charge user fees in whole dollar
amounts to eliminate the need for APHIS offices to keep and make
change.
APHIS offices should rarely need to accept cash, as we also accept
credit cards and checks in payment for user fees. The regulations
explain that a list of the APHIS offices which accept each form of
payment is available from APHIS headquarters in Riverdale, MD. The
slight inconvenience to APHIS created by accepting change is more than
offset by convenience to the public. Therefore, we are making no
changes based on this comment.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule, with the changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of
Management and Budget.
In accordance with 5 U.S.C. 601 et seq., we have performed a Final
Regulatory Flexibility Analysis, set forth below, regarding the
economic effect of this rule on small entities.
Need and Objective of This Rule
In accordance with the Farm Bill of 1990, the Secretary of
Agriculture is authorized to prescribe and collect fees to reimburse
the Secretary for the cost of carrying out the provisions of the
Federal animal quarantine laws that relate to the importation, entry,
and exportation of animals, articles, or means of conveyance (section
2509(c)(1) of the 1990 Farm Bill). The Secretary of Agriculture is also
authorized, under section 2509(c)(2) of the Farm Bill, to prescribe and
collect fees to recover the costs of carrying out certain veterinary
diagnostics services. As a result of this authority, Congress no longer
allocates funds to APHIS for these import- and export-related services
and veterinary diagnostics services. Therefore, we established user
fees which were intended to recover the full cost of providing these
services. The cost of providing these services includes direct labor
costs and a pro rata share of administrative support, agency overhead,
and Departmental charges.
When we established our original user fees on February 9, 1992, we
used the best estimates we had available. At that time, our accounting
system did not track costs related to these services separately from
other appropriation funded activities. When a service has been provided
to the users free of charge for years, it is difficult to predict the
economic decisions people will make regarding those services after a
user fee is established. Therefore, we had to estimate the costs and
the demand for those services without historical data for import- and
export-related services.
Since we established these user fees, our accounting system has
tracked the costs associated with user fees by imports and exports and
for veterinary diagnostics. Therefore, we now have actual cost and
usage data for our calculations. This has also improved the accuracy of
our estimates for other user fees. The original user fees established
on February 2, 1992, were primarily for export-related services. On
September 1, 1993, we established user fees for veterinary diagnostics
services. On
[[Page 20428]]
January 21, 1994, we established additional user fees primarily for
import-related services. Annual reviews of our user fees, based on our
accounting data and experience with providing these services, show that
while many of the estimates resulted in accurate user fees which
require only moderate increases, some of our original user fees were
significantly lower than the cost of providing the services. Because
these user fees were set too low, we have been running a deficit to
provide the requested services. Therefore, these user fees must be
increased to recover the costs of providing requested services.
Specifically, we reviewed our records of user fees collected during
fiscal years (FYs) 1992 through 1995. The original user fees
established on February 9, 1992, are based on FY 90 costs. In the 5
years since then, there has been an overall increase in all costs of
providing services, due to inflation and changes in general economic
conditions. Additionally, we underestimated personnel costs when we set
the user fees. For example, in addition to anticipated Federal pay
increases (4.2 percent in FY 92 and 3.7 percent in FY 93), in FY 94,
there were locality pay and cost of living increases of 3.09 to 8
percent for employees stationed in different parts of the United
States. We also underestimated support costs, such as clerical support,
office rent, telephone, etc., in setting our current user fees. As a
result, the costs of endorsing export health certificates, for example,
for which we established user fees on February 9, 1992, were
drastically underestimated. In addition, the user fees established on
January 21, 1994, lacked the pay raises and increased costs since they
were calculated in 1993 based on FY 92 costs.
As a result of general cost increases and the inherent difficulty
in setting new user fees, as discussed above, we did not collect enough
money in user fees during FYs 1992 through 1995 to recover the costs of
providing the services for which we charged user fees. In fact, for
each of those fiscal years, we incurred a deficit of over $1 million.
As our user fees are intended to recover full cost, it is apparent that
our user fees are too low and must be raised to reflect changes in
actual costs and demand for services.
Changes to the Regulations
Consequently, this rule updates certain user fees related to
import- and export-related inspection and certification, animal
quarantine, and veterinary diagnostics. This rule changes user fees
that are currently charged for eight broad categories of services.
These services include the inspection, certification, or authorization
of: (1) live animal imports at animal import centers; (2) live animal
imports at the Mexican border; (3) live animal imports at the Canadian
border, airports, and ocean ports; (4) other import and inspection
services for the importation of live animals and animal products; (5)
veterinary diagnostics; (6) the endorsement of export health
certificates; (7) facility rentals at APHIS' animal import centers and
(8) import and export hourly user fees. New user fees are also being
established for the exclusive use of additional space at the Animal
Import Center in Newburgh, NY, for the endorsement of export health
certificates for animal products, and for pet birds quarantined in an
APHIS owned or supervised quarantine facility. In addition, we are
changing our method of charging hourly user fees when import- and
export-related services are performed outside of an employee's normal
tour of duty.
Overall Impact of Changes
Table 1 summarizes the estimated changes in user fees that are
necessary to fully recover costs. This rule will result in a net
increase in agency collections of about $3 million, from $8 million to
$11 million. Approximately $1.1 million of this increase represents new
user fees and $2 million is attributed to changes in current
collections (revised and premium user fees). These changes will shift
the burden from taxpayers to the importers and exporters who use these
APHIS services. Additional tables providing details of the user fee
changes summarized in Table 1 are available for inspection at USDA,
room 1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect these detailed tables are
requested to call ahead on (202) 690-2817 to facilitate entry into the
reading room.
Table 1.--Summary of Estimated Collections for Import- and Export-Related Services \1\
----------------------------------------------------------------------------------------------------------------
Category Current Projected Change
----------------------------------------------------------------------------------------------------------------
New User Fees:
Exclusive use of space at the Newburgh, NY Animal Import
Center (9 CFR Sec. 130.3)................................. .............. $157,109 $157,109
Quarantine for pet birds (9 CFR Sec. 130.10)............... .............. 265,245 265,245
Endorsement of export health certificates for animal
products (9 CFR Sec. 130.20).............................. .............. 645,000 645,000
-----------------------------------------------
Total New User Fees..................................... .............. 1,067,354 1,067,354
-----------------------------------------------
Revised User Fees:
Animal import centers (9 CFR Sec. 130.2)................... 2,168,468 2,461,334 292,865
APHIS animal import centers and hourly user fees (9 CFR
Secs. 130.3, 130.5, 130.9, 130.10, and 130.21)............ 648,318 740,942 92,624
Imports at the Mexican border (9 CFR Sec. 130.6)........... 1,047,184 1,214,532 167,349
Imports at other ports of entry (9 CFR Sec. 130.7)......... 817,862 834,251 16,388
Import and inspection services (9 CFR Sec. 130.8).......... 944,087 970,072 25,986
Veterinary diagnostics (9 CFR Sec. 130.16)................. 450,118 429,076 (21,042)
Endorsements of export health certificates (9 CFR Sec.
130.20).................................................... 798,260 2,195,111 1,396,851
-----------------------------------------------
Total Revised User Fees................................. 6,874,296 8,845,316 1,971,020
-----------------------------------------------
Premium User Fees (9 CFR Secs. 130.5, 130.9, and 130.21)....... 990,900 1,033,319 42,419
=================
Total Revised Collections (Revised and Premium User
Fees).................................................. 7,865,196 9,878,635 2,013,439
=================
[[Page 20429]]
Projected Total (New and Revised)....................... 7,865,196 10,945,989 3,080,793
----------------------------------------------------------------------------------------------------------------
\1\ Projections based on average annual volume estimates provided by the Financial Systems and Services Branch,
Budget and Accounting Division, Management and Budget, APHIS, USDA. NOTE: Column and row totals may not be
exact due to rounding.
Summary of Comments, Assessment of Issues, and Resulting Changes
Due to the nature of this rule, most of the comments we received on
the proposed rule focused on economic issues; several took exception to
the results of our economic analysis. The comments raised concerns
about potential inequitable charges for permanent and temporary
privately owned import quarantine facilities (Sec. 130.4 and
Sec. 130.5, respectively), impacts on small entities, increases in user
fees for the endorsement of export health certificates, and impact on
international trade. As a result of the issues raised about inequitable
charges, we combined the user fee regulations for permanent and
temporary facilities under Sec. 130.5 and removed Sec. 130.4 from the
regulations. This will result in lower charges for economies of scale
where there are multiple animals in a single shipment than those
previously assessed under Sec. 130.4 for permanent facilities.
Assessments of the other issues raised are provided in the more
detailed economic analysis below.
Impact on Small Entities
User fee revisions included in this rule could affect some
importers and exporters of live animals, importers and exporters of
animal byproducts, and firms that seek APHIS' veterinary diagnostic
services. We received comments from importers and exporters, many of
whom are small entities. The Small Business Administration's definition
of a small entity involved in these activities is one whose total sales
is less than $5 million annually. The number of entities who are
importing and exporting live animals and would qualify as a small
entity under this definition cannot be determined. However, except
possibly for those entities who deal exclusively in more valuable
animals, such as breeding or registered animals, data from the 1995
Bureau of the Census indicates that the majority of agricultural
entities who deal in less valuable animals, such as feeding or
slaughter animals, can be considered small. While there is a wide range
in the sizes of entities who use our import- and export-related
services, our experience shows that as many as 50 percent may be
considered large.
To the extent that changes in user fees will impact operational
costs or profits, any entity who utilizes APHIS's services and is
subject to user fees will be impacted by this rule. The degree of the
impact depends on the entity's market power, or the ability to which
cost increases can be either absorbed or passed on to its buyers.
Without information on either profit margins and operational expenses
of the affected entities,2 or the supply responsiveness of the
affected industry,3 the impacts cannot be precisely predicted.
However, given the amount of the user fee changes (and new user fees)
relative to the value of the imported or exported animals and animal
products, some conclusions on overall impacts to domestic and
international commerce are drawn below.
---------------------------------------------------------------------------
\2\ Information on profits from sales by small entities is
proprietary in nature and was not available to APHIS for this
analysis.
\3\ The measurement of supply responsiveness would provide
information on the likely impact on an entity's production due to
changes in operating costs.
---------------------------------------------------------------------------
Exports
Many comments addressed the impact these user fee increases will
have on exports. Most of these comments objected to increases in the
user fees for the endorsement of export health certificates. Many of
the comments we received focused on the impact on entities in the
poultry and horse industries.
Most of the commenters stated that the increase in the user fee for
the endorsement of export health certificates for poultry and hatching
eggs is too high. As explained earlier, these user fees were based on
FY 90 costs and low estimates of personnel costs. The user fees have
not been increased in 5 years, and the original user fees were
drastically underestimated.
Breeding chicks and hatching eggs, while worth only fractions of a
dollar individually, are generally exported in batches of up to
hundreds of thousands; the total value of these shipments could exceed
$10,000. As shown in Table 2, the user fee for the endorsement of
export health certificates for poultry and eggs is $21.00 (an increase
of $19.00 from the original $2.00 user fee). The user fee is less than
0.5 percent of the estimated value of a shipment. Therefore, while the
increase in the user fee is significant, the user fee is still small
relative to the total value of the shipments. Table 2: Projected User
Fee Collections for the Endorsement of Export Health Certificates (9
CFR Sec. 130.20).4
---------------------------------------------------------------------------
\4\ Projections based on average annual volume estimates
provided by the Financial Systems and Services Branch, Budget and
Accounting Division, Management and Budget, APHIS, USDA. Note:
Column and row totals may not be exact due to rounding.
[[Page 20430]]
----------------------------------------------------------------------------------------------------------------
User fee Collections
Category Annual ----------------------------------------------------------------
volume Current New Change Current Projected
----------------------------------------------------------------------------------------------------------------
Per Certificate User Fees:
Slaughter Animals to Canada or
Mexico....................... 4,811 $10.00 $24.50 $14.50 $48,110 $117,870
Non-Slaughter Horses to Canada 27,275 10.00 26.25 16.25 272,750 715,969
Poultry....................... 7,037 2.00 21.00 19.00 14,074 147,777
Hatching Eggs................. 7,036 2.00 21.00 19.00 14,072 147,756
Other:
Endorsements.................. 20,748 4.00 16.50 12.50 82,992 342,342
Per Head User Fees:
Export Animal, 1-2 tests...... 2,656 38.00 52.50 14.50 100,928 139,440
Each additional animal.... 35,235 1.00 3.00 2.00 35,235 105,705
Export Animal, 3-6 tests...... 3,950 41.50 64.75 23.25 163,925 255,763
Each additional animal.... 34,905 1.25 5.00 3.754 3,631 174,525
Export Animal, 7 + tests...... 421 44.00 75.75 31.75 18,524 31,891
Each additional animal.... 2,679 1.50 6.00 4.50 4,019 16,074
-----------------------------------------------------------------------------
Projected totals...... ........... ........... ........... ........... 798,260 2,195,111
----------------------------------------------------------------------------------------------------------------
Since many of the comments related to the proposed increases in
user fees for the endorsement of export health certificates concerned
poultry and egg exports, we will show how this user fee is calculated
by using, as an example, the endorsement of an export health
certificate for poultry. The calculation for the user fees for
endorsing other export health certificates varies by the amount of
direct labor hours required to provide the endorsement services. The
average amount of time it takes to endorse an export health certificate
for poultry is 18 minutes. The direct labor time includes phone time,
paperwork review time, and endorsement time. Using the average direct
labor cost per hour of $34.06, the direct labor cost for 18 minutes is
$10.08. As described earlier, the following costs are the pro rata
share for endorsing export health certificates.
Administrative support costs are added at about $0.69 for each
$1.00 of direct labor incurred, adding $6.89. Administrative support
costs include local clerical and administrative activities; indirect
labor hours (supervision of personnel and time spent doing work that is
not directly connected with the service but which is nonetheless
necessary, such as repairing equipment); travel and transportation for
personnel; supplies, equipment, and other necessary items; training;
general supplies for offices, washrooms, cleaning, etc.; contractual
services (such as guard service, maintenance, trash pickup, etc.);
grounds maintenance; chemicals and glassware; and utilities (such as
water, telephone, electricity, natural and propane gas, heating and
diesel oil). Some administrative support items may be contractual or
not, depending on local circumstances. For example, trash pickup may be
provided as a contractual service or a utility. However, the costs are
all administrative support.
In addition, Agency overhead and departmental charges are added at
$2.74 and $1.08, respectively. The total cost is $20.79, which is
rounded up to the nearest quarter to $21.00. When factoring in all of
the costs involved in endorsing an export health certificates, the user
fees are reasonable. When comparing the proposed user fees to the
previous user fees, which were based on FY 90 costs and were too low,
they appear high. However, we could not continue to provide these
services if we did not increase the user fees to fully recover our
costs.
The value of a non-slaughter horse could range between $1,000 and
$50,000 and more. As shown in Table 2, the user fee for non-slaughter
horses to Canada is $26.25 (an increase of $16.25 from the original
$10.00 user fee). The user fee is less than 3 percent of the lower
value for the non-slaughter horse. Therefore, the user fee is small
relative to the total value of the horse.
Many commenters stated that the user fees for the endorsement of
export health certificates that require the verification of tests are
too high. As shown in Table 2, for any animal, endorsements requiring
the verification of 1 or 2 tests increased by $14.50 per endorsement
(from $38.00 to $52.50). The largest increase of $31.75 per endorsement
(from $44.00 to $75.75) relates to the endorsement of export health
certificates that require verification of 7 or more tests required by
the importing country. Of the 80,277 certificates endorsed in FY 94,
only 421 certificates (or 0.5 percent) were issued that required the
verification of 7 or more tests. These certificates covered 3,092
animals for an average charge of $7.29 per animal ($44.00 for the first
animal and $1.50 for additional animals on a certificate). The new user
fees raise this average to $15.50 per animal ($75.75 for the first
animal and $6.00 for additional animals on a certificate), or a
difference of $8.21 per animal. Certificates that are issued in this
category are endorsed largely for the export of breeding or registered
animals whose worth could be over $2,000 per animal. It is therefore
expected that these user fee increases will not have a significant
impact on exporters, given that the amount of the increases is small in
comparison to the value of the exported animals.
Impact on International Trade
Several commenters suggested that the increases in user fees could
result in a decrease in international trade. Most of the commenters
specified trade in poultry, horses, and cattle to Canada. As stated
above, the increases in the user fees are small in relation to the
value of the exported animals. While it follows that some businesses
will feel the impact of these increases, overall, the revised user fees
are not expected to impede commerce and international trade.
Although some countries do not currently charge for import- and
export-related services, user fees for these services are being adopted
by more and more countries. In fact, as of May 8, 1995, Canada charges
user fees for certain import- and export-related services (see May 3,
1995, Canada Gazette Part II, Vol. 129, No. 9, SOR/DORS/95-198). In
addition, further supports have been eliminated. Therefore, we do not
believe that U.S. exporters are at a competitive disadvantage compared
with exporters in other countries.
[[Page 20431]]
Imports
While most comments addressed exports, several objected to the
increases in user fees for import-related services. For import-related
services for animals at all ports of entry, including Canadian and
Mexican borders, and animal import centers, increases from the previous
user fees range from $0.25 to $21.00. Except for the increases of
$12.75 to $21.00 for import services for equines at animal import
centers, the other increases are all $5.50 or less, while the majority
of these user fee increases are less than $1.00. These changes
represent modest increases and are a small fraction of the typical cost
of purchasing and importing a breeding grade animal into the United
States, which ranges between $1,500 and $5,000 per head. Purchase and
import costs for feeder and slaughter animals are often significantly
lower per animal, but can easily exceed $1,500 per shipment depending
on the number and type of animals in the shipment.
The increase in user fees for other import services related to
animal products and byproducts range from $0.50 for an application for
a permit renewal, to $10.25 for the inspection of an approved
establishment. Because the user fees charged in this category of
service are based on either a per load, inspection, application, or
certificati
FR Doc. 96-11211 Import/Export User Fees
on basis, the amount of increase is small in comparison to
the total value of the animal products and byproducts for which the
services are required. The majority of the increases are $1.50 or less.
The $1.50 increase per permit for the importation of germ plasm (from
$38.00 to $39.50), for instance, is not expected to cause a significant
economic burden to importers, given that the cost of importing semen
could be over $100,000 per permit when imported from countries with
foot-and-mouth disease. Although the breakdown of entity sizes is
unknown, as stated above, the revised user fees are not expected to
have a significant impact on either large or small importers of live
animals and animal products.
Shift From Reimbursable Overtime to Premium User Fees
This rule also changes the way in which hourly user fees for
import- and export-related services conducted outside an employee's
normal tour of duty will be charged. While revising our user fees, we
took many factors into account, including public confusion about the
way we charged for services provided during overtime. As a result, we
changed the method of charging hourly user fees for import- and export-
related services provided outside of an employee's normal tour of duty.
Now, users of these services, previously charged the hourly user fee
plus reimbursable overtime, will be charged the single new premium user
fee. This premium user fee reflects both changes in costs and a change
in the structure of the user fee. The intent of this change is to avoid
any confusion and the perception of double charging for services. The
impact is to lower the average hourly user fees for import- and export-
related services performed outside of an employee's normal tour of
duty.
The $1 million projected collection for this category represents a
modest increase, approximately $40,000, to APHIS collections. All of
the projected calculations are not considered new user fees or new
collections for APHIS for the following reasons. In FY 95, we collected
$990,900 for import- and export-related services that involved a
combination of both hourly user fees and reimbursable overtime. Of
this, $398,425 was collected at the $50.00 hourly user fee, and
$592,475 was collected at the reimbursable overtime rates specified in
9 CFR 97 (for example, $37.84 for holidays and overtime other than on
Sundays). As explained below, a portion of the $398,425 was for
services that began during the regular tour of duty and for which the
hourly user fee will still be charged.
The hourly user fee charges ($398,425) include the costs for
services which may have begun during the regular tour of duty but were
completed on overtime in addition to the hourly user fee charge for the
services provided during overtime. Our accounting system tracks user
fees and reimbursable overtime separately. While we can identify total
hourly user fees and total reimbursable overtime hours performed in
conjunction, we cannot specifically identify the hours of services
which began on regular time and continued into overtime.
Next, reflecting the change in costs, we estimated FY 95
collections using the increased FY 96 hourly rate of $56.00 plus
reimbursable overtime. With this increase in the hourly user fee, the
projected FY 96 collections would have been $1,040,298 ($447,823 at
$56.00 per hour for hourly user fees and $592,475 at the reimbursable
overtime rates as described above).
Finally, we changed the method of charging user fees for hourly
services performed during overtime to a single premium user fee. To
calculate the projected FY 96 collections for the premium user fee
($1,033,319), we used the total FY 95 hours multiplied by the average
premium user fee (6 out of 7 days at $65.00 plus 1 out of 7 days at
$74.00, the sum divided by 7 days in a week). Our historical accounting
data for reimbursable overtime confirms this method resulted in a
reasonable split between Sunday and other overtime.
These calculations show an estimated overall increase of
approximately $40,000. While this is a modest increase over the
previous charges for services performed outside employees' normal tour
of duty, this is a decrease of approximately $7,000 from the increases
which would have been incurred under the old method. Therefore,
entities should realize a long-term economic benefit from the lower
increase.
Based on the earlier discussion of the regular time, which is
included in the estimates for reimbursable overtime, it follows that
the premium user fee, which was estimated for the same number of hours
as the reimbursable overtime plus hourly user fee, is an overestimate
of charges, as some of these hours will remain at $56.00 per hour.
Therefore, we anticipate that the increase will be lower than our
estimate shows.
Summary
In summary, while it follows that, if the user fees cannot be
passed on, the profit margins of some entities may decline as user fees
for endorsing export health certificates are increased. However, the
revised user fees represent a small fraction of the value of the
imported and exported animals and are not generally expected to reduce
profits or impede exports. Indeed, the full burden of the user fee
increases are not likely to be borne entirely by the directly affected
entities, as some of the cost increases are expected to be passed on to
the purchasers of these exported animals.
Alternatives
One alternative to this rule would be to take no action. Another
alternative to this rule would be to establish a different user fee
structure for small businesses. We do not consider taking no action a
reasonable alternative, because we would not recover the full cost of
providing import- and export- related services and would continue to
incur annual deficits of over $1 million. We also do not consider
establishing a different user fee structure for small businesses a
viable option. As stated above, Congress does not appropriate funds to
APHIS for these services. Therefore, APHIS cannot exempt certain
classes of users, such as small businesses, from the user fees, and
cannot charge user fees that recover less
[[Page 20432]]
than the full cost of providing the service.
Another alternative to this rule would be to spread the increased
costs over all of the user fees, so no single user fee would increase
significantly. Our user fees are calculated to recover the costs of the
service for which each user fee is charged. To spread the increases
would mean that some entities would subsidize others. The intent of
these user fees is to shift the burden of the cost of these services
from the general taxpayer to the entity receiving the service.
Therefore, APHIS cannot spread the increases evenly over all of the
user fees.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB), and there are no new requirements. The assigned OMB
control numbers are 0579-0015, 0579-0040, 0579-0055, and 0579-0094.
List of Subjects in 9 CFR Part 130
Animals, Birds, Diagnostic reagents, Exports, Imports, Poultry,
Quarantine, Reporting and recordkeeping requirements, Tests.
Accordingly, 9 CFR part 130 is amended as follows:
PART 130--USER FEES
1. The authority citation for part 130 is revised to read as
follows:
Authority: 5 U.S.C. 5542; 7 U.S.C. 1622; 19 U.S.C. 1306; 21
U.S.C. 102-105, 111, 114, 114a, 134a, 134b, 134c, 134d, 134f, 135,
136, and 136a; 7 CFR 2.22, 2.80, and 371.2(d).
2. In Sec. 130.1, the definitions for Germplasm and Pet bird are
removed; the definition for Load is revised; and definitions for Germ
plasm, Pet birds, Test, and United States are added, in alphabetical
order, to read as follows:
Sec. 130.1 Definitions.
* * * * *
Germ plasm. Semen, embryos, or ova.
* * * * *
Load. Those animals, birds, or animal germ plasm, presented for
importation into the United States in a single shipment, that originate
from one address, are destined for one address, and require one entry
permit or authorization.
* * * * *
Pet birds. Birds, except ratites, which are imported for the
personal pleasure of their individual owners and are not intended for
resale.
* * * * *
Test. A single analysis performed on a single specimen from an
animal, animal product, commercial product, or animal feed.
United States. The several States of the United States, the
District of Columbia, Guam, the Commonwealth of the Northern Mariana
Islands, the Commonwealth of Puerto Rico, the Virgin Islands of the
United States, and all other territories and possessions of the United
States.
* * * * *
3. Section 130.2 is amended as follows:
a. By revising the section heading and in paragraph (a), the table,
to read as set forth below.
b. By adding at the end of the section the OMB control number as
set forth below.
Sec. 130.2 User fees for individual animals and certain birds
quarantined in APHIS Animal Import Centers.
(a) * * *
------------------------------------------------------------------------
Animal or bird Daily
------------------------------------------------------------------------
Birds (including zoo birds, but excluding ratites and pet
birds imported in accordance with part 92 of this
subchapter):
0-250 grams.............................................. $1.00
251-1,000 grams.......................................... 3.25
Over 1,000 grams, and any bird in nonstandard housing or
receiving nonstandard care and handling................. 7.50
Ratites:
Chicks (less than 3 months of age)....................... 5.75
Juveniles (3 months through 10 months of age)............ 8.00
Adults (11 months of age and older)...................... 16.25
Poultry (including zoo poultry):
Doves, pigeons, quail.................................... 2.00
Chickens, ducks, grouse, guinea fowl, partridge, pea
fowl, pheasants......................................... 3.50
Game cocks, geese, swans, turkeys, any poultry housed in
nonstandard housing or receiving nonstandard care and
handling................................................ 8.25
Equines (including zoo equines, but excluding miniature
horses):
1st through 3rd day...................................... 149.50
4th through 7th day...................................... 108.25
8th and later days....................................... 91.75
Miniature horses............................................. 40.25
Zoo animals (except equines, birds, and poultry)............. 32.25
Domestic animals:
Camels, cattle, bison, buffalo........................... 56.50
All others............................................... 15.00
------------------------------------------------------------------------
* * * * *
(Approved by the Office of Management and Budget under control
number 0579-0094.)
4. Section 130.3 is amended as follows:
a. In paragraph (a)(1), by revising the table to read as set forth
below.
b. By revising paragraph (c)(3) to read as set forth below.
c. By revising the OMB control numbers at the end of the section as
set forth below.
Sec. 130.3 User fees for exclusive use of space at APHIS Animal Import
Centers.
(a)(1) * * *
[[Page 20433]]
------------------------------------------------------------------------
Monthly user
Animal import center Space available fee
------------------------------------------------------------------------
Miami, FL:
South Wing..................... 6,952 sq. ft........... $30,285.00
(645.9 sq. m.).........
North Wing..................... 6,545 sq. ft........... 29,377.00
(608.1 sq. m.).........
Newburgh, NY:
Space A........................ 5,904 sq. ft........... 47,609.00
(548.5 sq. m.).........
Space B........................ 9,742 sq. ft........... 78,555.00
(905 sq. m.)
------------------------------------------------------------------------
* * * * *
(c) * * *
(3) If the importer chooses to pay for additional services on an
hourly basis, the user fees for each employee required to perform the
service are:
(i) $56.00 per hour;
(ii) $14.00 per quarter-hour;
(iii) With a minimum of $16.50.
* * * * *
(Approved by the Office of Management and Budget under control
numbers 0579-0040 and 0579-0094.)
Sec. 130.4 [Removed and reserved]
5. Section 130.4 is removed and reserved.
6. Section 130.5 is amended as follows:
a. The section heading, is revised to read as set forth below.
b. In paragraph (a), before the word ``temporary'', by adding the
words ``permanent or''.
c. In paragraph (b)(1), by removing ``$50'' and adding ``$56'' in
its place.
d. In paragraph (b)(2), by removing ``$12.50'' and adding
``$14.00'' in its place.
e. In paragraph (b)(3), by removing ``$16.00'' and adding
``$16.50'' in its place.
f. By adding a new paragraph (c) to read as set forth below.
g. By adding at the end of the section the OMB control number as
set forth below.
Sec. 130.5 User fees for services at privately operated permanent and
temporary import-quarantine facilities.
* * * * *
(c) If a service must be conducted on a Sunday or holiday or at any
other time outside the normal tour of duty of the employee, then the
premium user fee rate, as provided for in 9 CFR part 97, in lieu of the
user fee listed in paragraph (b) of this section, must be paid for each
employee required to perform each service:
(1) $65.00 per hour for weekdays and holidays;
(2) $16.25 per quarter-hour for weekdays and holidays;
(3) $74.00 per hour for Sundays;
(4) $18.50 per quarter-hour for Sundays;
(5) With a minimum of $16.50.
(Approved by the Office of Management and Budget under control
number 0579-0094.)
7. Section 130.6 is amended as follows:
a. In paragraph (a), by removing ``$16.00'' and adding ``$16.50''
in its place.
b. In paragraph (a), by removing the phrase ``live animals imported
into or entering the United States'' and adding ``live animals
presented for importation into or entry into the United States'' in its
place.
c. In paragraph (a), by revising the table to read as set forth
below.
Sec. 130.6 User fees for import or entry services for live animals at
land border ports along the United States-Mexico border.
(a) * * *
------------------------------------------------------------------------
User
fee
Type of live animal (per
head)
------------------------------------------------------------------------
Feeder......................................................... $1.75
Slaughter...................................................... 2.50
Horses, other than slaughter................................... 29.25
In-bond or in transit.......................................... 3.75
Any ruminants not covered above................................ 6.00
------------------------------------------------------------------------
* * * * *
8. Section 130.7 is amended as follows:
a. In paragraph (a), by removing ``$16.00'' and adding ``$16.50''
in its place.
b. In paragraph (a), by removing the phrase ``live animals imported
into or entering the United States'' and adding ``live animals
presented for importation into or entry into the United States'' in its
place.
c. In paragraph (a), by revising the table to read as set forth
below:
Sec. 130.7 User fees for import or entry services for live animals at
all other ports of entry.
(a) * * *
------------------------------------------------------------------------
Type of live animal User fee
------------------------------------------------------------------------
Animals being imported into the United
States:
Horses, other than slaughter and in transit. $19.00 per head.
Breeding animals (Grade animals, except ..........................
horses):
Swine................................... 0.50 per head.
Sheep and goats........................ 0.50 per head.
All others.............................. 2.25 per head.
Registered animals, all types............... 4.00 per head.
Feeder animals: ..........................
Cattle (not including calves)........... 1.00 per head.
Swine................................... 0.25 per head.
Sheep and calves........................ 0.25 per head.
Slaughter animals, all types................ 16.50 per load.
Poultry (including eggs), imported for any 33.00 per load.
purpose.
Animals transiting\1\ the United States:
Cattle.................................. 1.00 per head.
Swine................................... 0.25 per head.
Sheep and goats......................... 0.25 per head.
[[Page 20434]]
Horses and all other animals............ 4.50 per head.
------------------------------------------------------------------------
\1\ The user fee in this section will be charged for intransit
authorizations at the port where the authorization services are
performed. For additional services provided by APHIS, at any port, the
applicable hourly user fee will apply.
* * * * *
9. In Sec. 130.8, paragraph (a) is amended by revising the table to
read as follows:
Sec. 130.8 User fees for other services.
(a) * * *
------------------------------------------------------------------------
Service User fee
------------------------------------------------------------------------
Inspection for approval of slaughter
establishment:
Initial approval............................ $246.50 for all
inspections required
during the year.
Renewal..................................... 213.50 for all
inspections required
during the year.
Pet birds, except pet birds of U.S. origin
entering the United States from Canada:
Which have been out of United States more 169.75 per lot.
than 60 days.
Which have been out of United States 60 days 71.25 per lot.
or less.
Germ Plasm Being imported: \1\
Semen....................................... 39.50 per load.
Embryo...................................... 39.50 per load.
Germ Plasm Being exported: \2\
Semen....................................... 33.50 per certificate.
Embryo (up to 5 donor pairs)................ 54.75 per certificate.
Embryo (each additional group of donor 24.75 per group of
pairs, up to 5 pairs per group, on the same donor pairs.
certificate).
Processing VS form 16-3, ``Application for
Permit to Import Controlled Material/Import or
Transport Organisms or Vectors'':
For permit to import fetal bovine serum when 208.50 per
facility inspection is required. application.
For all other permits....................... 27.50 per application.
Amended application......................... 11.50 per amended
application.
Application renewal......................... 15.00 per application.
Fetal Bovine Serum sample verification.......... 666.00 per
verification.
Import compliance assistance.................... 24.00 per release.
Release from export agricultural hold........... 24.00 per release.
Inspection of approved establishments,
warehouses, and facilities under 9 CFR parts 94
through 96:
Approval (Compliance Agreement)............. 262.75 for first year
of 3-year approval
(for all inspections
required during the
year).
Renewed approval............................ 152.00 per year for
second and third
years of 3-year
approval (for all
inspections required
during the year).
------------------------------------------------------------------------
\1\ For inspection of empty containers being imported into the United
States, the applicable hourly user fee would apply, unless a user fee
has been assessed under 7 CFR part 354.3.
\2\ This user fee includes a single inspection and resealing of the
container at the APHIS employee's regular tour of duty station or at a
limited port. For each subsequent inspection and resealing required,
the applicable hourly user fee would apply.
* * * * *
10. Section 130.9 is amended as follows:
a. In paragraph (a), introductory text, by removing ``$50'' and
adding ``$56'' in its place, and by removing ``$12.50'' and adding
``$14.00'' in its place.
b. In paragraph (a), introductory text, by removing ``$16.00'' and
adding ``$16.50, for each employee required to perform the service'' in
its place.
c. By revising paragraph (b) to read as set forth below.
Sec. 130.9 User fees for miscellaneous import or entry services.
* * * * *
(b) If a service must be conducted on a Sunday or holiday or at any
other time outside the normal tour of duty of the employee, then the
premium user fee rate, as provided for in 9 CFR part 97, in lieu of the
user fee listed in paragraph (a) of this section, must be paid for each
employee required to perform each service:
(1) $65.00 per hour for weekdays and holidays;
(2) $16.25 per quarter-hour for weekdays and holidays;
(3) $74.00 per hour for Sundays;
(4) $18.50 per quarter-hour for Sundays;
(5) With a minimum of $16.50.
* * * * *
11. In Sec. 130.50(b)(1), footnote 8 and the reference to it are
redesignated as footnote 9, and in Sec. 130.20(a), footnote 7 and the
reference to it, are redesignated as footnote 8.
12. A new Sec. 130.10 is added to read as follows:
Sec. 130.10 User fees for pet birds quarantined at APHIS-owned or
supervised quarantine facilities.
(a) The person for whom the service is provided and the person
requesting the service are jointly and severally liable for the
following user fees, which include standard care, feed, and
[[Page 20435]]
handling, and which must be paid for each animal or bird quarantined in
an Animal Import Center 7 or other APHIS owned or supervised
quarantine facility:
---------------------------------------------------------------------------
\7\ APHIS Animal Import Centers are located in Honolulu, HI,
Miami, FL, and Newburgh, NY. The addresses of these facilities are
published in part 92 of this chapter.
------------------------------------------------------------------------
Daily
Number of birds is isolette user
fee
------------------------------------------------------------------------
1.............................................................. $6.50
2.............................................................. 7.75
3.............................................................. 9.25
4.............................................................. 10.75
5.............................................................. 12.00
------------------------------------------------------------------------
(b) Based on the information provided to APHIS personnel, APHIS
personnel at the Animal Import Center or other APHIS owned or
supervised quarantine facility will determine the appropriate number of
birds that should be housed per isolette.
(c) If the person or persons for whom the service is provided or
the person or persons requesting the service request additional
services on an hourly basis, the user fees for each employee required
to perform the service are:
(1) $56.00 per hour;
(2) $14.00 per quarter-hour;
(3) With a minimum of $16.50.
(Approved by the Office of Management and Budget under control
number 0579-0094.)
13. Section 130.14 is amended as follows:
a. By revising the section heading to read as set forth below.
b. In paragraph (a), after the term ``NVSL'', by adding the phrase
``or at authorized import sites (excluding FADDL)''.
c. In paragraph (a), by revising the text of footnote 1 to the
table to read as set forth below.
d. By adding a new paragraph (c) to read as set forth below.
e. By adding at the end of the section the OMB control numbers as
set forth below.
Sec. 130.14 User fees for tests performed by the NVSL or at authorized
import sites (excluding FADDL).
(a) * * *
\1\ Tests with multiple and subsequent antigens can be set up
for a fraction of the cost of multiple single-antigen tests. Tests
subsequent to the first antigen used for these assays are reduced
down to 20% of the cost of using the first antigen. The following
are examples of these cost savings: complement fixation (CF) tests
for equine encephalomyelitis or vesicular stomatitis;
hemagglutination inhibition (HI) for equine encephalomyelitis or
equine influenza; virus neutralization (VN) tests for porcine
respiratory and reproductive syndrome. For example, for CF tests for
eastern equine encephalomyelitis (EEE), western equine
encephalomyelitis (WEE), and Venezuelan equine encephalomyelitis
(VEE) and for VN tests for the New Jersey and Indiana serovars of
vesicular stomatitis (VS), the costs are as follows: EEE--$9.00, WEE
and VEE--$2.00 each; VS New Jersey--$7.50, VS Indiana--$1.50. The
total of these five assays is $22.00 for each specimen submitted.
* * * * *
(c) The user fees in this section do not include any costs that may
be incurred due to special mail handling, such as express, overnight,
or foreign mailing. If a test requires special mail handling, all costs
incurred must be paid by the user as specified in paragraph (a) of this
section, in addition to the user fee listed in paragraph (a) of this
section.
(Approved by the Office of Management and Budget under control
numbers 0579-0055 and 0579-0094.)
14. Section 130.15 is amended as follows:
a. In paragraph (a), by revising the text of footnote 1 to the
table to read as set forth below.
b. By adding a new paragraph (c) to read as set forth below.
c. By adding at the end of the section the OMB control numbers as
set forth below.
Sec. 130.15 User fees for tests performed at FADDL.
(a) * * *
\1\ Tests with multiple and subsequent antigens can be set up
for a fraction of the cost of multiple single-antigen tests. Tests
subsequent to the first antigen used for these assays are reduced
down to 20% of the cost of using the first antigen. The following
assays are examples of these cost savings: complement fixation (CF)
tests for foot-and-mouth disease or vesicular stomatitis; virus
neutralization (VN) tests for foot-and-mouth disease or vesicular
stomatitis. For example, for CF and VN tests for foot-and-mouth
disease A, O, and C antigens, the costs are as follows: CF A
antigen--$30.50, O antigen--$6.25, and C antigen--$6.25; VN A
antigen--$22.00, O antigen--$4.50, and C antigen--$4.50. The total
of these six assays is $74.00 for each specimen tested for these
agents.
* * * * *
(c) The user fees in this section do not include any costs that may
be incurred due to special mail handling, such as express, overnight,
or foreign mailing. If a test requires special mail handling, all costs
incurred must be paid by the user as specified in paragraph (a) of this
section in addition to the user fee listed in paragraph (a) of this
section.
(Approved by the Office of Management and Budget under control
numbers 0579-0055 and 0579-0094.)
15. Section 130.16 is amended as follows:
a. In paragraph (a), in the table, by revising the entry for
``Virus isolation'' and by adding a new test in alphabetical order to
read as set forth below.
b. By adding a new paragraph (c) to read as set forth below.
c. By adding at the end of the section the OMB control numbers as
set forth below.
Sec. 130.16 User fees for reference assistance testing.
(a) * * *
------------------------------------------------------------------------
User
Test fee
------------------------------------------------------------------------
* * * * *
(3) Other tests:
* * * * *
Virus isolation (except Newcastle disease virus)............... 29.75
Virus isolation for Newcastle disease virus.................... 14.00
* * * * *
------------------------------------------------------------------------
* * * * *
(c) The user fees in this section do not include any costs that may
be incurred due to special mail handling, such as express, overnight,
or foreign mailing. If a test requires special mail handling, all costs
incurred must be paid by the user as specified in paragraph (a) of this
section in addition to the user fee listed in paragraph (a) of this
section.
(Approved by the Office of Management and Budget under control
numbers 0579-0055 and 0579-0094.)
16. Section 130.17 is amended as follows:
a. In paragraph (a), in the table, in the entry for Johnin: OT,
under the Unit (ml.) column, by removing ``10'' and adding ``2'' in its
place.
b. By adding a new paragraph (c) to read as set forth below.
c. By adding at the end of the section the OMB control number as
set forth below.
Sec. 130.17 User fees for diagnostic reagents, slide sets, and tissue
sets.
* * * * *
(c) The user fees in this section do not include any costs that may
be incurred due to special mail handling, such as express, overnight,
or foreign mailing. If a test requires special mail handling, all costs
incurred must be paid by the user as specified in paragraph (a) of this
section in addition to the user fee listed in paragraph (a) of this
section.
(Approved by the Office of Management and Budget under control
number 0579-0094.)
[[Page 20436]]
17. Section 130.18 is amended as follows:
a. By redesignating the existing text as paragraph (a).
b. By adding a new paragraph (b) to read as set forth below.
c. By adding at the end of the section the OMB control number as
set forth below.
Sec. 130.18 User fees for sterilization by gamma radiation.
(a) * * *
(b) The user fees in this section do not include any costs that may
be incurred due to special mail handling, such as express, overnight,
or foreign mailing. If a test requires special mail handling, all costs
incurred must be paid by the user as specified in paragraph (a) of this
section in addition to the user fee listed in paragraph (a) of this
section.
(Approved by the Office of Management and Budget under control
number 0579-0094.)
18. Section 130.20 is amended as follows:
a. By revising paragraph (a) to read as set forth below.
b. By revising (b)(1) to read as set forth below.
c. In paragraph (c), by removing the words ``it is endorsed'' and
by adding the phrase ``the export health certificate is prepared for
endorsement completely at the site of the inspection'' in their place.
d. In paragraph (c), by removing the reference ``Sec. 130.7'' and
adding ``Sec. 130.21'' in its place.
e. By redesignating paragraph (d) as paragraph (e) and adding a new
paragraph (d) to read as set forth below.
Sec. 130.20 User fees for endorsing export health certificates.
(a) All user fees in this paragraph are for services provided for
the endorsement of export health certificates which do not require the
verification of tests or vaccinations. The person for whom the service
is provided and the person requesting the service are jointly and
severally liable for paying the following user fees for each export
health certificate \8\ endorsed for the following types of animals,
birds, or animal products, regardless of the number of animals, birds,
or animal products covered by the certificate.
---------------------------------------------------------------------------
\8\ An export health certificate may need to be endorsed for an
animal being exported from the United States if the country to which
the animal is being shipped requires one. APHIS endorses export
health certificates as a service.
------------------------------------------------------------------------
User
Certificate categories fee
------------------------------------------------------------------------
Slaughter animals, of any type, moving to Canada or Mexico..... $24.50
Nonslaughter horses to Canada.................................. 26.25
Poultry........................................................ 21.00
Hatching eggs.................................................. 21.00
Animal products................................................ 21.50
Other endorsements or certifications........................... 16.50
------------------------------------------------------------------------
(b)(1) All user fees in this paragraph are for services provided
for the endorsement of export health certificates which require the
verification of tests or vaccinations. The person for whom the service
is provided and the person requesting the service are jointly and
severally liable for paying the following user fees for each export
health certificate endorsed for animals and birds, depending on the
number of animals covered by the certificate and the number of tests
required.
------------------------------------------------------------------------
Number of animals or
Number of tests/vaccinations birds on certificate User fee
------------------------------------------------------------------------
1-2.................................. First animal........... $52.50
Each additional animal. 3.00
3-6.................................. First animal........... 64.75
Each additional animal. 5.00
7 or more............................ First animal........... 75.75
Each additional animal. 6.00
------------------------------------------------------------------------
* * * * *
(d) The user fees prescribed in this section will not apply if a
requested export health certificate is not endorsed by a designated
APHIS employee. The minimum user fee of $16.50 will be charged for each
export health certificate that is requested and reviewed, but not
endorsed.
* * * * *
19. Section 130.21 is amended as follows:
a. By revising paragraphs (a)(1) through (a)(5) to read as set
forth below.
b. By adding new paragraphs (a)(6) and (a)(7) to read as set forth
below.
c. In paragraph (b) introductory text, before the colon, by adding
the phrase ``charged per each employee required to perform the
service''.
d. In paragraph (b)(1), by removing ``$50'' and adding ``$56'' in
its place.
e. In paragraph (b)(2), by removing the figure ``$12.50'' and
adding ``$14.00'' in its place.
f. In paragraph (b)(3), by removing the figure ``$16.00'' and
adding ``$16.50'' in its place.
g. By revising paragraph (c) to read as set forth below.
Sec. 130.21 User fees for inspection and supervision services provided
within the United States for export animals, birds, and animal products
and byproducts.
(a) * * *
(1) Inspecting an export isolation facility and the animals in it;
(2) Supervising animal or bird rest periods prior to export;
(3) Supervising loading or unloading of animals or birds for export
shipment;
(4) Inspecting means of conveyance used to export animals or birds;
(5) Conducting inspections under authority of part 156 of this
chapter;
(6) Approving or inspecting an embryo or semen collection center or
the animals in it; and
(7) Other export or embarkation services not specified elsewhere in
this part.
* * * * *
(c) If a service must be conducted on a Sunday or holiday or at any
other time outside the normal tour of duty of the employee, then the
premium user fee rate, as provided for in 9 CFR part 97, in lieu of the
user fee listed in paragraph (b) of this section, must be paid for each
employee required to perform each service:
(1) $65.00 per hour for weekdays and holidays;
(2) $16.25 per quarter-hour for weekdays and holidays;
(3) $74.00 per hour for Sundays;
(4) $18.50 per quarter-hour for Sundays;
(5) With a minimum of $16.50.
* * * * *
20. Section 130.50 is amended as follows:
a. In paragraph (b)(1), newly designated footnote 9 is revised to
read as set forth below.
b. In paragraph (b)(2), immediately before the semi-colon, by
adding ``drawn on a U.S. bank in U.S. dollars and made payable to the
U.S. Department of Agriculture or USDA''.
c. In paragraph (b)(3), immediately before the semi-colon, by
adding ``drawn on a U.S. bank in U.S. dollars and made payable to the
U.S. Department of Agriculture or USDA''.
d. By revising paragraph (b)(4) to read as set forth below.
Sec. 130.50 Payment of user fees.
* * * * *
(b) * * *
(4) Credit cards (VISATM or MasterCardTM) if payment is
made at an Animal Import Center or an APHIS office that is equipped to
process credit cards.\9\
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\9\ A list of Animal Import Centers and APHIS offices that
accept cash or credit cards may be obtained from the Animal and
Plant Health Inspection Service, Veterinary Services, National
Center for Import and Export, 4700 River Road Unit 38, Riverdale, MD
20737-1231.
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[[Page 20437]]
* * * * *
Done in Washington, DC, this 1st day of May 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-11211 Filed 5-6-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-11209 Extremely Hazardous Substances
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20473-20490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11209]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 355
[Docket 300 PQ-R2; FRL-5468-5]
RIN 2050-AD50
Extremely Hazardous Substances
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today, EPA is implementing one of its regulatory reform
commitments set forth in its June 1, 1995, Report to the President. EPA
is taking final action on two proposed rules that modify the extremely
hazardous substances (EHS) list and reportable quantities under section
302 of the Emergency Planning and Community Right-to-Know Act of 1986
[[Page 20474]]
(EPCRA), Title III of the Superfund Amendments and Reauthorization Act
of 1986. EPA is raising the statutory reportable quantities (RQs) for
202 EHSs. EPA is also removing four chemicals that do not meet the
listing criteria from the EHS list. Through these actions, the Agency
is reducing the burden of reporting for facilities presently required
to report certain releases unnecessarily. Protection of human health
and the environment is maintained while better focusing attention on
releases that may require a response by state and/or local authorities.
EFFECTIVE DATE: July 8, 1996.
ADDRESSES:
Docket: Copies of materials relevant to this rulemaking are
contained in the U.S. Environmental Protection Agency CERCLA Docket
Office, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis Highway,
Arlington, VA 22202 [Docket Number 300 PQ-R2]. The docket is available
for inspection between the hours of 9 a.m. and 4 p.m., Monday through
Friday, excluding Federal holidays. Appointments to review the docket
can be made by calling 703/603-9232. The public may copy a maximum of
266 pages from any regulatory docket at no cost. If the number of pages
copied exceeds 266, however, an administrative fee of $25 and a charge
of $0.15 per page for each page after page 266 will be incurred. The
docket will mail copies of materials to requestors who are outside of
the Washington, DC metropolitan area.
FOR FURTHER INFORMATION CONTACT: The RCRA/UST, Superfund, and EPCRA
Hotline at 800/424-9346 (in the Washington, DC metropolitan area,
contact 703/486-3323). The Telecommunications Device for the Deaf (TDD)
Hotline number is 800/553-7672 (in the Washington, DC metropolitan
area, contact 703/412-9810); or John Ferris, Chemical Engineer,
Chemical Emergency Preparedness and Prevention Office (5101), U.S.
Environmental Protection Agency, 401 M Street S.W., Washington, DC
20460, or at (202) 260-4043.
SUPPLEMENTARY INFORMATION:
Regulated entities. Regulated categories and entities include:
------------------------------------------------------------------------
Category Regulated entities
------------------------------------------------------------------------
Industry.............................. All facilities handling
chemicals on the extremely
hazardous substances list may
be subject to this regulation.
Federal Government.................... Executive Order 12856 requires
all federal agencies to comply
with sections 302 and 304 of
EPCRA.
State and Local Governments........... State emergency response
commissions and local emergency
planning committees receive the
information provided under
EPCRA section 304. State/local
government facilities handling
chemicals on the extremely
hazardous substances list may
be subject to this regulation.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provide a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is regulated by this action,
you should carefully examine the applicability criteria in section
355.40 of title 40 of the Code of Federal Regulations. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Contents: The contents of today's preamble are listed in the
following outline:
I. Introduction
a. Statutory Authority
b. Background
c. Today's Rulemaking
II. RQ Adjustment Methodology
a. TPQ methodology
b. CERCLA RQ methodology
c. Proposed methodology
d. Alternative chosen
III. Response to Comments on the August 30, 1989 Proposal
a. Reportable Quantities and Threshold Planning Quantities
b. Sulfur Dioxide
c. Hydrogen Chloride/Hydrochloric Acid
d. Sulfur Trioxide
IV. Listing Corrections
V. Response to Comments on the October 12, 1994 Proposal
VI. Regulatory Analysis
a. Executive Order 12866
b. Regulatory Flexibility Act
c. Paperwork Reduction Act
d. Unfunded Mandates
I. Introduction
a. Statutory Authority
This regulation is issued under sections 302, 304 and 328 of the
Emergency Planning and Community Right-to-Know Act (EPCRA).
b. Background
On October 17, 1986, the President signed into law the Superfund
Amendments and Reauthorization Act of 1986 (SARA), Pub. L. 99-499
(1986). Title III of SARA, the Emergency Planning and Community Right-
to-Know Act of 1986 (EPCRA), established a program designed to
encourage state and local planning and preparedness for spills or
releases of extremely hazardous substances and to provide the public
and local governments with information concerning chemical releases and
the potential chemical risks in their communities.
Subtitle A of the Act establishes the framework for local emergency
planning. Under section 302, a facility which has present an extremely
hazardous substance (EHS) in excess of its threshold planning quantity
(TPQ) must notify its state emergency response commission (SERC) and
participate, as necessary, with the local emergency planning committee
(LEPC) in the local emergency planning process.
Section 302 directed EPA to publish the list of extremely hazardous
substances as an interim final rule within 30 days of the enactment of
EPCRA. Section 302(a)(2) required that the list be identical to the
list compiled by EPA in 1985 as part of EPA's Chemical Emergency
Preparedness Program. Under section 302(a)(4), EPA is authorized to
revise the list, but in undertaking any such revision, EPA must take
into account the ``toxicity, reactivity, volatility, dispersibility,
combustibility, or flammability of a substance.'' The term ``toxicity''
is defined to include ``any short- or long-term health effects which
may result from a short-term exposure to the substance.''
EPA published the list of 402 extremely hazardous substances on
November 17, 1986 (51 FR 41570). On the same day, EPA proposed the
deletion of 40 substances from the EHS list on the basis that their
original listing was in error. On April 22, 1987, 52 FR 13388, EPA
announced that it was deferring the proposed delisting of these
substances, pending an evaluation of the long-term effects from short-
term exposure to each of them. This deferral was in response to
comments from members of the public who argued that the proposed rule
was premature. On November 23, 1987, the District Court for the
District of Columbia in A.L. Laboratories, Inc. v. Environmental
Protection Agency issued an order requiring EPA to remove several
substances from the EHS list, reasoning that Congress did not intend to
include in the statutorily designated list substances listed due to
``clerical error.''
[[Page 20475]]
It is on the basis of this ruling that EPA proposed on October 12, 1994
(59 FR 51816), the removal of four chemicals.
Section 304 of EPCRA establishes requirements for immediate
reporting of certain releases of EHSs and hazardous substances (HSs)
listed under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) to SERCs and LEPCs, similar to the release
reporting provisions of CERCLA section 103. Although similar, CERCLA
section 103 and EPCRA section 304 differ somewhat in purpose. CERCLA
provides generally for federal planning and coordination of entities
and for federal contingency plans. CERCLA section 103 requires federal
notification for any release of a hazardous substance in an amount
equal to or in excess of its RQ. EPCRA is designed to protect the
public in the event of dangerous chemical releases through the
establishment of local and state emergency response capability. EPCRA
section 304 requires, in addition to any federal notification,
notification to state and local authorities for any release of an EHS
in an amount equal to or in excess of its RQ. The potential hazards
posed by EHSs make state and local notification critical to effective
and timely emergency response. EHSs are acutely toxic chemicals which
cause both severe sort- and long-term health effects after a single,
brief exposure. In many cases, local and state authorities may be the
first and only responders to the release of an EHS.
Notifications are required if a release of an EHS or HS is equal to
or above the reportable quantity (RQ). Section 304(a) of EPCRA provides
that chemicals on the EHS list which do not have an RQ assigned to them
by regulation, will have a reportable quantity of 1 pound. Currently,
204 EHSs have the statutory one-pound RQ. On August 30, 1989 (54 FR
35988), EPA proposed to modify the statutory RQs for 232 EHSs using a
proposed modification of the CERCLA RQ methodology.
c. Today's Rulemaking
EPA is today taking final action on the two proposed rules
published in the Federal Register on August 30, 1989 and October 12,
1994. As discussed below, EPA is not yet taking final action on some
aspects of the proposed rules. EPA is adjusting the reportable
quantities of 204 extremely hazardous substances.\1\ This rule will
make the reportable quantities for these chemicals the same as their
threshold planning quantities. EPA is also finalizing the proposal to
remove phosphorus pentoxide, diethylcarbamazine citrate, fenitrothion
and tellurium from the EHS list.
---------------------------------------------------------------------------
\1\ Although a total of 215 EHSs have one-pound statutory RQs,
this rule is adjusting the RQs of 204 of these EHSs. The remaining
11 EHSs with one-pound statutory RQs were designated CERCLA
hazardous substances in a February 9, 1995 final rule (60 FR 7824);
the Agency is currently developing a rulemaking to adjust the CERCLA
and EPCRA one-pound RQs for these 11 substances. The substances are
identified in 40 CFR Part 355 by the footnote ``d.''
---------------------------------------------------------------------------
On August 30, 1989, EPA proposed the adjustment of the TPQ for
isophorone diisocyanate. Today's rule reflects the current TPQ for
isophorone diisocyanate. However, an adjusted TPQ and RQ will be
published in a future notice.
II. RQ Adjustment Methodologies
a. TPQ Methodology
EPA's methodology for establishing threshold planning quantities
for EHSs under EPCRA consists of initially determining the minimum
short term exposure concentration in air that would lead to serious
irreversible health effects in the general population when exposed to
the substance for relatively short duration. This is the so-called
``level of concern.'' (See the Threshold Planning Quantities Technical
Support Document, April 7, 1987.)
There are two ways to determine a ``level of concern.'' If it is
available for a chemical, EPA may use one-tenth of the Immediately
Dangerous to Life and Health (IDLH) level established by the National
Institute for Occupational Safety and Health (NIOSH). The IDLH is the
maximum concentration of a substance in air to which a healthy worker
can be exposed for 30 minutes and escape without suffering irreversible
health effects or impairing symptoms. If the IDLH value is not
available, as is the case for most of the EHSs, EPA determines an IDLH
equivalent value using available toxicity data with an adjustment
factor.
The level of concern is then divided by a factor ``V'' which
represents the extent to which the material can volatilize and become
airborne and dispersed. This approach is explained in the November 17,
1986 Federal Register notice (51 FR 41580). Dividing the level of
concern by ``V'' provides the index value for an EHS.
The final threshold planning quantity is then determined by a
relative ranking of the index values for all of the chemicals on the
EHS list. The index values and their corresponding threshold planning
quantities are found in the Threshold Planning Quantity Technical
Support Document. This approach is generally based on the quantity of
the chemical which when released will generate the level of concern at
a distance of 100 meters.
b. CERCLA RQ Methodology
The CERCLA RQ methodology uses a two step process to determine the
possibility of harm from the release of a hazardous substance. The
methodology begins with an evaluation of six intrinsic physical,
chemical, and toxicological properties associated with each hazardous
substance. These properties are known as the ``primary criteria.'' Each
substance is evaluated according to the applicable ``primary
criteria,'' and an RQ value is determined for each applicable
criterion. The ``primary criteria'' RQ for each hazardous substance is
the lowest value of all the applicable criteria. For example, if the
Agency evaluates hazardous substance A under the RQ adjustment
methodology, identifies both aquatic toxicity and mammalian toxicity
data on the substance, and sets a tentative RQ of 100 pounds on the
basis of aquatic toxicity and 1000 pounds on the basis of mammalian
toxicity, the 100 pound value will be the applicable ``primary
criteria'' RQ. Upon completion of the evaluation of the ``primary
criteria'' RQ, secondary adjustment criteria based on the natural
degradation processes of BHP (biodegradation, hydrolysis, and
photolysis) are assessed. If a hazardous substance, when released into
the environment, degrades (within 5 days) to a less hazardous form by
one or more of the BHP processes, its primary criteria RQ is raised one
level; if the substance degrades to a more hazardous form, its RQ may
be lowered.
c. Proposed Methodology
For approximately 60 of the 232 chemicals proposed for adjustment
on August 30, 1989, the CERCLA methodology adjusted RQs that were too
high for purposes of emergency notification under EPCRA. The reportable
quantities under the CERCLA methodology in these cases are higher than
the substances' EPCRA threshold planning quantity. To rectify this
discrepancy, the August 30, 1989, notice proposed to modify the CERCLA
RQ methodology by integrating the TPQ into the CERCLA RQ methodology.
As proposed, after the two-step CERCLA RQ process had been applied to
the chemicals, an additional step of comparing the tentative RQ to the
substances' TPQs was applied. If the TPQ was lower than the tentative
RQ, the RQ would be adjusted to the TPQ level or lower.
[[Page 20476]]
d. Alternative Chosen
In the proposed rule of August 30, 1989, the Agency was seeking
comment on the various alternatives that could be used to set the
reportable quantities. At the time the RQ adjustments were proposed,
the Agency anticipated that the EHSs would be designated CERCLA
hazardous substances as proposed on January 23, 1989 (54 FR 3388). The
Agency, however is not finalizing at this time the proposal to
designate these chemicals as CERCLA hazardous substances. Today's rule
does not affect any CERCLA hazardous substances. Therefore, the Agency
is not utilizing or modifying the CERCLA RQ methodology at this time.
Instead, the Agency has decided to adjust the 1 pound EHS RQs to the
same level as their respective TPQs.2
---------------------------------------------------------------------------
\2\ The release of EHSs which are already CERCLA hazardous
substances is reportable at the RQ levels applicable under CERCLA.
(EPCRA section 304 (a)(1)).
---------------------------------------------------------------------------
The Agency believes that it is appropriate to rely on the TPQ
methodology rather than the CERCLA methodology to adjust EHS RQs for
several reasons.
First, reporting of EHS releases is required because EHSs are
acutely toxic and will potentially pose an immediate hazard upon
release. Thus, EHS RQs should be adjusted based on substances'
potential for immediate effects. The TPQ methodology, designed
specifically for the EHSs, is based on such effects, utilizing a
``level of concern'' based upon short-term exposure concentrations that
could lead to serious irreversible health effects.
Second, use of the CERCLA secondary criteria of BHP is
inappropriate for adjusting EHS RQs. The BHP analysis is used to
increase a substance's RQ by taking into account its natural chemical
degradation. EHSs can cause severe health effects after only a single,
brief exposure which may occur prior to any chemical degradation. The
BHP analysis and higher RQs based on chemical degradation are not
suitable in this context.
Third, as with RQs, the Agency adjusts TPQs based on the
possibility of harm from the release of a specific substance. In the
Threshold Planning Quantity Technical Support Document to the proposed
rule of November 17, 1986 (51 FR 41570) to adjust TPQs, EPA stated that
the TPQ should represent a quantity that could cause serious health
consequences if an accident were to occur with that quantity.
Consistent with this statement, EPA modelled a variety of release
scenarios to generate the relative ranking of each EHS and to determine
the six TPQ quantities (1, 10, 100, 500, 1,000, and 10,000 pounds).
Since the TPQ methodology is based on the possibility of harm from
release, the Agency believes that it is appropriate to rely on it to
adjust RQs as well.
Finally, like CERCLA RQs, EPCRA RQs do not reflect a determination
that a release of a substance will always be hazardous at the RQ level
and never hazardous below that level. EPA has not attempted to make
such a determination because the actual hazard will vary with the
unique circumstances of the release. For this reason, EPA encourages
SERCs and LEPCs to consider the RQ during their emergency planning
process involving facilities with extremely hazardous substances.
III. Response to Comments on August 30, 1989 Proposal
Many of the comments received in response to the Federal Register
notice of August 30, 1989, are not addressed today because they
concerned the designation of EHSs as CERCLA hazardous substances and
the adjustment of RQs for those substances under CERCLA. As stated
above, the Agency is not taking action on modifying the CERCLA RQ
methodology or listing EHSs as CERCLA hazardous substances at this
time. For a complete list of comments and the Agency's responses, see
the responses to comments document in the Docket of this Federal
Register notice.
a. Threshold Planning Quantity Methodology
The Agency received several comments on its proposed use of the TPQ
methodology to adjust RQs. These commenters believed that the use of
the TPQ methodology was inappropriate because the RQ and the TPQ
address different regulatory requirements.
EPA believes that the TPQ methodology is appropriate for these
chemicals. Although the RQs and TPQs trigger two distinct notification
requirements, both quantities are adjusted based on the possibility of
harm from the release of a specific substance. Thus, even though TPQ
(EPCRA Sec. 302) notification is not triggered by an actual release,
the TPQ is based upon the potential harm from an actual release. In
addition, the particular concern with EHSs is that they will
potentially pose an immediate hazard upon release. Notification
requirements should be based on the potential for these immediate
effects, and the TPQ methodology (developed specifically for the EHS
list) is in fact based upon the potential for immediate effects. For
these reasons, the Agency believes that the use of the TPQ methodology
is appropriate to set RQs for extremely hazardous substances. However,
because these chemicals are not being added to the CERCLA hazardous
substance list, modification of the CERCLA RQ methodology is not
warranted at this time.
b. Sulfur Dioxide
The adjusted RQ for sulfur dioxide was proposed at 100-pounds.
Several commenters from the petroleum industry commented that the 100-
pound RQ is too low and would require needless and excessive reporting
for the petroleum sector. In the petroleum sector, sulfur dioxide is a
combustion product created when hydrogen sulfide from crude oil and
natural gas is flared. The commenters referenced the Federal Clean Air
Act New Source Performance Standards that they state allow coal fired
power plants to emit 200,000 pounds per day of sulfur dioxide.
The proposed RQ for sulfur dioxide was set at 100-pounds based on
the proposed modified CERCLA RQ methodology. In the final rule of April
22, 1987 (52 FR 13378), the TPQ for sulfur dioxide was adjusted to 500-
pounds. Because there is no 500-pound CERCLA RQ level, the sulfur
dioxide RQ was proposed at 100-pounds. As stated earlier in this rule,
EPA is not modifying the CERCLA RQ methodology at this time, but is
adjusting RQs to the TPQ level. The final EPCRA RQ for sulfur dioxide
is 500-pounds.
EPA does not agree that the existence of a 200,000 pounds per day
standard for one sector means that the EPCRA RQ should be set at a
higher RQ level. Sulfur dioxide is used in many industries other than
the petroleum sector, for example, sulfuric acid production, water
purification and the pulp and paper industry. While flares and stacks
are designed to lift the sulfur dioxide into the atmosphere, ground
level releases of sulfur dioxide, including releases from containers
storing sulfur dioxide may be more hazardous to the community. Since
EPA sets one RQ to incorporate all probable release scenarios, EPA
believes that the 500 pound RQ based on the substance's IDLH value
provides an appropriate level.
EPA notes that the release reporting requirements of EPCRA section
304 work in conjunction with the federally permitted release exemption
under CERCLA section 101(10) and the continuous release reporting
requirements under CERCLA section 103. Releases that are federally
permitted and those that are continuous
[[Page 20477]]
have reduced reporting requirements under EPCRA section 304.
c. Hydrogen Chloride
Several commenters correctly pointed out that the phrase ``gas
only'' was omitted from the hydrogen chloride listing in the tables
proposing to revise Appendices A and B to 40 CFR part 355. In today's
rule, this omission is corrected.
In the final rule published in the Federal Register December 27,
1989 (54 FR 53057), EPA raised the reportable quantity for Hydrogen
chloride (gas only) to 5,000 pounds. This is the same as the reportable
quantity for hydrogen chloride (a synonym of hydrochloric acid) under
CERCLA section 103.
d. Sulfur Trioxide
Several commenters believed that a reportable quantity for sulfur
trioxide above 100 pounds is warranted. EPA, however, disagrees. The
100 pound TPQ for sulfur Trioxide is based upon acute toxicity. EPA
agrees that some releases of sulfur trioxide above 100-pounds may not
be hazardous based upon the conditions of the release (e.g. from a
flare or stack). However, 100-pound releases of sulfur trioxide at
ground level (e.g. releases during sulfuric acid and explosive
manufacturing) may pose a hazard to the community. An RQ incorporates
all probable release scenarios so that persons off-site can determine
the level of response necessary. Therefore, the Agency believes that
the 100-pound RQ for sulfur trioxide based upon its acute toxicity is
appropriate.
IV. Listing Corrections
EPA is making final a rule that was originally proposed on October
30, 1994, to remove phosphorus pentoxide, diethylcarbamizine citrate,
finitrothion and tellurium from the extremely hazardous substances
list.3
---------------------------------------------------------------------------
\3\ On October 30, 1994, EPA proposed the adjustment of the TPQ
for isophorone diisocyanate. The final rule on this adjustment will
be published in a future notice.
---------------------------------------------------------------------------
Substances are listed as EHSs based on toxicity criteria.
Substances are screened using acute animal toxicity data for the most
sensitive mammalian species and are placed on the list if they meet one
of the following criteria:
LC50 4 0.5 mg/L
---------------------------------------------------------------------------
\4\ ``LC50'' refers to that concentration of a substance in
the air that is expected to cause the death of 50 percent of a
defined experimental population.
---------------------------------------------------------------------------
Dermal LD50 5 50 mg/kg
---------------------------------------------------------------------------
\5\ ``LD50'' refers to that dose of a substance expected to
cause the death of 50 percent of a defined experimental population.
---------------------------------------------------------------------------
Oral LD50 25 mg/kg
If LC50 or LD50 data are not available, then LCLO or
LDLO data are used. Substances that meet one of these criteria
have the potential for causing harm if accidently released and are,
therefore, designated as EHSs.
EPA listed phosphorus pentoxide based on information presented in
an abstract. This source reported an LC50 of 0.061 mg/L for guinea
pigs and an LC50 of 0.271 mg/L for mice exposed for 1 hour to
smoke generated from burning red phosphorus. A significant limitation
of this study is that the toxic effects cannot be directly related to
phosphorus pentoxide. Therefore, these data are insufficient for
listing phosphorus pentoxide as an EHS. In addition, the Elemental
Phosphorus Ad Hoc Solid Waste Group submitted a study that indicated
that the LC50 for rats exposed to phosphorus pentoxide for 4 hours
is greater than 0.99 mg/L, well above the .5 mg/L listing criteria.
Based on the insufficient information in the original study and the
information of the more recent study, EPA has decided to remove
phosphorus pentoxide from the EHS list.
EPA listed diethylcarbamazine citrate based on information
presented in a Russian data compilation that listed an LC50 for
rats equal to 0.309 mg/L for a 4-hour exposure. Review of this
information indicated that the toxicity values presented were
unverifiable because the study details were not available. In addition,
SmithKline Beecham submitted a study that reported no deaths of rats
from exposure to either 1.63 mg/L or 2.38 mg/L for 1 hour. Based on the
poor quality of the original study and the additional information
received, EPA has decided to remove diethylcarbamazine citrate from the
EHS list.
EPA listed fenitrothion based on a study that reported an LC50
equal to 0.378 mg/L for a 4-hour exposure. EPA's review of this study
concluded that a toxic impurity had resulted in an erroneously low
value for the LC50. In addition, a surfactant was present that
altered the permeability of the skin and cell membranes of the test
animals, making them more susceptible to fenitrothion's toxic effect.
Information submitted by Sumitomo Chemical America, Inc., reported an
LC50 greater than 2.210 mg/L. Based on the Agency's review and the
additional information, fenitrothion is being deleted from the EHS
list.
EPA listed tellurium metal based on a study that reported an oral
LD50 of 20 mg/kg. Review of this study indicted that sodium
tellurate, which is listed as an EHS, was used in the study rather than
tellurium metal. The Selenium Tellurium Development Association also
submitted a study that reported an LD50 greater than 5000 mg/kg
for tellurium metal. Based on this information, EPA is deleting
tellurium from the list of EHSs.
V. Response to Comments on October 12, 1994, Proposal
EPA received one comment from the Clean Water Fund of North
Carolina objecting to the removal of phosphorus pentoxide from the EHS
list. The Clean Water Fund questions the validity of an unpublished
1987 toxicity study showing no toxic effects in exposed animals, at
levels up to .99 mg/L of phosphorus pentoxide aerosol. That study
however, did not determine the level of the chemical in question in the
chamber atmosphere. The analytical method determined only total
phosphorus, which was then converted to an equivalent concentration of
phosphorus pentoxide in air. The Clean Water Fund argues, therefore,
that the pentoxide should remain on the list because the 1980 and 1982
combustion experiments established that the pentoxide was a major
component of the smoke and ``because the analytical techniques employed
by the 1980 study may have actually synthesized the pentoxide from
other (possibly less dangerous) phosphorus compounds actually present
in the test chamber.'' The Agency assumes Clean Water Fund believes
that because the pentoxide could have been synthesized from less toxic
compounds, the pentoxide presented the toxic character of the test
chamber gas.
EPA disagrees. The 1980 and 1982 studies show that, in burning the
phosphorus, there is a potential for the production of several oxides
of phosphorus. Regardless of how pentoxide was formed (as noted by the
Clean Water Fund) or whether the various oxide compounds are more or
less toxic, the fact still remains that the studies did not distinguish
which of the various oxides caused the high toxicity of the smoke.
While the 1987 study showed no toxicity of phosphorus pentoxide, it
also is not conclusive because it did not indicate a direct measurement
of phosphorus pentoxide in the chamber and the pentoxide could have
hydrolyzed to possibly less toxic constituents. On balance, none of the
studies presented show that phosphorus pentoxide meets the toxicity
criteria. Accordingly, EPA is removing the chemical from the EHS list.
[[Page 20478]]
VI. Regulatory Analyses
a. Executive Order 12866
Under Executive Order 12866, (58 FR 51,735) of October 4, 1993, the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) 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.
b. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small governmental jurisdictions). This analysis is
unnecessary, however, if the agency's administrator certifies that the
rule will not have a significant economic effect on a substantial
number of small entities.
EPA has examined this rule's potential effects on small entities as
required by the Regulatory Flexibility Act. It has determined that
today's final rule will not have a significant economic effect on a
substantial number of small entities. The overall economic effect of
this regulation has been determined to equate to 6,249 hours of burden
reduction (with no added burden) at a total cost saving of $355,628 per
year to all regulated entities. Therefore, this regulation will have a
cost savings, and not have a significant impact on small businesses.
c. Paperwork Reduction Act
The information collection requirements contained in this final
rule have been approved by OMB under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., and have been assigned OMB
control number 2050-0092 (EPA Information Collection Request No.
1395.2). Copies of the information collection requests may be obtained
from Sandy Farmer, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (2136), 401 M Street, SW., Washington,
DC 20460 or by calling (202) 260-2740.
As indicated in the Section I Introduction, the mandatory reporting
requirements under EPCRA section 304 serve as a trigger for informing
state and local governments of a release, so that state and local
personnel can evaluate the need for any necessary action in a timely
fashion. EPCRA section 304 also requires the submittal of a written
follow-up notice to the same state and local entities.
The public reporting burden for the collection of information
pursuant to EPCRA section 304 is estimated to take, on average, 5 hours
per response. This estimate includes the time required to make the call
and to develop the written follow-up notice.
Because the RQs for almost all of the substances included in
today's rule are to be raised, the net reporting and recordkeeping
burden associated with reporting releases of these substances under
EPCRA section 304 is expected to decrease. As demonstrated in an
economic impact analysis (EIA), the Agency estimates that the total
burden reduction for notification to SERCs and LEPCs, and notification
to 911 services in transportation-related incidents, and the completion
of follow up reports will equate to 6,249 hours at a total cost savings
of $355,628 per year.
Send comments on the ICR to the Director, OPPE Regulatory
Information Division, U.S. Environmental Protection Agency (2136), 401
M Street, SW., Washington, DC 20460; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street, NW., Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.'' Include ICR number 1395.2 in any correspondence.
d. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 UMRA 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
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.
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. Because the RQs for almost all of the
substances included in today's rule are to be raised, the net reporting
and recordkeeping burden associated with reporting releases of these
substances under EPCRA section 304 is expected to decrease. As
demonstrated in an economic impact analysis (EIA), the Agency estimates
that the total burden reduction for notification to SERCs and LEPCs,
and notification to 911 services in transportation-related incidents,
and the completion of follow up reports will equate to 6,249 hours at a
total cost savings of $355,628 per year. 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
[[Page 20479]]
small governments. Because the RQs for almost all of the substances
included in today's rule are to be raised, the net reporting and
recordkeeping burden associated with reporting releases of these
substances under EPCRA section 304 is expected to decrease. Small
governments will no longer receive notifications and written follow-up
reports from facilities that have releases of extremely hazardous
substances less that the substances' TPQ.
List of Subjects in 40 CFR Part 355
Air pollution control, Chemical accident prevention, Chemical
emergency preparedness, Chemicals, Community emergency response plan,
Community right-to-know, Contingency planning, Disaster assistance,
Emergency Planning and Community Right-to-Know Act, Extremely hazardous
substances, Hazardous substances, Intergovernmental relations, Natural
resources, Penalties, Reportable quantity, Reporting and recordkeeping
requirements, Superfund Amendments and Reauthorization Act, Threshold
planning quantity, Water pollution control, Water supply.
Dated: April 29, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, Chapter I of the
Code of Federal Regulations is amended as follows:
PART 355--EMERGENCY PLANNING AND NOTIFICATION
1. The authority citation for part 355 continues to read as
follows:
Authority: 42 U.S.C. 11002, 11004, and 11048.
2. Appendices A and B in Part 355 are revised to read as follows:
Appendix A to Part 355--The List of Extremely Hazardous Substances and Their Threshold Planning Quantities
[Alphabetical Order]
----------------------------------------------------------------------------------------------------------------
Reportable quantity * Threshold planning quantity
CAS No. Chemical name Notes (pounds) (pounds)
----------------------------------------------------------------------------------------------------------------
75-86-5..... Acetone Cyanohydrin........ ................ 10 1,000
1752-30-3... Acetone Thiosemicarbazide.. ................ 1,000 1,000/10,000
107-02-8.... Acrolein................... ................ 1 500
79-06-1..... Acrylamide................. l 5,000 1,000/10,000
107-13-1.... Acrylonitrile.............. l 100 10,000
814-68-6.... Acrylyl Chloride........... h 100 100
111-69-3.... Adiponitrile............... l 1,000 1,000
116-06-3.... Aldicarb................... c 1 100/10,000
309-00-2.... Aldrin..................... ................ 1 500/10,000
107-18-6.... Allyl Alcohol.............. ................ 100 1,000
107-11-9.... Allylamine................. ................ 500 500
20859-73-8.. Aluminum Phosphide......... b 100 500
54-62-6..... Aminopterin................ ................ 500 500/10,000
78-53-5..... Amiton..................... ................ 500 500
3734-97-2... Amiton Oxalate............. ................ 100 100/10,000
7664-41-7... Ammonia.................... l 100 500
300-62-9.... Amphetamine................ ................ 1,000 1,000
62-53-3..... Aniline.................... l 5,000 1,000
88-05-1..... Aniline, 2,4,6-Trimethyl-.. ................ 500 500
7783-70-2... Antimony Pentafluoride..... ................ 500 500
1397-94-0... Antimycin A................ c 1,000 1,000/10,000
86-88-4..... ANTU....................... ................ 100 500/10,000
1303-28-2... Arsenic Pentoxide.......... ................ 1 100/10,000
1327-53-3... Arsenous Oxide............. h 1 100/10,000
7784-34-1... Arsenous Trichloride....... ................ 1 500
7784-42-1... Arsine..................... ................ 100 100
2642-71-9... Azinphos-Ethyl............. ................ 100 100/10,000
86-50-0..... Azinphos-Methyl............ ................ 1 10/10,000
98-87-3..... Benzal Chloride............ ................ 5,000 500
98-16-8..... Benzenamine, 3- ................ 500 500
(Trifluoromethyl)-.
100-14-1.... Benzene, 1-(Chloromethyl)-4- ................ 500 500/10,000
Nitro-.
98-05-5..... Benzenearsonic Acid........ ................ 10 10/10,000
3615-21-2... Benzimidazole, 4,5-Dichloro- g 500 500/10,000
2-(Trifluoromethyl)-.
98-07-7..... Benzotrichloride........... ................ 10 100
100-44-7.... Benzyl Chloride............ ................ 100 500
140-29-4.... Benzyl Cyanide............. h 500 500
15271-41-7.. Bicyclo[2.2.1]Heptane-2- ................ 500 500/10,000
Carbonitrile, 5-Chloro-6-
((((Methylamino)Carbonyl)O
xy)Imino)-, (1s-(1-alpha,2-
beta,4-alpha,5-alpha,6E))-.
534-07-6.... Bis(Chloromethyl) Ketone... ................ 10 10/10,000
4044-65-9... Bitoscanate................ ................ 500 500/10,000
10294-34-5.. Boron Trichloride.......... ................ 500 500
7637-07-2... Boron Trifluoride.......... ................ 500 500
353-42-4.... Boron Trifluoride Compound ................ 1,000 1,000
With Methyl Ether (1:1).
28772-56-7.. Bromadiolone............... ................ 100 100/10,000
7726-95-6... Bromine.................... l 500 500
1306-19-0... Cadmium Oxide.............. ................ 100 100/10,000
2223-93-0... Cadmium Stearate........... c 1,000 1,000/10,000
7778-44-1... Calcium Arsenate........... ................ 1 500/10,000
[[Page 20480]]
8001-35-2... Camphechlor................ ................ 1 500/10,000
56-25-7..... Cantharidin................ ................ 100 100/10,000
51-83-2..... Carbachol Chloride......... ................ 500 500/10,000
26419-73-8.. Carbamic Acid, Methyl-, O- d 1 100/10,000
(((2,4-Dimethyl-1, 3-
Dithiolan-2-
yl)Methylene)Amino)-.
1563-66-2... Carbofuran................. ................ 10 10/10,000
75-15-0..... Carbon Disulfide........... l 100 10,000
786-19-6.... Carbophenothion............ ................ 500 500
57-74-9..... Chlordane.................. ................ 1 1,000
470-90-6.... Chlorfenvinfos............. ................ 500 500
7782-50-5... Chlorine................... ................ 10 100
24934-91-6.. Chlormephos................ ................ 500 500
999-81-5.... Chlormequat Chloride....... h 100 100/10,000
79-11-8..... Chloroacetic Acid.......... ................ 100 100/10,000
107-07-3.... Chloroethanol.............. ................ 500 500
627-11-2.... Chloroethyl Chloroformate.. ................ 1,000 1,000
67-66-3..... Chloroform................. l 10 10,000
542-88-1.... Chloromethyl Ether......... h 10 100
107-30-2.... Chloromethyl Methyl Ether.. c 10 100
3691-35-8... Chlorophacinone............ ................ 100 100/10,000
1982-47-4... Chloroxuron................ ................ 500 500/10,000
21923-23-9.. Chlorthiophos.............. h 500 500
10025-73-7.. Chromic Chloride........... ................ 1 1/10,000
62207-76-5.. Cobalt, ((2,2'-(1,2- ................ 100 100/10,000
Ethanediylbis
(Nitrilomethylidyne))
Bis(6-Fluorophenolato))(2-
)-N,N',O,O')-.
10210-68-1.. Cobalt Carbonyl............ h 10 10/10,000
64-86-8..... Colchicine................. h 10 10/10,000
56-72-4..... Coumaphos.................. ................ 10 100/10,000
5836-29-3... Coumatetralyl.............. ................ 500 500/10,000
95-48-7..... Cresol, o-................. ................ 100 1,000/10,000
535-89-7.... Crimidine.................. ................ 100 100/10,000
4170-30-3... Crotonaldehyde............. ................ 100 1,000
123-73-9.... Crotonaldehyde, (E)-....... ................ 100 1,000
506-68-3.... Cyanogen Bromide........... ................ 1,000 500/10,000
506-78-5.... Cyanogen Iodide............ ................ 1,000 1,000/10,000
2636-26-2... Cyanophos.................. ................ 1,000 1,000
675-14-9.... Cyanuric Fluoride.......... ................ 100 100
66-81-9..... Cycloheximide.............. ................ 100 100/10,000
108-91-8.... Cyclohexylamine............ l 10,000 10,000
17702-41-9.. Decaborane(14)............. ................ 500 500/10,000
8065-48-3... Demeton.................... ................ 500 500
919-86-8.... Demeton-S-Methyl........... ................ 500 500
10311-84-9.. Dialifor................... ................ 100 100/10,000
19287-45-7.. Diborane................... ................ 100 100
111-44-4.... Dichloroethyl ether........ ................ 10 10,000
149-74-6.... Dichloromethylphenylsilane. ................ 1,000 1,000
62-73-7..... Dichlorvos................. ................ 10 1,000
141-66-2.... Dicrotophos................ ................ 100 100
1464-53-5... Diepoxybutane.............. ................ 10 500
814-49-3.... Diethyl Chlorophosphate.... h 500 500
71-63-6..... Digitoxin.................. c 100 100/10,000
2238-07-5... Diglycidyl Ether........... ................ 1,000 1,000
20830-75-5.. Digoxin.................... h 10 10/10,000
115-26-4.... Dimefox.................... ................ 500 500
60-51-5..... Dimethoate................. ................ 10 500/10,000
2524-03-0... Dimethyl ................ 500 500
Phosphorochloridothioate.
77-78-1..... Dimethyl sulfate........... ................ 100 500
75-78-5..... Dimethyldichlorosilane..... h 500 500
57-14-7..... Dimethylhydrazine.......... ................ 10 1,000
99-98-9..... Dimethyl-p-Phenylenediamine ................ 10 10/10,000
644-64-4.... Dimetilan.................. d 1 500/10,000
534-52-1.... Dinitrocresol.............. ................ 10 10/10,000
88-85-7..... Dinoseb.................... ................ 1,000 100/10,000
1420-07-1... Dinoterb................... ................ 500 500/10,000
78-34-2..... Dioxathion................. ................ 500 500
82-66-6..... Diphacinone................ ................ 10 10/10,000
152-16-9.... Diphosphoramide, Octamethyl- ................ 100 100
.
298-04-4.... Disulfoton................. ................ 1 500
514-73-8.... Dithiazanine Iodide........ ................ 500 500/10,000
[[Page 20481]]
541-53-7.... Dithiobiuret............... ................ 100 100/10,000
316-42-7.... Emetine, Dihydrochloride... h 1 1/10,000
115-29-7.... Endosulfan................. ................ 1 10/10,000
2778-04-3... Endothion.................. ................ 500 500/10,000
72-20-8..... Endrin..................... ................ 1 500/10,000
106-89-8.... Epichlorohydrin............ l 100 1,000
2104-64-5... EPN........................ ................ 100 100/10,000
50-14-6..... Ergocalciferol............. c 1,000 1,000/10,000
379-79-3.... Ergotamine Tartrate........ ................ 500 500/10,000
1622-32-8... Ethanesulfonyl Chloride, 2- ................ 500 500
Chloro-.
10140-87-1.. Ethanol, 1,2-Dichloro-, ................ 1,000 1,000
Acetate.
563-12-2.... Ethion..................... ................ 10 1,000
13194-48-4.. Ethoprophos................ ................ 1,000 1,000
538-07-8.... Ethylbis(2- h 500 500
Chloroethyl)Amine.
371-62-0.... Ethylene Fluorohydrin...... c, h 10 10
75-21-8..... Ethylene Oxide............. l 10 1,000
107-15-3.... Ethylenediamine............ ................ 5,000 10,000
151-56-4.... Ethyleneimine.............. ................ 1 500
542-90-5.... Ethylthiocyanate........... ................ 10,000 10,000
22224-92-6.. Fenamiphos................. ................ 10 10/10,000
115-90-2.... Fensulfothion.............. h 500 500
4301-50-2... Fluenetil.................. ................ 100 100/10,000
7782-41-4... Fluorine................... k 10 500
640-19-7.... Fluoroacetamide............ j 100 100/10,000
144-49-0.... Fluoroacetic Acid.......... ................ 10 10/10,000
359-06-8.... Fluoroacetyl Chloride...... c 10 10
51-21-8..... Fluorouracil............... ................ 500 500/10,000
944-22-9.... Fonofos.................... ................ 500 500
50-00-0..... Formaldehyde............... l 100 500
107-16-4.... Formaldehyde Cyanohydrin... h 1,000 1,000
23422-53-9.. Formetanate Hydrochloride.. d, h 1 500/10,000
2540-82-1... Formothion................. ................ 100 100
17702-57-7.. Formparanate............... d 1 100/10,000
21548-32-3.. Fosthietan................. ................ 500 500
3878-19-1... Fuberidazole............... ................ 100 100/10,000
110-00-9.... Furan...................... ................ 100 500
13450-90-3.. Gallium Trichloride........ ................ 500 500/10,000
77-47-4..... Hexachlorocyclopentadiene.. h 10 100
4835-11-4... Hexamethylenediamine, N,N'- ................ 500 500
Dibutyl-.
302-01-2.... Hydrazine.................. ................ 1 1,000
74-90-8..... Hydrocyanic Acid........... ................ 10 100
7647-01-0... Hydrogen Chloride (gas l 5,000 500
only).
7664-39-3... Hydrogen Fluoride.......... ................ 100 100
7722-84-1... Hydrogen Peroxide (Conc > l 1,000 1,000
52%).
7783-07-5... Hydrogen Selenide.......... ................ 10 10
7783-06-4... Hydrogen Sulfide........... l 100 500
123-31-9.... Hydroquinone............... l 100 500/10,000
13463-40-6.. Iron, Pentacarbonyl-....... ................ 100 100
297-78-9.... Isobenzan.................. ................ 100 100/10,000
78-82-0..... Isobutyronitrile........... h 1,000 1,000
102-36-3.... Isocyanic Acid, 3,4- ................ 500 500/10,000
Dichlorophenyl Ester.
465-73-6.... Isodrin.................... ................ 1 100/10,000
55-91-4..... Isofluorphate.............. c 100 100
4098-71-9... Isophorone Diisocyanate.... ................ 100 100
108-23-6.... Isopropyl Chloroformate.... ................ 1,000 1,000
119-38-0.... Isopropylmethylpyrazolyl d 1 500
Dimethylcarbamate.
78-97-7..... Lactonitrile............... ................ 1,000 1,000
21609-90-5.. Leptophos.................. ................ 500 500/10,000
541-25-3.... Lewisite................... c, h 10 10
58-89-9..... Lindane.................... ................ 1 1,000/10,000
7580-67-8... Lithium Hydride............ b 100 100
109-77-3.... Malononitrile.............. ................ 1,000 500/10,000
12108-13-3.. Manganese, Tricarbonyl h 100 100
Methylcyclopentadienyl.
51-75-2..... Mechlorethamine............ c 10 10
950-10-7.... Mephosfolan................ ................ 500 500
1600-27-7... Mercuric Acetate........... ................ 500 500/10,000
7487-94-7... Mercuric Chloride.......... ................ 500 500/10,000
21908-53-2.. Mercuric Oxide............. ................ 500 500/10,000
[[Page 20482]]
10476-95-6.. Methacrolein Diacetate..... ................ 1,000 1,000
760-93-0.... Methacrylic Anhydride...... ................ 500 500
126-98-7.... Methacrylonitrile.......... h 1,000 500
920-46-7.... Methacryloyl Chloride...... ................ 100 100
30674-80-7.. Methacryloyloxyethyl h 100 100
Isocyanate.
10265-92-6.. Methamidophos.............. ................ 100 100/10,000
558-25-8.... Methanesulfonyl Fluoride... ................ 1,000 1,000
950-37-8.... Methidathion............... ................ 500 500/10,000
2032-65-7... Methiocarb................. ................ 10 500/10,000
16752-77-5.. Methomyl................... h 100 500/10,000
151-38-2.... Methoxyethylmercuric ................ 500 500/10,000
Acetate.
80-63-7..... Methyl 2-Chloroacrylate.... ................ 500 500
74-83-9..... Methyl Bromide............. l 1,000 1,000
79-22-1..... Methyl Chloroformate....... h 1,000 500
60-34-4..... Methyl Hydrazine........... ................ 10 500
624-83-9.... Methyl Isocyanate.......... ................ 10 500
556-61-6.... Methyl Isothiocyanate...... b 500 500
74-93-1..... Methyl Mercaptan........... l 100 500
3735-23-7... Methyl Phenkapton.......... ................ 500 500
676-97-1.... Methyl Phosphonic b 100 100
Dichloride.
556-64-9.... Methyl Thiocyanate......... ................ 10,000 10,000
78-94-4..... Methyl Vinyl Ketone........ ................ 10 10
502-39-6.... Methylmercuric Dicyanamide. ................ 500 500/10,000
75-79-6..... Methyltrichlorosilane...... h 500 500
1129-41-5... Metolcarb.................. d 1 100/10,000
7786-34-7... Mevinphos.................. ................ 10 500
315-18-4.... Mexacarbate................ ................ 1,000 500/10,000
50-07-7..... Mitomycin C................ ................ 10 500/10,000
6923-22-4... Monocrotophos.............. ................ 10 10/10,000
2763-96-4... Muscimol................... ................ 1,000 500/10,000
505-60-2.... Mustard Gas................ h 500 500
13463-39-3.. Nickel Carbonyl............ ................ 10 1
54-11-5..... Nicotine................... c 100 100
65-30-5..... Nicotine Sulfate........... ................ 100 100/10,000
7697-37-2... Nitric Acid................ ................ 1,000 1,000
10102-43-9.. Nitric Oxide............... c 10 100
98-95-3..... Nitrobenzene............... l 1,000 10,000
1122-60-7... Nitrocyclohexane........... ................ 500 500
10102-44-0.. Nitrogen Dioxide........... ................ 10 100
62-75-9..... Nitrosodimethylamine....... h 10 1,000
991-42-4.... Norbormide................. ................ 100 100/10,000
0........... Organorhodium Complex (PMN- ................ 10 10/10,000
82-147).
630-60-4.... Ouabain.................... c 100 100/10,000
23135-22-0.. Oxamyl..................... d 1 100/10,000
78-71-7..... Oxetane, 3,3- ................ 500 500
Bis(Chloromethyl)-.
2497-07-6... Oxydisulfoton.............. h 500 500
10028-15-6.. Ozone...................... ................ 100 100
1910-42-5... Paraquat Dichloride........ ................ 10 10/10,000
2074-50-2... Paraquat Methosulfate...... ................ 10 10/10,000
56-38-2..... Parathion.................. c 10 100
298-00-0.... Parathion-Methyl........... c 100 100/10,000
12002-03-8.. Paris Green................ ................ 1 500/10,000
19624-22-7.. Pentaborane................ ................ 500 500
2570-26-5... Pentadecylamine............ ................ 100 100/10,000
79-21-0..... Peracetic Acid............. ................ 500 500
594-42-3.... Perchloromethylmercaptan... ................ 100 500
108-95-2.... Phenol..................... ................ 1,000 500/10,000
4418-66-0... Phenol, 2,2'-Thiobis(4- ................ 100 100/10,000
Chloro-6-Methyl)-.
64-00-6..... Phenol, 3-(1-Methylethyl)-, d 1 500/10,000
Methylcarbamate.
58-36-6..... Phenoxarsine, 10,10'-Oxydi- ................ 500 500/10,000
696-28-6.... Phenyl Dichloroarsine...... h 1 500
59-88-1..... Phenylhydrazine ................ 1,000 1,000/10,000
Hydrochloride.
62-38-4..... Phenylmercury Acetate...... ................ 100 500/10,000
2097-19-0... Phenylsilatrane............ h 100 100/10,000
103-85-5.... Phenylthiourea............. ................ 100 100/10,000
298-02-2.... Phorate.................... ................ 10 10
4104-14-7... Phosacetim................. ................ 100 100/10,000
947-02-4.... Phosfolan.................. ................ 100 100/10,000
[[Page 20483]]
75-44-5..... Phosgene................... l 10 10
732-11-6.... Phosmet.................... ................ 10 10/10,000
13171-21-6.. Phosphamidon............... ................ 100 100
7803-51-2... Phosphine.................. ................ 100 500
2703-13-1... Phosphonothioic Acid, ................ 500 500
Methyl-, O-Ethyl O-(4-
(Methylthio) Phenyl) Ester.
50782-69-9.. Phosphonothioic Acid, ................ 100 100
Methyl-, S-(2-(Bis(1-
Methylethyl)Amino)Ethyl) O-
Ethyl Ester.
2665-30-7... Phosphonothioic Acid,
FR Doc. 96-11209 Extremely Hazardous Substances
................ 500 500
Methyl-, O-(4-Nitrophenyl)
O-Phenyl Ester.
3254-63-5... Phosphoric Acid, Dimethyl 4- ................ 500 500
(Methylthio)Phenyl Ester.
2587-90-8... Phosphorothioic Acid, O,O- c, g 500 500
Dimethyl-S-(2-Methylthio)
Ethyl Ester.
7723-14-0... Phosphorus................. b, h 1 100
10025-87-3.. Phosphorus Oxychloride..... ................ 1,000 500
10026-13-8.. Phosphorus Pentachloride... b 500 500
7719-12-2... Phosphorus Trichloride..... ................ 1,000 1,000
57-47-6..... Physostigmine.............. d 1 100/10,000
57-64-7..... Physostigmine, Salicylate d 1 100/10,000
(1:1).
124-87-8.... Picrotoxin................. ................ 500 500/10,000
110-89-4.... Piperidine................. ................ 1,000 1,000
23505-41-1.. Pirimifos-Ethyl............ ................ 1,000 1,000
10124-50-2.. Potassium Arsenite......... ................ 1 500/10,000
151-50-8.... Potassium Cyanide.......... b 10 100
506-61-6.... Potassium Silver Cyanide... b 1 500
2631-37-0... Promecarb.................. d, h 1 500/10,000
106-96-7.... Propargyl Bromide.......... ................ 10 10
57-57-8..... Propiolactone, Beta-....... ................ 10 500
107-12-0.... Propionitrile.............. ................ 10 500
542-76-7.... Propionitrile, 3-Chloro-... ................ 1,000 1,000
70-69-9..... Propiophenone, 4-Amino-.... g 100 100/10,000
109-61-5.... Propyl Chloroformate....... ................ 500 500
75-56-9..... Propylene Oxide............ l 100 10,000
75-55-8..... Propyleneimine............. ................ 1 10,000
2275-18-5... Prothoate.................. ................ 100 100/10,000
129-00-0.... Pyrene..................... c 5,000 1,000/10,000
140-76-1.... Pyridine, 2-Methyl-5-Vinyl- ................ 500 500
504-24-5.... Pyridine, 4-Amino-......... h 1,000 500/10,000
1124-33-0... Pyridine, 4-Nitro-,l-Oxide. ................ 500 500/10,000
53558-25-1.. Pyriminil.................. h 100 100/10,000
14167-18-1.. Salcomine.................. ................ 500 500/10,000
107-44-8.... Sarin...................... h 10 10
7783-00-8... Selenious Acid............. ................ 10 1,000/10,000
7791-23-3... Selenium Oxychloride....... ................ 500 500
563-41-7.... Semicarbazide Hydrochloride ................ 1,000 1,000/10,000
3037-72-7... Silane, (4- ................ 1,000 1,000
Aminobutyl)Diethoxymethyl-.
7631-89-2... Sodium Arsenate............ ................ 1 1,000/10,000
7784-46-5... Sodium Arsenite............ ................ 1 500/10,000
26628-22-8.. Sodium Azide (Na(N3))...... b 1,000 500
124-65-2.... Sodium Cacodylate.......... ................ 100 100/10,000
143-33-9.... Sodium Cyanide (Na(CN)).... b 10 100
62-74-8..... Sodium Fluoroacetate....... ................ 10 10/10,000
13410-01-0.. Sodium Selenate............ ................ 100 100/10,000
10102-18-8.. Sodium Selenite............ h 100 100/10,000
10102-20-2.. Sodium Tellurite........... ................ 500 500/10,000
900-95-8.... Stannane, Acetoxytriphenyl- g 500 500/10,000
57-24-9..... Strychnine................. c 10 100/10,000
60-41-3..... Strychnine Sulfate......... ................ 10 100/10,000
3689-24-5... Sulfotep................... ................ 100 500
3569-57-1... Sulfoxide, 3-Chloropropyl ................ 500 500
Octyl.
7446-09-5... Sulfur Dioxide............. 1 500 500
7783-60-0... Sulfur Tetrafluoride....... ................ 100 100
7446-11-9... Sulfur Trioxide............ b 100 100
7664-93-9... Sulfuric Acid.............. ................ 1,000 1,000
77-81-6..... Tabun...................... c, h 10 10
7783-80-4... Tellurium Hexafluoride..... k 100 100
107-49-3.... TEPP....................... ................ 10 100
13071-79-9.. Terbufos................... h 100 100
78-00-2..... Tetraethyllead............. c 10 100
597-64-8.... Tetraethyltin.............. c 100 100
75-74-1..... Tetramethyllead............ c, 1 100 100
509-14-8.... Tetranitromethane.......... ................ 10 500
[[Page 20484]]
10031-59-1.. Thallium Sulfate........... h 100 100/10,000
6533-73-9... Thallous Carbonate......... c, h 100 100/10,000
7791-12-0... Thallous Chloride.......... c, h 100 100/10,000
2757-18-8... Thallous Malonate.......... c, h 100 100/10,000
7446-18-6... Thallous Sulfate........... ................ 100 100/10,000
2231-57-4... Thiocarbazide.............. ................ 1,000 1,000/10,000
39196-18-4.. Thiofanox.................. ................ 100 100/10,000
297-97-2.... Thionazin.................. ................ 100 500
108-98-5.... Thiophenol................. ................ 100 500
79-19-6..... Thiosemicarbazide.......... ................ 100 100/10,000
5344-82-1... Thiourea, (2-Chlorophenyl)- ................ 100 100/10,000
614-78-8.... Thiourea, (2-Methylphenyl)- ................ 500 500/10,000
7550-45-0... Titanium Tetrachloride..... ................ 1,000 100
584-84-9.... Toluene 2,4-Diisocyanate... ................ 100 500
91-08-7..... Toluene 2,6-Diisocyanate... ................ 100 100
110-57-6.... Trans-1,4-Dichlorobutene... ................ 500 500
1031-47-6... Triamiphos................. ................ 500 500/10,000
24017-47-8.. Triazofos.................. ................ 500 500
76-02-8..... Trichloroacetyl Chloride... ................ 500 500
115-21-9.... Trichloroethylsilane....... h 500 500
327-98-0.... Trichloronate.............. k 500 500
98-13-5..... Trichlorophenylsilane...... h 500 500
1558-25-4... Trichloro(Chloromethyl)Sila ................ 100 100
ne.
27137-85-5.. Trichloro(Dichlorophenyl) ................ 500 500
Silane.
998-30-1.... Triethoxysilane............ ................ 500 500
75-77-4..... Trimethylchlorosilane...... ................ 1,000 1,000
824-11-3.... Trimethylolpropane h 100 100/10,000
Phosphite.
1066-45-1... Trimethyltin Chloride...... ................ 500 500/10,000
639-58-7.... Triphenyltin Chloride...... ................ 500 500/10,000
555-77-1.... Tris(2-Chloroethyl)Amine... h 100 100
2001-95-8... Valinomycin................ c 1,000 1,000/10,000
1314-62-1... Vanadium Pentoxide......... ................ 1,000 100/10,000
108-05-4.... Vinyl Acetate Monomer...... 1 5,000 1,000
81-81-2..... Warfarin................... ................ 100 500/10,000
129-06-6.... Warfarin Sodium............ h 100 100/10,000
28347-13-9.. Xylylene Dichloride........ ................ 100 100/10,000
58270-08-9.. Zinc, Dichloro(4,4- ................ 100 100/10,000
Dimethyl-
5((((Methylamino)Carbonyl)
Oxy)Imino)Pentanenitrile)-
, (T-4)-.
1314-84-7... Zinc Phosphide............. b 100 500
----------------------------------------------------------------------------------------------------------------
* Only the statutory or final RQ is shown. For more information, see 40 CFR Table 302.4.
Notes:
a This chemical does not meet acute toxicity criteria. Its TPQ is set at 10,000 pounds.
b This material is a reactive solid. The TPQ does not default to 10,000 pounds for non-powder, non-molten,
nonsolution form.
c The calculated TPQ changed after technical review as described in the technical support document.
d Indicates that the RQ is subject to change when the assessment of potential carcinogenicity and/or other
toxicity is completed.
e Statutory reportable quantity for purposes of notification under SARA sect 304(a)(2).
f [Reserved]
g New chemicals added that were not part of the original list of 402 substances.
h Revised TPQ based on new or re-evaluated toxicity data.
j TPQ is revised to its calculated value and does not change due to technical review as in proposed rule.
k The TPQ was revised after proposal due to calculation error.
l Chemicals on the original list that do not meet toxicity criteria but because of their high production volume
and recognized toxicity are considered chemicals of concern (``Other chemicals'').
Appendix B to Part 355--The List of Extremely Hazardous Substances and Their Threshold Planning Quantities
[CAS Number Order]
----------------------------------------------------------------------------------------------------------------
Reportable quantity * Threshold planning quantity
CAS No. Chemical name Notes (pounds) (pounds)
----------------------------------------------------------------------------------------------------------------
0........... Organorhodium Complex (PMN- ................ 10 10/10,000
82-147).
50-00-0..... Formaldehyde............... l 100 500
50-07-7..... Mitomycin C................ ................ 10 500/10,000
50-14-6..... Ergocalciferol............. c 1,000 1,000/10,000
51-21-8..... Fluorouracil............... ................ 500 500/10,000
51-75-2..... Mechlorethaminec........... c 10 10
[[Page 20485]]
51-83-2..... Carbachol Chloride......... ................ 500 500/10,000
54-11-5..... Nicotine................... c 100 100
54-62-6..... Aminopterin................ ................ 500 500/10,000
55-91-4..... Isofluorphate.............. c 100 100
56-25-7..... Cantharidin................ ................ 100 100/10,000
56-38-2..... Parathion.................. c 10 100
56-72-4..... Coumaphos.................. ................ 10 100/10,000
57-14-7..... Dimethylhydrazine.......... ................ 10 1,000
57-24-9..... Strychnine................. c 10 100/10,000
57-47-6..... Physostigmine.............. d 1 100/10,000
57-57-8..... Propiolactone, Beta-....... ................ 10 500
57-64-7..... Physostigmine, Salicylate d 1 100/10,000
(1:1).
57-74-9..... Chlordane.................. ................ 1 1,000
58-36-6..... Phenoxarsine, 10,10'-Oxydi- ................ 500 500/10,000
58-89-9..... Lindane.................... ................ 1 1,000/10,000
59-88-1..... Phenylhydrazine ................ 1,000 1,000/10,000
Hydrochloride.
60-34-4..... Methyl Hydrazine........... ................ 10 500
60-41-3..... Strychnine sulfate......... ................ 10 100/10,000
60-51-5..... Dimethoate................. ................ 10 500/10,000
62-38-4..... Phenylmercury Acetate...... ................ 100 500/10,000
62-53-3..... Aniline.................... l 5,000 1,000
62-73-7..... Dichlorvos................. ................ 10 1,000
62-74-8..... Sodium Fluoroacetate....... ................ 10 10/10,000
62-75-9..... Nitrosodimethylamine....... h 10 1,000
64-00-6..... Phenol, 3-(1-Methylethyl)-, d 1 500/10,000
Methylcarbamate.
64-86-8..... Colchicine................. h 10 10/10,000
65-30-5..... Nicotine sulfate........... ................ 100 100/10,000
66-81-9..... Cycloheximide.............. ................ 100 100/10,000
67-66-3..... Chloroform................. l 10 10,000
70-69-9..... Propiophenone, 4-Amino-.... g 100 100/10,000
71-63-6..... Digitoxin.................. c 100 100/10,000
72-20-8..... Endrin..................... ................ 1 500/10,000
74-83-9..... Methyl Bromide............. l 1,000 1,000
74-90-8..... Hydrocyanic Acid........... ................ 10 100
74-93-1..... Methyl Mercaptan........... l 100 500
75-15-0..... Carbon Disulfide........... l 100 10,000
75-21-8..... Ethylene Oxide............. l 10 1,000
75-44-5..... Phosgene................... l 10 10
75-55-8..... Propyleneimine............. ................ 1 10,000
75-56-9..... Propylene Oxide............ l 100 10,000
75-74-1..... Tetramethyllead............ c, l 100 100
75-77-4..... Trimethylchlorosilane...... ................ 1,000 1,000
75-78-5..... Dimethyldichlorosilane..... h 500 500
75-79-6..... Methyltrichlorosilane...... h 500 500
75-86-5..... Acetone Cyanohydrin........ ................ 10 1,000
76-02-8..... Trichloroacetyl Chloride... ................ 500 500
77-47-4..... Hexachlorocyclopentadiene.. h 10 100
77-78-1..... Dimethyl Sulfate........... ................ 100 500
77-81-6..... Tabun...................... c, h 10 10
78-00-2..... Tetraethyllead............. c 10 100
78-34-2..... Dioxathion................. ................ 500 500
78-53-5..... Amiton..................... ................ 500 500
78-71-7..... Oxetane, 3,3- ................ 500 500
Bis(Chloromethyl)-.
78-82-0..... Isobutyronitrile........... h 1,000 1,000
78-94-4..... Methyl Vinyl Ketone........ ................ 10 10
78-97-7..... Lactonitrile............... ................ 1,000 1,000
79-06-1..... Acrylamide................. l 5,000 1,000/10,000
79-11-8..... Chloroacetic Acid.......... ................ 100 100/10,000
79-19-6..... Thiosemicarbazide.......... ................ 100 100/10,000
79-21-0..... Peracetic Acid............. ................ 500 500
79-22-1..... Methyl Chloroformate....... h 1,000 500
80-63-7..... Methyl 2-Chloroacrylate.... ................ 500 500
81-81-2..... Warfarin................... ................ 100 500/10,000
82-66-6..... Diphacinone................ ................ 10 10/10,000
86-50-0..... Azinphos-Methyl............ ................ 1 10/10,000
86-88-4..... ANTU....................... ................ 100 500/10,000
88-05-1..... Aniline, 2,4,6-Trimethyl-.. ................ 500 500
88-85-7..... Dinoseb.................... ................ 1,000 100/10,000
[[Page 20486]]
91-08-7..... Toluene 2,6-Diisocyanate... ................ 100 100
95-48-7..... Cresol, o-................. ................ 100 1,000/10,000
98-05-5..... Benzenearsonic Acid........ ................ 10 10/10,000
98-07-7..... Benzotrichloride........... ................ 10 100
98-13-5..... Trichlorophenylsilane...... h 500 500
98-16-8..... Benzenamine, 3- ................ 500 500
(Trifluoromethyl)-.
98-87-3..... Benzal Chloride............ ................ 5,000 500
98-95-3..... Nitrobenzene............... l 1,000 10,000
99-98-9..... Dimethyl-p-Phenylenediamine ................ 10 10/10,000
100-14-1.... Benzene, 1-(Chloromethyl)-4- ................ 500 500/10,000
Nitro-.
100-44-7.... Benzyl Chloride............ ................ 100 500
102-36-3.... Isocyanic Acid, 3,4- ................ 500 500/10,000
Dichlorophenyl Ester.
103-85-5.... Phenylthiourea............. ................ 100 100/10,000
106-89-8.... Epichlorohydrin............ l 100 1,000
106-96-7.... Propargyl Bromide.......... ................ 10 10
107-02-8.... Acrolein................... ................ 1 500
107-07-3.... Chloroethanol.............. ................ 500 500
107-11-9.... Allylamine................. ................ 500 500
107-12-0.... Propionitrile.............. ................ 10 500
107-13-1.... Acrylonitrile.............. l 100 10,000
107-15-3.... Ethylenediamine............ ................ 5,000 10,000
107-16-4.... Formaldehyde Cyanohydrin... h 1,000 1,000
107-18-6.... Allyl Alcohol.............. ................ 100 1,000
107-30-2.... Chloromethyl Methyl Ether.. c 10 100
107-44-8.... Sarin...................... h 10 10
107-49-3.... TEPP....................... ................ 10 100
108-05-4.... Vinyl Acetate Monomer...... l 5,000 1,000
108-23-6.... Isopropyl Chloroformate.... ................ 1,000 1,000
108-91-8.... Cyclohexylamine............ l 10,000 10,000
108-95-2.... Phenol..................... ................ 1,000 500/10,000
108-98-5.... Thiophenol................. ................ 100 500
109-61-5.... Propyl Chloroformate....... ................ 500 500
109-77-3.... Malononitrile.............. ................ 1,000 500/10,000
110-00-9.... Furan...................... ................ 100 500
110-57-6.... Trans-1,4-Dichlorobutene... ................ 500 500
110-89-4.... Piperidine................. ................ 1,000 1,000
111-44-4.... Dichloroethyl Ether........ ................ 10 10,000
111-69-3.... Adiponitrile............... l 1,000 1,000
115-21-9.... Trichloroethylsilane....... h 500 500
115-26-4.... Dimefox.................... ................ 500 500
115-29-7.... Endosulfan................. ................ 1 10/10,000
115-90-2.... Fensulfothion.............. h 500 500
116-06-3.... Aldicarb................... c 1 100/10,000
119-38-0.... Isopropylmethylpyrazolyl d 1 500
Dimethylcarbamate.
123-31-9.... Hydroquinone............... l 100 500/10,000
123-73-9.... Crotonaldehyde, (E)-....... ................ 100 1,000
124-65-2.... Sodium Cacodylate.......... ................ 100 100/10,000
124-87-8.... Picrotoxin................. ................ 500 500/10,000
126-98-7.... Methacrylonitrile.......... h 1,000 500
129-00-0.... Pyrene..................... c 5,000 1,000/10,000
129-06-6.... Warfarin Sodium............ h 100 100/10,000
140-29-4.... Benzyl Cyanide............. h 500 500
140-76-1.... Pyridine, 2-Methyl-5-Vinyl- ................ 500 500
141-66-2.... Dicrotophos................ ................ 100 100
143-33-9.... Sodium Cyanide (Na(CN)).... b 10 100
144-49-0.... Fluoroacetic Acid.......... ................ 10 10/10,000
149-74-6.... Dichloromethylphenylsilane. ................ 1,000 1,000
151-38-2.... Methoxyethylmercuric ................ 500 500/10,000
Acetate.
151-50-8.... Potassium Cyanide.......... b 10 100
151-56-4.... Ethyleneimine.............. ................ 1 500
152-16-9.... Diphosphoramide, Octamethyl- ................ 100 100
.
297-78-9.... Isobenzan.................. ................ 100 100/10,000
297-97-2.... Thionazin.................. ................ 100 500
298-00-0.... Parathion-Methyl........... c 100 100/10,000
298-02-2.... Phorate.................... ................ 10 10
298-04-4.... Disulfoton................. ................ 1 500
300-62-9.... Amphetamine................ ................ 1,000 1,000
302-01-2.... Hydrazine.................. ................ 1 1,000
[[Page 20487]]
309-00-2.... Aldrin..................... ................ 1 500/10,000
315-18-4.... Mexacarbate................ ................ 1,000 500/10,000
316-42-7.... Emetine, Dihydrochloride... h 1 1/10,000
327-98-0.... Trichloronate.............. k 500 500
353-42-4.... Boron Trifluoride Compound ................ 1,000 1,000
With Methyl Ether (1:1).
359-06-8.... Fluoroacetyl Chloride...... c 10 10
371-62-0.... Ethylene Fluorohydrin...... c, h 10 10
379-79-3.... Ergotamine Tartrate........ ................ 500 500/10,000
465-73-6.... Isodrin.................... ................ 1 100/10,000
470-90-6.... Chlorfenvinfos............. ................ 500 500
502-39-6.... Methylmercuric Dicyanamide. ................ 500 500/10,000
504-24-5.... Pyridine, 4-Amino-......... h 1,000 500/10,000
505-60-2.... Mustard Gas................ h 500 500
506-61-6.... Potassium Silver Cyanide... b 1 500
506-68-3.... Cyanogen Bromide........... ................ 1,000 500/10,000
506-78-5.... Cyanogen Iodide............ ................ 1,000 1,000/10,000
509-14-8.... Tetranitromethane.......... ................ 10 500
514-73-8.... Dithiazanine Iodide........ ................ 500 500/10,000
534-07-6.... Bis(Chloromethyl) Ketone... ................ 10 10/10,000
534-52-1.... Dinitrocresol.............. ................ 10 10/10,000
535-89-7.... Crimidine.................. ................ 100 100/10,000
538-07-8.... Ethylbis(2- h 500 500
Chloroethyl)Amine.
541-25-3.... Lewisite................... c, h 10 10
541-53-7.... Dithiobiuret............... ................ 100 100/10,000
542-76-7.... Propionitrile, 3-Chloro-... ................ 1,000 1,000
542-88-1.... Chloromethyl Ether......... h 10 100
542-90-5.... Ethylthiocyanate........... ................ 10,000 10,000
555-77-1.... Tris(2-Chloroethyl)Amine... h 100 100
556-61-6.... Methyl Isothiocyanate...... b 500 500
556-64-9.... Methyl Thiocyanate......... ................ 10,000 10,000
558-25-8.... Methanesulfonyl Fluoride... ................ 1,000 1,000
563-12-2.... Ethion..................... ................ 10 1,000
563-41-7.... Semicarbazide Hydrochloride ................ 1,000 1,000/10,000
584-84-9.... Toluene 2,4-Diisocyanate... ................ 100 500
594-42-3.... Perchloromethylmercaptan... ................ 100 500
597-64-8.... Tetraethyltin.............. c 100 100
614-78-8.... Thiourea, (2-Methylphenyl)- ................ 500 500/10,000
624-83-9.... Methyl Isocyanate.......... ................ 10 500
627-11-2.... Chloroethyl Chloroformate.. ................ 1,000 1,000
630-60-4.... Ouabain.................... c 100 100/10,000
639-58-7.... Triphenyltin Chloride...... ................ 500 500/10,000
640-19-7.... Fluoroacetamide............ j 100 100/10,000
644-64-4.... Dimetilan.................. d 1 500/10,000
675-14-9.... Cyanuric Fluoride.......... ................ 100 100
676-97-1.... Methyl Phosphonic b 100 100
Dichloride.
696-28-6.... Phenyl Dichloroarsine...... h 1 500
732-11-6.... Phosmet.................... ................ 10 10/10,000
760-93-0.... Methacrylic Anhydride...... ................ 500 500
786-19-6.... Carbophenothion............ ................ 500 500
814-49-3.... Diethyl Chlorophosphate.... h 500 500
814-68-6.... Acrylyl Chloride........... h 100 100
824-11-3.... Trimethylolpropane h 100 100/10,000
Phosphite.
900-95-8.... Stannane, Acetoxytriphenyl- g 500 500/10,000
919-86-8.... Demeton-S-Methyl........... ................ 500 500
920-46-7.... Methacryloyl Chloride...... ................ 100 100
944-22-9.... Fonofos.................... ................ 500 500
947-02-4.... Phosfolan.................. ................ 100 100/10,000
950-10-7.... Mephosfolan................ ................ 500 500
950-37-8.... Methidathion............... ................ 500 500/10,000
991-42-4.... Norbormide................. ................ 100 100/10,000
998-30-1.... Triethoxysilane............ ................ 500 500
999-81-5.... Chlormequat Chloride....... h 100 100/10,000
1031-47-6... Triamiphos................. ................ 500 500/10,000
1066-45-1... Trimethyltin Chloride...... ................ 500 500/10,000
1122-60-7... Nitrocyclohexane........... ................ 500 500
1124-33-0... Pyridine, 4-Nitro-,1-Oxide. ................ 500 500/10,000
1129-41-5... Metolcarb.................. d 1 100/10,000
1303-28-2... Arsenic Pentoxide.......... ................ 1 100/10,000
[[Page 20488]]
1306-19-0... Cadmium Oxide.............. ................ 100 100/10,000
1314-62-1... Vanadium Pentoxide......... ................ 1,000 100/10,000
1314-84-7... Zinc Phosphide............. b 100 500
1327-53-3... Arsenous Oxide............. h 1 100/10,000
1397-94-0... Antimycin A................ c 1,000 1,000/10,000
1420-07-1... Dinoterb................... ................ 500 500/10,000
1464-53-5... Diepoxybutane.............. ................ 10 500
1558-25-4... Trichloro(Chloromethyl)Sila ................ 100 100
ne.
1563-66-2... Carbofuran................. ................ 10 10/10,000
1600-27-7... Mercuric Acetate........... ................ 500 500/10,000
1622-32-8... Ethanesulfonyl Chloride, 2- ................ 500 500
Chloro-.
1752-30-3... Acetone Thiosemicarbazide.. ................ 1,000 1,000/10,000
1910-42-5... Paraquat Dichloride........ ................ 10 10/10,000
1982-47-4... Chloroxuron................ ................ 500 500/10,000
2001-95-8... Valinomycin................ c 1,000 1,000/10,000
2032-65-7... Methiocarb................. ................ 10 500/10,000
2074-50-2... Paraquat Methosulfate...... ................ 10 10/10,000
2097-19-0... Phenylsilatrane............ h 100 100/10,000
2104-64-5... EPN........................ ................ 100 100/10,000
2223-93-0... Cadmium Stearate........... c 1,000 1,000/10,000
2231-57-4... Thiocarbazide.............. ................ 1,000 1,000/10,000
2238-07-5... Diglycidyl Ether........... ................ 1,000 1,000
2275-18-5... Prothoate.................. ................ 100 100/10,000
2497-07-6... Oxydisulfoton.............. h 500 500
2524-03-0... Dimethyl ................ 500 500
Phosphorochloridothioate.
2540-82-1... Formothion................. ................ 100 100
2570-26-5... Pentadecylamine............ ................ 100 100/10,000
2587-90-8... Phosphorothioic Acid, O,O- c, g 500 500
Dimethyl-S-(2-Methylthio)
Ethyl Ester.
2631-37-0... Promecarb.................. d, h 1 500/10,000
2636-26-2... Cyanophos.................. ................ 1,000 1,000
2642-71-9... Azinphos-Ethyl............. ................ 100 100/10,000
2665-30-7... Phosphonothioic Acid, ................ 500 500
Methyl-, O-(4-Nitrophenyl)
O-Phenyl Ester.
2703-13-1... Phosphonothioic Acid, ................ 500 500
Methyl-, O-Ethyl O-(4-
(Methylthio)Phenyl) Ester.
2757-18-8... Thallous Malonate.......... c, h 100 100/10,000
2763-96-4... Muscimol................... ................ 1,000 500/10,000
2778-04-3... Endothion.................. ................ 500 500/10,000
3037-72-7... Silane, (4- ................ 1,000 1,000
Aminobutyl)Diethoxymethyl-.
3254-63-5... Phosphoric Acid, Dimethyl 4- ................ 500 500
(Methylthio)Phenyl Ester.
3569-57-1... Sulfoxide, 3-Chloropropyl ................ 500 500
Octyl.
3615-21-2... Benzimidazole, 4,5-Dichloro- g 500 500/10,000
2-(Trifluoromethyl)-.
3689-24-5... Sulfotep................... ................ 100 500
3691-35-8... Chlorophacinone............ ................ 100 100/10,000
3734-97-2... Amiton Oxalate............. ................ 100 100/10,000
3735-23-7... Methyl Phenkapton.......... ................ 500 500
3878-19-1... Fuberidazole............... ................ 100 100/10,000
4044-65-9... Bitoscanate................ ................ 500 500/10,000
4098-71-9... Isophorone Diisocyanate.... ................ 100 100
4104-14-7... Phosacetim................. ................ 100 100/10,000
4170-30-3... Crotonaldehyde............. ................ 100 1,000
4301-50-2... Fluenetil.................. ................ 100 100/10,000
4418-66-0... Phenol, 2,2'-Thiobis(4- ................ 100 100/10,000
Chloro-6-Methyl)-.
4835-11-4... Hexamethylenediamine, N,N'- ................ 500 500
Dibutyl-.
5344-82-1... Thiourea, (2-Chlorophenyl)- ................ 100 100/10,000
5836-29-3... Coumatetralyl.............. ................ 500 500/10,000
6533-73-9... Thallous Carbonate......... c, h 100 100/10,000
6923-22-4... Monocrotophos.............. ................ 10 10/10,000
7446-09-5... Sulfur Dioxide............. l 500 500
7446-11-9... Sulfur Trioxide............ b 100 100
7446-18-6... Thallous Sulfate........... ................ 100 100/10,000
7487-94-7... Mercuric Chloride.......... ................ 500 500/10,000
7550-45-0... Titanium Tetrachloride..... ................ 1,000 100
7580-67-8... Lithium Hydride............ b 100 100
7631-89-2... Sodium Arsenate............ ................ 1 1,000/10,000
7637-07-2... Boron Trifluoride.......... ................ 500 500
7647-01-0... Hydrogen Chloride (gas l 5,000 500
only).
7664-39-3... Hydrogen Fluoride.......... ................ 100 100
7664-41-7... Ammonia.................... l 100 500
7664-93-9... Sulfuric Acid.............. ................ 1,000 1,000
[[Page 20489]]
7697-37-2... Nitric Acid................ ................ 1,000 1,000
7719-12-2... Phosphorus Trichloride..... ................ 1,000 1,000
7722-84-1... Hydrogen Peroxide (Conc > l 1,000 1,000
52%).
7723-14-0... Phosphorus................. b, h 1 100
7726-95-6... Bromine.................... l 500 500
7778-44-1... Calcium Arsenate........... ................ 1 500/10,000
7782-41-4... Fluorine................... k 10 500
7782-50-5... Chlorine................... ................ 10 100
7783-00-8... Selenious Acid............. ................ 10 1,000/10,000
7783-06-4... Hydrogen Sulfide........... l 100 500
7783-07-5... Hydrogen Selenide.......... ................ 10 10
7783-60-0... Sulfur Tetrafluoride....... ................ 100 100
7783-70-2... Antimony Pentafluoride..... ................ 500 500
7783-80-4... Tellurium Hexafluoride..... k 100 100
7784-34-1... Arsenous Trichloride....... ................ 1 500
7784-42-1... Arsine..................... ................ 100 100
7784-46-5... Sodium Arsenite............ ................ 1 500/10,000
7786-34-7... Mevinphos.................. ................ 10 500
7791-12-0... Thallous Chloride.......... c, h 100 100/10,000
7791-23-3... Selenium Oxychloride....... ................ 500 500
7803-51-2... Phosphine.................. ................ 100 500
8001-35-2... Camphechlor................ ................ 1 500/10,000
8065-48-3... Demeton.................... ................ 500 500
10025-73-7.. Chromic Chloride........... ................ 1 1/10,000
10025-87-3.. Phosphorus Oxychloride..... ................ 1,000 500
10026-13-8.. Phosphorus Pentachloride... b 500 500
10028-15-6.. Ozone...................... ................ 100 100
10031-59-1.. Thallium Sulfate........... h 100 100/10,000
10102-18-8.. Sodium Selenite............ h 100 100/10,000
10102-20-2.. Sodium Tellurite........... ................ 500 500/10,000
10102-43-9.. Nitric Oxide............... c 10 100
10102-44-0.. Nitrogen Dioxide........... ................ 10 100
10124-50-2.. Potassium Arsenite......... ................ 1 500/10,000
10140-87-1.. Ethanol, 1,2-Dichloro-, ................ 1,000 1,000
Acetate.
10210-68-1.. Cobalt Carbonyl............ h 10 10/10,000
10265-92-6.. Methamidophos.............. ................ 100 100/10,000
10294-34-5.. Boron Trichloride.......... ................ 500 500
10311-84-9.. Dialifor................... ................ 100 100/10,000
10476-95-6.. Methacrolein Diacetate..... ................ 1,000 1,000
12002-03-8.. Paris Green................ ................ 1 500/10,000
12108-13-3.. Manganese, Tricarbonyl h 100 100
Methylcyclopentadienyl.
13071-79-9.. Terbufosh.................. h 100 100
13171-21-6.. Phosphamidon............... ................ 100 100
13194-48-4.. Ethoprophos................ ................ 1,000 1,000
13410-01-0.. Sodium Selenate............ ................ 100 100/10,000
13450-90-3.. Gallium Trichloride........ ................ 500 500/10,000
13463-39-3.. Nickel Carbonyl............ ................ 10 1
13463-40-6.. Iron, Pentacarbonyl-....... ................ 100 100
14167-18-1.. Salcomine.................. ................ 500 500/10,000
15271-41-7.. Bicyclo[2.2.1]Heptane-2- ................ 500 500/10,000
Carbonitrile, 5-Chloro-6-
((((Methylamino)Carbonyl)O
xy)Imino)-, (1s-(1-alpha,2-
beta,4-alpha,5-alpha,6E))-.
16752-77-5.. Methomyl................... h 100 500/10,000
17702-41-9.. Decaborane(14)............. ................ 500 500/10,000
17702-57-7.. Formparanated.............. d 1 100/10,000
19287-45-7.. Diborane................... ................ 100 100
19624-22-7.. Pentaborane................ ................ 500 500
20830-75-5.. Digoxin.................... h 10 10/10,000
20859-73-8.. Aluminum Phosphide......... b 100 500
21548-32-3.. Fosthietan................. ................ 500 500
21609-90-5.. Leptophos.................. ................ 500 500/10,000
21908-53-2.. Mercuric Oxide............. ................ 500 500/10,000
21923-23-9.. Chlorthiophos.............. h 500 500
22224-92-6.. Fenamiphos................. ................ 10 10/10,000
23135-22-0.. Oxamyl..................... d 1 100/10,000
23422-53-9.. Formetanate Hydrochloride.. d, h 1 500/10,000
23505-41-1.. Pirimifos-Ethyl............ ................ 1,000 1,000
24017-47-8.. Triazofos.................. ................ 500 500
24934-91-6.. Chlormephos................ ................ 500 500
[[Page 20490]]
26419-73-8.. Carbamic Acid, Methyl-, O- d 1 100/10,000
(((2,4-Dimethyl-1, 3-
Dithiolan-2-
yl)Methylene)Amino)-.
26628-22-8.. Sodium Azide (Na(N3))...... b 1,000 500
27137-85-5.. Trichloro(Dichlorophenyl)Si ................ 500 500
lane.
28347-13-9.. Xylylene Dichloride........ ................ 100 100/10,000
28772-56-7.. Bromadiolone............... ................ 100 100/10,000
30674-80-7.. Methacryloyloxyethyl ................ 100 100
Isocyanateh.
39196-18-4.. Thiofanox.................. ................ 100 100/10,000
50782-69-9.. Phosphonothioic Acid, ................ 100 100
Methyl-, S-(2-(Bis(1-
Methylethyl)Amino)Ethyl) O-
Ethyl Ester.
53558-25-1.. Pyriminil.................. h 100 100/10,000
58270-08-9.. Zinc, Dichloro(4,4-Dimethyl- ................ 100 100/10,000
5((((Methylamino)
Carbonyl)Oxy)Imino)Pentane
nitrile)-, (T-4)-.
62207-76-5.. Cobalt, ((2,2'-(1,2- ................ 100 100/10,000
Ethanediylbis
(Nitrilomethylidyne))
Bis(6-Fluorophenolato)) (2-
)-N,N',O,O')-.
----------------------------------------------------------------------------------------------------------------
*Only the statutory or final RQ is shown. For more information, see 40 CFR Table 302.4.
Notes:
a. This chemical does not meet acute toxicity criteria. Its TPQ is set at 10,000 pounds.
b. This material is a reactive solid. The TPQ does not default to 10,000 pounds for non-powder, non-molten, non-
solution form.
c. The calculated TPQ changed after technical review as described in the technical support document.
d. Indicates that the RQ is subject to change when the assessment of potential carcinogenicity and/or other
toxicity is completed.
e. Statutory reportable quantity for purposes of notification under SARA sect 304(a)(2).
f. [Reserved]
g. New chemicals added that were not part of the original list of 402 substances.
h. Revised TPQ based on new or re-evaluated toxicity data.
j. TPQ is revised to its calculated value and does not change due to technical review as in proposed rule.
k. The TPQ was revised after proposal due to calculation error.
l. Chemicals on the original list that do not meet toxicity criteria but because of their high production volume
and recognized toxicity are considered chemicals of concern (``Other chemicals'').
[FR Doc. 96-11209 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11204 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, Santa Barbara County Air Pollution Control District
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20453-20455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11204]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 095-0008a; FRL-5464-2]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, Santa Barbara County Air Pollution
Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct final action on a revision to the
California State Implementation Plan (SIP). The revision concerns a new
rule from the Santa Barbara County Air Pollution Control District
(SBCAPCD). This approval action will incorporate this rule into the
federally approved SIP. The intended effect of approving this rule is
to regulate emissions of oxides of nitrogen (NOX), oxides of
sulfur (SOX), and volatile organic compounds (VOCs). This rule
controls NOX, SOX, and VOC emissions from flare and thermal
oxidizer stacks at oil and gas production industries. Thus, EPA is
finalizing the approval of this rule into the California SIP under
provisions of the Federal Clean Air Act, as amended in 1990 (CAA or the
Act) regarding EPA action on SIP submittals.
DATES: This action is effective on July 8, 1996 unless adverse or
critical comments are received by June 6, 1996. If the effective date
is delayed, a timely notice will be published in the Federal Register.
ADDRESSES: Copies of the rule and EPA's evaluation report for the rule
are available for public inspection at EPA's Region IX office during
normal business hours. Copies of the submitted rule are available for
inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street,
S.W., Washington, D.C. 20460
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814
Santa Barbara County Air Pollution Control District, 26 Casitilian
Drive, B-23, Goleta, CA 93117
FOR FURTHER INFORMATION CONTACT: Christine Vineyard, Rulemaking Section
(A-5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105, Telephone:
(415) 744-1197.
SUPPLEMENTARY INFORMATION:
Applicability
The rule being approved into the California SIP is SBCAPCD Rule
359, Flares and Thermal Oxidizers. This rule was submitted by the
California Air Resources Board (CARB) to EPA on July 13, 1994.
Background
Rule 359 was originally adopted as part of SBCAPCD's 1991 Air
Quality Attainment Plan in response to the California Clean Air Act and
is not required by any specific provision of the CAA. However, SBCAPCD
Rule 359 is consistent with the goals of the CAA and EPA policy. In
addition, Rule 359 furthers the goals of the Act by strengthening the
SIP. Section 110(a) of the CAA contains general requirements for states
to submit enforceable emissions limitations and other control measures
as may be necessary or appropriate to achieve the goals of the Act.
Rule 359 meets these requirements by controlling NOX, SOX,
and VOC emissions from flare and thermal oxidizer stacks at oil and gas
production facilities.
The State of California submitted many rules for incorporation into
its SIP on July 13, 1994, including the rule being acted on in this
notice. This notice addresses EPA's direct-final action for SBCAPCD
Rule 359, Flares
[[Page 20454]]
and Thermal Oxidizers. Santa Barbara County adopted Rule 359 on June
28, 1994. This submitted rule was found to be complete on September 12,
1994 pursuant to EPA's completeness criteria that are set forth in 40
CFR part 51, appendix V 1 and is being finalized for approval into
the SIP.
---------------------------------------------------------------------------
\1\ EPA adopted the completeness criteria on February 16, 1990
(55 FR 5830) and, pursuant to section 110(k)(1)(A) of the CAA,
revised the criteria on August 26, 1991 (56 FR 42216).
---------------------------------------------------------------------------
The following is EPA's evaluation and final action for this rule.
EPA Evaluation and Action
In determining the approvability of this rule, EPA must evaluate
the rule for consistency with the requirements of the CAA and with EPA
policy.
SBCAPCD's submitted Rule 359, Flares and Thermal Oxidizers includes
the following requirements:
Fuel sulfur content limits
The use of technology-based standards
A flare minimization plan for all planned flaring
activities
Emergency events documentation
Proposes pollutant emission limits for continuous, planned
flaring at thermal oxidizers and enclosed ground flares
Source testing
Requires monitoring, recordkeeping, and reporting
For a detailed evaluation of SBCAPCD Rule 359, please refer to the
technical support document (TSD) dated March 20, 1996.
EPA has evaluated the submitted rule and has determined that it is
consistent with the goals of the Act, the requirements of 110(a), and
EPA policy. Therefore, SBCAPCD Rule 359, Flares and Thermal Oxidizers
is being approved into the federally approved SIP because of its
beneficial effect on the air quality in the Santa Barbara County area
and its strengthening of the SIP.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future 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.
EPA is publishing this notice without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective July 8, 1996, unless, by June 6, 1996, adverse or critical
comments are received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will 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 July 8, 1996.
Regulatory Process
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 do not create any new requirements,
but simply approve requirements that the State is already imposing.
Therefore, because the Federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
Federal-state relationship under the CAA, preparation of a regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of state action. The CAA forbids EPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (S. Ct. 1976); 42 U.S.C. 7410 (a)(2).
Unfunded Mandates
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 undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
These rules may bind State, local, and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. The rule being approved by this action will impose no
new requirements because affected sources are already subject to this
regulation under State law. Therefore, no additional costs to State,
local, or tribal governments or to the private sector result from this
action. EPA has also determined that this final action does not include
a mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
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 Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Note: Incorporation by reference of the State Implementation
Plan for the State of California was approved by the Director of the
Federal Register on July 1, 1982.
Dated: April 18, 1996.
Felicia Marcus,
Regional Administrator.
Subpart F of 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 F--California
2. Section 52.220 is amended by adding paragraph (c)(198)(i)(K)(2)
to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
(198) * * *
(i) * * *
(K) * * *
[[Page 20455]]
(2) Rule 359, adopted on June 28, 1994.
* * * * *
[FR Doc. 96-11204 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11202 Approval and Promulgation of Implementation Plan; Illinois
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20455-20457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11202]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL18-7-7024a; FRL-5436-1]
Approval and Promulgation of Implementation Plan; Illinois
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: On October 21, 1993, the Illinois Environmental Protection
(IEPA) submitted to USEPA volatile organic compound (VOC) rules that
were intended to satisfy part of the requirements of section 182(b)(2)
of the Clean Air Act (Act) amendments of 1990. Rules submitted at that
time include control requirements for certain major sources in the East
St. Louis nonattainment area not covered by a Control Technique
Guideline (CTG) document. These major non-CTG VOC rules apply to
sources which emit (at maximum capacity) 100 tons of VOC per year.
These rules provide an environmental benefit due to the imposition of
additional control requirements. This rulemaking action approves, in
final, Illinois' rules for major non-CTG sources in the East St. Louis
nonattainment area. The rationale for the conditional 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 of and soliciting public comment on this requested
revision to the Illinois State Implementation Plan (SIP). If adverse
comments are received on this direct final rule, 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 July 8, 1996 unless adverse
comments are received by June 6, 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 reasonably available control technology (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 the area's SIP-approved attainment date
established which RACT rules the area needed to adopt and implement.
Those areas (including the East St. Louis area) that sought an
extension of the attainment date under section 172(a)(2) to as late as
December 31, 1987, were required to adopt RACT for all CTG sources and
for all major (100 tons per year or more of VOC emissions) non-CTG
sources.
Section 182(b)(2) of the Act as amended in 1990 (amended Act)
requires States to adopt reasonably available control technology (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) RACT for
all major sources not covered by a CTG. These section 182(b)(2) RACT
requirements are referred to as the RACT ``catch-up'' requirements.
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, 1995. Illinois has
submitted a rule, covering these SOCMI sources, which will be the
subject of a separate rulemaking action.
The USEPA developed 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 either 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. Most of these 11 categories are covered by Illinois'
``generic'' major non-CTG rules that are the subject of this document.
On October 21, 1993, IEPA submitted VOC rules for the East St.
Louis ozone moderate nonattainment area \1\ and a revision to these
major non-CTG control requirements was submitted to USEPA on May 26,
1995. Most of those rules, including those which deal with source
categories covered by CTGs, (and the related test methods, definitions
and recordkeeping requirements) were approved by USEPA on September 9,
1994 (59 FR 46562). This document deals with those major non-CTG rules
for the East St. Louis area which are intended to largely satisfy the
major non-CTG control requirements of sections 182(a)(2)(A) and
182(b)(2). However, this October 21, 1993, submittal exempts bakeries
and sewage treatment plants from these major non-CTG regulations. Major
non-CTG regulations are, therefore, required for any major bakeries and
industrial wastewater treatment plants in the East St. Louis area.
---------------------------------------------------------------------------
\1\ The East St. Louis moderate ozone nonattainment area
consists of Madison, Monroe, and St. Clair counties.
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[[Page 20456]]
Evaluation of Rules
Subparts PP, QQ, RR and TT in Part 219 consist of ``generic'' major
non-CTG rules for sources, in the East St. Louis ozone nonattainment
area, not specifically covered by another rule. Compliance with these
rules was required by May 15, 1992. These rules are generally
consistent with the Chicago Federal Implementation Plan that was
promulgated by USEPA on June 29, 1990 (55 FR 26818) and codified at 40
CFR Sec. 52.741, and/or USEPA RACT guidance. The discussion below
clarifies certain aspects of these non-CTG rules, including parts of
these rules that differ from previously approved ``generic'' non-CTG
VOC rules.
Sections 926, 946, 966, and 986 specify the control requirements
for the rules. Subsection (a) of each of these Sections requires an
overall 81 percent reduction from each emission unit. An (Illinois
Pollution Control) Board Note has been added to each subsection to
clarify what is intended by the term ``emission unit.'' A further
clarification of the Board Note has been provided in a June 16, 1993,
letter from Dennis Lawler, IEPA.
Subparts PP, QQ, RR and TT do not apply to sources that are not
major (that is, emit less than 100 tons VOC per year at maximum
capacity) and exempt emission units with less than 1 ton VOC per year
or 2.5 tons VOC per year (depending upon the subpart) if the total
emissions from such emission units do not exceed 5 tons VOC per year.
Subpart UU contains the recordkeeping and reporting requirements for
the non-CTG requirements in Subparts PP, QQ, RR, and TT and Section
219.990 (in Subpart UU) contains the recordkeeping and reporting
requirements for exempt emission units. Although Section 219.990 refers
to emission units which are exempt, it should be noted that the owner
or operator of an emission unit which is exempt because the source is
not major would need to submit records for the entire source to
demonstrate that maximum theoretical emissions from all non-CTG and
unregulated CTG operations are below the applicable cutoff. In those
cases where one or more (but not all) emission units are exempt (as in
219.920(c), 219.940(c), 219.960(c), and 219.980(c)), records must be
submitted documenting that each such emission unit is exempt.
Illinois' major non-CTG VOC rules in Subparts PP, QQ, RR, and TT
require applicable sources to comply with one of the following: (1)
Emission capture and control techniques which achieve an overall
reduction in uncontrolled VOC emissions of at least 81 percent from
each emission unit, or (2) For coating lines, the daily-weighted
average VOC content shall not exceed 3.5 pounds (lbs) VOC per gallon
(gal) of coating, or (3) an equivalent alternative control plan which
has been approved by the Agency and the 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 regarding Federal enforceability. 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 notice will be considered federally enforceable. This
notice 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. Part 70
contains regulations, required by Title V of the Act, that 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 the option for alternative
control plans, submitted on October 21, 1993 (with a revision submitted
on May 26, 1995), in subsections 219.926(c), 219.946(b), 219.966(b),
and 219.986(c), 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 would be compared, has federally enforceable control requirements,
test methods, and recordkeeping and reporting requirements. In
addition, a September 13, 1995, letter from IEPA contains the specific
procedures for USEPA review and approval.
Subsections 219.620(a)(1)(B), 219.920(a)(2), 219.940(a)(2),
219.960(a)(2), and 219.980(a)(2) allow sources to avoid the
applicability of specified major non-CTG rules, provided a source has a
federally enforceable permit that limits emissions to below the
applicable cutoff through capacity or production limitations. These
subsections are approvable because USEPA can deem a permit to be ``not
federally enforceable'' in a letter to IEPA. Upon issuance of such a
letter, the source is no longer protected by the permit referenced in
the subject subsections. The source would then be subject to the SIP
requirements if its emissions exceed the applicable cutoff. This is
consistent with USEPA's December 17, 1992, approval of Illinois'
operating permit program which states: ``In approving the State
operating program USEPA is determining that Illinois' program allows
USEPA to deem an operating permit not `federally enforceable' for
purposes of limiting potential to emit and to offset creditability.''
(57 FR 59928, 59930). IEPA has agreed to this approach and specified
the applicable procedures in a March 26, 1993, letter to USEPA. In
summary, these subsections are approvable because USEPA can invalidate
the protection provided by an operating permit by deeming such
operating permit to be ``not federally enforceable'' in a letter to
IEPA.
Final Rulemaking Action
For the reasons discussed above, USEPA approves the major non-CTG
VOC RACT rules in Part 219 (for the East St. Louis ozone nonattainment
area) that were submitted on October 21, 1993 and May 26, 1995.
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. The action will become
effective on July 8, 1996. However, if we receive adverse comments by
June 6, 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
[[Page 20457]]
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 by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, former Acting Assistant
Administrator for the Office of Air and Radiation. A July 10, 1995,
memorandum from Mary D. Nichols, Assistant Administrator for the Office
of Air and Radiation explains that the authority to approve/disapprove
SIPs has been delegated to the Regional Administrators for Table 3
actions. 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.
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 USEPA 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 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 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 8, 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: February 7, 1996.
David A. Ullrich,
Acting 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)(127) to read
as follows:
Sec. 52.720 Identification of plan.
* * * * *
(c) * * *
(127) On October 21, 1993, and May 26, 1995, Illinois submitted
volatile organic compound control regulations for incorporation in the
Illinois State Implementation Plan for ozone.
(i) Incorporation by reference.
(A) Illinois Administrative Code Title 35: Environmental
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control
Board, Subchapter c: Emissions Standards and Limitations for Stationary
Sources, Part 219: Organic Material Emissions Standards and Limitations
for Metro East Area, Subpart PP: 219.920, 219.923, 219.927, 219.928;
Subpart QQ: 219.940, 219.943, 219.947, 219.948; Subpart RR: 219.960,
219.963, 219.967, 219.968; Subpart TT: 219.980, 219.983, 219.987,
219.988; and Subpart UU. These Subparts were adopted on September 9,
1993, Amended at 17 Ill. Reg. 16918, effective September 27, 1993.
(B) Illinois Administrative Code Title 35: Environmental
Protection, Subtitle B: Air Pollution, Chapter I: Pollution Control
Board, Subchapter c: Emissions Standards and Limitations for Stationary
Sources, Part 219: Organic Material Emissions Standards and Limitations
for Metro East Area, Subpart PP: 219.926; Subpart QQ: 219.946; Subpart
RR: 219.966; and Subpart TT: 219.986. These Subparts were adopted on
April 20, 1995, Amended at 19 Ill. Reg. 6958, effective May 9, 1995.
[FR Doc. 96-11202 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11133 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20457-20473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11133]
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[[Page 20458]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH92-1 & OH79-3; FRL-5458-8]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
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SUMMARY: The USEPA is determining that the Cleveland-Akron-Lorain (CAL)
ozone nonattainment area (which includes the Counties of Ashtabula,
Cuyahoga, Geauga, Lake, Lorain, Medina, Portage and Summit) has
attained the public health-based National Ambient Air Quality Standard
(NAAQS) for ozone. This determination is based upon three years of
complete, quality-assured, ambient air monitoring data for the 1993 to
1995 ozone seasons that demonstrate that the ozone NAAQS has been
attained in each of these areas. On the basis of this determination,
USEPA is also determining that certain reasonable-further-progress
(RFP) and attainment demonstration requirements, along with certain
other related requirements, of Part D of Title 1 of the Clean Air Act
(CAA) are not applicable to the Cleveland-Akron-Lorain area.
In another part of this rulemaking, the USEPA is approving the Ohio
Environmental Protection Agency (OEPA) request to revise the official
designation of the Cleveland-Akron-Lorain (CAL) area as an area that is
meeting the ozone air quality standard. The USEPA is also approving the
CAL area maintenance plan as a revision to Ohio's State Implementation
Plan (SIP) for ozone. The purpose of the maintenance plan is to provide
for continued good ozone air quality levels in the area over the next
10 years.
EFFECTIVE DATE: This final rule is effective on May 7, 1996.
ADDRESSES: Copies of the determination of attainment, redesignation
requests, public comments on the rulemaking, and other materials
relating to this rulemaking are available for inspection at the
following address: (It is recommended that you telephone William Jones
at (312) 886-6058, before visiting the Region 5 Office.) United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604.
FOR FURTHER INFORMATION ON THIS ACTION CONTACT: William Jones, Air
Programs Branch, Regulation Development Section (AR-18J), United States
Environmental Protection Agency, Region 5, Chicago, Illinois 60604,
(312) 886-6058.
SUPPLEMENTARY INFORMATION:
Determination of Attainment
I. Background
Subpart 2 of Part D of Title I of the CAA contains various air
quality planning and state implementation plan (SIP) submission
requirements for ozone nonattainment areas. The USEPA believes it is
reasonable to interpret provisions regarding RFP and attainment
demonstrations, along with certain other related provisions, so as not
to require SIP submissions if an ozone nonattainment area subject to
those requirements is monitoring attainment of the ozone standard
(i.e., attainment of the NAAQS demonstrated with three consecutive
years of complete, quality-assured, air quality monitoring data). As
described below, USEPA has previously interpreted the general
provisions of subpart 1 of part D of Title I (sections 171 and 172) so
as not to require the submission of SIP revisions concerning RFP,
attainment demonstrations, or contingency measures. As explained in a
memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard,'' dated May
10, 1995, USEPA believes it is appropriate to interpret the more
specific RFP, attainment demonstration and related provisions of
subpart 2 in the same manner.
First, with respect to RFP, section 171(1) of the CAA states that,
for purposes of part D of Title I, RFP ``means such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by the Administrator for the
purpose of ensuring attainment of the applicable NAAQS by the
applicable date.'' Thus, whether dealing with the general RFP
requirement of section 172(c)(2), or the more specific RFP requirements
of subpart 2 for classified ozone nonattainment areas (such as the 15
percent plan requirement of section 182(b)(1)), the stated purpose of
RFP is to ensure attainment by the applicable attainment date.1 If
an area has in fact attained the standard, the stated purpose of the
RFP requirement will have already been fulfilled and USEPA does not
believe that the area need submit revisions providing for the further
emission reductions described in the RFP provisions of section
182(b)(1).
---------------------------------------------------------------------------
\1\ USEPA notes that paragraph (1) of subsection 182(b) is
entitled ``PLAN PROVISIONS FOR REASONABLE FURTHER PROGRESS'' and
that subparagraph (B) of paragraph 182(c)(2) is entitled
``REASONABLE FURTHER PROGRESS DEMONSTRATION,'' thereby making it
clear that both the 15 percent plan requirement of section 182(b)(1)
and the 3 percent per year requirement of section 182(c)(2) are
specific varieties of RFP requirements.
---------------------------------------------------------------------------
The USEPA notes that it took this view with respect to the general
RFP requirement of section 172(c)(2) in the General Preamble for the
Interpretation of Title I of the Clean Air Act Amendments of 1990 (57
FR 13498 (April 16, 1992)), and it is now extending that interpretation
to the specific provisions of subpart 2. In the General Preamble, USEPA
stated, in the context of a discussion of the requirements applicable
to the evaluation of requests to redesignate nonattainment areas to
attainment, that the ``requirements for RFP will not apply in
evaluating a request for redesignation to attainment since, at a
minimum, the air quality data for the area must show that the area has
already attained. Showing that the State will make RFP towards
attainment will, therefore, have no meaning at that point.'' (See 57 FR
at 13564) 2
---------------------------------------------------------------------------
\2\ See also ``Procedures for Processing Requests to Redesignate
Areas to Attainment,'' from John Calcagni, Director, Air Quality
Management Division, to Regional Air Division Directors, September
4, 1992, at page 6 (stating that the ``requirements for reasonable
further progress * * * will not apply for redesignations because
they only have meaning for areas not attaining the standard'')
(hereinafter referred to as ``September 1992 Calcagni memorandum'').
---------------------------------------------------------------------------
Second, with respect to the attainment demonstration requirements
of Section 182(b)(1), an analogous rationale leads to the same result.
Section 182(b)(1) requires that the plan provide for ``such specific
annual reductions in emissions * * * as necessary to attain the
national primary ambient air quality standard by the attainment date
applicable under this Act.'' As with the RFP requirements, if an area
has in fact monitored attainment of the standard, USEPA believes there
is no need for an area to make a further submission containing
additional measures to achieve attainment. This is also consistent with
the interpretation of certain section 172(c) requirements provided by
USEPA in the General Preamble to Title I. As USEPA stated in the
Preamble, no other measures to provide for attainment would be needed
by areas seeking redesignation to attainment since ``attainment will
have been reached.'' (57 FR at 13564; see also September 1992 Calcagni
memorandum
[[Page 20459]]
at page 6). Upon attainment of the NAAQS, the focus of state planning
efforts shifts to the maintenance of the NAAQS and the development of a
maintenance plan under Section 175A.
Similar reasoning applies to other related provisions of subpart 2.
The first of these are the contingency measure requirements of section
172(c)(9) of the Act. The USEPA has previously interpreted the
contingency measure requirement of section 172(c)(9) as no longer being
applicable once an area has attained the standard since those
``contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' (57 FR at 13564; see also September 1992
Calcagni memorandum at page 6).
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 air quality data relied upon to
determine that the area is attaining the ozone standard must be
consistent with 40 CFR part 58 requirements and other relevant USEPA
guidance and recorded in USEPA's--Aerometric Information Retrieval
System (AIRS).
The determinations made in this notice do not shield an area from
future USEPA action to require emissions reductions from sources in the
area where there is evidence, such as photochemical grid modeling,
showing that emissions from sources in the area contribute
significantly to nonattainment in, or interfere with maintenance by,
any other States with respect to the NAAQS (see section 110(a)(2)(D)).
The USEPA has authority under sections 110(a)(2)(A) and 110(a)(2)(D) of
the Act to require such emission reductions if necessary and
appropriate to deal with transport situations.
Analysis of Air Quality Data
The USEPA has reviewed the ambient air monitoring data for ozone
(consistent with the requirements contained in 40 CFR part 58 and
recorded in AIRS) for the Cleveland-Akron-Lorain ozone nonattainment
area in Ohio from the 1992 through 1995 ozone seasons. The following
ozone exceedances were recorded for the period from 1993 to 1995 (and
the average number of expected exceedances for this three-year period
is also presented):
Cleveland-Akron-Lorain: Medina County, 6364 Deerview Lane (1994)--
0.127 parts per million (ppm); average expected exceedances: 0.3.
Cuyahoga County, 891 E. 152 St. (1993)--0.126 ppm, (1994) 0.127 ppm and
0.125 ppm; average expected exceedances: 1.0. Data for 1995 shows no
new exceedances of the ozone NAAQS were monitored in the Cleveland-
Akron-Lorain area.
On the basis of this review, USEPA determines that the area has
attained the ozone standard during the 1993-95 period, which is the
most recent three-year time period of air quality monitoring data, and
therefore are not required to submit a 15% emissions reduction plan,
attainment demonstration, and a section 172(c)(9) contingency measure
plan. See the June 29, 1995, proposed rulemaking published in the
Federal Register at 60 FR 31433.
Public Comment/USEPA Response
These are the comments and responses that relate to the
determination of attainment for the Cleveland-Akron-Lorain area.
Comments that were received in support of the determination are not
summarized below; only the adverse comments are summarized and
responses are provided to these comments. No further action will be
taken on the determination of attainment for the Dayton and Toledo
areas since those areas have already been redesignated to attainment.
In a later part of this rulemaking comments and responses are provided
on the ozone redesignation request for the CAL area. Because of the
potential for overlap of comments received on the issue of the
determination of attainment and the redesignation, USEPA hereby
incorporates by reference the responses contained in the section below
on redesignation to the extent that they bear on the issues involved in
the determination of attainment, and vice versa. To the extent that
comments can be construed to bear on both rulemaking actions, responses
should be construed to pertain to both.
(1) Comment: The determination action has been inappropriately
segregated from the section 110(a)(2)(D) petition submitted by the
State of New York which requested the Federal government to assess the
implementation plans of upwind states to determine their contribution
to nonattainment in the State of New York. Regional Oxidant Modeling
indicates that areas to the west of the State of New York, including
the State of Ohio, contribute to violations of the ozone NAAQS in the
northeast United States, including the State of New York. Therefore
these areas should continue to meet the statutory reasonable further
progress requirements set forth in the Clean Air Act, at least until
the State of New York's section 110(a)(2)(D) request has been acted on.
(1) Response: The issue of transported emissions is not relevant to
this rulemaking action. The purpose of the requirements of section
182(b)(1) concerning reasonable further progress and attainment
demonstration and the contingency measure requirements of section
172(c)(9) as they apply to CAL is not to address emissions from that
area that may cause or contribute to air quality problems in downwind
areas. The purpose of those requirements as they apply to CAL is to
achieve attainment of the standard in that area. The issue of
transported emissions is dealt with by other provisions of the Act,
provisions that are not the subject of this rulemaking action. USEPA
has authority, and the state has an obligation, under section
110(a)(2)(A) (in the case of intrastate areas) and section 110(a)(2)(D)
(in the case of interstate areas), to address transported emissions
from upwind areas that significantly contribute to air quality problems
in downwind areas. The determination being made in this rulemaking is
that, as CAL has attained the ozone standard, certain additional Act
requirements whose purpose is to achieve attainment in the area do not
apply to them. That determination does not mean that the area might not
have to achieve additional reductions pursuant to other provisions of
the Act if it is determined in the future that such reductions are
necessary to deal with transport from the CAL area to downwind areas.
Currently, the issue of transported ozone and ozone precursors is
being addressed by the Ozone Transport Assessment Group (OTAG) which is
composed of Industry, Environmental Groups, Federal Government, State
Governments (including the State of Ohio), and Local Governments from
the Midwest and Eastern Regions. OTAG is performing ozone modeling to
determine how ozone transport can be addressed on a regional basis.
After this assessment is completed, The United States Environmental
Protection Agency (USEPA) anticipates using its authority under
sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to require emissions
reductions where appropriate based on this assessment and any other
relevant information.
(2) Comment: The determination of attainment fails to meet the
purpose, intent and spirit of the Clean Air Act by not protecting and
enhancing the quality of the Nation's air resources so as to promote
the public health and welfare and the productive capacity of its
population. The ozone standard has been shown to be inadequate to
protect public health. The American Lung
[[Page 20460]]
Association has provided ample evidence and new studies continue to
confirm this. It is very clear to many people living here that the air
is polluted and adversely affecting people's health. Furthermore, no
one has demonstrated that the bad air and high pollution levels in
Ohio's nonattainment areas are not adversely affecting the health of
those downwind.
(2) Response: The determination of attainment is based on ozone
monitoring data collected in the Cleveland-Akron-Lorain area. These
data continue to show that the area has attained the standard. In a
separate part of this rulemaking the ozone redesignation request is
discussed. This request contains a maintenance plan which will provide
for continued maintenance of the standard into the future. The
maintenance plan is unaffected by the determination of attainment that
finds that the 15% plan, attainment demonstration, and section
172(c)(9) contingency measures are no longer required.
USEPA is also reviewing the current ozone standard to see whether
it should be revised in order to better protect the public health.
Until the current NAAQS is revised, the current NAAQS of .12 parts per
million is the appropriate standard against which to assess plans and
measure attainment.
(3) Comment: The piecemeal approach which USEPA is taking to ozone
attainment and redesignation is promoting backsliding and encouraging
doing the least possible to protect public health and actually clean up
the air. A holistic approach to solving environmental problems is
always needed. This is no exception. Reviewing emissions inventories in
one rulemaking, NOX in another, the SIP in another, Reasonable
Further Progress in another, transportation modeling in another, etc.
is a methodology which effectively puts blinders on and prevents
complete analysis of interdependence aspects. Furthermore this
piecemeal approach is an out-of-sequence, illogical process.
USEPA must first determine if attainment has been reached in
accordance with the Clean Air Act's redesignation criteria given in
section 107. Without ascertaining that attainment has actually been
reached it is premature to alleviate the requirements for further
controls or Reasonable Further Progress. It appears that USEPA is only
applying the first redesignation requirement that the area has attained
the NAAQS and ignoring the other requirements for redesignation and
proceeding to relax the standards.
(3) Response: Nothing requires that all of the SIP revisions
submitted by the State be reviewed together. The CAA has differing
submittal dates for the SIPs and requires USEPA to act on each within a
specific time period of its submittal. This would probably not allow
adequate time for USEPA to process all of the submittals at once, given
that some of the submittals were submitted years apart from each other.
Where possible USEPA has sought to consolidate responses to submittals
but the CAA is not always conducive to this approach. The determination
of attainment is not the same as a redesignation to attainment, and
therefore the requirements of section 107, which apply to
redesignations to attainment are not applicable. See also the response
to comments below. The determination of attainment is only based on the
area's ozone monitoring data. USEPA has decided to address the
determination of attainment and the State's ozone redesignation request
for Cleveland-Akron-Lorain together in this Federal Register action.
This rulemaking does not circumvent the redesignation requirements. See
the discussion in the redesignation rulemaking, below, and in USEPA's
Responses to Comments in its Determination of Attainment of Ozone
Standard for Salt Lake and Davis Counties, Utah 60 FR 36723 (July 18,
1995). USEPA in this portion of the rulemaking, its determination of
attainment, is simply making a factual determination that since CAL is
attaining the standard, certain provisions of the CAA, whose express
purpose is to achieve attainment of the standard, do not require SIP
revisions. In the redesignation portion of this rulemaking, USEPA
explains its basis for concluding that CAL has met the requirements of
section 107 for redesignation to attainment.
With respect to the determination of attainment, USEPA set forth in
the June 29, 1995 notices on CAL its basis for interpreting certain CAA
requirements as inapplicable to an area that is attaining the ozone
standard.
This interpretation is consistent with USEPA's General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990
(``General Preamble''), 57 FR 13,498 (April 16, 1992), which directly
addressed requirements for redesignations. Id. at 13,561-64. USEPA
interpreted the general reasonable further progress requirement and
contingency measures as not applying to redesignation requests because
an area must have attained the standard before it could be redesignated
to attainment, making reasonable further progress and contingency
measures, unnecessary.
USEPA's May 10 memorandum set forth USEPA's interpretation of the
requirements of CAA sections 172(c)(9) and 182(b)(1)(A), with respect
to ozone nonattainment areas that have achieved the ozone NAAQS. USEPA
explained that because the purpose of those requirements has already
been fulfilled for areas that have attained the standard, the
requirements do not apply to those areas for as long as they stay in
attainment. It further explained that this interpretation is consistent
with USEPA's interpretation of the general reasonable further progress
requirements and section 172(c)(9) contingency measure requirements
with respect to redesignation requests as set forth in its General
Preamble, and with related USEPA guidance on the procedures to be used
when USEPA is processing redesignation requests.
USEPA has concluded that Congress included the 15 percent plan as a
specification of ``reasonable further progress''. Section 182(b)(1) is
entitled ``Plan provisions for reasonable further progress.'' The
heading's reference to ``reasonable further progress'' indicates
Congress' overall intent in enacting the provision. The term
``reasonable further progress'' is defined as ``such annual incremental
reductions in emissions of the relevant air pollutant as are required
by this part or may reasonably be required by (USEPA) for the purpose
of ensuring attainment of the applicable (NAAQS) by the applicable
date.'' 42 U.S.C. section 7501(l). This definition applies for ``the
purposes of * * * part'' D of Title I of the CAA, which includes
section 182(b). Id. Thus, the term ``reasonable further progress''
requires only such reductions in emissions as are necessary to attain
the NAAQS by the attainment date and no more. 42 U.S.C. section
7501(l). Accordingly, USEPA has interpreted section 182(b)(1)(A)(I)
consistent with the statutory definition of ``reasonable further
progress'' and with section 182(b)(1)(A)(I)'s express purpose of
assuring progress to bring violating areas into attainment. If an area
has in fact attained the standard, the stated purpose of the RFP
requirement will have already been fulfilled and USEPA does not believe
that the area need submit revisions providing for the further emissions
reductions described in section 182(b)(1).
The legislative history expressly supports USEPA's interpretation
of section 182(b)(1)(A)(I). In describing the 15 percent plan, the
House Report stated:
[[Page 20461]]
The emissions reductions called for in this subsection * * *
provide a concrete translation of how much an area must do to
achieve ``reasonable further progress'' toward attainment of the
standards, as required in section 172 and defined in section 171.
Areas that fail, as determined by USEPA, to achieve reasonable
further progress are in violation of the Act.
H.R. Rep. no. 490, 101st Cong., 2d Sess., pt. 1 (1990) at 236. Thus,
Congress contemplated that the requirements of section 182(b)(1)(A)(I)
were simply a specification of the more general reasonable further
progress requirements of the Act, with the same goals and definition.
Moreover, USEPA's interpretation of the requirements of section
182(b)(1)(A)(I) is consistent with its interpretation of the general
reasonable further progress requirements of CAA section 172.
USEPA has also determined that section 172 (c)(9), 42 U.S.C.
section 7502(c)(9) does not require a contingency measures plan for an
area such as CAL, which has attained the standard. The contingency
measures plan is required for an area which ``fails to make reasonable
further progress, or to attain the (NAAQS) by the attainment date * *
*'' 42 U.S.C. section 7502(c)(9). If, as USEPA has determined with
respect to CAL, an area has already attained the standard, then by
definition such an area is not one to which contingency measures apply.
There simply is no failure to attain or make progress for which
additional measures need be contingent. However, as with section
182(b)(1)(A)(I), USEPA interprets section 172(c)(9)'s requirements to
be applicable to areas that lapse back into violation prior to
redesignation, and which therefore need additional progress toward
attainment. Moreover, USEPA's interpretation of 172(c)(9) is consistent
with its interpretation of these requirements in the context of
redesignation requests. 57 FR 13564. USEPA's interpretation also
vindicates the policy objective of reducing the burden on states and
sources of adopting and implementing additional control measures that
are not necessary to attain the standard.
(4) Comment: The number of ``close calls'' and the use of voluntary
measures to reduce ozone raises real questions about the overall air
quality. Modeling would answer some of these questions and give a truer
picture of what the air is really like. Some initial analysis of the
weather patterns in 1995 indicates that they may be similar to 1988, a
supposedly ``unusually hot, dry summer'' when numerous exceedances were
recorded. In fact, the weather in Ohio in 1988 or thus far in 1995 is
not all that unusual. Even higher temperature have been recorded. It
can be expected that there will be more exceedances, unless there are
reductions in ozone precursor emissions.
USEPA policy (September 4, 1992, procedures for processing requests
to redesignate areas to attainment, from John Calcagni) states that
data from the monitors be from areas of highest concentration and that
modeling may be necessary to determine the representativeness of the
monitor data.
(4) Response: While voluntary measures were used in Cleveland
during the summer of 1995 to involve the community in keeping their air
clean, the Ohio Environmental Protection Agency (OEPA) did not claim
that this measure was responsible for the Cleveland area attaining the
NAAQS. Ohio's request claimed that the improvement in air quality was
due to permanent and enforceable measures, namely the Federal Motor
Vehicle Emissions Control Program and the Federal fuel volatility
requirements that reduced the emissions from gasoline. In addition, the
basic automobile inspection and maintenance program, required as a part
of the carbon monoxide SIP, would also have provided volatile organic
compound (VOC), and oxide of nitrogen (NOx) emissions reductions in the
area, as a side benefit. These measures resulted in the area's VOC
emissions decreasing by about 14 percent from 1990 to 1994, enabling
the area to reach attainment of the ozone NAAQS.
USEPA policy on the determination of attainment is provided in a
May 10, 1995, memorandum from John S. Seitz, Director of the Office of
Air Quality Planning and Standards. This memorandum sets forth USEPA's
interpretation of certain requirements of subpart 2 of part D of title
I of the Clean Air Act as they relate to ozone nonattainment areas that
are meeting the ozone NAAQS. The USEPA believes it is reasonable to
interpret provisions regarding RFP and attainment demonstrations, along
with the related requirements, so as not to require SIP submissions if
an ozone nonattainment area subject to those requirements is in fact
attaining the ozone standard (i.e., attainment of the NAAQS is
demonstrated with 3 consecutive years of complete, quality-assured air
quality monitoring data). The USEPA has previously interpreted the
general provisions of subpart 1 of part D of title I (section 171 and
172) so as not to require the submissions of SIP revisions concerning
RFP, attainment demonstrations, or contingency measures, and USEPA
believes it is appropriate to interpret the ozone-specific provisions
of subpart 2 in the same manner. This is further discussed under
section I covering the background on the determination of attainment.
The determination of attainment is based only on ozone monitoring
data for the area. The data for at least the last four years show that
the area has achieved attainment. We believe that the monitoring data
is adequate and representative of the area and that modeling is not
necessary to show attainment. These data show that the area is in
attainment and the monitoring data for 1995 show that no exceedances
were monitored in the entire Cleveland-Akron-Lorain area. This shows
that the provisions related to submitting a SIP revision to bring an
area into attainment of the ozone NAAQS, such as the attainment
demonstration, RFP, and contingency measures requirements are not
necessary since the area is already in attainment of the ozone NAAQS.
The weather in 1995 was more conducive toward forming ozone in many
parts of the Country. Even though this was the case no exceedances were
monitored at any of the monitors in the CAL area showing that the area
has reduced its emissions to a level that has brought the CAL area into
attainment of the ozone NAAQS.
(5) Comment: The Southwestern Pennsylvania Growth Alliance (Growth
Alliance) is concerned that the redesignation of the Cleveland-Akron-
Lorain area could adversely affect both the economy and air quality in
southwestern Pennsylvania, and it feels that action on the applications
from these regions should be suspended until a more comprehensive
national solution to interstate transport of ozone and ozone precursors
is developed and implemented. The Growth Alliance believes that
Southwestern Pennsylvania is being unfairly disadvantaged compared to
neighboring states by the requirements created by the Clean Air Act, by
USEPA, and by the Northeast Ozone Transport Commission.
(5) Response: USEPA's proposed action to determine that the
Cleveland-Akron-Lorain area has reached attainment and that it is not
necessary for it to have an attainment demonstration, 15% rate of
reduction plan, and a contingency plan is different from redesignating
the Cleveland-Akron-Lorain area as an attainment area for ozone. In
order for USEPA to make a determination concerning the 15% plan and
other requirements, it is only necessary to show that the area has
attained the ozone standard through
[[Page 20462]]
monitoring data. In order to be redesignated from nonattainment to
attainment the area must meet the five redesignation requirements of
section 107 of the CAA. One of the five redesignation requirements is
that the area have met all of the SIP requirements applicable to the
area. A determination of attainment renders some of those requirements
as inapplicable, based on the area attaining the standard, but the area
would still have to meet the remaining applicable SIP requirements
before it could satisfy part of the requirements for redesignation. The
ozone redesignation request for Cleveland-Akron-Lorain is being
addressed in a separate part of this same Federal Register action. A
discussion of the comments and responses received on the redesignation
is given in that part of this action. In order for the CAL area to be
redesignated from nonattainment to attainment it would have to meet all
of the applicable redesignation requirements. If an area meets the
criteria for redesignation nothing in the CAA suggests that
redesignations should be delayed. Any issue regarding transport of
ozone and its precursors can and is expected to be dealt with through
the Ozone Transport and Assessment Group (OTAG) and USEPA's authority
under section 110 (a)(2)(A) and (a)(2)(D) of the Act. See also Response
to comment 2.
Determination Conclusion
The USEPA has determined that the Cleveland-Akron-Lorain (which
includes the Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain,
Medina, Portage and Summit) has attained the ozone standard and
continues to attain the standard at this time.
As a consequence of this determination that the Cleveland-Akron-
Lorain ozone nonattainment area has attained the ozone standard, the
requirements of section 182(b)(1) concerning the submission of the 15
percent plan and ozone attainment demonstration and the requirements of
section 172(c)(9) concerning contingency measures are not applicable to
the Cleveland-Akron-Lorain area. Additionally since this determination
is occurring simultaneously with the ozone redesignation to attainment,
the determination will not be revoked in the event of a violation.
Rather, in the event of a violation, the contingency measures in the
approved maintenance plan would be triggered by a violation.
Ozone Redesignation Request
I. Background
On November 14, 1994, the OEPA submitted to the USEPA a request for
redesignation to attainment for ozone for the CAL area of Lorain,
Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit and Portage.
Additional information on the State public hearing and response to
comments was submitted to USEPA on February 22, 1995. The redesignation
requests were supported by technical information demonstrating that the
requirements of section 107(d)(3)(E) of the Clean Air Act Amendments
(CAAA) were met. On June 15, 1995, a notice was published in the
Federal Register (60 FR 31433) which proposed approval of the
redesignation requests to attainment for ozone and the maintenance
plans for the Ohio CAL moderate ozone nonattainment area counties.
II. Summary of Proposed Rulemaking
The proposed rulemaking detailed how the State submittal fulfilled
the redesignation requirements of the CAAA. Specifically, section
107(d)(3)(E) provides for redesignation if: (i) The Administrator
determines that the area has attained the National Ambient Air Quality
Standards (NAAQS); (ii) The Administrator has fully approved the
applicable implementation plan for the area under section 110(k); (iii)
The Administrator determines that the improvement in air quality is due
to permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions; (iv) The Administrator has fully approved a
maintenance plan for the area as meeting the requirements of section
175(A); and (v) the State containing such area has met all requirements
applicable to the area under section 110 and Part D.
Included in the State submittal was a maintenance plan. A component
of the maintenance plan is the maintenance demonstration which shows
that the level of emissions projected out 10 years will not exceed the
attainment year inventory. The proposed rulemaking presented summary
tables of Volatile Organic Compounds (VOC) emissions, and NOX
emissions projections for the CAL area counties. The OEPA has revised
the base year and projected year inventories numbers in response to
comments made by Region 5. The VOC and NOX point source emissions
projections for the year 2000 were estimated by USEPA based on an
average growth rate for the 1996 to 2006 period. These estimates show
that the total emissions in the area are expected to remain below the
attainment level of emissions. In addition, the NOX point source
emission projections do not account for emission reductions due to the
Title IV Acid Rain requirements of the CAA, which would further reduce
NOX emissions in the area. The changes did not affect the State's
ability to demonstrate maintenance. The revised tables are presented
below.
Summary of VOC Emissions
[Tons/day]
----------------------------------------------------------------------------------------------------------------
1996 2000 2006
1990 base 1993 attain projected projected projected
----------------------------------------------------------------------------------------------------------------
Point.......................................... 82.22 75.75 78.55 82.44 88.63
Area........................................... 201.05 201.37 201.45 201.63 200.86
Mobile......................................... 248.4 181.4 131.2 78.4 48.8
Totals......................................... 531.7 458.5 411.2 362.5 338.3
----------------------------------------------------------------------------------------------------------------
Summary of NOX Emissions
[Tons/day]
----------------------------------------------------------------------------------------------------------------
1996 2000 2006
1990 base 1993 attain projected projected projected
----------------------------------------------------------------------------------------------------------------
Point.......................................... 245.59 254.61 263.91 277.05 298.00
[[Page 20463]]
Area........................................... 80.46 80.56 80.51 80.61 80.18
Mobile......................................... 176.6 159.9 142.2 95.5 75.4
Totals......................................... 502.6 495.1 486.6 453.2 453.6
----------------------------------------------------------------------------------------------------------------
Additionally, the VOC and NOX emissions projected for the year
2006 in the above tables are considered emission budgets for purposes
of transportation conformity.
The proposal stated that final approval of the CAL moderate
nonattainment area counties was contingent upon final approval of VOC
reasonably available control technology (RACT) rules, the 1990 Base-
year inventory, the section 182(f) NOX waiver request, the
182(b)(1) reasonable further progress plan (15% plan), the 182(b)(4)
inspection and maintenance plan, the attainment demonstration, and the
172(c)(9) contingency measures. All of these requirements have either
been met through full approval of state submittals or have been
determined in this rulemaking to be no longer applicable. The final
approval of most of the VOC RACT rules were published on March 23, 1995
(60 FR 15235), and became effective on May 22, 1995. Final approval of
RACT rules for major stationary sources not specifically covered by a
USEPA Control Technique Guideline for RACT became effective on October
31, 1995, in a letter notice action from Regional Administrator Adamkus
to the individual companies. A formal announcement of this was made in
the Federal Register. The Base-year inventories were approved on
December 7, 1995 (60 FR 62737) and effective on January 8, 1996. The
NOX waiver request was approved on July 13, 1995 (60 FR 36051) and
became effective on August 14, 1995. The I/M plan was approved on April
4, 1995 (60 FR 16989) and became effective on June 3, 1995.
A May 10, 1995, memorandum from John S. Seitz, Director, Office of
Air Quality Planning and Standards, entitled ``Reasonable Further
Progress, Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard'', states that upon a determination made by USEPA that an area
has attained the NAAQS for ozone, that area need not submit SIP
revisions concerning reasonable further progress (15%) plan, 182(b)(1)
attainment demonstrations, and 172(c)(9) contingency measures for as
long as the area continues to meet the standard. Such a determination
is made for the CAL area in a separate part of this rulemaking.
Consequently, final approval of the redesignation request for the CAL
counties of Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit,
and Portage is no longer dependent upon approval of the 15% plan,
attainment demonstration, or section 172(c)(9) contingency measures.
Public Comment/USEPA Response
In response to the request for written comments on the proposed
rulemaking, USEPA received about 50 comment letters. Letters were
received from concerned citizens, environmental groups, and industry.
Over 30 of these letters were adverse comments on the propose
rulemaking. The remaining comments were in support of the proposed
rule. The following summarizes the adverse comments received and
responds to them. The comments in support of the rule are not
summarized below, but are available for public review in USEPA's
docket. In an earlier part of this rulemaking comments and responses
are provided on the determination of attainment for the CAL area. To
the extent that any comments under the determination section also apply
to the ozone redesignation action for the CAL area they are also
incorporated into the comments/responses under this section covering
the ozone redesignation action for the CAL area.
(1) Comment: Many of the commenters are opposed to the
redesignation of the Cleveland-Akron-Lorain area to attainment on the
grounds that they believe that more stringent emission control
requirements and sanctions are needed to avoid unsafe pollution levels.
These commenters believe that the benefits of health and environmental
improvements to be achieved through stricter standards outweigh the
increased costs of emission controls on industry and on the public.
Several commenters state that the ozone standard itself should be
tightened, expressing concerns over long term health impacts, impacts
on children and the elderly, and impacts on smog levels still visible
in the area.
(1) Response: The NAAQS were established to protect the public's
health and welfare with an adequate margin of safety. Although
additional reductions in VOCs may provide further health improvements,
it is noted that the issue here is attainment of the ozone standard.
The State of Ohio has met the requirements for the redesignation of the
Cleveland-Akron-Lorain area to attainment of the ozone standard,
including attainment of the ozone NAAQS. It is not clear that further
reduction in ozone levels will provide significant health improvements.
With regard to a revised ozone standard, it should be noted that
the USEPA along with States and science advisors, is the process of
reconsidering the ozone standard. If the ozone standard is revised a
number of ozone attainment and nonattainment areas may be affected. A
redesignation of Cleveland-Akron-Lorain to attainment at this time will
not prevent this area from being redesignated to nonattainment if it is
subsequently found to be in violation of a revised ozone standard.
Until the NAAQS is revised, however, the 0.12 ppm NAAQS for ozone is
the only appropriate standard against which to judge attainment.
(2) Comment: People in the Cleveland-Akron-Lorain area suffer from
sinus problems, and increased occurrence of asthma and other life-
threatening respiratory illnesses that are directly attributable to air
pollution. The air is often oppressive and really unbreathable,
especially in the kind of hot, humid weather that the area has
experienced this summer. Infants and the elderly are affected by the
higher tolerance of ozone levels now in force. We see people who become
ill from polluted air whenever the ozone level rises. The current ozone
standard is not health based. We want to breathe cleaner air. We are
opposed to the redesignation of Cleveland-Akron-Lorain because of the
asthma epidemic and increasing number of asthma deaths. The
pervasiveness of the health threat posed far outweighs the inhibition
of industrial expansion and limits on smokestack pollution.
[[Page 20464]]
(2) Response: The current ozone standard is a health based
standard. It was recently reviewed and reaffirmed, see 58 FR 13008
(March 9, 1995). However, the ozone NAAQS is currently being reviewed
to see if the standard should be changed and what the new standard
would be, see 59 FR 5164 (February 3, 1994). A staff report was
recently released that discusses this review of the ozone NAAQS. But
unless and until the ozone NAAQS is changed - it remains the standard
to use for comparison against ozone monitoring data in the area. Those
data indicates attainment of the ozone standard.
(3) Comment: In Cleveland-Akron-Lorain the air smells. There are
also foul odors coming from factories during the early morning hours
that are waking us up and making us nauseated.
(3) Response: At the Federal level the Clean Air Act (CAA) does not
provide specific requirements for companies to control odors. Odor is
not an issue pertinent to the ozone standard or the attainment of that
standard. We have, however, made our enforcement group aware of these
complaints to see what can be done. Further, existing facilities must
continue to operate existing air pollution control equipment in
accordance with applicable rules, regulations and permits, and sources
that are problematic in terms of posing a nuisance to area residents
may be referred to the State and local environmental enforcement staff
for investigation.
(4) Comment: Several commenters expressed concern that trucks and
buses pollute the air by blowing out black smoke and that cleaning up
emissions from cars is not sufficient.
(4) Response: The USEPA agrees that cleaning up emissions from cars
is not enough. Trucks and buses also produce significant pollution. The
USEPA has set stringent standards for new heavy duty diesel engines
beginning with the 1988 model year, with additional improvements to be
made with the 1991 and 1994 model year engines. The black smoke from
diesel trucks and buses is particulate matter which is a visible air
pollutant. Trucks and buses also contribute to ozone air pollution
because they produce hydrocarbons and NOX. The NOX emission
standard has been tightened from 10.7 grams per brake horsepower per
hour (g/bhp-hr) in 1985 to 6.0 in 1988 and 5.0 in 1991. The hydrocarbon
emission rate for diesel engines is set at 1.3 g/bhp-hr. Particulate
emission standards have been tightened from 0.60 g/bhp-hr in 1988 to
0.10 g/bhp-hr in 1994 for all new heavy duty engines. As the older
trucks and buses are replaced by the newer, cleaner engines the
pollution from these vehicles will be significantly reduced.
In October 1993, the USEPA required the use of a cleaner diesel
fuel throughout the country. Diesel fuel used in on-highway compression
ignition engines contains less sulphur than earlier fuels. Lower
sulphur reduces the amount of indirect particulate and improves the
operation of new diesel engines using particulate trap oxidizers to
control direct particulate emissions. It is estimated that the use of
low-sulphur diesel fuel reduces direct and indirect particulate by
approximately 28 percent from the baseline fuel. Air quality impacts of
fuel controls are projected to reduce particulate by 2.3 to 8.3
micrograms per cubic meter and sulphur dioxide by 7 to 16 micrograms
per cubic meter in a metropolitan area the size of Cleveland-Akron-
Lorain.
The State of Ohio will implement its inspection and maintenance (I/
M) program beginning in 1996. The authorizing State legislation for the
I/M program requires the testing of diesel powered vehicles up to
10,000 pounds for opacity (smoke). Buses are also required to meet
emission standards for smoke, hydrocarbons and carbon monoxide.
The reductions in hydrocarbon, and NOX emissions from trucks
and buses will contribute to maintaining the ozone standard and
protecting the public's health. Particulate issues are separate from
ozone issues and are not relevant for consideration here. While the
standards for particulate emissions will greatly reduce the amount of
smoke emitted from trucks and busses, it is not expected to have a
significant effect on ozone levels and as a result is not pertinent to
an ozone redesignation request.
(5) Comment: Several commenters have expressed confusion over the
relationship between the proposed redesignation and the protection of
the ``ozone layer.'' One commenter in particular requests that the
USEPA explain the ``whole ozone picture.''
(5) Response: At the very outset of this response, it must be noted
that ``ozone'' referred to in the proposed redesignation is chemically
identical to the ``ozone'' referred to in the term ``ozone layer.'' In
both situations ozone refers to a gas composed of molecules with three
oxygen atoms each.
In the case of the ``ozone layer'', one is referring to the layer
of the Earth's stratosphere where ozone is found in relatively high
concentrations. Ozone in this layer is formed through the reaction of
oxygen molecules (two oxygen atoms each) and high energy
electromagnetic radiation from the Sun. Oxygen atoms are freed when
oxygen molecules are impacted by the high energy radiation. Some of
these freed oxygen atoms combine with oxygen molecules to form ozone
molecules. Within this layer of the atmosphere, ozone is a significant
absorber of high energy ultraviolet radiation from the Sun. If this
ultraviolet radiation reached the surface of the earth in sufficient
intensity, significant, undesirable biological damage could result to
surface organisms. Concerns over potential damage to the protective
ozone layer has led to efforts to reduce the emissions of gasses which
are believed to directly or indirectly eliminate ozone molecules.
In the case of the proposed of Cleveland-Akron-Lorain, one is
dealing with ozone found in the lowest levels of the atmosphere. At
this level of the atmosphere, high ozone levels are not typically found
(natural processes can lead to peak ozone levels of 0.04 to 0.06 parts
per million, well below the ozone standard of 0.12 parts per million).
Man-made (anthropogenic) emissions of volatile organic compounds,
oxides of nitrogen, and other gases, in the presence of sunlight and
relatively warm temperatures, can lead to ozone formation of
considerably higher concentrations. This chemical formation process
involves hundreds of chemical reactions and differs significantly from
the process that forms ozone in the stratosphere. There is no
significant exchange of ozone between the lower atmosphere, where high
ozone levels are undesirable, and the stratosphere, where high ozone
levels are desirable for the protection of life on earth.
Ozone concentrations in excess of the ozone standard are shown,
based on numerous health studies and correlation of health data and
monitored ozone concentrations, to be damaging to human health,
particularly causing problems with the human respiratory system. For
this reason, ozone has been listed as a primary pollutant with a
defined health-based standard.
(6) Comment: The air quality in Cleveland-Akron-Lorain is lousy and
there has been no improvement in the quality of our air. If anything, I
would say things are worse.
(6) Response: With respect to ozone levels in the CAL, the air
quality has improved significantly since the late 1980's. During 1988
there were a number of monitored readings above .150 parts per million
in the area. During the last four years the highest concentration
monitored was .127 ppm. CAL achieved attainment of the ozone standard
at the end of 1994, by monitoring attainment of the ozone NAAQS during
the three previous years
[[Page 20465]]
(which are 1992, 1993, and 1994). The area continued to attain the
standard since that time.
Section 107(d)(3)(E)(iii) requires that, for the USEPA to approve a
redesignation, it must determine that the improvement in air quality is
due to permanent and enforceable reductions in emissions. The September
Calcagni memorandum, at page 4, clarifies this requirement by stating
that ``[a]ttainment resulting from temporary reductions in emission
rates (e.g., reduced production or shutdown due to temporary adverse
economic conditions) or unusually favorable meteorology would not
qualify as an air quality improvement due to permanent and enforceable
emission reductions.'' As discussed in the June 15, 1995 Federal
Register proposed rulemaking, the State of Ohio demonstrated that
permanent and enforceable emission reductions are responsible for the
recent improvement in air quality. This demonstration was accomplished
through an estimate of the reductions (from 1990 to 1993) of VOC
achieved through Federal measures such as the Federal Motor Vehicle
Emissions Control Program (FMVECP) and fuel volatility rules
implemented from 1990-1993, as suggested by the September Calcagni
memorandum.
Volatile Organic Compound (VOC) emissions are one of the precursors
that help to form ozone. The total emission reductions achieved from
1990 to 1993 were 65 tons of VOC per day. This is a 14 percent
reduction in VOCs, which corresponds to the drop in ozone
concentrations in the area. These emission reductions were primarily
the result of the FMVECP, Automobile Inspection and Maintenance
program, and Gasoline Reid Vapor Pressure (RVP) reductions from 10.5
pounds per square inch (psi) in 1989, to 9.0 psi in 1992. The VOC
emissions are expected to continue to decrease in the future due to the
Federal Motor Vehicle Emissions Control Program, Stage II vapor
recovery program, and the Enhanced Automobile Inspection and
Maintenance Program. The NOX emissions are also expected to
decrease in the future due to the Federal Motor Vehicle Emissions
Control Program and the Enhanced Automobile Inspection and Maintenance
Program.
(7) Comment: I am sure you are being bombarded with requests to
change the designation to attainment, on the grounds that the region
will be hurt economically if this is not done. To me, such arguments
ignore two fundamental points. First, there is not evidence that
stricter environmental regulations hurt the economy. A clean
environment does not mean less jobs, it can mean more jobs. In fact,
there is evidence that indicates the opposite. Second, even if this is
true, we would be selling our health, and the health of our world and
our children, for economic benefit. This does not seem a good trade.
There is entirely too much emphasis on business economic considerations
over health considerations. The cost to industry may be high, but what
about the cost to pay for increased health problems? Air pollution
results in hundreds of thousands of dollars worth of asthma illnesses
and deaths each week. This should be spent on pollution controls
instead.
It would be reprehensible if the agency charged with the protection
of health and the environment capitulated to vested, self-serving
interests that place the almighty dollar ahead of human health and
welfare. The redesignation request should not be approved.
(7) Response: The approval of the ozone redesignation request for
Cleveland-Akron-Lorain is based on the area meeting the five
requirements of section 107 of the CAA. It is not based on economic
grounds. The first of the five requirements of section 107 is that the
area has attained the National Ambient Air Quality Standard for ozone,
which it has. The NAAQS for ozone is set at a level designed to protect
the public's health and monitoring data show that the area is meeting
the standard.
(8) Comment: One commenter, although not expressing opposition to
the proposed redesignation, does express opposition to the approach
used in the Cleveland-Akron-Lorain area of trying to get the public to
reduce emissions only during critical high ozone potential periods. The
commenter favors a permanent curtailment of emissions so that people
with related health risks, such as asthma, will not have to seek the
shelter of air-conditioned places during such periods.
(8) Response: It is agreed that, where possible, permanent emission
controls should be implemented to minimize ozone levels and to attain
the ozone standard. It should be recognized that many permanent
emission controls, such as reasonably available control technology,
transportation control measures, and vehicle inspection/maintenance,
have been implemented in the Cleveland-Akron-Lorain area. The
maintenance plan takes into account that these emission controls will
be maintained despite the redesignation of the area as an area in
attainment of the ozone standard. The permanent and enforceable
emissions reductions are discussed under comment number six, and in
comment 4 in the determination of attainment section.
(9) Comment: A number of commenters believed the air monitoring in
the area was inadequate. Several concerns were noted: Commenters stated
that there is presently insufficient monitoring both in terms of what
is monitored and the number of monitoring stations (specifically, a
lack of ozone monitoring in Geauga County was cited by several
commenters).
(9) Response: The requirements for ambient air quality monitoring
are detailed in 40 CFR part 58. The federal requirements include: The
use of approved air monitoring equipment; quality assurance of
monitoring data; appropriate network design; operating schedule; and
siting of individual monitors. In determining attainment or
nonattainment status of an area for the NAAQS for ozone, only air
monitors sampling for ozone are relevant. Monitoring for precursors of
ozone (such as VOCS and NOX) can be beneficial in
understanding ozone formation. For determining the air quality
concentrations of ozone in an area and determining attainment of the
ozone standard, ambient ozone monitors are considered.
The Cleveland-Akron-Lorain ozone monitoring network consists of ten
ambient ozone monitors: three in Cuyahoga County, two in Lake County,
and one each in Ashtabula, Lorain, Medina, Portage and Summit Counties.
The monitoring network is reviewed by the USEPA. The individual
monitoring sites meet the federal monitoring requirements. The
commenters are correct in noting that Geauga County is downwind of the
urban area and in a location that would be expected to receive high
ozone concentrations. However, the USEPA believes that decisions on the
air quality can be made with the current network because the monitors
cover an adequate geographic area to be representative of the
nonattainment area. Ozone monitors are located in every county that is
contiguous to Geauga County. All of these monitors are in attainment of
the ozone NAAQS, including Lake County which is also downwind of the
main urban area and would be expected to have similar air quality to
Geauga County. Based on this USEPA believes that Geauga County is also
in attainment of the ozone NAAQS.
(10) Comment: One commenter believed that the original readings
that brought about the ``bad rating'' were taken in an industrial area
surrounded by freeways inundated with Cleveland Browns fans. The
commenter believed
[[Page 20466]]
the monitoring readings to be unrepresentative.
(10) Response: The highest ozone readings are not typically found
in industrial areas or near freeways. Industries and traffic produce
hydrocarbons (also called volatile organic compounds) and NOX
pollution that react in the presence of sunlight to form ozone. This
reaction takes place over a period of several hours and thus the
highest ozone concentrations are typically found 20 to 40 miles in the
downwind direction. The USEPA considers all valid, quality assured
monitoring data in the area in assessing the air quality. The moderate
ozone nonattainment designation was based on 3 years of ozone
monitoring data (1987-1989) and was based on the fourth highest reading
(.157 the design value) at the monitoring site in Akron, Ohio. Other
ozone monitoring sites in the area also had ozone concentrations in the
range of a moderate classification. For example, the site at Jefferson
Elementary School in Eastlake, Ohio had a design value of .152 for the
1987-1989 time period. The ozone monitoring data now shows an
improvement in air quality that demonstrates attainment of the health
based ozone standard. All air monitoring data is available to the
public from the national USEPA Aerometric Information and Retrieval
System (AIRS) data bank.
(11) Comment: The fact that this region did not adopt reformulated,
less ozone-producing gasoline with fewer VOC's for summertime use
clearly demonstrates the lack of commitment to clean air.
(11) Response: While the Cleveland-Akron-Lorain area was not
required to adopted reformulated gasoline in order to be redesignated,
they did choose an Enhanced Automobile Inspection and Maintenance
program (I/M) as a maintenance measure to be implemented in the area.
This program was chosen as the most cost effective program that the
area could use for maintaining the standard while still providing room
for growth in the area.
(12) Comment: Several commenters expressed dissatisfaction with the
inspection and maintenance program for automobiles. Some were concerned
about gaps in the I/M program that reduced the effectiveness. One
commenter suggested other pollution reduction measures. A commenter
believed that the vehicle inspection and maintenance program was not
effective. The commenter believed that the I/M funds would be better
spent on enforcing the speed limit, getting rid of high polluting
vehicles, doing more on ``Ozone Action Days'' or making these
mandatory, and giving incentives for sharing rides. One commenter was
against the more stringent I/M program.
(12) Response: The I/M program for automobiles is a very cost-
effective program for reducing pollution. Studies show that a small
percentage of vehicles are producing a large portion of the pollution
in a metropolitan area. Automobiles that are not well-maintained or
that have pollution control equipment that has been disabled emit air
pollution that can increase ozone concentrations. The I/M program will
identify these automobiles and require repairs. Compared to other forms
of pollution control, the I/M program is a low-cost alternative. The
enhanced I/M program is estimated to cost between $500 to $900 dollars
per ton of VOC pollution reduced. This compares to a cost of
approximately $5,000 per ton for a basic program, $5,000 to $10,000
dollars per ton of VOC reduced for additional stationary source
controls beyond the current RACT required in the Cleveland-Akron-Lorain
area. The USEPA agrees that an effective I/M program is important. The
enhanced I/M program adopted by Ohio and which began in January 1996,
is the best and most cost effective testing program recommended by the
USEPA.
An additional feature of the State's enhanced I/M program, designed
to improve repair-effectiveness, is the requirement that automobile
technicians become certified to repair vehicles which fail the test.
The auto technician training program requires technicians to undergo a
training program to ensure they are able to perform repairs on current
new-technology vehicles and vehicles of the future. Technicians and
repair facilities will be graded on the effectiveness of repairs and
this information will be available to the public in order to make
informed decisions on where to take their vehicle for repairs. This
technician training and certification program began implementation in
October 1995, and is being supervised by the OEPA.
(13) Comment: A commenter expresses the concern that control of
emissions from aircraft as they travel over the area (and over the
United States in general) have not been given enough consideration. The
commenter believes aircraft emissions must be considered along with
emissions from industries and automobiles in the control of air
pollution.
(13) Response: It should be noted that States, under the
requirements of section 182(a)(1) of the Clean Air Act, have included
aircraft emissions in a base year emissions inventory for each ozone
nonattainment area. These aircraft emissions were projected to the 10-
year maintenance period in Ohio's maintenance plan for the Cleveland-
Akron-Lorain area, and were shown, along with emissions from other
sources, to not cause a projected violation of the ozone standard.
(14) Comment: A number of commenters were concerned that the
redesignation would affect transportation choices and transportation
planning and would contribute to more pollution. Concerns were
expressed about: The need for more bike paths, the need for improved
public transit, the need to discourage driving. Specific concern was
expressed about express lanes on I-271 which would impact the
environment. Another commenter had concerns about a subway being
dropped from the transportation planning, a lack of bicycle facilities,
more interchanges and freeways and new lane additions. There was
concern about a tollway from Toledo to Portsmouth instead of light rail
that would be upwind of the populated current nonattainment areas and
would add pollution to the areas. The commenter wanted pollution
prevention through better transportation choices.
(14) Response: The redesignation to attainment does not negate the
need for the area to make smart transportation choices. The
transportation conformity requirements still apply to the area as a
maintenance area. The area will need to demonstrate that emissions are
not exceeding the mobile source emission budget in the maintenance
plan. The Northeast Ohio Area wide Coordinating Agency (NOACA) is the
local metropolitan planning organization for the Cleveland-Akron-Lorain
area and performs the conformity analysis on the transportation plan.
Conformity to the emission budget is designed to prevent the area from
increasing mobile source emissions to the point where the air quality
standards are exceeded. Conformity will also provide assurance that a
project will not be done if it would cause or contribute to a violation
of the ozone NAAQS in the CAL area.
The commenters are correct in noting that transportation measures
such as improvements in bicycle paths and facilities and improved
public transit will contribute to better air quality by reducing the
number of automobiles and the number of vehicle miles of travel. The
commenters are also correct in their concerns about increasing freeway
capacity and tollways, as these types of projects will encourage
additional vehicular traffic. The USEPA believes that the conformity
requirements will allow the area to make local decisions
[[Page 20467]]
on transportation planning while assuring that mobile source emissions
will not increase. Increases to the mobile source budget are only
allowed if there is an excess in the total projected emissions for the
area.
Projects such as tollways that are built in the maintenance area
would also be subject to conformity. Tollways that are in attainment
areas are not currently required to meet any conformity tests. It is
possible that projects of this type could affect air quality downwind;
however, the USEPA believes that the cleaner vehicle standards will
contribute to preventing degradation of the air. See also the response
to comment 18.
(15) Comment: Over Lake Erie there is a gray and yellow mass of
pollution. There is also a trail of smoke that rises from the smoke
stacks of the East Lake Electric Power plant, and the trucks and buses
are also emitting smoke. When I am at a high point on a hill looking
down at downtown Cleveland, I can barely see the buildings. It's as if
they are behind a cloud of dirt, smoke, and other pollution. We need to
change this.
(15) Response: USEPA has a variety of programs addressing the
commenter's concerns. The ``trail of smoke'' from the East Lake power
plant is particulate matter, which is regulated both by limits on the
mass of particulate matter and by limits on the opacity of the plume.
Smoke from trucks and buses is being limited by new emissions standards
that have been made achievable by new limitations on the sulfur content
of diesel fuel. USEPA is updating its visibility regulations to reduce
the impairment of visibility due to air pollution. Nevertheless, USEPA
evaluates attainment of the air quality standards based on quantitative
measurements of air pollutant concentration. Since these measurements
indicate that the ozone standard is being attained, USEPA must conclude
that this criterion for redesignation is satisfied.
(16) Comment: Several commenters are opposed to the redesignation
because they believe it will lead to less USEPA oversight of existing
emission control regulations and, therefore, to increased air
pollution.
(16) Response: All volatile organic compound emission control
regulations in place at the time of the redesignation of the Cleveland-
Akron-Lorain area will remain in place unless it is ultimately shown
through photochemical dispersion modeling that such control measures
are not necessary for continued attainment of the ozone standard. These
regulations will continue to be enforced by the State and will remain
federally enforceable.
(17) Comment: One commenter asserted that section 107(d)(e)(E)(v)
requires that a state meet all applicable requirements under section
110 and Part D. While claiming that Cleveland satisfies all 172(c)
requirements, USEPA acknowledges that some components have not yet
completed regulatory review. 60 FR 31437.
(17) Response: All applicable components, including those were
referred to in the proposal as pending regulatory review, have now
completed regulatory review. The Clean Air Act requires that the
Cleveland-Akron-Lorain area meet all applicable requirements before the
area is redesignated. USEPA approved the 1990 base year emissions
inventory in a final rulemaking published on December 7, 1995 (60 FR
62737). The remaining VOC RACT rules for the area were approved in
letter notice rulemakings dated October 31, 1995 and announced in the
Federal Register. In a separate part of this final rulemaking USEPA
determined that the 15% plan and contingency measures requirements are
no longer applicable to the Cleveland-Akron-Lorain area. USEPA's
rational for this action is contained in the rulemakings dated August
25, 1995 (60 FR 44277), June 29, 1995 (60 FR 33742, and 60 FR 33781),
and this final rulemaking. As a result of these actions the Cleveland-
Akron-Lorain area has met all of the fully approved SIP requirements.
These requirements were met before USEPA published this final
rulemaking taking action on the redesignation requests.
In response to the comment on the protection of the public health.
The public's health is protected as evidenced by the monitoring data
collected in the area. The data show that the air quality levels are
meeting the NAAQS for ozone. These standards were set to protect the
public health and welfare.
(18) Comment: By this proposed approval, USEPA claims the
redesignation request relieves Ohio from submitting SIP revisions
providing transportation and general conformity criteria guidance.
(18) Response: USEPA in this notice does not relieve Ohio from
conformity requirements. Rather, USEPA has determined that those
requirements will continue to apply after the area is redesignated, and
therefore need not be fulfilled as a condition of redesignation.
Section 176(c) of the Act requires States to revise their SIPs to
establish criteria and procedures to ensure that Federal actions,
before they are taken, conform to the air quality planning goals in the
applicable SIP. The requirement to determine conformity applies to
transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the Federal Transit Act
(``transportation conformity''), as well as to all other Federal
actions (``general conformity''). Section 176 further provides that the
conformity revisions to be submitted by the States must be consistent
with Federal conformity regulations that the Act required the USEPA to
promulgate. Congress provided for the State revisions to be submitted
one year after the date of promulgation of final USEPA conformity
regulations.
The USEPA promulgated final transportation conformity regulations
on November 24, 1993 (58 FR 62188), and general conformity regulations
on November 30, 1993 (58 FR 63214). These conformity rules require that
States adopt both transportation and general conformity provisions in
the SIP for areas designated nonattainment or subject to a maintenance
plan approved under section 175A of the Act. Pursuant to 40 CFR 51.396
of the transportation conformity rule and 40 CFR 51.851 of the general
conformity rule, the State of Ohio is required to submit a SIP revision
containing transportation conformity criteria and procedures consistent
with those established in the Federal rule by November 25, 1994, and
November 30, 1994, respectively. Ohio submitted transportation and
general conformity SIP revisions on August 17, 1995. The USEPA has not
yet approved the transportation conformity rules as part of the SIP.
Final rulemaking on the general conformity rules is expected soon.
The USEPA believes it is reasonable to interpret the conformity
requirements as not being applicable requirements for purposes of
evaluating the redesignation request under section 107(d). The
rationale for this is based on a combination of two factors. First, the
requirement to submit SIP revisions to comply with the conformity
provisions of the
FR Doc. 96-11133 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio
Act continue to apply to areas after redesignation to
attainment, since such areas would be subject to a section 175A
maintenance plan. Therefore, the State remains obligated to adopt the
transportation and general conformity rules even after redesignation
and would risk sanctions for failure to do so. While redesignation of
an area to attainment enables the area to avoid further compliance with
most requirements of section 110 and part D, since those requirements
are linked to the nonattainment status of an area, the conformity
requirements apply to both
[[Page 20468]]
nonattainment and maintenance areas. Second, USEPA's federal conformity
rules require the performance of conformity analyses in the absence of
state-adopted rules. Therefore, a delay in adopting State rules does
not relieve an area from the obligation to implement conformity
requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, the
USEPA believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
For the reasons just discussed, the USEPA believes that the ozone
redesignation request for the CAL area may be approved notwithstanding
the lack of fully approved State transportation and general conformity
rules. This policy was also exercised in the Tampa, Florida ozone
redesignation finalized on December 7, 1995 (60 FR 62748).
(19) Comments: A commenter argued that the submission is defective
under section 107(d)(3) because of the absence of a complete and fully
approved implementation plan. The commenter asserted that USEPA cannot
excuse Ohio's failure to submit required SIP revisions coming due after
the November 15, 1994 filing of the redesignation request. The
commenter complained that USEPA in its proposal was illegally
attempting to rectify gaps by waiving applicability of necessary SIP
requirements, including the requirements of 15 percent RFP, attainment
demonstration, and contingency measures. Under section
107(d)(3)(E)(ii), a nonattainment area may be redesignated only after
USEPA has fully approved the applicable implementation plan for the
area under section 110(k).
Under the APA, the Administrator may not suspend applicability of
SIP requirements except by redesignation pursuant to 107(d)(e)(E). This
can be done only if USEPA has fully approved the SIP under 110(k). See
107(d)(3)(E)(iii). Congress allotted USEPA no discretion in determining
what constitutes the applicable plan, but directed it to look at
section 110(k), which does not give the Administrator authority to
decide what constitutes the ``applicable requirements of this Act.''
Under section 107(d), the Administrator can only grant a request to
redesignate to attainment if the state has met all applicable
requirements under section 110 and Part D, and after the state has
adopted a complete implementation plan.
(19) Response: USEPA has not suspended or granted the CAL an
exemption from any applicable requirements. Rather, USEPA has
interpreted the requirements of section l82(b)(1)(A)(i) and l72 (c)(9)
as not being applicable once an area has attained the standard, as long
as it continues to do so. This is not a waiver of requirements that by
their terms clearly apply; it is a determination that certain
requirements are written so as to be operative only if the area is not
attaining the standard.
The May 10 Policy was clear about the consequences of the policy
for redesignations. First, it made plain that a determination of
attainment is not tantamount to a redesignation of an area to
attainment. Attainment is only one of the criteria set forth in
107(d)(3)(E). To be redesignated, the State must satisfy all of the
criteria of 107(d)(3)(E), including the requirement of a demonstration
that the improvement in the area's air quality is due to permanent and
enforceable reductions, and the requirements that the area have a
fully-approved SIP which meets all of the applicable section 110 and
part D requirements, and a fully approved maintenance plan.
Upon a determination of attainment, however, the 182(b)(1)(A)(i)
requirements of RFP and attainment plans, and the 172(c)(9) requirement
of contingency plans are no longer considered applicable requirements
under section 107(d)(3)(E). They would no longer be included among
those measures whose approval is part of the requirement of having a
fully approved SIP.
A commenter contended that, by relying upon its determination of
attainment, USEPA is avoiding the redesignation requirements of 107(d).
This is not the case. What USEPA has done is make a determination that
since the area is attaining the standard, which is a factual
determination, certain provisions of the CAA, whose express purpose is
to achieve attainment of the standard, do not require SIP revisions to
be made by the State for so long as the area continues to attain the
standard. This has long been USEPA's policy with respect to the section
172(c)(9) contingency measures and section 172(c)(2) RFP requirement.
See general preamble at 57 FR 13498. USEPA has also made determinations
regarding section 182(f) NOx waivers at or before the redesignation of
an area and therefore not required NOx RACT submissions to approve such
redesignations. See the Bay Area redesignation at 59 FR 49361.
USEPA disagrees with the commentor's analysis of the language and
structure of the CAA. USEPA's statutory analysis was explained in
detail in the June 8, 1995 direct final rule and in the May 10, 1995
memorandum from John Seitz. USEPA further elaborated upon this
analysis, and responded to many of the concerns raised by the
plaintiffs, in its final determination of attainment of Ozone Standard
for Salt Lake and Davis Counties, Utah, and Determination Regarding
Applicability of Certain Reasonable Further Progress and Attainment
Demonstration Requirements. See 60 FR 36,723 (July 18, 1995). To the
extent here pertinent, such portions of that notice, including the
responses to comments, are incorporated herein by reference.
Thus, USEPA disagrees with the commentors' view that USEPA is not
complying with all the redesignation requirements of 107(d)(3)(E). The
area has a fully approved plan for and has met all applicable
requirements. USEPA has interpreted SIP submission requirements of
section 182(b)(1) regarding reasonable further progress and attainment
demonstration plans, and of section 172(c)(9) regarding contingency
measures to be implemented in the event an area fails to make
reasonable further progress or attain the standard by the attainment
date, not to apply for so long as the area continues to attain the
standard. Since they are not applicable, fulfillment of these
requirements is not necessary to meet the redesignation criteria of
107(d)(3)(E).
The commenter challenges USEPA's authority to determine certain SIP
requirements inapplicable, and then bootstraps that argument to
complain that since CAL has not met these requirements, the
redesignation request only partially fulfills 107(d)(E)(v). The
commenter argues that this is because the state has not met all
``applicable'' requirements under section 110 and Part D; but the
requirements it points to are the very ones that USEPA has determined
are inapplicable.
USEPA rejects this kind of circular argument. Since USEPA has
determined that the statute does not require certain submissions so
long as the area is in attainment, those inapplicable requirements
cannot serve as the basis for concluding that the redesignation request
is defective. Under the criteria of section 107(d)(E)(3) itself, a
state need only meet all applicable requirements, and have a fully
approved plan that contains all required elements. Thus USEPA's
interpretation is fully consistent with the criteria of section
[[Page 20469]]
107(d)(3). Since USEPA has determined that the 15%, attainment
demonstration, and contingency plan requirements are not applicable to
CAL, and has found the SIP to be fully approvable without them, the CAL
area has fairly met the criteria of section 107(d)(3). Certainly USEPA,
after determining that these requirements are inapplicable, could not
in good faith conclude that the redesignation request is defective
because it fails to meet them.
Thus USEPA concludes that, where it has made a determination of
attainment that results in the suspension of requirements, it may rely
on that determination and its consequences in considering the
approvability of a redesignation request.
For the reasons stated above and elsewhere in this Notice, in the
June 29, 1995 Federal Register notices (60 FR 3372, 33781), in the May
10, 1995 memorandum, and in the 60 FR 36,723 (July 18, 1995) Utah
notice, USEPA does not believe that the rulemaking violates any section
of the CAA, nor does it circumvent the redesignation requirements under
section 107(d)(3)(E).
(20) Comment: Citizens Commissions for Clean Air in the Lake
Michigan Area stated that USEPA's action is not a reasonable
interpretation of USEPA's nondiscretionary mandate ``to protect and
enhance the quality of the Nation's air resources so as to promote the
public health and welfare and the productive capacity of its
population[.]}. section 101(b)(1).
(20) Response: The USEPA disagrees with the commentor's statement
that its action violates section 101(b)(1). Section 101(b)(1) does not
establish a nondiscretionary duty; it is a statement of purpose--a
purpose that USEPA is not disregarding in this action. the area has
attained the primary ozone standard, a standard designed to protect
public health with an adequate margin of safety. (see section
109(b)(1)). USEPA's action does not relax any of the requirements that
have led to the attainment of the standard. Rather, its action has the
effect of suspending requirements, for additional pollution reductions,
above and beyond those that have resulted in the attainment of the
health-based standard.
(21) Comment: A commentor asserts that USEPA's action violates the
Administrative Procedure Act and the CAA through its reliance on
unpublished memoranda of John Calcagni and John Seitz and the General
Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990, 57 FR l3498 (April 16, 1992). According to the
commentor, reliance on those documents is inappropriate and illegal
since those documents were issued without opportunity for notice and
comment and are not enforceable regulations.
(21) Response: USEPA's reference to and reliance on those
documents, all of which are either published or publicly available and
a part of the record of this rulemaking, is in no way illegal under
provisions of either the CAA or the Administrative Procedures Act. (The
commentor cited no specific provisions of either act). USEPA agrees
that such documents do not establish enforceable regulations; they do
not purport to be anything but guidance. That is precisely why USEPA
has performed this rulemaking--a notice-and-comment rulemaking to take
comment on its statutory interpretations and factual determinations in
order to make a binding and enforceable determination regarding the CAL
area. The June 29, 1995 Federal Register notice referred to USEPA's
prior policy memoranda not as binding the Agency to adopt the
interpretations being proposed therein, but rather as a useful
description of the rationale underlying those proposed interpretations.
USEPA has explained the legal and factual basis for its rulemaking in
the June 29, 1995 Federal Register notice and afforded the public a
full opportunity to comment on USEPA's proposed interpretation and
determination fully consistent with the applicable procedural
requirements of the Administrative Procedures Act. (The procedural
requirements of section 307(d) of the CAA do not apply to this
rulemaking since it is not among the rulemakings listed in section
307(d)(1).)
(22) Comment: USEPA claims that, in accordance with the October
1994 Nichols memorandum, ``that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation so [long] as they have an approved Prevention of
Significant Deterioration (PSD) SIP or delegated PSD authority.'' 60 FR
at 31439. USEPA apparently believes it can replace NSR with PSD, but
the CAA does not grant the Administrator such discretion.
(22) Response: The USEPA believes that the CAL area may be
redesignated to attainment notwithstanding the lack of a fully-approved
NSR program meeting the requirements of the 1990 Act amendments and the
absence of such an NSR program from the contingency plan. This view,
while a departure from past policy, has been set forth by the USEPA as
its new policy in a memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled
Part D New Source Review (part D NSR) Requirements for Areas Requesting
Redesignation to Attainment.
The USEPA believes that its decision not to insist on a fully-
approved NSR program as a prerequisite to redesignation is justifiable
as an exercise of the Agency's general authority to establish de
minimis exceptions to statutory requirements. See Alabama Power Co. v.
Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under Alabama Power Co.
v. Costle, the USEPA has the authority to establish de minimis
exceptions to statutory requirements where the application of the
statutory requirements would be of trivial or no value environmentally.
In this context, the issue presented is whether the USEPA has the
authority to establish an exception to the requirements of section
107(d)(3)(E) that the USEPA have fully-approved a SIP meeting all of
the requirements applicable to the area under section 110 and part D of
title I of the Act. Plainly, the NSR provisions of section 110 and part
D are requirements that were applicable to the Ohio area seeking
redesignation at the time of the submission of the request for
redesignation. Thus, on its face, section 107(d)(3)(E) would seem to
require that the State have submitted and the USEPA have fully-approved
a part D NSR program meeting the requirements of the Act before the
areas could be redesignated to attainment.
Under the USEPA's de minimis authority, however, it may establish
an exception to an otherwise plain statutory requirement if its
fulfillment would be of little or no environmental value. In this
context, it is necessary to determine what would be achieved by
insisting that there be a fully-approved part D NSR program in place
prior to the redesignation of the CAL area. For the following reasons,
the USEPA believes that requiring the adoption and full-approval of a
part D NSR program prior to redesignation would not be of significant
environmental value in this case.
Ohio has demonstrated that maintenance of the ozone National
Ambient Air Quality Standards (NAAQS) will occur even if the emission
reductions expected to result from the part D NSR program do not occur.
The emission projections made by Ohio to demonstrate maintenance of the
NAAQS considered growth in point source emissions (along with growth
for other source categories) and were premised on the assumption that
the Prevention of Significant Deterioration (PSD) program, rather than
the part D NSR, would be in effect, during the
[[Page 20470]]
maintenance period. Under NSR, significant point source emissions
growth would not occur. Michigan assumed that NSR would not apply after
redesignation to attainment, and therefore, assumed source growth
factors based on projected growth in the economy and in the area's
population. (It should be noted that the growth factors assumed may be
overestimates under PSD, which would restrain source growth through the
application of best available control techniques.) Thus, contrary to
the assertion of the commentor, Ohio has demonstrated that there is no
need to retain the part D NSR as an operative program in the SIP during
the maintenance period in order to provide for continued maintenance of
the NAAQS. (If this demonstration had not been made, NSR would have had
to have been retained in the SIP as an operative program since it would
have been needed to maintain the ozone standard.)
The other purpose that requiring the full-approval of a part D NSR
program might serve would be to ensure that NSR would become a
contingency provision in the maintenance plan required for these areas
by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that,
for an area to be redesignated to attainment, it must receive full
approval of a maintenance plan containing ``such contingency provisions
as the Administrator deems necessary to assure that the State will
promptly correct any violation of the standard which occurs after the
redesignation of the area as an attainment area. Such provisions shall
include a requirement that the State will implement all measures with
respect to the control of the air pollutant concerned which were
contained in the SIP for the area before redesignation of the area as
an attainment area.'' Based on this language, it is apparent that
whether an approved NSR program must be included as a contingency
provision depends on whether it is a ``measure'' for the control of the
pertinent air pollutants.
As the USEPA noted in the proposal regarding this redesignation
request, the term ``measure'' is not defined in section 175A(d) and
Congress utilized that term differently in different provisions of the
Act with respect to the PSD and NSR permitting programs. For example,
in section 110(a)(2)(A), Congress required that SIPs include
``enforceable emission limitations and other control measures, means,
or techniques . . . as may be necessary or appropriate to meet the
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress
required that SIPs include ``a program to provide for the enforcement
of the measures described in subparagraph (A), and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program as required in parts C and D.'' (Emphasis
added.) If the term measures as used in section 110 (a)(2)(A) and (c)
had been intended to include PSD and NSR there would have been no point
to requiring that SIPs include both measures and preconstruction review
under parts C and D (PSD or NSR). Unless ``measures'' referred to
something other than preconstruction review under parts C and D, the
reference to preconstruction review programs in section 110(a)(2)(C)
would be rendered mere surplusage. Thus, in section 110(a)(2) (A) and
(C), it is apparent that Congress distinguished ``measures'' from
preconstruction review. On the other hand, in other provisions of the
Act, such as section 161, Congress appeared to include PSD within the
scope of the term ``measures.''
The USEPA believes that the fact that Congress used the undefined
term ``measure'' differently in different sections of the Act is
germane. This indicates that the term is susceptible to more than one
interpretation and that the USEPA has the discretion to interpret it in
a reasonable manner in the context of section 175A. Inasmuch as
Congress itself has used the term in a manner that excluded PSD and NSR
from its scope, the USEPA believes it is reasonable to interpret
``measure,'' as used in section 175A(d), not to include NSR. That this
is a reasonable interpretation is further supported by the fact that
PSD, a program that is the corollary of part D NSR for attainment
areas, goes into effect in lieu of part D NSR.3 This distinguishes
NSR from other required programs under the Act, such as inspection and
maintenance and Reasonably Available Control Technology (RACT)
programs, which have no corollary for attainment areas. Moreover, the
USEPA believes that those other required programs are clearly within
the scope of the term ``measure.'' 4
---------------------------------------------------------------------------
\3\ The USEPA is not suggesting that NSR and PSD are equivalent,
but merely that they are the same type of program. The PSD program
is a requirement in attainment areas and designed to allow new
source permitting, yet contains adequate provisions to protect the
NAAQS. If any information including preconstruction monitoring,
indicates that an area is not continuing to meet the NAAQS after
redesignation to attainment, 40 CFR part 51 appendix S (Interpretive
Offset Rule) or a 40 CFR 51.165(b) program would apply. The USEPA
believes that in any area that is designated or redesignated as
attainment under section 107, but experiences violations of the
NAAQS, these provisions should be interpreted as requiring major new
or modified sources to obtain VOC emission offsets of at least a 1:1
ratio, and as presuming that 1:1 NOX offsets are necessary. See
October 14, 1994 memorandum from Mary Nichols entitled Part D New
Source Review (part D NSR) Requirements for Areas Requesting
Redesignation to Attainment.
\4\ The USEPA also notes that in the case of the Cleveland, Ohio
area, all permits to install for major volatile organic compound
(VOC) emission sources and major VOC emission source modifications
issued by the State in the moderate ozone nonattainment areas since
November 15, 1992 have complied with the 1.15 to 1.0 VOC emissions
offset ratio. In addition, permits to install cannot be issued under
the Prevention of Significant Deterioration (PSD) program unless the
applicant can demonstrate that the increased emissions from the new
or modified source will not result in a violation of the NAAQS.
---------------------------------------------------------------------------
The USEPA's logic in treating part D NSR in this manner does not
mean that other applicable part D requirements, including those that
have been previously met and previously relied upon in demonstrating
attainment, could be eliminated without an analysis demonstrating that
maintenance would be protected. As noted above, Ohio has demonstrated
that maintenance would be protected with PSD in effect, rather than
part D NSR. Thus, the USEPA is not permitting part D NSR to be removed
without a demonstration that maintenance of the standard will be
achieved. Moreover, the USEPA has not amended its policy with respect
to the conversion of other SIP elements to contingency provisions,
which is that they may be converted to contingency provisions only upon
a showing that maintenance will be achieved without them being in
effect. Finally, as noted above, the USEPA believes that the NSR
requirement differs from other requirements, and does not believe that
the rationale for the NSR exception extends to other required programs.
As the USEPA has recently changed its policy, the position taken in
this action is consistent with the USEPA's current national policy.
That policy permits redesignation to proceed without otherwise required
NSR programs having been fully approved and converted to contingency
provisions provided that the area demonstrates, as has been done in
this case, that maintenance will be achieved with the application of
PSD rather than part D NSR.
(23) Comment: A violation does not occur until the third
``exceedance'', this is deceptive and doesn't help people get
information that the air is polluted. Even though .124 ppm is above the
``standard'' of 0.12 ppm; because of rounding that terrible air
wouldn't even be counted as an exceedances or violation.
[[Page 20471]]
Cleveland-Akron-Lorain's ozone monitors are not on all year. We
should be monitoring year-round. We get unusual weather in northeast
Ohio. We've had temperatures in the 80's during every month when we are
not required by law to monitor. If we had a violation during these
months (we have had extreme haze then and lots of emergency room visits
from respiratory patients), we have no way of knowing, so these days
don't count, either. I am against the redesignation of Cleveland-Akron-
Lorain for these reasons.
(23) Response: Published guidance (Guideline for the Interpretation
of Ozone Air Quality Standards, January 1979, EPA-450/4-79-003), which
is part of the ozone standard by reference in 40 CFR part 50, appendix
H, notes that the stated level of the standard is determined by
defining the number of significant figures to be used in comparison
with the standard. For example, a standard level of 0.12 ppm means that
measurements are to be rounded to two decimal places (0.005 rounds up),
and therefore, 0.125 ppm is the smallest three-decimal concentration
value in excess of the level of the standard that is considered an
exceedance.
Since ozone levels decrease significantly in the colder parts of
the year in many areas, ozone is required to be monitored at monitors
only during the ``ozone season'' which is listed in Appendix D to 40
CFR part 58 for Ohio as April through October. This seasonal definition
was initially set in 1986 based on temperature data. Months where the
monthly mean daily maximum temperature is less than 55 degrees
Fahrenheit were generally excluded from the season. In Cleveland-Akron-
Lorain, this occurs from November through March. In different areas of
the country where months are cooler than 55 degrees Fahrenheit, ozone
concentrations greater than .08 ppm are unlikely to occur. In addition
actual ozone monitoring data for the Cleveland-Akron-Lorain area
collected from 1987 though 1994 for the months of April and October
show only three recorded concentrations above .100 parts per million.
The highest monitored concentration was .109 parts per million during
October 1992. The ozone NAAQS of .12 ppm was not exceeded in the
Cleveland-Akron-Lorain area for the months of April and October from
1987 though 1994. Given the generally lower temperatures of the other
winter months compared to April and October, it is expected that these
months would not have monitored an exceedance of the ozone NAAQS.
(24) Comment: A commenter was concerned that because of the
redesignation to attainment the area would become exempt from
congestion mitigation and air quality (CMAQ) funds which local transit
agencies relied on for new buses and expanded service thus increasing
air pollution.
(24) Response: The federal CMAQ program is designed to give
additional money for air quality nonattainment areas to use on
transportation projects that will improve the air quality and bring the
area into attainment of the air quality standards. The United States
Department of Transportation (USDOT) revised their CMAQ guidance on
July 13, 1995, to allow redesignated areas to have a 2 year transition
period to insure continuity in CMAQ funding for projects which are
programmed in the first 2 years of the transportation improvement
program at the time the area is redesignated to attainment. Although
Cleveland-Akron-Lorain will lose the additional CMAQ funds after the 2-
year transitional period, the projects already programmed for funding
will now be able to continue implementation. Air pollution is not
expected to increase because the stricter standards for new cleaner
cars, trucks and buses will help to decrease pollutant emissions. The
USEPA believes the air pollution emissions will thus continue to
decrease or at least maintain the levels that have brought the area
into attainment.
(25) Comment: The 15% plan approved for Greater Cleveland-Akron-
Lorain fell short of the required reduction because the area did not
choose to do reformulated gasoline. The area has not met this
requirement and should not be redesignated.
(25) Response: USEPA determined that, based on USEPA's
determination of attainment, the requirement for a 15% reduction in
volatile organic emissions in the area is no longer applicable. See the
final action also contained in this final rulemaking. Since this is no
longer an applicable requirement, the area is not required to meet it
before the CAL area can be redesignated. The 15% reduction plan that
was submitted for the CAL area did not rely on reformulated gasoline to
achieve the emissions reduction.
(26) Comment: Several commenters believed there was a potential
conflict of interest when the same entity (i.e. the City of Cleveland)
does the monitoring and also applies for redesignation.
(26) Response: The ambient air data collected by State and local
agencies are required to meet very specific quality assurance measures
that are detailed in 40 CFR 58.10 and appendix A. The USEPA Quality
Assurance manual gives more detailed guidance on operation of ambient
air monitors. The USEPA audits the State and local agencies on a
regular basis to ascertain that the appropriate quality assurance
measures are being implemented. In the case of the Cleveland local
agency, the State air agency (Ohio Environmental Protection Agency) is
responsible for conducting accuracy audits on the air monitoring
equipment being operated by the Cleveland local agency. In addition,
the USEPA conducts audits of the air monitoring network. Precision and
Accuracy audits are reported on a regular basis to the USEPA and
recorded in the national AIRS data bank. This information is available
to the public. This oversight ensures the quality of the data relied
upon for redesignation.
III. Rulemaking Action
On June 29, 1995, USEPA proposed to determine that the 15% plan,
attainment demonstration, and contingency measures plan for the
Cleveland-Akron-Lorain area are no longer applicable requirements,
since the area has attained the ozone NAAQS. The USEPA received several
comments pertaining to the proposed rulemaking. These comments were
considered and responses are detailed in the above section of the
rulemaking on the determination of attainment. USEPA believes that the
determination of attainment is still warranted and is taking final
action to determine that the requirements for a 15% emissions reduction
plan, attainment demonstration, and contingency measures plan are not
applicable at this time.
On June 15, 1995, USEPA proposed to approve the OEPA request for
redesignation to attainment and the maintenance plan for ozone for the
CAL moderate nonattainment area counties of Lorain, Cuyahoga, Lake,
Ashtabula, Geauga, Medina, Summit, and Portage. The USEPA received
about 50 comment letters pertaining to the proposed rulemaking. The
comments were considered and responses are detailed in the above
section of the rulemaking on the ozone redesignation request. The USEPA
believes that the redesignation requirements of Section 107(d) are
satisfied and is taking final action to approve the requests for
redesignation to attainment and the maintenance plan for the CAL
counties of Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit,
and Portage.
IV. Boilerplate Regulatory Language
USEPA finds that there is good cause for this redesignation, SIP
revision, and
[[Page 20472]]
determination of attainment to become effective immediately upon
publication because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment, determination of attainment,
which exempts the areas from certain Clean Air Act requirements that
would other wise apply to it. The immediate effective date for this
redesignation is authorized under both 5 U.S.C. 553(d)(1), which
provides that rulemaking actions may become effective less than 30 days
after publication if the rule ``grants or recognizes an exemption or
relieves a restriction'' and section 553(d)(3), which allows an
effective date less than 30 days after publication ``as otherwise
provided by the agency for good cause found and published with the
rule.''
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.
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 Executive Order 12866 review.
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.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
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 USEPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (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,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
Through submission of the state implementation plan or plan
revisions approved in this action, the State and any affected local or
tribal governments have elected to adopt the program provided for under
section 175A of the Clean Air Act. The rules and commitments being
proposed for approval in this action may bind State, local and tribal
governments to perform certain actions and also may ultimately lead to
the private sector being required to perform certain duties. To the
extent that the rules and commitments being proposed for approval by
this action will impose or lead to the imposition of any mandate upon
the State, local or tribal governments either as the owner or operator
of a source or as a regulator, or would impose or lead to the
imposition of any mandate upon the private sector, USEPA's action will
impose no new requirements; such sources are already subject to these
requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. The USEPA has also determined that this action does
not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 8, 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
Air pollution control, Nitrogen Oxides, Ozone, Volatile organic
compounds.
40 CFR Part 81
Air pollution control.
Dated: April 4, 1996.
Valdas V. Adamkus,
Regional Administrator.
Chapter I, Title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1885 is amended by adding paragraphs (b)(10) and (w)
to read as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(b) * * *
(9) Lorain, Cuyahoga, Lake, Ashtabula, Geauga, Medina, Summit, and
Portage Counties.
* * * * *
(w) Determination--USEPA is determining that, as of May 7, 1996,
the Cleveland-Akron-Lorain ozone nonattainment area (which includes the
Counties of Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage
and Summit) have attained the ozone standard and that the reasonable
further progress and attainment demonstration requirements of section
182(b)(1) and related requirements of section 172(c)(9) of the Clean
Air Act do not apply to the area.
* * * * *
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES--
OHIO
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.336 the ozone table is amended by revising the entry
for the Cleveland-Akron-Lorain Area to read as follows:
[[Page 20473]]
Sec. 81.336 Ohio.
* * * * *
Ohio--Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -----------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Cleveland-Akron-Lorain Area....... May 7, 1996.......... Attainment...........
Ashtabula County
Cuyahoga County
Geauga County
Lake County
Lorain County
Medina County
Portage County
Summit County
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990 unless otherwise noted.
* * * * *
[FR Doc. 96-11133 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11113 Replaceable Light Source Information; Federal Motor Vehicle Safety Standards Lamps, Reflective Devices, and Associated Equipment
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20497-20502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11113]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 564 and 571
[Docket No. 95-47; Notice 2]
RIN 2127-AF65
Replaceable Light Source Information; 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 amends the Federal motor vehicle safety standard
on lighting to allow high intensity discharge (HID) light sources to be
used in replaceable bulb headlamp systems, in addition to their
presently allowed use in integral beam headlamp systems. Adoption of
this amendment requires corresponding amendments to part 564, the
regulation under which Docket No. 93-11 was established as a depository
for replaceable light source information. However, if the life of the
light source approaches that of the vehicle, as is the case with HIDs,
interchangeability will no longer be so important. Therefore, NHTSA is
adding Appendix B to part 564 which allows a manufacturer to submit
fewer items of dimensional information if it can demonstrate that the
rated laboratory life of its light source is not less than 2,000 hours.
DATES: Effective Date: The amendments to the Code of Federal
Regulations, and the requirements of the amendments, are effective June
6, 1996.
Petition Date: Petitions for reconsideration must be received not
later than June 21, 1996.
FOR FURTHER INFORMATION CONTACT: Kenneth O. Hardie, Office of
Rulemaking (202-366-6987).
SUPPLEMENTARY INFORMATION: On June 19, 1995, NHTSA published a notice
in the Federal Register to initiate rulemaking that would amend
Standard No. 108 so as to allow replaceable bulb headlamps to
incorporate short arc discharge light sources (60 FR 31939).
As NHTSA noted in the NPRM, short arc discharge headlamp systems
are commonly referred to as ``high intensity discharge'' (HID) systems.
Presently, the only HID application in production for lamps covered by
Standard No. 108 is in headlamps, and the only way HID headlamps can be
used under Standard No. 108 is in an ``integral beam headlighting
system'' (Section S7.4). Thus, today, HID headlamps are comprised of a
headlamp body (including reflector and lens), a small transparent
envelope containing a specific mixture of gases under high pressure
(the discharge bulb), and an electronic ballast to convert low voltage
direct current to a controlled output high voltage direct or
alternating current to drive the discharge bulb.
However, by definition (S4), an integral beam headlamp (including
those with HID light sources) is one with an ``integral and indivisible
optical assembly'', and a headlamp that is ``not a replaceable bulb
headlamp * * *.'' In the event of damage to one component, such as the
lens, the entire unit, ballast and all, must be replaced. The cost to
replace an integral beam HID headlamp is substantially higher than the
cost of replacing a more conventional headlamp. The initial HID
headlamp permitted (as a result of NHTSA-initiated amendments to
Standard No. 108 to facilitate their introduction) was an integral-type
design. At the time, it was unknown how to define HID sources as
replaceable bulb light sources. The agency is now furthering HID
headlamp technology by defining HID's as ``replaceable light sources'',
so that headlamp components may be individually replaced. This
amendment to Standard No. 108 means that a vehicle manufacturer wishing
to offer HID headlamps now has a choice between two types, integral and
replaceable light source.
Comments in support of the NPRM were received from the American
Automobile Manufacturers Association (AAMA), Ford Motor Co., Hella,
Inc., Koito Manufacturing Co. Ltd., OSRAM Sylvania, Inc. (OSI), and
Stanley Electronic Co., Inc. Comments opposing the proposal were
received from the Insurance Institute for Highway Safety (IIHS) and
Advocates for Highway and Auto Safety (Advocates).
Proposed Amendments to Standard No. 108
S4 Definitions. NHTSA proposed to add a definition of ``filament''
to read:
Filament means that part of the light source or light emitting
element(s), such as a resistive element, the excited portion of a
specific mixture of gases under pressure, or any part of other
energy conversion sources, that generates radiant energy which can
be seen.
No comments were received on this issue and the proposed definition is
adopted.
Paragraph S7.7(i). The NPRM proposed amendments to paragraph
S7.7(i). Under the final rule published on November 28, 1995 (60 FR
58522), transferring HB type light sources to part 564, paragraph
S7.7(i) became paragraph S7.7(b). Under the final rule published today,
paragraph S7.7(b) becomes S7.7(d). The following summary of the
proposal adopts the nomenclature of the final rule, which does not
significantly differ from the proposal.
Paragraph S7.7(d) discusses the procedures for measuring maximum
power and luminous flux. This is followed by two new subparagraphs, the
first of which, S7.7(d)(1), applies specifically to seasoning
requirements for light sources with resistive element type filaments
and luminous flux measurement requirements for HB Type bulbs. The
second, S7.7(d)(2), applies to seasoning requirements for light sources
using excited gas mixtures as filaments or discharge arcs and
associated luminous flux measurement. As for seasoning of light sources
using other energy conversion sources, NHTSA will address this issue
when industry has identified such sources.
OSI recommended that the seasoning for resistive and excited-gas
light sources (including ballasts) should be one percent of rated life,
as set forth in SAE Recommended Practice J2009 FEB93 Discharge Forward
Lighting Systems (hereafter ``SAE J2009''). Ford also recommended that
seasoning for excited gas light sources (including ballast) be in
accordance with SAE J2009. Additionally, Ford recommended that
seasoning for resistive element type filaments be in accordance with
SAE J1383 APR85. NHTSA notes that its proposed amendments affecting
``seasoning'' are consistent with the OSI and Ford recommendations.
Ford found proposed paragraph S7.7(i) confusing and it suggested
changes which it felt would clarify NHTSA's intent. NHTSA concurs, and
has rewritten the provision as S7.7(b) (In addition to recommending
specific
[[Page 20498]]
requirements for the measurement of luminous flux for a light source
with a resistive element type filament, Ford did not object to the
NHTSA proposal to specifically cite seasoning requirements for light
sources using an excited gas mixture).
Regarding proposed paragraph S7.7(l)(7) which would require the
date of manufacture to be placed on the light source, Ford asked that
it not be adopted as it provides no safety benefit and because Standard
No. 108 does not require date of manufacture marking for any other
lamps or lighting equipment. NHTSA concurs, and the proposal is not
adopted.
Readers should note that proposed new paragraph S7.7(l) is adopted
as paragraph S7.7(e). New section S7.7(f) is added to state that, for
light sources that use light generated by gaseous discharge lighting
sources, seasoning shall be in accordance with section 4.0, and the
``rated laboratory life'' shall be determined in accordance with
sections 4.3 and 4.9 of SAE J2009.
S8 Tests and Procedures for Integral Beam and Replaceable Bulb
Headlighting Systems. In the NPRM, NHTSA proposed adding ``specific gas
mixture'' type light sources in the tests specified in S8 to replace
``non-filament type.'' There was no objection and S8 is amended as
proposed.
Other Issues Associated with Short Arc Discharge Lighting Systems.
The only regulatory requirement that NHTSA proposed that addressed the
issue of electrical shock was the marking of the ballast with an
appropriate warning. Stanley recommended the adoption of a universally
agreed upon marking system such as specified by the International
Standards Organization (ISO). However, NHTSA wishes to allow
manufacturers wide latitude in choosing their warnings regarding
electrical shock and has not followed Stanley's suggestion in the final
rule.
Proposed Amendments to Part 564
General. Ford would replace all references to ``filament'' with
``filament or discharge arc.'' NHTSA agrees, and this has been done
when the text could specifically refer to either. Also as indicated
previously, the definition of ``filament'' that was proposed to be
added to Standard No. 108, and it applies to part 564 by virtue of
Section 564.4 which incorporates definitions used in other NHTSA
regulations.
Section 564.2 Purpose. Ford recommended that this section not be
revised because both Appendix A and Appendix B have a common purpose;
``they merely accomplish it by requiring varying degrees of information
detail dependent upon the rated laboratory life of the light source.''
NHTSA disagrees; the intended purposes of Appendix A and Appendix B are
different. One purpose of the former is to assure that replacement
light sources are available and interchangeable. This is not a purpose
of Appendix B because long-life light sources need not be manufactured
for interchangeability purposes by many different aftermarket
suppliers. Because light sources with specifications filed under
Appendix B are expected to last the life of the vehicle, component
replacement would be necessitated primarily by damage. Thus it is
unlikely that the low demand for replacement components would be met by
other than manufacturers of the original equipment devices. This
distinction from Appendix A requires two different statements of
regulatory purposes in section 564.2.
Finally, Appendix B allows manufacturers to retain ballast design
parameters that may include proprietary manufacturing specifications,
whereas Appendix A requires disclosure of such aspects as they relate
to interchangeability.
Paragraph 564.5(a). Under the proposal, relevant manufacturers must
``furnish the information specified in appendix A or appendix B.'' Ford
suggested that this implied that manufacturers could file under either
Appendix when filing under Appendix B is allowable only for long-life
light sources. NHTSA has made an editorial change to clarify that
Appendix B is available only for long-life light sources, while both
Appendices are available for long- life light source information.
Appendix B. Commenters concurred with NHTSA's proposed benchmark
that not less than 2,000 hours of rated laboratory life is a suitable
designation of a long-life light source. In accordance with the
proposal, in the final rule the manufacturer of such a light source may
provide the lesser amount of information that will be required by
Appendix B, but, at its option, can make its submission under Appendix
A. In either event, a replaceable light source which is the subject of
information submitted to Docket No. 93-11 is required to comply with
Standard No. 108.
Stanley commented that a clear definition of ``life'' was not
provided in the NPRM, and recommended that ``life'' of a light source
be defined in terms of luminous flux maintenance. NHTSA concurs that an
explanation is desirable, since Standard No. 108 and Part 564 both
indicate that manufacturers may optionally furnish the information
specified in Appendix B, if the ``rated average laboratory life'' is
not less than 2,000 hours. The SAE has addressed this issue in sections
4.3 and 4.9 of SAE J2009. These sections specify procedures and tests
to determine life of the total HID system measured in both hours and
starting cycles. NHTSA is adopting the term used there, ``rated
laboratory life.'' In so doing, it also examined the definition of
``rated average laboratory life'' which appears in SAE Standard J1383
JUN90. It found that SAE J1383 JUN90 was suitable for incandescent
light sources where lumen drop off occurs at a relatively steady rate
over life, but that HID system lumens drop rapidly during the initial
burning hours and then, later, tend toward a more level rate of drop.
In Koito's view, Appendix B is not necessary. It believes that all
light source submittals to part 564, including HIDs, and regardless of
the rated laboratory life, should contain the information required in
Appendix A. It indicated that the life in hours of an HID light source
will vary with the ballasts combined with it. Therefore, life in hours
for an HID light source is essentially meaningless if the original
ballast is changed to another type of ballast. NHTSA understands this.
It is for this reason that NHTSA is adopting the language proposed in
the NPRM that Item III of Appendix B specifies the rated laboratory
life of the light source/ballast combination instead of that of the
light source alone. Item IV of Appendix B of this final rule reflects
this requirement. Appendix B was specifically intended to accommodate
all ballasts that are functionally interchangeable with a light source
but different in design. New paragraph S7.7(e)(4) of Standard No. 108,
adopted in this final rule, requires that each ballast filed with a
light source bear permanent markings that indicate the rated laboratory
life of the combination. Any part 564 submittal for a light source
requiring ballasts for operation must include information that
specifically identifies all ballasts that will be used with the light
source. Substitution of a ballast other than that identified with the
light source in part 564 is not permitted.
It is important that ballast information be submitted. NHTSA
considers the electronic ballast along with the transparent envelope
containing a specific mixture of gases under pressure (the discharge
bulb) to be an integral part of the light source system, although the
bulb and ballast may be separate components. Furthermore, in
determining compliance with Standard No. 108, testing of the light
source
[[Page 20499]]
without a designated ballast would be difficult if not impossible.
NHTSA has decided not to act upon Koito's recommendation that all
light source submittals (including HID) be required to fulfill all
informational requirements of Appendix A. The intent of Appendix A is
to ensure that sufficient technical information is available to
replacement light source manufacturers so that they may manufacture
identical replacement light sources. NHTSA has decided that requiring
the Appendix B submitter to provide all the information required in
Appendix A is unnecessary if the manufacturer provides rated laboratory
life data supporting a light source and ballast life of 2,000 hours or
more.
Ford recommended that Section I of Appendix A be added to Appendix
B (``Filament Position Dimensions and Tolerances Using Either Direct
Filament Dimensions or the Three Dimensional Filament Tolerance Box'').
Ford also recommended that Appendix B require specification of the
electrode position dimensions and tolerances for light sources using
excited gas mixtures as filaments. Ford stated that the mid-point of
the electrode separation distance would provide a comparable dimension
``A'' of Figure 8 to be utilized in Standard No. 108's section S9
Deflection test for replaceable light sources. NHTSA concurs with this
recommendation since, as Ford stated, the mid-point of the electrode
separation distance would provide a comparable dimension ``A'' which is
required to support the bulb deflection test for replaceable light
sources (S9). NHTSA has accordingly amended Section I of Appendix B as
adopted.
Finally, the reader should note that the conforming amendments to
paragraphs 564.5(a) and (c) reflect the agency's recent amendment of
paragraph S7.7 of Standard No. 108 and 564.5(a) and (c) to transfer HB
type replaceable light sources to Docket No. 93-11 (November 28, 1995;
60 FR 58522).
Comments in Opposition
IIHS opposed the rulemaking action because HID light sources are
more expensive to replace than other light sources and recommended that
the agency not permit the use of increasingly expensive lighting
systems on motor vehicles without conducting a parallel rulemaking to
reinstate a no- damage 5 mph bumper standard. Advocates, too, believed
that the replacement cost for HID headlamp systems ought to be a
central consideration of this rulemaking. NHTSA notes that HID light
sources are permitted in integral beam lighting systems, and will
continue to be so used even if they are not permitted in replaceable
bulb systems. However, the proposal to allow them in such systems is
being adopted because there are no safety disbenefits in allowing them.
The use of replaceable light source HID lighting systems as an
alternative to non-replaceable ones or to resistive element type
filament lighting systems is an issue of the marketplace, not of
safety.
Advocates disagreed with NHTSA that this rulemaking would reduce
costs both to manufacturers and consumers. In its view, NHTSA's
rationale for cost reduction is based upon the fact that HID headlamps
might not have to be replaced for the life of the vehicle and
consequently is not an adequate evaluation of the costs and benefits
accruing to consumers from the institution of HID headlamp systems.
NHTSA's rationale for cost reduction is intended in the context of
HID headlamp systems. In an integral beam system using HIDs, all
headlamp parts must be replaced when a component fails or is damaged,
even for something as simple as a cracked lens. Allowing HID's to be
used in replaceable bulb headlamp systems would permit separability and
the replacement of individual components at significant cost savings to
the consumer. Repair costs for damaged HID headlamps ought to be
significantly reduced if lamp bodies, discharge bulbs and ballasts can
be individually serviced, instead of being replaced as part of a
headlamp assembly. In addition, it is probable that minor damage would
be repaired (such as a cracked lens) that could degrade headlamp
performance if there is an economic incentive not to defer correction
until required to do so, either by failing performance or state motor
vehicle inspection.
Advocates also argued that the rulemaking was mischaracterized as
``non-significant.'' The rulemaking is properly characterized under DOT
policies and procedures. The final rule prescribes an alternative,
optional, headlighting system, and results in no additional costs or
burdens upon any regulated person or upon the public.
Finally, Advocates disagreed with the agency's decision not to
regulate ultraviolet radiation (UV) and electric shock, and recommended
that a supplementary NPRM be issued addressing the possible threat to
human health and safety through UV emissions and high voltages.
There appears to be no current need to do so, other than requiring
a warning marking on the ballast. NHTSA addressed these concerns in the
preamble to the proposal (see 60 FR at 31942). In that discussion,
NHTSA noted that SAE J2009 recognizes UV radiation and electric shock
as potential safety hazards. To address the hazard of UV radiation, the
lighting community has developed HID bulbs that include an additional
transparent envelope which is a UV filter. Other innovative design
solutions are being considered to prevent UV emissions. The need for
high voltage shock safety is also recognized by the SAE document. These
are design and testing issues for the manufacturer. NHTSA will monitor
them and propose rulemaking if it appears to be required for health and
safety.
Effective Date
Since the final rule does not impose any additional burden and is
intended to afford an alternative to existing requirements, it is
hereby found that an effective date earlier than 180 days after
issuance of the final rule is in the public interest. The final rule
(i.e., the amendments to the Code of Federal Regulations and the
requirements specified therein) is effective 30 days after its
publication in the Federal Register.
Rulemaking Analyses
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rulemaking 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. The effect of the rulemaking action is to allow an
alternative headlighting system. It will not impose any additional
burden upon any person. The final rule will reduce costs both to
manufacturers and consumers. Because ballasts will no longer have to be
integral with the light source, manufacturers may use a simpler, less
expensive connector. Consumers may replace separate elements of an HID-
replaceable light source headlamp system as compared with the present
regulation which requires replacement of the whole unit. Impacts of the
rule are, therefore, so minimal as not to warrant preparation of a full
regulatory evaluation.
Regulatory Flexibility Act
The agency has also considered the effects of this rulemaking
action in relation to the Regulatory Flexibility Act. I certify that
this rulemaking action would not have a significant economic
[[Page 20500]]
effect upon a substantial number of small entities. Motor vehicle and
lighting equipment manufacturers are generally not small businesses
within the meaning of the Regulatory Flexibility Act. Further, small
organizations and governmental jurisdictions will not be significantly
affected as the price of new motor vehicles will not be impacted.
Accordingly, no Regulatory Flexibility Analysis has been prepared.
Executive Order 12612 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612 on ``Federalism.'' It has
been determined that the rulemaking action does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
National Environmental Policy Act
NHTSA has analyzed this rulemaking action for purposes of the
National Environmental Policy Act. The rulemaking action will not have
a significant effect upon the environment as it does not affect the
present method of manufacturing motor vehicle lighting equipment.
Civil Justice Reform
This rulemaking action 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. Under 49 U.S.C. 30163, a procedure is set forth 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.
Paperwork Reduction Act
The reporting and record keeping requirement associated with part
564 have been approved by the Office and Management and Budget in
accordance with 44 U.S.C. chapter 35. The OMB control number is 2127-
0563.
List of Subjects in 49 CFR Parts 564 and 571
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, 49 CFR parts 564 and 571 are
amended as follows:
PART 564--REPLACEABLE LIGHT SOURCE INFORMATION
1. The authority citation for part 564 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30166; delegation
of authority at 49 CFR 1.50.
2. Section 564.1 is revised to read as set forth below.
Sec. 564.1 Scope.
This part requires the submission of dimensional, electrical
specification, and marking/designation information, as specified in
Appendix A and Appendix B of this part, for original equipment
replaceable light sources used in motor vehicle headlighting systems.
3. Section 564.2 is revised to read as set forth below.
Sec. 564.2 Purposes.
The purposes of this part are achieved through its Appendices:
(a) The purposes of Appendix A of this part are to ensure
(1) The availability to replacement light source manufacturers of
the manufacturing specifications of original equipment light sources so
that replacement light sources are interchangeable with original
equipment light sources and provide equivalent performance, and
(2) That redesigned or newly developed light sources are designated
as distinct, different, and noninterchangeable with previously existing
light sources.
(b) The purposes of Appendix B of this part are to ensure
(1) That original equipment light sources are replaceable and that
replacement light sources provide equivalent performance, and
(2) That redesignated or newly developed light sources are
designated as distinct, different, and noninterchangeable with
previously existing light sources.
4. Section 564.5 (a), (b), (c), (d) introductory text and (d)(1)
are revised to read as set forth below.
Sec. 564.5 Information filing; agency processing of filings.
(a) Each manufacturer of a motor vehicle, original equipment
headlamp, or original equipment headlamp replaceable light source,
which intends to manufacture a replaceable light source as original
equipment or to incorporate a replaceable light source in its headlamps
or motor vehicles, shall furnish the information specified in Appendix
A. If the rated laboratory life of the light source is not less than
2,000 hours, the manufacturer shall furnish the information specified
in either Appendix A or Appendix B of this part. Information shall be
furnished to: Associate Administrator for Safety Performance Standards,
National Highway Traffic Safety Administration, 400 Seventh Street SW,
Washington, D.C. 20590. Attn: Replaceable Light Source Information
Docket No. 93-11 (unless the agency has already filed such information
in Docket No. 93-11).
(b) The manufacturer shall submit such information not later than
60 days before it intends to begin the manufacture of the replaceable
light source to which the information applies, or to incorporate the
light source into a headlamp or motor vehicle of its manufacture. Each
submission shall consist of one original set of information and 10
legible reproduced copies, all on 8\1/2\ by 11-inch paper.
(c) The Associate Administrator promptly reviews each submission
and informs the manufacturer not later than 30 days after its receipt
whether the submission has been accepted. Upon acceptance, the
Associate Administrator files the information in Docket No. 93-11. The
Associate Administrator does not accept any submission that does not
contain all the information specified in Appendix A or Appendix B of
this part, or whose accompanying information indicates that any new
light source which is the subject of a submission is interchangeable
with any replaceable light source for which the agency has previously
filed information in Docket No. 93-11.
(d) A manufacturer may request modification of a light source for
which information has previously been filed in Docket No. 93-11, and
the submission shall be processed in the manner provided by
Sec. 564.5(c). A request for modification shall contain the following:
(1) All the information specified in Appendix A or Appendix B of
this part that is relevant to the modification requested,
* * * * *
5. Part 564 is amended by revising the heading for section I and
adding Paragraph D to Section I of Appendix A to read as set forth
below.
Appendix A--Information to be Submitted for Replaceable Light Sources
I. Filament or Discharge Arc Position Dimensions and Tolerances
Using Either Direct Filament or Discharge Arc Dimensions or the Three
Dimensional Filament or Discharge Arc Tolerance Box.
* * * * *
[[Page 20501]]
D. For a light source using excited gas mixtures as a filament,
necessary fiducial information and specifications including electrode
position dimensions and tolerance information that provide similar
location and characteristics information required by paragraphs A, B,
and C of this section I for light sources using a resistive type
filament.
* * * * *
6. Part 564 is amended by revising Section IX of Appendix A to read
as set forth below.
Appendix A--Information to be Submitted For Replaceable Light Sources
* * * * *
IX. All other information, dimensions or performance specifications
necessary for interchangeability, replaceability, or system test
purposes not listed in sections I through VIII. If a ballast is
required for operation, a complete listing of the requirements and
parameters between the light source and ballast, and ballast and the
vehicle shall also be provided.
7. Part 564 is amended by adding Appendix B to read as set forth
below.
Appendix B--Information to be Submitted for Long Life Replaceable Light
Sources of Limited Definition
I. Filament or Discharge Arc Position Dimensions and Tolerances
Using Either Direct Filament or Discharge Arc Dimensions or the Three
Dimensional Filament Discharge Arc Tolerance Box.
A. Lower beam filament or discharge arc dimensions or filament or
discharge arc tolerance box dimensions and relation of these to the
bulb base reference plane and centerline.
1. Axial location of the filament or discharge arc centerline or
the filament or discharge arc tolerance box relative to the bulb base
reference plane.
2. Vertical location of the filament or discharge arc centerline or
the filament or discharge arc tolerance box relative to the bulb base
centerline.
3. Transverse location of the filament or discharge arc centerline
or the filament or discharge arc tolerance box relative to the bulb
base centerline.
4. Filament or discharge arc tolerance box dimensions, if used.
B. Upper beam filament or discharge arc dimensions or the filament
or discharge arc tolerance box dimensions and relation of these to the
bulb base reference plane and centerline.
1. Axial location of the filament or discharge arc centerline or
the filament or discharge arc tolerance box relative to the bulb base
reference plane.
2. Vertical location of the filament or discharge arc centerline or
the filament or discharge arc tolerance box relative to the bulb base
centerline.
3. Transverse location of the filament or discharge arc centerline
or the filament or discharge arc tolerance box relative to the bulb
base centerline.
4. Filament or discharge arc tolerance box dimensions, if used.
C. If the replaceable light source has both a lower beam and upper
beam filament or discharge arc, the dimensional relationship between
the two filament or discharge arc centerlines or the filament or
discharge arc tolerance boxes may be provided instead of referencing
the upper beam filament or discharge arc centerline or filament or
discharge arc tolerance box to the bulb base centerline or reference
plane.
D. For a light source using excited gas mixtures as a filament,
necessary fiducial information and specifications including electrode
position dimensions, and tolerance information that provide similar
location and characteristics information required by paragraphs A, B,
and C of this section I for light sources using a resistive type
filament.
II. Bulb Base Interchangeability Dimensions and Tolerance.
A. Angular locations, diameters, key/keyway sizes, and any other
interchangeability dimensions for indexing the bulb base in the bulb
holder.
B. Diameter, width, depth, and surface finish of seal groove,
surface, or other pertinent sealing features.
C. Diameter of the bulb base at the interface of the base and its
perpendicular reference surface.
D. Dimensions of features related to retention of the bulb base in
the bulb holder such as tabs, keys, keyways, surface, etc.
III. Bulb Holder Interchangeability Dimensions and Tolerances.
A. Mating angular locations, diameters, key/keyway sizes, any other
interchangeability dimensions for indexing the bulb base in the bulb
holder.
B. Mating diameter, width, depth, and surface, or other pertinent
sealing features.
C. Mating diameter of the bulb holder at the interface of the bulb
base aperture and its perpendicular reference surface.
D. Mating dimensions of features related to retention of the bulb
base in the bulb holder such as tabs, keys, keyways, surface, or any
other characteristics necessary for mating dimensions.
IV. Electrical Specifications for Each Light Source that Operates
With a Ballast and Rated Life of the Light Source/Ballast Combination.
A. Maximum power (in watts).
B. Luminous Flux (in lumens).
C. Rated laboratory life of the light source/ballast combination
(not less than 2,000 hours).
V. Applicable to Light Sources that Operate With a Source Voltage
Other Than 12.8 Volts Direct Current, and When a Proprietary Ballast
Must Be Used With the Light Source.
A. Manufacturer's part number for the ballast.
B. Any other characteristics necessary for system operation.
VI. Bulb Markings/Designation--ANSI Number, ECE Identifier,
Manufacturer's Part Number, Individual or in Any Combination.
VII. All other identification, dimensions or performance
specifications necessary for replaceability or systems test not listed
in sections I through VI.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.108 is amended by:
(a) adding a definition of ``Filament'' in alphabetical order to
section S4, deleting the definition of ``Seasoning'' in Section S4, and
revising the definition of ``Replaceable light source'' in section S4
to read as set forth below,
(b) revising paragraph S7.7 (a), (b), (c), and (d), and adding new
paragraphs S7.7 (e), (f), and (g) to read as set forth below, and
(c) revising section S8 to read as set forth below:
Sec. 571.108 Motor Vehicle Safety Standard No. 108 Lamps, Reflective
Devices, and Associated Equipment.
* * * * *
54. * * *
Filament means that part of the light source or light emitting
element(s), such as a resistive element, the excited portion of a
specific mixture of gases under pressure, or any part of other energy
conversion sources, that generates radiant energy which can be seen.
* * * * *
Replaceable light source means an assembly of a capsule, base, and
terminals that is designed to conform to the requirements of Appendix A
or Appendix B of part 564 Replaceable Light Source Information of this
Chapter.
* * * * *
[[Page 20502]]
S7.7 * * *
(a) If other than an HB Type, the light source shall be marked with
the bulb marking designation specified for it in compliance with
Appendix A or Appendix B of part 564 of this chapter. The base of each
HB Type shall be marked with its HB Type designation. Each replaceable
light source shall also be marked with the symbol DOT and with a name
or trademark in accordance with paragraph S7.2.
(b) The measurement of maximum power and luminous flux that is
submitted in compliance with Appendix A or Appendix B of part 564 of
this chapter shall be made in accordance with this paragraph. The
filament or discharge arc shall be seasoned before measurement of
either. Measurement shall be made with the direct current test voltage
regulated within one quarter of one percent. The test voltage shall be
12.8v. The measurement of luminous flux shall be in accordance with the
Illuminating Engineering Society of North America, LM-45, IES Approved
Method for Electrical and Photometric Measurements of General Service
Incandescent Filament Lamps (April 1980); shall be made with the black
cap installed on Type HB1, Type HB2, Type HB4, and Type HB5, and on any
other replaceable light source so designed; and shall be made with the
electrical conductor and light source base shrouded with an opaque
white cover, except for the portion normally located within the
interior of the lamp housing. The measurement of luminous flux for the
Types HB3 and HB4 shall be made with the base covered with a white
cover as shown in the drawings for Types HB3 and HB4 filed in Docket
No. 93-11. (The white cover is used to eliminate the likelihood of
incorrect lumen measurement that will occur should the reflectance of
the light source base and electrical connector be low).
(c) The capsule, lead wires and/or terminals, and seal on each Type
HB1, Type HB3, Type HB4, and Type HB5 light source, and on any other
replaceable light source which uses a seal, shall be installed in a
pressure chamber as shown in Figure 25 so as to provide an airtight
seal. The diameter of the aperture in Figure 25 on a replaceable light
source (other than an HB Type) shall be that dimension furnished for
such light source in compliance with Appendix A or Appendix B of part
564 of this chapter. An airtight seal exists when no air bubbles appear
on the low pressure (connector) side after the light source has been
immersed in water for one minute while inserted in a cylindrical
aperture specified for the light source, and subjected to an air
pressure of 70kPa (10 P.S.I.G.) on the glass capsule side.
(d) The measurement of maximum power and luminous flux that is
submitted in compliance with section VII of Appendix A of part 564 of
this chapter, or section IV of Appendix B of part 564 of this chapter,
shall be made with the direct current test voltage regulated within one
quarter of one percent. The test voltage shall be 12.8v. The
measurement of luminous flux shall be in accordance with the
Illuminating Engineering Society of North America, LM 45; IES Approved
Method for Electrical and Photometric Measurements of General Service
Incandescent Filament Lamps (April 1980). The filament of a replaceable
light source shall be seasoned before such measurement. The white
covers are used to eliminate the likelihood of incorrect lumens
measurement that will occur should the reflectance of the light source
base and electrical connector be low.
(1) For a light source with a resistive element type filament,
seasoning of the light source shall be made in accordance with section
2.9 of SAE Standard J1383 APR85 Performance Requirements for Motor
Vehicle Headlamps. The measurement of luminous flux shall be made with
the black cap installed on Type HB1, Type HB2, Type HB4, and Type HB5
light sources, and on any other replaceable light source so designed,
and shall be made with the electrical conductor and light source base
shrouded with an opaque white colored cover, except for the portion
normally located within the interior of the lamp housing. The
measurement of luminous flux for Type HB3 and Type HB4 shall be made
with the base covered with the white cover shown in the drawings for
Types HB3 and HB4 filed in Docket No. 93-11.
(2) For a light source using excited gas mixtures as a filament or
discharge arc, seasoning of the light source system, including any
ballast required for its operation, shall be made in accordance with
section 4.0 of SAE Recommended Practice J2009 FEB93 Discharge Forward
Lighting Systems. With the test voltage applied to the ballast input
terminals, the measurement of luminous flux shall be made with the
black cap installed, if so designed, and shall be made with an opaque
white colored cover, except for the portion normally located within the
interior of the lamp housing.
(e) If a ballast is required for operation, each ballast shall bear
the following permanent markings:
(1) Name or logo of ballast manufacturer;
(2) Ballast part number or unique identification;
(3) Part number or other unique identification of the light source
for which the ballast is designed;
(4) Rated laboratory life of the light source/ballast combination,
if the information for the light source has been filed in Appendix B of
part 564 of this chapter;
(5) A warning that ballast output voltage presents the potential
for severe electrical shock that could lead to permanent injury or
death;
(6) Ballast output power in watts and output voltage in rms volts
AC or DC; and
(7) The symbol `DOT'.''
(f) For light sources that use excited gas mixtures as a filament
or discharge arc, the ``rated laboratory life'' shall be determined in
accordance with sections 4.3 and 4.9 of SAE Recommended Practice J2009
FEB93 Forward Discharge Lighting Systems.
(g) After the force deflection test conducted in accordance with
S9, the permanent deflection of the glass envelope shall not exceed
0.13 mm in the direction of the applied force.
* * * * *
S8 Tests and Procedures for Integral Beam and Replaceable Bulb
Headlighting Systems. When tested in accordance with the following
procedures, each integral beam headlamp shall meet the requirements of
paragraph S7.4, and each replaceable bulb headlamp shall meet the
requirements of paragraph S7.5. Ballasts required to operate specific
gas mixture light sources shall be included in the tests specified in
paragraphs S8.1 and S8.4 though S8.7.
* * * * *
Issued on: April 25, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-11113 Filed 5-06-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-11080 Water Quality Standards for Surface Waters in Arizona
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20686-20694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11080]
[[Page 20685]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Water Quality Standards for Surface Waters in Arizona; Final Rule
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20686]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-5467-9]
Water Quality Standards for Surface Waters in Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes water quality standards applicable to
waters of the United States in the State of Arizona. EPA is
promulgating this rule pursuant to a court order in Defenders of
Wildlife v. Browner (Docket No. Civ. 93-234 TUC ACM). The rule
designates fish consumption as a use for certain waters, and requires
implementation of a monitoring program regarding mercury's effects on
wildlife. On January 29, 1996, EPA published a proposed rule that
included other provisions which are not being promulgated as part of
today's rule because, after EPA's proposal, the Arizona Department of
Environmental Quality adopted revised regulations and policies in those
areas which EPA Region 9 has determined are in accordance with the
Clean Water Act.
EFFECTIVE DATE: June 6, 1996.
ADDRESSES: This action's administrative record is available for review
and copying at the Water Management Division, EPA, Region 9, 75
Hawthorne St., San Francisco, CA 94105. For access to the docket
materials, call (415) 744-1978 for an appointment. A reasonable fee
will be charged for copies.
FOR FURTHER INFORMATION CONTACT: Gary Wolinsky, Permits and Compliance
Branch, W-5, Water Management Division, EPA, Region 9, 75 Hawthorne
St., San Francisco, CA 94105, telephone: 415 744-1978.
SUPPLEMENTARY INFORMATION:
A. Regulated Entities
Entities potentially regulated by this action are those discharging
pollutants to waters of the United States in Arizona. Regulated
categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.................... Industries discharging mercury to surface
waters in Arizona, or discharging
pollutants to particular surface waters
in Arizona listed in sec. 131.31(b) of
the rule.
Municipalities.............. Publicly-owned treatment works discharging
mercury to surface waters in Arizona, or
discharging pollutants to particular
surface waters listed in sec. 131.31(b)
of the rule.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should examine the list
of waterbodies in section 131.31(b) of this rule, and examine 40 CFR
131.2 which describes the purpose of water quality standards such as
those established in this rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Background
Under section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA),
states are required to develop water quality standards for waters of
the United States within the state. Section 303(c) provides that a
water quality standard shall include a designated use or uses to be
made of the water and criteria necessary to protect those uses. States
are required to review their water quality standards at least once
every three years and, if appropriate, revise or adopt new standards.
33 U.S.C. 1313(c). States are required to submit the results of their
triennial review of their water quality standards to EPA. EPA is to
approve or disapprove any new or revised standards. Id.
States may include in their standards policies generally affecting
the standards' application and implementation. See 40 CFR 131.13. These
policies are subject to EPA review and approval. 40 CFR 131.6(f), 40
CFR 131.13.
Section 303(c)(4) of the CWA authorizes EPA to promulgate water
quality standards that supersede disapproved State water quality
standards, or in any case where the Administrator determines that a new
or revised water quality standard is needed to meet the CWA's
requirements.
In September 1993, EPA, Region 9, disapproved portions of Arizona's
standards pursuant to section 303(c) of the CWA and 40 CFR 131.21. The
portions of Arizona's standards disapproved in September 1993 relate
to: the exclusion of mining-related impoundments from water quality
standards; the absence of ``fish consumption'' as a designated use for
certain water bodies; the absence of implementation procedures for the
State's narrative nutrient standard; the absence of biomonitoring
implementation procedures for the State's narrative toxicity criterion;
and the inclusion of practical quantitation limits (PQLs) in Arizona's
standards. In April 1994, EPA, Region 9, also disapproved Arizona's
lack of water quality criteria protective of wildlife for mercury.
On November 1, 1995, the United States District Court for the
District of Arizona ordered EPA to prepare and publish proposed
regulations setting forth revised or new water quality standards for
those standards disapproved in September 1993 and April 1994 within 90
days. Defenders of Wildlife v. Browner, Docket No. Civ 93-234 TUC ACM.
On December 29, 1995, the Arizona Department of Environmental
Quality (ADEQ) published proposed revisions to its standards. 1 Ariz.
Admin. Reg. 2811.
Consistent with the Court's order, on January 29, 1996, EPA
published a Federal Register notice proposing standards related to the
mining exclusion, fish consumption designated use, PQLs, and
implementation policies and procedures. 61 FR 2766. The notice also
identified, and sought comment on, policies that EPA, Region 9,
intended to use to implement State narrative criteria as they relate to
toxicity, nutrients, and mercury.
The Court order in Defenders of Wildlife directs EPA to promulgate
final water quality standards 90 days after EPA proposes such standards
unless Arizona has adopted revised or new water quality standards which
EPA determines are in accordance with the CWA. In January 1996, ADEQ
adopted implementation procedures for the State's narrative nutrient
criteria. In April 1996, ADEQ adopted implementation procedures for the
State's narrative toxic criteria. On April 26, 1996, EPA, Region 9,
approved Arizona's implementation procedures for the State's narrative
nutrient and toxic criteria. Because EPA has
[[Page 20687]]
determined that Arizona has addressed EPA's 1993 disapproval action
regarding the absence of appropriate implementation procedures for
toxicity and nutrients through the adoption of procedures that are in
accordance with the Act, EPA is not promulgating provisions in the
final rule related to these implementation procedures.
ADEQ adopted revisions to its standards on March 22, 1996, and,
after obtaining the approval of the State's Regulatory Review Council,
filed revisions to its standards with Arizona's Secretary of State on
April 24, 1996. ADEQ's rulemaking repealed the mining related provision
(R18-11-103.2) disapproved by EPA, Region 9, in September 1993, and
established a revised exemption related to mining impoundments at R18-
11-102. In addition, ADEQ's rulemaking added the fish consumption use
to most of the waters which would have been designated with the fish
consumption use under EPA's proposal. The State's rulemaking also
deleted the appendix which prescribed PQLs from the State's water
quality standards regulations. On April 26, 1996, EPA, Region 9
approved these revised regulations thereby removing the need to
promulgate a Federal regulation addressing these issues.
ADEQ has also participated, with EPA, Region 9, and the U.S. Fish
and Wildlife Service, in the development of an interim approach to
protect predatory wildlife from mercury until appropriate numeric
criteria can be developed. In conjunction with Arizona's priority
pollutant program, ADEQ, in cooperation with the Arizona Game and Fish
Department, the U.S. Fish and Wildlife Service, and EPA will conduct a
tissue monitoring program to assess the magnitude and extent of mercury
bioaccumulation in the prey base of the bald eagle and other fish-
eating birds in Arizona. The monitoring program identifies further
actions related to sampling, source identification and remedy selection
which the agencies will undertake if mercury levels in fish are found
above a specified action level. Because pursuit of this monitoring
program is an important component in addressing the problem of mercury
contamination in Arizona waters, EPA has included the proposed
regulatory provision related to mercury in the final rule. In addition,
EPA is promulgating the fish consumption use designation for
waterbodies identified in EPA's proposal for which the State did not
adopt the fish consumption use designation. As explained more fully
below, should EPA decide to approve ``use attainability analyses''
recently submitted by Arizona, EPA will proceed expeditiously to
withdraw the revised use designations contained in today's rule.
C. Summary of Final Rule and Response to Major Comments
A description of EPA's final action, and a summary of major
comments regarding the proposal and EPA's response, are set forth
below. Additional comments and responses to comments are in the
administrative record.
1. ``Fish Consumption'' Use
Arizona has designated several uses for its waters, including uses
defined as ``fish consumption'', ``aquatic and wildlife (cold water
fishery)'', ``aquatic and wildlife (effluent dominated water)'',
``aquatic and wildlife (ephemeral)'', and ``aquatic and wildlife (warm
water fishery)''. See, R-18-11-101, and Appendix B of Title 18, Chapter
11, Article 1, of Arizona Administrative Rules and Regulations.
In September 1993, EPA disapproved the lack of the ``fish
consumption'' (FC) use for water bodies which Arizona designated as
having an ``aquatic and wildlife'' use. For the standards to be
approvable, EPA stated that the State must either revise its standards
to include the FC use, or submit ``use attainability analyses'' (UAAs),
for the subject waters. A UAA is a scientific assessment showing
whether it is feasible to attain a particular use. See, 40 CFR 131.3(g)
and 131.10(j).
ADEQ subsequently completed UAAs showing that it need not designate
the FC use for those effluent dominated or ephemeral waters which it
had not already designated as having the FC use. EPA approved those
UAAs in November 1995.
In December 1995, ADEQ proposed to revise its standards to add the
FC use to waters within the State which have the ``aquatic and wildlife
(cold water fishery)'' or ``aquatic and wildlife (warm water fishery)''
use. See, 1 Ariz. Admin. Reg. 2811 (Dec. 29, 1995), proposed R-18-11-
104 and Appendix B of Title 18, Chapter 11, Article 1, of Arizona
Administrative Rules and Regulations.
In January 1996, EPA proposed to designate the fish consumption use
for those waters which Arizona had designated as having an ``aquatic
and wildlife'' use, in those cases where the requirements for
completing a UAA had not been met. The affected stream segments and
water bodies were listed in proposed section 131.31(c). Each of the
affected waters were, at the time of EPA's proposal, designated by
Arizona as having the ``aquatic and wildlife (cold water fishery)'' or
``aquatic and wildlife (warm water fishery)'' use.
With the exception of fifteen waterbodies, Arizona's April 1996
final rulemaking established the FC use for all the waterbodies subject
to EPA's proposal.
EPA is not promulgating a Federal rule designating the FC use for
those waters which now have that designated use under Arizona's rules.
In addition, EPA is not promulgating a Federal rule designating the FC
use for Quarter Circle Bar Tank. EPA has determined that that waterbody
is located within the boundaries of the Navajo Reservation and this
rulemaking only applies to waters within the jurisdiction of the State
of Arizona. The spelling of two waterbodies has been corrected in the
final rule.
On April 3 and April 10, 1996, ADEQ submitted UAAs in support of
its determination not to designate the FC use for eleven of the
fourteen State waterbodies listed in EPA's proposal which did not
receive the FC use designation under Arizona's April 1996 rulemaking.
EPA is currently reviewing the analyses provided by the State. In
accordance with Region 9 practice in this area, the Region has also
sent out the new analyses for public review and comment to persons and
organizations with interests related to water quality standards
determinations in Arizona. EPA has asked for comments by May 15, 1996.
ADEQ intends to submit a UAA in support of its determination not to
designate the FC use for the three remaining waterbodies (Davidson
Canyon and Tinaja Wash in the Santa Cruz River Basin, and Chase Creek
in the Upper Gila River Basin) listed in EPA's proposed rule. EPA,
Region 9, will send out that UAA for public review and comment.
Because EPA is under court order to promulgate this regulation by
the end of April, and the State submitted UAAs with insufficient time
for the Agency to adequately review the documentation and solicit
public comment prior to its court-ordered deadline, EPA is promulgating
the fish consumption use designation for waterbodies identified in
EPA's proposal which do not now have the FC designated use. Should EPA
approve, after completing its review of the UAAs and public comments,
the State's determination that attaining the FC use is not feasible
with respect to a waterbody listed in today's rule, EPA will proceed
expeditiously to withdraw the revised use designation contained in
section 131.31(c) with respect to that waterbody. If EPA approves the
State's UAA prior to the effective date of this rule with respect to a
waterbody listed
[[Page 20688]]
in section 131.31(c), EPA intends to stay the effectiveness of the
Federal use designation with respect to that waterbody pending
withdrawal of that part of the rule by EPA.
EPA received a number of comments opposing provisions of the
proposed rule relating to fish consumption. One commenter submitted
extensive comments objecting to EPA's proposal to promulgate the FC
designated use, particularly with respect to the segment of the Salt
River from the I-10 bridge to the 23rd Avenue WWTP discharge. The
commenter contended that EPA should not have disapproved the lack of
the FC use on waters designated by Arizona as having the aquatic and
wildlife (warm water fishery) use. The commenter stated that EPA's
disapproval did not explain how the Arizona standards were inconsistent
with section 101(a)(2) of the Act, that EPA's reliance upon 40 CFR
131.10(j)(1) in its disapproval was inappropriate, and that a UAA was
not required in order to avoid designating the FC use for the subject
waters. The commenter stated that EPA rules and guidance documents do
not require a FC designated use if other water quality standards are
sufficient to protect the health of persons who may consume harvested
aquatic life, and that the Act does not require a specific FC use for
any waters at all. This commenter further stated that EPA has generated
no evidence to support its hypothesis that the aquatic and wildlife
(warm water fishery) designated use is not sufficient for the minimal
harvesting of edible aquatic life that could potentially occur on the
Salt River segment between the I-10 Bridge and the 23rd Avenue
wastewater treatment plant. The commenter stated that Arizona's use
designations and criteria, taken as a whole, are entirely
``consistent'' with the goals of the CWA, and that consistency is all
that is required in light of 40 CFR 131.5 and 131.6. The commenter
stated that the CWA and Arizona law require protection of only those
uses that are actually occurring or are reasonably foreseeable, and
that EPA erroneously assumed in this case that the Act requires the FC
use found in the Arizona water quality standards to apply to all river
segments regardless of local environmental conditions, the degree and
types of harvesting by humans, and the types of aquatic life in the
riverbed.
EPA continues to believe that EPA Region 9's disapproval of the
absence of fish consumption use designations for certain waterbodies
was consistent with the requirements of the CWA. EPA regulations
regarding use designations provide that a State ``must conduct a use
attainability analysis as described in 40 CFR 131.3(g) whenever the
State designates or has designated uses that do not include the uses
specified in section 101(a)(2) of the Act.'' 40 CFR 131.10(j)(1).
Section 101(a)(2) of the CWA provides that water quality ``shall
provide for the protection of fish, shellfish, wildlife and recreation
in and on the water'', and, in EPA's view, the ``protection'' of fish,
shellfish, and recreation necessarily includes ensuring that fish are
not so contaminated that they are unhealthful for human consumption.
Nonetheless, the State had failed to include designated uses that would
protect such aquatic life for purposes of human consumption, or to
perform a UAA demonstrating that this use was not attainable. EPA,
Region 9, therefore appropriately concluded that the State's standards
were not ``consistent with'' the goals of the CWA. Finally, while this
commenter asserts that a FC designated use is not necessary if other
standards are sufficient to protect the health of persons, the State
has not contended that it has adopted criteria applicable to these
waters that would protect human health. The State's existing water
quality criteria were derived to protect aquatic life itself, not
humans who consume it. Unlike aquatic life criteria, human health
criteria take into account many factors that must be considered to
ensure that pollutant residues in fish, when consumed by humans, do not
result in adverse health effects. See generally 40 CFR Part 132,
Appendices A and C, 60 FR 15393-15411 (March 23, 1995) (containing
methodologies for deriving aquatic life and human health criteria for
the Great Lakes Basin). EPA therefore believes that there is not a
reasonable basis to conclude that the State's aquatic life criteria
will provide protection for persons consuming fish from these specified
waterbodies.
This commenter apparently also would seek to place the burden on
EPA Regions to demonstrate that existing uses and criteria are not
adequate to protect human health, taking into account local
environmental conditions and consumption patterns, prior to
disapproving state standards that fail to include the uses reflected in
section 101(a)(2) of the Act. This position ignores the fact that,
under EPA regulations, a UAA is the appropriate mechanism by which
States can determine whether local environmental conditions and other
factors justify the absence of a use otherwise meriting protection
under the Act. Turning this process on its head and requiring EPA,
which has far less familiarity with local circumstances and conditions
than does the State agency, to make these determinations would be
impracticable and would significantly undermine the health protection
goals of the Act. Finally, the issue in Arizona was not whether the
State had reasonably concluded that existing standards for these
waterbodies would protect human health. Rather, it was the State's
failure to adopt standards protecting human health that precipitated
the Region's disapproval action.
One commenter stated that, even if an additional use designation
were necessary and supported by an administrative record, EPA has
failed to promulgate scientifically supportable, reasonable and
necessary numeric criteria to protect the use. The commenter stated
that the CWA requires numeric criteria only for those toxic pollutants
for which criteria have been published under section 304(a) of the CWA,
the discharge or presence of which in the affected waters could
reasonably be expected to interfere with those designated uses adopted
by the State, as necessary to support such designated uses, and that
EPA has not conducted the analysis required by this section to
determine what numeric criteria would be appropriate to support the new
FC use on the affected surface waters. The commenter stated that there
is no administrative record to support EPA's FC use and associated
numeric criteria for all surface waters, and that EPA should have
considered whether any of the surface waters potentially subject to the
new FC use would be entitled to a modification of the use on the basis
of the factors in 40 CFR 131.10(g). The commenter also stated that the
social and economic impact of the FC designations would be severe in
Phoenix, noting that some of the Phoenix storm water outfalls discharge
into the Salt River segment that would be reclassified under the
proposed rule. The commenter stated that the proposed rule could have a
substantial impact on storm water discharges and substantially increase
costs to the public without any demonstrated improvement in public
health. The commenter further stated that the upgrading of the Salt
River and other segments with the FC use could also have a ripple
effect that would result in more costly standards for upstream
ephemeral segments, noting that Arizona water quality standards appear
to require that designated uses for upstream segments shall not cause a
violation of water quality standards in downstream segments, and that
economic impact of the proposed FC use could spread
[[Page 20689]]
upstream to ephemeral waters that clearly do not warrant the FC use.
The comments regarding the appropriateness of criteria that will
now apply to these waterbodies appear to indicate that commenters have
misunderstood EPA's action. The State has itself adopted criteria that
it believes are appropriate for providing protection of persons
consuming fish from many State waters. EPA is not second-guessing this
determination by the State. EPA also disagrees that it was under a duty
to evaluate the attainability of the fish consumption use taking into
account the factors in 40 CFR 131.10(g). Again, under EPA regulations,
States have the opportunity and responsibility for conducting UAAs to
demonstrate that uses consistent with the goals of the CWA are not
attainable. The State had failed to do so here. EPA therefore was
within its authority to determine that the use designations needed to
be revised to be consistent with the goals in CWA section 101(a)(2).
The State remains free to determine, based on local environmental
conditions or the costs that it determines could be associated with the
revised use designations, to downgrade use designations in accordance
with 40 CFR 131.10(g). No commenters provided information during the
public comment period indicating that, in fact, the revised use
designations were not attainable according to the criteria contained in
section 131.10(g).
Another commenter also questioned whether the segment of the Salt
River from the I-10 bridge to the 23rd Avenue WWTP discharge should be
designated as having the fish consumption use. The commenter stated
that, if EPA's rationale for promulgating the fish consumption use is
simply because the stream segment had been designated by Arizona as
having the ``aquatic and wildlife (warm water fishery)'' use, then the
process and rationale for designating the segment is suspect and should
be reviewed.
Another commenter stated that the fish consumption designated use
should not be presumptively applied to all water bodies, and should be
applied only when it is shown that fishing is a legal, continuous, and
widespread use of a particular water body. The commenter objected to
allowing the addition of designated uses to a stream segment without
the requirement to make any particular showing while the removal of a
use may take place only after a comprehensive use attainability
analysis which is often beyond the financial or technical capability of
the individuals most directly affected by the inappropriately
designated use.
Another commenter sought clarification that EPA's designation of
the fish consumption use would be limited to water bodies which are
waters of the United States.
As explained previously, EPA believes that it was appropriate and
consistent with the requirements and goals of the CWA to promulgate
fish consumption use designations where the State has designated the
waters as supporting aquatic life. EPA disagrees that the CWA places a
burden on EPA or States to demonstrate legal, widespread and continuous
use of a waterbody before adopting a FC use designation. No such
restriction is evident in the language or legislative history of the
CWA. To support a particular use designation, it is sufficient that
such a use be attainable in the waterbody. Regarding the use
designation for the Salt River from the I-10 bridge to the 23rd Avenue
WWTP discharge, that segment is not addressed by today's rule since the
State adopted the FC use for this waterbody. See, R-18-11-101, and
Appendix B of Title 18, Chapter 11, Article 1, of Arizona
Administrative Rules and Regulations, as filed on April 24, 1996.
The one commenter is correct that the revised use designations only
apply to waters that meet the definition of waters of the United
States.
2. Water Quality Criteria Protective of Wildlife for Mercury
Arizona has established numeric criteria for mercury for ``aquatic
and wildlife'', ``fish consumption'', ``domestic water source'' and
other uses designated for its waters. See, Appendix A of Title 18,
Chapter 11, Article 1, of Arizona Administrative Rules and Regulations.
As part of its consultation with EPA regarding Arizona's water quality
standards pursuant to section 7 of the Endangered Species Act, the U.S
Fish and Wildlife Service (FWS) determined that Arizona's mercury
criteria for protection of aquatic and wildlife uses were developed
without consideration of bioaccumulative effects for predatory
wildlife, and the FWS identified the adoption of mercury criteria
protective of wildlife as a means to remove jeopardy to endangered and
threatened species in the context of the Endangered Species Act.
Based upon FWS's determinations, EPA, Region 9, in April 1994
disapproved Arizona's lack of water quality criteria protective of
wildlife for mercury.
While the FWS identified the adoption of a mercury criterion
protective of wildlife as a reasonable and prudent alternative to avoid
jeopardizing endangered and threatened wildlife species, further
discussions between EPA, ADEQ, Arizona Game and Fish Department, and
the FWS led to the development of an alternative program to address the
problem of mercury's impacts on endangered and threatened species. The
Service indicated its overall approval of this approach to dealing with
the problem of mercury as it relates to the protection of wildlife and,
on January 17, 1996, revised its determination which initially
identified adoption of a mercury criterion as a reasonable and prudent
alternative for removing jeopardy to endangered species. Accordingly,
in January 1996, EPA proposed section 131.31(f) to address the
deficiency in the State's standards related to mercury's effect on
wildlife, and solicited comment upon EPA's intent to implement a
monitoring and source identification program to assist EPA in
implementing Arizona's narrative toxicity criteria.
ADEQ has continued to participate, with EPA, Region 9, and the U.S.
Fish and Wildlife Service, in the development of an interim program to
protect predatory wildlife from mercury until appropriate numeric
criteria can be developed. The program developed by the agencies is
described in ``Arizona Priority Pollutant Sampling Program, ADEQ/AGFD/
USFWS/USEPA Cooperative Program'', March 29, 1996. Under that program,
ADEQ, in cooperation with the Arizona Game and Fish Department, the
U.S. Fish and Wildlife Service, and EPA will conduct a tissue
monitoring program to assess the magnitude and extent of mercury
bioaccumulation in the prey base of the bald eagle and other fish-
eating birds in Arizona. This monitoring program identifies further
actions related to sampling, source identification, and remedy
selection which the agencies will undertake if mercury levels in fish
are found above a specified action level.
EPA received comment upon its proposal to adopt section 131.31(f)
and upon the monitoring and source identification program identified in
the Federal Register notice. A commenter stated that, even with the
implementation procedures proposed by EPA, Arizona's narrative toxicity
criteria would not protect against food chain accumulation in birds and
other fish-eating species. The commenter contended that there was no
deadline for completion of the monitoring and stated that there is no
need to wait for further fish tissue monitoring because recent tests in
certain lakes have found mercury levels exceeding the 0.1 mg/kg level
identified under the proposed
[[Page 20690]]
monitoring program as the trigger for further control efforts. The
commenter also noted that a mercury criterion to protect against food
chain accumulation has been established for the Great Lakes, and that a
similar criterion could be developed for Arizona. The commenter stated
that the Arizona criterion might differ if there were evidence that
mercury uptake rates among Arizona fishes are markedly different than
among Great Lakes fishes, but that EPA has offered no evidence to
suggest this is so.
EPA's long-term goal is the adoption of a mercury criterion for
wildlife. However, despite the claims by the commenter, the data
currently are not available to derive a mercury criterion for wildlife
in Arizona using the methodology developed for the Great Lakes. A
detailed discussion of the data needed to develop a criterion is
discussed below. In lieu of a numeric criterion, EPA believes that the
approach of using Arizona's narrative criterion in R18-11-108 for
toxicity in combination with the implementation of the tissue
monitoring program will satisfy the requirements of the CWA to provide
protection of designated uses, including wildlife protection and
propagation.
With regard to the commenter's general point regarding the
necessity of having numeric criteria in order to meet the requirements
of the CWA, it should be emphasized that the absence of a numeric
criterion for a specific pollutant is not unusual. EPA has not
published criteria guidance for the protection of aquatic life for all
pollutants. To account for this unavoidable absence of numeric criteria
for all pollutants, States include narrative criteria as part of their
standards. Narrative criteria are intended to cover all pollutants and
endpoints for which the state has not adopted numeric criteria. The
role of narrative criteria in the CWA's regulatory program is evident
in EPA's permitting regulations which include explicit provisions
requiring permit limits to ensure narrative criteria are not exceeded.
40 CFR 122.44(d)(1)(vi).
In addition, the commenter was concerned that there was no deadline
for completion of the tissue monitoring program. However, sampling will
commence in the spring of 1996 and continue through the year 2000. The
FWS biological opinion, and the FWS's revised determination regarding
reasonable and prudent alternatives, are included in the administrative
record for this rulemaking.
The purpose of the tissue monitoring program is to provide
information that can be used to assist in evaluating the magnitude of
mercury contamination of wildlife in Arizona. The monitoring program
was developed in consultation with the FWS, ADEQ, and Arizona Game and
Fish Department. EPA believes the sampling program is a reasonable
first step for identifying those areas in the State where problems may
exist and for designing control strategies that will help remediate
such problems to benefit wildlife protection in Arizona. The program
will assist EPA in determining whether contaminated fish species are
isolated cases due to particular sources of pollution (in which case
development of permit limits for a particular discharger based on the
State's existing narrative criterion may be the best means of remedying
the problem) or whether they are indicative of a larger State-wide
problem which needs to be addressed (potentially based on state-wide
numeric criteria, when development of such criteria are technically
feasible). If during the tissue monitoring it is determined that the
mercury tissue levels are consistently found above the action level of
0.1 mg/kg in the prey base of bald eagle or Yuma clapper rail, then
steps will be taken to identify the sources of the contamination and
identify possible corrective measures.
EPA is concerned with the elevated mercury levels at the
waterbodies identified by the commenter. While neither of the two lakes
specifically cited by the commenter were identified by FWS as priority
water bodies for sampling for mercury for threatened and endangered
species, EPA is seeking to identify the sources contributing to the
mercury levels detected in the two lakes and corrective measures for
them.
The commenter is correct that a methodology for deriving wildlife
criteria and a mercury criterion for wildlife were recently established
in the Great Lakes Water Quality Initiative (``GLI''). It is important
to note that the GLI wildlife methodology and criteria were developed
over several years with input from two national conferences and several
consultations with EPA's Science Advisory Board along with over 5000
public comments on the proposed GLI. In addition to the large effort
undertaken to develop the methodology and criteria, EPA stated very
clearly in the Supplementary Information Document to the GLI that:
EPA would like to reemphasize that the provisions in the
proposed and final Guidance are expressly applicable only to the
waters of the Great Lakes System * * * States or Tribes with waters
outside the Great Lakes Systems, in whole or in part, are encouraged
to implement any of the Guidance methodologies or procedures that
are scientifically and technically appropriate for their situations.
Supplementary Information Document, p. 82.
EPA believes the methodology used in the GLI for deriving a mercury
wildlife criteria may be appropriate for use in Arizona with some
modifications based on the specific conditions in Arizona. This does
not mean, however, that a criterion can simply be developed using the
data from the Great Lakes. In addition, the commenter implies that the
only question which needs to be considered when applying the GLI
methodology is whether the mercury uptake rates among Arizona fishes
are markedly different than among Great Lakes fishes. In fact, the
bioaccumulation potential is only one component that goes into the
derivation of wildlife criteria.
ADEQ reviewed the GLI methodology for deriving wildlife criteria to
evaluate its applicability to Arizona and submitted their comments to
EPA on May 12, 1995, which are part of the administrative record. EPA
agrees with ADEQ that ecological conditions differ in Arizona from the
Great Lakes region. Therefore direct application of the GLI methodology
without modification is probably not appropriate. Development of a
wildlife criterion to protect wildlife from mercury in Arizona will
likely require the completion of tasks analogous to those undertaken by
EPA in the GLI. This effort is necessary because several components
within the wildlife methodology are specific to the type of aquatic
ecosystem and associated wildlife species. It would not be
scientifically defensible to directly adopt the mercury wildlife
criterion for the Great Lakes in the regulation of Arizona ecosystems
without further analyses to support such a decision. Issues that will
require further data evaluation and analyses include: (1) The
establishment of representative wildlife species for aquatic ecosystems
in Arizona, including a determination of their water and food intake
rates and the prey that comprises their diets; (2) a determination of
appropriate mercury toxicity thresholds for the representative wildlife
species identified for Arizona ecosystems; and (3) the establishment of
mercury bioaccumulation factors appropriate for Arizona ecosystems and
their associated food chains.
The technical analyses needed to establish the representative
species (and their associated attributes) and appropriate mercury
bioaccumulation factors will likely require the largest effort because
these items are most closely associated with the site-specific nature
of wildlife criteria. In addition to
[[Page 20691]]
the data evaluation and analyses, peer review would be appropriate for
any wildlife methodology and associated criteria developed in Arizona
given the numerous technical and scientific issues involved in
developing such a methodology.
In summary, while EPA believes the development of a wildlife
criterion for mercury may be possible, with some modifications, using
the methodology developed in the GLI, the data to support the
development of such a criterion are not currently available. Therefore,
until this information is collected, EPA believes the approach of
relying on the narrative criterion combined with the tissue monitoring
program will provide protection of wildlife in a manner consistent with
the requirements of the Endangered Species Act and Clean Water Act.
EPA is continuing to evaluate the comments upon the substance of
the monitoring program, for the purpose of determining whether
modifications to the program are warranted.
Another commenter indicated that EPA's disapproval of Arizona's
lack of water quality criteria protective of wildlife for mercury
should have been limited to the need for a mercury criterion applicable
to only those surface waters where affected endangered species are
likely to be adversely impacted.
EPA's disapproval action was based upon the biological opinion
issued by the FWS, which found that the State's existing criteria for
mercury failed to consider the effects of bioaccumulation of pollutants
on wildlife. Because bioaccumulative effects may extend beyond
threatened and endangered species to other species of wildlife, EPA's
disapproval appropriately extended to Arizona's waters generally.
D. Summary of Provisions in Proposal Not Included in Final Rule
1. Mining Exclusion
In September 1993, EPA, Region 9, disapproved the exclusion related
to mining contained in the State's standards at Arizona Administrative
Rules and Regulations, R18-11-103.2. That exclusion provided that
Arizona's standards did not apply to certain impoundments and
associated ditches and conveyances used in the extraction,
beneficiation and processing of metallic ores.
In EPA's January 1996 Federal Register notice of proposed
rulemaking, EPA sought comment on a proposed Federal rule that would
adopt standards for any waters of the United States not governed by
State standards due to R18-11-103.2, as that State rule then existed.
In the preamble to the proposed Federal rule, EPA also solicited
comment regarding revisions to R18-11-102 that the State had proposed
in December 1995 regarding the applicability of its standards to
impoundments and associated ditches and conveyances used in the
extraction, beneficiation and processing of metallic ores.
In April 1996 Arizona repealed R18-11-103 in its entirety and
revised R18-11-102 by, among other things, adding provisions related to
the applicability of the State's standards to mining-related
impoundments. R18-11-102 as promulgated differs in certain respects
from the proposed revision upon which EPA sought comment in its January
1996 Federal Register notice.
EPA has determined that Arizona's repeal of R18-11 103.2, and
Arizona's adoption of revisions to R18-11-102 regarding the
applicability of the State's standards to certain impoundments and
associated ditches and conveyances, are consistent with the CWA, and
that a Federal rule with respect to such impoundments and associated
ditches and conveyances is not therefore needed to meet the CWA's
requirements. EPA believes that the State's revision to R18-11-103.2
adequately addresses EPA's concerns because it excludes from standards
only those waters that are not waters of the United States.
Accordingly, EPA is not promulgating the provision which it proposed
regarding mining-related impoundments, and comments opposing the
adoption of the proposed Federal rule are moot.
Other commenters objected to mining-related exclusions under
consideration in Arizona's rulemaking or encouraged adoption of a
Federal rule in order to clarify the applicability of water quality
standards to mining-related activities. One commenter supported the
application of water quality standards to surface water bodies that
have been converted into mining impoundments. The commenter also
indicated that EPA's rule should address the extent to which water
quality standards are applicable in cases involving stream diversions
and the placement of mining wastes in dammed creek beds or valleys. The
commenter indicated its support for broadening the protections
associated with water quality standards to cover impoundments built in
the drainages of diverted water bodies. Another commenter suggested
that uncertainty would be created if Arizona adopted the mining-related
revisions then under consideration. The commenter noted that it would
be difficult for persons to determine whether the particular conditions
for exempting water bodies under Arizona's proposal had been met. The
commenter suggested that accuracy and simplicity might be better served
by deleting the State's mining impoundment exemption. EPA considered
these comments prior to determining that Arizona's final rulemaking
with respect to mining impoundments is consistent with the CWA and that
a Federal rule is unneeded.
Under section 303 of the CWA, States must adopt standards for all
waters of the United States within the State. See, Kentucky v. Train, 9
ERC 1280, 1281 (E.D. Ky. 1976). States, however, need not adopt
standards for any water body which is not a water of the United States.
EPA has defined waters of the United States to include, among other
waters, rivers and streams the use, degradation, or destruction of
which would affect or could affect interstate commerce; impoundments of
such waters are also waters of the United States. See, 40 CFR 122.2 and
40 CFR 230.3(s). Accordingly, EPA's disapproval was based on the
premise that Arizona must adopt standards governing mining impoundments
which are waters of the United States. In the view of EPA, Region 9,
the State's revised mining language accords with the CWA because only
impoundments that are not waters of the United States will not be
subject to standards. EPA agrees that additional guidance addressing
the extent to which water quality standards are applicable in cases
noted by the commenters is desirable.
2. Practical Quantitation Limits
At the time of EPA's actions disapproving portions of Arizona's
water quality standards, Arizona had prescribed practical quantitation
limits (PQLs) in the regulations establishing its water quality
standards. See, R18-11-120, and Appendix C of Title 18, Chapter 11,
Article 1, of Arizona Administrative Rules and Regulations (1992).
Under Arizona's regulations, ``practical quantitation limit means the
lowest level of quantitative measurement that can be reliably achieved
during routine laboratory operations.'' R18-11-101.37. In September
1993, EPA, Region 9, disapproved Arizona's inclusion of the PQLs in its
regulations. EPA, Region 9, stated that, in order for the standards to
be approvable under CWA section 303(c), they must protect the
designated uses and must not be compromised by constraints related to
analytical methods. EPA, Region 9, further stated that Arizona may
choose to include the
[[Page 20692]]
PQLs in a policy or guidance document separate from the standards
regulations.
In December 1995, ADEQ proposed deleting the PQLs prescribed in
Appendix C from its regulations and adopting the PQLs in a guidance
document. See, 1 Ariz. Admin. Reg. 2811 (Dec. 29, 1995), proposed R18-
11-120.
In its January 1996 action, EPA proposed to adopt a Federal rule
that would provide that Appendix C of Arizona's regulations would not
be water quality standards for the purposes of the CWA.
In its April 1996 rulemaking, Arizona deleted Appendix C from its
regulations. Accordingly, EPA is not promulgating a rule addressing
this issue.
3. Implementation Policies
In September 1993, EPA disapproved the lack of implementation
procedures for Arizona's narrative nutrient criteria. Arizona's
narrative nutrient criteria provides that navigable waters shall be
free from pollutants in amounts or combinations that cause the growth
of algae or aquatic plants that inhibit or prohibit the habitation,
growth or propagation of other aquatic life or that impair recreational
uses. See, R18-11-108.A.6. At the time of the disapproval, Arizona had
not adopted an implementation process for its narrative criteria.
Also in September 1993, EPA, Region 9, disapproved the lack of
implementation procedures for Arizona's narrative toxicity criterion.
Arizona's narrative toxicity criterion provides that navigable waters
shall be free from pollutants in amounts or combinations that are toxic
to humans, animals, plants and other organisms. See, R18-11-108.A.5. At
the time of the disapproval, Arizona had not adopted implementation
procedures for toxicity.
In its January 1996 proposal, EPA proposed to adopt a Federal rule
to address these deficiencies in the State's standards. Proposed 40 CFR
131.31(e). In its January 1996 proposal, EPA also solicited comment
regarding the Region's use of two policies to guide the Region's
implementation of the subject narrative criteria: ``EPA, Region 9,
Policy for the Implementation of Arizona's Narrative Nutrient
Criteria'' and ``EPA, Region 9, Policy on Using Biomonitoring to
Implement Arizona's Narrative Toxicity Criterion''. As noted in EPA's
January 1996 Federal Register notice, EPA does not believe that it is
necessary that the State itself adopt regulatory provisions addressing
these implementation issues. EPA explained in the Federal Register
notice that such policies and procedures may be contained either in
water quality standards regulations themselves, or may be included in a
standards submission as policy or guidance documents. EPA also stated
in its January 1996 preamble that, should the State adopt acceptable
policies and procedures prior to promulgation of a final rule by EPA,
the Agency would not include the subject regulatory provisions in the
final rule.
In January 1996, Arizona adopted a policy for the implementation of
the State's narrative criteria for nutrients. ADEQ, Water Quality
Assessment Unit, ``Implementation Guidelines for the Narrative Nutrient
Standard''. In April 1996, Arizona adopted a policy for the
implementation of the State's narrative criteria for toxicity. ADEQ,
``Interim Whole Effluent Toxicity Implementation Guidelines for
Arizona''.
After reviewing the State-adopted implementation policies and the
comments received in response to the January 1996 Federal Register
notice, EPA, Region 9, approved the policies adopted by the State. With
respect to EPA's prior disapproval of Arizona's standards due to the
lack of implementation policies related to narrative criteria for
nutrients and toxicity, EPA has determined that Arizona's water quality
standards, as supplemented by the State's newly adopted implementation
plans, are consistent with the CWA and that no new Federal water
quality standard is necessary to meet the CWA's requirements.
Accordingly, EPA is not promulgating proposed 40 CFR 131.31(e).
EPA received comments regarding its implementation policies in
response to the January 1996 Federal Register notice. Because EPA has
approved Arizona's implementation policies, and therefore not
promulgated a final rule related to these policies, those comments are
no longer relevant to this rulemaking action. However, those comments
regarding EPA's policies that are material to EPA's decision to approve
Arizona's policies have been considered by the Agency in its approval
action and responses to those comments have been prepared and are part
of the record supporting EPA's approval of Arizona's narrative toxicity
and narrative nutrient standards implementation policies. A number of
comments having to do with the appropriateness of adopting Federal
implementation policies, or the necessity of having State policies, are
moot since the State has now adopted its own implementation policies.
Other comments received were specific to EPA's own toxicity policy for
Arizona (``EPA, Region 9, Policy on Using Biomonitoring to Implement
Arizona's Narrative Toxicity Criterion''). These comments addressed the
purpose and function of toxicity requirements in permits. Since
Arizona's toxicity policy does not address how the narrative toxicity
standard will be implemented in permits, these comments have not been
responded to in EPA's action approving the Arizona toxicity policy. EPA
will take these comments into account as we further refine the
implementation of toxicity narrative standards in National Pollutant
Discharge Elimination System permits in Arizona.
E. Endangered Species Act
Pursuant to section 7 of the Endangered Species Act (16 U.S.C. 1656
et seq.), Federal agencies must assure that their actions are unlikely
to jeopardize the continued existence of listed threatened or
endangered species or adversely affect designated critical habitat of
such species. Today's action adds the fish consumption use to various
waters which previously did not have the protections afforded by that
designation, and establishes that a monitoring program will be
undertaken to implement the State's narrative water quality criteria
with respect to the effects of mercury on wildlife.
EPA has completed section 7 consultation with the FWS regarding
this action.
F. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, of 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 of the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the
[[Page 20693]]
President's priorities, or the principles set forth in the Executive
Order.
Because the annualized cost of this final rule would be
significantly less than $100 million and would meet none of the other
criteria specified 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.
G. Executive Order 12875, Enhancing the Intergovernmental
Partnership
In compliance with Executive Order 12875 EPA has involved state,
local, and tribal governments in the development of this rule. EPA,
Region 9, consulted with ADEQ through conference calls, meetings and
review of draft and final documents. EPA held a meeting on December 14,
1995, in Phoenix, AZ, with members of the potentially impacted public
(e.g., municipalities, industries and environmental groups) to discuss
the proposed action. EPA held a public hearing on the proposed action
on February 29, 1996.
H. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires EPA
to assess whether its regulations create a disproportionate effect on
small entities. Among its provisions, the Act directs EPA to prepare
and publish an initial regulatory flexibility analysis (IRFA) for any
proposed rule which may have a significant impact on a substantial
number of small entities. For purposes of this rulemaking, small
entities are small dischargers, whether industrial or municipal.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. This rule is limited to the designation of the fish
consumption use for fourteen waters within Arizona, and the requirement
that EPA or Arizona implement a monitoring program to assess attainment
of a specified State-adopted water quality standard. In light of the
limited geographic scope of the use designations included in the final
rule adopted by EPA (i.e., fourteen waterbodies), the Agency does not
believe that there will be significant impacts associated with this
aspect of the rule. The mercury monitoring program, moreover, will be
carried out by EPA and ADEQ, and does not itself impose any additional
obligations on small entities.
I. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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 UMRA 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
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.
As noted above, this rule is limited to the designation of the fish
consumption use for fourteen waters within Arizona, and the requirement
that EPA or Arizona implement a monitoring program to assess attainment
of a State-adopted water quality standard. EPA has determined that this
rule contains no regulatory requirements that might significantly or
uniquely affect small governments. EPA has also 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. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
J. Paperwork Reduction Act
This action requires no information collection activities subject
to the Paperwork Reduction Act, and therefore no information collection
request (ICR) will be submitted to the Office of Management and Budget
(OMB) for review in compliance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 131
Environmental protection, Water pollution control, Water quality
standards, Toxic pollutants.
Dated: April 29, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 131 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
2. Section 131.31 is amended by adding paragraphs (b), and (c), to
read as follows:
Sec. 131.31 Arizona.
* * * * *
(b) The following waters have, in addition to the uses designated
by the State, the designated use of fish consumption as defined in R18-
11-101 (which is available from the Arizona Department of Environmental
Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ
85012):
COLORADO MAIN STEM RIVER BASIN:
Hualapai Wash
MIDDLE GILA RIVER BASIN:
Agua Fria River (Camelback Road to Avondale WWTP)
Galena Gulch
Gila River (Felix Road to the Salt River)
Queen Creek (Headwaters to the Superior WWTP)
Queen Creek (Below Potts Canyon)
SAN PEDRO RIVER BASIN:
Copper Creek
SANTA CRUZ RIVER BASIN:
Agua Caliente Wash
Nogales Wash
Sonoita Creek (Above the town of Patagonia)
Tanque Verde Creek
Tinaja Wash
Davidson Canyon
UPPER GILA RIVER BASIN
[[Page 20694]]
Chase Creek
(c) To implement the requirements of R18-11-108.A.5 with respect to
effects of mercury on wildlife, EPA (or the State with the approval of
EPA) shall implement a monitoring program to assess attainment of the
water quality standard.
[FR Doc. 96-11080 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-10777 Airworthiness Directives; Jetstream Model 4101 Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20669-20671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10777]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-14-AD; Amendment 39-9595; AD 96-09-19]
RIN 2120-AA64
Airworthiness Directives; Jetstream Model 4101 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Jetstream Model 4101 airplanes, that requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices. This amendment is prompted by results of a review of
the requirements for certification of the airplane in icing conditions,
new information on the icing environment, and icing data provided
currently to the flight crews. The actions specified by this AD are
intended to prevent or minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: William Schroeder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2148; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Jetstream Model 4101 airplanes
was published in the Federal Register on January 25, 1996 (61 FR 2142).
That action proposed to require revising the Airplane Flight Manual
(AFM) to specify procedures that would prohibit flight in freezing rain
or freezing drizzle conditions (as determined by certain visual cues),
limit or prohibit the use of various flight control devices, and
provide the flight crew with recognition cues for, and procedures for
exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
[[Page 20670]]
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 35 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $2,100, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-19 Jetstream Aircraft Limited: Amendment 39-9595. Docket 96-
NM-14-AD.
Applicability: All Model 4101 airplanes, certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
[[Page 20671]]
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic Control.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10777 Filed 5-1-96; 3:26 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10776 Airworthiness Directives; British Aerospace Model HS 748 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20671-20672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10776]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-15-AD; Amendment 39-9596; AD 96-09-20]
RIN 2120-AA64
Airworthiness Directives; British Aerospace Model HS 748 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all British Aerospace Model HS 748 series airplanes, that
requires revising the Airplane Flight Manual (AFM) to provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions, and to limit or prohibit the use of various
flight control devices. This amendment is prompted by results of a
review of the requirements for certification of the airplane in icing
conditions, new information on the icing environment, and icing data
provided currently to the flight crews. The actions specified by this
AD are intended to minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: William Schroeder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2148; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all British Aerospace Model HS 748
series airplanes was published in the Federal Register on January 25,
1996 (61 FR 2139). That action proposed to require revising the
Airplane Flight Manual (AFM) to specify procedures that would prohibit
flight in freezing rain or freezing drizzle conditions (as determined
by certain visual cues), limit or prohibit the use of various flight
control devices, and provide the flight crew with recognition cues for,
and procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
Currently, there are no Model HS 748 series airplanes on the U.S.
Register. However, should an affected airplane be imported and placed
on the U.S. Register in the future, it would require approximately 1
work hour to accomplish the required actions, at an average labor rate
of $60 per work hour. Based on these figures, the cost impact of this
AD would be $60 per airplane.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
[[Page 20672]]
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-20 Jetstream Aircraft Limited (Formerly British Aerospace,
Aircraft Group): Amendment 39-9596. Docket 96-NM-15-AD.
Applicability: All Model HS 748 series airplanes, certificated
in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice
--Accumulation of ice on the upper surface of the wing aft of the
protected area
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
-(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10776 Filed 5-1-96; 3:26 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10775 Airworthiness Directives; Jetstream Model BAe ATP Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20667-20669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10775]
-----------------------------------------------------------------------
[[Page 20668]]
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-13-AD; Amendment 39-9594; AD 96-09-18]
RIN 2120-AA64
Airworthiness Directives; Jetstream Model BAe ATP Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Jetstream Model BAe ATP airplanes, that requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices. This amendment is prompted by results of a review of
the requirements for certification of the airplane in icing conditions,
new information on the icing environment, and icing data provided
currently to the flight crews. The actions specified by this AD are
intended to minimize the potential hazards associated with operating
the airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: William Schroeder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2148; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Jetstream Model BAe ATP
airplanes was published in the Federal Register on January 25, 1996 (61
FR 2144). That action proposed to require revising the Airplane Flight
Manual (AFM) to specify procedures that would prohibit flight in
freezing rain or freezing drizzle conditions (as determined by certain
visual cues), limit or prohibit the use of various flight control
devices, and provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact -
The FAA estimates that 10 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $600, or $60 per airplane.
-
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted. -
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact -
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment. -
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39 -
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment -
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-18 Jetstream Aircraft Limited (Formerly British Aerospace
Commercial Aircraft, Limited): Amendment 39-9594. Docket 96-NM-13-
AD.
Applicability: All Model BAe ATP airplanes, certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
[[Page 20669]]
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice
--Accumulation of ice on the upper surface of the wing aft of the
protected area
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10775 Filed 5-1-96; 3:26 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10773 Airworthiness Directives; Dornier Model 328-100 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20676-20677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10773]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-18-AD; Amendment 39-9599; AD 96-09-23]
RIN 2120-AA64
Airworthiness Directives; Dornier Model 328-100 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Dornier Model 328-100 series airplanes, that requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices. This amendment is prompted by results of a review of
the requirements for certification of the airplane in icing conditions,
new information on the icing environment, and icing data provided
currently to the flight crews. The actions specified by this AD are
intended to minimize the potential hazards associated with operating
the airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Connie Beane, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2796; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Dornier Model 328-100 series
airplanes was published in the Federal Register on January 25, 1996 (61
FR 2157). That action proposed to require revising the Airplane Flight
Manual (AFM) to specify procedures that would prohibit flight in
freezing rain or freezing drizzle conditions (as determined by certain
visual cues), limit or prohibit the use of various flight control
devices, and provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 31 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $1,860, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable.
Nevertheless, because of the severity of the unsafe condition
addressed, the FAA has determined that continued operational safety
necessitates the imposition of these costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-23 Dornier: Amendment 39-9599. Docket 96-NM-18-AD.
Applicability: All Model Dornier 328-100 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
[[Page 20677]]
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of- attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10773 Filed 5-1-96; 3:27 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10772 Airworthiness Directives; Saab Model SAAB SF340A, SAAB 340B, and SAAB 2000 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20672-20674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10772]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-16-AD; Amendment 39-9597; AD 96-09-21]
RIN 2120-AA64
Airworthiness Directives; Saab Model SAAB SF340A, SAAB 340B, and
SAAB 2000 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Saab Model SAAB SF340A, SAAB 340B, and SAAB 2000
series airplanes, that requires revising the Airplane Flight Manual
(AFM) to provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions, and to limit or
prohibit the use of various flight control devices. This amendment is
prompted by results of a review of the requirements for certification
of the airplane in icing conditions, new information on the icing
environment, and icing data provided currently to the flight crews. The
actions specified by this AD are intended to minimize the potential
hazards associated with operating the airplane in severe icing
conditions by providing more clearly defined procedures and limitations
associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
[[Page 20673]]
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Ruth Harder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-1721; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Saab Model SAAB SF340A, SAAB
340B, and SAAB 2000 series airplanes was published in the Federal
Register on January 25, 1996 (61 FR 2169). That action proposed to
require revising the Airplane Flight Manual (AFM) to specify procedures
that would prohibit flight in freezing rain or freezing drizzle
conditions (as determined by certain visual cues), limit or prohibit
the use of various flight control devices, and provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 224 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $13,440, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-21 SAAB Aircraft AB: Amendment 39-9597. Docket 96-NM-16-AD.
Applicability: All Model SAAB SF340A, SAAB 340B, and SAAB 2000
series airplanes, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
For Saab Model SAAB 2000 Series Airplanes Only
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
[[Page 20674]]
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
For Saab Model SAAB SF340A and SAAB 340B Series Airplanes Only
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that
indicate adverse changes in handling characteristics, use of the
autopilot is prohibited when any of the visual cues specified above
exist, or when unusual lateral trim requirements or autopilot trim
warnings are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll
control movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of- attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10772 Filed 5-1-96; 3:27 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10771 Airworthiness Directives; Construcciones Aeronauticas, S.A. (CASA) Model C-212 and CN-235 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20674-20676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10771]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-17-AD; Amendment 39-9598; AD 96-09-22]
RIN 2120-AA64
Airworthiness Directives; Construcciones Aeronauticas, S.A.
(CASA) Model C-212 and CN-235 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all CASA Model C-212 and CN-235 series airplanes, that
requires revising the Airplane Flight Manual (AFM) to provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions, and to limit or prohibit the use of various
flight control devices. This amendment is prompted by results of a
review of the requirements for certification of the airplane in icing
conditions, new information on the icing environment, and icing data
provided currently to the flight crews. The actions specified by this
AD are intended to minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Gregory Dunn, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2799; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all CASA Model C-212 and CN-235
series airplanes was published in the Federal Register on January 25,
1996 (61 FR 2166). That action proposed to require revising the
Airplane Flight Manual (AFM) to specify procedures that would prohibit
flight in freezing rain or freezing drizzle conditions (as determined
by certain visual cues), limit or prohibit the use of various flight
control devices, and provide the flight crew with recognition cues for,
and procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 36 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $2,160, or $60 per
airplane.
[[Page 20675]]
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-22 CASA: Amendment 39-9598. Docket 96-NM-17-AD.
Applicability: All Model C-212 and CN-235 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that
indicate adverse changes in handling characteristics, use of the
autopilot is prohibited when any of the visual cues specified above
exist, or when unusual lateral trim requirements or autopilot trim
warnings are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of- attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an
[[Page 20676]]
appropriate FAA Principal Operations Inspector, who may add comments
and then send it to the Manager, Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification Service
[FR Doc. 96-10771 Filed 5-1-96; 3:27 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10770 Airworthiness Directives; Empresa Brasileira de Aeronautica, S.A. (EMBRAER) Model EMB-120 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20677-20679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10770]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-19-AD; Amendment 39-9600; AD 96-09-24]
RIN: 2120-AA64
Airworthiness Directives; Empresa Brasileira de Aeronautica, S.A.
(EMBRAER) Model EMB-120 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all EMBRAER Model EMB-120 series airplanes, that requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices. This amendment is prompted by results of a review of
the requirements for certification of the airplane in icing conditions,
new information on the icing environment, and icing data provided
currently to the flight crews. The actions specified by this AD are
intended to minimize the potential hazards associated with operating
the airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: John W. McGraw, Aerospace Engineer,
Flight Test/Systems Branch, ACE-116A, FAA, Small Airplane Directorate,
Atlanta Aircraft Certification Office, Campus Building, 1701 Columbia
Avenue, suite 2-160, College Park, Georgia 30337-2748; telephone (404)
305-7336; fax (404) 305-7348.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
[[Page 20678]]
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all EMBRAER Model EMB-120 series
airplanes was published in the Federal Register on January 25, 1996 (61
FR 2163). That action proposed to require revising the Airplane Flight
Manual (AFM) to specify procedures that would prohibit flight in
freezing rain or freezing drizzle conditions (as determined by certain
visual cues), limit or prohibit the use of various flight control
devices, and provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 227 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $13,620, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-24 EMBRAER: Amendment 39-9600. Docket 96-NM-19-AD.
Applicability: All Model EMB-120 series airplanes, certificated
in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
In icing conditions, use of flaps is restricted to
takeoff, approach, and landing only. When the flaps have been
extended for approach or landing, they may not be retracted unless
the upper surface of the wing aft of the protected area is clear of
ice, or unless flap retraction is essential for go- around.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
[[Page 20679]]
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10770 Filed 5-1-96; 3:28 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10769 Airworthiness Directives; de Havilland Model DHC-7 and DHC-8 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20679-20681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10769]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-20-AD; Amendment 39-9601; AD 96-09-25]
RIN 2120-AA64
Airworthiness Directives; de Havilland Model DHC-7 and DHC-8
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all de Havilland Model DCH-7 and DHC-8 series airplanes,
that requires revising the Airplane Flight Manual (AFM) to provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions, and to limit or prohibit the use of various
flight control devices. This amendment is prompted by results of a
review of the requirements for certification of the airplane in icing
conditions, new information on the icing environment, and icing data
provided currently to the flight crews. The actions specified by this
AD are intended to minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Danko Kramar, Aerospace Engineer,
Systems and Flight Test Branch, ANE-172, FAA, Engine and Propeller
Directorate, New York Aircraft Certification Office, 10 Fifth Street,
Third Floor, Valley Stream, New York 11581; telephone (516) 256-7509;
fax (516) 568-2716.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all de Havilland Model DHC-7 and
DHC-8 series airplanes was published in the Federal Register on January
25, 1996 (61 FR 2154). That action proposed to require revising the
Airplane Flight Manual (AFM) to specify procedures that would prohibit
flight in freezing rain or freezing drizzle conditions (as determined
by certain visual cues), limit or prohibit the use of various flight
control devices, and provide the flight crew with recognition cues for,
and procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 183 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $10,980, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
[[Page 20680]]
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-25 de Havilland, Inc.: Amendment 39-9601. Docket 96-NM-20-AD.
Applicability: All Model DHC-7 and DHC-8 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
[[Page 20681]]
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10769 Filed 5-1-96; 3:28 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10768 Airworthiness Directives; Short Brothers Model SD3-30, SD3-60, and SD3-SHERPA Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20682-20684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10768]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-22-AD; Amendment 39-9603; AD 96-09-27]
RIN: 2120-AA64
Airworthiness Directives; Short Brothers Model SD3-30, SD3-60,
and SD3-SHERPA Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Short Brothers Model SD3-30, SD3-60, and SD3-SHERPA
series airplanes, that requires revising the Airplane Flight Manual
(AFM) to provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions, and to limit or
prohibit the use of various flight control devices. This amendment is
prompted by results of a review of the requirements for certification
of the airplane in icing conditions, new information on the icing
environment, and icing data provided currently to the flight crews. The
actions specified by this AD are intended to minimize the potential
hazards associated with operating the airplane in severe icing
conditions by providing more clearly defined procedures and limitations
associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2146; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Short Brothers Model SD3-30,
SD3-60, and SD3-SHERPA series airplanes was published in the Federal
Register on January 25, 1996 (61 FR 2151). That action proposed
[[Page 20683]]
to require revising the Airplane Flight Manual (AFM) to specify
procedures that would prohibit flight in freezing rain or freezing
drizzle conditions (as determined by certain visual cues), limit or
prohibit the use of various flight control devices, and provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 138 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $8,280, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-27 Short Brothers, PLC: Amendment 39-9603. Docket 96-NM-22-
AD.
Applicability: All Model SD3-30, SD3-60, and SD3-SHERPA series
airplanes, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
[[Page 20684]]
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of- attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished. -
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10768 Filed 5-1-96; 3:29 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10767 Airworthiness Directives; Fokker Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 Series Airplanes, and Model F27 Mark 050 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20681-20682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10767]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-21-AD; Amendment 39-9602; AD 96-09-26]
RIN 2120-AA64
Airworthiness Directives; Fokker Model F27 Mark 100, 200, 300,
400, 500, 600, and 700 Series Airplanes, and Model F27 Mark 050 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to all Fokker Model F27 Mark 100, 200, 300, 400, 500, 600,
and 700 series airplanes, and Model F27 Mark 050 series airplanes, that
requires revising the Airplane Flight Manual (AFM) to provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions, and to limit or prohibit the use of various
flight control devices. This amendment is prompted by results of a
review of the requirements for certification of the airplane in icing
conditions, new information on the icing environment, and icing data
provided currently to the flight crews. The actions specified by this
AD are intended to minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information pertaining to this rulemaking action may be
examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Ruth Harder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-1721; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to all Fokker Model F27 Mark 100,
200, 300, 400, 500, 600, and 700 series airplanes, and Model F27 Mark
050 series airplanes, was published in the Federal Register on January
25, 1996 (61 FR 2160). That action proposed to require revising the
Airplane Flight Manual (AFM) to specify procedures that would prohibit
flight in freezing rain or freezing drizzle conditions (as determined
by certain visual cues), limit or prohibit the use of various flight
control devices, and provide the flight crew with recognition cues for,
and procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28, Airworthiness
Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes,
published elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 34 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 1 work hour per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $2,040, or $60 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-09-26 Fokker: Amendment 39-9602. Docket 96-NM-21-AD.
Applicability: All Model F27 Mark 100, 200, 300, 400, 500, 600,
and 700 series airplanes and Model F27 Mark 050 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in
[[Page 20682]]
accordance with paragraph (b) of this AD. The request should include
an assessment of the effect of the modification, alteration, or
repair on the unsafe condition addressed by this AD; and, if the
unsafe condition has not been eliminated, the request should include
specific proposed actions to address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10767 Filed 5-1-96; 3:28 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20560-20614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10747]
[[Page 20559]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
43 CFR Part 11
Natural Resource Damage Assessments: Type A Procedures; Final Rule
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20560]]
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 11
RIN 1090-AA21 & 1090-AA23
Natural Resource Damage Assessments--Type A Procedures
AGENCY: Department of the Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the regulations for assessing natural
resource damages under the Comprehensive Environmental Response,
Compensation, and Liability Act. Federal, State, and Indian tribe
natural resource trustees may use these regulations to obtain
compensation from potentially responsible parties for natural resource
injuries resulting from hazardous substance releases. Trustees obtain a
rebuttable presumption in litigation for damages, up to $100,000,
calculated in accordance with this rule. The rule does not change the
overall administrative process for conducting assessments but simply
revises an existing ``type A'' procedure for assessing natural resource
damages in coastal and marine environments and establishes a new type A
procedure for the Great Lakes.
EFFECTIVE DATE: The effective date of this final rule is June 6, 1996.
The incorporation by reference of certain documents listed in this rule
was approved by the Director of the Federal Register and is effective
June 6, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Morton at (202) 208-3302 (for
questions about the rule language) or David Rosenberger at (202) 208-
3811 (for questions about the computer models). Interested parties may
obtain copies of the computer models and supporting documentation free
of charge from the Department through July 31, 1996, and thereafter for
a fee from the National Technical Information Service, 5285 Port Royal
Road, Springfield, VA 22161, ph: (703) 487-4650. The models are also on
the Internet at http://www.usgs.gov/doi/oepc/oepchome.html.
SUPPLEMENTARY INFORMATION: This preamble is organized as follows:
I. Background
A. Statutory Provisions
B. History of this Rulemaking
C. Oil Pollution Act Regulations
II. Relationship of Today's Final Rule to the Existing Regulations
A. Preassessment Phase
B. Assessment Plan Phase
C. Assessment Phase
D. Post-Assessment Phase
III. Nature of Type A Procedures
IV. Workings of the NRDAM/CME and NRDAM/GLE
A. Overview
B. Data Inputs and Modifications
C. Geographic Information System
D. Submodels
V. Use of the NRDAM/CME and NRDAM/GLE in Other Contexts
VI. Summary of Major Changes from the Proposed Rules
A. Rule Language
B. NRDAM/CME and NRDAM/GLE
VII. Response to Comments
A. General Comments
B. Technical Documents
C. Selection of Assessment Procedures
D. User-Supplied Information
E. Physical Fates
F. Species Distribution and Abundance
G. Toxicity and Mortality
H. Loss of Production
I. Catch and Bag Losses
J. Habitat Restoration
K. Assimilative Capacity Restoration
L. Restocking
M. Consideration of Costs and Benefits of Active Restoration
N. Damages for Fishing and Hunting Losses
O. Damages for Lost Wildlife Viewing
P. Damages for Beach and Boating Closures
Q. Judicial Review and the Rebuttable Presumption
I. Background
A. Statutory Provisions
The Department of the Interior (the Department) is amending the
regulations for assessing natural resource damages under the
Comprehensive Environmental Response, Compensation, and Liability Act,
as amended (42 U.S.C. 9601 et seq.) (CERCLA). CERCLA provides that
certain categories of persons, known as potentially responsible parties
(PRPs), are liable for natural resource damages resulting from a
release of a hazardous substance. CERCLA sec. 107(a). Natural resource
damages are monetary compensation for injury to, destruction of, or
loss of natural resources. CERCLA sec. 107(a)(4)(C).
Only those Federal, State, and Indian tribe officials designated as
natural resource trustees may recover natural resource damages. CERCLA
defines ``State'' to include:
The District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the United States Virgin Islands, the Commonwealth
of the Northern Marianas, and any other territory or possession over
which the United States has jurisdiction. CERCLA sec. 101(27).
Trustees must use all sums they recover in compensation for natural
resource injuries to restore, rehabilitate, replace, or acquire the
equivalent of the injured natural resources. CERCLA sec. 107(f)(1).
Trustee officials may also recover the reasonable costs of assessing
natural resource damages. Natural resource damages are distinct from
response costs. Response costs are the costs of actions taken under the
National Contingency Plan (40 CFR part 300) to remove threats to human
health and the environment caused by hazardous substance releases.
Today's final rule addresses only the assessment of natural resource
damages and is not intended for use in connection with response-related
activities, such as setting cleanup priorities.
CERCLA requires the President to promulgate regulations for the
assessment of natural resource damages resulting from hazardous
substance releases. CERCLA sec. 301(c). The President delegated the
responsibility for promulgating these regulations to the Department.
E.O. 12316, as amended by E.O. 12580. The regulations must identify the
``best available'' procedures for assessing natural resource damages.
CERCLA sec. 301(c)(2). CERCLA requires that the natural resource damage
assessment regulations include two types of assessment procedures.
``Type A'' procedures are ``standard procedures for simplified
assessments requiring minimal field observation.'' CERCLA sec.
301(c)(2)(A). ``Type B'' procedures are ``alternative protocols for
conducting assessments in individual cases.'' CERCLA sec. 301(c)(2)(B).
Federal and State trustees who perform assessments in accordance with
these regulations receive a rebuttable presumption in court. CERCLA
sec. 107(f)(2)(C). The Department must review the regulations, and
revise them as appropriate, every two years. CERCLA sec. 301(c)(3).
B. History of this Rulemaking
On March 20, 1987, the Department published a final rule
establishing a type A procedure for coastal and marine environments
that incorporated a computer model, known as the Natural Resource
Damage Assessment Model for Coastal and Marine Environments (NRDAM/
CME). 52 FR 9041. The Department indicated that it would consider
developing additional type A procedures as experience was gained with
the type A procedure for coastal and marine environments. Id. at 9057.
On June 2, 1988, the Department published an advance notice of proposed
rulemaking soliciting comment on the development of a type A procedure
for Great Lakes environments that would incorporate a computer model
called the Natural Resource Damage Assessment Model for Great Lakes
Environments (NRDAM/GLE). 53 FR 20143. A few months later,
[[Page 20561]]
the Department published an advance notice of proposed rulemaking
announcing the commencement of the statutorily required biennial review
of the type A procedure for coastal and marine environments. 54 FR 5093
(Feb. 1, 1989).
On July 14, 1989, the U.S. Court of Appeals for the District of
Columbia Circuit issued two decisions that affected these two pending
type A rulemakings. The Department had issued type B procedures on
August 1, 1986. 51 FR 27674. State, industry, and environmental group
petitioners challenged those procedures in State of Ohio v. United
States Department of the Interior (Ohio v. Interior), 880 F.2d 432
(D.C. Cir. 1989). The court in Ohio v. Interior upheld various aspects
of the type B procedures but ordered the Department to revise the type
B procedures to reflect the statutory preference for using restoration
costs as the measure of natural resource damages. The court used the
term ``restoration costs'' to encompass the cost of restoring,
rehabilitating, replacing, and/or acquiring the equivalent of the
injured natural resources. The court also ordered the Department to
revise the type B procedures to allow for the recovery of all reliably
calculated values lost to the public as a result of the injury to
natural resources.
State, industry, and environmental group petitioners also
challenged the original type A procedure for coastal and marine
environments in State of Colorado v. United States Department of the
Interior (Colorado v. Interior), 880 F.2d 481 (D.C. Cir. 1989). The
court in Colorado v. Interior upheld the Department's sequential
approach to developing type A procedures but urged the Department to
develop additional type A procedures to address as many different cases
as possible. The court also remanded the type A procedure for coastal
and marine environments, based on the reasoning in the Ohio v. Interior
decision, to permit the Department to allow for the calculation of
restoration costs. The original type A procedure for coastal and marine
environments calculated damages based solely on certain lost public
uses of the injured resources.
On September 22, 1989, the Department published an advance notice
of proposed rulemaking stating that it would revise the type A
procedure for coastal and marine environments in compliance with Ohio
v. Interior and Colorado v. Interior during the ongoing biennial
review. 54 FR 39013. The Department also announced that it would modify
the development of the type A procedure for Great Lakes environments to
conform with Ohio v. Interior and Colorado v. Interior. 54 FR 39015
(Sept. 22, 1989).
The Department published a notice of proposed rulemaking for the
type A procedure for Great Lakes environments on August 8, 1994. 59 FR
40319. The August 8, 1994, Federal Register notice also contained two
proposed amendments to the natural resource damage assessment
regulations that would affect all type A procedures. The Department
proposed to revise the conditions under which both type A and type B
procedures could be used in the same assessment, and to make explicit
the scope of judicial review of assessments performed using type A
procedures. The Department later extended the comment period on the
August 8, 1994, proposed rule through February 6, 1995. 59 FR 54877
(Nov. 2, 1994).
On December 8, 1994, the Department issued a notice of proposed
rulemaking for the modified type A procedure for coastal and marine
environments. 59 FR 63300. On February 7, 1995, the Department extended
the comment periods on both the proposed Great Lakes type A rule and
the proposed coastal and marine type A rule through July 6, 1995. 60 FR
7155 and 7156. The Department noted that, in light of the similarities
between the two proposed rules, it would consider the public comments
on the two rules concurrently. Id. at 7156 and 7157. Today's final rule
covers both the type A procedure for coastal and marine environments
and the type A procedure for Great Lakes environments.
C. Oil Pollution Act Regulations
Originally, trustees could use the Department's regulations to
assess natural resource damages resulting from either a hazardous
substance release under CERCLA or an oil or hazardous substance
discharge into navigable waters under the Clean Water Act (33 U.S.C.
1251 et seq.). However, the Oil Pollution Act of 1990 (OPA) amended the
natural resource damage provisions of the Clean Water Act. See 33
U.S.C. 1321, 2702(b)(2), and 2706(a). OPA authorized the National
Oceanic and Atmospheric Administration (NOAA) to develop new natural
resource damage assessment regulations for assessing natural resource
damages resulting from discharges, or threats of discharges, of oil
into navigable waters that, once final, would supersede the provisions
of the Department's regulations addressing oil. 33 U.S.C 2706(e)(1) and
2751(b). NOAA published a final OPA rule on January 5, 1996. 61 FR 439.
The Department began developing the type A procedures before the
enactment of OPA and, thus, originally included both hazardous
substances and oil in the NRDAM/CME and NRDAM/GLE algorithms and
databases. The Department has worked closely with NOAA during the
development of the type A procedures. During its rulemaking, NOAA
indicated it would allow use of the Department's type A procedures
under the OPA regulations. See 59 FR 1062, 1124-25 (Jan. 7, 1994); and
60 FR 39803, 39831 (Aug. 3, 1995).
NOAA's final rule states that trustees may use ``[m]odel-based
procedures, including type A procedures identified in 43 CFR part 11,
subpart D,'' provided that any such procedure meets the following
conditions:
(1) The procedure must be capable of providing assessment
information of use in determining the type and scale of restoration
appropriate for a particular injury;
(2) The additional cost of a more complex procedure must be
reasonably related to the expected increase in the quantity and/or
quality of relevant information provided by the more complex
procedure; and
(3) The procedure must be reliable and valid for the particular
incident. 61 FR at 503 (15 CFR 990.27).
Therefore, the Department has retained components relating to oil
in the final versions of the NRDAM/CME and NRDAM/GLE, while recognizing
that these components are without any direct regulatory effect. The
Department is also providing responses to comments it received on the
oil-related components of the type A models. However, the Department
wishes to emphasize that its regulations do not govern the assessment
of natural resource damages for oil discharges under OPA. Trustees who
wish to use the type A procedures and obtain a rebuttable presumption
for assessments of oil discharges must follow the process established
by NOAA's regulations.
Further, some of the language in the CERCLA rule varies from that
in the OPA rule. For example, today's final rule incorporates the
existing definition of ``reasonable cost'' at 43 CFR 11.14, from which
the definition in the OPA rule differs. See 61 FR at 504 (15 CFR
990.30). Section 11.35(b) of today's final rule, which requires
trustees to conduct type B procedures if the PRPs advance the
reasonable costs of using such procedures, differs from the OPA rule
conditions governing PRP requests for alternative assessment
procedures. See 61 FR at 501 (15 CFR 990.14(b)(6)). Also, Sec. 11.44(f)
of today's final rule
[[Page 20562]]
provides that if the models calculate damages in excess of $100,000,
then trustees who wish to obtain a rebuttable presumption must either:
(1) limit the portion of their claim calculated with the type A
procedure to $100,000; or (2) compute all damages using type B
procedures. The OPA rule, on the other hand, contains no dollar cut-off
for use of specific procedures. Because use of the type A procedures
for oil discharges is governed by the OPA rule, the Department defers
to NOAA on how such differences are to be resolved when the NRDAM/CME
and NRDAM/GLE are used for assessments of oil discharges.
II. Relationship of Today's Final Rule to the Existing Regulations
The existing regulations establish an administrative process for
conducting assessments. See 43 CFR part 11. The administrative process
covers all the steps trustees need to follow if they wish to obtain a
rebuttable presumption in litigation of their claim. However, trustees
have the authority to settle their damage claims at any time during the
administrative process and the Department continues to encourage
trustees and PRPs to pursue settlement. Furthermore, trustees are not
required to follow the regulations. If, however, trustees and PRPs fail
to reach a settlement and the case is litigated, trustees will only
obtain a rebuttable presumption if they performed their assessment in
accordance with the regulations.
The same general administrative process applies regardless of
whether type A or type B procedures are used. The process has four
phases: Preassessment, Assessment Plan, Assessment, and Post-
Assessment. During the Assessment Phase, trustees use type A and/or
type B procedures to perform the technical work needed for the actual
determination of damages.
Today's final rule does not change this overall administrative
process. The rule simply revises the type A procedures available for
use during the Assessment Phase and modifies the standards for using
both type A and type B procedures for the same release.
A. Preassessment Phase
Today's final rule does not affect the Preassessment Phase. The
Preassessment Phase consists of the activities that precede the actual
assessment. For example, upon detecting or receiving notification of a
release, trustees decide, based on a number of criteria, whether
further assessment actions are warranted. Trustees document this
decision in the Preassessment Screen Determination. For more
information on the Preassessment Phase, see subpart B of 43 CFR part
11.
B. Assessment Plan Phase
If trustees determine that additional assessment work is warranted,
they begin the Assessment Plan Phase. The Assessment Plan Phase
includes the preparation of a written Assessment Plan describing the
procedures trustees intend to use to determine damages. The trustees
must make the draft Assessment Plan available for public review and
comment.
The regulations provide two types of assessment procedures: type A
and type B. Type A procedures, such as those contained in today's final
rule, are simplified procedures requiring minimal field observation.
Type B procedures involve more detailed field studies. The Assessment
Plan documents whether trustees plan to use a type A procedure, type B
procedures, or both. Today's final rule revises the standards that
trustees must follow when selecting assessment procedures .
Section 11.34 of today's final rule identifies several conditions
that must be met before trustees can use a type A procedure and obtain
a rebuttable presumption. If the conditions are not met, then trustees
who elect to follow the regulations must use type B procedures to
assess all damages. If the conditions are met, then trustees must
decide whether to use a type A procedure, type B procedures, or both.
This decision is based on whether the benefits of the increased
accuracy provided by type B procedures would offset the anticipated
additional cost of using type B procedures, and whether the anticipated
damages would exceed the anticipated cost of using type B procedures.
Trustees may use both type A and type B procedures for the same
release if: (1) The type B procedures are cost-effective and can be
performed at a reasonable cost; (2) the type B procedures are used only
to determine damages for injuries or economic values of a type not
addressed by the type A procedure; and (3) there is no double recovery.
Section 11.36 of the final rule lists the categories of damages that
are included in the type A models and for which trustees may not
conduct supplemental type B studies. Trustees must document in the
Assessment Plan how they intend to prevent double recovery when they
use both type A and type B procedures.
Today's final rule also maintains the requirement that trustees use
type B procedures, even if they determine that use of a type A
procedure would be appropriate, whenever a PRP submits a written
request and justification for use of type B procedures and advances all
reasonable costs of using type B procedures within a time frame
acceptable to the trustees.
For more information on the Assessment Plan Phase, see Secs. 11.30
through 11.37 of today's final rule and subpart C of 43 CFR part 11.
C. Assessment Phase
During the Assessment Phase, trustees conduct the work described in
the Assessment Plan. The work consists of three steps: Injury
Determination; Quantification; and Damage Determination. In Injury
Determination, trustees determine whether any natural resources have
been injured. If trustees determine that resources have been injured,
they proceed to Quantification, in which they quantify the resulting
change in baseline conditions. ``Baseline'' conditions are the
conditions that would have existed had the release not occurred.
Finally, in Damage Determination, trustees calculate the monetary
compensation to be sought as damages for the natural resource injuries.
Damages include two components: (1) The cost of restoring,
rehabilitating, replacing, and/or acquiring the equivalent of the
injured natural resources; and (2) the economic value lost by the
public pending recovery of the resources (compensable value).
When trustees use type B procedures, they perform Injury
Determination, Quantification, and Damage Determination through
laboratory and field studies. The regulations provide a range of
alternative type B scientific and economic methodologies for conducting
such studies. For more information on use of type B procedures during
the Assessment Phase, see subpart E of 43 CFR part 11.
When trustees use a type A procedure, they perform Injury
Determination, Quantification, and Damage Determination through a
computer model. Today's type A procedure for coastal and marine
environments incorporates Version 2.4 of the NRDAM/CME. Today's type A
procedure for Great Lakes environments incorporates Version 1.4 of the
NRDAM/GLE.
Trustees must supply a number of data inputs to operate the NRDAM/
CME and the NRDAM/GLE. The rule also requires trustees to modify
certain data contained in the models if they have more reliable
information. Section 11.41 and Appendices II and III of the final rule
describe the required data inputs and modifications. After trustees
supply
[[Page 20563]]
the data inputs and modifications, the models themselves perform the
remaining calculations necessary to establish if there has been an
injury, quantify the extent of injury, select appropriate restoration
actions, and value economic losses. With the availability of these
computer models, trustees will now be able to pursue compensation for
cases in which the cost of detailed type B studies is prohibitive.
Trustees may not implement type B procedures until after the public
review period on the Assessment Plan. However, today's final rule
provides that trustees who use a type A procedure must perform a
preliminary application of the model before issuing the Assessment Plan
and then include the data inputs and the results of the preliminary
application in the publicly reviewed Plan. This requirement should
provide PRPs and other members of the public with a more meaningful
opportunity for comment. Performance of a preliminary application of
the models will also allow trustees to determine if type B procedures
are warranted in light of a new cap on the damages that can be claimed
through use of a type A procedure.
The rule now provides that if the preliminary application indicates
damages in excess of $100,000, then trustees who wish to obtain a
rebuttable presumption must decide whether to: (1) limit the portion of
their claim calculated with the type A procedure to $100,000; or (2)
compute all damages using type B procedures. The $100,000 limit applies
only to damages calculated by a type A procedure and does not limit
damages calculated through supplemental type B studies. This dollar
cut-off is based on the fairness of allowing trustees to receive a
rebuttable presumption for damages calculated by the NRDAM/CME or
NRDAM/GLE given the current level of experience with these models. The
cut-off is not based on reliability. The Department believes the NRDAM/
CME and NRDAM/GLE are capable of generating reliable damage estimates
at levels above $100,000. Therefore, although trustees cannot use the
models and obtain a rebuttable presumption above $100,000, the
Department believes the models are appropriate for use in other
contexts, such as settlement negotiations and litigation without the
rebuttable presumption.
After the close of the comment period on the Assessment Plan,
trustees must carefully review and substantively respond to all
comments they receive and must decide whether to continue using the
type A procedure. If they do decide to continue using the type A
procedure, they must make any necessary revisions to the user inputs,
and perform a final application of the model.
For more information on the Assessment Phase, see Secs. 11.40
through 11.44 of the final rule. For more information on how the NRDAM/
CME and the NRDAM/GLE perform Injury Determination, Quantification, and
Damage Determination, see Section IV of this preamble.
D. Post-Assessment Phase
Once the Assessment Phase is completed, trustees enter the Post-
Assessment Phase. Today's final rule does not substantively modify the
Post-Assessment Phase.
During the Post-Assessment Phase, trustees prepare a Report of
Assessment detailing the results of the Assessment Phase. When trustees
use a type A procedure, the Report will include the printed output of
the final model application. If a trustee is aware of reliable evidence
that a private party has recovered damages for commercial harvests lost
as a result of the release, the trustee must eliminate from the claim
any damages for such lost harvests included in the lost economic rent
calculated by the model. If a trustee is aware of reliable evidence
that the model application covers resources beyond his or her trustee
jurisdiction, the trustee must either: (1) have the other trustees who
do have jurisdiction over those resources join in the type A
assessment; or (2) eliminate any damages for those resources from the
claim.
Trustees present the Report of Assessment to the PRPs along with a
demand for damages and assessment costs. If a PRP does not agree to pay
within 60 days, the trustees may file suit. Federal and State trustees
receive a rebuttable presumption of correctness if they performed their
assessments in accordance with the Preassessment Phase, Assessment Plan
Phase, Assessment Phase, and Post-Assessment Phase requirements set
forth in the regulations. Once a court awards damages or the trustees
and PRPs have reached a settlement, trustees establish an account to
hold the recovered damages pending preparation of a Restoration Plan
describing how they intend to use the funds.
When trustees use a type A procedure, they are not restricted to
implementing the general restoration methods used by the model to
calculate the restoration cost component of the damage claim. Instead,
trustees have the discretion to spend recovered sums on other actions
to restore, rehabilitate, replace, and/or acquire the equivalent of the
injured resources.
Also, existing 43 CFR 11.93(d), which was not a subject of this
rulemaking, provides that trustees may apply several type A recoveries
to a single Restoration Plan, so long as the Plan is intended to
address the same or similar injuries as those identified in each
application of the type A procedure.
For more information on the Post-Assessment Phase, see subpart F of
43 CFR part 11.
III. Nature of Type A Procedures
The Department believes it is important that trustees, PRPs, and
the public clearly understand what the type A procedures are, as well
as what they are not, intended to provide. The NRDAM/CME and the NRDAM/
GLE are sophisticated computer models. These models incorporate a
significant level of site-specific detail about actual physical and
biological conditions in the geographic areas they encompass. The
language and legislative history of CERCLA suggest that Congress
envisioned type A procedures as look-up tables based on dollars per
gallon or unit of affected area. See, e.g., S. Rep. No. 96-848, 96th
Cong. 2d Sess. 86 (July 11, 1980). In requiring the development of two
types of assessment procedures--one simplified and the other more
complex and site-specific--Congress made a policy choice that trustees
be provided with a simplified, inexpensive mechanism for obtaining
recoveries in smaller cases. By envisioning a mechanism such as a look-
up table, Congress obviously recognized that trustees who use type A
procedures should not be required to develop--or be prejudiced for not
developing--the same degree of site-specific accuracy as might be
achieved using more expensive type B procedures. Nevertheless, in order
to increase accuracy, the Department has developed computer models that
enable the consideration of site-specific factors. For example, the
NRDAM/CME and NRDAM/GLE take into account physical variations among
geographic areas, differences in the toxicity and physical
characteristics of hazardous substances, seasonal and temperature
effects, and differences in the biological productivity of the spill
site. The Department believes that when applied correctly using
reliable input data, the NRDAM/CME and NRDAM/GLE are powerful, reliable
tools for assessing the injuries and compensable values they address.
However, as sophisticated and reliable as they are, the NRDAM/CME
and NRDAM/GLE do not, and were
[[Page 20564]]
never intended to, constitute automated type B procedures. The NRDAM/
CME and NRDAM/GLE are, after all, only models of selected aspects of
reality and, like all models, they are incapable of precisely capturing
reality in every case. Modeling always necessitates some simplifying
assumptions, and the modeling of something as complex as the effects of
hazardous substance spills on natural resources necessitates numerous
simplifying assumptions.
Section 11.34 of the final rule identifies a number of assumptions
the Department made during the development of the NRDAM/CME and NRDAM/
GLE. If these assumptions are not reasonable in a particular case,
trustees may not use the models and obtain a rebuttable presumption.
But even when these assumptions are reasonable, the models' damage
estimates will differ from the damages that type B procedures would
produce. However, Congress explicitly authorized the development of
simplified type A procedures that required less field work than type B
procedures and then explicitly granted a rebuttable presumption to
assessments performed using these type A procedures just as it granted
a rebuttable presumption to assessments performed using type B
procedures. Finally, the Department has retained in today's final rule
the safety valve that always allows PRPs to require trustees to use
type B procedures rather than a type A procedure if they advance all
reasonable costs of using such type B procedures within an acceptable
time frame.
The standard for evaluating the results of the NRDAM/CME or the
NRDAM/GLE in a particular case is not whether the model projections
conform precisely to field observations. Rather, the standard is
whether the overall damage figure calculated by the models is fair and
reasonable in light of the feasibility and cost of developing more
specific information using type B procedures. For example, if a spill
occurs in an area where biological conditions are relatively uniform
over a wide area, the fact that the NRDAM/CME or NRDAM/GLE project that
the surface trajectory would turn to the right when in fact it turned
to the left is not necessarily adequate grounds to reject wholesale the
results of the model.
IV. Workings of the NRDAM/CME and NRDAM/GLE
A. Overview
The NRDAM/CME and the NRDAM/GLE consist of integrated submodels and
databases that calculate natural resource damages based on certain
types of estimated restoration costs and compensable values. The NRDAM/
CME and the NRDAM/GLE are complex computer models; however, their use
is not restricted to computer specialists.
The NRDAM/CME was developed under contract to the Department by
Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler Bailly
Consulting, Inc. The NRDAM/GLE was developed under contract to the
Department by Applied Science Associates, Inc., and Hagler Bailly
Consulting, Inc.
``CERCLA Type A Natural Resource Damage Assessment Model for
Coastal and Marine Environments Technical Documentation,'' dated April
1996 (the NRDAM/CME technical document) describes the NRDAM/CME. Volume
I of the NRDAM/CME technical document discusses the content and
derivation of the NRDAM/CME submodels and databases. Volume II is a
user's manual. Volume III is a compilation of the chemical and
environmental databases used by the NRDAM/CME. Volume IV contains the
biological databases on the species life histories, species abundances,
and trophic-level production rates used by the NRDAM/CME. Volume V is a
compilation of the compensable values and restoration costs used by the
NRDAM/CME. Volume VI is a listing of the active source code for the
NRDAM/CME.
``CERCLA Type A Natural Resource Damage Assessment Model for Great
Lakes Environments Technical Documentation,'' dated April 1996 (the
NRDAM/GLE technical document) describes the NRDAM/GLE. Volume I of the
NRDAM/GLE technical document discusses the content and derivation of
the NRDAM/GLE submodels and databases. Volume II is a user's manual.
Volume III is a compilation of all the databases used by the NRDAM/GLE.
Volume IV is a listing of the active source code for the NRDAM/GLE.
Today's final rule incorporates by reference the NRDAM/CME, the
NRDAM/CME technical document, the NRDAM/GLE, and the NRDAM/GLE
technical document. Anyone can obtain computer diskettes containing the
models and technical documents from the National Technical Information
Service for a fee. The technical documents supplied on diskette are
formatted in WordPerfect 5.1. Some databases are formatted in
QuatroPro. Hard-bound copies of the technical documents are
also available. Also, to facilitate prompt distribution of the models,
the Department will be providing diskettes of the models and technical
documents free of charge until July 31, 1996.
The models have a menu-driven graphic display to assist users. The
minimum computer configuration required to use the models is:
IBM-compatible personal computer (PC) using MS-
DOS 3.3 or higher;
80386 processor or better with math co-processor;
1.4 megabyte 3.5 inch floppy disk drive;
4 megabytes of RAM with 540 kilobytes available;
Hard disk with 75 megabytes of available space;
VGA monitor; and
Microsoft-compatible mouse and mouse driver
software. For further information on installation of the models, see
Section 2, Volume II of the NRDAM/CME and NRDAM/GLE technical
documents.
B. Data Inputs and Modifications
The models' databases include most of the data used by the models
to determine injury and damages. However, the final rule requires
trustees to provide certain data inputs. The rule also requires
trustees to modify certain data contained in the models if they have
more reliable information. The required data inputs and modifications
are described in Sec. 11.41 and Appendices II and III.
Trustees may have direct knowledge of some of the required data
inputs. Additional information may be available from the On-Scene
Coordinator (OSC), who is responsible for managing response actions
following a release. The U.S. Coast Guard will normally be the OSC for
releases in coastal or marine environments or the Great Lakes. However,
trustees remain responsible for ensuring that all data inputs are
reliable.
C. Geographic Information System
The models incorporate a geographic information system (GIS) that
supplies geographically distributed information to the submodels. The
submodels divide space into series of rectangular grids. In the NRDAM/
CME, each grid contains 10,000 cells (100 x 100). In the NRDAM/GLE,
each grid contains 2,500 cells (50 x 50). The size of a specific grid
and, therefore, the interior cells, varies based on the physical
geometry of and the availability of natural resource information about
the particular geographic area. For example, the GIS uses smaller grids
for nearshore areas than for offshore areas. The models assign a
habitat type to each grid cell. The GIS draws the necessary
[[Page 20565]]
environmental and biotic data from the appropriate databases. The
models assume that conditions are uniform throughout a particular grid
cell.
For further information about the GIS and grid system, see Section
2, Volume I of the NRDAM/CME technical document; and Section 3.15,
Volume I of the NRDAM/GLE technical document.
D. Submodels
Both models include four linked submodels: a physical fates
submodel, a biological effects submodel, a restoration submodel, and a
compensable value submodel. The NRDAM/GLE also has a hydrodynamics
submodel.
1. Physical Fates Submodel
The physical fates submodel estimates the distribution of the
released substance on the water surface, along shorelines, in the water
column, and in sediments over time. The submodel uses an array of
computational ``particles'' to represent the released substance. A
variable fraction of the released substance is associated with each
particle. The submodel tracks the distribution of the particles in both
time and space as they move across a three-dimensional gridded
environment.
Modeled wind and current effects drive the movement of the
particles on the water surface and in the water column. In the NRDAM/
GLE, the hydrodynamics submodel simulates the wind-driven currents
occurring in the water column. In the NRDAM/CME, the physical fates
submodel simulates wind-driven currents in the upper water column and
employs user-supplied data inputs on background and tidal currents to
simulate movement in the upper and lower water column.
Drawing data about the physical and chemical properties of the
released substance from the chemical and toxicological database, the
submodel continues simulating the transport and fate of the substance
until all environmental exposure levels are below a specified
concentration (the acute toxicity threshold). The acute toxicity
threshold serves as a switch to turn off the physical fates submodel
and activate the biological effects submodel. The submodel creates a
time-series file of surface slick coverage, shoreline coverage, and
substance concentration levels in the water column and in bottom
sediments that is used by the biological effects submodel.
For further information on the physical fates submodel, see Section
3, Volume I of the NRDAM/CME and NRDAM/GLE technical documents. For
further information on the chemical and toxicological database, see
Section 7, Volume I, and Section 2, Volume III of the NRDAM/CME and
NRDAM/GLE technical documents.
2. Biological Effects Submodel
The biological effects submodel determines whether certain types of
natural resource injuries have resulted from the release and, if so,
quantifies those injuries. The biological effects submodel determines
and quantifies the following types of injury: (1) Direct mortality
resulting from short-term exposure to the released substance; (2)
direct loss of production resulting from short-term exposure to the
released substance; (3) indirect mortality resulting from food web
losses; and (4) indirect loss of production resulting from food web
losses. The biological database supplies data on habitat type and
species biomass to the biological effects submodel.
The biological effects submodel determines direct mortality of
fish, shellfish, and wildlife and direct loss of production for plants
and invertebrates by calculating exposure of different species to the
released substance. When performing these calculations, the biological
effects submodel uses the time series data generated by the physical
fates submodel concerning the distribution and concentration of the
released substance.
The biological effects submodel determines direct mortality of fish
and shellfish through use of an array of computational ``particles''
that move through the gridded environment. Each particle represents a
portion of the fish or shellfish populations potentially exposed to the
release. Each time a particle enters an area with dissolved water or
sediment concentrations of the spilled substance, the submodel
calculates the percentage mortality of the fish or shellfish population
represented by the particle. These calculations continue until
concentrations of the released substance fall below acute toxicity
thresholds.
The biological effects submodel uses similar procedures to
determine direct mortality of birds and mammals. However, the submodel
only determines direct mortality of birds and mammals when the released
substance forms a surface slick.
The biological effects submodel determines direct mortality of fish
and shellfish eggs and larvae through use of particle arrays that move
with the currents, as biologically appropriate. For plants and
invertebrates, the submodel determines direct loss of production based
on the assumption that such biota are uniformly distributed throughout
a particular habitat type within the model grids rather than through
use of particle arrays.
Once the biological effects submodel determines direct mortality
and direct loss of production , the submodel then calculates indirect
mortality and indirect loss of production for fish, shellfish, and
wildlife resulting from reductions in food resources. The submodel uses
a generalized food web model to determine the effect that direct loss
of plant production, invertebrates, and noncommercial fish and mammals
have on higher trophic-level fish, shellfish, and wildlife.
After determining injuries from both direct exposure and food web
losses, the biological effects submodel quantifies those injuries both
in terms of lost populations over time and, in the case of fish,
shellfish, and wildlife, fishing and hunting losses. The submodel also
computes fishing and hunting losses resulting from closures. The
compensable value submodel uses this information to determine
compensable value.
For further information on the biological effects submodel, see
Section 4, Volume I of the NRDAM/CME and NRDAM/GLE technical documents.
For further information on the biological database, see Section 6,
Volume I, and Volume IV of the NRDAM/CME technical document; and
Section 8, Volume I, and Section 3, Volume III of the NRDAM/GLE
technical document.
3. Restoration Submodel
The restoration submodel estimates the cost, if any, of restoring
the injured resources. The submodel first evaluates possible habitat
restoration and restocking actions. The submodel analyzes the costs and
benefits of any possible habitat restoration and restocking actions to
determine whether these forms of active restoration or natural recovery
should be assumed for purposes of the models' damage calculations. In
some cases, the submodel also determines the cost of restoring lost
assimilative capacity. The active restoration costs, if any, computed
by the restoration submodel comprise one component of the damage
figure; the other component, compensable value, is calculated by the
compensable value submodel.
For certain types of habitats, the restoration submodel evaluates
habitat restoration action. The submodel identifies those habitats for
which human intervention may potentially facilitate recovery. For each
such habitat in each affected area, the restoration submodel evaluates
the effect that a
[[Page 20566]]
particular active restoration alternative would have on the compensable
value calculated by the model. If the relevant active habitat
restoration alternative would result in a lower total compensable value
for a particular grid cell than reliance upon natural recovery, then
the restoration submodel computes the cost of performing that
alternative for that grid cell. The restoration cost database supplies
information on unit restoration costs to the restoration submodel. The
biological effects and compensable value submodels supply information
to the restoration submodel concerning the extent of injury and
compensable value with and without active habitat restoration. If the
active habitat restoration alternative would not result in a lower
total compensable value than reliance upon natural recovery, then the
restoration submodel does not compute any habitat restoration costs.
The restoration submodel evaluates the following types of active
habitat restoration alternatives against natural recovery:
For open water sediments: dredging and refilling with clean
material (shallow water); or capping (deep water);
For wetlands, macroalgal beds, and seagrass beds: replacement of
contaminated substrate and replanting (if sediments are toxic); or
replanting (if sediments are not toxic but mortality has occurred);
For invertebrate reefs (coral and mollusk): replacement of
contaminated substrate and reseeding (if sediments are toxic); or
reseeding (if sediments are not toxic but mortality has occurred);
and
For shorelines in coastal or marine environments: washing of
sand and gravel; replacement of mud; and chemical washing of rocky
shoreline.
The restoration submodel then considers restocking of fish and
wildlife. If stocks of the same age as the injured fish and wildlife
are available through captive breeding programs, then the submodel
computes the cost of restocking those species after the habitat has
recovered, either through natural recovery or active habitat
restoration. The restoration cost submodel supplies data on the
availability and cost of stocks to the restoration submodel.
If the relevant active habitat restoration alternative would reduce
compensable value or if restocking is possible, then the submodel
performs a cost-benefit test of these forms of active restoration. The
submodel compares the total costs of active habitat restoration and
restocking against the measured benefits of such restoration (i.e.,
compensable value assuming natural recovery minus compensable value
assuming active habitat restoration and restocking). If the costs
exceed ten times the measured benefits, then the submodel assumes, for
purposes of generating a damage figure, that natural recovery, rather
than active restoration, will be used to reestablish baseline
conditions. If the costs do not exceed the measured benefits by ten
times, then the submodel assumes, for purposes of generating a damage
figure, that habitat restoration and restocking actions will be
implemented.
Finally, for releases that generate a damage figure related to
mortality and loss of productivity, the restoration submodel also
calculates the cost of restoring the water's baseline ability to absorb
pollutants (assimilative capacity). In the case of such releases, the
restoration submodel determines the amount of the released substance
that would remain in the environment after environmental exposure
levels are below acute toxicity thresholds and after any habitat
restoration actions are completed. The submodel then computes the cost
of removing a contaminant mass with toxicity equivalent to the
remaining non-acutely toxic dispersed mass of the released substance
from other identified contaminated sites. When determining the amount
of contaminant mass to remove, the submodel adjusts for the relative
degradability of that contaminant compared to that of the spilled
substance. The restoration cost database supplies data on unit costs to
the restoration submodel.
The restoration submodel sums the costs of any selected types of
active restoration. The models combine this figure with the compensable
value figure computed by the compensable value submodel to form the
final damage figure.
For further information on the restoration submodel, see Section 5,
Volume I of the NRDAM/CME and NRDAM/GLE technical documents. For
further information on the restoration cost database, see Sections 5,
12, and 13, Volume I, and Sections 5 through 7, Volume V of the NRDAM/
CME technical document; and Section 9, Volume I and Section 5, Volume
III of the NRDAM/GLE technical document.
4. Compensable Value Submodel
Compensable value, as computed by the compensable value submodel,
is the sum of certain economic use values lost to the public pending
the reestablishment of baseline conditions through either natural
recovery or active restoration, as determined by the restoration
submodel. Only public losses are included in compensable value.
The submodel computes the following types of compensable values:
Lost economic rent for lost commercial harvests resulting from
any closures specified by the authorized official and/or from
population losses;
Lost recreational harvests resulting from any closures specified
by the trustee and/or from population losses;
In the NRDAM/CME, lost wildlife viewing, resulting from
population losses, by residents of the States bordering the
provinces in which the population losses occurred;
In the NRDAM/GLE, lost wildlife viewing, resulting from
population losses, by residents of local areas bordering the
provinces in which the population losses occurred; Lost beach
visitation due to closure; and
In the NRDAM/GLE, lost boating due to closure.
The submodel calculates compensable value for lost economic rent by
multiplying the total lost harvest of the species, as computed by the
biological effects submodel, by the commercial price per unit of
harvest, as supplied by the compensable value database. The rule
provides that if a trustee is aware of reliable evidence that a private
party has recovered damages for commercial harvests lost as a result of
the release, the trustee must eliminate from the claim any damages for
such lost harvests included in the lost economic rent calculated by the
model.
The submodel calculates compensable value for lost recreational
harvests by multiplying the total lost recreational harvest of the
species, as computed by the biological effects submodel, by the
marginal value of harvesting an additional animal, as supplied by the
compensable value database. The submodel computes damages only for
harvests lost due to populations losses or closures. The submodel does
not compute damages for lost quality of recreational fishing unrelated
to lost harvests or for lost trips due to de facto closures.
The compensable value submodel computes compensable value for a
specific range of lost wildlife viewing. First, the submodel only
calculates wildlife viewing damages resulting from population losses
and does not address damages resulting from closures. Second, the
submodel only calculates losses incurred by certain segments of the
wildlife viewing public. The models divide geographic areas into
provinces. The NRDAM/CME computes lost wildlife viewing only for
residents of States bordering the provinces in which the population
loss occurred. The NRDAM/GLE computes lost wildlife viewing only for
residents of local areas bordering the provinces in which the
population loss occurred. The submodel calculates damages by
multiplying the
[[Page 20567]]
number of viewing trips affected by the release by the per-animal
marginal viewing value for the animals killed.
The compensable value submodel computes compensable value for lost
beach visitation only if trustees specify that there has been a closure
of a beach. The submodel does not calculate damages for lost quality of
beach visitation or for lost beach visitation due to de facto closures.
If a closure is specified, the compensable value submodel calculates
compensable value by multiplying the length of beach closed per day and
the number of days closed, as supplied by trustees, by the per-day
value of trips to the closed length. The compensable value database
supplies data on the per-unit value of lost beach visitation.
The NRDAM/GLE computes compensable value for lost boating only if
trustees specify that there has been a closure of a boating area. The
model does not calculate damages for lost quality of boating or for
lost boating trips due to de facto closures. If a closure is specified,
the compensable value submodel calculates compensable value by
multiplying the geographic area closed per day and the number of days
closed, as supplied by trustees, by the per-day value of trips to the
closed area. The compensable value database supplies data on the per-
unit value of lost boating. The NRDAM/CME does not compute compensable
value for lost boating.
The per-unit values in the compensable value database are stated in
1991 dollars for the NRDAM/CME and 1990 dollars for the NRDAM/GLE. The
compensable value submodel uses the Gross National Product Implicit
Price Deflator, as supplied by trustees, to adjust per-unit values to
current dollars. The compensable value submodel discounts the value of
future losses using a three percent discount rate.
After applying the Gross National Product Implicit Price Deflator
and the discount rate, the compensable value submodel sums the lost
values to calculate a compensable value figure. This figure is added to
the restoration costs, if any, computed by the restoration submodel to
form the final damage figure calculated by the models.
The rule provides that if a trustee is aware of reliable evidence
that the model application covers resources beyond his or her
jurisdiction, the trustee must either: (1) Have the other trustees who
do have jurisdiction over those resources join in the type A
assessment; or (2) eliminate any damages for those resources from the
claim. Further, the rule provides that if the model output indicates
damages in excess of $100,000, then trustees who wish to obtain a
rebuttable presumption must either: (1) Limit the portion of their
claim calculated with the type A procedure to $100,000; or (2) compute
all damages using type B procedures.
For further information on the compensable value submodel, see
Sections 8 through 11, Volume I of the NRDAM/CME technical document;
and Section 6, Volume I of the NRDAM/GLE technical document. For
further information on the compensable value database, see Sections 8
through 11, Volume I, and Sections 1 through 4, Volume V of the NRDAM/
CME technical document; and Section 6, Volume I, and Section 4, Volume
III of the NRDAM/GLE technical document.
V. Use of the NRDAM/CME and NRDAM/GLE in Other Contexts
The Department is issuing today's final rule in compliance with the
statutory requirement to develop procedures for conducting simplified
assessments that are entitled to a rebuttable presumption. The
standards in today's final rule apply only when trustees use the type A
models to develop a damage figure and intend to obtain a rebuttable
presumption for that figure in litigation. Trustees who use the models
in other contexts, such as settlement negotiations or litigation
without the benefit of the rebuttable presumption, are not subject to
the rule standards. In these other contexts, trustees are free to make
modifications to the model databases beyond those permitted under the
rule and to use some, but not all, of the components of the models.
For example, trustees may wish to use the models to develop a
benchmark damage figure for settlement negotiations but may have more
up-to-date or more site-specific information on recreational fishing
values. In that case, trustees may choose to apply the models using
modified recreational fishing values, notwithstanding the rule
provisions concerning modification of the model databases. In other
situations, trustees may choose to rely on the models' predictions of
injury but perform their own analyses of restoration alternatives and
compensable values. Trustees may also choose to rely on the models'
damage calculations for some resources but for other resources
substitute their own damage calculations for other resources covered by
the models. The Department believes that although use of the type A
models in these ways would not be covered by today's rule and,
therefore, would not be entitled to a rebuttable presumption, such use
can produce reliable damage estimates if done properly.
VI. Summary of Major Changes from the Proposed Rules
The Department has made numerous changes in the rule language and
models based on the comments received. The Department discusses its
rationale for these changes in Section VII of this preamble.
A. Rule Language
The Department has made several major substantive changes to the
proposed rule language. With regard to the applicability of the type A
procedures, the Department has modified the conditions that must be met
before a trustee can use a type A procedure to obtain a rebuttable
presumption and has eliminated the provision that would have required
trustees to use the type A procedures in some circumstances. Instead of
delineating ``primary'' and ``secondary'' conditions for use as the
proposed rule did, the final rule now provides that if the conditions
for use of the models listed in Sec. 11.34 are met, then trustees
decide whether to use type A or type B procedures based on an
evaluation of the averaged data and simplifying assumptions listed in
the NRDAM/CME and NRDAM/GLE technical documents. The Department has
also more clearly delineated the conditions under which trustees can
use type B procedures to supplement a type A procedure and the process
for doing so.
With regard to operation of the NRDAM/CME and the NRDAM/GLE, the
rule now allows trustees to modify the habitat designations in the
models and still obtain a rebuttable presumption. The rule also
requires trustees to perform a preliminary application of the NRDAM/CME
or NRDAM/GLE and make the results available for public review before
performing a final application and presenting a demand to the PRP.
The final rule contains three new provisions that require trustees
in some cases to adjust the damage figure calculated by the models
before presenting a demand. First, the rule now provides that if
trustees are presented with evidence that private parties have obtained
recoveries for lost commercial harvests, they must eliminate any
damages for such lost harvests included in the lost economic rent
calculated by the model. Second, the rule provides that if a trustee is
aware of reliable evidence that the model application covers resources
beyond his or her trustee jurisdiction, the trustee must
[[Page 20568]]
either: (1) Have the other trustees who do have jurisdiction over those
resources join in the type A assessment; or (2) eliminate any damages
for those resources from the type A damage calculation. Third, the rule
provides that if the model output indicates damages in excess of
$100,000, then trustees who wish to obtain a rebuttable presumption
must either: (1) Limit the portion of their claim calculated with the
type A procedure to $100,000; or (2) compute all damages using type B
procedures.
The Department has also eliminated the proposed clarification of
the scope of review of a type A assessment in a natural resource damage
case.
Finally, as part of its regulatory reform efforts, the Department
has rewritten the final rule in plain English. The Department believes
this revision has made the rule significantly clearer and easier to
read.
The following is a section-by-section analysis of the final rule:
Subpart A--Introduction
Section 11.15 What Damages May a Trustee Recover?
The Department has rewritten the heading of this section to make it
easier to understand. The final rule language revising subsection
(a)(1) is unchanged from the August 1994 proposed rule. The final rule
eliminates the separate subsections referring to type A procedures,
type B procedures, or a combination of type A and B procedures in the
same assessment. Sections 11.34 through 11.36 include the criteria and
standards for selecting type A procedures, type B procedures, or a
combination, making additional detail in this introductory section
unnecessary.
Section 11.18 Incorporation by Reference
The final rule slightly revises and updates the proposed rule
language incorporating by reference the NRDAM/CME technical document,
and adding language incorporating by reference the NRDAM/GLE technical
document.
Section 11.19 Information Collection
The final rule retains the December 1994 proposed rule language to
remove and reserve this section.
Subpart C--Assessment Plan Phase
Section 11.30 What Does the Authorized Official do if an Assessment is
Warranted?
The final rule makes several revisions to this section that were
not included in the proposed rules, but which are necessary to conform
to other provisions in today's final rule. Existing subsection (a),
which applied to both type A and type B procedures, did not authorize
performance of any assessment methodologies until after the period of
public review and comment for the Assessment Plan. Section 11.42 of
today's final rule requires trustees to perform a preliminary
application of the NRDAM/CME or NRDAM/GLE before releasing the
Assessment Plan for public review and comment. Trustees who use type B
procedures, however, must still make the Assessment Plan available for
public review and comment before performing any of the procedures
contained in the Plan. See Sec. 11.32(c) of today's final rule. The
Department has revised the heading of the section and the language of
subsection (a) to make them easier to understand and to make this
conforming change. The Department has also modified subsection
(c)(1)(vi) to make a necessary conforming change cross-referencing
other rule provisions.
Section 11.31 What Does the Assessment Plan Include?
The final rule revises the heading and rule language to make the
section easier to understand. Subsection (a)(1) adopts as final the
language in the August 1994 proposed rule.
The Department has revised subsection (b) from the August 1994
proposed rule to make it clear that the Assessment Plan must include a
detailed explanation of how the trustee's decision to use a type A
procedure, type B procedures, or a combination, satisfies the
decisional standards contained in the rule.
Subsection (c) clarifies and corrects existing rule language, which
was garbled in 1988. Compare 53 FR 5174 (Feb. 22, 1988) with 51 FR at
27731. Although this language was not in the proposed rules, it is a
nonsubstantive change. Subsection (c)(1) has been modified to make a
necessary conforming change cross-referencing redesignated Sec. 11.37.
Subsection (d) revises the existing rule language to make it easier
to understand. Subpart D contains the requirements concerning
identification and documentation of information, and therefore it is
unnecessary to repeat them in subsection (d).
Section 11.32 How Does the Authorized Official Develop the Assessment
Plan?
The Department has revised the heading of this section to make it
easier to understand.
The final rule revises subsection (c) to make it easier to
understand and to make the same necessary conforming change described
in the discussion of Sec. 11.30.
The final rule language revising subsection (f) is slightly
reworded, but substantively the same as, the language in the August
1994 proposed rule. As explained in the August 1994 notice of proposed
rulemaking, this provision clarifies that the confirmation of exposure
requirement applies to type B, but not type A, procedures. Original
Secs. 11.34(a)(1), 11.31(c)(1), and 11.33(b)(4) already established
this distinction. Today's final rule language merely makes the rule
easier to understand.
Section 11.33 What Types of Assessment Procedures Are Available?
Today's final rule revises Sec. 11.33 to limit this section to
providing a brief description of the difference between type A and type
B procedures.
Section 11.34 When May the Authorized Official Use a Type A Procedure?
New Sec. 11.34 combines and revises changes that were proposed for
Sec. 11.33 in the August 1994 and December 1994 proposed rules. This
section now states the threshold conditions that must be present before
a trustee may use a type A procedure, many of which were included among
the ``primary'' conditions in the proposed rules.
Section 11.35 How Does the Authorized Official Decide Whether to Use
Type A or Type B Procedures?
New Sec. 11.35 further revises changes that were proposed for
Sec. 11.33. The section provides decisional criteria for the
determination whether to use type A or type B procedures, assuming that
the conditions in Sec. 11.34 are met. The final rule language requires
trustees to base the decision whether to use type A or type B
procedures on an evaluation of the data and assumptions in the type A
procedures, as described in the NRDAM/CME and NRDAM/GLE technical
documents. These assumptions include many of the ``secondary
conditions'' contained in the proposed rules.
Section 11.36 May the Authorized Official Use Both Type A and Type B
Procedures for the Same Release?
New Sec. 11.36 provides standards for when trustees may use both a
type A procedures and type B procedures for the same release. The
August and December 1994 proposed revisions to Sec. 11.33 included
similar modifications.
[[Page 20569]]
Today's final rule language provides clearer, more specific criteria,
and specifically identifies the categories of injury and compensable
value addressed by the type A procedures.
Subsection (d) addresses the issue of which type B procedures must
be followed when a trustee decides to combine a type A and type B
procedures in a single assessment.
Section 11.37 Must the Authorized Official Confirm Exposure Before
Implementing the Assessment Plan?
The Department has revised the heading of this section (formerly
Sec. 11.34) and has modified subsection (a) from the proposed rule to
make it easier to read. Subsection (a) clarifies the intent of the
existing rule that the confirmation of exposure requirement applies
only to type B procedures. Although former Sec. 11.34(a) did not
expressly distinguish between type B and type A procedures, former
Secs. 11.31(c)(1) and 11.33(b)(4) limited the confirmation of exposure
requirement to type B procedures.
Subpart D--Type A Procedures
Section 11.40 What Are Type A Procedures?
The Department has revised the heading of this section and the
language of subsection (a) to make them easier to read, to add
references to the type A procedures for Great Lakes environments, to
provide additional information about both type A procedures, and to
incorporate the requirement that a trustee must follow the procedures
in Secs. 11.41 through 11.44 when using either of the two type A
procedures. Today's final rule provides a more detailed description of
type A procedures than was contained in the August 1994 proposed
revision to Sec. 11.40.
Section 11.41 What Data Must the Authorized Official Supply?
This section identifies the data inputs and modifications that the
trustee must supply to use the NRDAM/CME or NRDAM/GLE. Today's final
rule modifies and simplifies proposed Sec. 11.42 (c) and (d) in the
August 1994 proposed rule, and proposed revisions to Sec. 11.41 in the
December 1994 proposed rule. The final rule language for Sec. 11.41 is
considerably shorter than that in the proposed rules, because the
format for data inputs and modifications is now contained in two new
appendices to the rule. The final rule now requires trustees to make
certain modifications to the model databases, including the habitat
designations, if they have reliable evidence that the databases are
incorrect.
Section 11.42 How Does the Authorized Official Apply the NRDAM/CME and
NRDAM/GLE?
This section contains a new procedure requiring trustees to perform
a preliminary application of the NRDAM/CME or NRDAM/GLE as part of the
process for deciding whether to use a type A procedure. If the trustee
decides to continue with a type A procedure, then the data inputs,
modifications, and results of the preliminary application become part
of the Assessment Plan.
Section 11.43 Can Interested Parties Review the Results of the
Preliminary Application?
This section requires trustees who decide to continue with a type A
procedure to develop an Assessment Plan, which must include the data
inputs, modifications, and results of the preliminary application. The
trustee must make the Assessment Plan available for public review and
comment.
Section 11.44 What Does the Authorized Official do After the Close of
the Comment Period?
Subsections (a) through (c) of this section state the procedural
and substantive requirements following public comment on the Assessment
Plan, which include performing a final application of the NRDAM/CME or
NRDAM/GLE and preparing a Report of Assessment. Subsection (d) includes
specific criteria to preclude double recovery for economic rent for
lost commercial harvests if a private party has already recovered for
the same damages. Subsection (e) resolves a potential problem arising
when trustees have not agreed in advance to use a type A procedure
jointly. Subsection (f) limits the damages that may be recovered by
trustees who use the NRDAM/CME or NRDAM/GLE and intend to obtain a
rebuttable presumption.
Subpart E--Type B Procedures
Section 11.73 Quantification Phase-Resource Recoverability Analysis
The Department has revised subsection (a) to make a necessary
conforming change to cross-reference redesignated Sec. 11.35 (now
Sec. 11.38).
Subpart F--Post-Assessment Phase
Section 11.90 What Documentation Must the Authorized Official Prepare
After Completing the Assessment?
The Department has revised the final rule from the August 1994
proposed rule to make the heading and rule language simpler and easier
to understand. The substantive effect of this provision is the same as
existing Sec. 11.90.
Section 11.91 How Does the Authorized Official Seek Recovery of the
Assessed Damages From the Potentially Responsible Party?
Today's final rule revises the heading of the section and the first
sentence of subsection (a) to make the rule language simpler and easier
to understand. The substantive effect of this provision is the same as
existing Sec. 11.91.
Appendices
The Department has added two new appendices to the rule. These
appendices specify the format for data inputs and modifications for the
NRDAM/CME and NRDAM/GLE.
B. NRDAM/CME and NRDAM/GLE
The Department has made several major substantive changes to the
NRDAM/CME and NRDAM/GLE computer code and databases. The Department has
revised the chemical database for both the NRDAM/CME and NRDAM/GLE to
incorporate an additional 24 oils and petroleum products. The
Environment Canada publication, ``A Catalogue of Crude Oil and Oil
Product Properties,'' and NOAA's ADIOS (Automated Data Inquiry for Oil
Spills) database provided the principal sources of information for
revision of the databases. The Department also deleted the following
hazardous substances from the database: pure metals, nontoxic
substances, and substances for which the toxicity threshold was less
than the water solubility. The Department deleted a total of 31
hazardous substances from the NRDAM/CME database and 32 hazardous
substances from the NRDAM/GLE database.
The Department has included an additive toxicity model for oil and
petroleum products in the biological effects submodel to address the
additive toxicity of the multiple substances in oil and petroleum
products. The additive toxicity model also addresses the effects of oil
weathering.
The Department has updated the wildlife viewing values contained in
both the NRDAM/CME and NRDAM/GLE economic databases based on
[[Page 20570]]
recent information available from the 1994 addendum to the 1991
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation
developed by the U.S. Fish and Wildlife Service (FWS). Also, in the
NRDAM/CME, the Department revised the wildlife viewing values to
reflect the total population of the respective coastal states.
In the NRDAM/CME, the Department has modified the habitat grids to
provide a finer scale resolution. The Department changed the scale from
a 50 x 50 grid to a 100 x 100 grid. The Department has also upgraded
the Microsoft compiler to allow for use of 32-bit processing
and additional random access memory (RAM).
The Department has revised the east coast wetland habitats
represented in the NRDAM/CME grids for provinces 11, 12, and 13 (New
York and New Jersey) to incorporate more site-specific data provided by
commenters. See Section 3.4, Volume III of the NRDAM/CME technical
document.
In the NRDAM/CME, the Department has substantially revised wildlife
abundance data for provinces 40 through 51 (west coast and the Gulf of
Alaska) based on additional information and data provided by public
commenters.
The Department has added a habitat editor to the NRDAM/GLE user
interface consistent with that provided in the proposed NRDAM/CME.
The Department has included intertidal seagrass as an additional
habitat type in the NRDAM/CME. The intertidal seagrass habitat includes
those common habitats for tropical seagrass and eelgrass.
The Department has disaggregated the model output files for the
injury and damage calculations resulting from direct kills versus food
web and habitat losses, and from commercial versus recreational fishing
losses.
The Department has revised the active habitat restoration
a
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
lternatives evaluated for structured habitats (i.e., wetlands,
seagrass beds, macroalgal beds, and invertebrate reefs) to include not
only sediment replacement with replanting but also replanting alone.
The Department has eliminated the calculation of compensable value
for lost boating and subsistence losses from the NRDAM/CME.
The Department has revised the restoration submodel to include a
cost-benefit test for determining whether the measured benefits of
active habitat restoration and restocking, as compared to natural
recovery, are worth the additional costs.
Finally, the Department has revised the calculation of assimilative
capacity restoration costs to correct for the degradation rate of the
spilled substance and to limit the calculation of assimilative capacity
restoration costs to cases where biological injury has occurred and
produces compensable value.
VII. Response to Comments
The Department received numerous public comments on the proposed
type A procedures. The Department and NOAA also asked several
independent technical reviewers to examine the proposed NRDAM/CME. The
Department made the comments of these independent technical reviewers
available to the public and included them in the administrative record
for this rulemaking. See 60 FR 28773 (June 2, 1995). The Department
provides responses to both the public comments and the comments of the
independent technical reviewers below.
In addition to the issues discussed below, commenters addressed a
number of issues beyond the scope of this rulemaking. The Department
explicitly limited this rulemaking to four issues: the revision of the
existing type A procedure for coastal and marine environments; the
development of a new type A procedure for Great Lakes environments; the
conditions for combined use of type A and type B procedures; and the
scope of judicial review of assessments performed using type A
procedures. See 59 FR at 40319-20, 63300, and 63302. Nevertheless, some
commenters raised additional issues, including: whether trustees should
be allowed to pool natural resource damage recoveries to implement
regional restoration plans; the permissibility of using type A and type
B procedures for the same release; and whether lost economic rent and
the cost of restoring lost assimilative capacity are legally
permissible categories of damages. The Department has not evaluated,
and is not providing substantive responses to, comments on these issues
in this rulemaking.
Section 11.93(d) of the existing regulations, which was promulgated
in 1987, allows pooling of multiple type A recoveries to implement a
single restoration plan, so long as the plan is intended to address the
same or similar injuries as those identified in each application of the
type A procedure. See 52 FR at 9100. The Department neither reproposed,
revisited, nor solicited comment on Sec. 11.93(d) and merely cited it
in the preambles to the proposed rules by way of background. 59 FR at
40324 and 63305.
Section 11.15(a)(1)(iii) of the original type A rule, which was
promulgated in 1987, established that trustees could use both type A
and type B procedures for the same release under certain circumstances.
See 52 FR at 9095. The Department did not repropose, revisit, or
solicit comment on whether CERCLA allows trustees to combine type A and
type B procedures. The only issue raised and addressed in this
rulemaking was whether the Department should expand the authorization
for combined use of type A and type B procedures.
Finally, the Department did not repropose, revisit, or solicit
comment on its long-standing positions on the recoverability of damages
for lost economic rent and lost assimilative capacity. Both the
original type B rule and the original type A rule explicitly allowed
for the recovery of lost economic rent. See 43 CFR 11.83(c)(1); 51 FR
at 27749; and 52 FR at 9047. The Department has recognized the loss of
assimilative capacity as a legitimate category of natural resource
damages since the promulgation of the original type B procedures in
1986. 51 FR at 27716; see also 59 FR at 14273. The Department has begun
a biennial review of the type B procedures and will be considering the
issues of lost economic rent and lost assimilative capacity in that
context. See 59 FR 62749 (Oct. 19, 1994).
A. General Comments
Comment: Some commenters supported the concept of a reliable,
accurate, automated damage assessment procedure that would eliminate
the need for expensive tailor-made studies. However, other commenters
objected to the calculation of damages through what they considered to
be abstract application of theoretical, generic models. Some of these
commenters thought that many of the calculations of the NRDAM/CME and
NRDAM/GLE were based on unsubstantiated assumptions.
A number of commenters, including some of the independent technical
reviewers, questioned the Department's use of ``grand averages'' to
extrapolate data for a specific species, substance, or location, to
different species, substances, and locations. Commenters were
particularly concerned about the extrapolation of economic values made
in the compensable value submodel. For example, commenters noted that
some of the studies used to value recreational fishing in the NRDAM/CME
were based on freshwater fishing and commercial fishing. Commenters
also stated that many of the studies used outdated data and outdated or
unreliable
[[Page 20571]]
methodologies. For example, commenters noted that recreational hunting
values were derived from a 20-year old contingent valuation study. Some
commenters suggested specific criteria that they thought should be met
when performing benefits transfer (i.e., the extrapolation of economic
values derived from studies of one situation to another situation).
Response: CERCLA requires that type A procedures involve ``minimal
field observation'' and authorizes type A procedures to be based on
``units of discharge or units of affected area.'' CERCLA sec.
301(c)(2)(A). The Senate Report that accompanied the predecessor bill
to CERCLA provides the following indication of Congress' intent:
Natural resource damage assessments based on this type of
regulation [type A] should require as little fieldwork as possible,
and rely on a combination of habitat values, tables of values for
individual species, and previously conducted surveys and laboratory
studies, related to units of discharge or units of affected area. S.
Rep. No. 96-848 at 86.
This language indicates that Congress envisioned the development of
type A procedures that do not require the performance of any new
studies but instead use existing studies to provide generalized values
that can be applied in specific cases. Inherent in the concept of
developing unit values from existing studies is the notion of making
assumptions in the absence of empirical data and applying average
values across a range of nonidentical items. Therefore, the Department
believes that CERCLA authorizes it to make appropriate extrapolations
from existing data.
The science of natural resource damage assessment is still
evolving. The universe of relevant studies is still very small for many
crucial aspects of damage assessment. Existing data are particularly
limited as to the effects of small spills. Even when addressing the
limited range of scenarios covered by the NRDAM/CME and the NRDAM/GLE,
the Department faced significant challenges in bridging data gaps.
Although Congress did authorize the Department to make extrapolations
from existing data, the Department recognizes that any such
extrapolations must be reasonable. Thus, when developing the models,
the Department tried to make use of the most reliable information
available based on extensive reviews of published and unpublished
information and data; make only those assumptions that are necessary;
ensure that any assumptions that are made are reasonable; and identify
clearly all assumptions that were required for the development of
simplified procedures.
With regard to the compensable value submodel, the Department did
apply specific criteria during its selection of studies to use for
benefits transfer. The Department used only studies that: (1) Were
based on an extensive literature review and consultations with relevant
governmental agencies; (2) reasonably represented the natural resource
and public use under investigation; (3) contributed to a reasonable
representation of the different regions included in the models; (4)
were conducted by a recognized university-associated researcher or
established consulting firm; and (5) used appropriate valuation
methodologies. The Department believes that these criteria adequately
address all the concerns that the commenters' suggested criteria are
intended to address. The first three criteria assure that the resources
considered in the selected studies are as similar as possible to the
resources to be valued in the models. The fourth criterion assures that
the selected studies are scientifically sound. The fifth criterion
assures that the selected studies use appropriate valuation
methodologies.
Comment: One commenter suggested that the Department had developed
the models by selecting values from a few studies while ignoring
others. The commenter argued that the Department had failed to provide
adequate justification for the values it selected.
Response: The Department conducted extensive searches for available
information. Some data the Department identified were not used because
better or more applicable data were available. However, none of the
identified data was ignored. The Department believes that the NRDAM/CME
and NRDAM/GLE technical documents adequately explain and justify the
values in the models.
Comment: Some commenters thought that the proposed type A models
were so technically flawed that they did not meet the statutory
standard of ``best available procedures'' and, therefore, trustees
should not obtain a rebuttable presumption if they use the models.
These commenters urged the Department to abandon the models noting that
Colorado v. Interior does not require or authorize the Department to
issue a model that is unreliable. One commenter acknowledged that the
proposed revised NRDAM/CME appeared to be an improvement over the
original NRDAM/CME Version 1.2 issued in 1987. However, the commenter
thought the proposed revised model still contained too many flaws to
accomplish its intended purpose. Another commenter stated that the
damage figures produced by the models are nothing more than sheer
speculation and are not legally sufficient due to the compounding of
errors, uncertainties, biases, and overestimates.
Response: As discussed in more detail below, the Department has
carefully reviewed all comments it received on the proposed models and
rule language. Based on this review, the Department has made numerous
modifications to the models and the rule language. Where the Department
concluded that no changes were needed, the Department has explained its
reasoning. The Department believes that the final type A models, as
revised in response to comments, are best available procedures when
used in accordance with the standards and process set forth in today's
final rule. The models, with their state-of-the-art modeling and
extensive databases, represent a significant advancement beyond the
original NRDAM/CME issued in 1987. The final type A procedures provide
for reliable, cost-effective, simplified assessments that are entitled
to a rebuttable presumption.
Comment: Several commenters thought the Department had been overly
ambitious in attempting to develop models like the NRDAM/GLE and the
NRDAM/CME. Specifically, these commenters stated that the biological
effects submodel attempted to perform a task that is beyond the current
state of ecological modeling. The commenters contended that state-of-
the-art ecological modeling is not yet capable of producing accurate
quantitative determinations and is primarily useful only for making
qualitative predictions. The commenters also thought that the multiple
iterative calculations performed by the biological effects submodel did
not alleviate the problem but simply amounted to averaging of nonsense.
Response: The Department agrees that ecological models should
generally be used only for qualitative predictions. However, the
biological effects submodel in the NRDAM/GLE and the NRDAM/CME is not a
true ecological model in the sense suggested by commenters. Ecological
models evaluate the changes in ecosystem structure and function
resulting from disturbances. The biological effects submodel, on the
other hand, is a toxicological effects model. The biological effects
submodel simply calculates acute mortality and lost production and
projects these injuries forward as biota not present or used in future
years. The submodel need not, and does not attempt to, address the
higher-order ecological
[[Page 20572]]
changes in the structure and functions of biological systems as true
ecological models do.
The Department believes that the NRDAM/CME and NRDAM/GLE are
reasonable tools for assessing the injuries and compensable values that
they address and do not generate ``nonsense.'' Further, the use of
iterative calculations is designed to, and does, enhance the
reliability of damage estimates in particular cases. The biological
effects submodel uses several randomized algorithms for processes, such
as swimming by fish, that are considered random at the relevant spatial
and temporal scales. For each spill modeled, the submodel performs
multiple iterative runs and then selects the mean result. This approach
is a generally accepted method of modeling the most probable biological
effects for events that have an element of randomness.
Comment: Some commenters thought the proposed models were
fundamentally flawed because they used overly simplistic simulations of
movement of biota within a population. The commenters stated that these
simulations could not be improved because of the lack of basic data on
population movement.
Response: The Department believes that the NRDAM/CME and the NRDAM/
GLE use the best available procedure for simulating the movement of
biota and that this procedure is reliable for the purposes of a
simplified damage assessment. The Department acknowledges that the
directed movement of biota is not well understood quantitatively.
However, at the smallest scale, there is a random component to the
movements of animals within the habitats they occupy, and the NRDAM/CME
and NRDAM/GLE can and do model this component. The models do not
simulate within-season, between-habitat movements, except where
currents carry organisms across boundaries. However, the seasonal and
habitat-specific abundances included in the database do account for
inter-habitat movement between seasons.
Comment: Some commenters, including some of the independent
technical reviewers, thought that the Department should validate the
models against real-world data and perform sensitivity analyses. A few
commenters also thought the Department should calibrate the models.
Response: The Department has conducted extensive sensitivity
studies of both the NRDAM/CME and NRDAM/GLE. It is difficult to conduct
conclusive validation studies of the models due to the extreme lack of
data on the natural resource effects of small spills. In fact, although
more data exist for large spills, even those data are limited.
Nonetheless, the Department has used the data that are available to
conduct validation studies of the NRDAM/CME physical fates and
biological effects submodels and believes that these studies suggest
that the submodels provide reasonable estimates of the actual physical
fates and biological effects of spills. Even less data exist for spills
in the Great Lakes than for spills in coastal and marine environments.
However, since the NRDAM/GLE contains the same algorithms as the NRDAM/
CME, the Department believes the results of the validation studies of
the NRDAM/CME also support the NRDAM/GLE.
Because of the cost involved in performing site-specific type B
studies, trustees have rarely pursued damage claims for minor releases.
Therefore, virtually no data exist with which to validate the
restoration and compensable value submodels or determine the need for
calibrating the damage estimates produced by the models. In the absence
of such data, the Department has relied primarily on careful reviews of
the accuracy and reasonableness of the data and algorithms used in the
models. The Department believes that these reviews of the scientific
underpinnings of the models provide adequate support for the
reliability of the damage estimates produced by the models.
The Department further believes that the models are consistent with
congressional intent underlying the directive to produce procedures for
simplified assessments. The models are best available simplified
procedures. They produce reliable, fair, and reasonable results when
used for their intended purpose. The Department has clearly identified
the capabilities and limitations of the models and has allowed trustees
to select between type A and type B procedures based on specified
criteria. Finally, the Department has retained the provision allowing
PRPs to require trustees to use type B procedures if they advance the
reasonable cost of using such procedures within an acceptable time
frame.
Comment: One commenter stated that the NRDAM/GLE should be peer
reviewed in an open forum prior to promulgation.
Response: The Department believes that the NRDAM/GLE has been
adequately reviewed. The proposed model was made available for public
review and comment for eleven months. Also, the review of the proposed
NRDAM/CME by independent technical reviewers was directly relevant for
the NRDAM/GLE because the NRDAM/GLE incorporates the same basic
modeling as the NRDAM/CME.
Comment: Some of the independent technical reviewers claimed that
the proposed NRDAM/CME underestimated damages. In support of this
claim, these reviewers noted that when used to calculate damages for
certain actual releases, the model generated damage figures that were
usually at least an order of magnitude less than the figure for which
the parties settled.
Response: The Department believes that when the conditions set
forth in Sec. 11.34 are met, the models will generate reasonable and
appropriate damage figures for the injuries and losses these simplified
procedures address. The Department does not believe that historical
settlements provide an accurate or meaningful standard against which to
judge the reliability of damage figures generated by the NRDAM/GLE and
the NRDAM/CME. Although real-life case data on physical fates and
biological effects can, in some instances, provide useful comparisons
when evaluating the physical fates and biological effects submodels,
bottom-line settlement figures may differ from model damage figures for
a number of reasons that have nothing to do with reliability.
First, because of the cost involved in performing site-specific
type B studies, trustees have rarely pursued damage claims for minor
releases. Therefore, historical natural resource damage settlements
usually involve large spills. The type A models were designed for minor
releases and are based on various assumptions that often are not
reasonable in the case of large spills. Therefore, the restoration and
compensable value submodels would not have been applicable to the cases
in which natural resource damage settlements have been reached.
Second, it is difficult to determine the appropriate user inputs
for some of the actual cases, many of which are several years old. For
example, user-supplied information on beach, and fisheries closures can
significantly affect the total damage figure, yet data on the actual
extent of such closures are in some cases no longer available.
Third, the models do not purport to capture all, or even most, of
the ``real world'' or ``actual'' damages that could be determined if
the costs of a full on-site assessment were not a consideration.
Instead, the models use averaged values to calculate a specific subset
of the damages resulting from a release. When used for the minor
[[Page 20573]]
releases for which they are intended, the models yield reliable and
appropriate damage figures that are calculated at a reasonable cost.
Past natural resource damage settlement agreements have generally
identified a single damage figure that is not broken down by component.
In fact, most settlement agreements to date have not even listed which
types of injuries and losses the agreement is intended to address.
Therefore, it is usually impossible to determine if the model is even
calculating the same type of damages as those covered by the
settlement, let alone whether the calculation produces a damage figure
that matches the settlement figure. The larger--and more complicated--
the release, the greater the likelihood of a divergence between the
type A damage figures and the more site-specific damages that might be
calculated using type B procedures. The fact that such divergence
occurs, and even at times might appear ``extreme,'' does not suggest
unreliability or an inappropriate ``underestimation'' of damages by the
type A models. Rather, it only serves to illustrate the limited
function these procedures are intended to serve, and the reason they
are designed to be used for minor releases, for which the costs of type
B procedures cannot be justified when compared to the anticipated level
of damages.
Finally, settlements are the result of negotiation. The negotiation
process usually begins before either party has completed its assessment
work. Settlement negotiations are influenced by both parties'
perception of several factors extraneous to the assessment process.
These factors include: the transaction costs associated with delaying
settlement or terminating negotiations and litigating the case; the
strength of the liability portion of the case; the PRP's financial
condition; and the trustee's ability to fund a complete assessment. In
light of the influence of these factors in settlement negotiations and
the other difficulties in comparing settlement figures against model
calculations, the Department does not believe that variances between
model damage figures and historical settlements indicates anything
about the reliability of the models, when used as intended.
Comment: One of the independent technical reviewers questioned why
the damages calculated by the proposed NRDAM/CME do not agree with
those calculated by the original NRDAM/CME for the same spill.
Response: The new NRDAM/CME differs significantly from the 1987
version of the model due to modifications made in compliance with the
Colorado v. Interior remand as well as modeling and database
improvements made as a result of the biennial review. Among the most
significant differences, the original model assumed a generic study
area defined by the user with uniform depth, habitat, and environmental
conditions. Today's final NRDAM/CME allows for geographic resolution of
multiple habitats, depths, coastline, shore type, currents, ice cover
and other environmental condition. The new NRDAM/CME contains much
larger biological and economic databases, resolving many more species
categories and geographic regions. Also, the new NRDAM/CME contains a
restoration submodel and restoration cost database. The Department
believes that these and other changes have resulted in significant
improvements in the reliability of the calculations of the model.
Comment: One commenter stated that the models were unreliable
because NOAA used them to develop proposed OPA compensation formulas
that generated unrealistic damage figures.
Response: The Department does not believe that damage figures
produced by NOAA's proposed OPA compensation formulas are relevant to
the evaluation of either the proposed or final versions of the NRDAM/
GLE and NRDAM/CME. On January 7, 1994, NOAA proposed compensation
formulas for determining natural resource damages under OPA. 59 FR at
1176-77. These formulas were based on early developmental drafts of the
NRDAM/GLE and the NRDAM/CME that the Department made available to NOAA
in 1991. The Department has extensively modified both the NRDAM/CME and
NRDAM/GLE since 1991. For example, the Department has revised the
algorithms contained in the physical fates and biological effects
submodels; expanded and updated the biological databases; and revised
the chemical and economic databases. Section VI.B of this preamble
identifies other major changes that the Department made to the NRDAM/
CME and NRDAM/GLE as a result of public comments.
Comment: One commenter stated that the proposed NRDAM/CME
dramatically underestimated damages as compared to the compensation
table developed by the State of Washington under its natural resource
damage laws. The commenter expressed concern that PRPs may use the
NRDAM/CME to seek reductions in the State compensation table.
Response: The Department does not believe it is appropriate or
relevant to compare the results of type A model runs against the
figures in Washington's compensation table, because the type A models
and the State table are based on different approaches to damage
assessment. The Washington table establishes a pre-set, per-gallon
scale of damages. The type A models, on the other hand, estimate the
actual effects of the release and then generate a site-specific damage
figure based on the cost of restoring injured resources plus selected
public economic values lost pending recovery.
With regard to PRPs' potential use of the type A models to
undermine the Washington table, the Department would like to emphasize
that the type A models were developed specifically for use under
Federal law. State or tribal simplified procedures may take into
account costs, economic values, or other considerations not reflected
in the type A models. As such, the damages produced by the type A
models are not an appropriate point of comparison for evaluating State
or tribal procedures. The type A models in no way preempt State or
tribal procedures that are authorized under and designed to enforce
non-Federal laws.
Comment: Several commenters questioned the disparity between the
levels of sophistication of different components of the models. Some of
the independent technical reviewers noted that the compensable value
submodel, unlike the relatively complex physical fates and biological
effects submodels, essentially amounted to a look-up table. These
reviewers thought that the Department should develop a more dynamic
economics model. Other commenters thought that significant disparities
in complexity existed even within the physical fates and biological
effects submodels.
Response: The Department has attempted to incorporate the best
available procedures for modeling all components of the type A models.
The Department acknowledges that the levels of intricacy vary
throughout the models. These variances reflect the differing degrees of
current technology and scientific knowledge. Economic science has not
progressed to the point where there are general models of recreational
demand that can be readily applied to specific recreational activities
at specific locations. This is in distinct contrast to the biological
and physical sciences. The physical fates and biological effects
submodels are based on parameterizations of known and generally
accepted models of physical and biological processes.
Comment: One of the independent technical reviewers stated that the
models incorporate some biases that will result in underestimates of
damages and other biases that will result in
[[Page 20574]]
overestimates. The technical reviewer suggested that the models provide
a range of damage estimates that reflect consistent use of conservative
assumptions on one end and consistent use of liberal assumptions at the
other end. Another independent technical reviewer suggested that the
models be modified to perform an uncertainty analysis for each run.
Response: The Department believes it has adequately and
appropriately addressed the potential for bias in the NRDAM/CME and
NRDAM/GLE. The type A procedures are principally designed to establish
a process for trustees to follow if they wish to pursue a natural
resource damage claim and obtain a rebuttable presumption in court. In
a suit for damages, trustees will need to identify a specific claim.
Therefore, the Department has developed type A models that generate a
single damage figure rather than a range of possibilities.
Moreover, where commenters, or the Department itself, identified
specific potential biases in the proposed models, the Department
modified the models to correct for such biases to the extent possible.
Where the Department could not eliminate the potential for bias, it
identified the simplifying assumptions made in the models that produce
that potential. As discussed further below, those assumptions that
could result in significant overestimates of damages if they are not
reasonable in a particular case are listed in Sec. 11.34 as conditions
that must be met if the trustees expect to obtain a rebuttable
presumption. Those assumptions that are not likely to result in
significant overestimates of damages if they are not reasonable in a
particular case, and, in fact, may result in underestimates, are
explicitly identified in Section 1, Volume I of the NRDAM/CME and
NRDAM/GLE technical documents. Section 11.35(a) provides that if a type
A procedure is applicable, trustees must determine whether to use type
A or type B procedures based on an evaluation of those model
assumptions.
As discussed in Section III of this preamble, the type A models are
neither expected nor intended to produce damage estimates that
``match'' the results of more complex site-specific assessment
procedures. Therefore, the Department has concluded that a traditional
uncertainty analysis is not needed.
Comment: Several commenters thought the scope and complexity of the
proposed NRDAM/GLE and NRDAM/CME were too great. A few commenters
thought the models were so complex and difficult to use that operating
them was beyond the ability of untrained users. One commenter thought
the technical documents should clearly state the required user
qualifications. Several commenters, including some of the independent
technical reviewers, suggested improved user interfaces. Some of the
independent technical reviewers thought that additional user guidance
was needed; one suggested that the Department develop an animated
tutorial.
Response: While the Department acknowledges that the NRDAM/CME and
NRDAM/GLE are functionally very complex, it does not believe that they
require an undue level of expertise to operate. Users must simply be
able to: (1) Understand the conditions for use in Sec. 11.34; (2)
evaluate the models' simplifying assumptions listed in of Section 1,
Volume I the technical documents; (3) evaluate the averaged data
included in the models as described in Volumes III through IV of the
NRDAM/CME technical document and Volume III of the NRDAM/GLE technical
document; and (4) enter correctly the required user-supplied data as
described in Appendices II and III of the rule. Users who meet these
standards will obtain reliable results regardless of whether they have
a full understanding of all the models' components.
As discussed further below, the Department has revised the
regulatory conditions for use of the models to clarify a number of
points of confusion. Section 1, Volume I of the NRDAM/CME and NRDAM/GLE
technical documents now contains a clearer, simpler discussion of all
the major model assumptions of which users should be aware when
determining whether to use type A or type B procedures. The Department
has also rewritten the regulatory discussion of the user-supplied
information and moved that discussion into appendices in an attempt to
make it easier to read. Volume II of the technical documents includes a
revised discussion of how to develop and input the user-supplied data.
Finally, the models provide a graphic user interface that has been
revised to further simplify the task of the user. While additional
guidance might be helpful and may be developed in the future, the
Department believes that the current level of guidance is adequate to
allow non-expert users to operate the model correctly.
Comment: Some of the independent technical reviewers questioned why
the user interface was not consistent with Windows software.
Response: The Department chose to develop the user interface as a
stand-alone product that would not require licensing a copyrighted
product such as Windows software.
Comment: A few commenters complained about the speed of the
proposed models. Some commenters called upon the Department to upgrade
the computer platform required to run the models. The commenters
thought that such an upgrade would enable users to complete model runs
in hours rather than days and would allow the models to use more
detailed databases, thus increasing accuracy.
Response: In developing the type A models, the Department had to
strike a balance between the desire for the speed afforded by high-
powered computer equipment and the need to ensure that any type A
procedure developed is readily accessible to a wide array of potential
users. The Department believes it has struck the appropriate balance in
the PC environment.
It is evident from even a cursory review of the technical documents
that the models are very complex and perform millions of individual
calculations during a run. The Department has made every effort to
optimize the models for speed without compromising their accuracy or
applicability. Obviously, there continue to be advances in PC
technology. For the development of the type A models, it was necessary
for the Department to settle on a widely-available computer platform
and finalize the rule. While more recent technological developments
will allow these models to run faster on improved computer platforms,
the Department decided that maintaining the models for use on 386 PCs
would not compromise their function or purpose and would keep them
readily accessible to potential users.
Model run times are affected by the complexity of the spill (e.g.,
amount spilled, duration of the spill, and degradation rate of the
spilled substance) as much as the computer platform utilized.
Nonetheless, for minor spills, most runs are executed in a matter of
minutes rather than hours or days even on a 386 PC. The models will
take significantly less time to run on a 486 PC or a Pentium
PC, but the user is not precluded from using an older model of
computer.
Since the issuance of the proposed rule, the NRDAM/CME has been
moved to a 32-bit FORTRAN compiler. This move allowed the
Department to subdivide the habitat grids by a factor of four and
increase the number of computational particles used to represent
spilled material and biota. These changes should improve the accuracy
of the model. The area
[[Page 20575]]
modeled in the NRDAM/GLE is much smaller than that modeled in the
NRDAM/CME. Therefore, the Department concluded that these changes were
not needed in the NRDAM/GLE to increase speed or accuracy.
Comment: One of the independent technical reviewers stated that
when he attempted to replicate test runs on the proposed NRDAM/CME he
obtained different results.
Response: Users will obtain identical results if, but only if, they
use identical inputs. The Department designed the type A models so that
they will produce identical results, regardless of the make or model of
PC used, if the user-supplied inputs are identical. To accomplish this
result, the Department built a table of random numbers into the models'
code rather than have the models use the random number generating
features of the microprocessor.
Comment: Several commenters, including some of the independent
technical reviewers, suggested that the Department include additional
categories of damages in the type A models. Commenters recommended that
the Department add the following losses to the models: sublethal
biological effects; chronic biological effects; wetland losses; nonuse
losses (i.e., economic values that are not dependent on use of a
resource, such as the value of knowing a resource exists); de facto
beach, boating, and fisheries closures; reductions in the quality of
boating and beach recreation in the absence of closures; reductions in
the quality of recreational fishing unrelated to mortality or closures;
and ecosystem functional losses such as reductions in filtration,
mineral recycling, and decomposition. These commenters expressed
concern that if the models are not expanded to cover additional losses,
then type A assessments will consistently underestimate damages. They
noted that Ohio v. Interior and Colorado v. Interior instructed the
Department to allow for the recovery of all reliably calculated losses.
Commenters also thought that, in light of the cost of type B
procedures, it was disingenuous of the Department to state that
trustees could simply use type B procedures to calculate damages for
losses not included in the models.
Response: The Department has attempted to include in the models all
categories of loss and injury for which adequate, reliable information
exists in a format that enables the calculation of damages for the wide
range of substances, resources, and geographic areas covered by the
models. The Department acknowledges that the type A models do not
address all potential losses and injuries that might result from a
release and that, in some cases, losses not included in the models may
be significant. The Department further acknowledges that Ohio v.
Interior and Colorado v. Interior instructed the Department to allow
for the recovery of all reliably calculated values. The issue, then, is
reliability. The exclusion of certain categories of injury and loss
from the models was based on the Department's evaluation of whether
there was adequate reliable information to support their inclusion.
For example, the Department has considered the comments suggesting
the addition of nonuse losses, but continues to believe that the
addition of such values is not feasible at this time. As discussed in
the proposed NRDAM/CME technical document, most studies of nonuse
values do not report marginal nonuse values that would be required for
the type A models as they are presently designed. See Section 8.5.2,
Volume I of the proposed NRDAM/CME technical document. Furthermore,
these studies have tended to focus on the nonuse values of threatened
or endangered species. As a consequence, the bulk of available studies
are not directly applicable to the estimation of nonuse values that
would be lost as a result of the small spills addressed by the type A
models.
Furthermore, the final rule explicitly provides that where trustees
expect losses that are not addressed by the models, they may consider
using type B procedures in addition to a type A procedure, provided
that type B procedures are cost-effective, can be performed at a
reasonable cost, and do not result in double recovery. The Department
recognizes that type B procedures are likely to be significantly more
costly than type A procedures and, in some cases, trustees may not be
able to perform type B procedures and still satisfy the rule's
reasonable cost standard. Nevertheless, the Department does not believe
that the cost of performing type B procedures justifies the inclusion
in the models of losses for which there is an inadequate basis to
determine damages. During future biennial reviews, the Department will
reevaluate whether additional information has become available that
supports expansion of the categories of losses and injuries included in
the models.
Comment: One of the independent technical reviewers stated that
additional detail should only be added to the models if it influences
the final damage figure.
Response: The ultimate purpose of all the calculations made by the
type A models is the determination of a reliable damage figure.
Therefore, while reviewing the comments and deciding which changes to
make to the models, the Department has focused on whether the suggested
changes would significantly improve the reliability of the final damage
figure.
Comment: One commenter suggested that trustees be allowed to use
simplified procedures developed by States and receive a rebuttable
presumption under the CERCLA regulations. Another commenter requested
that the Department develop compensation tables for commonly released
hazardous substances.
Response: Some simplified State or tribal procedures may well be
appropriate for use under CERCLA. However, only a handful of coastal
States have developed such procedures. Further, these State procedures
have been developed under State laws, which may establish somewhat
different objectives and standards than CERCLA. The Department believes
it would need to evaluate carefully any particular State or tribal
procedure to determine its consistency with CERCLA's regulatory mandate
before allowing it to be used and accorded a rebuttable presumption
under these regulations. Therefore, the Department decided it was more
appropriate to develop its own simplified procedures for the coastal
and marine and Great Lakes environments.
The primary advantage of compensation tables appears to be their
ease of use. The Department believes that the NRDAM/CME and NRDAM/GLE
are simple enough to operate that compensation tables are not
necessary. Further, the Department believes that the models will
provide a level of site-specific accuracy beyond that which a
compensation table could offer.
Although the Department has decided not to incorporate compensation
tables or simplified State or tribal procedures in this rulemaking, the
Department has begun to evaluate the need for, and feasibility of,
additional type A procedures. See 60 FR 24604 (May 9, 1995). The
Department will further consider the use of simplified State procedures
and the development of compensation tables in that context.
B. Technical Documents
Comment: Some commenters stated that the Department had failed to
provide adequate documentation explaining how the proposed models
operated and why the Department made the choices it did when developing
[[Page 20576]]
different components of the proposed models. One commenter stated that
the scope and complexity of the models were too great and suggested
that a revised program be developed and accompanied by a simplified
synopsis of the technical assumptions and formulas presented in a
format more amenable to comment. Commenters cited case law requiring
agencies to provide a complete explanation and defense of models used
in the development of regulations. The commenters noted that the
Department's obligation to provide a full discussion of the type A
models was even greater because the models are used to determine
monetary liability of particular parties.
Response: The Department acknowledges its duty to provide an
adequate explanation and justification of the models and to provide the
public with a meaningful opportunity to review and comment on the
proposed models. The Department believes it has fulfilled this duty.
The proposed models were accompanied by lengthy and detailed
technical documents describing the content, workings, and development
of the models. The proposed NRDAM/CME technical document exceeded 2,400
pages in length; the proposed NRDAM/GLE technical document was almost
1,500 pages in length. Also, the preambles to the proposed rules
provided a roadmap to the technical documents, highlighting areas of
potential concern and identifying where various issues were discussed
in the technical documents. The Department made the proposed models and
technical documents available on diskette free of charge to anyone who
requested them.
To assist commenters in reviewing the models, the Department
equipped the proposed models with a user interface that included pull-
down menus, ``help'' screens, and graphic displays of the physical
environments and user-generated runs of the physical fates submodel.
The Department also incorporated pertinent calculations from the
physical fates, biological effects, restoration, and compensable value
submodels into the printed model output to enable reviewers to evaluate
the reliability of the models for incident-specific model applications.
The Department notes that the goal of developing models that
calculate compensatory damages for spills throughout the Great Lakes
and coastal and marine environments has necessitated a relatively high
level of complexity in modeling. The Department recognizes that with
models as complex as the NRDAM/CME and NRDAM/GLE some reviewers will
always want more information on specific elements while others will be
overwhelmed as the documentation becomes more extensive. Although the
Department never deliberately omitted any discussion it thought would
be of interest to reviewers, the Department did recognize that
providing too much information can be just as problematic as providing
too little. The Department has tried to be sensitive to the risk that
important information can become buried in a mountain of detail.
The Department extended the public comment period on the proposed
NRDAM/CME once and on the proposed NRDAM/GLE twice. The total comment
periods were seven months for the proposed NRDAM/CME and eleven months
for the proposed NRDAM/GLE. Those reviewers left with questions after
reviewing the models and technical documents were free to contact
Departmental staff at any time during the comment period.
Finally, the Department has provided additional discussion of
specific model aspects in the final versions of the NRDAM/CME and
NRDAM/GLE technical documents and in this preamble as a result of
specific public comments.
Comment: Several commenters, including some of the independent
technical reviewers, said that the technical documents were either
unclear or difficult to use. Others noted confusing table captions and
headings, inconsistencies, incorrect citations, and typographical
errors. One commenter suggested that major assumptions for each
submodel be placed in bold print at the beginning of each section. One
commenter recommended that the technical documents be amended to give
examples of when the models might underestimate or overestimate
damages.
Response: The Department has reviewed and revised the NRDAM/CME and
NRDAM/GLE technical documents to further clarify algorithms,
assumptions, and data sources. The Department has also checked the
documents for consistency, particularly with regard to terminology and
has fixed the noted typographical errors and incorrect citations.
Section 1, Volume I of the NRDAM/CME and NRDAM/GLE technical documents
now more clearly identifies all the major assumptions of which trustees
should be aware when deciding whether to use the models and describes
the likely results if the assumptions are not reasonable in a
particular case. Further, the discussion of each submodel in Volume I
of the technical documents now starts with a list of the assumptions
relevant to that submodel.
C. Selection of Assessment Procedures
Comment: The Department received numerous comments on the proposed
conditions for use of the type A models. The proposed rules identified
a set of primary conditions and a set of secondary conditions. Under
the proposed rules, if any primary condition were not met, trustees
would not have been allowed to use the type A procedure. If all primary
and all secondary conditions were met, trustees would have been
required to use the type A procedure for all damages. If all primary
conditions but only some secondary conditions were met, trustees could
have used a combination of type A and type B procedures.
Some commenters thought the proposed rules were overly prescriptive
in dictating which type of assessment procedures trustees may use.
These commenters argued that trustees should have greater discretion to
determine which procedures, type A, type B, or a combination, are
appropriate in a particular case. Commenters expressed concern that the
conditions regarding use of the type A procedures were vaguely defined
and would invite confrontation and litigation if they were imposed as
requirements. These commenters supported expansion of the authority to
use type A and type B procedures in combination, but thought the
proposed rules still did not provide adequate flexibility. These
commenters also stated that the type A procedures were particularly
useful when used with selective site-specific studies of impacts not
addressed in the type A models.
Other commenters, including one of the independent technical
reviewers, thought that the proposed rules gave trustees too much
discretion in selecting assessment procedures. Some of these commenters
thought that the conditions regarding use of the type A procedures
should be clearer and stricter. One of the independent technical
reviewers suggested that the Department recharacterize the assumptions
made by the models as limits of applicability. One commenter argued
that trustees be required to use a type A procedure unless they provide
scientific justification for using type B procedures. On the other
hand, some commenters expressed concern that the proposed rules would
allow excessive use of the type A procedures and suggested making the
primary conditions more restrictive.
Several commenters objected to the proposed provision allowing
combined
[[Page 20577]]
use of type A and type B procedures. The commenters argued that
Congress intended the type A and type B procedures to be mutually
exclusive. These commenters also thought that combined use of type A
and type B procedures would pose significant risks of double recovery
of damages and that the proposed rules failed to provide any guidance
on how to prevent such double recovery. One commenter stated that
combined use of type A and type B procedures was inconsistent with the
``average'' values justification for simplified procedures, since type
B procedures would be used to offset type A underestimates without any
corresponding offset of type A overestimates. Another commenter
expressed concern that if allowed to supplement type A assessments,
trustees would spend enormous sums assessing nonuse values for small
releases even though such releases are unlikely to produce any
meaningful nonuse losses. Some commenters stated that if the final rule
allowed use of type B procedures to supplement a type A assessment,
then such use should be limited to resources not included in the type A
procedure.
Response: The type A models are powerful tools for completing
assessments and beginning restoration as quickly and cost-effectively
as possible. The Department has sought to balance the utility of making
these tools available in the widest possible range of cases against the
potential dangers that they may produce unreliable results when
stretched beyond their limits or that they may result in double
recovery when inappropriately combined with type B procedures.
The Department has carefully reexamined both the proposed
conditions regarding use of the models as well as the additional major
simplifying assumptions incorporated into the models and described in
the technical documents. The Department has concluded that the
conditions for use of the models should recognize two different
categories of assumptions built into the models. The first category
encompasses those assumptions that could result in significant
overestimates of damages if they are not reasonable in a particular
case. The second category encompasses those assumptions that are not
likely to result in significant overestimates of damages if they are
not reasonable in a particular case and that may well result in
underestimates.
The Department believes it is inappropriate to grant a rebuttable
presumption to an assessment performed using the NRDAM/CME or NRDAM/GLE
if one of the assumptions in the first category is not reasonable in
the particular case. If an assumption in the second category is not
reasonable in a particular case, it may be appropriate for trustees to
use type B procedures to ensure that the public receives full
compensation for its losses. However, the Department believes trustees
in those cases should have the option of using the type A models when
the costs of type B procedures are not reasonable. The appropriateness
of the models in these cases will depend on site-specific factors. The
Department has concluded that it is more appropriate to allow trustees
to analyze these factors in the context of a particular case than to
establish inflexible, overly rigid standards.
Therefore, the Department has identified all the major model
assumptions and for each one determined into which of the two
categories they fall. Those assumptions in the first category are
identified in Sec. 11.34 of the final rule as conditions that must be
met if trustees intend to use the NRDAM/CME or NRDAM/GLE and obtain a
rebuttable presumption. These assumptions include most of the primary
conditions in the proposed rules.
The Department has identified the assumptions in the second
category and listed them, along with the other assumptions, in Section
1, Volume I of the NRDAM/CME and NRDAM/GLE technical documents. These
assumptions include many of the secondary conditions in the proposed
rule. Section 11.35(a) provides that if the conditions for use of a
type A procedure are met, the trustee must decide whether to use that
procedure or use type B procedures by weighing the difficulty of
collecting site-specific data against the suitability of these
additional assumptions as well as of the averaged data described in
Volumes III through IV of the NRDAM/CME technical document, and in
Volume III of the NRDAM/GLE technical document.
The Department has eliminated the proposed provision that would
have required trustees to use a type A procedure in some cases. That
requirement was originally motivated out of concern over potential
misuse of unnecessarily expensive and time-consuming type B procedures.
59 FR at 40322. Although the models are cost-effective, reliable tools
where applicable, the Department has concluded that trustees should not
be prevented from conducting site-specific work if they can do so at a
reasonable cost and if the additional costs of performing type B
procedures are warranted in light of the degree of additional precision
and accuracy that such procedures will provide.
The issue of the legal permissibility of allowing trustees to use
both type A and type B procedures for the same release is one that the
Department decided and resolved in 1987 and is beyond the scope of this
rulemaking. Today's final rule merely expands the use of supplemental
type B studies beyond resources not addressed by the type A procedure
to include compensable values and injuries of a type not addressed by
the type A procedure.
The Department acknowledges that combined use of type A and type B
procedures can, in some instances, pose potential double counting
problems. However, trustees should not be forced to choose between
forgoing compensation for a public loss not addressed by the type A
model on the one hand and funding a full-scale, time-consuming, labor-
intensive type B assessment of all injuries on the other hand. Instead,
the potential problems with combined use of type A and type B
procedures should be addressed through limitations designed to protect
against double recovery.
The final rule provides that trustees who use a type A procedure
may perform additional type B studies only for injuries or compensable
values of a type not addressed by the type A procedure. The secondary
conditions in the proposed rules have been recast to identify
explicitly the injuries and compensable values that are addressed in
the type A models and, therefore, may not be supplemented with type B
procedures.
Given the vast range of potential scenarios, it is infeasible to
develop a single, uniform formula for preventing double recovery.
Instead, Sec. 11.15(d) of the existing regulations prohibits double
recovery of damages. Also, Sec. 11.36(a)(2) of today's final rule
provides that trustees may only perform supplemental type B procedures
if such procedures will not result in double recovery. Further,
Sec. 11.36(c) requires trustees to provide an explanation in the
Assessment Plan of how they intend to avoid any double recovery in the
case of combined use of type A and type B procedures. PRPs and the
public will have an opportunity to review the trustees' strategy for
preventing double recovery when the Assessment Plan is made available
for public comment.
The Department agrees with the comment that the type A procedures
can be particularly useful when combined with selective studies of
impacts not addressed by the models. The Department would like to
ensure that
[[Page 20578]]
where combined use of type A and type B procedures is warranted,
trustees are freed from conducting duplicative assessment procedures.
Therefore, the Department has modified the final rule to clarify that
when using type B procedures for compensable values that are not
included in a type A procedure, but that result from injuries addressed
by the type A procedure, trustees need not conduct injury determination
and quantification all over again using type B procedures. Instead,
trustees may rely on the injury projections of the type A model and
simply use one of the type B valuation methodologies authorized by
Sec. 11.83 (a) and (c) to compute compensable value.
With regard to the concern about unwarranted type B studies of
nonuse values, aside from the implausibility of the scenario suggested
by the commenter, the Department notes that calculation of nonuse
values using type B procedures is under examination in a separate
rulemaking. See 59 FR 23097 (May 4, 1994). Therefore, this rulemaking
need not address this issue.
Finally, the Department believes it is appropriate to revise the
existing rule to allow supplemental use of type B procedures beyond
resources not addressed in the type A models. The public can experience
significant and distinct losses associated with the same resource. Ohio
v. Interior emphasized that the regulations should allow for the
recovery of all reliably calculated lost values. 432 F.2d at 464. The
Department sees no reason to impose an arbitrary distinction between
losses associated with different resources and losses associated with
the same resource so long as there is no double recovery.
Comment: One commenter suggested that trustees be allowed to use
supplemental type B procedures to determine damages for habitats that
are not accurately represented in the models.
Response: In cases where the models assign an incorrect habitat
designation for a specific area, trustees have the ability to correct
that designation and would not need to conduct supplemental type B
studies. In cases where releases affect habitats beyond the models'
level of spatial detail, trustees may perform supplemental type B
studies so long as such studies do not address injuries or compensable
values in the categories listed in Sec. 11.36(b) of the final rule. The
Department does not believe it is appropriate to expand this authority
to conduct supplemental type B studies and still obtain a rebuttable
presumption. When such small habitats are affected, the models will
nonetheless determine injury and damages for the geographic area in
which those habitats are located. If a trustee were to use one of the
models and then conduct supplemental type B studies of such a habitat,
the trustees would need to adjust the type A damage figure to eliminate
any damages calculated for the area over which the habitat is located.
The Department has concluded that in the context of a simplified
assessment, trustees who wish to obtain a rebuttable presumption should
be limited to conducting type B studies for the purposes of addressing
additional injuries and compensable values that are not included in the
model rather than substituting for damages already calculated by the
model.
Comment: A number of commenters thought that trustees should be
prohibited from using type A procedures unless all interested trustees
agree to a single joint assessment. These commenters stated that such a
provision was necessary to avoid the problems of double recovery and
improper allocation of damages among trustees. These commenters thought
that these problems were more significant for type A assessments than
for type B assessments because the type A models provide less detail
than type B procedures on the type and location of injured resources
and the damages associated with those resources.
Response: The Department acknowledges that the type A models pose a
unique problem when trustees do not act jointly. The type A models
generate a total damage figure for all affected resources. Therefore,
if a trustee acts independently and applies a type A model, the total
damage figure generated by the model might include damages for
resources that are not under that trustee's jurisdiction.
To address this problem, Sec. 11.42 now requires a trustee to
perform a preliminary application of the model before making the draft
Assessment Plan available for public review and comment. The trustee
must include a summary of the model application in the draft Assessment
Plan and make available a copy of the model output. The output of the
model does in fact identify the type and location of injured resources.
Section 11.31(a)(2) of the existing regulations requires trustees to
include in the Assessment Plan a statement of authority for asserting
trusteeship for those resources addressed in the Plan. Therefore, PRPs
and other interested members of the public will have an opportunity to
comment on whether any of the injured resources identified in the model
output are beyond the scope of the trustee's jurisdiction.
Also, Sec. 11.44(e) provides that if a trustee is aware of reliable
evidence that a type A application covers resources beyond his or her
trustee jurisdiction, the trustee must either: (1) Have the other
trustees who do have jurisdiction over those resources join in the type
A assessment; or (2) eliminate any damages for those resources from the
claim for damages.
Furthermore, the Department strongly encourages trustees to work
together to ensure that natural resource damage assessments remain
focused on restoring the injured resources rather than debating over
which trustee has jurisdiction over them. As noted by some of the
commenters, Sec. 11.32(a)(1) of the existing regulations requires a
trustee to notify all other interested trustees before beginning an
assessment and encourages all trustees to cooperate and coordinate.
Also, Sec. 11.15(d) of the existing regulations prohibits double
recovery of damages.
The issue of inter-trustee coordination extends beyond this
rulemaking to the overall administrative process for conducting all
assessments. The potential for overlapping claims exists whenever
trustees conduct separate assessments, regardless of whether type A or
type B procedures are used. The Department has initiated a biennial
review of the administrative process for conducting assessments. The
Department will be further examining the issue of inter-trustee
coordination during that review. 59 FR at 52752.
Comment: A few commenters stated that PRPs should be ensured a
meaningful opportunity to participate in the selection of assessment
procedures. These commenters requested that PRPs be given a chance to
review trustees' assumptions and reasoning. Commenters also expressed
support for cooperative trustee-PRP assessments.
Response: The Department agrees that PRPs should have an
opportunity to participate in selection of assessment procedures.
Section 11.32(a)(2)(iii)(A) of the existing regulations already
requires trustees to invite PRPs to participate in the development of
the type and scope of the assessment as well as the performance of the
assessment procedures. Today's final rule does not change that
requirement. Section 11.32(c) requires trustees to make their
Assessment Plans available for public review and comment. The proposed
rule required trustees to include in their Assessment Plans
documentation of their decision whether to use a type A procedure, type
B procedures, or both. Section 11.31(b) of today's final rule
[[Page 20579]]
now makes more explicit the trustees' duty to provide a detailed
explanation of their rationale for using a type A procedure, type B
procedures, or both. Also, Sec. 11.35(d) now clarifies that trustees
may change their decisions about the types of procedures they use based
on public comments.
Comment: Many commenters addressed specific proposed conditions for
use of the models. Some commenters questioned the condition regarding
whether the data in the models reasonably represented the spatial and
temporal distribution of affected biological resources. One commenter
suggested that this condition was inconsistent with the habitat editor.
Another commenter requested clarification of the term ``reasonably
represented.'' This commenter expressed concern that the condition
seemed to require trustees to collect baseline data, which would defeat
the intent of requiring minimal field observation in type A procedures.
Response: The Department has reexamined this proposed condition
regarding use of the models. The condition addressed two different
model assumptions. First, the condition addressed the assumption that
the release did not affect any small but important environments beyond
the level of spatial detail of the model. Second, the condition
addressed the assumption that species biomass is averaged spatially and
temporally. The Department has concluded that if the first assumption
is not reasonable in a particular case, then the model will most likely
underestimate, rather than overestimate, damages. Therefore, the
Department has eliminated this assumption from the conditions for use
listed in Sec. 11.34 of the final rule. Instead, the Department has
identified the assumption in the NRDAM/CME and NRDAM/GLE technical
documents as one of the factors for trustees to consider when deciding
whether to use type A or type B procedures, once they have established
that the conditions set forth in Sec. 11.34 are met. See Section 1,
Volume I of the NRDAM/CME and NRDAM/GLE technical documents. The
Department has clarified the second assumption, concerning species
biomass, and included it in Sec. 11.34 as a condition that must be met
if trustees intend to use the models and obtain a rebuttable
presumption.
The habitat editor does not conflict with either of these
assumptions. The final rule allows trustees to change the habitat
designation for an entire existing grid cell. However, the rule does
not allow trustees to redraw the boundaries of the grid cells or modify
the species biomass for a particular habitat. Even with correct habitat
designation, edited or through the built-in designation, the models may
not reflect small habitats or populations with densities that differ
from the seasonal average.
The Department acknowledges the confusion generated by the term
``reasonably represented.'' The term was not intended to require
trustees to conduct field surveys to collect baseline data. Instead, it
was designed to address cases where information already existed about
baseline conditions and such pre-existing information differed
significantly from the data in the model. Section 11.34(e) now simply
provides that a trustee may not use the models if he or she is aware of
reliable evidence that, for species expected to represent a significant
portion of the claim, the species biomass is significantly lower than
the species biomass assigned by the models.
Comment: A few commenters noted that the models may significantly
underestimate damages when the released substance causes chronic or
sublethal effects, when sensitive habitats or life stages are affected,
when animals aggregate for feeding or reproduction, or when long-term
effects, such as reproductive impairment or changes in food web
structure, are expected.
Response: The Department acknowledges that the type A models may
not accurately calculate total damages in the situations identified by
the commenters. However, the Department has included provisions in the
final rule to address these situations. Section 11.35(a) provides that
if a type A procedure is applicable, trustees must determine whether to
use type A or type B procedures based on an evaluation of the model
assumptions listed in Section 1, Volume I of the NRDAM/CME and NRDAM/
GLE technical documents. One of the listed assumptions is that there
are no affected environments beyond the spatial detail of the models.
This assumption will alert trustees to the potential for
underestimating damages where sensitive habitats are affected. Another
listed assumption is that species biomass is averaged spatially and
temporally. This assumption will alert trustees to the potential for
underestimating damages when animals aggregate. Finally, the rule
explicitly identifies the injuries addressed by the type A models;
therefore, trustees will have notice that they will need to perform
supplemental type B procedures if they wish to address chronic or
sublethal biological injuries.
Comment: Some commenters thought that trustees should be allowed to
use the models only if the release is a single event. These commenters
expressed concern that in the absence of such a requirement, trustees
could use a type A procedure to assess one release in a multi-release
incident and use type B procedures to assess the other releases. The
commenters thought that such a practice would result in double counting
because some of the injuries predicted for one release would already be
accounted for in the assessment of another release. These commenters
also thought that the rule should be rewritten to clarify that the type
A models can be applied only to releases of a single substance. The
commenters noted that without this change, similar double counting
problems could arise from multiple applications of the models.
Response: The Department has concluded that the model assumption
that the release is a single event need not be made a condition for use
of the models. Instead, Section 1, Volume I of the technical documents
notes that the models assume that each spill is an independent, short-
term event.
Section 11.15(d) of the existing regulations already prohibits
double recovery of damages. In the case of a multi-release incident, if
trustees choose to use a type A model for one release and then conduct
type B studies for the other releases, they will be required to ensure
that the type B procedures do not result in double recovery. The
Department acknowledges that in some cases it may be difficult for
trustees to satisfy this requirement. However, the Department believes
that in those multi-release cases where trustees can tailor their type
B studies to address only the effects of the releases not assessed by
the type A model, they should have the opportunity to do so.
With regard to releases of multiple substances, the rule now
provides that trustees must select and assess only one of the
substances that was released. See Appendices II and III. This
requirement will eliminate double counting problems. In fact, toxicity
of mixtures has been found to be additive or synergistic in aquatic
environments for a wide variety of substances. See Section 4, Volume I
of the NRDAM/CME technical document. Thus, this requirement may
actually result in underestimates of damages. However, the Department
believes that in cases of mixtures when the cost of using type B
procedures is not reasonable, trustees should have the option of using
a type A procedure rather than forgoing all compensation.
Comment: A few commenters addressed the use of the models for
[[Page 20580]]
substances not specifically identified in the database. Some commenters
supported giving trustees flexibility to use the models for such
substances provided that they identified a proxy that was included in
the database and documented the reasons why the use of that proxy was
appropriate. Other commenters expressed concern that allowing use of
proxies would add a significant range of discretion given the number of
different physical and chemical attributes that must be considered when
identifying a proxy. Some commenters, including one of the independent
technical reviewers, suggested that the Department expand the oil
database.
Response: The Department has concluded that allowing the use of
proxies for hazardous substances without significant guidance on
selection of such proxies would raise serious concerns about the
uniformity and reliability of the type A model results. Moreover,
developing guidance on selection of proxies would be impractical given
the extremely wide range of hazardous substances and the diversity of
their relevant attributes. Therefore, for chemical releases, trustees
may only use the models if the released material is one of the specific
chemicals listed in the database.
As discussed in Section I.C. of this preamble, use of the models
for oil discharges is governed by NOAA's
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
OPA rule rather than by
today's final rule. However, the Department notes that it has expanded
the database to include 33 types of oils that cover a broad range of
chemical and physical characteristics.
Comment: Some commenters stated that trustees should be allowed to
use the type A models and obtain a rebuttable presumption for releases
that did not originate in, but later migrated into, a coastal or marine
or Great Lakes environment. These commenters argued that the type A
models could accommodate such releases. On the other hand, one
commenter thought that such use should not be allowed because there are
no data on conditions outside the boundaries of the type A models.
Response: The Department has concluded that the type A models can
produce reliable damage figures for releases that do not originate in,
but do migrate within, the boundaries of the models provided that the
user supplies appropriate data inputs. So long as the user supplies
data inputs that reflect conditions at the point that the substance
enters the model boundaries, the models are just as capable of
computing reliable damages as they would be if the release had actually
started at that point. In such cases, the models will start their
simulations at the point that the released substance enters water
within a geographic region represented in the models. The only
potential problem is that the models will not account for the effects
produced before the release entered the model boundaries, a
consideration that may support use of type B procedures in some cases.
However, the Department believes trustees should have the option of
using the models to assess such releases when the cost of performing
type B procedures to develop a more complete damage figure is not
reasonable.
Therefore, the rule allows trustees to use the models for releases
that occur outside the boundaries of the models so long as the user-
supplied inputs appropriately reflect conditions at the point that the
substance entered such waters rather than the point of the original
release. Appendices II and III specify that when using the models for
releases that originate on land or outside the model databases,
trustees must adjust the data inputs.
Comment: One commenter said that the definition of ``minor'' was
vague, but supported the Department's discussion of it and the proposal
to allow trustees discretion to define ``minor'' on a case-by-case
basis. Other commenters, including one of the independent technical
reviewers, thought that the Department should define ``minor.'' One
commenter suggested that the rule require trustees to justify their
determination of whether a release is minor with scientific
documentation. Another comment recommended the Department define
``minor'' based on spill size, prediction of affected area, or
resulting damage estimates.
Response: In light of Congressional intent to restrict use of type
A procedures to minor releases and after considerable analysis and
deliberation, the Department has decided to impose a specific dollar
cut-off for use of the models to obtain a rebuttable presumption. The
final rule provides that if the model output indicates damages in
excess of $100,000, then trustees who wish to obtain a rebuttable
presumption must either: (1) limit the portion of their claim
calculated with the type A procedure to $100,000; or (2) compute all
damages using type B procedures. The Department believes this provision
establishes an appropriate standard of fairness for allowing trustees
to receive a rebuttable presumption for damages calculated by the
NRDAM/CME or NRDAM/GLE given the current level of experience with these
models.
The language and legislative history of CERCLA indicate that
Congress intended the type A procedures as a tool for obtaining a
rebuttable presumption in cases of minor releases. Thus, the Department
included a provision in the proposed rules that prohibited trustees
from using the models to obtain a rebuttable presumption unless the
release was minor. The proposed rule provided no definition of
``minor,'' and the Department indicated in the preamble to the proposed
rules that it had been unable to develop a uniform standard for all
substances and areas encompassed by the models. See 59 FR at 40330 and
63313. However, after reviewing the comments, the Department has
concluded that given the significance of this term and the fact that
type A procedures were intended as simplified procedures requiring
limited analysis by trustees, it is appropriate to provide clear
guidance.
The Department evaluated a number of different approaches to
defining ``minor.'' First, the Department reviewed the language and
legislative history of CERCLA. The Senate Report that accompanied the
predecessor bill to CERCLA states:
[A] simplified type of regulation is necessary to effectively
deal with damage assessment in most ``minor'' releases of hazardous
materials * * *. The other type of regulations [type B] would be
employed in large or unusually damaging releases and would be used
to guide the site-specific damage assessment. S. Rep. No. 96-848 at
86.
However, nothing in the legislative history indicates what Congress
meant by ``minor.''
Next, the Department considered basing the definition on the
technical limitations of the NRDAM/CME and the NRDAM/GLE for modeling
large or highly toxic spills. However, sensitivity analyses of the
models failed to reveal any clear stages at which the model assumptions
became invalid.
The Department then considered relying upon existing standards
developed in other contexts of environmental law. The U.S. Coast Guard
has developed a volume-based system for classifying oil spills for
purposes of spill response. See 40 CFR 300.5 (minor discharge of oil is
one of less than 1,000 gallons to inland waters or 10,000 gallons to
coastal waters). The U.S. Environmental Protection Agency (EPA) is
responsible for developing a parallel rating system for hazardous
substance spill response. While EPA has developed a qualitative system,
this system does not provide the type of clear, quantitative limits
that the Department believes are needed in this context. See 40 CFR
300.5 (minor release of hazardous substance is one that poses minimal
threat to public
[[Page 20581]]
health or welfare of the U.S. or the environment).
Next, the Department considered basing a definition of minor on the
point at which type B procedures can no longer be performed at a
reasonable cost. However, because trustees have rarely pursued damage
claims for smaller spills, the Department was unable to develop
reliable estimates of the cost of conducting type B procedures in such
cases.
Therefore, the Department was left to make this policy decision
about the upper limit on applicability of type A procedures without the
benefit of clear empirical standards or legal precedents. The
Department has chosen to base this limit on its sense of when it is no
longer ``fair'' to allow trustees to obtain a rebuttable presumption
using the NRDAM/CME or NRDAM/GLE as opposed to performing type B
procedures. The Department believes that, given the current level of
experience with these models, $100,000 represents a reasonable cut-off
for their use. As more experience is gained with these models, the
Department will reconsider this cut-off in future biennial reviews.
Further, because this regulatory cut-off is based on considerations of
fairness rather than the inherent reliability of the models, the
Department wishes to emphasize that although use of the models to
calculate damages above $100,000 is not entitled to a rebuttable
presumption, such use may nonetheless be appropriate in other contexts,
such as settlement negotiations or litigation without the benefit of
the rebuttable presumption.
Finally, the Department recognizes that in some instances the
models may project damages in excess of $100,000, yet it may not be
reasonable to perform type B procedures. The Department believes that
trustees should be allowed the option of claiming damages up to
$100,000 in such cases instead of forgoing all compensation. Therefore,
the Department has eliminated the proposed rule condition that type A
procedures only be used for minor releases and instead imposed a cap on
the level of damages that trustees can claim through use of a type A
procedure and still obtain a rebuttable presumption.
Comment: Several commenters thought that the proposed condition
requiring uniform subsurface currents would render the NRDAM/CME
inapplicable to all spills in Massachusetts, New Hampshire, and Maine.
Response: The Department acknowledges that the condition regarding
subsurface currents may limit the applicability of the NRDAM/CME in
some circumstances but notes that it does not render the model
inapplicable to all locations where subsurface currents are not
uniform. The models use vertically averaged currents and assume that
the speed and direction of horizontal transport is uniform over depth
at a specific latitude and longitude. The models do include randomized
motion in the vertical dimension, but not directed motion. The
vertically averaged current is essentially a current that provides the
correct net transport averaged vertically. If the transport of the
released substance cannot be reasonably represented by a vertically
averaged current, then the NRDAM/CME's projections may not be reliable.
For example, substances with high densities, such as sulfuric acid, may
sink rapidly through the water column so that the principal mass is
transported in the direction of the subsurface current. However, in
many cases, such as when a substance remains at or near the surface or
sinks slowly, subsurface currents will not affect the fate of the
spilled substance. In these cases the model can reliably predict
damages. Therefore, the rule allows trustees to use the NRDAM/CME, even
if subsurface currents are not uniform, so long as they are not
expected to significantly affect the level and extent of injuries.
D. User-Supplied Information
Comment: Several commenters suggested changes to the proposed
models and rules that would require trustees to confirm injury. These
commenters asserted that the proposed models merely assume injury and
that the proposed rules inappropriately failed to require field
verification of this assumption. The commenters noted that CERCLA
limits recovery to damages that ``result from'' a release. These
commenters argued that this limitation requires that trustees conduct
field studies that prove that an injury actually occurred and that it
was caused by the release in question.
A number of commenters thought that Congress intended traditional
tort law standards of causation to apply to natural resource damage
cases and cited case law in support of this position. Some commenters
noted that Ohio v. Interior rejected a challenge to the Department's
strict acceptance criteria for determining injury under the type B
procedures and upheld the Department's interpretation that CERCLA
adopted traditional causation standards. 880 F.2d at 471. The
commenters stated that CERCLA does not create a different standard of
proof of causation when type A procedures, as opposed to type B
procedures, are used.
Several commenters observed that CERCLA calls for type A procedures
that involve ``minimal'' rather than ``no'' field observation. The
commenters thought that the Department was engaging in sheer
speculation when it asserted in the August 8, 1994, notice of proposed
rulemaking that requiring confirmation of injury in type A assessments
would be unduly burdensome. Finally, the commenters stated that none of
the steps that trustees must take before applying a type A model,
including the Preassessment Screen Determination, satisfy the required
standard of causation.
Response: The type A models do not ``assume'' that injury occurs.
Using both the information provided by the trustees and the biological
and environmental information about the spill site contained in the
model databases, the models perform millions of calculations to
determine whether or not the release has caused an injury. The models
project the distribution of the released substance over space and time,
track the changing toxicity of the substance over that space and time,
and simulate the movements of biota throughout the area around the
release. The models only conclude that injury has occurred if biota are
exposed to the released substance at concentrations and durations that
exceed acute toxicity thresholds. If such thresholds have not been
exceeded, the models conclude that there has been no injury. The models
can and have projected that no injury resulted from particular
releases. In such cases, the models determine that damages equal zero.
The issue is not whether the Department is attempting to excuse
trustees from their legal requirement to prove causation; the
Department agrees that trustees must demonstrate that injury resulted
from a release. Rather, the issue is whether trustees should be allowed
to use the type A models to make that demonstration. The Department
believes that it is appropriate to allow trustees to use a type A model
to demonstrate injury without on-site verification of the model
projections.
There is a tension between the statutory provision requiring
trustees to demonstrate that injury ``resulted from'' a release and the
provision requiring the development of simplified assessment procedures
that involve ``minimal field observation.'' As noted in the cases cited
by commenters, the requirement that trustees demonstrate that injury
resulted from the release indicates that
[[Page 20582]]
Congress intended that natural resource damage liability be
compensatory. PRPs are to be held liable not just because they are
responsible for a release but because they are responsible for a
release that caused an adverse effect. On the other hand, by requiring
the development of type A procedures, Congress recognized that
assessment work can be expensive and time-consuming. In the case of
minor releases, it is often not cost-effective or feasible to conduct
more than minimal field observations. The Department has struggled to
resolve the tension between these two statutory requirements by
developing type A procedures that rely on computer models to predict
actual site-specific effects to the maximum extent practicable but do
not require on-site verification of the models' injury predictions.
Although the regulations do not require trustees to verify the
injury projections of the type A models, they do require trustees who
use a type A model to make several determinations that require field
observations. Before trustees can proceed with a type A procedure, they
must perform a Preassessment Screen Determination in which they
establish if assessment work is warranted. Existing Sec. 11.23(e)
requires trustees to make a preliminary determination that the
following conditions have been met:
A release of a hazardous substance has occurred; Natural
resources under their trusteeship have been or are likely to have
been adversely affected;
The quantity and concentration of the released substance is
sufficient to potentially cause injury;
Data sufficient to pursue an assessment can be obtained at a
reasonable cost; and
Response actions will not sufficiently remedy the injury.
If the trustees determine that these conditions are met, they must
then demonstrate that the released substance entered the water, which
is the only pathway considered by the models. Trustees must develop
information on ambient environmental conditions at the site of the
release and on the extent of response actions. Also, trustees must
evaluate whether potentially affected resources are addressed by the
model.
The Department agrees that these determinations in and of
themselves do not establish causation. They are not intended to do so;
causation is demonstrated by the models. However, these determinations
do fulfill the standard of minimal field observations. The Department
notes that Congress chose to use the word ``observations'' rather than
``studies,'' ``surveys,'' or ``analyses.'' Therefore, the Department
interprets ``minimal field observations'' to be information that is
readily or routinely collected following a release. The Department
rejects the argument that the language of CERCLA requires on-site
verification of causation, since observations would often be inadequate
to determine causation. For example, the released substance may sink or
disperse into the water column, precluding visual methods for
documenting pathways and exposure. Furthermore, the potentially exposed
resources may be difficult and costly to sample (e.g., endangered
species, marine mammals, or subtidal organisms). In other instances,
the persistence of the substance, or the remote location of the
release, may prevent trustee scientists from reaching the spill site in
a timely manner to conduct assessment work.
Moreover, today's final rule does not establish a new standard for
proof of causation. The regulations did not require trustees to verify
the injury projections of the original NRDAM/CME. The existing
regulations require trustees to confirm exposure before implementing
type B studies, but not type A procedures. Today's final rule does
include language in Sec. 11.31(c)(1) clarifying that the confirmation
of exposure requirement only applies to type B procedures. The original
type A rule contained the same substantive provision, only worded
differently. See 52 FR at 9064. This final rule simply rewords and
relocates the existing provision.
Even when trustees use type B procedures, there are some
circumstances under which the existing regulations allow them to use
models to determine injury to surface water, groundwater, and air. See
43 CFR 11.64(b)(6), 11.64(c)(8), and 11.64 (d)(2). The existing
regulations also allow trustees who perform type B procedures to use
models to demonstrate that a groundwater or air pathway exists between
the site of the release and injured biological resources. See 43 CFR
11.63(c)(5)(ii)(C) and 11.63(d)(4). Demonstration of a pathway is an
integral part of establishing causation.
The Department acknowledges that the existing regulations do not
explicitly allow trustees who use type B procedures to demonstrate
biological injury based on models alone. However, as Ohio v. Interior
recognized, the language and legislative history of CERCLA are
ambiguous as to the standard of proof of causation. 880 F.2d at 470.
Nothing in the statutory language prohibits the Department from
establishing different standards of proof of causation under type A and
type B procedures, and the Department believes that in light of the
statutory description of type A procedures, different standards are
warranted. In fact, as discussed above, the legislative history of
CERCLA suggests that the Department would have been justified in
developing a look-up table or compensation formula as a type
Aprocedure. Instead, the type A models use both site-specific
information provided by the trustees and biological and environmental
information about the spill site contained in the databases to
approximate more precisely the actual effects of the release.
Finally, the Department notes that the final rule has been revised
to require trustees to perform a preliminary application of the model
and make the results available for public comment before presenting a
damage claim. Therefore, PRPs will have an opportunity to evaluate the
injury projections. They can then decide whether they have information
that indicates that the projections are wrong and that the user inputs
need to be modified or that type B procedures should be used.
Comment: The Department received several comments on the wind
inputs. Some commenters expressed concern about the adequacy of the
proposed rule language allowing trustees to supply one set of wind data
for a 30-day period. These commenters noted that wind data were
critical to correct functioning of the models and requested that
trustees be required to supply actual hourly data. One commenter noted
that such data are readily available from the National Climatic Data
Center. These commenters also thought that actual wind data should be
supplied for the entire duration of the model application because of
gross oversimplifications in the data supplied by the models when the
user-supplied wind data run out. One of the independent technical
reviewers suggested that users be allowed to enter wind data in their
choice of units.
Response: The Department agrees that one set of wind data for an
entire 30-day period may not be adequate in all cases. Trustees are
free to supply hourly wind data; however, the Department also believes
that requiring trustees to do so in all cases would be onerous.
Therefore, the Department has modified the final rule to require
trustees to supply data on prevailing wind conditions for each day of
the 30-day period. Recognizing that the type A procedures were intended
to provide simplified procedures requiring minimal analysis by
trustees, the Department has concluded that it is
[[Page 20583]]
appropriate to establish a uniform time frame for entry of wind data.
Wind speed and direction are most relevant to the simulation of the
surface trajectory. Released substances will generally only float for a
few days or weeks before they sink or go ashore. Therefore, the
Department believes that 30 days is an appropriate time frame for the
vast majority of releases to which the type A models will be applied.
Users are free to supply more than 30 days worth of wind data if they
choose but are not required to do so. If a simulation continues past 30
days and the user has only supplied 30 days worth of data, the models
will supply climatological wind data. With regard to the units of
measurement for wind data, the Department notes that users are allowed
to enter wind data measured either in knots or in meters per second.
The Department believes this provides users with appropriate
flexibility.
Comment: Several commenters addressed the currents inputs to the
proposed NRDAM/CME. Some commenters, including a few of the independent
technical reviewers, found it difficult to enter currents data and
suggested that default values be made available. On the other hand, one
commenter thought that the tool for supplying currents data in the
proposed NRDAM/CME was already too simplistic. One of the independent
technical reviewers noted a ``bug'' in the program.
Response: Currents have a profound impact on the physical fate of
spilled substances and are highly variable. Provision by the model of a
single set of default values for currents would adversely affect the
reliability of the model. Therefore, the Department believes it is
appropriate to require users to supply some level of site-specific data
on currents. However, the Department is also committed to ensuring that
the NRDAM/CME remain accessible to a wide range of potential users and,
thus, recognizes the need to avoid excessively complicated user inputs.
The Department has revised the currents entry tool to make it easier to
use and to correct the ``bug.'' The Department has also provided
additional guidance on developing and entering currents files in Volume
II of the NRDAM/CME technical document.
Comment: Some commenters objected to the proposed provision
allowing trustees to decide whether or not to have the models consider
ice cover. These commenters stated that the rule should require
trustees to have the models consider ice cover if ice is present during
or after the release.
Response: The Department believes that the ice model contained in
the NRDAM/CME and NRDAM/GLE reasonably reflects average ice conditions.
However, the Department has modified the final rule to provide that
when trustees have reliable evidence that ice was not present at the
spill site, they must disable the ice modeling function.
Comment: A few commenters addressed the data inputs for response
actions. One commenter thought that the models should take into account
the effects of spill prevention and containment measures required under
OPA and other laws. Some commenters stated that trustees should only be
required to supply the volume of the released substance that was
removed during the first 24 hours after the release. These commenters
noted that the types of acute effects considered by the models should
have occurred within that first 24-hour period.
Some commenters thought that limiting the data inputs to the first
24 hours would also alleviate the problem with the NRDAM/CME identified
in the December 8, 1994, preamble. In that preamble, the Department
noted that there may be cases where the proposed NRDAM/CME would not
subtract the full volume removed even though users had provided full
and accurate information about removal actions. This problem arose
because the proposed model required users to specify the location and
time frame of the removal. The proposed model then subtracted the mass
removed at the time and location specified by the user. If the user
specified that mass was removed from a location before the time that
the model projected the substance would reach that location, then the
model was unable to subtract any removed mass. See 59 FR at 63307-08.
Another commenter expressed concern about this problem and suggested
modifying the NRDAM/CME so that in such a situation the volume of the
released substance actually removed would be subtracted from the
nearest location where the model predicted that an equivalent volume of
the substance could be found at that time.
Response: The final rule and models do account for the effects of
successful spill prevention and containment measures. The models
calculate damages only for the volume of substance that entered the
water, was not removed, and caused injury. Therefore, any material
prevented from entering the water as a result of voluntary or mandatory
spill prevention or containment measures would not be considered by the
models.
With regard to entry of data on removal that occurred more than 24
hours after the initial release, the final rule requires trustees to
specify the time of the removal. Therefore, even for injuries that do
occur within the first 24 hours, entry of the total volume removed
would not result in an underestimate of damages because the models will
take into consideration that the removal did not occur entirely within
the first 24 hours. The Department assumes that the commenter's concern
is that the models will underestimate damages if they subtract the
entire volume removed because only the removal during the first 24
hours would reduce the likelihood of acute injury. However, not all
direct effects considered by the models will occur within the first 24
hours after the release.
To address the problem identified in the December 1994 preamble,
the Department has modified the final rule language addressing the
required data input for response actions. Appendix II now states that
when developing the data input on response actions, trustees must
specify a geographic area that encompasses the entire surface water and
shoreline area over which the spilled substance was likely to have
spread. This requirement should ensure that the NRDAM/CME will subtract
the full volume of spilled material that was removed during response.
Comment: Numerous commenters addressed whether users should be
allowed to modify the model databases. One commenter suggested that the
models would be too labor-intensive if trustees were expected to edit
numerous databases. However, most commenters supported retaining the
habitat editor in the final version of the models, noting the
prevalence of default values in the habitat database. Some commenters,
including one of the independent technical reviewers, stated that the
Department should continuously update the model databases to ensure
that they reflect current information. Other commenters expressed doubt
that the Department could conduct such updates in a timely manner.
These commenters thought that model accuracy would be increased if
trustees were allowed to edit not only the habitat designations but
also other data such as species biomass, baseline fishing mortality
rates, commercial fish prices, and restoration costs. These commenters
noted that PRPs would be protected from potential misuse of the editing
feature by trustees because the input data would be subject to
challenge. Some commenters recommended various mechanisms for allowing
users
[[Page 20584]]
to substitute more precise or up-to-date site-specific information. For
example, one commenter suggested creating an administrative process for
obtaining variances from the model parameters or data.
Response: The Department acknowledges that allowing users to revise
the models' databases would enable fine-tuning to better reflect site-
specific conditions. On the other hand, Congress specifically mandated
the development of type A procedures to simplify assessments and
minimize fieldwork. The more trustees are expected to edit the model
databases, the less the type A procedures fulfill this mandate and the
closer such procedures approach the data-gathering requirements of type
B procedures.
Therefore, the Department has decided to allow trustees to modify,
under some circumstances, the models' default values for water
temperature, total suspended sediment concentrations, mean settling
velocity of suspended solids, air temperature, and habitat type.
However, trustees may not make any additional modifications to the
databases if they intend to obtain a rebuttable presumption.
The proposed rules included provisions allowing trustees to supply
site-specific values for water temperature, total suspended sediment
concentrations, mean settling velocity of suspended solids, and air
temperature. The Department continues to believe that these parameters
are highly variable and can profoundly affect the physical fate of
released substances. Therefore, trustees should be allowed to change
the default values for these parameters if they have more accurate
data.
The Department has also concluded that retention of the habitat
editor is appropriate given the importance of habitat designations to
the total damage figure and the prevalence of default habitat
designations in the models. Also, despite specific solicitations in
both notices of proposed rulemaking, relatively few commenters supplied
revised habitat information to the Department and some State commenters
specifically stated that they had been unable to review the habitat
designations.
The Department does not believe that the habitat editor requires
excessive effort to operate. First, trustees are not required to edit
habitat designations. Second, while the task could be substantial if a
single user attempted to edit the large regions covered by the models,
it is not so labor intensive for the area actually affected by any
single spill. The Department also notes that trustees often perform
habitat mapping as part of pre-spill planning, which should further
expedite habitat editing. Once edited, the revised habitat designations
may be saved within the models and used again for future model
applications. However, trustees who save such redesignations would
still need to justify those redesignations in any future Assessment
Plans.
With regard to other model databases, the Department believes that
allowing additional editing would undermine Congress' intent for
developing type A procedures. Allowing other edits would require users
to make additional conforming changes that would complicate use of the
models. For example, changing the fisheries biomass or parameters would
require recalculation of egg and larval abundance using the model
equations. Changing wildlife abundances would require recalculation of
lost wildlife viewing values.
The final rule no longer requires use of the type A models.
Therefore, when trustees have, or are provided with, evidence that the
model databases are inaccurate for a specific incident, they are free
to use type B procedures, provided they can do so at a reasonable cost.
When trustees or PRPs already have site-specific information indicating
that model data are inaccurate, the cost and effort associated with
conducting type B procedures, and in turn the need for a type A
procedure, should be reduced.
The Department does not have the resources available to support an
administrative process for reviewing petitions for variances from the
computer model parameters or databases. However, the Department is
statutorily required to review and update the models every two years
and, thus, will be incorporating more up-to-date information as it
becomes available. Also, the Department notes that the models already
update the compensable value and restoration cost databases to account
for inflationary effects through application of the implicit price
deflator. Finally, the Department notes that while the results of model
runs made with customized changes beyond those identified in the rule
would not receive the rebuttable presumption for damage claims made
under CERCLA, they may nonetheless be reliable and useful in other
contexts, such as settlement negotiations or litigation without the
benefit of the rebuttable presumption.
Comment: A few commenters addressed the implicit price deflator
data input. In response to the Department's solicitation of comment on
whether the proposed rules should be modified to require trustees to
supply the implicit price deflator for the Gross Domestic Product (GDP)
instead of that for the Gross National Product (GNP), one commenter
indicated that use of the implicit price deflator for the GNP should be
retained. Another commenter stated that the Department should change
the base year from 1987 to 1992.
Response: The Department has decided to retain the GNP implicit
price deflator as the index with which to adjust past dollar amounts to
current dollar equivalents. Because GNP refers to income that is
available to U.S. residents, it is appropriate for analyses that are
related to the use of that income, such as expenditures for
environmental restoration. GDP, on the other hand, refers to income
that is derived from production within the U.S., regardless of whether
that income is available to U.S. residents or accrues to non-U.S.
residents. For more information regarding GNP and GDP, readers are
referred to the August 1991 issue of the Survey of Current Business
available from the Bureau of Economic Analysis, U.S. Department of
Commerce. Also, the Department has updated the index numbers in the
models to accommodate the change in base year from 1987 to 1992.
Comment: One of the independent technical reviewers questioned the
user inputs to the proposed NRDAM/CME concerning boat closures. The
technical reviewer thought that it might be difficult for trustees to
estimate the number of boats affected by the closure.
Response: As discussed in Section VII.P of this preamble, the
Department has eliminated the calculation of damages for lost boating
from the NRDAM/CME.
Comment: A few commenters responded to the Department's
solicitation of comment on whether users should be allowed to supply a
site-specific discount rate and, if so, how they should determine the
correct rate. These commenters stated that the models should use a
fixed discount rate but that the fixed rate should be three percent
rather than the seven percent rate included in the proposed models.
Response: The Department believes that the appropriate discount
rate is the consumer's rate of time preference for natural resource
services. This is the rate at which individuals are willing to trade
natural resource services today for similar natural resource services
in the future. The Department further believes that the real
(inflation-adjusted) rate of return on U.S. Treasury bills is a
reasonable proxy for this rate of time preference. An analysis of real
rates of return on U.S. Treasury bills reveals an
[[Page 20585]]
indicated annual discount rate of three percent. Therefore, the
Department agrees with the commenters that future lost use values
should be discounted at a three percent rate. This discount rate has
been incorporated in the models.
The Department believes that use of a fixed discount rate is
appropriate in the context of a simplified procedure. Further, the
Department believes it is unlikely that the rate will change
significantly over the next two years. During the biennial review, the
Department will reexamine this issue.
E. Physical Fates
Comment: Several commenters, including some of the independent
technical reviewers, thought the physical fates submodel was well
developed and well tested. Another commenter stated that the proposed
models produced spill trajectories that resembled actual spill events.
Conversely, one commenter experienced difficulty with the models'
trajectory component noting that, during some trial runs, the spill did
not move.
Response: The Department acknowledges and appreciates the
supportive comments concerning the physical fates submodel. Physical
fates modeling is a technical discipline that has received extensive
study. In reply to the trajectory difficulty, the Department notes that
the model's spill trajectory is dependent upon the user's entry of wind
and current data. Spilled material does not move during simulations if
the user does not supply wind and current data.
Comment: Several commenters, including some of the independent
technical reviewers, were disappointed by coarse resolution of most
habitat grids in the NRDAM/CME. These commenters complained that the
limited resolution results in the loss of consideration of critical
shoreline habitats.
Response: The Department has improved the resolution in the NRDAM/
CME by a factor of four through use of a new compiler and additional
memory.
Comment: Several commenters claimed the proposed models used
inadequate and nonrepresentative data on the physical and chemical
properties of hazardous substances and oil and provided references to
additional data sources. The commenters stated that the chemical and
physical data on gasoline and diesel oil, particularly the sulfur
content in diesel oil and vapor pressures in gasoline, do not
accurately represent the products in use today. One of the independent
technical reviewers stated that the relative toxicities used in the
models for No. 6, No. 2, and crude oils do not agree with experiment
results reported in the literature. Several commenters also concluded
the Department inappropriately applied the same degradation rates to
the nine oils included in the models (except for No. 2 diesel oil).
They could not substantiate the model degradation rates, and concluded
they were invalid. One of the independent technical reviewers suggested
that the Department update the parameters for oils. Some commenters
also thought that the models relied on overly simplistic and outdated
modeling techniques.
Response: The Department found the physical and chemical parameters
included in the models for hazardous substances to be in agreement with
commenters' independent literature search, except with regard to the
partition coefficient for epichlorohydrin. After reviewing the
literature, the Department has decided to substitute the proposed
parameter for this substance.
The Department has also increased the number of oils and petroleum
products included in the models to a total of 33 and has revised the
physical and chemical parameters for oils based on the most recent
literature. The degradation rates for oils in the models apply to
acutely toxic low molecular weight components. Thus, they are
consistent for all oils. The Department reviewed the accuracy of these
data and documented all sources in the technical documents when
revising the oil database. For further information, see Section 2,
Volume III of the NRDAM/CME and NRDAM/GLE technical documents.
The Department does not agree that the modeling techniques used are
either outdated or overly simplistic. The Department has never intended
the physical fates submodel, or any of the other submodels, to provide
a comprehensive treatment of all known physical, chemical, and
biological processes occurring in aquatic environments, nor is such
treatment necessary for the limited purposes of the type A procedures.
Instead, the modeling techniques employed are intended to reasonably
approximate the most relevant processes pertaining to the fates and
effects of spills that occur in aquatic environments based on readily
available user input data.
Comment: One commenter thought that the models overstated wildlife
injuries by inappropriately treating chemicals less dense than water as
slicks. The commenter also stated that the proposed models' predictions
of oil and chemical slicks failed to account for many of the physical
processes that affect the size of the surface slicks.
Response: The models do treat all chemicals that are lighter than
water as ``slicks.'' However, chemicals that are very soluble, such as
ethanol and ammonia, will very quickly mix into the water column. Thus,
chemicals that are highly soluble do not remain on the surface long
enough to have any direct effect on wildlife at the water surface.
The Department disagrees that the models do not adequately account
for the physical processes affecting surface slicks. The major
processes affecting the size of surface slicks are spreading,
evaporation, and entrainment, all of which are simulated in the models.
For further discussion, see Sections 3.3 through 3.5, Volume I of the
NRDAM/CME and NRDAM/GLE technical documents.
Comment: One commenter referred the Department to the Ohio spill
database as an additional source of information.
Response: The Department took this database into consideration when
determining the types of spills to use for the sensitivity analysis of
the NRDAM/GLE.
Comment: One commenter questioned whether the use of varying grid
sizes makes the NRDAM/GLE less accurate for spills in areas of large
grid size.
Response: The Department designed the grid sizes to represent the
Great Lakes habitats at a resolution required by the local spatial
variability. Areas with more spatial variability have smaller grids and
higher resolution. The areas with large grid sizes are the open lakes
where fine detail is not necessary. Thus, the NRDAM/GLE is not less
accurate in the areas where grids are largest.
Comment: One commenter questioned why the Department did not
incorporate the U.S. Army Lake Survey grid in the NRDAM/GLE.
Response: Development of the NRDAM/GLE grid required the
representation of spatially varying habitats and depths as well as the
contours of the connecting channels within a regular rectangular grid
system. The U.S. Army Lake Survey grid does not consistently meet this
requirement. Moreover, the Department has no reason to believe that use
of the U.S. Army Lake Survey grid would significantly improve the
reliability of the NRDAM/GLE.
Comment: A few commenters, including one of the independent
technical reviewers, thought that the Department should use three-
dimensional hydrodynamics models. Several commenters thought the
[[Page 20586]]
proposed type A models unrealistically assumed that currents were
uniform with depth; unjustifiably failed to incorporate three-
dimensional currents modeling; and inappropriately failed to account
for the effects of wind-driven turbulence mixing processes that
increase mixing as high winds make the water surface rough. One
commenter stated that a three-dimensional hydrodynamics model was
needed to account for the effects of seiches (i.e., occasional and
sudden oscillations of the water of lakes, bays, or estuaries caused by
wind or changes in barometric pressure).
Response: The NRDAM/CME and NRDAM/GLE use a three-dimensional
transport model. The transport model assumes that currents are uniform
vertically at each horizontally defined location. If the Department did
include a three-dimensional current dynamics model in the NRDAM/CME and
NRDAM/GLE, then users would need the assistance of expert hydrodynamic
modelers to operate the type A models. For example, three-dimensional
current dynamics models are dependent on physical forces at the
boundaries of the modeled area, which the user would be required to
enter. The Department believes that imposing such complex modeling
requirements would conflict with the statutory directive to develop
simplified assessment procedures.
The models utilize vertically averaged currents with the assumption
that horizontal transport is uniform in speed and direction over depth
at a given location in horizontal space (i.e., at a given latitude and
longitude). One of the conditions for use of the models is that
subsurface currents either are not expected to significantly affect the
level and extent of injuries or are reasonably uniform with depth in
the area of the spill. The models also include randomized motion in the
vertical dimension, but not directed motion in the vertical. Thus, the
currents carrying spilled material must be representable in a manner
consistent with this assumption of the models.
The vertically averaged current is essentially a current that
provides the correct net transport, averaged vertically. If the
transport of spilled material cannot be reasonably represented by a
vertically averaged current, the condition for use would not be met and
the model would not be applicable. However in many cases, three-
dimensional representation of current dynamics would not significantly
change the damages calculated by the models. For example, for
substances of low density, such as toluene, that remain at or near the
surface, the present current dynamics model adequately addresses
physical fates.
The Department recognizes that seiches occur in the Great Lakes.
The Department has not, however, included such processes in the NRDAM/
GLE because these processes are not a significant transport process for
determining the physical fate of spilled substance in the Great Lakes.
Further, any change in the location of a shoreline brought about by a
seiche is likely to be small and should not have a significant effect
on the injuries calculated by the model.
Comment: One commenter thought that the models should not include
liquid asphalt. The commenter noted that liquid asphalt hardens and
sinks to the bottom quickly, and can be completely removed by dredging.
Response: The Department agrees that the models are not designed to
estimate damages for substances such as liquid asphalt. The models
assume that oils and petroleum products float initially, although they
may subsequently entrain, adsorb to particles, and sink. Liquid asphalt
does not act in this manner and, thus, has not been included in the
databases.
Comment: One commenter criticized the NRDAM/CME's treatment of ice,
stating that the model inappropriately assumes that ice is always a
solid mass.
Response: The model does not assume that ice is always a solid
mass. For a discussion of how the models treat ice, see Section 3.11,
Volume I of the NRDAM/CME and NRDAM/GLE technical documents.
Comment: Some commenters thought a smooth function relating
requisite thickness to spillet diameter would be more realistic than
the step function proposed in the models.
Response: Not enough quantitative information is available to
develop a smooth function. Available data are, in fact, in the form of
a step function. Further, given the available data and the steepness of
the relationship between mortality and dose in the pertinent range, the
form of the function would not significantly affect the reliability of
the model calculations.
Comment: One of the independent technical reviewers noted that the
proposed NRDAM/CME treated wetlands as water cells and questioned why
they were not oiled as other shorelines.
Response: Wetlands are either fringing or extensive in the model.
``Fringing'' wetlands are those which form narrow wetlands along
shorelines. ``Extensive'' wetlands, on the other hand, are those
sufficiently large to encompass a majority of the grid cell. For
fringing wetlands, oiling occurs in the same manner as for other
shorelines. For extensive wetlands, slicks keep moving across the area,
as they do in water, but they can oil wetland biota in the same way as
they do in fringing wetlands. Oil may accumulate in sediments in all
cells, by partitioning onto suspended sediments and sinking.
F. Species Distribution and Abundance
Comment: Several commenters thought the default habitat
designations in the NRDAM/CME generally provided an inadequate
representation of coastal and marine habitats. Others recommended
specific changes such as including habitat data available in existing
or upcoming studies. One commenter provided specific habitat data for
New York and New Jersey. Another commenter requested that the
Department use information that would be available from the upcoming
Texas Natural Resource Inventory.
Response: As stated in the notices of proposed rulemaking, the
Department recognized the shortcomings of the default habitat
designations and specifically solicited comment on those designations.
See 59 FR at 40330 and 63314. The notices also provided technical
instructions on transmitting information to the Department about
suggested changes to the default habitat designations. The Department
has reviewed and revised the habitat designations in the NRDAM/CME
based on technical data provided to the Department for the coastal and
marine waters of New York and New Jersey. The Department did not
receive other specific recommendations for changing the default habitat
designations within the format requested.
The Department recognizes that additional habitat data are
continually becoming available. However, the Department needed to
finalize the data in the models and chose not to delay issuance of the
models to incorporate recent or upcoming studies, such as the Texas
inventory. During future biennial reviews, the Department will update
the habitat designations to reflect newer information. Meanwhile,
today's final rule allows trustees to change the default habitat
designations. As further studies provide better data, trustees may
substitute such data for the default values included in the models
using the habitat editor function.
Comment: One commenter stated that shoreline types in the NRDAM/GLE
should include a cohesive (clay) component. The commenter also thought
that rocky shoreline should be
[[Page 20587]]
changed to either rocky bluff or cobble beach.
Response: The Department does not believe that changes to the
shoreline types are necessary. The suggested changes would have little
impact on the reliability of the damage figure since biological
injuries are not calculated based on shoreline designations. The models
use shoreline type to approximate the oil retention on shorelines.
Further, the distinct holding capacities for these shoreline types are
unavailable but could be expected to fall within the holding capacities
of the shoreline types already represented within the NRDAM/GLE.
Comment: One commenter provided maps of habitat types for Michigan
and suggested that wetlands in the connecting waterways be hand-edited.
Response: Although the Department appreciates the effort provided
by the commenter, the grid scale of the information was of a much
smaller resolution than that contained in the NRDAM/GLE and could not
be directly applied to revisions of the habitat grids. The Department
believes the NRDAM/GLE habitat designations are consistent with the
maps provided, were such information consolidated at the larger NRDAM/
GLE grid scale. As a result, the default habitat designations were not
revised in the NRDAM/GLE, and the Department has not hand-edited the
habitat maps of the connecting waterways.
Comment: Some commenters, including one of the independent
technical reviewers, thought that the models should map the location of
critical habitats, such as bird colonies or rare communities and
plants.
Response: The Department does not believe it is appropriate, in the
context of developing simplified type A procedures, to attempt to map
all critical habitats and rare communities throughout the entire
geographic region covered by the models. The models were developed
based on an assumed average abundance of biota by habitat within a
biological province. The Department believes that if a release is
expected to affect a critical habitat or rare community that is not
adequately represented by the models, then use of type B procedures
should be considered.
Comment: A number of commenters, including some of the independent
technical reviewers, identified and suggested the Department fill data
gaps in fish abundance. Several commenters believed the fish abundance
data in the models were based on commercial catch data that were not
generated with sound scientific methods and are known to have low
accuracy. The commenters stated that the abundance data were
inconsistent with catch data provided by Federal and State fisheries
agencies and, thus, did not account for variability in fish
populations. The commenters questioned the level of care and effort
that had gone into estimating total lake fish stock data in the NRDAM/
GLE.
Response: The Department notes that fishery statistics are
collected to fulfill a variety of different research and management
needs. For the purposes of these models, fish biomass abundance was
required. However, such data were not uniformly available for all
species and all geographic regions covered by the models. As a result,
the Department drew upon available data from State and Federal fishery
management and research organizations and extrapolated where needed to
fill gaps. The criteria used for the selection and use of available
data are outlined in Section 6.3, Volume I of the NRDAM/CME technical
document. For all stocks where the National Marine Fisheries Service
(NMFS) or State agencies have performed a stock assessment, these stock
sizes were used. The Department used biomass surveys if stock
assessments were not available. The Department used catch data only if
these other data sources were unavailable. Thus, the data are
consistent with that collected by Federal and State agencies and
represent the best available data for each species included. Since the
most valuable species in terms of total catch are also the most
studied, data are likely to be more accurate for valuable species.
Damages resulting from less significant species in the catch are
typically insignificant.
Where the Department had to use catch data to estimate biomass, it
used both commercial and recreational catch data compiled by NMFS, the
Federal agency charged with assessing and regulating fisheries stock.
These catch data are the best available source of information. The
Department used commercial catch data as the sole source of information
only where there was not a significant recreational fishery.
The Department did attempt to account for variability in fish
populations. The areal extent of a species and its seasonal movements
are based on life-history information for that species. Some species do
not in fact move seasonally. Those that do are indicated in the
database. In some cases, catch from large areas is represented in
smaller areas if the life history warrants. In other cases, the data
are not supportive of regional specificity. Also, some stocks do vary
annually to a significant degree. For stocks where data were available,
averages for the most recent three years were used. The models are
designed to represent an average year.
Considerable care and effort went into estimating total lake fish
stock data in the NRDAM/GLE, as documented in Section 3, Volume III of
the NRDAM/GLE technical document. The Department considered both the
data available and the species behavior in terms of habitats utilized
by season.
Comment: Some commenters, including a few of the independent
technical reviewers, questioned the wildlife abundance data sources
used for determining hunting and trapping losses. One commenter thought
that some abundance data from one area were used inappropriately to
represent abundances in other areas. For example, the commenter noted
that the study by Onuf (1987) was used inappropriately to extrapolate
bird abundances over the entire west coast; and that the study by
Breuggeman (1989) was used inappropriately to extrapolate marine mammal
abundances to both the California coast and to Galveston Bay. Another
commenter questioned the references to Bellrose (1980), specifically as
applied to trumpeter swans in Prince William Sound.
Response: The Department has obtained additional sources of bird
abundance data for the west coast and has incorporated those data into
the wildlife abundance database of the NRDAM/CME. Also, the Department
has revised the abundance data for Galveston Bay to include more recent
data on dolphins. The Department has included additional osprey data
and updated the eagle and harbor seal data. Further, the Department has
deleted data for mysticetes (baleen whales) for provinces 4, 5, and 7.
The Department applied data in Bellrose (1980) only where no other data
were available. The Department has now replaced most references to
Bellrose (1980) with more recent data. In particular, the Department
has updated data for Prince William Sound based on a 1990 to 1995
waterbird survey. For further information, see Section 5, Volume IV of
the NRDAM/CME technical document.
Comment: One of the independent technical reviewers thought that
the definition of subtidal wetland was unclear and recommended that
intertidal seagrass be added as a habitat type.
Response: Subtidal wetlands are the subtidal shallow waters in and
around extensive wetlands. The Department has amended the NRDAM/CME
technical document to include this more precise
[[Page 20588]]
definition of subtidal wetlands. See Table 4.4, Volume I, of the NRDAM/
CME technical document. The Department has also included intertidal
seagrass as an additional habitat type.
Comment: A number of commenters, including one of the independent
technical reviewers, thought that use of province-wide abundance
figures was inappropriate given the sizes of the provinces. An
independent technical reviewer suggested that provinces be subdivided.
Another commenter stated that grid-specific wildlife abundances should
be used where such data are available.
For west coast wildlife densities, one commenter noted that the
NRDAM/CME's provinces are not consistent with spatial strata within
which seasonal densities of a species are relatively uniform. The
commenter noted that this can result in wildlife densities that are
orders of magnitude too high in some cases or too low in others.
Another commenter pointed out that the estimates of wildlife
seasonal densities for the west coast were uniformly high and the
numbers generated by extrapolation of density may exceed entire world
population for many species. The commenter provided recent survey
density data for birds and mammals. One of the independent technical
reviewers suggested that the Department update data on west coast bird
abundances.
Response: The wildlife data for the west coast and Gulf of Alaska
were completely revised with more recent and actual survey data
provided by one commenter. Wildlife data for other provinces were also
updated with more recent information. These corrections have eliminated
the extrapolation errors noted. The Department believes the revisions
made to the database have sufficiently addressed the possible need for
subdividing province-wide abundances. For further information, see
Section 5, Volume IV of the NRDAM/CME technical document.
Comment: One commenter thought the way east coast province-wide
wildlife abundances were distributed to the available individual
habitats within NRDAM/CME grids resulted in an underrepresentation of
wildlife abundances within the habitat grids. The commenter noted that
individual habitat grids cannot hold enough habitat area to add up to
the assumed provincial totals. The commenter suggested adding a
multiplication factor to correct for the underrepresentation of habitat
area, and resulting proportionate underrepresentation of wildlife
abundances.
Response: The habitat grid will, by the fact that it is
rectangular, never precisely represent actual shore length, which is
curved. However, the Department notes that the NRDAM/CME's grid
resolution has been increased by a factor of four and the habitat data
for the area in question (provinces 11 through 13) have been revised
based on information provided to the Department. These revisions have
significantly improved the precision of the shore length estimate. The
Department considered the commenter's suggestion of using a
multiplication factor to correct shore width. However, such a
multiplier would affect the manner in which the physical fates submodel
addresses the oiling of shorelines and induce additional error into the
calculations performed by the model. Thus, the multiplication factor
method was not employed.
Comment: A few commenters, including some of the independent
technical reviewers, suggested that monthly rather than seasonal
averages be used where such data are available. Commenters noted that
use of monthly averages was particularly important for migratory
species.
Response: Adequate data do not exist at this time for most species
to incorporate monthly averages. As more data become available, the
Department will consider incorporating monthly averages in the models
during future biennial reviews.
Comment: One commenter questioned the reliability of the abundance
data in the proposed NRDAM/CME and offered different data from State
wildlife agencies and available literature. The commenter recommended
the following changes to the databases: modification of data for pigeon
guillemots and kingfishers in Puget Sound and the Straits of Juan de
Fuca (province 51) based on 1994 census data by Washington State;
deletion of data on puffins along the New Hampshire coast; modification
of data on bald eagles and osprey in Maryland based on Maryland's 1994
census; modification of data on pelicans and bald eagles in Florida
based on the Florida Natural Resource Department's estimates; and
addition of data on Loggerhead and Kemp's Ridley turtles for the Gulf
of Mexico and Galveston Bay.
Response: The Department acknowledges that some errors occurred
during the compilation of the wildlife abundance database, and
additional information and data sources have been identified as a
result of the public's review of these models. In fact, the Department
specifically sought the assistance of the public on the wildlife
abundance data. See 59 FR at 40330 and 63314. The Department has made a
number of changes to the databases as a result of the public comments
and now believes that the abundance data are more reliable.
In response to the specific data comparisons made by the commenter,
the Department has updated the data for province 51 and revised seabird
abundances for the northeast. Puffins are no longer included in
province 2, but are present in province 3, offshore New Hampshire and
Maine. The State of Maryland's 1994 census data are more recent and
have been used. The Florida Natural Resource Department's 1994
estimates for pelican and bald eagles are more recent and have been
used. The Department has not included the data for Loggerhead and
Kemp's Ridley turtles in the offshore Gulf of Mexico since these
species are not found in waters greater than 200 meters deep (NOAA
1985). Also, no data documenting abundances of these turtles in
Galveston Bay are available. For further information, see Section 5,
Volume IV of the NRDAM/CME technical document.
Comment: A commenter thought the wildlife abundance data were
generally biased.
Response: The Department believes that the data used in the models
represent the best available information collected by independent
scientists and government agencies.
Comment: One commenter noted that the assumption of even
distribution and random movement of biota may not be true. For example,
the commenter noted that fish eggs and larvae are not randomly
distributed.
Response: Although some biological populations may not be evenly
distributed and may not move randomly across large areas encompassing
multiple habitat types, the Department believes that, for purposes of
these models, it is reasonable to assume that populations are randomly
distributed within a single habitat type.
Comment: Several commenters noted that the proposed wildlife
mortality model assumed that a wildlife species redistributes itself
uniformly over its habitat each and every day. The commenters thought
this assumption was not justifiable and would tend to overstate
wildlife mortality.
Response: The Department believes that, for purposes of these
models, it is reasonable to assume that a wildlife species
redistributes itself uniformly over its habitat each day. Habitat area
within the models is of a size on the order of an individual's actual
home range. Each individual does tend to
[[Page 20589]]
cover its home range each day, either for feeding or territorial
purposes. Thus, populations do redistribute themselves daily.
Comment: A commenter noted that the models' assumption that the
density of a species in its designated habitat is constant throughout a
given province could result in overestimates of actual mortalities for
those provinces with multiple grids.
Response: The Department does not believe that this assumption
leads to overestimates for provinces with multiple grids. The
biological database assigns the densities of species on all appropriate
designated habitats regardless of the number of grids contained in the
province. However, losses occurring in one grid are not distributed
across grid boundaries and, thus would not overestimate losses.
Comment: A commenter thought the NRDAM/GLE technical document
should specify the time frame duration for all assumptions about
species density.
Response: The model assumes that species densities are uniform by
season. The abundance tables clearly specify that density figures are
provided on a seasonal basis. See Tables III.3.17 through III.3.27 and
III.3.40 through III.3.50, Volume III of the NRDAM/GLE technical
document.
Comment: A commenter noted that several of the groups of marine
birds and mammals used in the NRDAM/CME could be eliminated, based on
documentation of relative lack of vulnerability to oil spills.
Response: The Department acknowledges that some groups of marine
birds and mammals are not as sensitive as others to the effects of oil
spills. However, the model also evaluates indirect effects (e.g., via
the food web) for both oil and chemical spills, which could be
significant in certain scenarios.
Comment: One commenter stated that the species contained in the
NRDAM/CME should be limited to those for which reliable abundance data
exist, or those that are threatened or endangered.
Response: The NRDAM/CME is limited to those species for which
reliable abundance estimates were available. Section 6, Volume I of the
NRDAM/CME technical document explains the criteria the Department used
to establish the estimates. The Department included threatened or
endangered species where data were available. However, in light of the
limited range of injuries and compensable values considered by the
models, if injuries to these species are significant, trustees should
consider using type B procedures instead of a type A procedure.
Comment: One commenter addressed species abundance in New York
Harbor. The commenter was unable to match the species abundance data
for New York Harbor with that of the Erwin and Korschger (1979)
reference cited. The commenter also stated that inaccuracies in
abundance data resulted from a failure to adequately identify habitat
types.
Response: The Department has rechecked the data and made revisions,
as appropriate, using the Erwin and Korschger (1979) source and other
more recent sources. The results of the retabulated data are contained
in Section 5, Volume IV of the NRDAM/CME technical document.
The wildlife abundance data contained in the databases are
province-wide abundances and, thus, are independent of the habitat
grids and the habitat types assigned to the grid cells. Table 6.4,
Volume I of the NRDAM/CME technical document contains the areas of
habitat used for all calculations of wildlife abundances. Further, the
habitat grids for New York Harbor have been revised based on comments
submitted by the States of New York and New Jersey.
Comment: Another commenter stated that Great Lakes wildlife
abundances should be based on a more thorough review of the literature
and thought that Burt (1976) was an inappropriate source of data. The
commenter recommended that the models incorporate site-specific data
wherever they are available instead of applying average values for
several provinces.
Response: The Department has incorporated site-specific information
into each of the lake provinces. The Department used Burt (1976) only
if more province-specific data were not available. Public commenters
supplied no additional data on wildlife abundances in the Great Lakes.
Further, the Department conducted a thorough search for published and
unpublished data and located no additional sources of data. When
abundances were highly variable among lake province-specific sources of
equal validity, the Department averaged available data to reduce the
error associated with the estimates. Professional judgment, based on
life history information for the species in question, was used to
determine how available data would be applied.
Comment: Some commenters disagreed with the statement in the
proposed NRDAM/CME technical document that oysters are one of the most
important species in southern Maine and New Hampshire.
Response: The commenter appears to have misinterpreted the data
contained in the proposed technical document. The Department
acknowledges that NMFS does not list commercial oyster fisheries in
northern New England; however, there is a small recreational fishery
for oysters. Thus, they are not commercially important but do have
recreational significance.
Comment: One commenter asserted that shrimp is by far the most
significant catch in South Carolina. The commenter also thought that
roughtail rays, orange filefish, and scad were overly abundant in the
database relative to shrimp.
Response: The Department could not find any Federal or State stock
assessments or biomass surveys for shrimp, roughtail rays, orange
filefish, or scad in South Carolina. Therefore, the Department based
the abundance data for these species on NMFS commercial catch
statistics. The NMFS catch data do not support the statement that
shrimp are the most significant catch in South Carolina. Shrimp are a
significant part of the inshore catch for many of the reporting areas,
but are not common in offshore areas. The database includes all species
for which NMFS catch data were available. Roughtail rays do form a
large percentage of the catch by weight; however, they are not as
significant economically as shrimp and, thus, are not as highly valued
in the model. Orange filefish and scad are not major portions of the
catch and the model accurately reflects that.
Comment: One commenter questioned why the NRDAM/CME did not include
lobster in New York Harbor.
Response: The Department could not find any Federal or State stock
assessments or biomass surveys of lobster in New York Harbor;
therefore, the Department relied on NMFS commercial catch statistics.
The NMFS commercial catch statistics do not show any catch for lobster
in New York Harbor.
Comment: One commenter sought clarification of several aspects of
the discussion of young-of-the-year modeling in the NRDAM/CME technical
document. The commenter questioned the meaning of the term ``stable
distribution;'' the connection between young-of-the-year and the adult
stocks; and the meaning of the term ``monthly mean,'' since no monthly
mean abundances are present in the young-of-the-year database.
Response: The term ``stable'' means constant in time. The
Department has clarified the NRDAM/CME technical document on this
point. See Section
[[Page 20590]]
4.3.2, Volume I of the NRDAM/CME technical document. The Department has
also expanded the NRDAM/CME technical document to explain the
connection between adult stock and young-of-the-year. See Section 6.5,
Volume I of the NRDAM/CME technical document. The Department has
modified the derivation of young-of-the-year abundance estimates so
that such abundances are estimated on a daily basis for the first year
of life and averaged for each month. See Section 6.5, Volume I, and
Section 3, Volume IV of the NRDAM/CME technical document.
Comment: One commenter questioned how the NRDAM/CME could determine
the young-of-the-year surviving the first year of life under
equilibrium conditions without knowing the first year natural mortality
rate.
Response: The NRDAM/CME calculates the number of one-year-old
individuals needed to replace the fished stock, assuming equilibrium
populations. Thus, the actu
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
al numbers of eggs and larvae are not
calculated or needed. The model is calculating the percentage of one-
year-old animals lost because of the spill.
Comment: Given that the abundance of a species may be seasonal, one
commenter questioned how it was possible that the natural mortality
rate and the fishing mortality rate are constant for members of a
species group within and across years, as the equation for young-of-
the-year requires.
Response: The natural mortality rates and the fishing mortality
rates apply to the species population (stock) regardless of location
and abundance. Stock abundances apply on a province-wide basis. The
abundances in a specific province may vary by season due to migration
of stock in and out of different provinces. Therefore, there is no
inconsistency between using a constant mortality rate over time and
using abundance figures that vary by season. For further discussion,
see Section 6.5, Volume I of the NRDAM/CME technical document.
Comment: One commenter thought the young-of-the-year database in
the NRDAM/CME was incomplete, noting that there are several species
groups in the adult database that are absent in the young-of-the-year
database.
Response: Certain species, such as anadromous fish, do not spawn in
marine habitats. Thus, there may be adults present in a given province
without young-of-the-year present.
Comment: One commenter questioned whether forage fish production
was nonexistent outside of structured habitats as assumed in the
database for California provinces 40 through 47.
Response: The NRDAM/CME does not assume that forage fish production
is nonexistent outside of structured habitats. The food web model
includes forage fish, in particular planktivorous forage fish, in open
water habitats.
Comment: One commenter questioned the inclusion of goldfish as
representative herbivorous forage fish in wetlands in the proposed
NRDAM/GLE technical document.
Response: The Department used goldfish in the table to which the
commenter refers simply as an example, because it is one of the few
truly herbivorous fish. Most forage fish feeding on the bottom are
omnivorous.
Comment: One commenter thought the proposed NRDAM/CME technical
document was unclear how zooplankton production was determined since no
zooplankton production values were presented in the biological
database.
Response: The NRDAM/CME calculates zooplankton production based on
a percentage of phytoplankton production. The technical document has
been clarified. See Section 4.4, Volume I of the NRDAM/CME technical
document.
Comment: A commenter noted that the rates of production for
planktivorous forage fish were not provided in the NRDAM/CME biological
database and questioned how primary production for these fish was
calculated.
Response: The NRDAM/CME calculates planktivorous forage fish
production based on a percentage of zooplankton production. The
technical document has been clarified. See Section 4.4, Volume I of the
NRDAM/CME technical document.
Comment: One of the independent technical reviewers questioned why
several bait fish species were not included in the models.
Response: The Department did not include such species because it
could find no quantitative data for such species.
G. Toxicity and Mortality
Comment: Some of the independent technical reviewers stated that
the biological effects submodel was logical and well conceived for
assessing the effects of minor spills. However, other commenters
asserted that the submodel suffered from an overall lack of supporting
data and questioned the methods used for calculation of mortality and
toxicity data. One commenter noted that bioassay studies measuring the
lethality of oil and petroleum mixtures directly were preferable to the
oil toxicity assumptions used in the models and thought such
information must surely be available. Another commenter asserted that
laboratory bioassays overestimate metals toxicity and that the
Department should consult EPA's Water Effects Ratio studies on binding
capacity in natural waters. A few commenters thought that the models'
treatment of metals speciation was overly simplistic. Another commenter
maintained that the proposed toxicity values were too high compared
with EPA water quality criteria. Further, the commenter suggested the
Department refer to EPA sediment quality criteria for benthic
organisms.
Response: The Department believes that the biological effects
submodel incorporates the best available mortality and toxicity data.
The Department has not been able to locate bioassay data on the
toxicity of hydrocarbon products that have been developed under
carefully controlled conditions, with constant aromatic concentrations
in the water. Also, oil and petroleum products are highly variable in
their percent composition and bioassay results. Very few studies have
addressed oil toxicity and, therefore, the Department has not used
direct bioassay data on oils in the models. See Section 4.2.3, Volume I
of the NRDAM/CME and NRDAM/GLE technical documents.
Laboratory bioassays more closely correspond to dissolved metal
concentration toxicity than total metal concentration in the water. The
models estimate dissolved metal concentrations, and these are the
concentrations assumed to be causing the injuries. Thus, the models
address metal speciation to the extent possible, without incorporating
a complex speciation model. Further, even such a complex speciation
model could not be coupled to appropriate toxicity data at the present
time, as is well noted in EPA and other literature.
EPA's water quality criteria would not be an appropriate basis for
the models' toxicity calculations. The toxicity data in the models are
mean values for acute response. Water quality criteria are designed to
be lower than any concentration found to have either an acute or
chronic response for even the most sensitive species. Thus, the water
quality criteria should be lower than the models' toxicity data. EPA
sediment quality criteria are evaluated in Section 4.2.1, Volume I of
the NRDAM/CME and NRDAM/GLE technical documents.
Comment: One commenter provided a highly technical review of the
proposed toxicity model. The commenter noted that it was the commonly
accepted toxicity model currently used in
[[Page 20591]]
environmental toxicology. The commenter encouraged the Department to
apply chemical- and species-specific values to the alpha and gamma
terms in the toxicity algorithm.
Response: The Department appreciates the in-depth review of the
toxicity model provided by the commenter; however, insufficient data
exist at this time to make the recommended changes. To the extent
possible, the Department has used gamma values that are chemical-
specific and alpha values that vary by class of chemicals. See Section
4.2.1, Volume I of the NRDAM/CME and NRDAM/GLE technical documents.
Comment: One commenter questioned the accuracy of the toxicity
calculations of the proposed NRDAM/GLE, particularly with regard to
releases of metals. The commenter provided information on a series of
test cases in the Niagara River that the commenter ran using the
proposed NRDAM/GLE.
Response: Based on the information provided, the Department
believes the test cases run by the commenter may not provide an
appropriate basis for evaluating the NRDAM/GLE. The NRDAM/GLE was not
designed to address multiple releases from various sources over a
number of years. It appears that the commenter may have run the cases
with the accumulated mass of contaminants as if that mass had resulted
from single event spills of short duration. Also, the model was not
designed to evaluate long-term chronic exposures to hazardous
substances.
The Department does agree, however, that pure metals are not
correctly modeled by the NRDAM/CME and NRDAM/GLE. The toxicity data for
these metals are based on bioassay studies that measured the dissolved
metal ion concentrations in water. Such toxicity data are not
representative of the chemical state of the metal that would occur
under natural environmental conditions. As a result, the Department has
deleted all pure metals from the chemical databases.
Comment: Some commenters, including one of the independent
technical reviewers, expressed concern about the models' failure to
account for the additive toxicity of aromatics in oils.
Response: The Department has modified the NRDAM/CME and NRDAM/GLE
to include an additive toxicity model that accounts for the combined
lethality of similar acting aromatics in oils. The Department used the
information identified by one of the commenters to construct this
additive toxicity model. See Section 4.2, Volume I of the NRDAM/CME and
NRDAM/GLE technical documents for the specific algorithm used and
further clarification of the changes made.
Comment: Several commenters noted examples, primarily for metals,
where the proposed NRDAM/CME used toxicity thresholds that were lower
than naturally occurring water solubilities. The commenters suggested
these errors were due to the Department's inappropriate use of
freshwater toxicity data in saltwater environments.
Response: Comparison of the salt- and freshwater databases for
those chemicals where data existed showed no significant differences in
toxicity values given the variability of such data. However, the
Department has deleted those chemicals where a difference would be
expected (i.e., those making up salinity such as sodium).
The toxic thresholds in the models are only used as switches to end
the calculations of the physical fates submodel. When the physical
fates submodel determines that concentrations are below this level in
all locations, it stops running. The threshold is the concentration
that would cause one percent mortality at 30 degrees Celsius after 96
or more hours of exposure for the most sensitive species group. The
biological effects submodel calculates the actual mortality for each
species group based on duration of exposure and temperature. The
proposed technical documents contained an incorrect list of the toxic
thresholds actually used by the models. The documents have been
corrected. See Table III.2.1, Volume III of the NRDAM/CME and NRDAM/GLE
technical documents.
The toxicity data in the database, including the threshold values,
apply to dissolved concentrations, not total concentrations. For
chemicals that are highly partitioned, such as metals and nonpolar
organics, the dissolved concentrations will be a small fraction of the
total. The physical fates submodel partitions chemicals in both the
water column and the sediments. Only dissolved chemical in the water
column or in the sediment pore water causes toxicity in the models.
Thus, the toxicity values should not be compared to total
concentrations in water, but rather to the dissolved portion only. This
accounts for the discrepancies perceived by the commenter when
comparing thresholds to total metal background concentrations. The
Department has eliminated all chemicals with a solubility below the
toxic threshold.
Comment: One of the independent technical reviewers thought that
the use of toxicity values based on acute toxicity laboratory tests
could underestimate toxic effects, because in acute tests involving up
to 96 hours of exposure, animals are typically not fed. Thus effects
result from water-borne exposure only. The technical reviewer concluded
that the models may be inappropriate for spills of hydrophobic organic
compounds where most of the exposure would be through contaminated
food.
Response: The Department agrees that the models may not fully
capture the effects of a spill that contaminates food sources. The
Department has revised the technical documents to clarify this point.
See Section 4.2.1, Volume I of the NRDAM/CME and NRDAM/GLE technical
documents.
Comment: One of the independent technical reviewers thought that
the models should account for the incremental effects of spills on
existing levels of contamination.
Response: The Department did consider inclusion of background
contamination data in the models. However, data sources were
insufficient to include such information for the entire area covered by
the models. As a practical matter, background contamination present at
the spill site before a spill would lower the threshold for effects by
the spill. Thus, not including background contamination in the models
is likely to underestimate injuries. However, the Department believes
that in cases where background contamination is significant but the
cost of using type B procedures is not reasonable, trustees should
still have the option of using a type A procedure.
Comment: Commenters suggested that rather than use average exposure
concentrations in the plume, the models should evaluate mortalities
that accrue from the actual cumulative exposure. One of the independent
technical reviewers thought that it was not meaningful to estimate
fractions of animals killed and recommended that the models round up
fractional mortalities to total animals killed.
Response: Inadequate data currently exist to estimate effects of
cumulative exposure. Further, the computational complexities and the
potential size of the internal, intermediate data files are effectively
beyond the capacity of currently available PCs. Instead, the biological
effects submodel performs multiple iterative runs, using different
randomized algorithms, and then averages the results of these runs to
avoid anomalous model outputs and increase reliability. See Section
4.3.1, Volume I of the NRDAM/CME and NRDAM/GLE technical documents.
The model is intended to generate valid mortality estimates for
portions of
[[Page 20592]]
populations rather than discrete deaths of individual animals.
Therefore, fractional mortality figures are appropriate.
Comment: One commenter thought the portions of the NRDAM/CME and
NRDAM/GLE technical documents pertaining to the use of particles to
represent biological populations were unclear. The commenter sought
clarification of how the models operate when the particles hit a
physical boundary within the models. The commenter also sought
clarification of the fate of particles and their exposure history
during a change of seasons. The commenter believed there should be
exposure memory for particles representing those species whose density
is constant across seasons. The commenter further supported the use of
multiple iterative runs to minimize the variability error caused by
using a finite number of particles to represent a population and by
limiting particle movements on a daily basis.
Response: Particles may be transported out of a grid at the
downstream edge and ``created'' as previously unexposed particles at
the upstream edge. Particles intersecting land are reflected back into
the water. At the change in seasons, the models assume that new
individuals are present (at pre-spill abundances) and do not carry over
the exposure history from the past season. The past season's injuries
are tabulated and the exposure history for the new season is set at
zero. Therefore, in a case where exposure extends across the seasonal
boundary, the time of exposure would be underestimated. The technical
documents have been clarified on these points. See Section 4.3, Volume
I of the NRDAM/CME and NRDAM/GLE technical documents. The Department
agrees that multiple runs of the same scenario will give a better
prediction of damages than a single run. Thus the models' internal
procedures average multiple runs to arrive at a damage figure.
Comment: Several commenters generally criticized the proposed
models' wildlife mortality calculations. Some commenters maintained
that the models fail to adequately distinguish among effects of
different types of compounds and questioned the application of wildlife
mortality probabilities to substances other than crude oil since the
only supporting data sources were for crude oil.
Response: The Department considers the wildlife mortality model to
be reasonable, scientifically justified and consistent with experience
in actual spill events. The probabilities of wildlife mortality used by
the models are based on data obtained from observations of real spills.
Some modifications have been made to the probability values based on
more recent information.
The Department acknowledges that the supporting data sources for
wildlife mortality do address crude oil. However, the Department
believes that the models adequately account for the differences between
crude oil and other petroleum products by calculating wildlife exposure
dose based on the oil thickness and slick size. The mortality threshold
is based on the exposure dose that is sufficient to cause an observable
effect in experimental studies. If the exposure level exceeds the
threshold, then wildlife mortality is assumed. For example, petroleum
products that spread to sheen quickly, entrain, and/or evaporate have
much less effect on wildlife in the models than thick, long-lasting
oils, such as crude oil. Thus, the models account for differences among
hydrocarbon-based oils and products through the physical fates submodel
and the exposure algorithm. This algorithm is further explained in
Section 4.3.4, Volume I of the NRDAM/CME and NRDAM/GLE technical
documents.
Comment: Some commenters contended that no data were available to
support mortality rates for raptors. Commenters also questioned the
extrapolation of sea otter mortality probabilities to polar bears.
Response: The Department considers the eagle mortality rates to be
appropriate for raptors in general. Mortality of eagles and other
raptors as calculated by the models generally results from contact with
slicks in shallow waters and along shorelines, and both eagles and
other raptors occupy such areas to similar degrees. The eagle mortality
rates used in the models are also supported by evidence from the Exxon
Valdez spill. Further, osprey behave very much like eagles. Thus, the
Department believes it is reasonable to use the same mortality rate for
eagles and osprey.
The Department recognizes that no explicit data are available on
the probability of polar bears dying from spills. However, the
Department believes that it is appropriate to use the same probability
for all furbearers because the mechanisms of exposure and toxicity,
namely ingestion of oil through grooming, are similar.
Comment: One commenter thought that the NRDAM/GLE should use a 90
to 95 percent mortality rate for ducks contacting heavy oil, as the
proposed NRDAM/CME did.
Response: The Department has modified the NRDAM/GLE to include duck
mortality rates that are consistent with those in the NRDAM/CME. Based
on recent information, the Department has incorporated a 99 percent
mortality rate in both models for those ducks that are exposed to a
spill over the threshold dose. See Section 4.3.4, Volume I of the
NRDAM/GLE technical document.
Comment: Commenters noted an apparent lack of correspondence
between numbers of marine birds the models estimated to be killed, and
numbers killed based on actual wildlife recoveries and detailed damage
assessments. One commenter believed that the mortality counts for birds
impacted by oil spills in Florida appeared low in almost all cases.
Commenters suggested an alternative hindcast model for wildlife
mortality estimation that was used for the T/V Puerto Rican, Apex
Houston, Nestucca, and Exxon Valdez oil spills.
Response: The Department believes that the apparently low
mortalities observed by the commenter were due to the low abundance
data for certain bird species contained in the proposed biological
database for the Florida coast. The Department has revised the wildlife
database for the Florida coast based on additional information provided
by commenters. Model runs conducted with the revised wildlife abundance
database no longer reveal large discrepancies. See Section 5, Volume IV
of the NRDAM/CME technical document.
Also, the Department has revised the probability of mortality for
aerial divers using hindcasts, as suggested. See Section 4.3.4, Volume
I of the NRDAM/CME technical document.
Comment: Several commenters, including one of the independent
technical reviewers, generally questioned the oil mortality
probabilities and suggested that they be calibrated to data from actual
spills, noting that the wildlife mortality probabilities in the
proposed models were inconsistent with experience in the Exxon Valdez
spill.
Response: The mortality probabilities included in the models are
based in part on data from actual spills. Very little data exist on the
natural resource effects of small spills of the type addressed by the
type A models. Therefore, it is impossible to determine the need for
calibration. Nonetheless, the Department did consider data on physical
fates and biological effects collected after the Exxon Valdez spill
when evaluating the NRDAM/CME's mortality predictions. Bird and marine
mammal injuries estimated by the
[[Page 20593]]
model provide reasonable agreement with estimated kills caused by the
spill.
Also, the commenters may not have correctly interpreted how the
model calculates wildlife mortality. The commenters inferred that the
wildlife mortality probabilities are multiplied times all animals at
risk, and include populations for all of the northern Gulf of Alaska in
the total population at risk. Instead, the model only multiplies the
probabilities times the animals actually encountering oil and receiving
a dose above the threshold value. Thus, the population ``at risk'' in
this sense is orders of magnitude lower than the commenter's suggested
value.
Comment: Several commenters asserted that the models overestimate
wildlife injuries by failing to account for weathering of oil, the
effect of temperature, and the fact that light products like gasoline
and other floating chemicals would be readily washed from the coats of
furbearers.
Response: The physical fates submodel does account for weathering.
Evaporation, degradation, and entrainment reduce the area and thickness
of slicks, which in turn reduces the frequency with which wildlife will
be exposed to oil doses large enough to induce effects. See Section
3.5, Volume I of the NRDAM/CME and NRDAM/GLE technical documents. For
example, extremely volatile compounds evaporate so quickly that their
surface slicks have essentially no effect on wildlife.
The Department does not think that temperature is likely to have a
significant effect on mortality rates. While one effect of oiling is a
decrease in thermal conductance of fur and feathers, it is generally
thought that the predominant toxic effects result from ingestion of oil
during grooming. See Section 4.3.4, Volume I of the NRDAM/CME technical
document. Also, animals are adapted to the climate in which they live.
Thus, a tropical species suffers from hypothermia at a higher
temperature than subpolar species.
Finally, the light products and chemicals contained in crude oil
are widely recognized to be the more toxic components. The light
products and chemicals are hydrophobic, and so would not be washed from
fur by seawater. Given the same dose, in terms of mass of hydrocarbons,
these products are expected to have similar effects to crude oils.
Comment: One commenter thought that the proposed 10 percent
mortality rate for terrestrial mammals was too high.
Response: The Department agrees that the proposed mortality rate of
10 percent was too high and has reduced it to 0.1 percent. The
Department considers this revised rate to be reasonable as compared to
the mortality rate for seals. The NRDAM/CME assumes a seal mortality
rate of 1.0 percent based on hindcast projections using Exxon Valdez
data. Seals continuously inhabit open waters and shorelines, whereas
terrestrial wildlife inhabit shorelines only a portion of the time.
Therefore, terrestrial mammals would be expected to have lower rates of
encountering spills and, thus, lower mortality rates.
Comment: Commenters suggested the models grossly overestimate fish
mortality from oil spills by overestimating dissolved hydrocarbon
concentrations. These commenters particularly took issue with the
Department's assumption that total aromatic hydrocarbon content of a
spill remains the same by percentage before and after the spill. These
commenters cited studies showing that weathering results in little of
the hydrocarbon content entering the water column.
Response: The Department does not think that the models
overestimate fish mortality resulting from oil spills. Aromatics in
oils are known to cause the most acute toxicity. See Section 4.2.3,
Volume I of the NRDAM/CME and NRDAM/GLE technical documents. The
physical fates submodel separately tracks dissolved aromatics of two
molecular weight size classes: (1) monoaromatic benzenes and (2)
diaromatic compounds. These aromatics do volatilize rapidly in the
models. Thus, relatively little of these aromatics end up in the water
column and cause toxicity. See Section 3.5, Volume I of the NRDAM/CME
and NRDAM/GLE technical documents.
Also, the models do not assume that the percent composition of
total aromatic hydrocarbons remains constant in the spilled substance.
The Department has clarified the text of the technical documents on
this point. See Section 4.2.3, Volume I of the NRDAM/CME and NRDAM/GLE
technical documents.
Comment: Commenters asserted that it is too simplistic to use a
mean LC50 (the concentration at which 50 percent of test organisms die
within a defined time period) for the whole taxonomic class of fish or
for all plants, algae, or angiosperms. Further, commenters maintained
that the Department failed to provide information sufficient to
evaluate the statistical relationships involved.
Response: The NRDAM/CME and NRDAM/GLE technical documents contain
detailed descriptions of the process the Department used to derive
average toxicity parameters. Researchers have found that the LC50 for
one species is a reasonable predictor of toxicity for other species
within the same family and that, in many cases, cross-family
correlations are also significant. See Sections 4 and 7, Volume I of
the NRDAM/CME and NRDAM/GLE technical documents. Also, the
administrative record for this rulemaking includes additional material
on the derivation of average toxicity parameters.
Available information is insufficient to disaggregate further the
toxicity values used in the models. Disaggregation of the few data
available would increase the error in the model result because of the
uncertainties associated with individual data points. For plants,
algae, or angiosperms, available data in EPA's AQUIRE database support
the use of a mean LC50 value. There are insufficient data to quantify
differing values by plant group. The Department does not believe that
use of more specific plant values would significantly improve the
reliability of the model damage figure because the model damage figures
are not sensitive to the value assumed, within the range of observed
data for a given chemical.
Comment: A few commenters generally criticized the Department's
approach to assessing fish mortality from toxicity data using
statistically averaged values, asserting that information necessary to
review the adequacy of such an approach was not included in the
proposed technical documents. One of the commenters noted apparent
inconsistencies between the values used in the models and the values in
the AQUIRE database. Another commenter asserted that unless the
Department could demonstrate that the oil toxicity algorithms in the
revised NRDAM/CME were more accurate than those in the original NRDAM/
CME issued in 1987, the Department should return to the original
algorithms.
Response: The Department believes it has provided sufficient
information and opportunity to review the approaches used to calculate
fish mortality and to derive the toxicity data contained in the
databases. Section 4, Volume I of the NRDAM/CME and NRDAM/GLE technical
documents explains how the models calculate fish mortality. Section 2,
Volume III of the NRDAM/CME and NRDAM/GLE technical documents provides
toxicity values for each substance contained in the chemical databases
and the source of information used to derive those values. Due to the
volume of material, the Department has
[[Page 20594]]
not included in the technical documents all of the raw data and
statistical analyses that were compiled for each toxicity value.
However, the sources of the raw data, such as AQUIRE, are available to
the public. Also the methods used to derive the statistically averaged
toxicity values are consistent with those commonly used in aquatic
toxicology. The toxicity values used in the model are based on all
literature in the AQUIRE database as of November 1991. The AQUIRE
database has not been updated since that time. The commenter appears to
have reviewed only a limited range of data in the AQUIRE database.
Finally, the Department believes that the revised NRDAM/CME is an
improvement over the original NRDAM/CME and more accurately calculates
oil toxicity. The technical documents explain all oil toxicity values
used in the models. See Section 4.2.3, Volume I, and Section 2, Volume
III of the NRDAM/CME and NRDAM/GLE technical documents. The toxicity
parameters are for dissolved aromatic hydrocarbons of less than 200
molecular weight, which is what the models calculate as the toxic
material. Literature estimates are for whole oil, total petroleum
hydrocarbons, or water soluble fractions, and thus are inapplicable to
and higher than those for the dissolved low molecular weight fraction.
Comment: One commenter noted that the susceptibility of developing
fish eggs and larvae to toxic substances changes over time and sought
clarification whether the models account for seasonal variations in
toxicity.
Response: The Department recognizes that the susceptibility of fish
eggs and larvae to toxic substances may change with age. However, the
Department does not think that sufficient research data have been
compiled to quantify a change in toxicity by age of eggs and larvae for
all the species groups and chemical substances contained in the
chemical database. Therefore, the models have not been revised to
account for this potential effect.
Comment: Some commenters, including one of the independent
technical reviewers, criticized the models for failing to account for
the effects of avoidance of a spill by fish.
Response: The Department acknowledges that some portion of fish
populations may avoid spills of some types of chemicals. However, the
Department was unable to identify adequate quantitative data on this
phenomenon to include it in the models at this time.
Comment: One of the independent technical reviewers thought the
NRDAM/CME should account for the fact that fish and macroinvertebrates
may be exposed to intertidal contamination when the tide is in.
Response: The model does account for tidal inundation in its
calculation of the water column plume. Contamination in the water may
move into intertidal areas when water is present over them. When the
tide goes out, the plume is transported out as well.
Comment: One of the independent technical reviewers thought the
fish swimming speeds used in the proposed models were extremely low.
Response: The Department believes that the swimming speeds
incorporated in the models are appropriate for the time step involved.
The models use these speeds as distance moved in a single direction in
an individual time step. Direction is randomized, so that after many
time steps, motion is random. The rates are low because of the time
step used. Otherwise, there is too much migration of fish in the
models. For further discussion, see Section 4.3.1, Volume I of the
NRDAM/CME and NRDAM/GLE technical documents.
Comment: One commenter questioned the accuracy of the statement in
the proposed NRDAM/GLE technical document that short duration
disturbances of biota are not evaluated in light of the fact that the
model specifically focuses on acute injury.
Response: The statement in the technical document to which the
commenter refers simply addresses the model assumption that seasonal
biological abundances do not change for reasons other than the spill.
See Section 4.1.2, Volume I of the NRDAM/GLE technical document.
Comment: One commenter stated that the Department had made an
unsubstantiated assumption that, for wildlife, death of parent animals
will necessarily lead to death of immature animals. However, other
commenters stated that, according to the equations in the proposed
technical documents, the models fail to account for lost future harvest
of young that are killed as a result of the death of their parents. A
few commenters thought the models assumed that the spill occurred at
the time of fledging and that the time of fledging is constant for all
species. Some commenters also thought that the hatching and fledging
times presented in the database were excessive.
Response: The models assume that if adult birds or mammals are
killed while their young are dependent upon them, then the young will
be lost as well. See Section 4.5.2, Volume I of the NRDAM/CME and
NRDAM/GLE technical documents. The models do not assume that the spill
occurs at the time of fledging or that the time of fledging is constant
for all species. The wildlife life history parameters used by the
models include the age (in months) at which young are fledged or
weaned, not the month of the year in which they are fledged or weaned.
The fledging and weaning ages in the database are the ages at which
young become independent. See Section 4, Volume IV of the NRDAM/CME
technical document, and Section 3.6, Volume III of the NRDAM/GLE
technical document.
A substantial volume of literature addresses the parental care of
young birds and mammals and the inability of those young to survive
without parents. See Section 4, Volume IV of the NRDAM/CME technical
document, and Section 3.8.4, Volume III of the NRDAM/GLE technical
document. The Department believes it has provided ample documentation
to substantiate that the death of parent animals does result in the
death of young that are dependent on them.
H. Loss of Production
Comment: One of the independent technical reviewers stated that
direct oiling can kill seagrass and thereby reduce habitat function.
The technical reviewer suggested that the models account for the effect
of oiling on submerged macrophytes such as seagrass and kelp.
Response: The NRDAM/CME calculates the sublethal loss of production
and the acute lethal effects to subtidal seagrasses and other submerged
macrophytes exposed to concentrations of dissolved oil in the water.
However, evidence of oil coating and smothering macrophytes that are
under water or in floating beds, does not appear to be available. The
Department does not consider smothering of subtidal seagrass to be
likely given that oil slicks float on the water surface and wave action
would flush the oil from floating beds. Therefore, the Department has
not included the coating and smothering of subtidal macrophytes as an
injury calculated by the model.
Intertidal seagrass habitats have been added to the NRDAM/CME as a
new habitat type. The Department recognizes that intertidal seagrass
can be coated by oil and smothered. Research studies have shown
saltmarsh plant mortalities to occur from exposure to oil thicknesses
of 14 millimeters. As a result, oiling of intertidal seagrass beds over
a threshold thickness of 14
[[Page 20595]]
millimeters is considered lethal to seagrass, which is consistent with
the model's treatment of oiling effects on other intertidal habitat
types. See Section 4.3.3.2, Volume I of the NRDAM/CME technical
document.
Comment: One commenter thought that the proposed method of
estimating post-spill recovery of macrophyte primary production was
adequate for the purposes of the NRDAM/CME. However, the commenter
suggested that the Department consider adjusting the sigmoidal function
used to estimate the rate of biomass production so that the maximum
rate of production occurs at one-half of the pre-spill biomass level.
Response: The Department acknowledges the limitations of available
data to specifically define the shape of the recovery curve for
macrophyte production. However, the model results are not sensitive to
the specific shape of the recovery curve; therefore, further effort to
refine the curve is not likely to result in significantly improved
reliability.
Comment: A few commenters, including one of the independent
technical reviewers, thought the models should consider the effects of
compensatory growth (i.e., enhanced production due to the removal of
inter- and intra-species density-dependent growth-limiting factors).
These commenters stated that the models would overestimate production
losses unless compensatory growth were considered. The commenter also
suggested that, for lower trophic levels, the models should use the
upper 75th percentile of the available LC50 or EC50 (i.e., the
concentration at which growth is reduced by 50 percent) values rather
than the mean of the LC50 and EC50 values.
Response: The Department acknowledges that compensatory growth is
not addressed within the models. However, the Department does not
believe that production losses are overestimated as a result. For the
small spills for which the models were designed, density-dependent
growth and survival effects are likely to be insignificant. Further,
density-dependent effects of large changes in fish population sizes
have been difficult to quantify because of large natural variations and
other ecological forces. The known disturbances that enhance
productivity in ecosystems are natural events to which the ecosystem
adapts rather than hazardous substance spills.
The selection of only the upper 75th percentile of the LC50 and
EC50 data would arbitrarily exclude toxicity data that may be
representative of all sensitive and nonsensitive organisms in the
field. Instead, the use of only the higher LC50 data would likely be
representative of only the direct mortality to nonsensitive organisms.
Comment: One of the independent technical reviewers recommended
that the Department adopt a habitat-based approach to calculating the
loss of production. Under this approach, each grid would have an
associated biomass per unit area, and if that grid were oiled, an
assumed percent of yield would be lost.
Response: The models do use a habitat-based approach in the
calculation of lost production. Each contiguous grid cell of the same
habitat type within the grid has an associated biomass per unit area.
The models calculate a percentage loss of biomass for the defined
habitat type based on concentration and time of exposure. Biomass
losses are summed and multiplied times the fishing mortality rate
within the habitat type to calculate the lost yield. See Sections 4.3
and 6.2, Volume I of the NRDAM/CME technical document, and Sections 4.3
and 8.2.2, Volume I of the NRDAM/GLE technical document.
Comment: Several commenters stated that the models rely on
assumptions about ecological and exposure processes that are
inconsistent with actual environmental conditions and could result in
inflated damage estimates. Some commenters thought that the models
inappropriately assume that ecological communities are evenly
distributed both temporally and spatially. Several commenters disagreed
with the model assumption that all demersal young-of-the-year are
attached to the bottom and thought that this assumption would
overestimate injury. Some commenters stated that the assumption that
the depth of bioturbation is always 10 centimeters would also lead to
overestimates of injuries. One of the independent technical reviewers
thought that the models should account for vertical migration.
Response: Ecosystems have the resilience to adapt to a number of
unpredictable disturbances. Further, most small spills do not appear to
significantly alter ecosystem structure or the temporal distribution of
populations. The purpose of the models is to evaluate effects of spills
small enough that they do not significantly alter ecosystem structure
and dynamics. The Department believes it is reasonable to assume stable
temporal distributions and that such an assumption is not inconsistent
with actual environmental conditions during small spills. Therefore,
the models continue to assume temporal distribution is constant by
season for fish and shellfish and by month for young-of-the-year.
The models do not assume even spatial distributions of ecological
communities. The abundance data contained in the biological database
were developed assuming evenly distributed species abundances within a
particular habitat and biological province occupied by the species, and
within a given season or month. The species abundance data are assigned
to the models' biological computational particles. Abundances of young-
of-the year change monthly between habitats, provinces, and portions of
the water column (pelagic, demersal or benthic), as appropriate to the
species' life history. Therefore, the particles do not represent
abundances that are evenly distributed spatially.
The Department acknowledges that a small portion of demersal young-
of-the-year are potentially carried by currents. However, for the
purposes of these models, the Department believes it is reasonable to
assume that all demersal young-of-the-year are attached to the bottom.
See Section 4.3.2, Volume I of the NRDAM/CME and NRDAM/GLE technical
documents. If any demersal young-of-the-year did in fact drift with the
current, they would likely be more exposed to the released substance,
which would also be moving with the current. Therefore, if the
assumption that all demersal young-of-the-year are attached to the
bottom is not reasonable in a particular case, the models are likely to
underestimate rather than overestimate damages.
Also, simulation of vertical migration would require substantial
additional modeling. The Department does not believe that adding such
complexity would substantially improve the reliability of the final
damage figure.
In some contaminated, and thus ecologically stressed, habitats, the
depth of bioturbation may be less than 10 centimeters. However, for
most regions covered by the models, the Department believes it is
reasonable to assume a depth of 10 centimeters, since most estuarine
and marine sediments are relatively uncontaminated. Contrary to the
commenters' assertion that this assumption may cause an overestimate in
pore water concentrations in areas where bioturbation is small, the
dilution of contaminants over the assumed depth of 10 centimeters could
underestimate pore water concentrations and injuries.
Comment: Some of the commenters, including one of the independent
technical reviewers, thought the food web model was crude. For example,
the independent technical reviewer
[[Page 20596]]
questioned the assumption that all biota are equivalent as food
sources. Another commenter stated that the model provided only a rough
approximation of upper trophic-level production losses attributable to
spill-related reductions in primary productivity.
Response: The Department acknowledges that the food web model is
generalized for all aquatic habitats, but believes it is reasonable for
the purposes of the NRDAM/GLE and NRDAM/CME. The food web model
provides a reliable approximation of spill-related upper trophic-level
production losses due to lost primary productivity. The Department
believes that development of a more sophisticated, geographic-specific
food web model would not significantly improve the reliability of the
final damage figure.
Comment: One of the independent technical reviewers thought that
the consumption rate parameters contained in the food web model should
vary seasonally.
Response: Seasonal changes in lower trophic-level production rates
and in temperature already partially provide a seasonal effect in the
models. The Department does not believe that further refinement would
significantly improve the reliability of the final damage figure.
I. Catch and Bag Losses
Comment: Several commenters addressed the methods used to translate
fish mortality and wildlife mortality into reductions in catch and bag.
Commenters noted that a correct translation was needed because
mortality is not a sufficient basis for damages if it does not result
in a quantifiable reduction in the services provided by the resources.
Some commenters thought the proposed single-species approach to
modeling fishery complexes and ecosystems was simplistic but adequate
for the purposes of the type A models. Other commenters argued that
predictions of catch and bag losses were wholly unreliable and resulted
in inflated estimates of service losses.
Some commenters stated that the models sometimes predict a catch
loss that exceeds the prediction of total mortality. These commenters
asserted that inaccurately high fishing rates in the proposed NRDAM/GLE
lead to the estimation that 50 to 70 percent of some fish species would
be caught in a single year. Commenters complained that lost wildlife
bag predictions failed to account for regional differences. Some
commenters thought that failure to consider hunting regulations would
inappropriately result in the calculation of losses even when hunting
is prohibited. Commenters also criticized the use of uniform annual
hunting mortality rates that do not assume any particular underlying
daily patterns that would produce such rates.
Response: The type A models calculate lost catch based on a
standard fisheries model. See Section 4.5.1, Volume I of the NRDAM/CME
and NRDAM/GLE technical documents. Fishing mortality is an
instantaneous rate, the coefficient of an exponential, first-order
``decay'' curve. The nature of this equation is that an instantaneous
fishing mortality rate of one corresponds to an annual harvest of 63
percent of the standing stock abundance present at the beginning of the
year. The models account for growth of animals over the year they are
harvested. Thus, the harvest may exceed the standing stock biomass
present at any given time if the growth rate of the species is high. An
annual harvest rate of 63 percent of standing stock abundance at the
beginning of the year is not equivalent to a 63 percent catch of all
the fish species stock cumulatively available throughout the year. The
fishing mortality rates assumed in the database are based on best
available fisheries statistics estimated by NMFS and State fisheries
management agencies.
The models apply hunting mortality rates to a population, i.e., a
stock or group of interbreeding animals. See Section 4.5.3, Volume I of
the NRDAM/CME and NRDAM/GLE technical documents. The hunting mortality
rate in the models is simply the probability of being hunted
successfully at some time and place over one year of life. Therefore,
the models need not consider exactly where or when the animals are
actually taken during a given year or whether hunting seasons are open
or closed at the spill site. The Department derived the hunting
mortality rates from tagging studies. A considerable amount of
literature shows that birds and mammals have similar hunting mortality
rates per animal (or per 100 animals) throughout North American
populations due to migratory behavior and biological limits on
productivity. See Section 4, Volume IV of the NRDAM/CME technical
document. Therefore, the models use per-animal rates that are
justifiably constant in time and space.
Comment: Some commenters thought it was inconsistent for the models
to assume that a fish species may be present or absent in certain
seasons while also assuming that fishing and natural mortality rates
are constant and act continuously on the population throughout the
year.
Response: The models include fishing and natural mortality rates
that apply to stocks, which may move seasonally. The rates apply to the
entire population of fish within the provinces occupied by a given
stock no matter whether they are present or absent from particular
locations at different times of the year.
Comment: One commenter thought that the fish biomass figures used
in the calculation of predation rates should reflect the entire stock,
not just the exploitable stock biomass.
Response: The models do, in fact, use the total stock biomass in
these calculations.
Comment: A few commenters noted that the yield model assumes that
the biomass of each fish species is uniformly distributed over the
entire province in which it is found, while the figures in the database
reflect the actual distribution of the stock. The commenters further
noted that if a species did not extend throughout the entire province,
then this assumption would lead to an overestimate of loss of yield.
Response: The Department chose province boundaries to minimize this
source of error in the models. Additionally, there are three sub-areas
(habitats) within each province with unique fishery biomasses. See
Section 6.3, Volume I of the NRDAM/CME technical document.
Comment: A few commenters raised questions about the interplay
between the user-supplied information on closures and the models'
spill-related mortality predictions. The commenters noted that the
models do not adjust fishing mortality rates when there is a closure.
Commenters suggested that users be allowed to make such an adjustment
to avoid underestimating recovery periods.
Response: The Department believes the assumption of a constant
fishing mortality rate is reasonable for purposes of calculating
recovery periods after minor spills. Only very large changes in fishing
would be measurable in the population over the long term. For minor
releases, it is unlikely that extended closures will occur.
Comment: One commenter questioned the yield formulas in the
proposed NRDAM/CME technical document and offered alternative formulas.
The commenter noted that the proposed equations appeared to be missing
the final year's contribution to yield.
Response: The Department has reviewed the alternative formulas
offered by the commenter and has concluded that they are more precise.
The Department has modified the final versions of the models
accordingly. The
[[Page 20597]]
models continue to calculate losses through the last year after the
spill effects where killed individuals would have lived and died
naturally. The Department has clarified the language of the technical
documents on this point. See Section 4.5.1, Volume I of the NRDAM/CME
and NRDAM/GLE technical documents.
J. Habitat Restoration
Comment: Several commenters thought that the proposed methodology
for calculating habitat restoration costs was so flawed that the
Department should eliminate such damages from the models. These
commenters identified four major flaws in the methodology that, taken
together, render it invalid: (1) The models' acute toxic threshold is
unrealistically low, leading the models to overestimate the size of the
areas needing restoration; (2) the models often overestimate the time
necessary for natural recovery; (3) the models select specific physical
restoration measures without regard to their feasibility; and (4) the
Department overestimated the fixed costs for small spills.
Response: As discussed in more detail below, the Department
believes that the methodology for calculating habitat restoration costs
is reliable. Therefore, the Department has retained the methodology in
the final versions of the NRDAM/CME and the NRDAM/GLE subject to the
revisions described in Section VI.B of this preamble.
Comment: Several commenters said the Department had failed to
consider adequately the feasibility or the cost-effectiveness of the
specific restoration actions included in the models. For example,
commenters argued that sediment capping in deep water is not a proven
technique and that the cost of such capping is highly site-specific.
Therefore, these commenters thought that deep-water capping should be
eliminated from the models. Commenters also thought that the Department
had failed to substantiate its claim that the types of habitat
restoration actions considered by the models are in fact the most cost-
effective. Some commenters, including one of the independent technical
reviewers, thought the Department had unduly limited the range of
restoration actions the models consider, and should have included off-
site restoration, partial rehabilitation, and other mitigating actions.
Response: The Department has concluded, based on an extensive
literature review, that all restoration options considered by the
models are technically feasible. For additional discussion see Sections
5 and 12, Volume I of the NRDAM/CME technical document, and Sections 5
and 9, Volume I of the NRDAM/GLE technical document.
Sediment capping in deep water is technically possible. The models
calculate damages based on the cost of capping only if toxicity in
sediments of an entire grid cell is so persistent that recovery
following capping would be faster than natural recovery. The Department
believes that in such cases, sediment capping is appropriate. The
Department has attempted to account for site-specific factors relating
to offshore capping by including cost figures that take into
consideration the different distances that equipment and sediments must
be transported.
The Department also carefully evaluated a wide range of possible
habitat restoration actions, including replacement of the affected
resources with other resources, acquisition of equivalent resources,
natural recovery, and other technologies. Based on this evaluation, the
Department believes that it has identified the most cost-effective
types of habitat restoration that can reasonably be included in models
of this type.
With regard to off-site restoration, the Department acknowledges
that after recovering damages through the use of a type A procedure,
trustees may well decide that the recoveries are best spent on off-site
actions, such as the purchase and enhancement of nearby property to
provide equivalent habitat to that lost. However, the availability of
nearby land of the same habitat type as that injured, the cost of any
available land, and the need for and feasibility of any actions to make
the land equivalent in quality to that lost are all highly site-
specific factors. The Department does not believe that adequate data
are currently available to include off-site restoration among the list
of restoration actions evaluated by the models. With regard to partial
rehabilitation, the Department has improved the resolution of the
NRDAM/CME by a factor of four, which allows the restoration submodel to
consider restoration of much smaller geographic areas.
Comment: One commenter noted that techniques for reestablishing
freshwater macrophyte beds of wild celery have been well demonstrated
and should be separately included in the NRDAM/GLE.
Response: The NRDAM/GLE does evaluate actions to restore wild
celery beds but does so through consideration of a single type of
restoration action for all aquatic bed habitats. The Department does
not think the differences between the techniques for restoring various
types of aquatic beds necessitate the development of distinct per-unit
restoration costs for each type.
Comment: Several commenters said that the models grossly
overestimate the size of the areas to be restored because they use
unrealistically low toxicity thresholds. To illustrate this point,
commenters noted that the models assign a toxicity threshold to cupric
chloride that is less than 1/40th its normal concentration in
saltwater. These commenters argued that a spill of cupric chloride
would have to spread over a huge area before it would dissipate below
the toxic threshold, which would then necessitate restoration over a
similarly huge area.
Response: The toxicity thresholds included in the models merely
serve as switches to end a model run. When the physical fates submodel
determines that concentrations of the released substance are below the
threshold level for that substance in all locations, it stops running.
The threshold is the concentration that would cause one percent
mortality at 30 degrees Celsius after 96 or more hours of exposure in
the most sensitive species group. When calculating habitat restoration
costs, the restoration submodel will examine all areas over which the
spill has spread but will only calculate the cost of active restoration
if it would result in lower compensable value than natural recovery.
Compensable value is generated only when there is mortality or loss of
production. The biological effects submodel calculates mortality and
loss of production not on the basis of the toxicity thresholds but
rather on the basis of mean LC50 and EC50 values. Therefore, the
toxicity thresholds do not determine the extent of habitat restoration.
Further, the models will only include the cost of active restoration in
the final damage figure if such active restoration passes the cost-
benefit test discussed below.
Comment: There were several comments concerning the models'
predictions of recovery times. One of the independent technical
reviewers suggested that the recovery times be modified. Another
commenter noted that recovery times are very uncertain and that
relatively small adjustments can have significant effects on estimates
of total losses. Several commenters said the proposed restoration
submodel generally overestimated the time required for natural
recovery. Some commenters stated that the NRDAM/CME appeared to
incorporate recovery times for seagrass beds and coral reefs that
exceeded the literature values listed in the proposed NRDAM/CME
technical document. Other commenters
[[Page 20598]]
questioned the lack of data for saltmarsh wetlands and mudflats and
criticized the Department's use of identical recovery times for
mudflats and sandy beaches.
Response: The Department believes that the scientific literature
supports the recovery times for seagrass beds, coral reefs, saltmarsh
wetlands, and mudflats contained in the NRDAM/CME. Further, the
recovery periods included in the NRDAM/CME for seagrass beds and coral
reef are consistent with the literature cited in the technical
document. See Section 4.3.3.2, Volume I of the NRDAM/CME technical
document.
Comment: One commenter questioned the Department's assumption that
reproduction of fish and wildlife species resumes normal levels as soon
as toxicity is no longer present.
Response: The Department recognizes that substances may cause
sublethal or chronic injuries that affect reproduction after
concentrations have dropped below acutely toxic levels. However, the
models do not attempt to address the effects of such sublethal or
chronic injuries. If trustees believe such injuries are likely to be
significant, they should consider conducting type B studies instead of,
or in addition to, a type A procedure.
Comment: There were a few comments about the inclusion of fixed
restoration costs in the models. Some commenters, including some of the
independent technical reviewers, thought that the fixed cost figure was
too low; other commenters thought it was too high. One of the
independent technical reviewers thought different fixed costs should be
applied depending on the type of habitat affected.
Response: Trustees who use a type A procedure will have to develop
a restoration plan once they obtain compensation for the natural
resource injuries. See 43 CFR 11.93(a). The proposed models included a
fixed cost of $18,300 to cover restoration planning costs. The
Department recognizes that the extent of the restoration planning costs
for each particular case may vary dramatically. Such costs depend on
whether the trustees intend to implement the restoration actions chosen
by the model or develop other restoration actions. The costs also vary
depending on the complexity of the selected restoration actions. In
light of the highly site-specific nature of restoration planning costs,
the Department has chosen to eliminate them from the models.
Nevertheless, Sec. 11.15(a)(3) of the regulations, which is not
changed by this rulemaking, allows trustees to recover the reasonable
and necessary costs of an assessment. These costs include
``[a]dministrative costs and expenses necessary for, and incidental to
* * * restoration, rehabilitation, replacement, and/or acquisition of
equivalent resources planning.'' 43 CFR 11.15(a)(3)(ii). Therefore,
trustees who use a type A procedure and wish to recover restoration
planning costs may develop their own estimates of such costs and
include them as assessment costs in the demand presented to the PRPs
under revised Sec. 11.91(a).
Comment: One commenter was generally concerned about the quality of
the Department's information-gathering efforts on habitat restoration
techniques, noting the lack of current references in the technical
documents. The independent technical reviewers recommended that the
Department update the per-unit restoration cost data included in the
models.
Response: NOAA conducted an extensive literature search on natural
resource restoration while developing guidance documents in connection
with its natural resource damage assessment rulemaking under OPA. The
Department has updated the per-unit restoration costs included in the
models based on information compiled through this NOAA effort as well
as other recent information. Also, as discussed below, the Department
has revised the habitat restoration actions evaluated for structured
habitats (i.e., wetlands, seagrass, macroalgal, coral, mollusk, and
reef).
Comment: A few commenters thought that the costs of upland disposal
of sediments in the proposed NRDAM/GLE inappropriately failed to factor
in long-term operation and maintenance.
Response: The model includes the per-unit costs that a commercial
facility would charge to accept sediment for disposal. These costs are
one-time costs charged by the commercial facility and, thus, should
include the facility's anticipated long-term operation and maintenance
costs. Trustees would not incur any additional long-term costs.
Comment: Some of the independent technical reviewers thought that
the NRDAM/CME incorrectly assumed that seagrass replanting and oyster
reef seeding would entail destruction and subsequent reestablishment of
the entire habitat. These technical reviewers also thought this
assumption would produce a bias against invoking habitat restoration
because habitat restoration of this nature will generally result in
compensable value in excess of that which would occur under natural
recovery.
Response: The Department has reevaluated the habitat restoration
actions included for seagrass beds, invertebrate reefs, and other
structured habitats and decided that in certain circumstances it would
be technically feasible and more cost-effective to perform restoration
actions that are less invasive than replacement of substrate.
Therefore, the Department has revised the NRDAM/CME to include two
potential restoration actions for such habitats. Where the sediments
are sufficiently contaminated, the restoration submodel evaluates
substrate replacement or capping followed by replanting or reseeding of
the vegetation or invertebrate structure. Where sediments are not
contaminated but mortality of the structural habitat has occurred, the
submodel evaluates replanting or reseeding alone. The submodel
evaluates each affected grid cell. See Section 12.2, Volume I of the
NRDAM/CME technical document.
Comment: One commenter thought that the Department had
inappropriately based freshwater wetland restoration alternatives for
hazardous substance releases on oil-related experiences.
Response: The Department did not base freshwater wetland
restoration for hazardous substance releases on data relating to oil
spills. In fact, data on freshwater wetland restoration arises almost
entirely out of non-oil experiences. See Section 5.7, Volume I of the
NRDAM/GLE technical document.
Comment: One commenter noted that removal and replacement of soils
and vegetation is subject to failure and, even if ``successful,''
results in different habitat.
Response: The Department agrees that removal of substrate and
replanting can result in failures and the emergence of different
habitats. The Department developed recovery rates and per-unit
restoration costs that account for such risks.
Comment: One commenter objected to the inclusion of washing and
steam cleaning as restoration alternatives, noting that such actions
caused injury during the Exxon Valdez response.
Response: The Department has retained washing and steam cleaning as
a potential shoreline habitat restoration alternative in the NRDAM/CME.
The Department agrees that washing and steam cleaning cause injury but
believes that inclusion of such alternatives in the model is
appropriate subject to the decision criteria used by the models. When
the model evaluates these alternatives, it assumes that the actions
will destroy the habitat. The model will only select these alternatives
if,
[[Page 20599]]
notwithstanding their deleterious effects, they nonetheless result in
lower compensable value than natural recovery. In coastal and marine
environments, the tidal flux creates a distinct shoreline habitat that
is not present in the Great Lakes. Therefore, the NRDAM/GLE does not
include shoreline washing and steaming.
Comment: One commenter disagreed with the statement in the proposed
NRDAM/GLE technical document that fish production is not negatively
affected by dredging.
Response: The Department acknowledges, and the models recognize,
that dredging of a habitat reduces egg and larval fish production in
the dredged habitat to zero initially, and then production follows
vegetative and benthic recovery. The models simply assume that adult
fish production is unaffected.
K. Assimilative Capacity Restoration
Comment: Several commenters argued that assimilative capacity
restoration costs are not legally recoverable. A number of commenters
thought that inclusion of damages for lost assimilative capacity was
overly speculative. These commenters stated that the presence of a
spilled substance only causes a meaningful reduction in assimilative
capacity if the resource will be required to assimilate more of a
similar substance in the same area before the spilled substance
degrades. The commenters argued that the type A models merely assume
that assimilative capacity has been reduced. Some of these commenters
thought that the assumption of an actual reduction in assimilative
capacity is particularly troubling in the case of minor spills. The
commenters noted that if type B procedures are used, trustees would be
required to demonstrate an actual reduction in assimilative capacity.
One commenter noted that Ohio v. Interior had stated that a procedure
that permitted unduly speculative assessments would not constitute a
best available procedure under CERCLA. 889 F.2d at 462.
Response: The issue of whether lost assimilative capacity is a
legally permissible category of damages was decided and resolved by the
Department in 1986 and is beyond the scope of this rulemaking. The only
issues that the Department is considering in this rulemaking are:
whether the type A models adequately demonstrate a loss of assimilative
capacity; and, if so, whether the models accurately compute the costs
for restoring that loss. The Department believes that the assimilative
capacity restoration costs computed by the final NRDAM/CME and the
NRDAM/GLE are based on demonstrable, rather than speculative, losses.
Assimilative capacity is an ecosystem's ability to repair itself by
digesting, degrading, transforming, absorbing, or otherwise eliminating
the pollutants placed in it. The Department recognizes that there are
contrasting views of the nature of assimilative capacity. The purist
position is that no materials placed in aquatic environments will ever
simply disappear. Some substances cannot be broken down and will
reenter and recycle through the ecosystem even if they have no
detrimental effects. Other substances may be completely digested in the
ecosystem and transformed into harmless or naturally occurring
elements. This digestion, however, will consume some of the ecosystem's
resources (e.g., dissolved oxygen) at the expense of natural processes
and components of the system. Thus, following this purist approach, all
additions to a water body will change it to a greater or lesser degree,
and the only way to ensure restoration of the equilibrium in the
ecosystem is to eliminate or remove all introduced material.
Recognizing, however, that absolute removal of a discrete spilled
substance can be impractical, if not impossible, some experts have
adopted a more pragmatic approach. Under this approach, the
assimilative capacity of a water body is usually viewed in relation to
some water quality standard or level of service. In other words,
assimilative capacity is the ability of a water body to absorb a
particular pollutant up to the point where certain detrimental effects
are realized.
The Department carefully considered both the purist and pragmatic
approaches to assimilative capacity. Based on this consideration, the
Department included in the proposed type A models a methodology for
computing assimilative capacity restoration. After reviewing the public
comments, the Department has modified that methodology to ensure that
the models more accurately quantify assimilative capacity losses. The
Department believes that the modified methodology is appropriate for
inclusion in the models.
The Department does not believe that recovery of damages for lost
assimilative capacity using the type A models is speculative. Trustees
are authorized to recover damages to restore injured resources to their
baseline conditions. Baseline is measured in terms of the services that
the injured resources would have provided in the absence of the
release. See 43 CFR 11.70(a). The assimilation of pollutants is a real
service provided by natural resources and is well-founded in scientific
literature. Assimilative capacity will be reduced whenever a release
occurs. Releases use some of the assimilative capacity of aquatic
environments and so long as the pollutants remain in the environment,
some portion of assimilative capacity--a service provided by the
natural resource--is lost. The Department does not agree that reduction
in assimilative capacity is dependent on a subsequent release of the
exact same substance in the exact same area. A release reduces
assimilative capacity regardless of subsequent spill events.
Nevertheless, the Department recognizes that there are practical
limitations on measuring and addressing assimilative capacity loss,
particularly in the context of a standardized procedure for minor
releases. The issue, then, is not whether there is a reduction in
assimilative capacity but, rather, the extent of the reduction and the
type of actions that are appropriate to restore the lost assimilative
capacity. As discussed above, assimilative capacity can be seen as the
ability to absorb pollutants up to a threshold where detrimental
effects occur. The type A models focus on injury to biological
resources. Therefore, the threshold for meaningful loss of assimilative
capacity now built into the models is mortality or loss of production
resulting in compensable value. Releases that generate compensable
value related to mortality or loss of production have, by definition,
exceeded the assimilative capacity of the ecosystem. In the case of
such releases, the models estimate the cost of restoring assimilative
capacity. The cost is based on the removal of a mass equivalent in
toxicity to the amount of the spilled substance that remains after
concentrations have fallen below acute toxicity thresholds and after
any habitat restoration actions are completed. Such removal will return
the aquatic system to a state that is functionally equivalent to its
baseline condition. When there has been no acute mortality or loss of
productivity, the models do not calculate any assimilative capacity
restoration costs.
Comment: Some commenters asserted that the models fail to take into
account how spatial, temporal, and chemical factors affect the
assimilative capacity and function of a resource.
Response: The Department has modified the models to account more
fully for the factors affecting
[[Page 20600]]
assimilative capacity. The extent of assimilative capacity reduction
depends on how long a substance remains in the environment. The
proposed versions of the type A models did not consider degradation
rates when computing lost assimilative capacity. The Department has
modified the models to correct for the degradation rate of the released
substance relative to the degradation rates of the contaminants found
in the sediment at the sites at which dredging is presumed to occur.
See Section 5.4.4, Volume I of the NRDAM/CME and NRDAM/GLE technical
documents. The Department believes that this modification, along with
the models' methodology for ensuring that the removed mass is
equivalent in toxicity to the released substance, adequately account
for the different factors affecting assimilative capacity.
Comment: Several commenters objected to basing assimilative
capacity restoration costs on the cost of
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
dredging projects outside the
area affected by the release. The commenters complained that there was
no relationship between these dredging projects and the injured
resources. One commenter asserted that inclusion of these damages was
motivated by a desire to circumvent the normal appropriations process
for funding dredging projects unrelated to the spill. Commenters,
including one of the independent technical reviewers, observed that at
dredging sites with heavy contamination, less material would have to be
dredged than at sites with lower levels of contamination. These
commenters noted that this method generates dramatically different
figures for different geographic areas and that such differences were
unfair because they were unrelated to the spill. A few commenters
stated that since the Department seems to believe that assimilative
capacity is affected over extremely large areas, the models should base
damages on the lowest dredging cost for any of the provinces.
Some commenters, including one of the independent technical
reviewers, also argued that it would be more cost-effective to
calculate damages based on prevention of wastewater discharges from
point sources, such as publicly owned treatment works (POTWs). Another
commenter suggested that the rule allow PRPs the option of determining
and implementing more cost-effective methods of restoring lost
assimilative capacity rather than paying the damages calculated by the
models.
Response: The Department agrees that the method for restoring lost
assimilative capacity should be reasonably related to the actual
release and cost-effective. The Department believes that the
methodology included in the final type A models meets both these
standards. Biota are potentially exposed to the released substance
throughout an entire biological province; therefore, the Department
evaluated potential dredge sites on a province-wide basis. Within each
province, the Department focused on National Status and Trends (NST)
sites and International Joint Commission (IJC) areas of concern because
there are considerable data available on the sites and because they are
heavily contaminated. The higher the toxic mass per volume at a site
is, the cheaper is the cost of dredging sediment equal in toxicity to
the remainder of the released substance. Therefore, for each province,
the Department determined which NTS site or IJC area of concern had the
highest toxic mass per volume and used that site to develop
assimilative capacity restoration costs. See Section 13, Volume I of
the NRDAM/CME technical document, and Section 9.4, Volume I of the
NRDAM/GLE technical document.
Had the Department restricted dredging to areas closer to the site
of the release, the costs would likely have increased significantly,
because the levels of contamination in those areas would be lower than
at NST sites and IJC areas of concern. On the other hand, had the
Department considered NST sites and IJC areas of concern well beyond
the boundaries of the province in which the release occurred, the
dredging would be less clearly related to the actual release.
The Department considered using the cost of preventing discharges
from point sources, such as POTWs, as a possible basis for assimilative
capacity restoration costs. However, the Department was unable to
locate adequate data on point source discharges for toxic chemicals.
Commenters presented no additional information that would enable the
Department to develop assimilative capacity restoration costs based on
reducing point source discharges.
With regard to allowing PRPs to develop alternative methods of
restoring lost assimilative capacity, the objective of the type A
models is to provide a sum certain on an inexpensive, expedited basis.
Allowing PRPs to develop alternative restoration methods, providing
trustees with an appropriate opportunity to evaluate the feasibility
and adequacy of the PRPs' proposal, and giving the public a chance to
review the proposal could undermine this objective. Where the models
predict significant assimilative capacity restoration costs, PRPs who
believe that they could restore lost assimilative capacity in a more
cost-effective manner than that predicted by the type A models would
have the option of funding type B procedures or pursuing an appropriate
settlement with the trustees.
Comment: One commenter thought that loss of assimilative capacity
was a legitimate basis for recovery but stated that damages for the
loss should be characterized as compensable value rather than
restoration costs.
Response: The Department believes that the damages for lost
assimilative capacity are correctly categorized as restoration costs
rather than compensable value. Under the existing regulations,
compensable value is the economic value that the public loses until the
injured resources recover. See 43 CFR 11.83(c)(1). The type A models
calculate damages for lost assimilative capacity based not on economic
value lost to the public but rather the cost of restoring baseline
services.
Comment: One commenter noted that the proposed NRDAM/CME in some
cases predicts that more of the substance will remain in the
environment than was spilled in the first place.
Response: This result was caused by a coding error that the
Department has corrected in the final version of the NRDAM/CME.
Comment: Commenters noted that, contrary to assertions in the
August 8, 1994, and the December 8, 1994, notices of proposed
rulemaking, the models do compute habitat restoration costs and
assimilative capacity restoration costs for the same release.
Response: The models compute assimilative capacity restoration
costs for any toxic mass that remains in the environment either because
no habitat restoration action is taken or because habitat restoration
does not fully remove the toxic mass. The preamble and technical
documents have been clarified. See Section 5.4.4, Volume I of the
NRDAM/CME and NRDAM/GLE technical documents.
Comment: One commenter noted that there are now 43, not 42, IJC
areas of concern in the Great Lakes.
Response: At the time that the proposed NRDAM/GLE was being
developed, there were only 42 IJC areas of concern. As more IJC areas
of concern and NST sites are identified, the Department will consider
updating the models in future biennial reviews. However, it was not
feasible for the Department to revise the NRDAM/GLE to account for this
one additional site within the available time frame.
Comment: One commenter questioned the use of standardized sediment
LC50s
[[Page 20601]]
based solely on bulk sediment concentrations.
Response: The LC50s used in the models are for pore water
concentrations, not bulk sediment concentrations.
Comment: One commenter stated that the proposed NRDAM/GLE generated
inappropriately high assimilative capacity restoration costs for
releases of metals. The commenter thought these inappropriate costs
resulted from underestimating the rate at which metals attenuate in the
Niagara River and Lake Ontario. The commenter stated that metals fall
to the bottom, are buried, and pose no toxicity threat.
Response: As discussed in Section VII.G of this preamble, the
Department has eliminated all pure metals from the chemical database.
For metal compounds, the Department believes that the NRDAM/GLE
adequately accounts for attenuation. The model calculates the fate of
the released substance by partitioning the dissolved fraction from the
particulate fraction in both the water and the sediments. The LC50s
used in the model for assimilative capacity calculations are limited to
those for dissolved chemicals.
L. Restocking
Comment: Several commenters questioned the reasonableness of the
methodology for invoking and calculating restocking costs. A few
commenters thought that the proposed NRDAM/CME should not include
restocking costs for species, such as dolphins, polar bears, eagles,
and alligators, that have never been and are unlikely to be restocked
after a spill. These commenters stated that including restocking costs
for such species was particularly troubling in light of the weakness of
the model's underlying estimates of mortality for these species.
Further, the commenters thought the Department's restocking cost
estimates for captive breeding programs, in some cases, came from
unpublished sources and lacked real-world precedent. The commenters
noted, for example, that there was no reason to assume that osprey and
raptors cost the same to restock as eagles. Finally, another commenter
considered the salmon restocking costs included in the proposed NRDAM/
CME to be unrealistically high.
Response: The Department agrees that it is highly unlikely that
trustees would restock polar bears and, thus, has deleted polar bear
restocking costs from the NRDAM/CME. The Department has limited the
rest of the restocking component to those species that are actually
available from hatcheries or commercial suppliers and used the actual
market prices of acquiring such species. The Department believes that
this approach adequately ensures that the restoration costs in the
model are realistic and reasonable. The Department has added Table 12.7
to Volume I of the NRDAM/CME technical document to present the data
obtained from the International Animal Exchange, Inc.
Bald eagles and other raptors have been restored by hand-rearing
hatchlings in a number of States. The models use the same costs for all
raptors because the activities and effort required are similar for all
species. The eagle restocking cost may be considered a general figure
for all raptors.
The Department has revised the calculations for fish restocking
costs in the NRDAM/CME. The proposed NRDAM/CME used an average size for
all salmon species. The final model uses species-specific parameters
for salmon in each of the three applicable provinces. See Table 12.6,
Volume I of the NRDAM/CME technical document.
Comment: One commenter questioned the assumed source of restocked
animals, noting that simply moving animals from one location in the
wild to another would still leave the public with a net loss.
Response: The Department believes that translocation of animals in
the wild may, under some circumstances, be an appropriate restoration
action. However, for purposes of the type A procedures, the Department
chose to consider only restocking of captive-bred animals, the cost of
which is generally lower than the cost of translocation in the wild.
See Table 12.7, Volume I of the NRDAM/CME technical document.
Comment: One commenter thought that it would be more appropriate to
consider predator control than restocking for canvasback and redhead
ducks in the Great Lakes.
Response: After recovering damages through the use of a type A
procedure, trustees may well decide that the recoveries are better
spent on predator control rather than restocking. However, the
feasibility, effectiveness, and methods of predator control are highly
site-specific. The Department does not believe that adequate data are
currently available to include predator control among the list of
restoration actions evaluated by the models.
Comment: One of the independent technical reviewers thought the
restocking scenario described in the proposed NRDAM/CME technical
document would result in a net loss of fish and wildlife.
Response: The scenario does not result in a net loss of fish and
wildlife because the model calculates a loss and allows only one-to-one
replacement, with correction for restocking survival, of missing
individuals. The Department has clarified the technical document. See
Section 5.4.3, Volume I of the NRDAM/CME technical document.
Comment: One of the independent technical reviewers noted that the
proposed NRDAM/CME technical document stated that only fish that would
be caught are restocked in the model. The technical reviewer thought
that all fish killed should be restocked, not just those ultimately
caught.
Response: The models assume that all fish and shellfish killed are
restocked, if stocks are available. The technical document has been
clarified. See Section 5.4.3, Volume I of the NRDAM/CME technical
document.
Comment: One of the independent technical reviewers thought that
the models should grant habitat restoration priority over restocking.
Response: The models decide whether to invoke habitat restoration
independently from the decision whether to restock. Therefore,
prioritization is not necessary.
M. Consideration of Costs and Benefits of Active Restoration
Comment: Numerous commenters, including some of the independent
technical reviewers, criticized the models for failing to consider
whether the various active restoration alternatives were warranted in
light of the relationship between the benefits of those actions and the
costs of the alternatives. Some commenters offered examples where the
models computed restoration costs that were millions of dollars or
hundreds of times greater than estimated compensable values. Many
commenters thought that the models should incorporate a decision rule
to screen out restoration actions that would impose grossly
disproportionate costs.
Response: As it indicated in the March 25, 1994, type B rulemaking,
the Department believes that the relationship between costs and
benefits is an important factor in selecting an appropriate restoration
action. See 59 FR at 14271. The Department acknowledges that the
proposed rules and models did not explicitly address this factor. After
careful consideration, the Department has revised the models to perform
a cost-benefit analysis of habitat restoration and restocking actions.
If the relevant active habitat restoration alternative would reduce
[[Page 20602]]
compensable value or if restocking is possible, then the submodel
performs a cost-benefit test of these forms of active restoration. The
submodel compares the total costs of active habitat restoration and
restocking against the measured benefits of such restoration (i.e.,
compensable value assuming natural recovery minus compensable value
assuming active restoration). If the costs exceed ten times the
measured benefits, then the submodel assumes, for purposes of
generating a damage figure, that natural recovery, rather than active
restoration, will be used to reestablish baseline conditions. If the
costs do not exceed the measured benefits by ten times, then the
submodel assumes, for purposes of generating a damage figure, that
habitat restoration and restocking will be implemented.
The Department determined in the March 25, 1994, rulemaking that
although cost-benefit considerations are an important factor in
selecting an appropriate restoration action when a trustee uses type B
procedures, the exact determination of how to evaluate this factor
should be resolved on a case-by-case basis. Therefore, 43 CFR 11.82(d)
lists the relationship between costs and benefits as one of several
factors that trustees must evaluate before selecting a restoration
action when using type B procedures. The Department continues to
believe that this is the most appropriate approach in the type B
context. However, in the type A context, where a model, rather than the
trustees, determine the range and type of restoration actions on which
to base the damage claim, and where the intent is to minimize the level
of analysis that trustees must conduct, the Department believes it is
appropriate to impose a bright-line standard.
The Department has concluded that the evaluation of the costs and
benefits of active habitat restoration and restocking versus natural
recovery should focus on incremental costs and benefits. Therefore, the
models compare the total costs of active habitat restoration and
restocking against compensable value assuming natural recovery minus
compensable value assuming active restoration.
When determining what an appropriate cost-benefit ratio would be in
the type A context, the Department considered the dicta in Ohio v.
Interior suggesting three-to-one as a possible ratio. See 880 F.2d at
443-44, n. 7. However, the NRDAM/CME and NRDAM/GLE quantify only a very
narrow range of compensable values. Thus, the Department does not
believe that a three-to-one ratio is appropriate. Therefore, the
Department was left to make this policy determination without the
benefit of clear empirical standards or legal precedents. The
Department has selected a ratio of ten-to-one based on its sense of
fairness and reasonableness.
Although the models do impose a uniform standard, the Department
continues to believe that a truly ``correct'' cost-benefit ratio
depends on site-specific factors. The standard contained in today's
models is not intended to suggest that a similar ratio is appropriate
in a type B context but rather has been included in recognition of the
unique nature of the type A procedures. Even when trustees use type A
procedures, if the ratio is exceeded, they may nevertheless conclude
that compensable values assuming natural recovery as determined by the
models will not provide adequate funding for necessary restoration
actions. In such cases, trustees are free to calculate damages using
type B procedures.
Finally, the Department has chosen not to apply the cost-benefit
test to assimilative capacity restoration. The Department believes that
assimilative capacity does have an economic value. However, the
Department is unaware of any economic study that calculates the
consumer surplus or economic rent associated with assimilative
capacity. Accordingly, the Department has not included assimilative
capacity in the cost-benefit test since its inclusion does not affect
the calculation of compensable values.
N. Damages for Fishing and Hunting Losses
Comment: Some of the independent technical reviewers noted that
closures to recreational fishing represent a change in access rather
than in catch rate. These technical reviewers thought that random
utility models (RUMs) should be used to value both the changes in catch
rates and in access, noting that RUMs are designed to capture
substitution across sites.
Response: The Department acknowledges that recently evolved
techniques for resource valuation could potentially improve the
calculation of damages in the models. However, inclusion of such
techniques would require considerable additional work, including the
development of a RUM describing recreational choices across the broad
geographic regions covered by the models and a database containing the
parameters required as inputs to the RUM. The Department has concluded
that such additional work is not feasible at this time. The Department
may reconsider this issue in future biennial reviews of the models.
Comment: Commenters objected to the calculation of damages for lost
recreational fishing on the grounds that the Department had failed to
link the injury to a reduction in services by using trip values rather
than marginal (per fish) values. Other commenters, including some of
the independent technical reviewers, noted that all species are
assigned to a single mode of recreational fishing. They stated that
data are available on percentage caught by each mode, and recommended
these data be included in the models to weight the recreational fishing
values.
Response: Though not fully explained in the proposed NRDAM/CME and
NRDAM/GLE technical documents, the Department established the link
between the injury and a reduction in services by calculating average
trip values (dollars of trip value per kilogram of fish caught) and
then adjusting these values by applying ratios of average trip values
to marginal values (additional trip value per fish caught) that were
obtained from studies that have compared these values. The Department
has revised the technical documents. See Section 9.3.4, Volume I of the
NRDAM/CME technical document, and Section 6.3, Volume I of the NRDAM/
GLE technical document.
The Department acknowledges that additional data on percentage of
fish caught by different modes of fishing are becoming available.
However, due to the fact that the majority of species in a particular
area tend to be caught by a dominant mode of fishing and that there are
not always major differences between values in the various modes of
fishing, the Department does not believe that weighting recreational
fishing values using data on percentages caught by each fishing mode
would significantly improve the reliability of the final damage figure.
As additional data become available, the Department will reconsider
this issue in future biennial reviews.
Comment: One commenter noted that, in an attempt to maximize total
utility, anglers tend to reduce the number of fishing trips they take
as the marginal utility from fishing falls in response to a reduction
in the catch rate. This commenter argued that the models should,
therefore, account for reductions in participation in addition to
reductions in catch. The commenter suggested that the models estimate
reductions in participation for spills that exceed some given threshold
volume.
Response: The Department believes that, while participation in
fishing activities may be affected by moderate or large-scale spills,
small spills are
[[Page 20603]]
likely to affect primarily the quality of such activities.
Specifically, the Department believes that the principal effect of
small spills on recreational anglers is a reduction in catch rather
than a reduction in fishing trips. The commenter appears to agree with
this position by suggesting that the models account for reductions in
participation for spills over a given threshold size. However, where
participation is reduced, trustees may conduct supplemental type B
studies.
Comment: One commenter thought that the models inappropriately
assumed that species that lacked catch data had no recreational value.
Response: The Department recognizes that there may be species for
which catch data are not available that nevertheless have recreational
value. However, the only fish-related compensable value that the models
compute is for lost harvests. Without catch data, the models cannot
determine lost harvests and, thus, cannot compute compensable value. If
an injured fish species has values unrelated to harvest, then trustees
may conduct supplemental type B studies to capture those values.
Comment: A few commenters, including some of the independent
technical reviewers, thought that the lost recreational fishing and
hunting values used in the models were outdated.
Response: The Department has not updated the recreational fishing
and hunting values in the models. The Department will revisit this
issue during the next biennial review.
Comment: One of the independent technical reviewers questioned why
the hunting values included in the proposed models did not account for
the effects of changes in effort.
Response: The Department is not aware of any evidence that effort
changes in cases of minor spills.
Comment: Some of the independent technical reviewers recommended
that the Department include habitat equivalency analysis (HEA) in the
models.
Response: HEA is a method of determining damages for interim losses
that does not require the explicit calculation of the economic value
lost by the public. Instead, HEA bases damages on the cost of obtaining
or creating additional acreage that would provide the same habitat
services as that lost pending recovery of the injured resources. While
HEA has merit, the Department has elected not to pursue its inclusion
in the type A models at this time. The use of HEA to compute
compensation for interim losses is an issue that extends beyond this
rulemaking. HEA is currently not listed as one of the type B
methodologies for calculating compensable value, although the
regulations do allow use of additional unlisted methodologies if they
meet certain criteria. The Department is conducting a biennial review
of the type B methodologies and will be examining the use of HEA in
that context. The Department believes that inclusion of HEA in a type A
procedure should await the resolution of the biennial review of the
type B procedures. Also, the availability and cost of obtaining habitat
equivalent to that injured is highly site-specific. The Department
currently does not have adequate data to incorporate HEA into the
models.
Comment: Commenters objected to the method used to value lost
subsistence fishing. The commenters stated that the proposed NRDAM/CME
does not clearly define subsistence anglers and inappropriately assumes
that the full value of the subsistence resource is lost without
considering substitutes. In addition, the commenters argued that the
proposed NRDAM/CME measures subsistence loss by the gross cost of an
alternate food supply (rather than considering net subsistence losses)
and adjusts the costs to account for supposed differences in protein
between store-bought and wild-harvested fish based on a study of birds,
not fish. Several commenters thought that inclusion of damages for lost
subsistence fishing was legally impermissible. On the other hand, one
of the independent technical reviewers noted that subsistence hunting,
not only subsistence fishing, is significant in Alaska and should be
included in the model.
Response: The Department acknowledges that the proposed NRDAM/CME
failed to clearly define subsistence anglers, failed to consider
substitutes, and inappropriately measured subsistence loss as the gross
cost of an alternate food supply. All of these shortcoming raise
significant questions about the reliability of the model's calculation
of compensable value for subsistence loss. Data are unavailable at this
time to correct these problems. Therefore, the Department has decided
to delete subsistence losses from the NRDAM/CME. Because the Department
has decided to delete subsistence losses for technical reasons, it is
not necessary for the Department to address the legal permissibility of
trustees recovering natural resource damages for subsistence losses.
Comment: Some commenters, including some of the independent
technical reviewers, objected to the inclusion in the models of damages
for loss of commercially harvested fish and furbearers. These
commenters rejected the explanation that inclusion of damages for such
losses was designed to compensate the public for lost economic rent.
The commenters noted that the government does not in fact charge rent
for commercial harvests and concluded that the public, therefore, does
not incur any loss of economic rent. Commenters argued that the models
were not capturing the public's lost economic rent but rather were
inappropriately calculating the commercial users' private losses, which
are not recoverable as natural resource damages under CERCLA. The
commenters cited Satsky v. Paramount Communications, Inc. for the
proposition that trustees may only bring claims ``for injuries to
interests which all citizens hold in common.'' 7 F.3d 1464, 1470 (10th
Cir. 1993). The commenters argued that private economic interests, such
as commercial losses, are not interests that all citizens hold in
common. Citing various floor debates on the Superfund Amendments and
Reauthorization Act, the commenters argued that Congress intended the
double recovery prohibition to bar natural resource damage claims for
losses that are subject to private recovery. Commenters also noted that
if damages for such losses are retained in the models, then serious
double recovery problems arise because commercial users will assert
overlapping claims.
Response: The type A models include damages for lost commercial
harvests in order to capture lost economic rent. The issue of whether
lost economic rent is a legally permissible category of damages was
decided and resolved by the Department in 1986 and is beyond the scope
of this rulemaking. The only issues that the Department is considering
in this rulemaking are: whether economic rent is, in fact, generated by
commercially harvested species; if so, whether the type A models
correctly calculate any loss of that economic rent resulting from
releases covered by the models; and whether the rule adequately
protects against double recovery.
In the preamble to the original type B rule, economic rent is
defined as ``the excess of total earnings of a producer of a good or
service over the payment required to induce that producer to supply the
same quantity currently being supplied.'' 51 FR at 27691. In other
words, economic rent for commercially harvested resources is the fee
that commercial harvesters could pay to the government and still find
harvesting economically feasible.
[[Page 20604]]
Commercial harvesters invest capital in equipment (e.g., gear,
traps, and boats). This capital could have been liquidated and put to
another use, such as investment in a bank. Therefore, commercial
harvesting is worthwhile only if the harvester receives a price for the
harvest that both covers labor and fuel costs as well as provides a
reasonable return on capital. To the extent that the harvester receives
a price that exceeds costs plus a reasonable return on capital, the
government could charge a fee and the harvester would continue to
engage in harvesting. Thus economic rent is generated.
The Department believes that economic rent is being generated by
commercially harvested fish and wildlife. The one situation in which
economic rent is clearly eliminated is when natural resources are
exploited to the point that all profits, including economic rent, have
been competed away. This situation arises when commercial harvests are
not regulated and, thus, harvesters have free and unlimited access.
Economic theory predicts that in such cases harvesters will ignore both
the value of the resources for future use as well as the costs of
crowding. Fisher, A.C., Resource and Environmental Economics, New York:
Cambridge Univ. Press, 1981.
One way of preventing this situation and generating economic rent,
is to charge fees. Currently, resource managers do not generally charge
fees except to cover administrative costs of processing permits. See,
e.g., Magnuson Act, 16 U.S.C. 1854(d). However, resource managers do
regulate commercial harvesting through limits on the gear that may be
used, limits on the length of the harvest season, catch restrictions,
tradeable permits for limited entry or individual catch quotas, and
other programs. For example, NMFS has recently established a pilot
program to buy back fishing permits to restore stocks of cod, haddock,
and flounder in the Atlantic Ocean. These programs are designed to
protect the resources for future use. The Department believes that
these programs do in fact curb overexploitation of stocks and thus
prevent profits (including economic rent) from being driven down to
zero. For example, Alaska salmon and herring fisheries are regulated
with tradeable entry permits. The aggregate value in 1988 of all
permits in the salmon, herring, and herring roe fisheries was $925
million.
Market prices are largely set on a national or international basis.
Therefore, in the case of minor spills, it is unlikely that market
prices will change. Also, total biomass effects should be limited for
minor spills, thus it is unlikely that there will be long-term effects
on the catchability of resources. Finally, the Department believes it
is reasonable to assume for minor spills that the same number of
commercial harvesters will continue to expend the same amount of
economic resources to conduct harvests and that the markets for the
necessary labor and capital inputs to commercial fishing are
competitive. Therefore, the type A models compute damages based on the
harvesters' forgone revenue, which is the market price the harvesters
could have received at the time the resources would have been
harvested. The Department believes that this figure will capture lost
economic rent.
With regard to potential double recovery, the Department
acknowledges that in some cases commercial harvesters may bring private
causes of action that include economic rent. As noted above, resource
managers generally do not charge fees to capture economic rent;
therefore, when commercial harvesters sell their harvests they obtain a
profit that includes economic rent. Under OPA, commercial harvesters
have a specific private cause of action. CERCLA does not grant
commercial harvesters a private cause of action. However, some
commercial harvesters, such as commercial fishermen in coastal waters,
probably do have private causes of action for hazardous substance-
related injuries under State law or common law. When commercial
harvesters bring a claim for lost profit it will most likely include
economic rent. Therefore, if trustees also bring a claim for lost
economic rent there will be a potential double recovery problem.
The governmental regulation of commercial fish and wildlife harvest
implies a public concern that these resources be managed in order to
sustain their contribution to economic productivity. The public's value
for commercial harvesting is further reflected in express policy
statements that the government is committed to promoting resources'
contribution to economic productivity. See, e.g., Fish and Wildlife Act
of 1956, 16 U.S.C. 742a. Therefore, when there are reductions of
commercial harvests, the public suffers a loss.
If commercial harvesters can and do bring a private cause of
action, then the harvesters may be fully compensated and the public's
interest in promoting commercial harvests may be satisfied. If
harvesters are compensated for full social losses, then trustees should
not recover separate damages for lost economic rent. However, in some
cases commercial harvesters may not have a private cause of action or
their recoveries may be subject to geographic or temporal limitations.
For example, commercial harvesters may be limited to recovering damages
incurred during the period of formal closure, or incurred in the area
closed or in the area in which fish were directly exposed to the
released substance. See, e.g., Golnoy Barge Co. v. M/T Shinoussa, Civ.
No. H-90-2414, 1993 WL 735038 (S.D. Tex. Aug. 17, 1993). In other
cases, commercial harvesters may choose not to bring private causes of
action. If commercial harvesters do not obtain direct full
compensation, then the public's interest is not satisfied and the
trustees may bring a claim for lost economic rent.
For minor releases where damages may be relatively low and data
establishing injury and causation may be difficult to obtain, the
Department believes that it is unlikely that commercial harvesters will
go to the expense and trouble to pursue a legal claim. Therefore, the
Department has retained the calculation of lost economic rent in the
models. However, to prevent double recovery, Sec. 11.44(d) provides
that if the trustee is aware of reliable evidence that a private party
has recovered damages for commercial harvests lost as a result of the
release, the trustee must eliminate from his or her claim any damages
for such lost harvest that are included in the lost economic rent
calculated by the model. When the Assessment Plan is made available for
public review and comment, PRPs and commercial harvesters will have an
opportunity to alert trustees to any private actions for lost
commercial harvests.
Comment: A few commenters, including some of the independent
technical reviewers, thought that the prices used to calculate damages
for lost commercial harvests were invalid because they did not account
for seasonal and regional variations. Commenters also stated that the
data used were from 1984 through 1988 and should be updated.
Response: The models account for seasonal and regional differences
in commercial prices to the extent possible given available data. In
the Great Lakes, pelt prices were available on a State-by-State basis.
The Department used these prices to develop average prices for each of
the Great Lakes. In the coastal areas, pelt prices were available only
on a regional basis.
At the time the Department performed the bulk of the work on the
commercial fisheries component, 1984 through 1988
[[Page 20605]]
was the most recent 5-year period for which final statistics were
available for the offshore zone in which the catch occurred (rather
than ports where harvest was taken). The Department decided to average
the figures over a five-year period to eliminate short-term
variability. The Department believes that the commercial fishing
statistics currently incorporated in the models are reliable. However,
as additional data become available, the Department will consider
updating the models during future biennial reviews.
O. Damages for Lost Wildlife Viewing
Comment: One commenter supported the proposed approach for
calculating damages for lost wildlife viewing as reliable and
reasonable. However, most commenters criticized the approach.
Commenters noted that the Department itself appeared to have serious
reservations about the approach. A number of commenters thought that
the approach would consistently underestimate damages; others thought
that damages would be overestimated. Some commenters stated that the
Department's methodology for calculating wildlife viewing losses was so
unreliable that such losses should be deleted from the models.
Several commenters thought it was incorrect to assume that a given
reduction in wildlife population would produce a comparable reduction
in the wildlife seen. Thus, the commenters concluded that the
Department was unable to link the injury to a reduction in services.
The commenters further stated that the calculation used inappropriate
assumptions and studies to calculate the value of a wildlife viewing
trip on a per-animal basis.
A few commenters thought the values appear arbitrary since they
vary so widely by province. One commenter suggested that the wide
variations in province values be eliminated either through the use of
uniform average values or through the deletion of extreme values. On
the other hand, some commenters thought the models did not adequately
account for the variable characteristics of affected sites.
Response: In the notices of proposed rulemaking, the Department
solicited comment on a number of aspects of the proposed methodology
for determining damages for lost wildlife viewing. 59 FR at 40328-29
and 63311-12. Based on its careful consideration of the comments it
received, as well as its own reexamination of the models, the
Department has modified the methodology and believes that it is sound.
Wildlife viewing is one of the most significant direct use services
that wildlife provide to humans. Inclusion of lost wildlife viewing
damages in the type A models necessitated that the Department draw
conclusions about the relationship between changes in wildlife
populations and changes in the perceptions of wildlife by viewing
participants. There is no known empirical research that indicates how
participants perceive changes in wildlife populations. The proposed
models assumed that a given percentage reduction in wildlife
populations results in the same percentage reduction in the wildlife
seen by participants.
The Department has determined that percentage reductions in
wildlife viewing perception could be lower or higher than the
percentage reduction in wildlife populations. For example, a wildlife
population may consist of 100 animals yet the public may only perceive,
on average, 50 of those animals. If a spill were to kill 50 percent of
the population, then the public's perception of the population would be
reduced by 20 percent if the 50 killed animals included only 10 of the
animals the public normally sees. However, if the 50 killed individuals
included 30 of the animals the public normally sees, then the change in
perception would be 60 percent. Therefore, in the absence of empirical
evidence on the subject, the Department has decided to assume that
percentage reductions in wildlife viewing perception are equal to
percentage reductions in wildlife populations.
When determining how a given reduction in the number of animals
viewed affects the value the public derives from viewing, the
Department relied on the only available studies that identified a
marginal value for wildlife viewing (Loomis et al. (1989) and Cooper
and Loomis (1991)). The Department believes that these studies are
reliable. The Department acknowledges that one of the studies dealt
with trips that were not taken primarily for the purpose of wildlife
viewing. However, contrary to the assertions of some commenters, the
studies specifically examined how changes in the number of animals seen
affected the value of the trips. Therefore, the wildlife viewing values
used in the type A models do not reflect any other non-viewing aspects
of recreational trips.
The biological effects submodel quantifies wildlife mortality in
terms of the number of animals killed. Therefore, the Department needed
to develop per-animal viewing values. The Department developed such
per-animal values by using Loomis et al. (1989) and Cooper and Loomis
(1991) to establish the relationship between changes in wildlife seen
and changes in value and by using FWS' National Survey of Fishing,
Hunting, and Wildlife-Associated Recreation to establish total viewing
values for particular species. The Department first estimated the total
value of wildlife viewing at ocean- or lake-side for an entire State.
Then the Department allocated this total value among species and
wildlife individuals within species that reside along the State's
ocean- or lake-side. For further discussion of this methodology, see
Section 8.4, Volume I of the NRDAM/CME technical document, and Section
6.4.1, Volume I of the NRDAM/GLE technical document.
The Department recognizes that the per-animal viewing values
assigned by the models for some species vary widely by province.
However, the Department has concluded that these variances are not
errors that need to be corrected but, rather, reflect actual and
relevant regional differences. The value that the public derives from
viewing a particular animal in a particular area depends on how many
people engage in wildlife viewing in that area and how many animals of
that type there are to view in that area. Therefore, the models
appropriately contain relatively low per-animal values for species that
are abundant and for areas with low participation in wildlife viewing.
Conversely, the models contain higher per-animal values for less
abundant species and for areas with higher wildlife viewing
participation.
Not only are the regional variances in per-animal values
appropriate, but also, such variances do not lead to unrealistic
differences in the damage figures calculated by the models for
particular releases. When determining damages for a particular release,
the models calculate damages for lost wildlife viewing based on the
probability that the release will kill wildlife. The probability that
an animal will come into contact with, and be killed by, a release is
directly related to the wildlife abundance in the area affected by the
release. In areas with low wildlife abundance, minor releases would
have a low probability of killing wildlife. Therefore, although the
per-animal values in these areas may be significantly higher than in
areas of high abundance, the actual damage figure may not be.
Comment: Some commenters contended that the methodology for
calculating viewing damages relies on assumptions that overstate the
number of wildlife viewing trips to affected
[[Page 20606]]
areas. Some commenters also claimed that the Department had used
unreliable survey data to derive per-animal viewing values. Several
commenters thought the models used outdated data.
Response: The Department has revised the wildlife viewing damage
component of the models to reflect more recent data. When developing
the proposed models, the Department used FWS' 1985 National Survey of
Fishing, Hunting, and Wildlife-Associated Recreation. This survey was
updated in 1991. The Department has revised the final models to reflect
this update. FWS has conducted wildlife-related recreation surveys
roughly every 5 years since 1955. The results of these surveys are
widely disseminated and are relied upon both by governments and by
private individuals for a range of purposes. The Department believes it
is appropriate to use these surveys to determine participation rates
for wildlife viewing as well as the value of wildlife viewing trips.
Comment: A few commenters, including some of the independent
technical reviewers, suggested that the proposed models be expanded to
account for viewing losses incurred by individuals other than residents
of coastal counties. One commenter stated that in Michigan, regional
populations are not concentrated either in lake shore counties or at
substantial distances inland and suggested that the NRDAM/GLE
incorporate lost wildlife viewing on a two-county deep basis. One of
the independent technical reviewers noted that the absence of damages
for lost viewing by out-of-State tourists was a significant problem in
Alaska.
Response: The Department has revised the NRDAM/CME to account for
impacts on the populations of coastal States rather than just coastal
counties. See Section 8.4, Volume I of the NRDAM/CME technical
document. Wildlife viewing damage calculations in the NRDAM/CME rely on
State-level estimates of participation rates for wildlife viewing at
the ocean. The Department believes that it is more appropriate to apply
these State-level participation rates to State populations than to
county populations in the NRDAM/CME.
The Department has not applied the participation rates in the final
NRDAM/GLE to the entire State population due to the existence of
alternative recreation sites in other parts of the Great Lakes States.
Instead, the Department has generally limited the participation rate to
the populations of lake-side counties in the NRDAM/GLE. In a few
instances involving very narrow counties, the Department has gone
beyond the lake-side county to include residents of areas within an
average one-way trip distance from the provinces where injury occurred.
Statewide average participation rates were used in the NRDAM/GLE due to
a lack of reliable data at the county level.
The Department recognizes that out-of State visitors may experience
viewing losses; however, adequate data are not currently available to
incorporate such losses into models. As more data become available, the
Department may reconsider this issue in future biennial reviews.
Meanwhile, the rule allows trustees to conduct supplemental type B
studies to assess damages for such losses.
Comment: Some commenters, including a few of the independent
technical reviewers, suggested including viewing losses incurred by
individuals under the age of 18. One commenter noted that the
Department had relied on wildlife participation survey data supplied by
individuals 16 years or older but used population data that only
included individuals 18 years or older.
Response: The Department has revised the models to include viewing
losses experienced by individuals 16 years of age and older.
Comment: Some commenters, including a few of the independent
technical reviewers, thought that spills could affect not only the
quality of the wildlife viewing trips but also the number of trips
taken. These commenters thought the models should account for this
effect.
Response: Adequate data are not currently available to incorporate
damages for lost participation in wildlife viewing. Further, while
participation in wildlife viewing may be affected by moderate or large-
scale releases, minor releases, for which the type A models are
designed, are likely to affect primarily the quality of such activity.
As more data become available, the Department may reconsider this issue
in future biennial reviews.
Comment: A few commenters thought the models did not account for
all species that had viewing value.
Response: The Department believes that the species addressed by the
models account for the vast majority of viewing values.
Comment: One commenter noted that the deaths of migratory species
could result in viewing losses in locations beyond the spill site and
thought that the models should account for such losses.
Response: The Department acknowledges that releases can result in
off-site viewing losses; however, adequate data are not currently
available to incorporate such losses into models. As more data become
available, the Department may reconsider this issue in future biennial
reviews. Meanwhile, the rule allows trustees to conduct supplemental
type B studies to assess damages for such losses.
Comment: Some commenters asked whether the models considered the
effect of closures on wildlife viewing losses.
Response: The models do not address the effect of closures on
wildlife viewing. The models only compute mortality-related wildlife
viewing losses.
P. Damages for Beach and Boating Closures
Comment: The Department received several comments on the proposed
NRDAM/CME's methodology for calculating damages for beach closures. A
few commenters thought that the Department had made unsubstantiated and
questionable assumptions in estimating beach visitation. Some
commenters, including one of the independent technical reviewers,
claimed that the Department had failed to account adequately for
differences in visitations and values associated with different beach
types and different seasons. One independent technical reviewer stated
that beach visitation is highly variable within provinces, and that
more localized visitation data could be mapped in a GIS from survey
data.
Response: The Department could not locate adequate data to develop
separate per-person values for visiting Federal beaches versus non-
Federal beaches. However, the Department believes the NRDAM/CME
adequately accounts for differences between the two types of beaches
through the use of different visitation figures. A sample of monthly
visitation data was taken from representative beaches in each economic
province. This sampling was designed to account for differences in
visitation that exist between economic provinces. The Department also
collected separate visitation data for National Seashores and other
public beaches. The user is required to enter the type of beach
affected (National Seashore or other public beach) as an input to the
NRDAM/CME. Further, before the compensable value submodel applies an
average beach use value to the estimated loss in beach use, the
submodel adjusts the value to account for seasonal variations. The
NRDAM/CME uses seasonal variations in the duration of beach visits as a
reasonable approximation of the seasonal variations in beach use
values. Data on the duration of beach visits were available
[[Page 20607]]
for National Seashores, but not for other public beaches. Therefore,
the Department applied the National Seashore duration data to other
public beaches. For further discussion, see Section 10, Volume I of the
NRDAM/CME technical document.
Comment: Several commenters raised concerns about valuation of
beach closures in the proposed NRDAM/GLE. Some commenters criticized
the use of studies of saltwater beaches to value Great Lakes beach use.
A few commenters stated that the studies the Department used to value
Great Lakes beach use were outdated. Other commenters complained that
the NRDAM/GLE used the same values for Federal and non-Federal beaches.
Response: In the NRDAM/GLE, the per-day value of beach recreation
is based on the average of several values reported for general beach
recreation. The Department acknowledges that basing beach-related
recreation values on studies carried out exclusively at Great Lakes
locations would have been ideal. However, no such studies were
available. Intuitively, beach recreation on the Great Lakes combines
some aspects of seashore beach recreation with some aspects of
freshwater beach recreation. Therefore, the Department used a range of
studies, including both studies of saltwater beach recreation as well
as studies of freshwater beach recreation.
The Department believes that the data used are still the best
available. If additional data on the value of beach-related recreation
in the Great Lakes become available, the Department will consider
incorporating such data in the NRDAM/GLE during future biennial
reviews.
Data limitations required that the Department make assumptions
concerning the distribution of monthly trips to non-Federal lake
shores. The NRDAM/GLE assumes that the distribution is identical to the
distribution of monthly trips to National Lake shores. See Section
6.4.2, Volume I of the NRDAM/GLE technical document.
The Department could not locate adequate data to develop separate
per-person values for visiting Federal beaches versus non-Federal
beaches. However, the Department believes the NRDAM/GLE adequately
accounts for differences between the two types of beaches because the
per-person values translate into different per-meter values for Federal
and non-Federal beaches.
Comment: Some of the independent technical reviewers were confused
by the discussion in the proposed technical documents on consideration
of substitutes when valuing beaches. They recommended that values from
appropriate studies be selected based on an understanding of the
welfare economics of substitutes. Specifically, they expressed concern
over the Department's use of studies of loss of beach use over large
regions. The technical reviewers thought that such studies would not
account for individuals' ability to substitute one beach for another
within a given region and, thus, would not correctly capture the value
of particular beaches.
Response: The Department did use studies that account for the
effect of substitution. See Section 10.3.2, Volume I of the NRDAM/CME
technical document.
Comment: One of the independent technical reviewers suggested that
losses on private beaches should be included.
Response: CERCLA authorizes trustees to pursue claims only for
injuries to public resources, namely those resources ``belonging to,
managed by, held in trust by, appertaining to or otherwise controlled
by'' the United States, a State, or an Indian tribe. CERCLA sec.
101(16). Private beaches will generally not constitute public
resources. Therefore, the rule only allows trustees to use the type A
models for public beaches.
Comment: One of the independent technical reviewers stated that the
NRDAM/CME should be modified to allow for the recovery of damages for
lost use of rocky shoreline.
Response: The Department was unable to identify sufficient data on
the relative value of recreation on different shoreline types in
coastal and marine environments to permit distinctions between rocky
and sandy shorelines. Therefore, the models compute damages for lost
use of all types of closed Federal or State beaches; however, the
models assign the same values regardless of habitat type. The
Department believes that this approach is reasonable in light of the
geographic breadth of the studies used to develop the beach values in
the models. Further, although the August 1994 proposed rule required
trustees who used the NRDAM/GLE to specify whether a closed beach was
rocky or sandy, the model itself did not assign different values based
on that designation. Therefore, the Department has revised the final
rule to remove the requirement.
Comment: Several commenters thought the models used unreliable
boating area coefficients that were likely biased upward. The
commenters complained about the use of freshwater boating studies to
determine a boating value for coastal and marine waters in the proposed
NRDAM/CME. The commenters stated that marine boating is different from
freshwater boating. Some commenters, including some of the independent
technical reviewers, thought that the coastal regions of the United
States were so heterogenous that applying one boating value to the
entire coastline of the United States was not appropriate.
Further, the commenters stated that the proposed NRDAM/GLE
inappropriately assumed that all boat trips were evenly distributed
along the Great Lakes shoreline, which would result in an overestimate
of damages. These commenters also thought the studies used to derive
boating value in the NRDAM/GLE were unpublished and outdated, and
inappropriate for the transfer of values.
Response: The Department was unable to establish the similarity of
marine boating to freshwater boating for the NRDAM/CME. Therefore, the
Department has eliminated the calculation of lost boating values from
the NRDAM/CME.
As to the NRDAM/GLE, the density of recreational boating is higher
near ports. Thus, due to the greater likelihood of spills occurring
near port facilities, the Department believes the even allocation of
boating trips used in the model could tend to underestimate the number
of boating trips that would be affected by a small spill rather than
overestimate the value.
The Department does not agree that the models calculate only
upwardly biased boating damages. In the NRDAM/GLE, lost trips are
estimated using a formula that distributes the estimated number of
trips across the total area of water covered by the near shore
forecast. In some areas this may result in underestimates of the number
of affected boating trips. For example, areas near major ports or
marina facilities are likely to have a higher density of boating trips
than is assumed in the NRDAM/GLE. Nevertheless, the Department believes
that in those areas when type B procedures cannot be performed at a
reasonable cost, trustees should have the option of using the NRDAM/
GLE.
Q. Judicial Review and the Rebuttable Presumption
Comment: Some commenters supported proposed Sec. 11.91(c)(2), and
the Department's related statements regarding which elements of a type
A damage assessment can be challenged following application of the
NRDAM/CME or NRDAM/GLE in a specific case, and which aspects of the
rule (which
[[Page 20608]]
incorporates the models) must be challenged within 90 days of
promulgation, as provided by section 113(a) of CERCLA. Proposed
Sec. 11.91(c)(2) states that judicial review of a type A damage
assessment shall be limited to the trustee's decision to use the type A
procedure and the incident-specific data supplied by the trustee. It
further states that the decision to use the type A procedure and the
incident-specific data collected by the trustee receive CERCLA's
rebuttable presumption. The commenters supporting this proposed
provision suggested that it would reduce the potential for litigation
and attendant delays to restoration, although they conditioned their
support on how the Department responded to their other comments.
Numerous other commenters strongly objected to proposed
Sec. 11.91(c)(2), as beyond the Department's authority and as contrary
to the two provisions in CERCLA interpreted and applied in proposed
Sec. 11.91(c)(2). These commenters asserted that proposed
Sec. 11.91(c)(2) is outside of the rulemaking authority provided by
section 301(c)(1) of CERCLA, and therefore beyond the Department's
legal authority. These commenters stated that while the Department has
authority to promulgate regulations for assessments, it does not have
authority to prescribe what effect those assessments will have in
future judicial proceedings.
These commenters also asserted that the Department's proposed rule
language that judicial review of a type A assessment in a specific case
would be limited to the trustee's decision to use the type A procedure
and the incident-specific data supplied by the trustee is contrary to
sections 113 and 107(f)(2)(C) of CERCLA and the Administrative
Procedure Act (5 U.S.C. 551 et seq.). These commenters stated that
because CERCLA provides a rebuttable presumption to assessments
performed in accordance with the regulations, CERCLA allows a PRP to
introduce any relevant evidence that may rebut the presumption. In the
view of these commenters, proposed Sec. 11.91(c)(2) would deny PRPs any
meaningful opportunity to rebut the rebuttable presumption, effectively
rendering the presumption irrebuttable. These commenters interpreted
section 113(a) of CERCLA as only barring future judicial review of
whether the regulations are valid and meet statutory requirements.
Section 113(a) does not, according to these commenters, preclude
judicial consideration of all relevant evidence in an assessment not
performed at the time the regulations are reviewed--e.g., evidence in a
particular case that the computer model grossly overstates the number
of affected fish and wildlife. Some commenters suggested that
application of proposed Sec. 11.91(c)(2) would raise constitutional due
process questions.
Finally, some of these commenters objected to the provisions in
proposed Sec. 11.91(c)(2) that the rebuttable presumption applies to
the trustee's decision to use the type A procedure and the data inputs.
These commenters stated that CERCLA's rebuttable presumption is granted
only to the final results of an assessment, not to intermediate steps
such as the decision to use the type A procedures and the data input
selections. These commenters also asserted that the Department had
provided no criteria for ensuring the accuracy and reliability of site-
specific data inputs, and that absent such regulatory criteria, the
inputs would not be entitled to the rebuttable presumption. The
commenters cited the absence of a rebuttable presumption for the
statement of trusteeship as an example where the Department concluded
that the absence of guidance resulted in the absence of a rebuttable
presumption.
Response: The Department has given this issue careful
consideration, and decided not to include proposed Sec. 11.91(c)(2) in
today's final rule. Whether or not a court ultimately would uphold the
authority of the Department to promulgate proposed Sec. 11.91(c)(2),
and the interpretation of CERCLA reflected in it, the Department has
concluded that there is sufficient uncertainty about the precise effect
of sections 107(f)(2)(C) and 113(a) of CERCLA, as applied in a specific
case, to warrant leaving proposed Sec. 11.91(c)(2) out of the rule at
this time.
The Department recognizes that there are numerous scenarios giving
rise to natural resource damage claims. Whether or not proposed
Sec. 11.91(c)(2) as applied would be overly broad could depend on the
specific circumstances of a given case. Aside from whether the
commenters objecting to this provision are legally correct, the
questions raised have convinced the Department that this issue is best
addressed outside the rulemaking context, at least until additional
experience has been gained through case-specific application of these
simplified procedures. Therefore, the Department has concluded for now
that the precise delineation of CERCLA's preclusive review and
rebuttable presumption provisions to type A damage assessments is best
left to specific cases. As a result, the Department need not address
whether it has the legal authority under section 301(c)(2) to
promulgate proposed Sec. 11.91(c)(2), nor whether that section
accurately interprets CERCLA.
The Department does note that some of the comments interpreting
CERCLA's rebuttable presumption provision appear largely to read
CERCLA's preclusive review provision out of the statute. Undoubtedly,
Congress intended that PRPs have a meaningful opportunity to rebut
specific aspects of a trustee's case, but not if it is a ``matter with
respect to which review could have been obtained'' in a challenge to
the regulations. CERCLA sec. 113(a). In the case of the type A rules,
the validity of the regulations themselves is closely related to the
content and workings of the incorporated computer models. The
Department believes that section 113(a) of CERCLA requires that
challenges to aspects of the rule that are clearly discernible from the
rule language, the models, the incorporated technical documentation,
and this Federal Register notice be brought within 90 days after
promulgation. Sections 107(f)(2)(A) and 113(a) of CERCLA should be read
in harmony with one another.
Also, contrary to the view of some commenters, the statutory
language of CERCLA does not limit the effect of the rebuttable
presumption to the ``final results'' of an assessment. Rather, section
107(f)(2)(C) of CERCLA provides that ``[a]ny determination or
assessment of damages * * * made * * * in accordance with the
regulations * * * shall have the force and effect of a rebuttable
presumption.'' Although the Department has decided not to promulgate
regulatory language delineating the scope of the rebuttable
presumption, the statute appears to be worded more broadly than was
recognized by these commenters. Furthermore, the rule does provide
procedures requiring trustees to include data inputs in the Assessment
Plan, which is subject to public review and comment. As such, the rule
does contain procedural criteria to ensure the accuracy and reliability
of data inputs through a public review and comment process. The
commenters also failed to recognize a primary reason for the Department
declining to afford the rebuttable presumption to the statement of
trusteeship. Unlike a statement of trusteeship, which is in essence a
legally-founded assertion, data inputs are factual in nature and can be
checked, reviewed, and verified through the public comment process.
[[Page 20609]]
National Environmental Policy Act, Regulatory Flexibility Act,
Paperwork Reduction Act, and Executive Orders 12866, 12630, 12778, and
12612
The Department has determined that this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. Therefore, the Department has not prepared any further
analysis pursuant to section 102(2)(C) of the National Environmental
Policy Act (43 U.S.C. 4332(2)(C)).
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule provides
technical procedural guidance for the assessment of damages to natural
resources. It does not directly impose any additional cost. As the rule
applies to natural resource trustees, it is not expected to have an
effect on a substantial number of small entities.
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
OMB has reviewed this rule under Executive Order 12866. This rule
does not have takings implications under Executive Order 12630. The
Department has certified to OMB that this rule meets the applicable
standards provided in Sections 2(a) and 2(b)(2) of Executive Order
12778. This rule does not have federalism implications under Executive
Order 12612.
List of Subjects in 43 CFR Part 11
Coastal zone, Environmental protection, Fish, Hazardous substances,
Incorporation by reference, Indian lands, Marine resources, National
forests, National parks, Natural resources, Public lands, Recreation
areas, Sea shores, Wildlife, Wildlife refuges.
For the reasons set out in the preamble, Title 43, Subtitle A of
the Code of Federal Regulations is amended as follows:
PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS
1. The authority citation for Part 11 continues to read as follows:
Authority: 42 U.S.C. 9651(c), as amended.
Subpart A--Introduction
2. Section 11.15 is amended by revising the heading and paragraph
(a)(1) to read as follows:
Sec. 11.15 What damages may a trustee recover?
(a) * * *
(1) Damages as determined in accordance with this part and
calculated based on injuries occurring from the onset of the release
through the recovery period, less any mitigation of those injuries by
response actions taken or anticipated, plus any increase in injuries
that are reasonably unavoidable as a result of response actions taken
or anticipated;
* * * * *
3. Section 11.18 is amended by revising paragraph (a)(4) and adding
a new paragraph (a)(5) to read as follows:
Sec. 11.18 Incorporation by reference.
(a) * * *
(4) The CERCLA Type A Natural Resource Damage Assessment Model for
Coastal and Marine Environments, Technical Documentation, Volumes I-VI,
dated April 1996, prepared for the U.S. Department of the Interior by
Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler Bailly
Consulting, Inc. (NRDAM/CME technical document). Interested parties may
obtain a copy of this document from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161; PB96-501788; ph:
(703) 487-4650. Sections 11.34 (a) (b) and (e), 11.35(a), 11.36(b),
11.40(a), and 11.42(a), and Appendix II refer to this document.
(5) The CERCLA Type A Natural Resource Damage Assessment Model for
Great Lakes Environments, Technical Documentation, Volumes I-IV, dated
April 1996, prepared for the U.S. Department of the Interior by Applied
Science Associates, Inc., and Hagler Bailly Consulting, Inc. (NRDAM/GLE
technical document). Interested parties may obtain a copy of this
document from the National Technical Information Service, 5285 Port
Royal Road, Springfield, VA 22161; PB96-501770; ph: (703) 487-4650.
Sections 11.34 (a) (b) and (e), 11.35(a), 11.36(b), 11.40(a), and
11.42(a), and Appendix III refer to this document.
* * * * *
4. Section 11.19 is removed and reserved.
Subpart C--Assessment Plan Phase
5. Section 11.30 is amended by revising the heading and paragraphs
(a) and (c)(1)(vi) to read as follows:
Sec. 11.30 What does the authorized official do if an assessment is
warranted?
(a) If the authorized official determines during the Preassessment
Phase that an assessment is warranted, the authorized official must
develop a plan for the assessment of natural resource damages.
* * * * *
(c) * * *
(1) * * *
(vi) Any other Assessment Plan costs for activities authorized by
Secs. 11.30 through 11.38.
* * * * *
6. Section 11.31 is amended by revising the heading and paragraphs
(a)(1), (b), (c) introductory text, (c)(1), and (d) to read as follows:
Sec. 11.31 What does the Assessment Plan include?
(a) General content and level of detail. (1) The Assessment Plan
must identify and document the use of all of the type A and/or type B
procedures that will be performed.
* * * * *
(b) Identification of types of assessment procedures. The
Assessment Plan must identify whether the authorized official plans to
use a type A procedure, type B procedures, or a combination. Sections
11.34 through 11.36 contain standards for deciding which types of
procedures to use. The Assessment Plan must include a detailed
discussion of how these standards are met.
(c) Specific requirements for type B procedures. If the authorized
official plans to use type B procedures, the Assessment Plan must also
include the following:
(1) The results of the confirmation of exposure performed under
Sec. 11.37;
* * * * *
(d) Specific requirements for type A procedures. If the authorized
official plans to use a type A procedure, the Assessment Plan must also
contain the information described in subpart D.
7. Section 11.32 is amended by revising the heading and paragraph
(c)(1) and adding a new paragraph (f)(3) to read as follows:
Sec. 11.32 How does the authorized official develop the Assessment
Plan?
* * * * *
(c) Public involvement in the Assessment Plan. (1) The authorized
official must make the Assessment Plan available for review by any
identified potentially responsible parties, other natural resource
trustees, other affected Federal or State agencies or Indian tribes,
and any other interested member of the public for a period of at least
30 calendar days, with reasonable extensions granted as appropriate.
The authorized official may not perform any
[[Page 20610]]
type B procedures described in the Assessment Plan until after this
review period.
* * * * *
(f) * * *
(3) Paragraphs (f)(1) and (f)(2) of this section do not apply to
the use of a type A procedure.
8. Section 11.33 is revised to read as follows:
Sec. 11.33 What types of assessment procedures are available?
There are two types of assessment procedures:
(a) Type A procedures are simplified procedures that require
minimal field observation. Subpart D describes the type A procedures.
There are two type A procedures: a procedure for coastal or marine
environments, which incorporates the Natural Resource Damage Assessment
Model for Coastal and Marine Environments, Version 2.4 (NRDAM/CME); and
a procedure for Great Lakes environments, which incorporates the
Natural Resource Damage Assessment Model for Great Lakes Environments,
Version 1.4 (NRDAM/GLE).
(b) Type B procedures require more extensive field observation than
the type A procedures. Subpart E describes the type B procedures.
9. Sections 11.34 and 11.35 are redesignated as Secs. 11.37 and
11.38 and new Secs. 11.34 through 11.36 are added to read as follows:
Sec. 11.34 When may the authorized official use a type A procedure?
The authorized official may use a type A procedure only if:
(a) The released substance entered an area covered by the NRDAM/CME
or NRDAM/GLE. Section 3.4, Volume III of the NRDAM/CME technical
document (incorporated by reference, see Sec. 11.18) identifies the
areas tha
FR Doc. 96-10747 Natural Resource Damage AssessmentsType A Procedures
t the NRDAM/CME covers. Section 6.2, Volume III of the NRDAM/
GLE technical document (incorporated by reference, see Sec. 11.18)
describes the areas that the NRDAM/GLE covers;
(b) The NRDAM/CME or NRDAM/GLE cover the released substance. Table
7.1, Volume I of the NRDAM/CME technical document lists the substances
that the NRDAM/CME covers. Table 7.1, Volume I of the NRDAM/GLE
technical document lists the substances that the NRDAM/GLE covers;
(c) The released substance entered water at or near the surface;
(d) At the time of the release, winds did not vary spatially over
the area affected by the release in a way that would significantly
affect the level or extent of injuries;
(e) The authorized official is not aware of any reliable evidence
that, for species that are likely to represent a significant portion of
the claim, the species biomass is significantly lower than the species
biomass assigned by the NRDAM/CME or the NRDAM/GLE Tables IV.2.1
through IV.2.115 and IV.5.1 through IV.5.77, Volume III of the NRDAM/
CME technical document list the species biomasses in the NRDAM/CME.
Tables III.3.17 through III.3.27 and III.3.40 through III.3.50, Volume
III of the NRDAM/GLE technical document list the species biomasses in
the NRDAM/GLE ; and
(f) Subsurface currents either: are not expected to significantly
affect the level or extent of injuries; or are reasonably uniform with
depth over the water column in the area affected by the release.
Sec. 11.35 How does the authorized official decide whether to use type
A or type B procedures?
(a) If the authorized official determines under Sec. 11.34 that a
type A procedure is available, the authorized official must then decide
whether to use that procedure or use type B procedures. The authorized
official must make this decision by weighing the difficulty of
collecting site-specific data against the suitability of the averaged
data and simplifying assumptions in the type A procedure for the
release being assessed. The authorized official may use type B
procedures if they can be performed at a reasonable cost and if the
increase in accuracy provided by those procedures outweighs the
increase in assessment costs. Section 1, Volume I of the NRDAM/CME
technical document (incorporated by reference, see Sec. 11.18) lists
the simplifying assumptions made in the NRDAM/CME. Volumes III through
IV of the NRDAM/CME technical document list the data in the NRDAM/CME.
Section 1, Volume I of the NRDAM/GLE technical document (incorporated
by reference, see Sec. 11.18) lists the simplifying assumptions made in
the NRDAM/GLE. Volume III of the NRDAM/GLE technical document lists the
data in the NRDAM/GLE.
(b) The authorized official must use type B procedures rather than
a type A procedure whenever a potentially responsible party:
(1) Submits a written request for use of type B procedures along
with documentation of the reasons supporting the request; and
(2) Advances all reasonable costs of using type B procedures within
a time frame acceptable to the authorized official.
(c) If there is no available type A procedure, the authorized
official must use type B procedures to calculate all damages.
(d) Except as provided in paragraph (b) of this section, the
authorized official may change the type of procedure used in light of
comments received on the Assessment Plan. [See Sec. 11.32(e)(2) to
determine if the authorized official must provide for additional public
review.] However, if the authorized official decides to use type B
procedures in lieu of a type A procedure, and cannot confirm exposure
under Sec. 11.37, the authorized official may not then use a type A
procedure.
Sec. 11.36 May the authorized official use both type A and type B
procedures for the same release?
(a) The authorized official may use both a type A procedure and
type B procedures for the same release if:
(1) The type B procedures are cost-effective and can be performed
at a reasonable cost;
(2) There is no double recovery; and
(3) The type B procedures are used only to determine damages for
injuries or compensable values that do not fall into the categories
addressed by the type A procedure. [Sections 11.14(v) and 11.62 define
``injury.'' Section 11.83(c)(1) defines ``compensable value.'']
(b) The type A procedures address the following categories of
injury and compensable value:
(1) Direct mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from short-term exposure to the released substance.
Volume IV of the NRDAM/CME technical document (incorporated by
reference, see Sec. 11.18) lists the species that the NRDAM/CME covers.
Section 3, Volume III of the NRDAM/GLE technical document (incorporated
by reference, see Sec. 11.18) lists the species that the NRDAM/GLE
covers;
(2) Direct loss of production of species covered by the NRDAM/CME
or NRDAM/GLE resulting from short-term exposure to the released
substance;
(3) Indirect mortality of species covered by the NRDAM/CME or
NRDAM/GLE resulting from disruption of the food web by direct mortality
or direct loss of production;
(4) Indirect loss of production of species covered by the NRDAM/CME
or NRDAM/GLE resulting from disruption of the food web by direct
mortality or direct loss of production;
(5) Lost assimilative capacity of water column and sediments;
(6) Lost economic rent for lost commercial harvests resulting from
any
[[Page 20611]]
closures specified by the authorized official and/or from population
losses;
(7) Lost recreational harvests resulting from any closures
specified by the authorized official and/or from population losses;
(8) For the type A procedure for coastal and marine environments,
lost wildlife viewing, resulting from population losses, by residents
of the States bordering the provinces in which the population losses
occurred. [A province is one of the geographic areas delineated in
Table 6.1, Volume I of the NRDAM/CME technical document.] For the type
A procedure for Great Lakes environments, lost wildlife viewing,
resulting from population losses, by residents of local areas bordering
the provinces in which the population losses occurred. [A province is
one of the geographic areas delineated in Table 8.1, Volume I of the
NRDAM/GLE technical document.];
(9) Lost beach visitation due to closure; and
(10) For the type A procedure for Great Lakes environments, lost
boating due to closure.
(c) If the authorized official uses both type A and type B
procedures, he or she must explain in the Assessment Plan how he or she
intends to prevent double recovery.
(d) When the authorized official uses type B procedures for
injuries not addressed in a type A procedure, he or she must follow all
of subpart E (which contains standards for determining and quantifying
injury as well as determining damages), Sec. 11.31(c) (which addresses
content of the Assessment Plan), and Sec. 11.37 (which addresses
confirmation of exposure). When the authorized official uses type B
procedures for compensable values that are not included in a type A
procedure but that result from injuries that are addressed in the type
A procedure, he or she need not follow all of subpart E, Sec. 11.31(c),
and Sec. 11.37. Instead, the authorized official may rely on the injury
predictions of the type A procedure and simply use the valuation
methodologies authorized by Sec. 11.83(c) to calculate compensable
value. When using valuation methodologies, the authorized official must
comply with Sec. 11.84.
10. Newly designated Sec. 11.37 is amended by revising the heading
and paragraph (a) to read as follows:
Sec. 11.37 Must the authorized official confirm exposure before
implementing the Assessment Plan?
(a) Before including any type B methodologies in the Assessment
Plan, the authorized official must confirm that at least one of the
natural resources identified as potentially injured in the
preassessment screen has in fact been exposed to the released
substance.
* * * * *
11. The heading of subpart D is revised to read as follows:
Subpart D--Type A Procedures
12. Section 11.40 is amended by revising the heading and paragraph
(a), removing paragraph (b), removing the heading from paragraph (c),
and redesignating paragraph (c) as paragraph (b) to read as follows:
Sec. 11.40 What are type A procedures?
(a) A type A procedure is a standardized methodology for performing
Injury Determination, Quantification, and Damage Determination that
requires minimal field observation. There are two type A procedures:
the type A procedure for coastal and marine environments; and the type
A procedure for Great Lakes environments. The type A procedure for
coastal and marine environments incorporates a computer model called
the Natural Resource Damage Assessment Model for Coastal and Marine
Environments Version 2.4 (NRDAM/CME). The NRDAM/CME technical document
(incorporated by reference, see Sec. 11.18) includes and explains the
NRDAM/CME. The type A procedure for Great Lakes environments
incorporates a computer model called the Natural Resource Damage
Assessment Model for Great Lakes Environments Version 1.4 (NRDAM/GLE).
The NRDAM/GLE technical document (incorporated by reference, see
Sec. 11.18) includes and explains the NRDAM/GLE. The authorized
official must follow Secs. 11.41 through 11.44 when using the type A
procedures.
(b) * * *
13. Section 11.41 is revised to read as follows:
Sec. 11.41 What data must the authorized official supply?
(a) The NRDAM/CME and the NRDAM/GLE require several data inputs to
operate. The authorized official must develop the following data
inputs:
(1) The identity of the released substance;
(2) The mass or volume of the identified substance that was
released;
(3) The duration of the release;
(4) The time of the release;
(5) The location of the release;
(6) The wind conditions;
(7) The extent of response actions;
(8) The extent of any closures;
(9) The implicit price deflator; and
(10) For the NRDAM/CME, the condition of the currents and tides.
(b) The authorized official must change the data in the NRDAM/CME
and the NRDAM/GLE for the following parameters if he or she is aware of
more accurate data:
(1) Air temperature;
(2) Water temperature at the surface;
(3) Total suspended sediment concentration;
(4) Mean settling velocity of suspended solids; and
(5) Habitat type.
(c)(1) If the release occurred in Alaska and the authorized
official is not aware of any reliable evidence that ice was absent from
the site of the release, then he or she must turn on the ice modeling
function. Otherwise, the authorized official must leave the ice
modeling function off.
(2) If the release occurred in the Great Lakes and the authorized
official is aware of reliable evidence that ice was absent from the
site of the release, then he or she must turn off the ice modeling
function.
(d) The authorized official must develop the data inputs and
modifications and include them in the Assessment Plan in the format
specified in Appendix II (for the NRDAM/CME) or Appendix III (for the
NRDAM/GLE).
14. New Secs. 11.42 through 11.44 are added to subpart D to read as
follows:
Sec. 11.42 How does the authorized official apply the NRDAM/CME or
NRDAM/GLE?
(a) The authorized official must perform a preliminary application
of the NRDAM/CME or NRDAM/GLE with the data inputs and modifications
developed under Sec. 11.41. Volume II of the NRDAM/CME technical
document (incorporated by reference, see Sec. 11.18) describes how to
apply the NRDAM/CME. Volume II of the NRDAM/GLE technical document
(incorporated by reference, see Sec. 11.18) describes how to apply the
NRDAM/GLE. For cases involving releases of two or more substances or a
release of a mixture of substances, the authorized official may only
apply the NRDAM/CME or NRDAM/GLE once using only one of the substances.
(b) If the preliminary application of the NRDAM/CME or NRDAM/GLE
indicates damages in excess of $100,000, then the authorized official
must decide whether to:
(1) Limit the portion of his or her claim calculated with the type
A procedure to $100,000; or
(2) Compute all damages using type B procedures.
[[Page 20612]]
Sec. 11.43 Can interested parties review the results of the
preliminary application?
After completing the preliminary application of the NRDAM/CME or
NRDAM/GLE, if the authorized official decides to continue with the type
A procedure, he or she must issue an Assessment Plan for public comment
as described in Sec. 11.32. The Assessment Plan must include the
information described in Sec. 11.31, the data inputs and modifications
developed under Sec. 11.41, and a summary of the results of the
preliminary application. The Assessment Plan must also identify a
contact from whom a complete copy of the printout of the preliminary
application can be obtained.
Sec. 11.44 What does the authorized official do after the close of the
comment period?
(a) The authorized official must carefully review all comments
received on the Assessment Plan, provide substantive responses to all
comments, and modify the Plan as appropriate. [See Sec. 11.32(e)(2) to
determine if the authorized official must provide for additional public
review.]
(b) If, after reviewing the public comments, the authorized
official decides to continue with the type A procedure, he or she must
then perform a final application of the NRDAM/CME or NRDAM/GLE, using
final data inputs and modifications based on Sec. 11.41 and any
reliable information received during the public review and comment
period.
(c) After completing the final application of the NRDAM/CME or
NRDAM/GLE, the authorized official must prepare a Report of Assessment.
The Report of Assessment must include the printed output from the final
application as well as the Preassessment Screen Determination and the
Assessment Plan.
(d) If the authorized official is aware of reliable evidence that a
private party has recovered damages for commercial harvests lost as a
result of the release, the authorized official must eliminate from the
claim any damages for such lost harvests that are included in the lost
economic rent calculated by the NRDAM/CME or NRDAM/GLE.
(e) If the authorized official is aware of reliable evidence that
the NRDAM/CME or NRDAM/GLE application covers resources beyond his or
her trustee jurisdiction, the authorized official must either:
(1) Have the other authorized official(s) who do have trustee
jurisdiction over those resources join in the type A assessment; or
(2) Eliminate any damages for those resources from the claim for
damages.
(f) If the final application of the NRDAM/CME or NRDAM/GLE,
adjusted as needed under paragraphs (d) and (e), calculates damages in
excess of $100,000, then the authorized official must limit the portion
of his or her claim calculated with the type A procedure to $100,000.
(g) After preparing the Report of Assessment, the authorized
official must follow the steps described in subpart F.
15. The heading of subpart E is revised to read as follows:
Subpart E--Type B Procedures
16. Section 11.73 is amended by revising the second sentence of
paragraph (a) to read as follows:
Sec. 11.73 Quantification phase-resource recoverability analysis
(a) * * * The time estimated for recovery or any lesser period of
time as determined in the Assessment Plan must be used as the recovery
period for purposes of Sec. 11.38 and the Damage Determination phase,
Secs. 11.80 through 11.84.
* * * * *
Subpart F--Post-Assessment Phase
17. Section 11.90 is amended by revising the heading, paragraphs
(a) and (b), and the first sentence of paragraph (c) as follows:
Sec. 11.90 What documentation must the authorized official prepare
after completing the assessment?
(a) At the conclusion of an assessment, the authorized official
must prepare a Report of Assessment that consists of the Preassessment
Screen Determination, the Assessment Plan, and the information
specified in paragraphs (b) and (c) of this section as applicable.
(b) When the authorized official has used a type A procedure, the
Report of Assessment must include the information specified in subpart
D.
(c) When the authorized official has used type B procedures, the
Report of Assessment must include all documentation supporting the
determinations required in the Injury Determination phase, the
Quantification phase, and the Damage Determination phase, and
specifically including the test results of any and all methodologies
performed in these phases. * * *
18. Section 11.91 is amended by revising the heading and by
removing the first sentence of paragraph (a) and inserting three new
sentences in its place to read as follows:
Sec. 11.91 How does the authorized official seek recovery of the
assessed damages from the potentially responsible party?
(a) At the conclusion of the assessment, the authorized official
must present to the potentially responsible party a demand in writing
for the damages determined in accordance with this part and the
reasonable cost of the assessment. [See Sec. 11.92(b) to determine how
the authorized official must adjust damages if he or she plans to place
recovered funds in a non-interest-bearing account.] The authorized
official must deliver the demand in a manner that establishes the date
of receipt. * * *
* * * * *
19. New Appendices II and III are added to read as follows:
Appendix II to Part 11--Format for Data Inputs and Modifications to the
NRDAM/CME
This appendix specifies the format for data inputs and
modifications to the NRDAM/CME under Sec. 11.41. Consult the back of
this appendix for definitions.
Starting Point for the NRDAM/CME
The NRDAM/CME begins its calculations at the point that the
released substance entered water in an area represented by its
geographic database. Any water within the geographic boundaries of
the NRDAM/CME is a ``coastal or marine environment.'' The authorized
official must determine all data inputs and modifications as of the
time and location that the released substance entered a coastal or
marine environment. In the case of a release that began in water in
an area within the boundaries of the NRDAM/CME, this point will be
the same as the point of the release. However, for releases that
begin on land or that begin outside the boundaries of the NRDAM/CME,
this point will not be the point of the release but rather the point
at which the released substance migrates into a coastal or marine
environment.
Required Data Inputs
Documentation of the source of the data inputs; and
Identity of Substance
For release of single substance:
Name of the substance that entered a coastal or marine
environment as it appears in Table 7.1, Volume I of the NRDAM/CME
technical document (incorporated by reference, see Sec. 11.18).
For releases of two or more substances or a release of a mixture
of two or more substances:
Name of only one of the substances that entered a coastal or
marine environment as it appears in Table 7.1, Volume I of the
NRDAM/CME technical document.
Mass or Volume
For release of single substance:
Mass or volume of identified substance that entered a coastal or
marine environment
[[Page 20613]]
stated in tonnes, barrels, gallons, liters, pounds, or kilograms.
For releases of two or more substances or a release of a mixture
of two or more substances:
Mass or volume of the one identified substance (rather than
total mass) that entered a coastal or marine environment stated in
tonnes, barrels, gallons, liters, pounds, or kilograms.
Duration
Length of time over which the identified substance entered a
coastal or marine environment stated in hours.
Time
Year, month, day, and hour when the identified substance first
entered a coastal or marine environment.
Location
Latitude and longitude, stated in degrees and decimal minutes,
where the identified substance entered a coastal or marine
environment.
Winds
At least one set of data on prevailing wind conditions for each
day of the 30-day period beginning 24 hours before the identified
substance entered a coastal or marine environment. Each set must
include:
Wind velocity stated in knots or meters per second; and
Corresponding wind direction stated in the degree angle of the
wind's origin.
[One possible source of information is the National Climatic Data
Center, Asheville, NC (703) 271-4800.]
Response Actions
If removed from water surface:
A rectangular geographic area encompassing the surface water
area over which the released substance was likely to have spread,
stated in terms of the northern- and southern-most latitude, and the
eastern- and western-most longitude;
One or more time frames for removal stated in terms of the
number of days and hours after the identified substance entered a
coastal or marine environment that removal began and ended; and
For each time frame, volume of the identified substance removed
from the water surface (not the total volume of contaminated water
or sediments removed) stated in barrels, gallons, or cubic meters.
If removed from shoreline:
A rectangular geographic area encompassing the shoreline area
over which the released substance was likely to have spread, stated
in terms of the northern- and southern-most latitude, and the
eastern- and western-most longitude;
One or more time frames for removal stated in terms of the
number of days and hours after the identified substance entered a
coastal or marine environment that removal began and ended; and
For each time frame, volume of the identified substance removed
(not the total volume of contaminated water or sediments removed)
stated in barrels, gallons, or cubic meters.
Closures
Documentation that the closure was ordered by an appropriate
agency as a result of the release;
Province(s) in which closure occurred; and
For beaches:
Whether the beach was Federal or State (including municipal or
county);
Number of days of closure stated by calendar month; and
Length of shoreline closed, stated in kilometers, for each month
in which closure occurred.
For fisheries and shellfish harvest areas:
Whether area closed was seaward open water, landward open water,
or structured;
Number of days of closure; and
Area closed stated in square kilometers.
For furbearer hunting or trapping areas and waterfowl hunting
areas:
Number of days of closure; and
Area closed stated in square kilometers.
Implicit Price Deflator
Quarterly implicit price deflator for the Gross National Product
(base year 1992) for the quarter in which the identified substance
entered a coastal or marine environment. [See the Survey of Current
Business, published by the U.S. Department of Commerce/Bureau of
Economic Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202)
606-9900.]
Currents
For a rectangular geographic area encompassing the area affected
by the release stated in terms of the northern- and southern-most
latitude, and the eastern- and western-most longitude:
At least one set of data concerning background (mean) current
consisting of--
An east-west (U) velocity stated in centimeters per second or
knots;
A north-south (V) velocity stated in centimeters per second or
knots; and
Latitude and longitude of the origin of the U and V velocity
components.
At least one set of data concerning tidal current at time of
flood stage (i.e., rising tide) consisting of--
An east-west (U) velocity stated in centimeters per second or
knots;
A north-south (V) velocity stated in centimeters per second or
knots; and
Latitude and longitude of the origin of the U and V velocity
components.
[Possible sources of information are: the National Ocean Service,
U.S. Department of Commerce, Riverdale, MD (310) 436-6990; and the
Eldridge Tide and Pilot Book, Robert Eldridge White Publisher,
Boston, MA (617) 742-3045.]
Tides
Hour of high tide on the day that the identified substance
entered a coastal or marine environment;
Tidal range at point that the identified substance entered a
coastal or marine environment stated in meters; and
Whether the tide in the area affected by the release is diurnal
(i.e., completes one full cycle every day) or semi-diurnal (i.e.,
completes two full cycles every day).
Modifications to the NRDAM/CME Databases (if Any)
Documentation of the source of the modification; and
For air temperature:
Air temperature, stated in degrees Celsius, assigned by the
NRDAM/CME at the point that the identified substance entered a
coastal or marine environment (see Table III.3.2, Volume III of the
NRDAM/CME technical document); and
Substitute air temperature stated in degrees Celsius.
For water temperature at the surface:
Water temperature at the surface, stated in degrees Celsius,
assigned by the NRDAM/CME at the point that the identified substance
entered a coastal or marine environment (see Table III.3.3, Volume
III of the NRDAM/CME technical document); and
Substitute water temperature stated in degrees Celsius.
For total suspended sediment concentration:
Total suspended sediment concentration, stated in milligrams per
liter, assigned by the NRDAM/CME at the point that the identified
substance entered a coastal or marine environment (see Section 3,
Volume I of the NRDAM/CME technical document); and
Substitute suspended sediment concentration stated in milligrams
per liter.
For mean settling velocity of suspended solids:
Mean settling velocity of suspended sediments, stated in meters
per day, assigned by the NRDAM/CME at the point that the identified
substance entered a coastal or marine environment (see Section 3,
Volume I of the NRDAM/CME technical document); and
Substitute suspended sediment concentration stated in milligrams
per liter.
For habitat type:
Latitude and longitude bounds of area for which the habitat type
is being modified;
Habitat type assigned by the NRDAM/CME (see Section 3.4, Volume
III of the NRDAM/CME technical document); and
Substitute habitat type.
For releases in Alaska, if the authorized official leaves the
ice modeling function off, he or she must provide documentation that
ice was absent at the site of the release.
Definitions
Background (mean) current--net long-term current flow (i.e., one
direction only), attributable to forces such as winds, river flow,
water density, and tides, that remains when all the oscillatory
(tidal) components have been removed either mathematically or by
measurement techniques.
Landward open water--a body of water that does not contain
vegetation (e.g., wetland, seagrass, or kelp) or invertebrate reef
(e.g., coral reef) and is classified as ``landward'' in Table 6.2,
Volume I of the NRDAM/CME technical document.
Province--one of the geographic areas delineated in Table 6.1,
Volume I of the NRDAM/CME technical document.
Seaward open water--a body of water that does not contain
vegetation (e.g., wetlands, seagrass, or kelp) or invertebrate reef
(e.g., coral reef) and is classified as ``seaward'' in
[[Page 20614]]
Table 6.2, Volume I of the NRDAM/CME technical document.
Structured--in an area that contains vegetation (e.g., wetlands,
seagrass, or kelp) or invertebrate reef (e.g., coral reef).
Tidal current--currents caused by alternating rise and fall of
the sea level due to the gravitational forces between the earth,
moon, and sun.
Tidal range--difference between the highest and lowest height of
the tide.
Appendix III to Part 11--Format for Data Inputs and Modifications
to the NRDAM/GLE
This appendix specifies the format for data inputs and
modifications to the NRDAM/GLE under Sec. 11.41. Consult the back of
this appendix for definitions.
Point of Analysis
The NRDAM/GLE begins its calculations at the point that the
released substance entered water in an area represented by its
geographic database. Any water within the geographic boundaries of
the NRDAM/GLE is a ``Great Lakes environment.'' The authorized
official must determine all data inputs and modifications as of the
time and location that the released substance entered a Great Lakes
environment. In the case of a release that began in water in an area
within the boundaries of the NRDAM/GLE, this point will be the same
as the point of the release. However, for releases that begin on
land or that begin outside the boundaries of the NRDAM/GLE, this
point will not be the point of the release but rather the point at
which the released substance migrates into a Great Lakes
environment.
Required Data Inputs
Documentation of source of data inputs; and
Identity of Substance
For release of single substance:
Name of the released substance that entered a Great Lakes
environment as it appears in Table 7.1, Volume I of the NRDAM/GLE
technical document (incorporated by reference, see Sec. 11.18).
For releases of two or more substances or a release of a mixture
of two or more substances:
Name of only one of the released substances that entered a Great
Lakes environment as it appears in Table 7.1, Volume I of the NRDAM/
GLE technical document.
Mass or Volume
For releases of single substance:
Mass or volume of identified substance that entered a Great
Lakes environment stated in tonnes, barrels, gallons, liters,
pounds, or kilograms.
For releases of two or more substances or a release of a mixture
of two or more substances:
Mass or volume of the one identified substance (rather than
total mass) that entered a Great Lakes environment stated in tonnes,
barrels, gallons, liters, pounds, or kilograms.
Duration
Length of time over which the identified substance entered a
Great Lakes environment stated in hours.
Time
Year, month, day, and hour when the identified substance first
entered a Great Lakes environment.
Location
Latitude and longitude, stated in degrees and decimal minutes,
where the identified substance entered a Great Lakes environment.
Winds
At least one set of data on prevailing wind conditions for each
day of the 30-day period beginning 24 hours before the identified
substance entered a Great Lakes environment. Each set must include:
Wind velocity stated in knots or meters per second; and
Corresponding wind direction stated in the degree angle of the
wind's origin.
[One possible source of information is the National Climatic Data
Center, Asheville, NC (703) 271-4800.]
Response Actions
Percentage of identified substance removed from water surface,
bottom sediments, and shoreline; and
For each medium cleaned (water surface, bottom sediments, or
shoreline), the number of days after the identified substance
entered a Great Lakes environment that removal began and ended.
Closures
Documentation that the closure was ordered by an appropriate
agency as a result of the release; and
For boating areas:
Number of weekend days of closure stated by calendar month;
Number of weekday days of closure stated by calendar month; and
Area closed stated in square kilometers.
For beaches:
Whether the beach was Federal or State (including municipal or
county);
Number of days of closure stated by calendar month; and
Length of shoreline closed stated in meters.
For fisheries:
Whether area closed was an offshore, nearshore, or wetland
fishery;
Number of days of closure; and
Area closed stated in square kilometers.
For furbearer hunting or trapping areas and waterfowl hunting
areas:
Number of days of closure; and
Area closed stated in square kilometers.
Implicit Price Deflator
Quarterly implicit price deflator for the Gross National Product
(base year 1992) for the quarter in which the identified substance
entered a Great Lakes environment. [See the Survey of Current
Business, published by the U.S. Department of Commerce/Bureau of
Economic Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202)
606-9900.]
Modifications to the NRDAM/GLE Databases (if Any)
Documentation of the source of the modifications; and
For air temperature:
Air temperature, stated in degrees Celsius, assigned by the
NRDAM/GLE at the point that the identified substance entered a Great
Lakes environment (see Table III.6.1, Volume III of the NRDAM/GLE
technical document); and
Substitute air temperature stated in degrees Celsius.
For water temperature at the surface:
Water temperature at the surface, stated in degrees Celsius,
assigned by the NRDAM/GLE at the point that the identified substance
entered a Great Lakes environment (see Table III.6.2.6, Volume III
of the NRDAM/GLE technical document); and
Substitute water temperature stated in degrees Celsius.
For total suspended sediment concentration:
Total suspended sediment concentration, stated in milligrams per
liter, assigned by the NRDAM/GLE at the point that the identified
substance entered a Great Lakes environment (see Section 3, Volume I
of the NRDAM/GLE technical document); and
Substitute suspended sediment concentration stated in milligrams
per liter.
For mean settling velocity of suspended solids:
Mean settling velocity of suspended sediments, stated in meters
per day, assigned by the NRDAM/GLE at the point that the identified
substance entered a Great Lakes environment (see Section 3, Volume I
of the NRDAM/GLE technical document); and
Substitute suspended sediment concentration stated in milligrams
per liter.
For habitat type:
Latitude and longitude bounds of area for which the habitat type
is being modified;
Habitat type assigned by the NRDAM/GLE (see Section 6.2, Volume
III of the NRDAM/GLE technical document); and
Substitute habitat type.
If the authorized official turns off the ice modeling function,
then he or she must provide documentation that ice was absent from
the site of the release.
Definitions
Nearshore fishery--fishery in an open water area that is less
than 30 feet in depth or is in a connecting channel.
Offshore fishery--fishery in an open water area that is 30 feet
or more in depth.
Wetland fishery--fishery that is not in an open water area.
Dated: April 25, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management, and Budget.
[FR Doc. 96-10747 Filed 5-6-96; 8:45 am]
BILLING CODE 4310-RG-P
Complete official Federal Register PDF
FR Doc. 96-10744 Airworthiness Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20646-20667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10744]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-146-AD; Amendment 39-9604; AD 96-09-28]
RIN 2120-AA64
Airworthiness Directives; Aerospatiale Model ATR-42 and ATR-72
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to all Aerospatiale Model ATR-42 and ATR-72 series
airplanes. Unless modifications are accomplished or alternative
procedures and training are adopted, that AD currently prohibits
operation of the airplane in certain icing conditions, and requires
restrictions on the use of the autopilot in certain conditions. That AD
was prompted by an FAA determination that, during flight, in certain
icing conditions, and with the airplane in a specific flight
configuration, a ridge of ice can form on the wing and cause an
interruption in the airflow over the ailerons, aileron deflection, and
resultant lateral control forces. The actions specified by that AD are
intended to prevent a roll upset from which the flight crew may be
unable to recover. This action adds requirements for modification of
the deicing boots on the leading edge of the wing and various follow-on
actions. This action also removes certain limitations and procedures.
DATES: Effective June 11, 1996.
The incorporation by reference of certain publications, as listed
in the regulations, is approved by the Director of the Federal Register
as of June 11, 1996.
The incorporation by reference of Aerospatiale Service Bulletin
ATR72-27-1039, dated January 12, 1995, listed in the regulations was
approved previously by the Director of the Federal Register as of March
8, 1995 (60 FR 9616, February 21, 1995).
ADDRESSES: The service information referenced in this AD may be
obtained from Aerospatiale, 316 Route de Bayonne, 31060 Toulouse, Cedex
03, France. This information may be examined at the Federal Aviation
Administration (FAA), Transport Airplane Directorate, Rules Docket,
1601 Lind Avenue, SW., Renton, Washington; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Gary Lium, Aerospace Engineer,
Standardization Branch, ANM-113,
[[Page 20647]]
FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056; telephone (206) 227-1112; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 95-02-51,
amendment 39-9152 (60 FR 9616, February 21, 1995), which is applicable
to all Aerospatiale Model ATR-42 and ATR-72 series airplanes, was
published as a supplemental notice of proposed rulemaking (NPRM) in the
Federal Register on January 25, 1996 (61 FR 2147). The action proposed
to prohibit operation of the airplane in certain icing conditions
unless modifications are accomplished or alternatives procedures and
training are adopted, and to require restrictions on the use of the
autopilot in certain conditions. The action also proposed to add
requirements for modification of the deicing boots on the leading edge
of the wing and various follow-on actions. In addition, the action
proposed to remove certain limitations and procedures.
Disposition of Comments
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
In addition to the proposed rule described previously, in January
1996, the FAA issued 17 other similar proposals that address the
subject unsafe condition on various airplane models (see below for a
listing of all 18 proposed rules). These 17 proposals also were
published in the Federal Register on January 25, 1996. This final rule
contains the FAA's responses to all public comments received for each
of these proposed rules.
----------------------------------------------------------------------------------------------------------------
Docket No. Manufacturer/airplane model Federal Register citation
----------------------------------------------------------------------------------------------------------------
96-CE-01-AD- de Havilland DHC-6 Series-............. 61 FR 2175
96-CE-02-AD- EMBRAER EMB-110P1/EMB-110P2-........... 61 FR 2183 -
96-CE-03-AD- Beech 99/200/1900 Series-.............. 61 FR 2180
96-CE-04-AD- Dornier 228 Series-.................... 61 FR 2172
96-CE-05-AD- Cessna 208/208B-....................... 61 FR 2178
96-CE-06-AD- Fairchild Aircraft SA226/SA227 Series.. 61 FR 2189 -
96-CE-07-AD- Jetstream 3101/3201-................... 61 FR 2186
96-NM-13-AD- Jetstream BAe ATP-..................... 61 FR 2144
96-NM-14-AD- Jetstream 4101-........................ 61 FR 2142
96-NM-15-AD- British Aerospace HS 748 Series........ 61 FR 2139
96-NM-16-AD- Saab SF340A/SAAB 340B/SAAB 2000 Series. 61 FR 2169 -
96-NM-17-AD- CASA C-212/CN-235 Series-.............. 61 FR 2166
96-NM-18-AD- Dornier 328-100 Series-................ 61 FR 2157
96-NM-19-AD- EMBRAER EMB-120 Series-................ 61 FR 2163
96-NM-20-AD- de Havilland DHC-7/DHC-8 Series........ 61 FR 2154 -
96-NM-21-AD- Fokker F27 Mark 100/200/300/400/500/600/ 61 FR 2160 -
700/050 Series-.
96-NM-22-AD- Short Brothers SD3-30/SD3-60/SD3-SHERPA 61 FR 2151 -
Series.
95-NM-146-AD- Aerospatiale ATR-42/ATR-72 Series...... 61 FR 2147
----------------------------------------------------------------------------------------------------------------
-Comment 1. Support for the Proposals
Numerous commenters support the FAA's intent to minimize the
potential hazards associated with operating airplanes of any type
design in severe icing conditions. One commenter states that the
limitation prohibiting the use of flaps while enroute and during
holding in icing conditions will be a positive contribution to safety.
Additionally, several commenters support the requirement of the
proposed AD for Aerospatiale airplanes for installation of modified
deicing boots on the outer leading edges of the wings. One of these
commenters states that the incorporation of AFM procedures, in addition
to installation of the modified boots, provide a substantial margin of
safety for the Aerospatiale fleet.
Comment 2. Requests Concerning References to ``Freezing Rain/Freezing
Drizzle''
Raytheon requests that references to a class of meteorological
conditions in the limitations described as ``freezing rain or freezing
drizzle'' should be removed from the proposed rules. Raytheon contends
that instructions for the flight crew should be restricted to hazardous
conditions that are defined by the accumulation of ice. The commenter
states that the term ``severe icing'' has a specific meaning as defined
in the Aeronautical Information Manual: ``The rate of accumulation is
such that the icing/anti-icing equipment fails to reduce or control the
hazard. Immediate diversion is necessary.'' The commenter states that,
although freezing rain or freezing drizzle may involve drops larger
than those specified in Appendix C of part 25 (``Airworthiness
Standards: Transport Category Airplanes'') of the Federal Aviation
Regulations (14 CFR part 25), flight into those conditions does not
always result in accumulation of ice beyond the capability of the
aircraft nor is severe icing always the result of freezing rain or
freezing drizzle. Raytheon concludes that the limitation specified in
paragraph (a)(1) of the proposals which reads, ``Flight in
meteorological conditions described as freezing rain or freezing
drizzle, as determined by the following visual cues, is prohibited,''
is an inference or conclusion that does not follow from the premises.
The European Regional Airlines (ERA) Association states that the
proposals define visual cues to be used to identify ``freezing rain''
and ``freezing drizzle,'' but these criteria are inconsistent with the
criteria defined by the International Civil Aviation Organization
(ICAO) and used by weather observers in aviation meteorological support
services. The FAA infers from this remark that ERA requests the use of
ICAO terminology associated with the visual cues.
The FAA concurs partially. The FAA concurs that most of the
references to ``freezing rain/freezing drizzle'' can be removed from
the final rules. The FAA has revised the final rules to replace certain
references to freezing rain and freezing drizzle with the words
``severe icing.'' The FAA finds that since the visual cues contained in
paragraph (a)(1) of these final rules indicate that icing conditions
have exceeded the limits of the ice protection equipment, the use of
the terminology ``severe icing'' is appropriate. As stated by one
commenter, ``severe icing'' is terminology used to describe icing
conditions that exceed the capabilities
[[Page 20648]]
of the ice protection equipment. The terminology ``severe icing'' is
commonly used and understood within the aviation community.
Additionally, there should be no confusion over the use of this term in
the final rules because the AFM revisions required by these AD's define
the terminology ``severe icing'' by specifying the visual cues that
indicate when the capabilities of the ice protection equipment have
been exceeded. However, the FAA would consider a request for approval
of an alternative method of compliance to use terminology other than
``severe icing'' in an AFM, in accordance with the provisions of these
AD's, provided that adequate justification is presented to support such
a request.
Any inconsistencies that may exist between the criteria used by
weather specialists to define ``severe icing'' and the criteria stated
in these final rules are not relevant for these AD's because these AD's
do not require the flight crew to take any action based on information
provided by a weather observer. For these AD's, the flight crew must
only take action if certain visual cues are present on the airplane.
The FAA has determined that reference to freezing rain and freezing
drizzle should not be removed from the text of the ``Caution'' that
appears in paragraph (a)(2) of the proposals. [Note: The ``Caution''
appears as the ``Warning'' in paragraph (a)(1) of the final rules. An
explanation of this change is contained in the disposition of Comment
49 of these final rules.] Reference to freezing rain and freezing
drizzle in that portion of text is made simply to provide a description
of conditions that may result in ice build-up that exceeds the
capabilities of the ice protection system.
Comment 3. Request for Review of ``Severe Icing'' Terminology
One commenter, the Civil Aviation Authority (CAA), which is the
airworthiness authority for the United Kingdom, requests that use of
the terminology ``severe icing'' be reviewed. The CAA does not believe
it is appropriate that this terminology becomes accepted for
supercooled large droplet (SLD) conditions. The CAA indicates that a
common interpretation for ``severe icing'' is that beyond the limit
specified in Appendix C of part 25 of the Federal Aviation Regulations
(14 CFR part 25), which is at or just over the capability of the ice
protection system.
The FAA has reviewed the use of the terminology ``severe icing'' as
related to SLD. The FAA finds that ice resulting from SLD conditions
may not always meet the criterion specified in the common
interpretation of ``severe icing,'' as described by the commenter. The
FAA notes that while SLD conditions may result in the formation of
severe icing, severe icing also may accrue in conditions such as liquid
water content, temperature, or extent of cloud, when those conditions
exceed the limits specified in Appendix C of part 25 of the Federal
Aviation Regulations (14 CFR part 25). As explained previously, most
references to freezing rain and freezing drizzle have been replaced
with the terminology ``severe icing.'' Additionally, the AFM's for the
affected airplanes include a definition of severe icing.
Comment 4. Request To Withdraw the Proposals: Significant Economic
Impact on Operating Community
A number of commenters request that the proposals be withdrawn
because the effect of these proposed AD's will produce a significant
economic impact on the operating community. The commenters indicate
that many flights would need to be canceled in order to make all
reasonable efforts to avoid encounters with freezing rain/freezing
drizzle conditions--i.e., when these conditions are forecast, airplanes
will be prohibited from flight into those conditions. One commenter
remarks that, based on the actual weather in January 1996, nearly 75
percent of its scheduled flights would have been canceled due to
forecast or actual freezing rain or freezing drizzle conditions if the
AD's had been in effect. The commenters do not believe that the FAA has
considered the economic factors affected by the proposed actions, such
as the number of flights lost per day, crew costs, passenger
compensation, misconnected baggage, etc.
If the FAA does not withdraw the proposals, one commenter states
that the prohibition of flight in freezing rain or freezing drizzle, as
specified in paragraph (a)(1) of the proposals, should be revised. The
commenter suggests the following: ``The aircraft should be immediately
flown clear of icing conditions if ice is seen forming on the upper
surface of the wing behind the leading edge deice boots.'' The
commenter believes that the current wording in the proposals would
cause flight crews to cancel or delay departure not only when freezing
rain or freezing drizzle exists, but also when those conditions are
forecast.
The FAA concurs partially. The FAA finds that some misunderstanding
exists among the commenters concerning the intent of these AD's. Many
of the commenters believe that the AD's will prevent affected airplanes
from flight in forecast freezing rain and freezing drizzle. This is not
the case. The FAA agrees that certain language contained in the AD's
must be clarified to reflect its intent. The FAA has evaluated the
wording proposed by one of the commenters and agrees with it in
principal. However, the FAA has determined that the first limitation in
paragraph (a)(1) of the final rules must be revised in order to
accommodate visual cues other than that specified by the commenter, to
incorporate terminology familiar to the flight crew, and to emphasize
that these AD's address only in-flight icing encounters. Additionally,
in order to ensure that appropriate coordination with Air Traffic
Control is accomplished, the FAA has revised the instruction following
the visual cues in paragraph (a)(1), and has moved that instruction to
the end of the first limitation in paragraph (a)(1) of the final rules.
The entire limitation reads as follows: ``During flight, severe icing
conditions that exceed those for which the airplane is certificated
shall be determined by the following visual cues. If one or more of
these visual cues exists, immediately request priority handling from
Air Traffic Control to facilitate a route or an altitude change to exit
the icing conditions.'' (Operators should note that, in the final rule
for Aerospatiale airplanes, only one visual cue is specified. That cue
involves ice on the side window of the airplane.)
Several commenters question certain issues related to dispatch of
the airplane in severe icing conditions. One commenter states that the
procedures specified in the proposed AD's fail to address the
conditions that would prohibit takeoff in freezing rain and freezing
drizzle. The commenter believes the visual cues provided in the
proposals would only appear on an airplane during flight. Thus,
allowable conditions for takeoff during times of forecast freezing rain
or freezing drizzle are left to the individual operator's
interpretation. Another commenter believes that the FAA has not
established a basis for prohibiting flight in all reported freezing
drizzle. The commenter contends that takeoff in freezing rain should
always be prevented, but takeoff in freezing drizzle should be possible
after applying appropriate deicing or anti-icing treatments. One
commenter requests that the FAA clarify how the procedures for exiting
freezing rain/freezing drizzle conditions would apply to takeoff and
landing. The commenter states that landing during those conditions
might,
[[Page 20649]]
in many cases, be the most expeditious method of avoiding a hazardous
condition. Another commenter suggests that the AFM for Aerospatiale
airplanes should be revised to reflect standard dispatch rules;
however, the commenter provides no justification for this request.
The FAA concurs that visual cues that would prohibit takeoff in
freezing rain or freezing drizzle were not provided because the FAA's
intent is that these AD's address only in-flight icing encounters.
These AD's do not affect any existing regulations or FAA-approved
operating procedures related to takeoff, dispatch, or release of an
airplane in icing conditions. These AD's only prohibit remaining in
icing conditions when certain visual cues are present on the airplane;
these AD's do not prohibit flight into forecast or reported freezing
drizzle. Operators must comply with existing rules that require an
airplane to be free of ice prior to takeoff. Further, the FAA finds no
need to revise the AFM for Aerospatiale airplanes to reflect standard
dispatch rules. The FAA also considers that landing the airplane when
freezing rain/freezing drizzle conditions are encountered would, in
many cases, be the most expeditious method of exiting the conditions.
Such landing would be in compliance with the limitation that requires
the flight crew to exit the severe icing conditions.
Two commenters indicate that the first note that appears in
paragraph (a)(1) of the proposed rules could be interpreted to mean
that if freezing rain or freezing drizzle is forecast anywhere along
the route of flight, the airplane could not be dispatched. One of the
commenters concludes that forecasting methodologies are inadequate and
would need to be improved. The other commenter suggests that the FAA
remove the word ``purely'' from the note. The same commenter requests
that the FAA clarify that the airplane may be dispatched if the
forecast may indicate freezing rain/freezing drizzle conditions.
Another commenter indicates that the wording of the same note is
unclear as to how the FAA defines a ``purely'' inadvertent encounter.
The commenter states that examples of such purely inadvertent
encounters would be helpful.
One commenter asks the following questions in regard to the same
note:
--What are ``reasonable efforts?''
--What does ``immediately exit'' mean? Are the procedures for
immediately exiting listed in the Air Traffic Controller's Handbook or
the Airman's Information Manual? Can a pilot operating the airplane in
a holding pattern decide on his/her own to immediately descend below
the freezing level without regard to other traffic?
One commenter states that the note should be placed in the Normal
Procedures Section of the AFM, rather than in the Limitations Section.
The commenter provides no justification for this request.
The FAA concurs that clarification of this note is necessary. The
FAA originally included the note in the AD's to clarify the intent of
the rules. Since the first instruction and the limitation that follows
have been revised in these final rules, the FAA finds that inclusion of
the clarifying note is no longer necessary. In order to avoid any
possible misinterpretation of the intent of the limitation on flight in
freezing rain or freezing drizzle, the FAA has removed the first note
that appeared in paragraph (a)(1) of the proposals. These AD's do not
prohibit flight into forecast or reported freezing rain or freezing
drizzle. This means that the aircraft is not prohibited from takeoff,
dispatch, or release simply because the forecast may indicate freezing
rain or freezing drizzle, but is prohibited from continued flight in
severe icing conditions.
Comment 5. Request To Withdraw the Proposals: No Unsafe Condition Has
Been Established
Several commenters request that the proposals be withdrawn because
no unsafe condition has been established with respect to airplane
handling characteristics in severe icing conditions. One commenter
states that the preamble of the proposals does not provide data that
establish an unsafe condition; the preamble only indicates that there
are inadequate data to represent all possible conditions. Another
commenter remarks that the FAA's dismissal of the significance of the
test results with the specious comment, ``such airplanes could develop
ice shapes other than those tested,'' is wholly speculative, and is an
invalid basis on which to issue an AD under the provisions of part 39
(``Airworthiness Directives'') of the Federal Aviation Regulations (14
CFR part 39).
The FAA does not concur that these AD's should be withdrawn. As
stated in the preamble to the proposals, the FAA has not required that
airplanes be shown to be capable of operating safely in icing
conditions outside the icing certification envelope specified in
Appendix C of part 25 of the Federal Aviation Regulations (14 CFR part
25). This means that any time an airplane is flown in icing conditions
for which it is not certificated, there is a potential for an unsafe
condition to exist or develop and the flight crew must take steps to
exit those conditions expeditiously. Further, the FAA has determined
that flight crews are not currently provided with adequate information
necessary to determine when an airplane is operating in icing
conditions for which it is not certificated or what action to take when
such conditions are encountered. The absence of this information
presents an unsafe condition because without that information, a pilot
may remain in icing conditions for which the airplane has not been
proven to be safe. These AD's correct the unsafe condition by requiring
AFM revisions that provide the flight crews with visual cues to
determine when icing conditions have been encountered for which the
airplane is not certificated, and by providing procedures to safely
exit those conditions.
Additionally, in the preamble to the proposed rules, the FAA
discussed the investigation of roll control anomalies to explain that
this investigation was not a complete certification program. The
testing was designed to examine only the roll handling characteristics
of the airplane in certain droplets the size of freezing drizzle. The
testing was not a certification test to approve the airplane for flight
into freezing drizzle. The results of the tests were not used to
determine if these final rules were required, but rather to determine
if design changes were needed to prevent a catastrophic roll upset. The
roll control testing and the AD's must be viewed as two unrelated
actions.
Comment 6. Request To Withdraw the Proposals: Unsafe Condition is
Outside Certification Limits
One commenter states that the proposed AD's should be withdrawn
because the issuance of AD's to address the problems of icing
encounters outside of the limits for which the airplane is certificated
is a completely inappropriate application of part 39 of the Federal
Aviation Regulations (14 CFR part 39). Another commenter contends that
since the Aerospatiale aircraft passed all present certification
testing, what transpired beyond the limits of certification should not
be held against that aircraft.
The FAA does not concur that the AD's should be withdrawn on the
basis that the unsafe condition is outside the icing certification
envelope. Flight in icing conditions that are outside the icing
certification envelope occurs during the normal service life of an
airplane. Apart from the visual cues provided in these final rules,
there is no
[[Page 20650]]
existing method provided to the flight crews to identify when the
airplane is in a condition that exceeds the icing certification
envelope. The appropriate vehicle for providing this method of
identification is through issuance of an AD. The FAA acknowledges that
the Aerospatiale airplane has been shown to comply with existing
certification rules; however, no airplane is certificated for flight in
icing conditions outside of Appendix C of part 25 of the Federal
Aviation Regulations (14 CFR part 25).
Comment 7. Request To Withdraw the Proposals: Proposals Unfairly
Discriminate Against Turbopropeller-Powered Aircraft
Several commenters state that the proposed AD's should be withdrawn
because the AD's unfairly discriminate against turbopropeller-powered
aircraft. The commenters contend that by issuing these proposed rules,
the FAA is creating a public perception that turbopropeller-powered
aircraft are less safe than other aircraft.
Numerous commenters oppose the statement contained in the preamble
of the proposals which indicates that since turbopropeller-powered
airplanes are more likely to operate at low altitudes and to make more
frequent landings, they are more likely to encounter icing conditions
that are outside the icing envelope. One commenter states that the mere
fact that turbopropeller-powered airplanes make more frequent landings
is irrelevant for the following reasons:
--Every flight encounters the same atmospheric conditions after takeoff
and prior to landing, whether the airplane is powered by a
turbopropeller or turbojet engine;
--There are numerous airplanes powered by turbojet engines that operate
on segments equal in duration to those operated by many turbopropeller-
powered aircraft; numerous airplanes powered by turbojet engines make
just as frequent landings; and
--Even if turbopropeller-powered aircraft do make more frequent
landings, there is no negative inference to be drawn from that fact;
more opportunities are available to ensure that ice has not formed on
the aircraft if the aircraft lands more frequently.
One commenter states that the altitudes where SLD conditions exist
are the same altitudes at which jets would encounter those conditions
during the departure and arrival phases of flight. Flight in SLD
conditions that would have a negative effect on a turbopropeller-
powered airplane would have the same effect on a jet, since both are
certificated under the same rules with regard to flight into adverse
weather, and both fly at about the same speeds during the departure and
arrival phases of flight. Additionally, another commenter adds that no
airplane, whether it is powered by a turbopropeller, turbojet, or
turbofan engine, is certificated for operation in SLD conditions.
Another commenter indicates that icing encounters take place at
altitudes below the cruising altitudes of most turbopropeller-powered
aircraft used in scheduled service; this also occurs on airplanes
powered by turbojet engines. Icing encounters occur during takeoff,
climb, descent, holding, and landing phases of flight on both types of
aircraft. The commenter adds that operating the airplane in a holding
pattern for a prolonged period in severe icing conditions is hazardous
for both turbojet and turbopropeller-powered aircraft. The commenter
explains that, although the exposure time per flight hour of a long-
haul jet aircraft is less, the exposure on a per flight basis is
exactly the same. The commenter states that, like landing gear life
limits, the proper measure of exposure to freezing rain/freezing
drizzle should be the number of flights, not the number of flight
hours.
Another commenter, Saab, states that Saab Model SAAB 2000 series
airplanes have a unique power-to-weight ratio, which makes it
comparable with airplanes of the same size and, in some relevant areas
such as climb performance and single engine ceiling, even far superior.
Operators of those airplanes can operate the aircraft over-the-weather
at flight level (FL) 310. This means that these Saab airplanes operate
on jet profiles and, therefore, are not exposed to the icing conditions
that are outside the icing envelope any more than the airplanes that
are excluded from the proposals.
The FAA does not concur that the proposals should be withdrawn. The
FAA does not intend to imply through issuance of these AD's that
turbopropeller-powered airplanes are less safe than airplanes having
other types of propulsion systems. As stated in the preamble of the
proposals, the FAA addressed certain airplanes as a higher priority for
two reasons:
--Turbopropeller-powered airplanes are more likely to operate at low
altitudes and to make more frequent landings; therefore, they are more
likely to encounter icing conditions that are outside the icing
envelope specified in Appendix C of part 25 of the Federal Aviation
Regulations (14 CFR part 25); and
--The flight crew of an airplane having an unpowered roll control
system must rely solely on physical strength to counteract roll control
anomalies, whereas a roll control anomaly that occurs on an airplane
having a powered roll control system need not be offset directly by the
flight crew.
Since the issuance of the proposed rules, the FAA has reconsidered
this reasoning. The FAA acknowledges that simply because an airplane is
turbopropeller-powered and has a particular flight profile, that
airplane should not be addressed as a higher priority. However, this
does not diminish the significance of the necessity of the flight crew
of an airplane having an unpowered roll control system to rely on
physical strength to counteract roll control anomalies. The subject
airplanes all have pneumatic deicing boots and unpowered aileron
controls, which have been common denominators in the accident and
incident history concerning flight in icing conditions and, in
particular, during conditions when SLD was believed to be present.
Therefore, airplanes having those design features are of immediate
concern to the FAA and were addressed as a higher priority.
Additionally, these AD's primarily address airplanes used in regularly
scheduled passenger service in the United States.
The FAA finds that the comment indicating that more frequent
landings provides more opportunity to verify that ice has not formed is
irrelevant. It also could be said that more frequent landings gives
more opportunity for ice to form. The FAA agrees with the statement
that holding for prolonged periods in severe icing conditions is
hazardous for all aircraft types. The FAA is considering initiating an
assessment of the need to prohibit all aircraft from continued flight
in severe icing conditions as defined in these AD's.
Although Transport Canada Aviation does not request that the
proposed AD's be withdrawn, the commenter indicates that roll control
anomalies could exist for all aircraft whether they have powered or
unpowered roll control systems. Transport Canada Aviation adds that
some jet-powered aircraft have unpowered ailerons.
The FAA concurs that roll anomalies could exist for all aircraft
whether they have powered or unpowered roll control systems. However,
these AD's address airplanes having both deicing boots and unpowered
aileron controls. The FAA
[[Page 20651]]
acknowledges that other airplanes that have powered ailerons may be
subject to roll problems in severe icing conditions due to loss of
lift. However, the FAA is not aware of a mechanism that would allow ice
to produce an uncommanded control deflection on airplanes having
powered flight control systems. In addition, airplanes having powered
roll control systems do not have direct feedback of aerodynamic forces
to the pilot. However, the FAA is considering initiating an assessment
of the need to apply similar limitations to other aircraft types.
Comment 8. Request To Withdraw the Proposals: Affected Airplanes Are
Not Same Type Design as Accident Airplane
Several commenters contend that the proposals should be withdrawn
because the FAA has not established clearly that the airplanes
addressed in the proposed rules have the same type design as the
Aerospatiale Model ATR-72 series airplane that was involved in an
accident in October 1994 that occurred in severe icing conditions.
One commenter questions the words ``same type design,'' and asks if
those words refer to high wing, low wing, T-tail, or aircraft of
another type design.
Three commenters provide justification in support of a request that
certain airplanes be exempt from these AD's:
de Havilland Model DHC-7 and DHC-8 series airplanes: De
Havilland states that the airplanes it manufactures share a
conservative aerodynamic design philosophy that yields exceptional low-
speed handling qualities and demonstrated benign handling qualities in
icing conditions. De Havilland adds that two-thirds of the roll control
authority of these airplanes is provided by hydraulically powered roll
spoilers. A second commenter adds that increased testing has been
conducted on these airplanes.
Fokker F27 Mark 100, 200, 300, 400, 500, 600, 700, and 050
series airplanes: Fokker states that the leading edge boots on Fokker
Model F27 series airplanes and Model F27 Mark 050 series airplanes
extend to a chord wise position, 12.5 percent wing chord, which
precludes all but the very largest droplets impinging on the
unprotected surfaces. Fokker adds that since the accident airplane has
unshielded horn balances and the affected Fokker airplanes do not have
these unshielded horn balances, Fokker airplanes will not experience
roll upset problems. Fokker indicates that aerodynamically balancing
the control surfaces by means of unshielded horn balances was not
applied because of the bad service experience of the Vickers Viking
aircraft in 1946.
Beech Model 200 and 200C airplanes: Raytheon states that
these particular airplane models are not normally considered to be
commuter aircraft, and that issuance of an AD would be contrary to the
stated purpose of the proposals because most of these airplanes are
used in non-revenue service. Raytheon states that these airplanes are
all low wing aircraft. Aerospatiale Model ATR-72 series airplanes (the
accident airplane) is 50 percent larger and carries over twice the
number of passengers as these Beech aircraft. For these reasons, as
well as other differences in the geometry of the airplanes (i.e.,
relative aileron span), Raytheon states that the supposition of an
icing hazard in these aircraft is purely speculative.
The FAA does not concur that any of the addressed airplanes should
be exempt from these AD's. The FAA has examined the accident and
incident history in icing conditions and, in particular, those events
believed to involve SLD conditions. Results of this examination
revealed that the type design characteristics that appear to be common
in these events are pneumatic deicing boots and unpowered aileron
controls. Airplanes having those type design characteristics appear to
be more susceptible to control problems in severe icing conditions. In
response to Fokker's remark that its airplanes will not experience roll
control problems since those airplanes do not have unshielded horn
balances, the FAA has determined that horn balances on the accident
airplane were not the source of the uncommanded aileron motion. Design
similarities of the wing, tail, or ailerons do not appear to be a
common denominator among airplanes involved in accidents or incidents
where SLD conditions may have been present.
Saab asks for removal of the sentence that reads, ``Since an unsafe
condition has been identified that is likely to exist or develop on
other airplanes of the same type design . * * *'' Saab states that this
sentence implies that Saab Model SF340A and SAAB 340B series airplanes
have a problem and that this problem is ``likely to develop on other
airplanes of the same type design.'' Yet, there have been no reported
problems on those airplanes, which are not of the same type design as
all other turbopropeller-powered airplanes. Transport Canada Aviation
does not request that the proposals be withdrawn; however, the
commenter requests that the FAA revise the same phrase discussed by
Saab. Transport Canada Aviation requests that the phrase be reworded as
follows: ``Since an unsafe condition has been identified where aircraft
icing certification is not adequate to address the conditions that are
outside of Appendix C of FAR part 25 . . . .''
The FAA does not concur with Saab's request. The FAA acknowledges
that there have been no reported problems involving severe icing
conditions on Saab airplanes. However, Saab Model SF340A and SAAB 340B
series airplanes have pneumatic deicing boots and unpowered aileron
controls, which have been determined to be the common denominators
among the airplanes involved in accidents and incidents in severe icing
conditions. Therefore, the FAA has determined that when severe icing
conditions are encountered on these Saab airplanes, those conditions
must be exited.
Although the FAA has no technical objection to the revised wording
proposed by Transport Canada Aviation, this sentence does not reappear
in the final rules. Therefore, no change to the final rule is
necessary.
Comment 9. Request for Explanation of the Applicability of the AD's
One commenter requests an explanation of the methodology used by
the FAA to determine that AD's should not be issued for Cessna and
Piper multi-engine aircraft. The commenter also asks if an AD similar
to the proposed rules exists for Boeing Model 737 series airplanes. The
commenter indicates that Model 737 series airplanes have demonstrated
abnormal and unexplained roll tendencies.
The FAA provides the following clarification for this commenter. No
AD's have been issued for Piper airplanes or Boeing Model 737 series
airplanes. However, as reflected in the table above, the FAA has issued
an AD for Cessna Model 208 and 208B airplanes.
Most of the aircraft affected by these final rules are used
primarily in regularly scheduled passenger service in the United
States. However, there are some airplanes affected by the final rules
that are not used in regularly scheduled passenger service. Two of
these are Cessna Model 208 and 208B airplanes. Those airplanes were
included in the final rules because of their accident and incident
history in icing conditions. The FAA is considering an assessment of
the need to prohibit all aircraft from continued flight in severe icing
conditions.
[[Page 20652]]
Comment 10. Request To Withdraw the Proposals: Service Experience of
Affected Airplanes is Satisfactory
Several commenters indicate that the FAA should withdraw the
proposed AD's in light of the satisfactory service experience of the
airplanes addressed in the proposals. The commenters believe that the
FAA is singling out turbopropeller-powered aircraft without any regard
for the operational record of those aircraft.
Several commenters provide justification in support of this
request:
One commenter states that de Havilland airplanes have been
successfully operated for over 30 years without one instance of roll
upset or flight control problems.
De Havilland indicates that de Havilland Model DHC-8
series airplanes have been in service for 11 years and have accumulated
6 million flights and 5 million flight hours without any incidents due
to icing.
De Havilland adds that de Havilland Model DHC-7 series
airplanes have been in service for 18 years and have accumulated 3.7
million flights and 2.7 million flight hours without any incidents due
to icing.
Another commenter has not experienced any icing related
upsets or control irregularities in its fleet of de Havilland Model
DHC-8 series airplanes and Beech Model 1900 series airplanes.
One commenter operates 21 Beech Model 1900D airplanes, 32
EMBRAER Model EMB-120 series airplanes, and 41 Aerospatiale Model ATR-
42 and ATR-72 series airplanes; none of these airplanes have
experienced any icing incidents this season.
One commenter indicates that airplanes produced by Beech,
EMBRAER, and Jetstream Aircraft Limited (JAL) have no record of
uncommanded roll due to asymmetrical build-up of ice on surfaces beyond
the deicing boots.
One commenter notes that it has not experienced any
unusual icing characteristics on its fleet of EMBRAER Model EMB-120
series airplanes and Aerospatiale Model ATR-72 series airplanes.
Fairchild notes that in over 26 years and 15,000,000
flight hours in passenger service, there has never been a reported
incident where the controllability of Fairchild Aircraft SA226 and
SA227 series airplanes were in jeopardy as a result of any icing
encounters (including SLD icing encounters).
The Luftfartsverket (LFV), which is the airworthiness
authority for Sweden, states that no ice build-up behind the wing boots
has ever been reported on Saab Model SF340A, SAAB 340B, or SAAB 2000
series airplanes. Additionally, the leading edge on these airplanes can
be inspected easily during flight.
Saab remarks that no roll anomaly problems in icing
conditions have occurred during the extensive service experience of
Saab Model SF340A and SAAB 340B series airplanes.
The FAA does not concur that the AD's should be withdrawn.
The fact that an airplane has a perfect safety record in icing does not
negate the fact that no airplane has been certificated for flight into
SLD. The FAA has determined that a need exists to provide the flight
crew with useful safety-related information regarding the limitations
of the airplane concerning flight in severe icing conditions. The
purpose of issuing these final rules is to provide the flight crew with
such information.
One commenter, Transport Canada Aviation, requests that the
proposals apply only to those airplanes that have a demonstrated
history of in-service problems as a priority. The commenter states that
the hazards relating to operation in icing conditions exist for all
types of aircraft. (The commenter does not request that the proposed
rules be withdrawn.)
The FAA does not concur with this request. As explained previously,
the FAA has issued AD's for airplanes having pneumatic deicing boots
and unpowered aileron controls as a priority. Airplanes having these
design features are of immediate concern to the FAA because these
features have been common denominators in the accident and incident
history concerning flight in icing conditions and, in particular,
during conditions when SLD was believed to be present. The FAA is
considering the need for rulemaking to impose similar limitations on
other aircraft.
Comment 11. Request To Withdraw the Proposals: Extensive Testing
Revealed No Icing Problems
Several commenters request that the proposals be withdrawn because
extensive testing revealed no icing problems on many different
turbopropeller-powered airplanes, even though those tests likely
exceeded any icing certification tests ever performed on other civil
aircraft types, including large jet-powered transport category
airplanes. Fokker states that Fokker Model F27 series airplanes do not
demonstrate unacceptable roll control characteristics in severe icing
conditions; however, Fokker submits no data to substantiate this
statement.
The FAA does not concur. The FAA finds that successful completion
of the roll upset evaluation is not a valid reason for withdrawing the
AD's. On the contrary, if the evaluation had demonstrated anomalies,
the FAA may have concluded that action beyond that required by these
AD's was necessary to address the demonstrated unsafe condition. The
testing was designed to examine only the roll handling characteristics
of the airplane in certain droplets the size of freezing drizzle to
determine if any design changes are necessary to prevent catastrophic
control surface deflection. The testing was not a certification test to
approve the airplane for flight into freezing drizzle since many of the
components and their functions were not tested (e.g., pitch control,
engine and propeller, performance, stall warning, windshield, air data
sensors and fuel system vents). Further, freezing rain was not tested.
Satisfactory demonstration of those tests does not remove the FAA's
responsibility to provide a safe operating environment for the
passengers and crew.
JAL comments that its airplanes are not subject to the addressed
unsafe condition, and that the FAA had concurred with this contention.
JAL states that the FAA agreed that, by the controllability evaluation
process, all Jetstream aircraft types had been demonstrated to be not
susceptible to roll control anomalies in freezing rain or freezing
drizzle conditions.
The FAA does not concur with JAL's position concerning its
airplanes. All Jetstream airplanes affected by these AD's successfully
completed the roll upset evaluation. However, as stated previously, no
airplanes were tested in freezing rain conditions. The roll upset
evaluation only addressed conditions that were believed to have existed
during an accident involving a transport category airplane that
occurred in October 1994. Therefore, since no airplane has been tested
in all freezing rain and freezing drizzle conditions, no airplane has
been demonstrated to be safe for continued flight in these conditions.
Comment 12. Request To Withdraw the Proposals: Publish Advisory
Materials and Require Training
Several commenters request that, in lieu of issuing the proposed
rules, the FAA publish appropriate advisory materials and require
training for recognition, avoidance, and exit from severe icing
encounters as part of the required severe weather training for pilots
and dispatchers. Two commenters suggest that the FAA include such
[[Page 20653]]
requirements in the operating rules specified in part 121
(``Certification and Operations: Domestic, Flag, and Supplemental Air
Carriers and Commercial Operators of Large Aircraft'') of the Federal
Aviation Regulations (14 CFR part 121). Another commenter indicates
that, since jets and piston-engine aircraft also could develop ice
shapes other than those tested, training should not be provided only to
pilots of turbopropeller-powered airplanes, but to pilots of all
aircraft. Some commenters also suggest that the FAA has successfully
addressed other issues through increased awareness and training
requirements, rather than by issuing AD's against every airplane type
design to require revising the Limitations Section of the AFM. The
commenters cite windshear, ground deicing, and clear air turbulence as
examples of such issues. The commenters contend that, except where
configuration changes are needed, such as in the case of windshear
detection devices, improved awareness and training programs--not AD's--
have been highly effective in achieving needed safety improvements.
The FAA does not concur. The FAA considers that substituting
advisory material and mandatory training for issuance of an AD is not
appropriate, nor would this adequately address the unsafe condition.
The FAA fully supports the development of advisory materials and
training. Part 121 (``Certification and Operations: Domestic, Flag, and
Supplemental Air Carriers and Commercial Operators of Large Aircraft'')
and part 135 (``Air Taxi Operators and Commercial Operators'') of the
Federal Aviation Regulations (14 CFR parts 121 and 135) require that
appropriate training concerning limitations such as those contained in
these AD's be incorporated into air carriers' training programs.
However, the FAA's position is that the development and use of such
advisory materials and training alone are not adequate to address the
subject unsafe condition. Currently, the AFM's specify that the
affected airplanes are certificated for flight in icing conditions;
however, the AFM's do not specify a method of determining whether the
certification limits for those conditions have been exceeded.
Consequently, the FAA finds that these AFM's must be revised to provide
limitations for flight in icing conditions and to provide the flight
crew with a method of determining when those limitations have been
exceeded.
The FAA does not concur that amending part 121 of the Federal
Aviation Regulations (14 CFR part 121) in lieu of issuing these AD's is
appropriate. The FAA's position is that the appropriate place to inform
the flight crew of the limitations of the airplane is in the AFM. The
appropriate vehicle for mandating such AFM revisions is through
issuance of an AD. In addition, an AD will ensure that the
incorporation of such AFM revisions is not left to each operator's
individual discretion and that flight crews receive pertinent
information. The FAA may consider an assessment of the need to provide
training to pilots of all aircraft types for flight in severe icing
conditions.
The commenters reference windshear as an example of an issue that
was handled successfully without issuance of an AD to revise the AFM's.
In this case, the AFM's for all airplanes having an onboard windshear
system were revised to provide the flight crew with procedures for
responding when the system gives an alert. Although no AD was issued to
mandate these AFM revisions, without revising the AFM, operators could
not comply with the section of part 121 of the Federal Aviation
Regulations (14 CFR part 121) that requires installation of the
windshear detection devices. In conclusion, although AFM revisions were
not required by an AD, AFM changes were mandated indirectly by a new
part 121 regulation.
The commenters also reference ground deicing. Part 91 (``General
Operating and Flight Rules'') of the Federal Aviation Regulations (14
CFR part 91) prohibits takeoff of an airplane unless the airframe is
clear of ice; therefore, there is no need to provide additional
limitations concerning the amount of ice that would be acceptable for
takeoff. However, in the case of severe icing conditions addressed by
these final rules, the AFM's currently allow flight in icing, but the
AFM does not define when the limits of the certificated icing operation
envelope have been exceeded.
Concerning the issue of clear air turbulence, issuance of an AD was
not required because an airspeed limitation associated with turbulent
air penetration was already in the AFM's. Therefore, in this case, the
issue was addressed in the AFM as well as through awareness and
training.
Comment 13. Request To Withdraw the Proposals: Incorporate Operational
Issues into a Training Curriculum
Two commenters request that the proposals be withdrawn because the
proposed AD's address an operational issue that should be incorporated
into an operator's training curriculum. One commenter states that
pilots must be made aware of the hazards of icing and that extended
operation of an airplane in any icing encounter that results in
significant airframe accretion of ice is unacceptable.
The FAA does not concur that the AD's should be withdrawn based on
the commenters' request. The FAA acknowledges that these AD's address
an operational issue. When the requirements of these AD's are
accomplished and the AFM limitations are revised, this material will be
incorporated necessarily, as explained previously, into the training
curriculum for the flight crews and dispatchers, if applicable, in the
operator's approved training program. In this manner, pilots and
dispatchers, if applicable, will be informed of the hazards of icing
and that continued operation of an airplane in certain icing conditions
is prohibited.
Comment 14. Request To Withdraw the Proposals: Require Training for Air
Traffic Controllers and Weather Specialists
Two commenters request that the FAA implement additional policy to
require training for air traffic controllers and weather specialists in
the recognition, avoidance, and procedures to exit severe icing
conditions.
The FAA does not concur that these AD's should be withdrawn.
However, the FAA acknowledges that implementation of these AD's may
necessitate additional training beyond that which is already required
for air traffic controllers and weather specialists. The FAA may
consider the need to provide training concerning recognition,
avoidance, and procedures for exiting severe icing conditions. However,
the intent of these AD's is to provide the flight crew with recognition
cues for, and procedures for exiting from, severe icing conditions. The
appropriate vehicle for requiring that such information be included in
the AFM's is through issuance of an AD.
Comment 15. Request To Withdraw the Proposals: Add a Caution to the AFM
One commenter requests that, in lieu of issuing the proposed AD's,
a ``Caution'' should be added to the AFM to inform pilots to exit icing
conditions if ice was observed to be forming aft of the protected
surfaces of the wings. The commenter states that information regarding
the use of flaps and the autopilot in icing conditions could also be
incorporated into the AFM. The commenter does not indicate which
section of the AFM should include this material.
[[Page 20654]]
The FAA does not concur. The FAA finds that the requirement to exit
severe icing conditions and information concerning use of the autopilot
during flight in those conditions must be included in the Limitations
Section of the AFM. Additionally, information concerning use of the
flaps during those conditions should be included in the Procedures
Section of the AFM. The appropriate vehicle for requiring these changes
to the AFM is through issuance of an AD.
Comment 16. Request To Withdraw the Proposals: Require Alternative AFM
Limitation
One commenter requests that, in lieu of an AD, the FAA require an
alternative AFM limitation that reads as follows: ``This aircraft is
certified for flight into icing conditions as specified by Appendix C
of Part 25. Actual icing encountered may be greater than Appendix C
requirements.''
The FAA does not concur. The suggested limitation does not provide
guidance as to how a pilot can identify and safely exit icing
conditions that have exceeded those specified in the icing envelope in
Appendix C of part 25 of the Federal Aviation Regulations (14 CFR part
25). These AD's are intended to provide the flight crew with visual
cues which indicate that icing conditions have exceeded the
capabilities of the ice protection equipment, and with procedures to
safely exit those conditions. No change to the AD's is necessary.
Comment 17. Request To Withdraw the Proposals: AFM Revisions Already
Are Required
One commenter requests that the proposals be withdrawn because
section 121.133 (``Manual Requirements: `Preparation' '') of the
Federal Aviation Regulations (14 CFR 121.133) already requires that
operators incorporate revisions into the AFM's; therefore, issuance of
the proposed AD's is unnecessary.
The FAA does not concur. Section 121.133 of the Federal Aviation
Regulations (14 CFR 121.133) does not specifically require that AFM's
be updated to current revisions. Section 121.141 (``Airplane or
Rotorcraft Flight Manual'') of the Federal Aviation Regulations (14 CFR
121.141) requires that the current AFM be carried on the aircraft, but
does not require incorporation of the most current revisions.
Additionally, the commenter does not address the need to change the
AFM's for airplanes that operate under parts 135 (``Air Taxi Operators
and Commercial Operators'') and 91 (``General Operating and Flight
Rules'') of the Federal Aviation Regulations (14 CFR parts 135 and 91).
The appropriate vehicle for ensuring that the Limitations Section of
the AFM's is changed is through issuance of an AD.
Comment 18. Request To Withdraw the Proposals: Use Existing AFM
Revisions
The General Aviation Manufacturers Association (GAMA), on behalf of
its members, states that some of the affected manufacturers have
prepared FAA-approved revisions for the AFM's for their products. GAMA
indicates that those revisions incorporate specific information
regarding cues for recognizing severe icing conditions and procedures
for exiting such conditions, if encountered. Therefore, if the proposed
AD's are adopted, the requirements of the AD's would supersede the
information operators have already incorporated into the AFM's with
less appropriate information that is not type design specific.
One commenter, JAL, requests that certain existing AFM revisions
for the affected Jetstream airplanes be cited in the proposed AD's for
those airplanes in lieu of the content of the proposed AD's. (However,
JAL does not request that the proposals be withdrawn for this
particular reason.) JAL indicates that the existing AFM revisions have
already been FAA-approved.
The FAA does not concur with the commenters' requests. The FAA
acknowledges that the AFM revisions required by these final rules will
supersede previously approved AFM revisions. However, the FAA is
unaware of any AFM that addresses all of the provisions specified in
these final rules, nor of any AFM that contains specific visual cues
that the FAA has not included in the final rules. Even if AFM material
currently exists that does contain all of the provisions of the final
rules, the FAA finds that issuance of an AD would still be necessary to
mandate the provisions of the AFM revisions. However, the FAA would
consider a request for approval of an alternative method of compliance,
in accordance with the provisions of this AD, for those operators
having AFM's that already contain all of the provisions of the final
rules.
Another commenter requests that the FAA withdraw the proposal that
applies to Fairchild Model SA226 and SA227 series airplanes. The
commenter states that the AFM for those airplanes currently contains
visual cues to aid the flight crew in recognition of weather conditions
conducive to SLD. This AFM also provides procedures for avoidance of
such conditions. The commenter adds that these AFM procedures result in
additional operating limitations on the aircraft with regard to severe
weather conditions. The commenter believes these AFM procedures address
all current FAA requirements.
The FAA does not concur that the AFM for Fairchild Model SA226 and
SA227 series airplanes addresses all of the proposed requirements of
the proposed rule. For example, the Limitations section of the AFM for
those airplanes does not require the flight crew to exit severe icing
conditions. For this reason, the FAA does not consider the AFM for
Fairchild Model SA226 and SA227 series airplanes to be equivalent to
the information specified in these AD's.
Comment 19. Request To Withdraw the Proposals: Develop Rulemaking to
Address Airplane Certification Outside of Appendix C
Three commenters suggest that instead of arbitrarily prohibiting
operation of the airplane, the FAA should undertake a well-designed
research program and, if warranted, devise a rulemaking plan for
certification of airplanes outside of Appendix C of part 25 of the
Federal Aviation Regulations (14 CFR part 25). One commenter also
suggests possible retroactive implementation of a new Appendix C.
The FAA does not concur because of the length of time that would be
required to implement the commenters' suggestion. The FAA finds that
action is required prior to the commencement of the next icing season
to prohibit the continued flight of airplanes in icing conditions that
have been shown to be unsafe and for which the airplanes have not been
certificated. However, the FAA is currently considering initiating an
assessment of the need to revise Appendix C and the possibility of its
retroactive implementation.
Transport Canada Aviation states that the FAA has determined that
there may be a problem with the certification requirements for icing on
de Havilland Model DHC-6, DHC-7, and DHC-8 series airplanes, but not
the specific approval or design features of those airplanes. However,
the commenter does not specifically request that the proposals be
withdrawn.
The FAA does not concur with the commenter's statement. The FAA has
only determined that no adequate means exists for the flight crew to
determine when the icing certification limits have been exceeded. The
purpose of these AD's is to provide more clearly defined procedures and
limitations
[[Page 20655]]
associated with severe icing conditions. This does not imply that the
certification requirements for icing are inadequate.
Comment 20. Request To Withdraw the Proposals: Issue a ``General AD''
for All Airplane Types
One commenter requests that a ``general AD'' be issued to prohibit
all airplane types from inadvertent flight into hazardous SLD
conditions. Another commenter adds that if encounters with freezing
rain/freezing drizzle conditions must be reported to Air Traffic
Control, such reporting also should apply to flight crews of all
airplane types.
The FAA does not concur with the commenter's request. For the
reasons discussed earlier in the preamble of this AD, the FAA has
determined that airplanes having pneumatic deicing boots and unpowered
aileron controls are of immediate concern and have been addressed as a
higher priority. The FAA finds that action is required prior to the
commencement of the next icing season to prohibit the operation of
these airplanes in icing conditions that have been shown to be unsafe
and for which the airplanes have not been certificated. However, the
FAA is currently considering initiating an assessment of the potential
adverse effects of SLD on all airplane types.
Comment 21. Request To Withdraw the Proposals: Establish a Detailed
Reporting System
One commenter requests that the FAA establish a detailed reporting
system for inadvertent encounters with severe SLD. The commenter
envisions a system that would provide a database for better
identification of controllability issues and visual indications related
to these encounters.
The FAA does not concur with the commenter's request. The FAA has
been advised that the Regional Airline Association (RAA) has already
established an ``Unusual Icing Reporting Program'' for the purpose
described by the commenter; therefore, establishing another reporting
program would duplicate this benefit.
Comment 22. Request To Withdraw the Proposals: Revise the Master
Minimum Equipment List (MMEL)
Two commenters request that, instead of addressing an MMEL item in
an AD [i.e., the icing detection lights referenced in paragraph (a)(1)
of the proposals], the FAA should require that the MMEL be revised. A
third commenter adds that the decision to change the MMEL should be
made by FAA Operations Inspectors based on local conditions. One
commenter states that the prohibition of dispatch with any inoperative
ice detection lights would preclude any efforts by an operator to
enhance safety by installing a second set of bulbs. The commenter adds
that under this proposed rule, this type of action would be penalized
by simply doubling the chances of a burned out bulb grounding the
aircraft. In practice, if one were to add a fully redundant set of
bulbs, it would enhance safety by allowing the equivalent of the
current illumination level even with a bulb burned out.
The FAA does not concur with these requests. FAA Operations
Inspectors are not authorized to make MMEL revisions. The FAA has
determined that it is prudent to address the icing detection lights in
these final rules to ensure uniform and immediate application of the
requirements of the AD's. Concerning the example provided by one of the
commenters, if an operator chooses to add a fully redundant set of
bulbs, that operator should request approval of an alternative method
of compliance in accordance with the provisions of this final rule.
Although Transport Canada Aviation does not request that the
proposals be withdrawn, it requests a revision to the requirement that
all icing detection lights must be operative. For de Havilland Model
DHC-7 and DHC-8 series airplanes, the commenter requests that the
requirement be changed to mandate that at least one outboard and one
inboard inspection light be operative prior to flight into known or
forecast icing conditions at night. Since the MMEL contains a provision
that a suitable lamp/light of adequate capacity be available, this is
considered acceptable in conjunction with other indications of freezing
rain or freezing drizzle. Similarly, for de Havilland Model DHC-6
series airplanes, the requirement should be revised to require a
suitable lamp/light for dispatch at night with one wing inspection
light inoperative.
The FAA does not concur. The FAA has determined that the
justification provided by the commenter is not adequate to enable the
FAA to determine if the proposed changes are acceptable. During severe
icing conditions, the flight crew's workload may be high, and there may
be no opportunity to use the portable lamp/light, which, in itself, may
create disorientation in the cockpit due to adverse reflections from
the glass. The FAA's intent in having all inspection lights be
operative at night is to provide the flight crew the best possible
visibility of the airframe. However, the FAA would consider a request
for approval of an alternative method of compliance, in accordance with
the provisions of these AD's, provided that adequate justification is
presented to support such a request.
Comment 23. Request To Withdraw the Proposals: Certify Airplanes for
Flight in Conditions Outside Appendix C
One commenter implies that the airplanes affected by the proposed
rules must be rectified to a level beyond the present certification
requirements for flight in icing.
The FAA does not concur. The final rules do not require
certification of the airplane beyond the current certification
requirements for flight in icing specified in Appendix C. These AD's
simply provide the flight crew with visual cues which indicate that
icing conditions have exceeded the capabilities of the ice protection
equipment, and with procedures to safely exit those conditions.
One commenter requests that the proposal for de Havilland Model
DHC-6 series airplanes be withdrawn because this airplane model is type
certificated in Canada, which is a country with a higher standard than
the United States for operating in icing conditions.
The FAA does not concur. This commenter did not submit data to the
FAA to substantiate that the airplane has been shown to be safe for
flight outside the icing certification envelope specified in Appendix
C. Additionally, the FAA is unaware of any foreign civil aviation
authority having certification requirements for icing conditions that
are outside of the icing certification envelope used in the United
States.
Comment 24. Request To Withdraw the Proposals: Proposals Prohibit
Takeoff or Approach in ``Light Freezing Drizzle'' Conditions
One commenter requests the proposals be withdrawn because the
proposed limitation would prohibit takeoff or approach when ``light
freezing drizzle'' conditions that are caused by light precipitation
falling through a thin layer of cold surface air below warmer air above
are reported on the surface. The commenter maintains that with
accomplishment of the appropriate ground deicing precautions prior to
takeoff, no hazard to the operation of the airplane is posed.
The FAA does not concur that the AD's should be withdrawn for this
reason. These AD's do not affect any existing regulations or FAA-
approved operating procedures related to takeoff, dispatch, or release
of an airplane in icing conditions, nor do these AD's
[[Page 20656]]
prohibit operation in specific meteorological conditions. These AD's
only prohibit remaining in icing conditions when certain visual cues
are present on the airplane. Operators must comply with existing rules
that require an airplane to be free of ice prior to takeoff. Therefore,
takeoff in ``light freezing drizzle'' would only be prohibited by
existing regulations or FAA-approved operating procedures, not by these
AD's. As explained previously, the FAA considers that landing the
airplane when freezing rain/freezing drizzle conditions are encountered
would, in many cases, be the most expeditious method of exiting the
conditions. Such landing would be in compliance with the limitation
that requires the flight crew to exit the severe icing conditions.
Comment 25. Request To Withdraw the Proposals: Proposals Leave
Unanswered Questions
One commenter contends that the proposals leave unanswered
questions. The commenter alleges that without the answers to those
questions, affected parties are deprived of the ability to provide
informed comments and, thereby, are ``denied their rights under the
Administrative Procedures Act (APA) to comment on the proposed rules.''
Specifically, the commenter asks:
--What is unusual icing?
--Does the pilot, Air Traffic Control, dispatch, or the FAA determine
when the conditions exist?
--What is splatter effect?
--Where are the operating instructions incorporated--in the AFM,
training manuals, or some other document?
The FAA infers from the commenter's remarks that the commenter requests
the proposed AD's be withdrawn because informed comments could not be
provided.
The FAA does not concur that the AD's should be withdrawn on this
basis. The FAA does not agree that the public has been deprived of the
ability to provide informed comments, as required by the APA. In
general, the APA requires that notice of the terms or substance of a
proposed rule be published in the Federal Register. The purpose of this
requirement is to ensure that federal agencies thoroughly consider all
information and opinions submitted by the public before any
requirements are imposed. Notice is intended to improve both the
quality of the regulations and their acceptability to the public. The
FAA finds that none of the questions raised by the commenter identify
areas in which the commenter has not been provided a reasonable
opportunity to comment. The fact that the commenter raises questions
suggests that the commenter considers a need for further clarification.
Even if the commenter is correct in that these questions require
clarification, that fact in itself is a comment that can be addressed
properly by simply clarifying terms. The fact that clarification is
necessary does not mean that the public has been denied reasonable
opportunity to comment.
In response to the commenter's questions, the FAA provides the
following clarification. The term ``unusual icing'' did not appear in
the proposed rules. However, the phrase ``unusually extensive ice'' is
referenced in paragraph (a)(1) of the final rules. [This reference
appears in paragraph (a)(2) of the final rule for Aerospatiale
airplanes.] ``Unusually extensive ice'' accrued on the airframe in
areas not normally observed to collect ice is a visual cue that is
subject to interpretation by the flight crew; therefore, a specific
definition of ``unusually extensive ice'' cannot be provided.
These AD's address changes to AFM limitations, which pertain to the
pilot since the pilot is responsible to look for the visual cues
defined in the AD's. Therefore, the pilot determines when severe icing
conditions exist.
The terminology ``splatter effect'' did not appear in the proposed
rules. The FAA infers from the commenter's question that the commenter
is referencing terminology used in paragraph (a)(2) of the proposed
AD's. ``Droplets that splash or splatter on impact at temperatures
below +5 degrees Celsius OAT'' is a visual cue that was included in the
proposed AD's as a method of identifying severe icing conditions.
Concerning incorporation of operating instructions, these final
rules specify that the AFM's be revised. The AD's do not specify that
any other manuals or documents be revised. However, information that is
included in the AFM as a limitation is necessarily included in the
training program.
Comment 26. Request To Clarify Scope of Icing Conditions Addressed
Transport Canada Aviation suggests that the proposals, which
address only freezing rain/freezing drizzle conditions, are not
adequate to cover all hazards related to operation of aircraft in icing
conditions. The commenter makes no specific request.
The FAA concurs that these AD's do not address all icing related
hazards. The FAA's intent is to minimize the potential hazards
associated with operating the airplane in severe icing conditions by
provid
FR Doc. 96-10744 Airworthiness Directives; Aerospatiale Model ATR-42 and ATR-72 Series Airplanes
ing the flight crews with more clearly defined procedures and
limitations associated with such conditions. However, no change to the
final rules is necessary.
Comment 27. Request To Expand the Applicability of the AD's
One commenter, the CAA, suggests that the ``coverage'' of the
proposals should be stated clearly. The CAA believes that a restriction
to those operations in ``regularly scheduled passenger service'' is not
warranted for a safety issue as it does not cover cargo, charter, or
private operations. The commenter does not specify which airplane
models should be addressed. The FAA infers from the commenter's remarks
that it requests that the proposed AD's be applicable to other airplane
models that are used in cargo, charter, or private operations that may
have been excluded from the applicability of these AD's.
The FAA does not concur that the applicability of these AD's should
be expanded to include additional airplane models used primarily in
cargo, charter, or private operation. The FAA is currently considering
the need for additional rulemaking to address other airplane models
having pneumatic deicing boots and unpowered aileron controls that are
used in these types of service that were not addressed by these AD's.
Additionally, the applicability of these final rules indicates that the
AD's apply to ``all'' of the airplane models identified, certificated
in any category. This means that the AD's apply to all of the affected
airplanes, regardless of how those airplanes are operated (including
passenger service, cargo, charter, or private operation).
Comment 28. Request for Design Changes to the Airplanes
One commenter requests that the FAA require design changes to the
airplanes, which, when accomplished, will allow elimination of the AFM
limitations. The commenter states that abnormal roll control anomalies
could be eliminated by design changes that prevent any ice shapes from
forming by using supplemental ice protection added to existing
pneumatic boots or other ice protection installations. The commenter
concludes that, given this added protection, restricting flight in
freezing drizzle could be reduced to allow exposure to these
atmospheric conditions for a reasonable time and would not require
immediately exiting these conditions when encountered as presently
stipulated.
[[Page 20657]]
The FAA does not concur that it should require design changes to
airplanes in these AD's. Currently, the FAA is unaware of any design
changes that would allow elimination or reduction of the AFM
limitations specified in these AD's. However, if such design changes
are developed, approved, and become available, the FAA would consider
additional rulemaking to require such changes. The FAA finds that even
if the ice protection system prevented the formation of ice shapes in
front of the ailerons when the airframe is exposed to certain freezing
drizzle conditions, other meteorological conditions still exist (e.g.,
freezing rain) for which the airplane would not be certificated.
Comment 29. Request for More Specific Visual Cues
One commenter requests that the FAA provide more specific visual
cues for identification of freezing rain or freezing drizzle
conditions. The commenter states that the generic visual cues provided
in the proposed AD's are not adequate for aircraft types that
frequently operate in and encounter SLD conditions. For example, ice
could be forming on the upper wing and not the lower wing; therefore,
looking at the lower wing would not be a reliable visual cue. Two
commenters suggest that specific visual cues be provided for each
airplane model. One of these commenters states that subjective cues may
be of limited benefit if the pilot's experience with icing is
inadequate. The other commenter adds that subjective visual cues will
result in varying interpretations (i.e., some unnecessary course
changes in altitudes or service interruptions caused by overly
conservative interpretations). Transport Canada Aviation does not
request more specific visual cues; but states that ``unusually
extensive ice,'' ``normally observed,'' and ``farther back than
normally observed'' are all variable terms that are largely dependent
on flight crew experience. The commenter contends that limitations and
procedures described using these terms will not be consistently
interpreted. In addition, Transport Canada Aviation states that ice on
the lower wing surface aft of the protected area, by itself, is
unlikely to cause a hazard. Moreover, the presence or absence of such
ice cannot be used as an indication of any hazardous accumulation on
the upper wing surface or on the horizontal stabilizer.
The FAA does not concur with the commenters' request to provide
more specific (or airplane-specific) visual cues. The FAA agrees with
the commenters' assertion that, under certain circumstances,
examination of the undersurface of a high wing may not be reliable. The
FAA also agrees that other cues, such as unusually extensive ice
accrued on the airframe in areas not normally observed to collect ice
and accumulation of ice on the propeller spinner farther aft then
normally observed, are subjective and that reliance on pilot judgment
and experience is necessary in such cases. Additionally, the FAA fully
supports the development and use of airplane-specific cues by operators
and manufacturers. Unfortunately, no commenter provided airplane-
specific cues during this comment period.
In summary, the FAA finds that the combined use of the generic cues
provided and the effect of the final rules in increasing the awareness
of pilots concerning the hazard of operating outside of the
certification icing envelope will provide an acceptable level of
safety. However, for those operators that elect to identify airplane-
specific visual cues, the FAA would consider a request for approval of
an alternative method of compliance, in accordance with the provisions
of this AD.
Transport Canada Aviation states that the term ``protected area''
may not be readily recognizable by the flight crew; for example, not
all of a deicing boot surface is ``protected area.'' [This terminology
appears in the second visual cue (in the proposals for airplanes other
than Aerospatiale airplanes) and in the autopilot limitation in
paragraph (a)(1) of the proposals. For Aerospatiale airplanes, this
terminology appears in the secondary indications in paragraph (a)(1) of
the proposal.] The FAA infers that the commenter requests that more
specific language than ``protected area'' be used.
The FAA does not concur that this terminology should be revised.
The FAA considers that a pilot understands that a portion of the
deicing boot would be considered to be unprotected. Therefore, no
additional clarification or definition of the term ``protected area''
is necessary.
Comment 30. Request to Reference Clear Icing Conditions and Clear
Component of Mixed Icing Conditions
One commenter also asks that all references to freezing rain and
freezing drizzle environments and visual cue identification reference
clear icing conditions and the clear component of mixed icing
conditions. According to the commenter, mixed icing conditions can
contain areas of freezing rain and/or freezing drizzle. The commenter
notes that mixed icing has taken on two different definitions within
the aviation community--the ``engineering'' definition (which is
defined in an FAA icing handbook) and the definition pilots use (which
includes areas of clear and rime ice). The commenter states that a
clear definition of these conditions is needed. The commenter adds that
only pilot reports can show that freezing rain/freezing drizzle exists
because forecasting of these conditions is inadequate. The commenter
indicates that while the Aerospatiale airplanes have side window cues
that will accurately identify freezing rain or freezing drizzle, pilots
of other airplanes without such a sophisticated cue may erroneously
report mixed icing.
The FAA does not concur. The FAA acknowledges that freezing rain
and freezing drizzle may be reported as clear/mixed icing conditions.
However, the flight crew must exit icing conditions that produce the
visual cues specified in the final rules. Exiting the icing conditions
is not dependent upon the terminology used to describe the conditions.
Therefore, the FAA has determined that it is not necessary to include
references to clear icing conditions and the clear component of mixed
icing conditions. In addition, the FAA has determined that including a
discussion in these AD's of the phenomenon of mixed icing conditions as
it relates to the current state-of-the-art weather forecasting would be
premature because no clear definition of this phenomenon has been
agreed upon among the aviation community. The FAA is currently
considering an assessment during which various icing-related subjects,
including mixed icing conditions, would be addressed.
Comment 31. Request for Research and Use of Wing-Mounted Ice Detectors
One commenter requests that wing-mounted ice detectors, which
provide real-time icing severity information (or immediate feedback) to
flight crews, continue to be researched and used throughout the fleet.
The FAA infers from this commenter's request that the commenter asks
that installation of these ice detectors be mandated by the FAA.
While the FAA supports the development of such ice detectors, the
FAA does not concur that installation of these ice detectors should be
required. The specifications for automatic detectors having the
capabilities to differentiate among freezing rain, freezing drizzle,
and other icing conditions have not been determined. However, if such
ice detectors are
[[Page 20658]]
developed, approved, and become available, the FAA may consider further
rulemaking action to require installation of such equipment.
Comment 32. Request to Limit the Applicability of the AD's
One commenter requests that the applicability of the proposals be
limited to airplanes having NACA 430xx airfoils. The commenter asserts
that the unusual pressure peak on the NACA 430xx airfoils at 9 percent
chord caused the ice ridge to form at that point, which resulted in the
accident involving a Aerospatiale Model ATR-72 series airplane. The
commenter states that ``the accident was caused by the poorly designed,
unusual, and fortunately rarely used NACA 430xx airfoils used on this
airplane.''
The FAA does not concur with the commenter's request to limit the
applicability of the AD's. First, the National Transportation Safety
Board (NTSB) has not yet made an official finding of the probable cause
of the accident referenced by the commenter. Therefore, the FAA cannot
assume that airplanes having NACA 430xx airfoils are more susceptible
to the addressed unsafe condition than those airplanes that do not have
this type of airfoil. Second, the FAA has examined the data submitted
by the commenter, and disagrees with the commenter's assertion
concerning the formation of ice ridges. The formation of ice ridges
depends on many factors. Ice ridges have been observed to form in areas
where there is no pressure (commonly, ``suction'') peak. However, the
impingement location of large droplets is more relevant to the
development of ice ridges than the particular pressure distribution.
The commenter does not address the fact that, regardless of the type of
airfoil on an airplane, a substantial sharp edge protuberance in the
vicinity of the suction peak can have adverse consequences to the
aerodynamic performance of the airfoil. Regardless of the cause of
location of ice formations, prevention or removal of the ice is
certainly an acceptable remedy for such conditions, should those
conditions occur. For example, Aerospatiale extended the deicing boots
to prevent the formation of adverse ice ridges.
Comment 33. Request for Approval of Improved Deicing Equipment for
Aerospatiale Airplanes
ATR requests that paragraph (b) of the proposed rule for
Aerospatiale airplanes be revised to indicate that installation of any
improved version of deicing equipment that is approved by the FAA is
acceptable for compliance with the requirements of that paragraph. The
commenter provides no justification for its request.
The FAA does not concur with the commenter's request to revise the
AD. However, if an improved version of deicing equipment is developed,
approved, and available, the FAA would consider a request for approval
of an alternative method of compliance, in accordance with the
provisions of the AD.
Comment 34. Request for Re-Evaluation of Modified Deicing Boots on
Aerospatiale Airplanes
In response to the proposal for Aerospatiale airplanes, one
commenter requests that the new, enlarged deicing boots that are
required to be installed on these airplanes must be re-evaluated before
total confidence in the modified boots is warranted. The commenter
asserts that no test data exist to show that the modified boots will
preclude the problem of large droplets outside of Appendix C. The area
of exposure outside of Appendix C is essentially open-ended, and only
limited testing within a narrow range of droplet diameters was
conducted. Additionally, the test conditions that existed during the
tanker testing conducted at Edwards Air Force Base, which was intended
to be a ``before modification/after modification'' validation program,
were not identical. The commenter adds that no modification will ensure
that any airplane is safe while flying in icing conditions outside
those specified in Appendix C.
The FAA does not concur with the commenter's request for a re-
evaluation of the modified deicing boots. The modified deicing boots
for these airplanes were subjected to an extensive certification
program by both the FAA and the Direction Generale de l'Aviation Civile
(DGAC), which is the airworthiness authority for France. FAA approval
of the modified boots was based on engineering analyses, wind tunnel
testing, flight testing in natural icing conditions, and a validation
program involving a United States Air Force icing tanker. This testing
verified that the modified boots continue to perform the intended
function within the Appendix C icing envelope. In addition, the
extended deicing boots were shown to adequately protect the airplane
from the larger, supercooled water droplets that are believed to have
existed in the area at the time of the accident in October 1994.
It should be noted, however, that it is not intended that the
modified boots provide protection in all possible icing conditions,
including freezing rain/freezing drizzle. However, the FAA considers
that the combination of the enlarged deicing boots, the AFM operational
procedures and restrictions, and the visual cues which indicate entry
into freezing rain/freezing drizzle conditions provides for an enhanced
level of safety during inadvertent flight in these conditions.
Comment 35. Request for Formal Weather Forecasting System for Freezing
Rain/Freezing Drizzle
One commenter supports a requirement to establish a formal system
to provide forecasts of freezing rain/freezing drizzle conditions, as
proposed in paragraphs (b) and (c) of the original proposed rule for
Aerospatiale airplanes. [This proposed requirement was removed from the
subsequent supplemental notice of proposed rulemaking (NPRM) issued for
these airplanes in January 1996.] The commenter states that such a
requirement should remain in effect until forecasting tools are
developed or detection methods are established to prevent dispatch or
operations in conditions outside those specified in Appendix C. The
commenter states that the efficacy of the deicing boots has not been
shown completely nor documented; therefore, avoidance of freezing rain/
freezing drizzle is paramount to safety of flight.
The FAA does not concur that such a requirement is necessary. The
FAA agrees that such a system would enhance the safety of flight
operations. However, there is no evidence that lack of a system with
such specialized features would lead to an unsafe condition. Forecasts
of freezing rain/freezing drizzle are a normal part of pre-flight
weather briefings. The FAA is aware, however, of serious limitations
for such a system to provide accurate and timely forecasts of these
conditions during flight in areas that are removed from weather
reporting stations. Quite often, the only indication of the existence
of severe icing conditions is from pilot reports or other direct
observations.
Research is underway currently in industry and the academic
community to address shortcomings in the forecasting of severe icing
conditions. The FAA may consider further rulemaking if advancements in
weather forecasting provide for a reliable method to predict the
occurrence of freezing rain/freezing drizzle conditions during flight
or in areas removed from direct observations.
[[Page 20659]]
Comment 36. Request To Approve Earlier Service Bulletin Revisions
One commenter to the proposed rule for Aerospatiale airplanes
requests that the proposed AD be revised to specify that earlier
revisions of service bulletins are acceptable for compliance with the
requirements of the proposed rule. The commenter makes this request so
as to eliminate the need to apply for approval of alternative methods
of compliance when accomplishing service bulletin revisions other than
those specified in the proposed rule.
The FAA does not concur that earlier revisions of the referenced
service bulletins should be cited in the final rule for Aerospatiale
airplanes. However, the FAA would consider a request for approval of an
alternative method of compliance, in accordance with the provisions of
the AD, provided that adequate justification is presented to support
such a request.
Additionally, the FAA has revised the revision levels specified for
certain service bulletins because those revision levels were omitted
inadvertently from paragraph (b) of the proposed rule for Aerospatiale
airplanes. That final rule has been revised to indicate that certain
modifications are to be accomplished in accordance with Revision 1 of
Aerospatiale Service Bulletins ATR42-57-0043, ATR72-57-1015, and ATR72-
57-1016. The correct date for Revision 1 of those service bulletins
(April 10, 1995) was specified in the proposal for the affected
airplanes.
Comment 37. Request To Revise Referenced Service Bulletins
One commenter to the proposal for Aerospatiale airplanes suggests
that service bulletin revisions should contain a statement indicating
that the revision has no effect on previously modified airplanes. The
commenter provides no justification for this request.
The FAA acknowledges that many service bulletins do contain the
suggested phrase as an aid to operators that may already have
accomplished an earlier service bulletin revision. In fact, if a
particular service bulletin is specified in an AD and that service
bulletin is revised, the FAA routinely determines whether the service
bulletin revision adequately addresses the unsafe condition specified
in the AD; if necessary, the FAA amends the AD to cite the later
service bulletin revision.
Comment 38. Request To Revise Visual Cue: Ice on Side Window
One commenter suggests revised wording for the first visual cue
specified in paragraph (a)(1) of the proposed rule for Aerospatiale
airplanes, as follows: ``Freezing rain and freezing drizzle are
characterized by ice covering all or a substantial part of the unheated
portion of either forward side window and/or water splashing or
streaming on the windshield or the side window when in freezing or near
freezing temperatures.'' The commenter states that the present wording
implies that ice will always appear on the side window; however, this
is not the case.
The FAA does not concur with the commenter's request. The
commenter's revised wording suggests that water splashing or streaming
on the windshield or the side window would be a primary cue used to
determine when severe icing conditions are present. The FAA does not
concur that water splashing or streaming on the windshield or the side
window would be a reliable cue in itself. However, this cue may be used
as a supplemental cue to the primary cue of ice accruing on the side
window. No change to the final rule for Aerospatiale airplanes is
necessary.
Comment 39. Request To Remove Visual Cue: Unusually Extensive Ice
Accretion
One commenter, Saab, requests that if the FAA does not withdraw the
proposed AD's, paragraph (a)(1) of the proposal for Saab SF340A and
SAAB 340B series airplanes should be revised. The commenter suggests
that the first visual cue that appears in that paragraph, which relates
to unusually extensive ice accretion, be removed from the proposal for
those airplanes. Saab indicates that critical ice is believed to be ice
that builds up beyond the protected surfaces on the wing. On Saab Model
SF340A and SAAB 340B series airplanes, the pilot has a good view of the
outer wing and the propeller spinner. Unusually extensive ice in other
areas may or may not be significant in determining whether freezing
rain or freezing drizzle is present; however, the primary visual cue
for these airplanes is ice on the spinner/outer wing.
In light of Saab's remarks, the FAA concurs that the visual cue
addressed by the commenter should be removed from the final rule for
Saab Model SF340A and SAAB 340B series airplanes. (That visual cue
remains in place for Saab Model SAAB 2000 series airplanes.) Paragraph
(a)(1) of that final rule has been revised accordingly.
A second commenter, Raytheon, requests that the same visual cue be
removed from the proposal for Beech airplanes. Raytheon indicates that
it does not believe that observation of this visual cue indicates that
the airplane has exceeded the Appendix C icing envelope with respect to
Beech airplanes. Therefore, the cue specified in the proposal would be
irrelevant in an AFM for these airplanes.
The FAA does not concur with Raytheon's request. The commenter has
not submitted data to warrant removal of the visual cue. No change to
the final rule for Beech airplanes has been made.
Comment 40. Request To Remove Visual Cue: Accumulation of Ice on Wing
Surfaces
JAL requests that the FAA remove the generic information contained
in the visual cue concerning accumulation of ice on the wing surfaces
from the proposals for Jetstream airplanes. JAL indicates that, for its
airplanes, the appropriate visual cue is the accretion of ice behind
the protected area of the wing upper surface (not the wing lower
surface).
The FAA concurs. The FAA finds that this particular visual cue
should be airplane-specific. Therefore, the FAA has customized
paragraph (a)(1) of the final rules for all affected airplanes to
specify whether accumulation of ice is observed on the upper or lower
surface of the wing, depending upon whether the airplane is a high- or
low-wing airplane. [Operators should note that, for Aerospatiale
airplanes, the cue was customized in paragraph (a)(2) of the final
rule.]
Comment 41. Request To Revise Visual Cue: Accumulation of Ice on
Propeller Spinner
One commenter requests that the FAA revise the visual cue
concerning accumulation of ice on the propeller spinner, as specified
in paragraph (a)(1) of the proposals. For consistency, the commenter
requests that the word ``back'' be replaced with ``aft.''
The FAA concurs with the commenter's request. The final rules have
been revised to change the visual cue to read as follows:
``Accumulation of ice on the propeller spinner farther aft than
normally observed.'' [Operators should note that, for Aerospatiale
airplanes, this change appears in paragraph (a)(2) of the final rule.]
Comment 42. Request To Remove Visual Cue: Accumulation of Ice on
Propeller Spinner
One commenter, JAL, requests that the FAA remove the visual cue
concerning accumulation of ice on the propeller spinner from the
proposals for Jetstream airplanes. JAL indicates that on Jetstream
Model ATP airplanes and Model 748 series airplanes, the propeller
spinner is not visible from the
[[Page 20660]]
flight deck. On Jetstream Model 3101, 3201, and 4101 airplanes, the
propeller spinner is visible from the flight deck, but flight test
experience indicates that there is no unique correlation between the
extent of spinner ice accretion and the existence of freezing rain/
freezing drizzle conditions.
The FAA concurs partially. The FAA concurs that since the propeller
spinner is not visible from the flight deck on Jetstream Model ATP
airplanes and Model 748 series airplanes, the visual cue can be removed
from paragraph (a)(1) of the final rules for these models. The FAA does
not concur that this visual cue should be removed from the AD's for
Jetstream Model 3101, 3201, and 4101 airplanes. The commenter did not
submit data to substantiate its assertion that flight test experience
indicates there is no unique correlation between the extent of spinner
ice accretion and the existence of freezing rain/freezing drizzle
conditions. Therefore, it is uncertain if the commenter's flight test
airplane was equipped with instrumentation that would allow the
detection and/or measurement of droplets outside the Appendix C
conditions, and if the airplane had flown into icing conditions
containing freezing rain or freezing drizzle.
Comment 43. Request To Remove Limitation to Immediately Exit Freezing
Rain/Freezing Drizzle
Saab requests that the FAA remove a sentence from paragraph (a)(1)
of the proposals that requires the pilot to immediately exit freezing
rain or freezing drizzle conditions by changing altitude or course.
This commenter points out that the first limitation contained in the
proposal for Saab airplanes (``Flight in meteorological conditions
described as freezing rain or freezing drizzle, as determined by the
following visual cues, is prohibited * * *'') already prohibits flight
in these conditions, and the pilot should respond accordingly. Raytheon
believes a conflict exists between using observations of ice accretion,
as required by paragraph (a)(1) of the proposed rules, and the
``determination'' of certain meteorological conditions.
The FAA concurs partially. The FAA does not agree that the sentence
discussed by Saab should be removed from paragraph (a)(1) of the final
rules. As explained previously, the first limitation in paragraph
(a)(1) of the final rules has been revised to read: ``During flight,
severe icing conditions that exceed those for which the airplane is
certificated shall be determined by the following visual cues. If one
or more of these visual cues exist, immediately request priority
handling from Air Traffic Control to facilitate a route or an altitude
change to exit the icing conditions.'' (This wording is slightly
different in the final rule for Aerospatiale airplanes because only one
visual cue is provided.) The FAA finds that this revision to the final
rules addresses the commenters' concerns with regard to the proposed
limitations.
One commenter poses various questions concerning the last sentence
of the first instruction listed in the procedures for exiting the
freezing rain/freezing drizzle environment in paragraph (a)(2) of the
proposals. (That sentence reads as follows: ``Asking for priority to
leave the area is fully justified under these conditions.'')
--What does the term ``priority'' provide a pilot when asking for
priority to leave icing conditions?
--What if there were three simultaneous requests for ``priority?''
--What Air Traffic Control procedures exist for treating an immediate
request for ``priority?''
--Where is the term ``priority'' defined?
The commenter states that confusion over terms that have not been
defined clearly by the FAA has partially resulted in accidents and
incidents. However, the commenter does not cite a specific case in
which this occurred.
The FAA has re-examined the last sentence of the first instruction
listed in the procedures for exiting the freezing rain/freezing drizzle
environment in paragraph (a)(2) of the proposals. The FAA has
reconsidered use of the term ``priority.'' The FAA finds that more
appropriate language that would be understood clearly by the flight
crew and Air Traffic Controllers should be used in that instruction.
Existing training for flight crews and Air Traffic Controllers
addresses priority handling of airplanes. However, the FAA will issue
additional information for Air Traffic Controllers to further clarify
priority handling of airplanes in severe icing conditions. The FAA
finds that the limitations specified in paragraph (a)(1) of the final
rules will result in the pilot taking appropriate steps to exit the
icing conditions. Therefore, the FAA finds that the sentence questioned
by the commenter may be removed from the final rules without affecting
safety. Accordingly, the FAA has removed that sentence from the final
rules.
Additionally, in order to use terminology in the procedures for
exiting the severe icing environment that is consistent with the
terminology used in the revised limitation and to simplify certain
language, the FAA has revised the first instruction of the procedures.
The revised instruction reads as follows: ``Immediately request
priority handling from Air Traffic Control to facilitate a route or an
altitude change to exit the icing conditions in order to avoid extended
exposure to flight conditions more severe than those for which the
airplane has been certificated.''
Comment 44. Request To Change the Note Concerning the Autopilot
One commenter, ATR, requests that the FAA revise the second note in
paragraph (a)(1) of the proposal for Aerospatiale airplanes. As
proposed, ATR believes the last sentence of the note is too
restrictive. ATR proposes the following: ``The autopilot may mask
tactile cues * * * characteristics. Therefore, when any ice is visible
on the airplane, the pilot should consider flying manually for short
periods in order to check the absence of any anomaly.''
Two commenters request that the FAA remove a similar note
concerning the autopilot from the proposals for airplanes other than
Aerospatiale models. One of the commenters, JAL, states that the note
contains advisory information and should not appear in the Limitations
Section of an AFM.
The FAA concurs with ATR's comment that the last sentence of the
note is too restrictive; that sentence has been removed from the final
rules for all airplanes. However, the FAA does not agree with JAL's
contention that the explanation of the relationship between the
autopilot and the masking of tactile cues is inappropriate for
insertion in the Limitations Section of an AFM. On the contrary, the
FAA finds that inclusion of such information will increase the level of
understanding and, consequently, will increase the level of safety.
In light of this, the FAA finds that the note may be removed from
paragraph (a)(1) of the final rules for all airplanes; however, the
information contained in the first sentence of that note has been
combined with the autopilot limitation in paragraph (a)(1) of the final
rules. The final rules have been revised accordingly.
Comment 45. Requests to Remove Autopilot Limitation
Saab requests that the FAA revise the second limitation that
appears in paragraph (a)(1) of the proposal for Saab airplanes. As
proposed, this limitation indicates that use of the autopilot is
prohibited when any ice is observed forming aft of the protected
surfaces of
[[Page 20661]]
the wing, or when unusual lateral trim requirements or autopilot trim
warnings are encountered. Saab asks that this autopilot limitation be
modified to take into consideration the autopilot system design on
these airplanes, which provides out-of-trim warnings; therefore, the
autopilot can be used up to the point where a warning is triggered.
Saab adds that the triggering point is early enough for the warning to
be taken, should the reason be ice build-up beyond the protected
surfaces. Additionally, there is no automatic disconnect if the
autopilot servo reaches its limit torque, which would prevent any
surprise to the pilot during an out-of-trim condition.
Another commenter, EMBRAER, requests that use of the autopilot not
be limited for EMBRAER Model EMB-120 series airplanes. The commenter
states that flight tests have demonstrated the safe ability of these
airplanes to depart a freezing rain/freezing drizzle condition with the
autopilot on.
Raytheon also objects to the autopilot limitation. Raytheon
suggests that a better approach is to inform the pilots of the nature
of ice accretion, and then let the pilots decide when to use the
autopilot. The commenter believes that prohibiting use of the autopilot
when any ice is observed aft of the protected surfaces of the wing is a
rigid requirement that takes away a valuable aid to the flight crew
when it may be needed most. Raytheon states that there is no evidence
that the autopilots on Beech aircraft would mask an icing related
control problem. The commenter points out that tests on those aircraft
disclosed no icing related control problem to mask. The commenter adds
that trying to anticipate every situation with an absolute prohibition
may lead to other unsafe conditions.
The FAA does not concur that the autopilot limitation should be
modified or removed from the AD's for any of the affected airplanes.
The limited amount of time the pilot is using manual controls instead
of the autopilot would not result in an unsafe condition. In normal
operational environments and conditions, the autopilot is a valuable
aid that reduces the workload of the flight crew. However, under
abnormal conditions (ice aft of the protected surfaces, unusual lateral
trim, or autopilot trim warnings), the autopilot will mask the build-up
of large or unusual control forces in one or more axes. Therefore, for
the short period of time necessary to exit severe icing conditions, the
safest course of action would be manual pilot control. Even if an
autopilot does not automatically disconnect, the pilot may choose to
disconnect the autopilot and could then be faced unexpectedly with
unusual control forces. These reasons also still hold true with
airplanes that have been flight tested with the ice shapes.
Since the issuance of the proposed rules, the FAA has re-examined
the autopilot limitation specified in paragraph (a)(1) of the
proposals. The FAA recognizes that clarification is necessary with
regard to its intent concerning that limitation. That limitation, as
specified in the proposals, states that use of the autopilot is
prohibited when any ice is observed forming aft of the protected
surfaces of the wing, or when unusual lateral trim requirements or
autopilot trim warnings are encountered. However, the FAA's intent
concerning that limitation is that the autopilot be disconnected when
the flight crew observes any of the visual cues identified in paragraph
(a)(1) of the AD's. The need to disconnect the autopilot arises when an
amount of ice accumulates that indicates the limits of the ice
protection equipment have been exceeded, regardless of the means by
which the flight crew becomes aware of the accumulation of ice.
Additionally, the FAA acknowledges that the autopilot limitation,
as proposed, could be misinterpreted to mean that the autopilot must be
disengaged when unusual lateral trim or autopilot trim warnings are
encountered, regardless of whether the airplane is in icing conditions.
However, the FAA only intended that the autopilot limitation apply
while the airplane is in icing conditions.
In light of this, the FAA has determined that the autopilot
limitation contained in paragraph (a)(1) of the final rules must be
revised. The FAA has changed that limitation to read as follows:
``Since the autopilot may mask tactile cues that indicate adverse
changes in handling characteristics, use of the autopilot is prohibited
when any of the visual cues specified above exist, or when unusual
lateral trim requirements or autopilot trim warnings are encountered
while the airplane is in icing conditions.'' (This wording is slightly
different in the final rule for Aerospatiale airplanes because only one
visual cue is provided.) This revision more accurately reflects the
FAA's intent and is, therefore, a logical outgrowth of the proposed
rules.
Comment 46. Request To Insert Procedures in Limitations or Abnormal
Procedures Section of AFM
One commenter suggests that operations in icing conditions that
exceed the capability of the airplane should be described in the
Limitations or Abnormal Procedures Section of the AFM, rather than in
the Normal Procedures Section, as specified in paragraph (a)(2) of the
proposals.
The FAA concurs partially. The FAA agrees that the Abnormal
Procedures Section may be an appropriate location for the procedures
for exiting severe icing conditions. However, the FAA does not agree
that such operational procedures should appear in the Limitations
Section of the AFM since such procedures are not limitations.
Additionally, upon further review, the FAA finds that AFM's may have
neither an Abnormal Procedures nor a Normal Procedures Section.
Consequently, to provide operators with flexibility as to where the
procedures specified in paragraph (a)(2) should be incorporated in the
AFM, that paragraph has been revised to require that the ``Procedures''
Section of the AFM be revised. This means that the procedures may be
inserted in the ``Normal Procedures,'' ``Abnormal Procedures,'' or
other ``Procedures'' Section of the AFM, as appropriate.
Comment 47. Request To Remove Duplicate Visual Cues
Two commenters indicate that certain visual cues specified in
paragraph (a)(2) of the proposals are duplicated in the ``Warning''
that is also contained in that paragraph. One commenter states that the
duplication of text reduces the impact of the message. Another
commenter questions whether the visual cues and procedures for exiting
the icing environment are intended to be part of the AFM material. The
FAA infers from these remarks that the commenters request that
duplicate text be removed.
Transport Canada Aviation requests that the ``Warning'' be removed
because indications of the possible hazard are progressive and may not
necessarily require immediate action from the pilot. The commenter
suggests that renaming this as a ``Caution'' may be more appropriate.
The FAA concurs partially. The FAA agrees that duplicate text
should be removed from the ``Warning'' section that appeared in the
proposals. The FAA finds that only one unique instruction appears in
the ``Warning'' in paragraph (a)(2) of the proposals: ``If the flaps
are extended, do not retract them until the airframe is clear of ice.''
Therefore, the FAA has added that instruction to the procedures for
exiting the severe icing environment in paragraph (a)(2) of the AD's.
The remainder of the ``Warning'' section that appeared in the proposals
has been removed from the final rules.
[[Page 20662]]
Comment 48. Request for Revision to Instruction for Flaps Extension
Saab requests that the FAA revise an instruction contained in the
procedures for exiting the freezing rain/freezing drizzle environment
in paragraph (a)(2) of the proposals. That instruction indicates to
``Avoid extending flaps during extended operation in icing conditions *
* *.'' Saab suggests the following: ``Do not extend flaps when holding
in conditions where ice is accreting on the airframe.'' Further, the
commenter asks that this instruction be inserted as a ``caution'' in
the Limitations Section of the AFM, rather than into the Normal
Procedures Section, as specified in the proposed rule. Saab believes
that it is imperative that the flaps not be extended in such cases.
Inserting the instruction into the Limitations Section, rather than the
Normal Procedures Section, would add strength to the requirement.
Another commenter states that this same instruction appears to be
in conflict with previously approved AFM revisions which state,
``Sustained flight in icing conditions is prohibited with flaps
extended.'' However, the commenter does not provide a suggestion for
rewording this instruction.
The FAA concurs that the procedures related to extension of the
flaps can be reworded somewhat. For clarification purposes, the FAA has
replaced the word ``avoid'' with ``do not'' in that procedure in
paragraph (a)(2) of the final rules. This revision eliminates the
conflict discussed by the second commenter. However, the FAA does not
agree that revising the remainder of the instruction, as suggested by
Saab, provides any additional clarification.
The FAA agrees that inserting the revised wording in the
Limitations Section of the AFM, rather than in the Normal Procedures
Section, would be acceptable; however, this would expand the scope of
the originally proposed rules and would necessitate reopening the
comment period to provide additional opportunity for public comment. In
light of the time required to complete the rulemaking process in
advance of the upcoming icing season and in consideration of the safety
issues addressed by these final rules, the FAA finds that the AD's
should be issued without additional delay. However, the FAA would
consider a request for approval of an alternative method of compliance,
in accordance with the provisions of this AD, to include this
information in the Limitations Section of an operator's AFM.
Transport Canada Aviation requests that this instruction be revised
to read as follows: ``Do not extend flaps during operation in icing
conditions, except for approach and landing. Operation with flaps
extended will result in a reduced wing angle-of-attack with the
possibility of ice forming on the upper surface further aft on the wing
than normal, possibly aft of the protected area.''
The FAA concurs partially. The FAA does not concur with the
commenter's suggested rewording to limit use of the flaps in all
operation in icing conditions except approach and landing. The wording
proposed in the AD's would affect use of the flaps only during extended
operation in icing conditions. The FAA finds that an amount of ice
sufficient to cause control problems is more likely to accumulate
during prolonged operations in icing conditions. Further, the FAA does
not concur that the words ``operation of the flaps can result in a
reduced angle-of-attack * * *'' should be changed to ``operation of the
flaps will result in a reduced angle-of-attack * * *'' in this
instruction. Operation with flaps extended does not always result in a
reduced angle-of-attack. For instance, during extension of the flaps
while the airplane is slowing, the angle-of-attack will increase.
The FAA concurs with the suggestion to include the words ``the
possibility of ice forming on the upper surface further aft * * * .''
The FAA acknowledges that under certain conditions the droplets will
not impinge further aft with a reduced angle-of-attack. The final rules
have been revised to add the words suggested by the commenter to the
sixth instruction specified in the procedures for exiting the severe
icing environment contained in paragraph (a)(2) of the AD's. That
revised instruction reads as follows: ``Do not extend flaps . . . with
the possibility of ice forming on the upper surface * * * .''
Comment 49. Requests To Revise ``Caution'' Paragraph
One commenter asks that the heading, ``Caution,'' which appears in
paragraph (a)(2) of the proposals, be renamed ``Warning'' because this
section is intended to prevent loss of life or injury. Transport Canada
Aviation requests that the ``Caution'' section be changed to a note.
The commenter provides no justification.
The FAA concurs partially. The FAA does not concur that the
``Caution'' should be changed to a note because this section is
intended to prevent loss of life or injury. In light of this, the FAA
concurs with the commenter's request to rename the ``Caution'' section
``Warning.'' The FAA finds that ``Warning'' is a stronger term and
would be a more appropriate heading for the paragraph in question.
Additionally, the FAA finds that the ``Warning'' provides advisory
information that should precede the first limitation in paragraph
(a)(1) of the AD's. Accordingly, the FAA has revised the heading
``Caution'' to ``Warning'' in the final rules. In addition, the
``Warning'' has been placed at the beginning of paragraph (a)(1) of the
final rules. The FAA has determined that including this information in
the Limitations Section of the AFM will not impose an additional burden
on any operator, since it is informational only and does not
necessitate providing an additional opportunity for public comment.
Additionally, the commenter notes that an undefined term,
``extreme,'' is used in a sentence in the ``Caution'' paragraph of the
proposals, as follows: ``Flight in freezing rain, freezing drizzle, or
mixed icing conditions (supercooled liquid water and ice crystals) may
result in extreme ice build-up on protected surfaces * * * .'' The FAA
infers from this remark that the commenter asks that the word
``extreme'' be removed from the ``Caution'' paragraph.
The FAA concurs. The FAA finds that removing the word ``extreme''
would not change the intent of the sentence and may eliminate
confusion. The word ``extreme'' has been removed from this section of
the final rule. In addition, for clarification purposes, the FAA has
revised the first sentence of the proposed ``Caution'' from ``Severe
icing comprises environmental conditions . . .'' to ``Severe icing may
result from environmental conditions * * * .''
Comment 50. Request To Remove Visual Cues: Identification of Freezing
Rain/Freezing Drizzle
One commenter indicates that the cues provided in paragraph (a)(2)
of the proposals for identifying freezing rain/freezing drizzle
conditions are duplicated in material that appears in paragraph (a)(1)
of the proposals. The FAA infers from this remark that the commenter
requests that duplicative wording be removed from paragraph (a)(2) of
the proposed rules.
The FAA concurs. The FAA finds that the section entitled ``The
following shall be used to identify freezing rain/freezing drizzle
icing conditions'' is duplicated in material that appears in paragraph
(a)(1), and does not enhance the effectiveness of the AD's. Therefore,
that section has been removed from paragraph (a)(2) of the final rules
for all airplanes other than Aerospatiale Model ATR-42 and ATR-72
series airplanes.
[[Page 20663]]
Paragraph (a)(1) of the proposals for Aerospatiale airplanes
specified secondary indications for identifying possible freezing rain/
freezing drizzle conditions. The FAA recognizes that the flight crew
could have interpreted that paragraph to mean that if the secondary
indicators were observed, the airplane must be flown clear of the
severe icing conditions. However, the FAA's intent is that the flight
crew must immediately request priority handling to exit the icing
conditions only when the visual cue (ice on the side window) specified
in paragraph (a)(1) of the AD is observed.
Accordingly, the FAA has deleted the secondary indications of
possible severe icing conditions from paragraph (a)(1) of the final
rule for Aerospatiale airplanes. In addition, the FAA has removed the
visual cue (ice on the side window) from paragraph (a)(2) of the final
rule. The FAA has retitled the section containing the secondary
indications of possible severe icing as follows: ``The following may be
used as secondary indications of severe icing conditions.'' Further,
the last two secondary indicators contained in that section are
specified in the final rule in a section titled: ``The following
weather conditions may be conducive to severe in-flight icing.'' (This
change is explained further in Comment 51 below.)
Comment 51. Request To Remove Visual Cues: Identification of Possible
Freezing Rain/Freezing Drizzle
One commenter states that the word ``may'' in the following title,
which appears in paragraph (a)(2) of the proposals, is confusing: ``The
following may be used to identify possible freezing rain/freezing
drizzle conditions.'' The commenter indicates that AFM procedures
should provide a clear sequence of steps that must be followed and that
such procedures should be explicit; general advice, regardless of how
prudent, should be published elsewhere. The FAA infers from this remark
that the commenter asks that the cues that appear under this section be
deleted.
The FAA does not concur that this section should be removed. The
cues provided for identification of possible severe icing conditions
will alert the pilot to the possibility that unusual ice accretion may
develop. The FAA finds that the level of detail provided in the final
rules will increase the level of pilot awareness and, consequently,
will increase the level of safety over that which exists currently.
Therefore, the FAA has determined that it is appropriate to incorporate
this section in the AFM.
However, the FAA finds that clarification is necessary with regard
to the title of this section. The FAA finds that operators may
misinterpret that title, as proposed, to mean that this section
contains visual cues that should be used to identify possible severe
icing conditions prior to takeoff, dispatch, or release while the
airplane is on the ground. Additionally, the FAA finds that confusion
could result in differentiating between the weather conditions
specified in this section and the visual cues provided in paragraph
(a)(1) of the AD's. For clarification purposes, the FAA has revised the
title of this section to read as follows: ``The following weather
conditions may be conducive to severe in-flight icing.''
Comment 52. Request To Revise Air Temperature References
Transport Canada Aviation states that ambient temperature is
indicated as static air temperature (SAT), rather than outside air
temperature (OAT), for de Havilland Model DHC-8 series airplanes. The
FAA infers from this remark the commenter requests that the ambient
temperature that appears in the weather conditions specified in
paragraph (a)(2) of the proposals be expressed as SAT for those
airplanes.
The FAA does not concur. The FAA does not intend to specify which
specific indicator in the cockpit a pilot should use to determine the
ambient air temperature. The FAA intends that the pilot use whatever
means necessary to determine ambient air temperature.
However, since airplanes may have indicators other than OAT, the
FAA has replaced the words ``outside air temperature'' with ``ambient
air temperature'' in the weather conditions, and in the procedures for
exiting the severe icing environment, specified in paragraph (a)(2) of
these final rules to eliminate confusion concerning the need for a
specific type of indicator.
In addition, the FAA has re-examined the ambient temperature of +5
degrees Celsius that is specified in paragraph (a)(2) of the proposals.
The FAA has determined that this temperature is too high to be used as
a reliable indication of whether severe icing conditions may exist
during flight. The FAA finds that 0 degrees Celsius is a more
appropriate indication. The FAA has revised paragraph (a)(2) of the
final rules for all airplanes accordingly.
Comment 53. Request To Replace Reference to Droplets that Splash or
Splatter
JAL requests that the weather condition that pertains to ``droplets
that splash or splatter'' be removed from paragraph (a)(2) of the
proposals. JAL believes that this weather condition places too much
emphasis on subjective judgment. JAL states that normal rain conditions
will contain droplets that splash or splatter upon impact with the
windshield. JAL indicates that information included in its existing AFM
revisions, specified as follows, adequately addresses the issue:
``Prolonged operation in altitude bands where temperatures are near
freezing and heavy moisture is visible on the windscreen should be
avoided.''
The FAA does not concur that this weather condition should be
removed from the AD's. This weather condition must be used in
conjunction with the temperature specified as a means of identifying
severe in-flight icing conditions. The weather condition also will
alert the pilot to the possibility that unusual ice accretion may
develop. The FAA finds that the AFM information submitted by JAL does
not provide an equivalent alert to the pilot.
Comment 54. Request To Revise Procedures for Exiting Freezing Rain/
Freezing Drizzle
JAL requests that the procedures for exiting freezing rain/freezing
drizzle specified in paragraph (a)(2) of the proposals be restricted to
essential instructions that the flight crew must follow. JAL contends
that the procedures contained in the proposals are not written in the
appropriate format for AFM procedures, but are more representative of
advisory material. JAL also states that the current FAA-approved AFM
procedures for exiting freezing rain/freezing drizzle already provide
this essential information and conform to the existing style of the
AFM's. Transport Canada Aviation requests that the first instruction in
these procedures be revised to state only: ``Exit the freezing rain or
freezing drizzle conditions immediately.'' The commenter also requests
clarification of the terms ``extended exposure,'' as used in that
instruction.
The FAA concurs partially. The FAA has reviewed the procedures for
exiting the severe icing environment and finds that two of the
instructions contained in those procedures do not require the level of
detail provided in the proposed rules. The FAA finds that the
information concerning masking of control system forces is already
[[Page 20664]]
provided in the Limitations Section of the AFM. Therefore, the FAA has
revised the third instruction of those procedures to read as follows:
``Do not engage the autopilot.'' Additionally, the FAA has determined
that the flight crew need not be provided with instructions for
reducing the angle-of-attack because instructions such as this are
considered to be basic airmanship. Accordingly, the FAA has revised the
fifth instruction in the procedures for exiting the severe icing
environment to specify only information that is essential for the
flight crew. The revised instruction reads as follows: ``If an unusual
roll response * * * reduce the angle-of-attack.'' The FAA finds that,
for the remainder of the procedures for exiting, the additional level
of details provided in the final rules will increase the level of
understanding and, consequently, will increase the level of safety over
that which exists currently. The FAA finds that these procedures are
appropriate for insertion in the AFM's.
Regarding the terms ``extended exposure,'' the intent of that
instruction is to advise the flight crew that exiting the severe icing
conditions will minimize the exposure to flight conditions outside
those for which the airplane has been certificated. The FAA finds that
remaining in such conditions for a prolonged period may result in
accumulating an amount of ice sufficient to cause control problems. The
phrase ``to avoid extended exposure'' is only intended to explain to
the flight crew why severe icing conditions should be exited
immediately.
Raytheon questions the necessity to tell a commercial pilot not to
make any abrupt or excessive maneuvers if the aircraft is in the
position of having control difficulties. This instruction appears under
the heading ``Procedures for exiting the freezing rain/freezing drizzle
environment,'' which appears in paragraph (a)(2) of the proposals. The
commenter contends that this is a training issue and is not appropriate
for AFM procedures. The FAA infers from the commenter's remark that the
commenter requests that these instructions be eliminated from the
proposed rules.
The FAA does not concur. The FAA has determined that such
instructions provide beneficial guidance to the flight crew, which will
enhance the safety of the aircraft.
Saab requests that the FAA revise one of the instructions specified
in the procedures for exiting freezing rain/freezing drizzle specified
in the proposals. The instruction states that if an unusual roll
response or uncommanded control movement is observed, the angle-of-
attack should be reduced by increasing the airspeed or rolling the
wings level (if in a turn), and applying additional power, if needed.
Saab suggests that this instruction be revised to include the word
``aileron'' in the reference to uncommanded control movement. Saab
states further that in the case of wing ice beyond the protected
surfaces, the application of power may be appropriate to increase
airspeed/improve airflow. However, if ice has accrued on the wings
beyond the protected surfaces, there is a possibility that there also
is ice on the horizontal stabilizers. In this case, a sudden burst of
power may be detrimental. An uncommanded pitch control movement is
indicative of tail ice, which normally calls for a different action,
both concerning power as well as the handling of flaps, if extended.
Another commenter, Transport Canada Aviation, requests that the same
instruction be revised to include the word ``lateral'' in reference to
``uncommanded control movement,'' and to change the phrase ``or rolling
wings level'' to ``and rolling wings level.''
The FAA concurs partially. The FAA agrees that the correct
procedures for reducing the angle-of-attack is to increase the airspeed
and roll the wings level, if in a turn. However, as explained
previously, this portion of the procedure has been removed from the
final rules. The FAA does not agree that either ``lateral'' or
``aileron'' should be used to specify the type of uncommanded control
movement. The FAA finds that use of the term ``lateral'' may not be
understood by the flight crew. The FAA finds that including the word
``aileron'' may clarify which control surface is of concern; however,
the FAA has determined that use of a more general term, ``roll'' will
correctly specify the type of uncommanded control movement that is of
concern. The FAA has revised the fifth instruction in the procedures
for exiting the severe icing environment in paragraph (a)(2) of the
final rules accordingly. The revised instruction reads as follows: ``If
an unusual roll response or uncommanded roll control movement is
observed, reduce the angle-of-attack.''
In addition, the procedures for exiting the freezing rain/freezing
drizzle environment contained in the proposals did not specify to use
``a sudden burst of power'' when reducing the angle-of-attack. Rather,
the proposed procedure indicates to apply additional power, if needed,
to provide the desired flight path. However, as discussed previously,
the FAA has removed this reference from the final rules. In addition,
as explained previously, the FAA has revised the final rules to add the
word ``roll'' to describe the type of uncommanded control movement.
This revised wording addresses Saab's concern regarding increasing
power for a pitch anomaly.
Saab also notes that this instruction recommends a reduction in the
angle-of-attack and application of power, if needed. However, the next
instruction of the procedures indicates that reducing the angle-of-
attack may cause ice to build up beyond the protected areas of the
wing. Saab concludes that there is a conflict in that the proposed AD
would require that the angle-of-attack not be reduced or ice will
collect beyond the protected surfaces; however, the angle-of-attack
must be reduced if there is an unusual roll response or uncommanded
control movement.
The FAA does not concur with the commenter's contention that there
is a conflict in the AD's. Reducing the angle-of-attack by increasing
airspeed or rolling the wings level (if in a turn), and applying
additional power, if needed, is a procedure used to exit severe icing
conditions following an unusual roll response or uncommanded roll
control movement; whereas the instruction that involves not extending
the flaps during extended operation in icing conditions is intended to
prevent ice build-up beyond the unprotected surfaces.
Raytheon asks for removal of the instruction to reduce the angle-
of-attack and apply additional power, if needed, in response to an
unusual roll response or uncommanded control movement. The commenter
states that these are normal instructions with respect to wing stall
and are inappropriate for inclusion in an AFM.
The FAA concurs partially. There may not be a stall warning
associated with uncommanded control movements in the case of encounters
with severe icing conditions. Since this is not a ``normal'' stall, the
flight crew may not recognize that normal stall recovery procedures
should be used. However, as stated previously, the instruction
referenced by the commenter has been deleted, in part, from the final
rules.
Raytheon also states that it is not appropriate to require contact
with Air Traffic Control as part of an AFM procedure since this is
already addressed in the Aeronautical Information Manual and in section
91.183 of the Federal Aviation Regulations (14 CFR 91.183). The FAA
infers from this statement that the commenter requests that the
instruction to contact Air Traffic Control should be removed from the
procedures for exiting severe icing conditions.
[[Page 20665]]
The FAA does not concur. The FAA is aware that this instruction is
contained in the references provided by the commenter. However, the FAA
finds that the importance of timely dissemination of this instruction
warrants its inclusion in the final rules. Inclusion of instructions of
this type is not without precedent; for example, similar information
also is specified in certain AFM's where the forward look windshear
system is addressed.
Comment 55. Request To Revise Procedures for Exiting the Severe Icing
Environment: Include Airplane-Specific Instructions
One commenter suggests that any action that might be necessary to
optimize aircraft performance and control in conditions of exceptional
icing, and exit from those conditions, should be determined separately
with each manufacturer; such procedures should be contained in the AFM
for each airplane model. The FAA infers from this remark that the
commenter requests that the FAA revise the procedures for exiting the
severe icing environment in each final rule to include airplane-
specific instructions.
The FAA agrees that procedures obtained from each individual
manufacturer should be considered and included in the final rules, if
appropriate. All manufacturers have been provided with an opportunity
to submit such procedures in response to the proposed rules. Some
manufacturers requested changes to the final rules. The FAA has revised
the final rules for those requests that were substantiated adequately.
Following issuance of the final rules, the FAA would consider a request
to include additional changes to the AFM revisions, in accordance with
the provisions of these AD's, provided that adequate justification is
presented to support such a request.
Comment 56. Revision of Procedures for Exiting the Severe Icing
Environment
The FAA has re-examined the section titled ``Procedures for exiting
the severe icing environment'' in paragraph (a)(2) of the proposals. As
proposed, that section states that if the visual cues used for
identifying ``possible'' freezing rain or freezing drizzle conditions
are observed, the flight crew should follow the procedures specified
for exiting those conditions. The FAA did not intend that the flight
crew use the procedures for exiting the severe icing environment when
the weather conditions specified in paragraph (a)(2) of these AD's are
observed. The FAA's intent is that the flight crew use those procedures
only when the visual cues identified in the Limitations Section of the
AFM are observed.
In order to eliminate any confusion, the FAA has revised the last
sentence of the first paragraph in the procedures for exiting the
severe icing environment. The FAA has removed the word ``possible''
from that sentence, and has added clarification that the visual cues
are specified in the Limitations Section of the AFM. The revised
sentence reads as follows: ``If the visual cues specified in the
Limitations Section of the AFM for identifying severe icing conditions
are observed, accomplish the following.'' (Operators should note that,
for Aerospatiale airplanes, the final rule specifies only one visual
cue, which involves ice on the side window.)
Comment 57. Request To Revise Cost Estimate
Transport Canada requests that the FAA provide an operational cost
estimate in the proposed AD's.
The FAA acknowledges the concern of the commenter. The FAA
recognizes that, in accomplishing the requirements of any AD, operators
may incur other costs in addition to the ``direct'' costs that are
reflected in the cost analysis presented in the AD preamble. However,
the cost analysis in AD rulemaking actions typically only includes such
direct costs. In the case of these AD's, for example, the requirements
are to revise the AFM to include certain information. How operators
actually ``implement'' that information thereafter (once it is placed
in the AFM) may vary greatly among them.
Further, because AD's require specific actions to address specific
unsafe conditions, they appear to impose costs that would not otherwise
be borne by operators. However, because of the general obligation of
operators to maintain and operate aircraft in an airworthy condition,
this appearance is deceptive. Attributing those costs solely to the
issuance of this AD is unrealistic because, in the interest of
maintaining and operating safe aircraft, prudent operators would
accomplish the required actions even if they were not required to do so
by the AD. In any case, the FAA has determined that direct and
incidental costs are still outweighed by the safety benefits of the AD.
The FAA points out that it is not required to do a full cost-
benefit analysis for each AD. AD's were explicitly exempted from the
Office of Management and Budget (OMB) coordination process described in
Section 6 of that Executive Order. As a matter of law, in order to be
airworthy, an aircraft must conform to its type design and be in a
condition for safe operation. The type design is approved only after
the FAA makes a determination that it complies with all applicable
airworthiness requirements. In adopting and maintaining those
requirements, the FAA has already made the determination that they
establish a level of safety that is cost-beneficial. When the FAA later
makes a finding of an unsafe condition in an aircraft and issues an AD,
it means that the original cost beneficial level of safety is no longer
being achieved and that the required actions are necessary to restore
that level of safety. Because this level of safety has already been
determined to be cost beneficial, and because the AD does not add an
additional regulatory requirement that increases the level of safety
beyond what has been established by the type design, a full cost-
benefit analysis for each AD would be redundant and unnecessary.
Comment 58. Requests To Delay Issuance of the Final Rules
Three commenters request that the FAA extend the comment period for
the proposed rules by 90 days. Each of the commenters request the
extension in order to complete a comprehensive analysis of this issue.
The commenters state their involvement in focusing on ``* * * other
recent rulemaking activity, including the Commuter Rule, flight
crewmember training requirements, and proposed rules covering flight
crew flight, duty and test requirements * * *'' as a reason that did
not allow complete analysis of the proposed AD's.
One commenter requests that implementation of the AD's be deferred
until further discussion with industry has been undertaken.
The FAA has reviewed these requests and, in consideration of the
importance and need for dissemination of this important information to
the aviation community, does not concur that the comment period should
be extended or issuance of the final rules be deferred until a later
date. Issuing the final rules will ensure that the information is
available, understood, and implemented by the aviation community before
the next icing season. For these reasons, the FAA has determined that
it is imperative that the information and actions contained in these
final rules be incorporated into the operators' AFM's immediately.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the
[[Page 20666]]
adoption of the rule with the changes previously described. The FAA has
determined that these changes will neither increase the economic burden
on any operator nor increase the scope of the AD.
Cost Impact
The FAA estimates that 158 Aerospatiale Model ATR-42 and ATR-72
series airplanes of U.S. registry will be affected by this AD, that it
will take approximately 1 work hour per airplane to accomplish the
required actions, and that the average labor rate is $60 per work hour.
Based on these figures, the cost impact of the AD on U.S. operators is
estimated to be $9,480, or $60 per airplane.
For Model ATR-42 series airplanes, Modification 4216 (or 4222), as
required in this AD, will take approximately 52 work hours per airplane
to accomplish, at an average labor rate of $60 per work hour. Required
parts will be supplied by the manufacturer at no cost to operators.
Based on these figures, the cost impact on U.S. operators for this
modification is estimated to be $492,960, or $3,120 per airplane.
For Model ATR-72 series airplanes, Modification 4215 (or 4221), as
required in this AD, will take approximately 96 work hours per airplane
to accomplish. Required parts for this modification will be supplied by
the manufacturer at no cost to operators. Modification 4213, as
required in this AD, would take approximately 4 work hours to
accomplish. Required parts will cost approximately $200 per airplane.
The average labor rate for accomplishment of both modifications is $60
per work hour. Based on these figures, the cost impact on U.S.
operators for these modifications is estimated to be $979,600, or
$6,200 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time are indeterminable. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9152 (60 FR
9616, February 21, 1995), and by adding a new airworthiness directive
(AD), amendment 39-9604, to read as follows:
96-09-28 Aerospatiale: Amendment 39-9604. Docket 95-NM-146-AD.
Supersedes AD 95-02-51, Amendment 39-9152.
Applicability: All Model ATR-42 and ATR-72 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cue. If the following visual cue exists,
immediately request priority handling from Air Traffic Control to
facilitate a route or an altitude change to exit the icing
conditions.
--Severe icing is characterized by ice covering all or a substantial
part of the unheated portion of either forward side window, possibly
associated with water splashing and streaming on the windshield.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when the visual cue specified above exists, or when
unusual lateral trim requirements or autopilot trim warnings are
encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
The ice detector must be operative for flight into
icing conditions.
[[Page 20667]]
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING MAY BE USED AS SECONDARY INDICATIONS OF SEVERE ICING
CONDITIONS:
Unusually extensive ice accreted on the airframe in
areas not normally observed to collect ice.
Accumulation of ice on the lower surface of the wing
aft of the protected area.
Accumulation of ice on the propeller spinner farther
aft than normally observed.
THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cue specified
in the Limitations Section of the AFM for identifying severe icing
conditions is observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.'' -
(b) Within 6 months after the effective date of this AD, modify
the deicing boots on the leading edges of the wing by accomplishing
either paragraph (b)(1) or (b)(2) of this AD, as applicable. -
(1) For Model ATR-42 series airplanes: Accomplish Aerospatiale
Modification 4216 (during retrofit) or 4222 (during production), as
applicable. Modification 4216 shall be accomplished in accordance
with Aerospatiale Service Bulletin ATR42-30-0059, Revision 1, dated
April 10, 1995; and ATR42-57-0043, Revision 1, dated April 10, 1995.
Modification 4222 shall be accomplished in accordance with
Aerospatiale Service Bulletin ATR42-57-0043, Revision 1, dated April
10, 1995. -
(2) For Model ATR-72 series airplanes: Accomplish Aerospatiale
Modification 4215 (during retrofit) or 4221 (during production), as
applicable. Modification 4215 shall be accomplished in accordance
with Aerospatiale Service Bulletin ATR72-30-1023, Revision 1, dated
April 10, 1995; ATR72-57-1015, Revision 1, dated April 10, 1995; and
ATR72-57-1016, Revision 1, dated April 10, 1995. Modification 4221
shall be accomplished in accordance with Aerospatiale Service
Bulletin ATR72-57-1015, Revision 1, dated April 10, 1995; and ATR72-
57-1016, Revision 1, dated April 10, 1995. -
(c) For Model ATR-72 series airplanes: Within 6 months after the
effective date of this AD, install Aerospatiale Modification 4213,
``Flaps Extension Inhibition above VFE 15 deg.,'' in accordance with
Aerospatiale Service Bulletin ATR72-27-1039, dated January 12, 1995.
-
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Operations Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
-(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished. -
(f) The modifications shall be done in accordance with the
following Aerospatiale service bulletins, which contain the
specified effective pages:
----------------------------------------------------------------------------------------------------------------
Service bulletin referenced Revision level shown
and date Page No. on page Date shown on page
----------------------------------------------------------------------------------------------------------------
ATR42-30-0059, Revision 1, 1-3, 12-17, 31, 32 1- April 10, 1995.
April 10, 1995.
4-11, 18-30, 33-36 Original March 20, 1995.
ATR42-57-0043, Revision 1, 1-4, 6, 8 1- April 10, 1995.
April 10, 1995.
5, 7, 9-18 Original March 20, 1995.
ATR72-30-1023, Revision 1, 1, 2, 12-17, 33, 34- 1- April 10, 1995.
April 10, 1995.
- 3-11, 18-32, 35-38- Original- March 20, 1995.
ATR72-57-1015, Revision 1, 1, 2, 5, 6, 8, 11, 15- 1- April 10, 1995.
April 10, 1995.
- 3, 4, 7, 9, 10, 12-14, 16 Original March 20, 1995.
ATR72-57-1016, Revision 1, 1, 2, 5, 6, 8, 11, 15- 1- April 10, 1995.
April 10, 1995.
3, 4, 7, 9, 10, 12-14- Original- March 20, 1995.
----------------------------------------------------------------------------------------------------------------
The incorporation by reference of these documents was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. The installation shall be done in
accordance with Aerospatiale Service Bulletin ATR72-27-1039, dated
January 12, 1995. The incorporation by reference of these documents
was approved previously by the Director of the Federal Register, in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, as of March 8,
1995 (60 FR 9616, February 21, 1995). Copies may be obtained from
Aerospatiale, 316 Route de Bayonne, 31060 Toulouse, Cedex 03,
France. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(g) This amendment becomes effective on June 11, 1996.
Issued in Renton, Washington, on April 24, 1996.
Ronald T. Wojnar,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
Certified to be a true copy of the original.
Lori Aliment,
Certifying Officer.
[FR Doc. 96-10744 Filed 5-1-96; 3:25 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10729 Airworthiness Directives; Cessna Aircraft Company Models 208 and 208B Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20641-20643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10729]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-05-AD; Amendment 39-9591; AD 96-09-15]
RIN 2120-AA64
Airworthiness Directives; Cessna Aircraft Company Models 208 and
208B Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to all Cessna Aircraft Company (Cessna) Models 208 and 208B
airplanes. This action requires revising the Airplane Flight Manual
(AFM) to provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions, and to limit or
prohibit the use of various flight control devices. This amendment is
prompted by results of a review of the requirements for certification
of the airplane in icing conditions, new information on the icing
environment, and icing data provided currently to the flight crews. The
actions specified by this AD are intended to minimize the potential
hazards associated with operating the airplane in freezing rain or
freezing drizzle conditions by providing more clearly defined
procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-05-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to Cessna Models 208 and 208B airplanes was published in the Federal
Register on January 25, 1996 (61 FR 2178). The action proposed to
require revising the Airplane Flight Manual (AFM) to specify procedures
that would prohibit flight in freezing rain or freezing drizzle
conditions (as determined by certain visual cues), limit or prohibit
the use of various flight control devices, and provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will
[[Page 20642]]
neither increase the economic burden on any operator nor increase the
scope of the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-15 Cessna Aircraft Company: Amendment 39-9591; Docket No. 96-
CE-05-AD.
Applicability: Models 208 and 208B airplanes (all serial
numbers), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
[[Page 20643]]
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9591) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10729 Filed 5-1-96; 3:24 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10728 Airworthiness Directives; de Havilland, Inc. DHC-6 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20616-20636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10728]
[[Page 20615]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 39
Airworthiness Directives; Final Rules
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20616]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-CE-01-AD; Amendment 39-9587; AD 96-09-11]
RIN 2120-AA64
Airworthiness Directives; de Havilland, Inc. DHC-6 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to de Havilland DHC-6 series airplanes. This action requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to limit or prohibit the use of various flight
control devices. This amendment is prompted by results of a review of
the requirements for certification of the airplane in icing conditions,
new information on the icing environment, and icing data provided
currently to the flight crews. The actions specified by this AD are
intended to minimize the potential hazards associated with operating
the airplane in freezing rain or freezing drizzle conditions by
providing more clearly defined procedures and limitations associated
with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-01-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to de Havilland DHC-6 series airplanes was published in the Federal
Register on January 25, 1996 (61 FR 2175). The action proposed to
require revising the Airplane Flight Manual (AFM) to specify procedures
that would prohibit flight in freezing rain or freezing drizzle
conditions (as determined by certain visual cues), limit or prohibit
the use of various flight control devices, and provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions.
Disposition of Comments
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
In addition to the proposed rule described previously, in January
1996, the FAA issued 17 other similar proposals that address the
subject unsafe condition on various airplane models (see below for a
listing of all 18 proposed rules). These 17 proposals also were
published in the Federal Register on January 25, 1996. This final rule
contains the FAA's responses to all public comments received for each
of these proposed rules.
----------------------------------------------------------------------------------------------------------------
Docket No. Manufacturer/airplane model Federal Register citation
----------------------------------------------------------------------------------------------------------------
96-CE-01-AD de Havilland DHC-6 Series............... 61 FR 2175
96-CE-02-AD EMBRAER EMB-110P1/EMB-110P2............. 61 FR 2183
96-CE-03-AD Beech 99/200/1900 Series................ 61 FR 2180
96-CE-04-AD Dornier 228 Series...................... 61 FR 2172
96-CE-05-AD Cessna 208/208B......................... 61 FR 2178
96-CE-06-AD Fairchild Aircraft SA226/SA227 Series... 61 FR 2189
96-CE-07-AD Jetstream 3101/3201..................... 61 FR 2186
96-NM-13-AD Jetstream BAe ATP....................... 61 FR 2144
96-NM-14-AD Jetstream 4101.......................... 61 FR 2142
96-NM-15-AD British Aerospace HS 748 Series......... 61 FR 2139
96-NM-16-AD Saab SF340A/SAAB 340B/SAAB 2000 Series.. 61 FR 2169
96-NM-17-AD CASA C-212/CN-235 Series................ 61 FR 2166
96-NM-18-AD Dornier 328-100 Series.................. 61 FR 2157
96-NM-19-AD EMBRAER EMB-120 Series.................. 61 FR 2163
96-NM-20-AD de Havilland DHC-7/DHC-8 Series......... 61 FR 2154
96-NM-21-AD Fokker F27 Mark 100/200/300/400/500/600/ 61 FR 2160
700/050 Series.
96-NM-22-AD Short Brothers SD3-30/SD3-60/SD3-SHERPA 61 FR 2151
Series.
95-NM-146-AD Aerospatiale ATR-42/ATR-72 Series....... 61 FR 2147
----------------------------------------------------------------------------------------------------------------
Comment 1. Support for the Proposals
Numerous commenters support the FAA's intent to minimize the
potential hazards associated with operating airplanes of any type
design in severe icing conditions. One commenter states that the
limitation prohibiting the use of flaps while enroute and during
holding in icing conditions will be a positive contribution to safety.
Additionally, several commenters support the requirement of the
proposed AD for Aerospatiale airplanes for installation of modified
deicing boots on the outer leading edges of the wings. One of these
commenters states that the incorporation of AFM procedures, in addition
to installation of the modified boots, provide a substantial margin of
safety for the Aerospatiale fleet.
Comment 2. Requests Concerning References to ``Freezing Rain/Freezing
Drizzle''
Raytheon requests that references to a class of meteorological
conditions in the limitations described as ``freezing rain or freezing
drizzle'' should be removed from the proposed rules. Raytheon contends
that instructions for the flight crew should be restricted to hazardous
conditions that are defined by the accumulation of ice. The commenter
states that the term ``severe icing'' has a specific meaning as defined
in the Aeronautical Information Manual: ``The rate of accumulation is
such that the icing/anti-icing equipment fails to reduce or control the
hazard. Immediate diversion is necessary.'' The commenter states that,
although freezing rain or freezing drizzle may involve drops larger
than those specified in Appendix C of part 25 (``Airworthiness
Standards: Transport Category Airplanes'') of the Federal Aviation
Regulations (14 CFR part 25), flight into those conditions does not
always result in accumulation
[[Page 20617]]
of ice beyond the capability of the aircraft nor is severe icing always
the result of freezing rain or freezing drizzle. Raytheon concludes
that the limitation specified in paragraph (a)(1) of the proposals
which reads, ``Flight in meteorological conditions described as
freezing rain or freezing drizzle, as determined by the following
visual cues, is prohibited,'' is an inference or conclusion that does
not follow from the premises.
The European Regional Airlines (ERA) Association states that the
proposals define visual cues to be used to identify ``freezing rain''
and ``freezing drizzle,'' but these criteria are inconsistent with the
criteria defined by the International Civil Aviation Organization
(ICAO) and used by weather observers in aviation meteorological support
services. The FAA infers from this remark that ERA requests the use of
ICAO terminology associated with the visual cues.
The FAA concurs partially. The FAA concurs that most of the
references to ``freezing rain/freezing drizzle'' can be removed from
the final rules. The FAA has revised the final rules to replace certain
references to freezing rain and freezing drizzle with the words
``severe icing.'' The FAA finds that since the visual cues contained in
paragraph (a)(1) of these final rules indicate that icing conditions
have exceeded the limits of the ice protection equipment, the use of
the terminology ``severe icing'' is appropriate. As stated by one
commenter, ``severe icing'' is terminology used to describe icing
conditions that exceed the capabilities of the ice protection
equipment. The terminology ``severe icing'' is commonly used and
understood within the aviation community. Additionally, there should be
no confusion over the use of this term in the final rules because the
AFM revisions required by these AD's define the terminology ``severe
icing'' by specifying the visual cues that indicate when the
capabilities of the ice protection equipment have been exceeded.
However, the FAA would consider a request for approval of an
alternative method of compliance to use terminology other than ``severe
icing'' in an AFM, in accordance with the provisions of these AD's,
provided that adequate justification is presented to support such a
request.
Any inconsistencies that may exist between the criteria used by
weather specialists to define ``severe icing'' and the criteria stated
in these final rules are not relevant for these AD's because these AD's
do not require the flight crew to take any action based on information
provided by a weather observer. For these AD's, the flight crew must
only take action if certain visual cues are present on the airplane.
The FAA has determined that reference to freezing rain and freezing
drizzle should not be removed from the text of the ``Caution'' that
appears in paragraph (a)(2) of the proposals. [Note: The ``Caution''
appears as the ``Warning'' in paragraph (a)(1) of the final rules. An
explanation of this change is contained in the disposition of Comment
49 of these final rules.] Reference to freezing rain and freezing
drizzle in that portion of text is made simply to provide a description
of conditions that may result in ice build-up that exceeds the
capabilities of the ice protection system.
Comment 3. Request for Review of ``Severe Icing'' Terminology
One commenter, the Civil Aviation Authority (CAA), which is the
airworthiness authority for the United Kingdom, requests that use of
the terminology ``severe icing'' be reviewed. The CAA does not believe
it is appropriate that this terminology becomes accepted for
supercooled large droplet (SLD) conditions. The CAA indicates that a
common interpretation for ``severe icing'' is that beyond the limit
specified in Appendix C of part 25 of the Federal Aviation Regulations
(14 CFR part 25), which is at or just over the capability of the ice
protection system.
The FAA has reviewed the use of the terminology ``severe icing'' as
related to SLD. The FAA finds that ice resulting from SLD conditions
may not always meet the criterion specified in the common
interpretation of ``severe icing,'' as described by the commenter. The
FAA notes that while SLD conditions may result in the formation of
severe icing, severe icing also may accrue in conditions such as liquid
water content, temperature, or extent of cloud, when those conditions
exceed the limits specified in Appendix C of part 25 of the Federal
Aviation Regulations (14 CFR part 25). As explained previously, most
references to freezing rain and freezing drizzle have been replaced
with the terminology ``severe icing.'' Additionally, the AFM's for the
affected airplanes include a definition of severe icing.
Comment 4. Request To Withdraw the Proposals: Significant Economic
Impact on Operating Community
A number of commenters request that the proposals be withdrawn
because the effect of these proposed AD's will produce a significant
economic impact on the operating community. The commenters indicate
that many flights would need to be canceled in order to make all
reasonable efforts to avoid encounters with freezing rain/freezing
drizzle conditions--i.e., when these conditions are forecast, airplanes
will be prohibited from flight into those conditions. One commenter
remarks that, based on the actual weather in January 1996, nearly 75
percent of its scheduled flights would have been canceled due to
forecast or actual freezing rain or freezing drizzle conditions if the
AD's had been in effect. The commenters do not believe that the FAA has
considered the economic factors affected by the proposed actions, such
as the number of flights lost per day, crew costs, passenger
compensation, misconnected baggage, etc.
If the FAA does not withdraw the proposals, one commenter states
that the prohibition of flight in freezing rain or freezing drizzle, as
specified in paragraph (a)(1) of the proposals, should be revised. The
commenter suggests the following: ``The aircraft should be immediately
flown clear of icing conditions if ice is seen forming on the upper
surface of the wing behind the leading edge deice boots.'' The
commenter believes that the current wording in the proposals would
cause flight crews to cancel or delay departure not only when freezing
rain or freezing drizzle exists, but also when those conditions are
forecast.
The FAA concurs partially. The FAA finds that some misunderstanding
exists among the commenters concerning the intent of these AD's. Many
of the commenters believe that the AD's will prevent affected airplanes
from flight in forecast freezing rain and freezing drizzle. This is not
the case. The FAA agrees that certain language contained in the AD's
must be clarified to reflect its intent. The FAA has evaluated the
wording proposed by one of the commenters and agrees with it in
principal. However, the FAA has determined that the first limitation in
paragraph (a)(1) of the final rules must be revised in order to
accommodate visual cues other than that specified by the commenter, to
incorporate terminology familiar to the flight crew, and to emphasize
that these AD's address only in-flight icing encounters. Additionally,
in order to ensure that appropriate coordination with Air Traffic
Control is accomplished, the FAA has revised the instruction following
the visual cues in paragraph (a)(1), and has moved that instruction to
the end of the first limitation in paragraph (a)(1) of the final rules.
The entire limitation reads as follows: ``During flight, severe icing
conditions
[[Page 20618]]
that exceed those for which the airplane is certificated shall be
determined by the following visual cues. If one or more of these visual
cues exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the icing
conditions.'' (Operators should note that, in the final rule for
Aerospatiale airplanes, only one visual cue is specified. That cue
involves ice on the side window of the airplane.)
Several commenters question certain issues related to dispatch of
the airplane in severe icing conditions. One commenter states that the
procedures specified in the proposed AD's fail to address the
conditions that would prohibit takeoff in freezing rain and freezing
drizzle. The commenter believes the visual cues provided in the
proposals would only appear on an airplane during flight. Thus,
allowable conditions for takeoff during times of forecast freezing rain
or freezing drizzle are left to the individual operator's
interpretation. Another commenter believes that the FAA has not
established a basis for prohibiting flight in all reported freezing
drizzle. The commenter contends that takeoff in freezing rain should
always be prevented, but takeoff in freezing drizzle should be possible
after applying appropriate deicing or anti-icing treatments. One
commenter requests that the FAA clarify how the procedures for exiting
freezing rain/freezing drizzle conditions would apply to takeoff and
landing. The commenter states that landing during those conditions
might, in many cases, be the most expeditious method of avoiding a
hazardous condition. Another commenter suggests that the AFM for
Aerospatiale airplanes should be revised to reflect standard dispatch
rules; however, the commenter provides no justification for this
request.
The FAA concurs that visual cues that would prohibit takeoff in
freezing rain or freezing drizzle were not provided because the FAA's
intent is that these AD's address only in-flight icing encounters.
These AD's do not affect any existing regulations or FAA-approved
operating procedures related to takeoff, dispatch, or release of an
airplane in icing conditions. These AD's only prohibit remaining in
icing conditions when certain visual cues are present on the airplane;
these AD's do not prohibit flight into forecast or reported freezing
drizzle. Operators must comply with existing rules that require an
airplane to be free of ice prior to takeoff. Further, the FAA finds no
need to revise the AFM for Aerospatiale airplanes to reflect standard
dispatch rules. The FAA also considers that landing the airplane when
freezing rain/freezing drizzle conditions are encountered would, in
many cases, be the most expeditious method of exiting the conditions.
Such landing would be in compliance with the limitation that requires
the flight crew to exit the severe icing conditions.
Two commenters indicate that the first note that appears in
paragraph (a)(1) of the proposed rules could be interpreted to mean
that if freezing rain or freezing drizzle is forecast anywhere along
the route of flight, the airplane could not be dispatched. One of the
commenters concludes that forecasting methodologies are inadequate and
would need to be improved. The other commenter suggests that the FAA
remove the word ``purely'' from the note. The same commenter requests
that the FAA clarify that the airplane may be dispatched if the
forecast may indicate freezing rain/freezing drizzle conditions.
Another commenter indicates that the wording of the same note is
unclear as to how the FAA defines a ``purely'' inadvertent encounter.
The commenter states that examples of such purely inadvertent
encounters would be helpful.
One commenter asks the following questions in regard to the same
note:
--What are ``reasonable efforts?''
--What does ``immediately exit'' mean? Are the procedures for
immediately exiting listed in the Air Traffic Controller's Handbook or
the Airman's Information Manual? Can a pilot operating the airplane in
a holding pattern decide on his/her own to immediately descend below
the freezing level without regard to other traffic?
One commenter states that the note should be placed in the Normal
Procedures Section of the AFM, rather than in the Limitations Section.
The commenter provides no justification for this request.
The FAA concurs that clarification of this note is necessary. The
FAA originally included the note in the AD's to clarify the intent of
the rules. Since the first instruction and the limitation that follows
have been revised in these final rules, the FAA finds that inclusion of
the clarifying note is no longer necessary. In order to avoid any
possible misinterpretation of the intent of the limitation on flight in
freezing rain or freezing drizzle, the FAA has removed the first note
that appeared in paragraph (a)(1) of the proposals. These AD's do not
prohibit flight into forecast or reported freezing rain or freezing
drizzle. This means that the aircraft is not prohibited from takeoff,
dispatch, or release simply because the forecast may indicate freezing
rain or freezing drizzle, but is prohibited from continued flight in
severe icing conditions.
Comment 5. Request To Withdraw the Proposals: No Unsafe Condition Has
Been Established
Several commenters request that the proposals be withdrawn because
no unsafe condition has been established with respect to airplane
handling characteristics in severe icing conditions. One commenter
states that the preamble of the proposals does not provide data that
establish an unsafe condition; the preamble only indicates that there
are inadequate data to represent all possible conditions. Another
commenter remarks that the FAA's dismissal of the significance of the
test results with the specious comment, ``such airplanes could develop
ice shapes other than those tested,'' is wholly speculative, and is an
invalid basis on which to issue an AD under the provisions of part 39
(``Airworthiness Directives'') of the Federal Aviation Regulations (14
CFR part 39).
The FAA does not concur that these AD's should be withdrawn. As
stated in the preamble to the proposals, the FAA has not required that
airplanes be shown to be capable of operating safely in icing
conditions outside the icing certification envelope specified in
Appendix C of part 25 of the Federal Aviation Regulations (14 CFR part
25). This means that any time an airplane is flown in icing conditions
for which it is not certificated, there is a potential for an unsafe
condition to exist or develop and the flight crew must take steps to
exit those conditions expeditiously. Further, the FAA has determined
that flight crews are not currently provided with adequate information
necessary to determine when an airplane is operating in icing
conditions for which it is not certificated or what action to take when
such conditions are encountered. The absence of this information
presents an unsafe condition because without that information, a pilot
may remain in icing conditions for which the airplane has not been
proven to be safe. These AD's correct the unsafe condition by requiring
AFM revisions that provide the flight crews with visual cues to
determine when icing conditions have been encountered for which the
airplane is not certificated, and by providing procedures to safely
exit those conditions.
Additionally, in the preamble to the proposed rules, the FAA
discussed the investigation of roll control anomalies to explain that
this investigation was not a
[[Page 20619]]
complete certification program. The testing was designed to examine
only the roll handling characteristics of the airplane in certain
droplets the size of freezing drizzle. The testing was not a
certification test to approve the airplane for flight into freezing
drizzle. The results of the tests were not used to determine if these
final rules were required, but rather to determine if design changes
were needed to prevent a catastrophic roll upset. The roll control
testing and the AD's must be viewed as two unrelated actions.
Comment 6. Request To Withdraw the Proposals: Unsafe Condition Is
Outside Certification Limits
One commenter states that the proposed AD's should be withdrawn
because the issuance of AD's to address the problems of icing
encounters outside of the limits for which the airplane is certificated
is a completely inappropriate application of part 39 of the Federal
Aviation Regulations (14 CFR part 39). Another commenter contends that
since the Aerospatiale aircraft passed all present certification
testing, what transpired beyond the limits of certification should not
be held against that aircraft.
The FAA does not concur that the AD's should be withdrawn on the
basis that the unsafe condition is outside the icing certification
envelope. Flight in icing conditions that are outside the icing
certification envelope occurs during the normal service life of an
airplane. Apart from the visual cues provided in these final rules,
there is no existing method provided to the flight crews to identify
when the airplane is in a condition that exceeds the icing
certification envelope. The appropriate vehicle for providing this
method of identification is through issuance of an AD. The FAA
acknowledges that the Aerospatiale airplane has been shown to comply
with existing certification rules; however, no airplane is certificated
for flight in icing conditions outside of Appendix C of part 25 of the
Federal Aviation Regulations (14 CFR part 25).
Comment 7. Request To Withdraw the Proposals: Proposals Unfairly
Discriminate Against Turbopropeller-Powered Aircraft
Several commenters state that the proposed AD's should be withdrawn
because the AD's unfairly discriminate against turbopropeller-powered
aircraft. The commenters contend that by issuing these proposed rules,
the FAA is creating a public perception that turbopropeller-powered
aircraft are less safe than other aircraft.
Numerous commenters oppose the statement contained in the preamble
of the proposals which indicates that since turbopropeller-powered
airplanes are more likely to operate at low altitudes and to make more
frequent landings, they are more likely to encounter icing conditions
that are outside the icing envelope. One commenter states that the mere
fact that turbopropeller-powered airplanes make more frequent landings
is irrelevant for the following reasons:
--Every flight encounters the same atmospheric conditions after takeoff
and prior to landing, whether the airplane is powered by a
turbopropeller or turbojet engine;
--There are numerous airplanes powered by turbojet engines that operate
on segments equal in duration to those operated by many turbopropeller-
powered aircraft; numerous airplanes powered by turbojet engines make
just as frequent landings; and
--Even if turbopropeller-powered aircraft do make more frequent
landings, there is no negative inference to be drawn from that fact;
more opportunities are available to ensure that ice has not formed on
the aircraft if the aircraft lands more frequently.
One commenter states that the altitudes where SLD conditions exist
are the same altitudes at which jets would encounter those conditions
during the departure and arrival phases of flight. Flight in SLD
conditions that would have a negative effect on a turbopropeller-
powered airplane would have the same effect on a jet, since both are
certificated under the same rules with regard to flight into adverse
weather, and both fly at about the same speeds during the departure and
arrival phases of flight. Additionally, another commenter adds that no
airplane, whether it is powered by a turbopropeller, turbojet, or
turbofan engine, is certificated for operation in SLD conditions.
Another commenter indicates that icing encounters take place at
altitudes below the cruising altitudes of most turbopropeller-powered
aircraft used in scheduled service; this also occurs on airplanes
powered by turbojet engines. Icing encounters occur during takeoff,
climb, descent, holding, and landing phases of flight on both types of
aircraft. The commenter adds that operating the airplane in a holding
pattern for a prolonged period in severe icing conditions is hazardous
for both turbojet and turbopropeller-powered aircraft. The commenter
explains that, although the exposure time per flight hour of a long-
haul jet aircraft is less, the exposure on a per flight basis is
exactly the same. The commenter states that, like landing gear life
limits, the proper measure of exposure to freezing rain/freezing
drizzle should be the number of flights, not the number of flight
hours.
Another commenter, Saab, states that Saab Model SAAB 2000 series
airplanes have a unique power-to-weight ratio, which makes it
comparable with airplanes of the same size and, in some relevant areas
such as climb performance and single engine ceiling, even far superior.
Operators of those airplanes can operate the aircraft over-the-weather
at flight level (FL) 310. This means that these Saab airplanes operate
on jet profiles and, therefore, are not exposed to the icing conditions
that are outside the icing envelope any more than the airplanes that
are excluded from the proposals.
The FAA does not concur that the proposals should be withdrawn. The
FAA does not intend to imply through issuance of these AD's that
turbopropeller-powered airplanes are less safe than airplanes having
other types of propulsion systems. As stated in the preamble of the
proposals, the FAA addressed certain airplanes as a higher priority for
two reasons:
--Turbopropeller-powered airplanes are more likely to operate at low
altitudes and to make more frequent landings; therefore, they are more
likely to encounter icing conditions that are outside the icing
envelope specified in Appendix C of part 25 of the Federal Aviation
Regulations (14 CFR part 25); and
--The flight crew of an airplane having an unpowered roll control
system must rely solely on physical strength to counteract roll control
anomalies, whereas a roll control anomaly that occurs on an airplane
having a powered roll control system need not be offset directly by the
flight crew.
Since the issuance of the proposed rules, the FAA has reconsidered
this reasoning. The FAA acknowledges that simply because an airplane is
turbopropeller-powered and has a particular flight profile, that
airplane should not be addressed as a higher priority. However, this
does not diminish the significance of the necessity of the flight crew
of an airplane having an unpowered roll control system to rely on
physical strength to counteract roll control anomalies. The subject
airplanes all have pneumatic deicing boots and unpowered aileron
controls, which have been common denominators in the accident and
incident history
[[Page 20620]]
concerning flight in icing conditions and, in particular, during
conditions when SLD was believed to be present. Therefore, airplanes
having those design features are of immediate concern to the FAA and
were addressed as a higher priority. Additionally, these AD's primarily
address airplanes used in regularly scheduled passenger service in the
United States.
The FAA finds that the comment indicating that more frequent
landings provides more opportunity to verify that ice has not formed is
irrelevant. It also could be said that more frequent landings gives
more opportunity for ice to form. The FAA agrees with the statement
that holding for prolonged periods in severe icing conditions is
hazardous for all aircraft types. The FAA is considering initiating an
assessment of the need to prohibit all aircraft from continued flight
in severe icing conditions as defined in these AD's.
Although Transport Canada Aviation does not request that the
proposed AD's be withdrawn, the commenter indicates that roll control
anomalies could exist for all aircraft whether they have powered or
unpowered roll control systems. Transport Canada Aviation adds that
some jet-powered aircraft have unpowered ailerons.
The FAA concurs that roll anomalies could exist for all aircraft
whether they have powered or unpowered roll control systems. However,
these AD's address airplanes having both deicing boots and unpowered
aileron controls. The FAA acknowledges that other airplanes that have
powered ailerons may be subject to roll problems in severe icing
conditions due to loss of lift. However, the FAA is not aware of a
mechanism that would allow ice to produce an uncommanded control
deflection on airplanes having powered flight control systems. In
addition, airplanes having powered roll control systems do not have
direct feedback of aerodynamic forces to the pilot. However, the FAA is
considering initiating an assessment of the need to apply similar
limitations to other aircraft types.
Comment 8. Request To Withdraw the Proposals: Affected Airplanes Are
Not Same Type Design as Accident Airplane
Several commenters contend that the proposals should be withdrawn
because the FAA has not established clearly that the airplanes
addressed in the proposed rules have the same type design as the
Aerospatiale Model ATR-72 series airplane that was involved in an
accident in October 1994 that occurred in severe icing conditions.
One commenter questions the words ``same type design,'' and asks if
those words refer to high wing, low wing, T-tail, or aircraft of
another type design.
Three commenters provide justification in support of a request that
certain airplanes be exempt from these AD's:
de Havilland Model DHC-7 and DHC-8 series airplanes: De
Havilland states that the airplanes it manufactures share a
conservative aerodynamic design philosophy that yields exceptional low-
speed handling qualities and demonstrated benign handling qualities in
icing conditions. De Havilland adds that two-thirds of the roll control
authority of these airplanes is provided by hydraulically powered roll
spoilers. A second commenter adds that increased testing has been
conducted on these airplanes.
Fokker F27 Mark 100, 200, 300, 400, 500, 600, 700, and 050
series airplanes: Fokker states that the leading edge boots on Fokker
Model F27 series airplanes and Model F27 Mark 050 series airplanes
extend to a chord wise position, 12.5 percent wing chord, which
precludes all but the very largest droplets impinging on the
unprotected surfaces. Fokker adds that since the accident airplane has
unshielded horn balances and the affected Fokker airplanes do not have
these unshielded horn balances, Fokker airplanes will not experience
roll upset problems. Fokker indicates that aerodynamically balancing
the control surfaces by means of unshielded horn balances was not
applied because of the bad service experience of the Vickers Viking
aircraft in 1946.
Beech Model 200 and 200C airplanes: Raytheon states that
these particular airplane models are not normally considered to be
commuter aircraft, and that issuance of an AD would be contrary to the
stated purpose of the proposals because most of these airplanes are
used in non-revenue service. Raytheon states that these airplanes are
all low wing aircraft. Aerospatiale Model ATR-72 series airplanes (the
accident airplane) is 50 percent larger and carries over twice the
number of passengers as these Beech aircraft. For these reasons, as
well as other differences in the geometry of the airplanes (i.e.,
relative aileron span), Raytheon states that the supposition of an
icing hazard in these aircraft is purely speculative.
The FAA does not concur that any of the addressed airplanes should
be exempt from these AD's. The FAA has examined the accident and
incident history in icing conditions and, in particular, those events
believed to involve SLD conditions. Results of this examination
revealed that the type design characteristics that appear to be common
in these events are pneumatic deicing boots and unpowered aileron
controls. Airplanes having those type design characteristics appear to
be more susceptible to control problems in severe icing conditions. In
response to Fokker's remark that its airplanes will not experience roll
control problems since those airplanes do not have unshielded horn
balances, the FAA has determined that horn balances on the accident
airplane were not the source of the uncommanded aileron motion. Design
similarities of the wing, tail, or ailerons do not appear to be a
common denominator among airplanes involved in accidents or incidents
where SLD conditions may have been present.
Saab asks for removal of the sentence that reads, ``Since an unsafe
condition has been identified that is likely to exist or develop on
other airplanes of the same type design * * *.'' Saab states that this
sentence implies that Saab Model SF340A and SAAB 340B series airplanes
have a problem and that this problem is ``likely to develop on other
airplanes of the same type design.'' Yet, there have been no reported
problems on those airplanes, which are not of the same type design as
all other turbopropeller-powered airplanes. Transport Canada Aviation
does not request that the proposals be withdrawn; however, the
commenter requests that the FAA revise the same phrase discussed by
Saab. Transport Canada Aviation requests that the phrase be reworded as
follows: ``Since an unsafe condition has been identified where aircraft
icing certification is not adequate to address the conditions that are
outside of Appendix C of FAR part 25 * * *.''
The FAA does not concur with Saab's request. The FAA acknowledges
that there have been no reported problems involving severe icing
conditions on Saab airplanes. However, Saab Model SF340A and SAAB 340B
series airplanes have pneumatic deicing boots and unpowered aileron
controls, which have been determined to be the common denominators
among the airplanes involved in accidents and incidents in severe icing
conditions. Therefore, the FAA has determined that when severe icing
conditions are encountered on these Saab airplanes, those conditions
must be exited.
Although the FAA has no technical objection to the revised wording
proposed by Transport Canada Aviation, this sentence does not reappear
in the final rules. Therefore, no change to the final rule is
necessary.
[[Page 20621]]
Comment 9. Request for Explanation of the Applicability of the AD's
One commenter requests an explanation of the methodology used by
the FAA to determine that AD's should not be issued for Cessna and
Piper multi-engine aircraft. The commenter also asks if an AD similar
to the proposed rules exists for Boeing Model 737 series airplanes. The
commenter indicates that Model 737 series airplanes have demonstrated
abnormal and unexplained roll tendencies.
The FAA provides the following clarification for this commenter. No
AD's have been issued for Piper airplanes or Boeing Model 737 series
airplanes. However, as reflected in the table above, the FAA has issued
an AD for Cessna Model 208 and 208B airplanes.
Most of the aircraft affected by these final rules are used
primarily in regularly scheduled passenger service in the United
States. However, there are some airplanes affected by the final rules
that are not used in regularly scheduled passenger service. Two of
these are Cessna Model 208 and 208B airplanes. Those airplanes were
included in the final rules because of their accident and incident
history in icing conditions. The FAA is considering an assessment of
the need to prohibit all aircraft from continued flight in severe icing
conditions.
Comment 10. Request To Withdraw the Proposals: Service Experience of
Affected Airplanes Is Satisfactory
Several commenters indicate that the FAA should withdraw the
proposed AD's in light of the satisfactory service experience of the
airplanes addressed in the proposals. The commenters believe that the
FAA is singling out turbopropeller-powered aircraft without any regard
for the operational record of those aircraft.
Several commenters provide justification in support of this
request:
One commenter states that de Havilland airplanes have been
successfully operated for over 30 years without one instance of roll
upset or flight control problems.
De Havilland indicates that de Havilland Model DHC-8
series airplanes have been in service for 11 years and have accumulated
6 million flights and 5 million flight hours without any incidents due
to icing.
De Havilland adds that de Havilland Model DHC-7 series
airplanes have been in service for 18 years and have accumulated 3.7
million flights and 2.7 million flight hours without any incidents due
to icing.
Another commenter has not experienced any icing related
upsets or control irregularities in its fleet of de Havilland Model
DHC-8 series airplanes and Beech Model 1900 series airplanes.
One commenter operates 21 Beech Model 1900D airplanes, 32
EMBRAER Model EMB-120 series airplanes, and 41 Aerospatiale Model ATR-
42 and ATR-72 series airplanes; none of these airplanes have
experienced any icing incidents this season.
One commenter indicates that airplanes produced by Beech,
EMBRAER, and Jetstream Aircraft Limited (JAL) have no record of
uncommanded roll due to asymmetrical build-up of ice on surfaces beyond
the deicing boots.
One commenter notes that it has not experienced any
unusual icing characteristics on its fleet of EMBRAER Model EMB-120
series airplanes and Aerospatiale Model ATR-72 series airplanes.
Fairchild notes that in over 26 years and 15,000,000
flight hours in passenger service, there has never been a reported
incident where the controllability of Fairchild Aircraft SA226 and
SA227 series airplanes were in jeopardy as a result of any icing
encounters (including SLD icing encounters).
The Luftfartsverket (LFV), which is the airworthiness
authority for Sweden, states that no ice build-up behind the wing boots
has ever been reported on Saab Model SF340A, SAAB 340B, or SAAB 2000
series airplanes. Additionally, the leading edge on these airplanes can
be inspected easily during flight.
Saab remarks that no roll anomaly problems in icing
conditions have occurred during the extensive service experience of
Saab Model SF340A and SAAB 340B series airplanes.
The FAA does not concur that the AD's should be withdrawn. The fact
that an airplane has a perfect safety record in icing does not negate
the fact that no airplane has been certificated for flight into SLD.
The FAA has determined that a need exists to provide the flight crew
with useful safety-related information regarding the limitations of the
airplane concerning flight in severe icing conditions. The purpose of
issuing these final rules is to provide the flight crew with such
information.
One commenter, Transport Canada Aviation, requests that the
proposals apply only to those airplanes that have a demonstrated
history of in-service problems as a priority. The commenter states that
the hazards relating to operation in icing conditions exist for all
types of aircraft. (The commenter does not request that the proposed
rules be withdrawn.)
The FAA does not concur with this request. As explained previously,
the FAA has issued AD's for airplanes having pneumatic deicing boots
and unpowered aileron controls as a priority. Airplanes having these
design features are of immediate concern to the FAA because these
features have been common denominators in the accident and incident
history concerning flight in icing conditions and, in particular,
during conditions when SLD was believed to be present. The FAA is
considering the need for rulemaking to impose similar limitations on
other aircraft.
Comment 11. Request To Withdraw the Proposals: Extensive Testing
Revealed No Icing Problems
Several commenters request that the proposals be withdrawn because
extensive testing revealed no icing problems on many different
turbopropeller-powered airplanes, even though those tests likely
exceeded any icing certification tests ever performed on other civil
aircraft types, including large jet-powered transport category
airplanes. Fokker states that Fokker Model F27 series airplanes do not
demonstrate unacceptable roll control characteristics in severe icing
conditions; however, Fokker submits no data to substantiate this
statement.
The FAA does not concur. The FAA finds that successful completion
of the roll upset evaluation is not a valid reason for withdrawing the
AD's. On the contrary, if the evaluation had demonstrated anomalies,
the FAA may have concluded that action beyond that required by these
AD's was necessary to address the demonstrated unsafe condition. The
testing was designed to examine only the roll handling characteristics
of the airplane in certain droplets the size of freezing drizzle to
determine if any design changes are necessary to prevent catastrophic
control surface deflection. The testing was not a certification test to
approve the airplane for flight into freezing drizzle since many of the
components and their functions were not tested (e.g., pitch control,
engine and propeller, performance, stall warning, windshield, air data
sensors and fuel system vents). Further, freezing rain was not tested.
Satisfactory demonstration of those tests does not remove the FAA's
responsibility to provide a safe operating environment for the
passengers and crew.
JAL comments that its airplanes are not subject to the addressed
unsafe condition, and that the FAA had
[[Page 20622]]
concurred with this contention. JAL states that the FAA agreed that, by
the controllability evaluation process, all Jetstream aircraft types
had been demonstrated to be not susceptible to roll control anomalies
in freezing rain or freezing drizzle conditions.
The FAA does not concur with JAL's position concerning its
airplanes. All Jetstream airplanes affected by these AD's successfully
completed the roll upset evaluation. However, as stated previously, no
airplanes were tested in freezing rain conditions. The roll upset
evaluation only addressed conditions that were believed to have existed
during an accident involving a transport category airplane that
occurred in October 1994. Therefore, since no airplane has been tested
in all freezing rain and freezing drizzle conditions, no airplane has
been demonstrated to be safe for continued flight in these conditions.
Comment 12. Request To Withdraw the Proposals: Publish Advisory
Materials and Require Training
Several commenters request that, in lieu of issuing the proposed
rules, the FAA publish appropriate advisory materials and require
training for recognition, avoidance, and exit from severe icing
encounters as part of the required severe weather training for pilots
and dispatchers. Two commenters suggest that the FAA include such
requirements in the operating rules specified in part 121
(``Certification and Operations: Domestic, Flag, and Supplemental Air
Carriers and Commercial Operators of Large Aircraft'') of the Federal
Aviation Regulations (14 CFR part 121). Another commenter indicates
that, since jets and piston-engine aircraft also could develop ice
shapes other than those tested, training should not be provided only to
pilots of turbopropeller-powered airplanes, but to pilots of all
aircraft. Some commenters also suggest that the FAA has successfully
addressed other issues through increased awareness and training
requirements, rather than by issuing AD's against every airplane type
design to require revising the Limitations Section of the AFM. The
commenters cite windshear, ground deicing, and clear air turbulence as
examples of such issues. The commenters contend that, except where
configuration changes are needed, such as in the case of windshear
detection devices, improved awareness and training programs--not AD's--
have been highly effective in achieving needed safety improvements.
The FAA does not concur. The FAA considers that substituting
advisory material and mandatory training for issuance of an AD is not
appropriate, nor would this adequately address the unsafe condition.
The FAA fully supports the development of advisory materials and
training. Part 121 (``Certification and Operations: Domestic, Flag, and
Supplemental Air Carriers and Commercial Operators of Large Aircraft'')
and part 135 (``Air Taxi Operators and Commercial Operators'') of the
Federal Aviation Regulations (14 CFR parts 121 and 135) require that
appropriate training concerning limitations such as those contained in
these AD's be incorporated into air carriers' training programs.
However, the FAA's position is that the development and use of such
advisory materials and training alone are not adequate to address the
subject unsafe condition. Currently, the AFM's specify that the
affected airplanes are certificated for flight in icing conditions;
however, the AFM's do not specify a method of determining whether the
certification limits for those conditions have been exceeded.
Consequently, the FAA finds that these AFM's must be revised to provide
limitations for flight in icing conditions and to provide the flight
crew with a method of determining when those limitations have been
exceeded.
The FAA does not concur that amending part 121 of the Federal
Aviation Regulations (14 CFR part 121) in lieu of issuing these AD's is
appropriate. The FAA's position is that the appropriate place to inform
the flight crew of the limitations of the airplane is in the AFM. The
appropriate vehicle for mandating such AFM revisions is through
issuance of an AD. In addition, an AD will ensure that the
incorporation of such AFM revisions is not left to each operator's
individual discretion and that flight crews receive pertinent
information. The FAA may consider an assessment of the need to provide
training to pilots of all aircraft types for flight in severe icing
conditions.
The commenters reference windshear as an example of an issue that
was handled successfully without issuance of an AD to revise the AFM's.
In this case, the AFM's for all airplanes having an onboard windshear
system were revised to provide the flight crew with procedures for
responding when the system gives an alert. Although no AD was issued to
mandate these AFM revisions, without revising the AFM, operators could
not comply with the section of part 121 of the Federal Aviation
Regulations (14 CFR part 121) that requires installation of the
windshear detection devices. In conclusion, although AFM revisions were
not required by an AD, AFM changes were mandated indirectly by a new
part 121 regulation.
The commenters also reference ground deicing. Part 91 (``General
Operating and Flight Rules'') of the Federal Aviation Regulations (14
CFR part 91) prohibits takeoff of an airplane unless the airframe is
clear of ice; therefore, there is no need to provide additional
limitations concerning the amount of ice that would be acceptable for
takeoff. However, in the case of severe icing conditions addressed by
these final rules, the AFM's currently allow flight in icing, but the
AFM does not define when the limits of the certificated icing operation
envelope have been exceeded.
Concerning the issue of clear air turbulence, issuance of an AD was
not required because an airspeed limitation associated with turbulent
air penetration was already in the AFM's. Therefore, in this case, the
issue was addressed in the AFM as well as through awareness and
training.
Comment 13. Request To Withdraw the Proposals: Incorporate Operational
Issues Into a Training Curriculum
Two commenters request that the proposals be withdrawn because the
proposed AD's address an operational issue that should be incorporated
into an operator's training curriculum. One commenter states that
pilots must be made aware of the hazards of icing and that extended
operation of an airplane in any icing encounter that results in
significant airframe accretion of ice is unacceptable.
The FAA does not concur that the AD's should be withdrawn based on
the commenters' request. The FAA acknowledges that these AD's address
an operational issue. When the requirements of these AD's are
accomplished and the AFM limitations are revised, this material will be
incorporated necessarily, as explained previously, into the training
curriculum for the flight crews and dispatchers, if applicable, in the
operator's approved training program. In this manner, pilots and
dispatchers, if applicable, will be informed of the hazards of icing
and that continued operation of an airplane in certain icing conditions
is prohibited.
Comment 14. Request To Withdraw the Proposals: Require Training for Air
Traffic Controllers and Weather Specialists
Two commenters request that the FAA implement additional policy to
require training for air traffic controllers and weather specialists in
the
[[Page 20623]]
recognition, avoidance, and procedures to exit severe icing conditions.
The FAA does not concur that these AD's should be withdrawn.
However, the FAA acknowledges that implementation of these AD's may
necessitate additional training beyond that which is already required
for air traffic controllers and weather specialists. The FAA may
consider the need to provide training concerning recognition,
avoidance, and procedures for exiting severe icing conditions. However,
the intent of these AD's is to provide the flight crew with recognition
cues for, and procedures for exiting from, severe icing conditions. The
appropriate vehicle for requiring that such information be included in
the AFM's is through issuance of an AD.
Comment 15. Request To Withdraw the Proposals: Add a Caution to the AFM
One commenter requests that, in lieu of issuing the proposed AD's,
a ``Caution'' should be added to the AFM to inform pilots to exit icing
conditions if ice was observed to be forming aft of the protected
surfaces of the wings. The commenter states that information regarding
the use of flaps and the autopilot in icing conditions could also be
incorporated into the AFM. The commenter does not indicate which
section of the AFM should include this material.
The FAA does not concur. The FAA finds that the requirement to exit
severe icing conditions and information concerning use of the autopilot
during flight in those conditions must be included in the Limitations
Section of the AFM. Additionally, information concerning use of the
flaps during those conditions should be included in the Procedures
Section of the AFM. The appropriate vehicle for requiring these changes
to the AFM is through issuance of an AD.
Comment 16. Request To Withdraw the Proposals: Require Alternative AFM
Limitation
One commenter requests that, in lieu of an AD, the FAA require an
alternative AFM limitation that reads as follows: ``This aircraft is
certified for flight into icing conditions as specified by Appendix C
of Part 25. Actual icing encountered may be greater than Appendix C
requirements.''
The FAA does not concur. The suggested limitation does not provide
guidance as to how a pilot can identify and safely exit icing
conditions that have exceeded those specified in the icing envelope in
Appendix C of part 25 of the Federal Aviation Regulations (14 CFR part
25). These AD's are intended to provide the flight crew with visual
cues which indicate that icing conditions have exceeded the
capabilities of the ice protection equipment, and with procedures to
safely exit those conditions. No change to the AD's is necessary.
Comment 17. Request To Withdraw the Proposals: AFM Revisions Already
Are Required
One commenter requests that the proposals be withdrawn because
section 121.133 (``Manual Requirements: `Preparation' '') of the
Federal Aviation Regulations (14 CFR 121.133) already requires that
operators incorporate revisions into the AFM's; therefore, issuance of
the proposed AD's is unnecessary.
The FAA does not concur. Section 121.133 of the Federal Aviation
Regulations (14 CFR 121.133) does not specifically require that AFM's
be updated to current revisions. Section 121.141 (``Airplane or
Rotorcraft Flight Manual'') of the Federal Aviation Regulations (14 CFR
121.141) requires that the current AFM be carried on the aircraft, but
does not require incorporation of the most current revisions.
Additionally, the commenter does not address the need to change the
AFM's for airplanes that operate under parts 135 (``Air Taxi Operators
and Commercial Operators'') and 91 (``General Operating and Flight
Rules'') of the Federal Aviation Regulations (14 CFR parts 135 and 91).
The appropriate vehicle for ensuring that the Limitations Section of
the AFM's is changed is through issuance of an AD.
Comment 18. Request To Withdraw the Proposals: Use Existing AFM
Revisions
The General Aviation Manufacturers Association (GAMA), on behalf of
its members, states that some of the affected manufacturers have
prepared FAA-approved revisions for the AFM's for their products. GAMA
indicates that those revisions incorporate specific information
regarding cues for recognizing severe icing conditions and procedures
for exiting such conditions, if encountered. Therefore, if the proposed
AD's are adopted, the requirements of the AD's would supersede the
information operators have already incorporated into the AFM's with
less appropriate information that is not type design specific.
One commenter, JAL, requests that certain existing AFM revisions
for the affected Jetstream airplanes be cited in the proposed AD's for
those airplanes in lieu of the content of the proposed AD's. (However,
JAL does not request that the proposals be withdrawn for this
particular reason.) JAL indicates that the existing AFM revisions have
already been FAA-approved.
The FAA does not concur with the commenters' requests. The FAA
acknowledges that the AFM revisions required by these final rules will
supersede previously approved AFM revisions. However, the FAA is
unaware of any AFM that addresses all of the provisions specified in
these final rules, nor of any AFM that contains specific visual cues
that the FAA has not included in the final rules. Even if AFM material
currently exists that does contain all of the provisions of the final
rules, the FAA finds that issuance of an AD would still be necessary to
mandate the provisions of the AFM revisions. However, the FAA would
consider a request for approval of an alternative method of compliance,
in accordance with the provisions of this AD, for those operators
having AFM's that already contain all of the provisions of the final
rules.
Another commenter requests that the FAA withdraw the proposal that
applies to Fairchild Model SA226 and SA227 series airplanes. The
commenter states that the AFM for those airplanes currently contains
visual cues to aid the flight crew in recognition of weather conditions
conducive to SLD. This AFM also provides procedures for avoidance of
such conditions. The commenter adds that these AFM procedures result in
additional operating limitations on the aircraft with regard to severe
weather conditions. The commenter believes these AFM procedures address
all current FAA requirements.
The FAA does not concur that the AFM for Fairchild Model SA226 and
SA227 series airplanes addresses all of the proposed requirements of
the proposed rule. For example, the Limitations section of the AFM for
those airplanes does not require the flight crew to exit severe icing
conditions. For this reason, the FAA does not consider the AFM for
Fairchild Model SA226 and SA227 series airplanes to be equivalent to
the information specified in these AD's.
Comment 19. Request To Withdraw the Proposals: Develop Rulemaking To
Address Airplane Certification Outside of Appendix C
Three commenters suggest that instead of arbitrarily prohibiting
operation of the airplane, the FAA should undertake a well-designed
research program and, if warranted, devise a rulemaking plan for
certification of airplanes outside of Appendix C of part 25 of the
Federal
[[Page 20624]]
Aviation Regulations (14 CFR part 25). One commenter also suggests
possible retroactive implementation of a new Appendix C.
The FAA does not concur because of the length of time that would be
required to implement the commenters' suggestion. The FAA finds that
action is required prior to the commencement of the next icing season
to prohibit the continued flight of airplanes in icing conditions that
have been shown to be unsafe and for which the airplanes have not been
certificated. However, the FAA is currently considering initiating an
assessment of the need to revise Appendix C and the possibility of its
retroactive implementation.
Transport Canada Aviation states that the FAA has determined that
there may be a problem with the certification requirements for icing on
de Havilland Model DHC-6, DHC-7, and DHC-8 series airplanes, but not
the specific approval or design features of those airplanes. However,
the commenter does not specifically request that the proposals be
withdrawn.
The FAA does not concur with the commenter's statement. The FAA has
only determined that no adequate means exists for the flight crew to
determine when the icing certification limits have been exceeded. The
purpose of these AD's is to provide more clearly defined procedures and
limitations associated with severe icing conditions. This does not
imply that the certification requirements for icing are inadequate.
Comment 20. Request To Withdraw the Proposals: Issue a ``General AD''
for All Airplane Types
One commenter requests that a ``general AD'' be issued to prohibit
all airplane types from inadvertent flight into hazardous SLD
conditions. Another commenter adds that if encounters with freezing
rain/freezing drizzle conditions must be reported to Air Traffic
Control, such reporting also should apply to flight crews of all
airplane types.
The FAA does not concur with the commenter's request. For the
reasons discussed earlier in the preamble of this AD, the FAA has
determined that airplanes having pneumatic deicing boots and unpowered
aileron controls are of immediate concern and have been addressed as a
higher priority. The FAA finds that action is required prior to the
commencement of the next icing season to prohibit the operation of
these airplanes in icing conditions that have been shown to be unsafe
and for which the airplanes have not been certificated. However, the
FAA is currently considering initiating an assessment of the potential
adverse effects of SLD on all airplane types.
Comment 21. Request To Withdraw the Proposals: Establish a Detailed
Reporting System
One commenter requests that the FAA establish a detailed reporting
system for inadvertent encounters with severe SLD. The commenter
envisions a system that would provide a database for better
identification of controllability issues and visual indications related
to these encounters.
The FAA does not concur with the commenter's request. The FAA has
been advised that the Regional Airline Association (RAA) has already
established an ``Unusual Icing Reporting Program'' for the purpose
described by the commenter; therefore, establishing another reporting
program would duplicate this benefit.
Comment 22. Request To Withdraw the Proposals: Revise the Master
Minimum Equipment List (MMEL)
Two commenters request that, instead of addressing an MMEL item in
an AD [i.e., the icing detection lights referenced in paragraph (a)(1)
of the proposals], the FAA should require that the MMEL be revised. A
third commenter adds that the decision to change the MMEL should be
made by FAA Operations Inspectors based on local conditions. One
commenter states that the prohibition of dispatch with any inoperative
ice detection lights would preclude any efforts by an operator to
enhance safety by installing a second set of bulbs. The commenter adds
that under this proposed rule, this type of action would be penalized
by simply doubling the chances of a burned out bulb grounding the
aircraft. In practice, if one were to add a fully redundant set of
bulbs, it would enhance safety by allowing the equivalent of the
current illumination level even with a bulb burned out.
The FAA does not concur with these requests. FAA Operations
Inspectors are not authorized to make MMEL revisions. The FAA has
determined that it is prudent to address the icing detection lights in
these final rules to ensure uniform and immediate application of the
requirements of the AD's. Concerning the example provided by one of the
commenters, if an operator chooses to add a fully redundant set of
bulbs, that operator should request approval of an alternative method
of compliance in accordance with the provisions of this final rule.
Although Transport Canada Aviation does not request that the
proposals be withdrawn, it requests a revision to the requirement that
all icing detection lights must be operative. For de Havilland Model
DHC-7 and DHC-8 series airplanes, the commenter requests that the
requirement be changed to mandate that at least one outboard and one
inboard inspection light be operative prior to flight into known or
forecast icing conditions at night. Since the MMEL contains a provision
that a suitable lamp/light of adequate capacity be available, this is
considered acceptable in conjunction with other indications of freezing
rain or freezing drizzle. Similarly, for de Havilland DHC-6 series
airplanes, the requirement should be revised to require a suitable
lamp/light for dispatch at night with one wing inspection light
inoperative.
The FAA does not concur. The FAA has determined that the
justification provided by the commenter is not adequate to enable the
FAA to determine if the proposed changes are acceptable. During severe
icing conditions, the flight crew's workload may be high, and there may
be no opportunity to use the portable lamp/light, which, in itself, may
create disorientation in the cockpit due to adverse reflections from
the glass. The FAA's intent in having all inspection lights be
operative at night is to provide the flight crew the best possible
visibility of the airframe. However, the FAA would consider a request
for approval of an alternative method of compliance, in accordance with
the provisions of these AD's, provided that adequate justification is
presented to support such a request.
Comment 23. Request To Withdraw the Proposals: Certify Airplanes for
Flight in Conditions Outside Appendix C
One commenter implies that the airplanes affected by the proposed
rules must be rectified to a level beyond the present certification
requirements for flight in icing.
The FAA does not concur. The final rules do not require
certification of the airplane beyond the current certification
requirements for flight in icing specified in Appendix C. These AD's
simply provide the flight crew with visual cues which indicate that
icing conditions have exceeded the capabilities of the ice protection
equipment, and with procedures to safely exit those conditions.
One commenter requests that the proposal for de Havilland DHC-6
series airplanes be withdrawn because this airplane model is type
certificated in Canada, which is a country with a higher standard than
the United States for operating in icing conditions.
[[Page 20625]]
The FAA does not concur. This commenter did not submit data to the
FAA to substantiate that the airplane has been shown to be safe for
flight outside the icing certification envelope specified in Appendix
C. Additionally, the FAA is unaware of any foreign civil aviation
authority having certification requirements for icing conditions that
are outside of the icing certification envelope used in the United
States.
Comment 24. Request To Withdraw the Proposals: Proposals Prohibit
Takeoff or Approach in ``Light Freezing Drizzle'' Conditions
One commenter requests the proposals be withdrawn because the
proposed limitation would prohibit takeoff or approach when ``light
freezing drizzle'' conditions that are caused by light precipitation
falling through a thin layer of cold surface air below warmer air above
are reported on the surface. The commenter maintains that with
accomplishment of the appropriate ground deicing precautions prior to
takeoff, no hazard to the operation of the airplane is posed.
The FAA does not concur that the AD's should be withdrawn for this
reason. These AD's do not affect any existing regulations or FAA-
approved operating procedures related to takeoff, dispatch, or release
of an airplane in icing conditions, nor do these AD's prohibit
operation in specific meteorological conditions. These AD's only
prohibit remaining in icing conditions when certain visual cues are
present on the airplane. Operators must comply with existing rules that
require an airplane to be free of ice prior to takeoff. Therefore,
takeoff in ``light freezing drizzle'' would only be prohibited by
existing regulations or FAA-approved operating procedures, not by these
AD's. As explained previously, the FAA considers that landing the
airplane when freezing rain/freezing drizzle conditions are encountered
would, in many cases, be the most expeditious method of exiting the
conditions. Such landing would be in compliance with the limitation
that requires the flight crew to exit the severe icing conditions.
Comment 25. Request To Withdraw the Proposals: Proposals Leave
Unanswered Questions
One commenter contends that the proposals leave unanswered
questions. The commenter alleges that without the answers to those
questions, affected parties are deprived of the ability to provide
informed comments and, thereby, are ``denied their rights under the
Administrative Procedures Act (APA) to comment on the proposed rules.''
Specifically, the commenter asks:
--What is unusual icing?
--Does the pilot, Air Traffic Control, dispatch, or the FAA determine
when the conditions exist?
--What is splatter effect?
--Where are the operating instructions incorporated--in the AFM,
training manuals, or some other document?
The FAA infers from the commenter's remarks that the commenter requests
the proposed AD's be withdrawn because informed comments could not be
provided.
The FAA does not concur that the AD's should be withdrawn on this
basis. The FAA does not agree that the public has been deprived of the
ability to provide informed comments, as required by the APA. In
general, the APA requires that notice of the terms or substance of a
proposed rule be published in the Federal Register. The purpose of this
requirement is to ensure that federal agencies thoroughly consider all
information and opinions submitted by the public before any
requirements are imposed. Notice is intended to improve both the
quality of the regulations and their acceptability to the public. The
FAA finds that none of the questions raised by the commenter identify
areas in which the commenter has not been provided a reasonable
opportunity to comment. The fact that the commenter raises questions
suggests that the commenter considers a need for further clarification.
Even if the commenter is correct in that these questions require
clarification, that fact in itself is a comment that can be addressed
properly by simply clarifying terms. The fact that clarification is
necessary does not mean that the public has been denied reasonable
opportunity to comment.
In response to the commenter's questions, the FAA provides the
following clarification. The term ``unusual icing'' did not appear in
the proposed rules. However, the phrase ``unusually extensive ice'' is
referenced in paragraph (a)(1) of the final rules. [This reference
appears in paragraph (a)(2) of the final rule for Aerospatiale
airplanes.] ``Unusually extensive ice'' accrued on the airframe in
areas not normally observed to collect ice is a visual cue that is
subject to interpretation by the flight crew; therefore, a specific
definition of ``unusually extensive ice'' cannot be provided.
These AD's address changes to AFM limitations, which pertain to the
pilot since the pilot is responsible to look for the visual cues
defined in the AD's. Therefore, the pilot determines when severe icing
conditions exist.
The terminology ``splatter effect'' did not appear in the proposed
rules. The FAA infers from the commenter's question that the commenter
is referencing terminology used in paragraph (a)(2) of the proposed
AD's. ``Droplets that splash or splatter on impact at temperatures
below +5 degrees Celsius OAT'' is a visual cue that was included in the
proposed AD's as a method of identifying severe icing conditions.
Concerning incorporation of operating instructions, these final
rules specify that the AFM's be revised. The AD's do not specify that
any other manuals or documents be revised. However, information that is
included in the AFM as a limitation is necessarily included in the
training program.
Comment 26. Request To Clarify Scope of Icing Conditions Addressed
Transport Canada Aviation suggests that the proposals, which
address only freezing rain/freezing drizzle conditions, are not
adequate to cover all hazards related to operation of aircraft in icing
conditions. The commenter makes no specific request.
The FAA concurs that these AD's do not address all icing related
hazards. The FAA's intent is to minimize the potential hazards
associated with operating the airplane in severe icing conditions by
providing the flight crews with more clearly defined procedures and
limitations associated with such conditions. However, no change to the
final rules is necessary.
Comment 27. Request To Expand the Applicability of the AD's
One commenter, the CAA, suggests that the ``coverage'' of the
proposals should be stated clearly. The CAA believes that a restriction
to those operations in ``regularly scheduled passenger service'' is not
warranted for a safety issue as it does not cover cargo, charter, or
private operations. The commenter does not specify which airplane
models should be addressed. The FAA infers from the comm
FR Doc. 96-10728 Airworthiness Directives; de Havilland, Inc. DHC-6 Series Airplanes
enter's remarks
that it requests that the proposed AD's be applicable to other airplane
models that are used in cargo, charter, or private operations that may
have been excluded from the applicability of these AD's.
The FAA does not concur that the applicability of these AD's should
be expanded to include additional airplane models used primarily in
cargo, charter, or private operation. The FAA is currently considering
the need for
[[Page 20626]]
additional rulemaking to address other airplane models having pneumatic
deicing boots and unpowered aileron controls that are used in these
types of service that were not addressed by these AD's. Additionally,
the applicability of these final rules indicates that the AD's apply to
``all'' of the airplane models identified, certificated in any
category. This means that the AD's apply to all of the affected
airplanes, regardless of how those airplanes are operated (including
passenger service, cargo, charter, or private operation).
Comment 28. Request for Design Changes to the Airplanes
One commenter requests that the FAA require design changes to the
airplanes, which, when accomplished, will allow elimination of the AFM
limitations. The commenter states that abnormal roll control anomalies
could be eliminated by design changes that prevent any ice shapes from
forming by using supplemental ice protection added to existing
pneumatic boots or other ice protection installations. The commenter
concludes that, given this added protection, restricting flight in
freezing drizzle could be reduced to allow exposure to these
atmospheric conditions for a reasonable time and would not require
immediately exiting these conditions when encountered as presently
stipulated.
The FAA does not concur that it should require design changes to
airplanes in these AD's. Currently, the FAA is unaware of any design
changes that would allow elimination or reduction of the AFM
limitations specified in these AD's. However, if such design changes
are developed, approved, and become available, the FAA would consider
additional rulemaking to require such changes. The FAA finds that even
if the ice protection system prevented the formation of ice shapes in
front of the ailerons when the airframe is exposed to certain freezing
drizzle conditions, other meteorological conditions still exist (e.g.,
freezing rain) for which the airplane would not be certificated.
Comment 29. Request for More Specific Visual Cues
One commenter requests that the FAA provide more specific visual
cues for identification of freezing rain or freezing drizzle
conditions. The commenter states that the generic visual cues provided
in the proposed AD's are not adequate for aircraft types that
frequently operate in and encounter SLD conditions. For example, ice
could be forming on the upper wing and not the lower wing; therefore,
looking at the lower wing would not be a reliable visual cue. Two
commenters suggest that specific visual cues be provided for each
airplane model. One of these commenters states that subjective cues may
be of limited benefit if the pilot's experience with icing is
inadequate. The other commenter adds that subjective visual cues will
result in varying interpretations (i.e., some unnecessary course
changes in altitudes or service interruptions caused by overly
conservative interpretations). Transport Canada Aviation does not
request more specific visual cues; but states that ``unusually
extensive ice,'' ``normally observed,'' and ``farther back than
normally observed'' are all variable terms that are largely dependent
on flight crew experience. The commenter contends that limitations and
procedures described using these terms will not be consistently
interpreted. In addition, Transport Canada Aviation states that ice on
the lower wing surface aft of the protected area, by itself, is
unlikely to cause a hazard. Moreover, the presence or absence of such
ice cannot be used as an indication of any hazardous accumulation on
the upper wing surface or on the horizontal stabilizer.
The FAA does not concur with the commenters' request to provide
more specific (or airplane-specific) visual cues. The FAA agrees with
the commenters' assertion that, under certain circumstances,
examination of the undersurface of a high wing may not be reliable. The
FAA also agrees that other cues, such as unusually extensive ice
accrued on the airframe in areas not normally observed to collect ice
and accumulation of ice on the propeller spinner farther aft then
normally observed, are subjective and that reliance on pilot judgment
and experience is necessary in such cases. Additionally, the FAA fully
supports the development and use of airplane-specific cues by operators
and manufacturers. Unfortunately, no commenter provided airplane-
specific cues during this comment period.
In summary, the FAA finds that the combined use of the generic cues
provided and the effect of the final rules in increasing the awareness
of pilots concerning the hazard of operating outside of the
certification icing envelope will provide an acceptable level of
safety. However, for those operators that elect to identify airplane-
specific visual cues, the FAA would consider a request for approval of
an alternative method of compliance, in accordance with the provisions
of this AD.
Transport Canada Aviation states that the term ``protected area''
may not be readily recognizable by the flight crew; for example, not
all of a deicing boot surface is ``protected area.'' [This terminology
appears in the second visual cue (in the proposals for airplanes other
than Aerospatiale airplanes) and in the autopilot limitation in
paragraph (a)(1) of the proposals. For Aerospatiale airplanes, this
terminology appears in the secondary indications in paragraph (a)(1) of
the proposal.] The FAA infers that the commenter requests that more
specific language than ``protected area'' be used.
The FAA does not concur that this terminology should be revised.
The FAA considers that a pilot understands that a portion of the
deicing boot would be considered to be unprotected. Therefore, no
additional clarification or definition of the term ``protected area''
is necessary.
Comment 30. Request To Reference Clear Icing Conditions and Clear
Component of Mixed Icing Conditions
One commenter also asks that all references to freezing rain and
freezing drizzle environments and visual cue identification reference
clear icing conditions and the clear component of mixed icing
conditions. According to the commenter, mixed icing conditions can
contain areas of freezing rain and/or freezing drizzle. The commenter
notes that mixed icing has taken on two different definitions within
the aviation community--the ``engineering'' definition (which is
defined in an FAA icing handbook) and the definition pilots use (which
includes areas of clear and rime ice). The commenter states that a
clear definition of these conditions is needed. The commenter adds that
only pilot reports can show that freezing rain/freezing drizzle exists
because forecasting of these conditions is inadequate. The commenter
indicates that while the Aerospatiale airplanes have side window cues
that will accurately identify freezing rain or freezing drizzle, pilots
of other airplanes without such a sophisticated cue may erroneously
report mixed icing.
The FAA does not concur. The FAA acknowledges that freezing rain
and freezing drizzle may be reported as clear/mixed icing conditions.
However, the flight crew must exit icing conditions that produce the
visual cues specified in the final rules. Exiting the icing conditions
is not dependent upon the terminology used to describe the conditions.
Therefore, the FAA has determined that it is not necessary to include
references to clear icing
[[Page 20627]]
conditions and the clear component of mixed icing conditions. In
addition, the FAA has determined that including a discussion in these
AD's of the phenomenon of mixed icing conditions as it relates to the
current state-of-the-art weather forecasting would be premature because
no clear definition of this phenomenon has been agreed upon among the
aviation community. The FAA is currently considering an assessment
during which various icing-related subjects, including mixed icing
conditions, would be addressed.
Comment 31. Request for Research and Use of Wing-Mounted Ice Detectors
One commenter requests that wing-mounted ice detectors, which
provide real-time icing severity information (or immediate feedback) to
flight crews, continue to be researched and used throughout the fleet.
The FAA infers from this commenter's request that the commenter asks
that installation of these ice detectors be mandated by the FAA.
While the FAA supports the development of such ice detectors, the
FAA does not concur that installation of these ice detectors should be
required. The specifications for automatic detectors having the
capabilities to differentiate among freezing rain, freezing drizzle,
and other icing conditions have not been determined. However, if such
ice detectors are developed, approved, and become available, the FAA
may consider further rulemaking action to require installation of such
equipment.
Comment 32. Request to Limit the Applicability of the AD's
One commenter requests that the applicability of the proposals be
limited to airplanes having NACA 430xx airfoils. The commenter asserts
that the unusual pressure peak on the NACA 430xx airfoils at 9 percent
chord caused the ice ridge to form at that point, which resulted in the
accident involving a Aerospatiale Model ATR-72 series airplane. The
commenter states that ``the accident was caused by the poorly designed,
unusual, and fortunately rarely used NACA 430xx airfoils used on this
airplane.''
The FAA does not concur with the commenter's request to limit the
applicability of the AD's. First, the National Transportation Safety
Board (NTSB) has not yet made an official finding of the probable cause
of the accident referenced by the commenter. Therefore, the FAA cannot
assume that airplanes having NACA 430xx airfoils are more susceptible
to the addressed unsafe condition than those airplanes that do not have
this type of airfoil. Second, the FAA has examined the data submitted
by the commenter, and disagrees with the commenter's assertion
concerning the formation of ice ridges. The formation of ice ridges
depends on many factors. Ice ridges have been observed to form in areas
where there is no pressure (commonly, ``suction'') peak. However, the
impingement location of large droplets is more relevant to the
development of ice ridges than the particular pressure distribution.
The commenter does not address the fact that, regardless of the type of
airfoil on an airplane, a substantial sharp edge protuberance in the
vicinity of the suction peak can have adverse consequences to the
aerodynamic performance of the airfoil. Regardless of the cause of
location of ice formations, prevention or removal of the ice is
certainly an acceptable remedy for such conditions, should those
conditions occur. For example, Aerospatiale extended the deicing boots
to prevent the formation of adverse ice ridges.
Comment 33. Request for Approval of Improved Deicing Equipment for
Aerospatiale Airplanes
ATR requests that paragraph (b) of the proposed rule for
Aerospatiale airplanes be revised to indicate that installation of any
improved version of deicing equipment that is approved by the FAA is
acceptable for compliance with the requirements of that paragraph. The
commenter provides no justification for its request.
The FAA does not concur with the commenter's request to revise the
AD. However, if an improved version of deicing equipment is developed,
approved, and available, the FAA would consider a request for approval
of an alternative method of compliance, in accordance with the
provisions of the AD.
Comment 34. Request for Re-Evaluation of Modified Deicing Boots on
Aerospatiale Airplanes
In response to the proposal for Aerospatiale airplanes, one
commenter requests that the new, enlarged deicing boots that are
required to be installed on these airplanes must be re-evaluated before
total confidence in the modified boots is warranted. The commenter
asserts that no test data exist to show that the modified boots will
preclude the problem of large droplets outside of Appendix C. The area
of exposure outside of Appendix C is essentially open-ended, and only
limited testing within a narrow range of droplet diameters was
conducted. Additionally, the test conditions that existed during the
tanker testing conducted at Edwards Air Force Base, which was intended
to be a ``before modification/after modification'' validation program,
were not identical. The commenter adds that no modification will ensure
that any airplane is safe while flying in icing conditions outside
those specified in Appendix C.
The FAA does not concur with the commenter's request for a re-
evaluation of the modified deicing boots. The modified deicing boots
for these airplanes were subjected to an extensive certification
program by both the FAA and the Direction Generale de l'Aviation Civile
(DGAC), which is the airworthiness authority for France. FAA approval
of the modified boots was based on engineering analyses, wind tunnel
testing, flight testing in natural icing conditions, and a validation
program involving a United States Air Force icing tanker. This testing
verified that the modified boots continue to perform the intended
function within the Appendix C icing envelope. In addition, the
extended deicing boots were shown to adequately protect the airplane
from the larger, supercooled water droplets that are believed to have
existed in the area at the time of the accident in October 1994.
It should be noted, however, that it is not intended that the
modified boots provide protection in all possible icing conditions,
including freezing rain/freezing drizzle. However, the FAA considers
that the combination of the enlarged deicing boots, the AFM operational
procedures and restrictions, and the visual cues which indicate entry
into freezing rain/freezing drizzle conditions provides for an enhanced
level of safety during inadvertent flight in these conditions.
Comment 35. Request for Formal Weather Forecasting System for Freezing
Rain/Freezing Drizzle
One commenter supports a requirement to establish a formal system
to provide forecasts of freezing rain/freezing drizzle conditions, as
proposed in paragraphs (b) and (c) of the original proposed rule for
Aerospatiale airplanes. [This proposed requirement was removed from the
subsequent supplemental notice of proposed rulemaking (NPRM) issued for
these airplanes in January 1996.] The commenter states that such a
requirement should remain in effect until forecasting tools are
developed or detection methods are established to prevent dispatch or
operations in conditions outside those specified in Appendix C. The
commenter states that
[[Page 20628]]
the efficacy of the deicing boots has not been shown completely nor
documented; therefore, avoidance of freezing rain/freezing drizzle is
paramount to safety of flight.
The FAA does not concur that such a requirement is necessary. The
FAA agrees that such a system would enhance the safety of flight
operations. However, there is no evidence that lack of a system with
such specialized features would lead to an unsafe condition. Forecasts
of freezing rain/freezing drizzle are a normal part of pre-flight
weather briefings. The FAA is aware, however, of serious limitations
for such a system to provide accurate and timely forecasts of these
conditions during flight in areas that are removed from weather
reporting stations. Quite often, the only indication of the existence
of severe icing conditions is from pilot reports or other direct
observations.
Research is underway currently in industry and the academic
community to address shortcomings in the forecasting of severe icing
conditions. The FAA may consider further rulemaking if advancements in
weather forecasting provide for a reliable method to predict the
occurrence of freezing rain/freezing drizzle conditions during flight
or in areas removed from direct observations.
Comment 36. Request To Approve Earlier Service Bulletin Revisions
One commenter to the proposed rule for Aerospatiale airplanes
requests that the proposed AD be revised to specify that earlier
revisions of service bulletins are acceptable for compliance with the
requirements of the proposed rule. The commenter makes this request so
as to eliminate the need to apply for approval of alternative methods
of compliance when accomplishing service bulletin revisions other than
those specified in the proposed rule.
The FAA does not concur that earlier revisions of the referenced
service bulletins should be cited in the final rule for Aerospatiale
airplanes. However, the FAA would consider a request for approval of an
alternative method of compliance, in accordance with the provisions of
the AD, provided that adequate justification is presented to support
such a request.
Additionally, the FAA has revised the revision levels specified for
certain service bulletins because those revision levels were omitted
inadvertently from paragraph (b) of the proposed rule for Aerospatiale
airplanes. That final rule has been revised to indicate that certain
modifications are to be accomplished in accordance with Revision 1 of
Aerospatiale Service Bulletins ATR42-57-0043, ATR72-57-1015, and ATR72-
57-1016. The correct date for Revision 1 of those service bulletins
(April 10, 1995) was specified in the proposal for the affected
airplanes.
Comment 37. Request To Revise Referenced Service Bulletins
One commenter to the proposal for Aerospatiale airplanes suggests
that service bulletin revisions should contain a statement indicating
that the revision has no effect on previously modified airplanes. The
commenter provides no justification for this request.
The FAA acknowledges that many service bulletins do contain the
suggested phrase as an aid to operators that may already have
accomplished an earlier service bulletin revision. In fact, if a
particular service bulletin is specified in an AD and that service
bulletin is revised, the FAA routinely determines whether the service
bulletin revision adequately addresses the unsafe condition specified
in the AD; if necessary, the FAA amends the AD to cite the later
service bulletin revision.
Comment 38. Request To Revise Visual Cue: Ice on Side Window
One commenter suggests revised wording for the first visual cue
specified in paragraph (a)(1) of the proposed rule for Aerospatiale
airplanes, as follows: ``Freezing rain and freezing drizzle are
characterized by ice covering all or a substantial part of the unheated
portion of either forward side window and/or water splashing or
streaming on the windshield or the side window when in freezing or near
freezing temperatures.'' The commenter states that the present wording
implies that ice will always appear on the side window; however, this
is not the case.
The FAA does not concur with the commenter's request. The
commenter's revised wording suggests that water splashing or streaming
on the windshield or the side window would be a primary cue used to
determine when severe icing conditions are present. The FAA does not
concur that water splashing or streaming on the windshield or the side
window would be a reliable cue in itself. However, this cue may be used
as a supplemental cue to the primary cue of ice accruing on the side
window. No change to the final rule for Aerospatiale airplanes is
necessary.
Comment 39. Request To Remove Visual Cue: Unusually Extensive Ice
Accretion
One commenter, Saab, requests that if the FAA does not withdraw the
proposed AD's, paragraph (a)(1) of the proposal for Saab SF340A and
SAAB 340B series airplanes should be revised. The commenter suggests
that the first visual cue that appears in that paragraph, which relates
to unusually extensive ice accretion, be removed from the proposal for
those airplanes. Saab indicates that critical ice is believed to be ice
that builds up beyond the protected surfaces on the wing. On Saab Model
SF340A and SAAB 340B series airplanes, the pilot has a good view of the
outer wing and the propeller spinner. Unusually extensive ice in other
areas may or may not be significant in determining whether freezing
rain or freezing drizzle is present; however, the primary visual cue
for these airplanes is ice on the spinner/outer wing.
In light of Saab's remarks, the FAA concurs that the visual cue
addressed by the commenter should be removed from the final rule for
Saab Model SF340A and SAAB 340B series airplanes. (That visual cue
remains in place for Saab Model SAAB 2000 series airplanes.) Paragraph
(a)(1) of that final rule has been revised accordingly.
A second commenter, Raytheon, requests that the same visual cue be
removed from the proposal for Beech airplanes. Raytheon indicates that
it does not believe that observation of this visual cue indicates that
the airplane has exceeded the Appendix C icing envelope with respect to
Beech airplanes. Therefore, the cue specified in the proposal would be
irrelevant in an AFM for these airplanes.
The FAA does not concur with Raytheon's request. The commenter has
not submitted data to warrant removal of the visual cue. No change to
the final rule for Beech airplanes has been made.
Comment 40. Request To Remove Visual Cue: Accumulation of Ice on Wing
Surfaces
JAL requests that the FAA remove the generic information contained
in the visual cue concerning accumulation of ice on the wing surfaces
from the proposals for Jetstream airplanes. JAL indicates that, for its
airplanes, the appropriate visual cue is the accretion of ice behind
the protected area of the wing upper surface (not the wing lower
surface).
The FAA concurs partially. The FAA does not agree that the visual
cue should be removed from the final rules for Jetstream airplanes.
However, the FAA finds that this particular visual cue should be
airplane-specific. Therefore, the FAA has customized paragraph (a)(1)
of the final rules for all affected airplanes to specify whether
accumulation of ice is observed on the
[[Page 20629]]
upper or lower surface of the wing, depending upon whether the airplane
is a high- or low-wing airplane. [Operators should note that, for
Aerospatiale airplanes, the cue was customized in paragraph (a)(2) of
the final rule.]
Comment 41. Request To Revise Visual Cue: Accumulation of Ice on
Propeller Spinner
One commenter requests that the FAA revise the visual cue
concerning accumulation of ice on the propeller spinner, as specified
in paragraph (a)(1) of the proposals. For consistency, the commenter
requests that the word ``back'' be replaced with ``aft.''
The FAA concurs with the commenter's request. The final rules have
been revised to change the visual cue to read as follows:
``Accumulation of ice on the propeller spinner farther aft than
normally observed.'' [Operators should note that, for Aerospatiale
airplanes, this change appears in paragraph (a)(2) of the final rule.]
Comment 42. Request To Remove Visual Cue: Accumulation of Ice on
Propeller Spinner
One commenter, JAL, requests that the FAA remove the visual cue
concerning accumulation of ice on the propeller spinner from the
proposals for Jetstream airplanes. JAL indicates that on Jetstream
Model ATP airplanes and Model 748 series airplanes, the propeller
spinner is not visible from the flight deck. On Jetstream Models 3101,
3201, and 4101 airplanes, the propeller spinner is visible from the
flight deck, but flight test experience indicates that there is no
unique correlation between the extent of spinner ice accretion and the
existence of freezing rain/freezing drizzle conditions.
The FAA concurs partially. The FAA concurs that since the propeller
spinner is not visible from the flight deck on Jetstream Model ATP
airplanes and Model 748 series airplanes, the visual cue can be removed
from paragraph (a)(1) of the final rules for these models. The FAA does
not concur that this visual cue should be removed from the AD's for
Jetstream Models 3101, 3201, and 4101 airplanes. The commenter did not
submit data to substantiate its assertion that flight test experience
indicates there is no unique correlation between the extent of spinner
ice accretion and the existence of freezing rain/freezing drizzle
conditions. Therefore, it is uncertain if the commenter's flight test
airplane was equipped with instrumentation that would allow the
detection and/or measurement of droplets outside the Appendix C
conditions, and if the airplane had flown into icing conditions
containing freezing rain or freezing drizzle.
Comment 43. Request To Remove Limitation to Immediately Exit Freezing
Rain/Freezing Drizzle
Saab requests that the FAA remove a sentence from paragraph (a)(1)
of the proposals that requires the pilot to immediately exit freezing
rain or freezing drizzle conditions by changing altitude or course.
This commenter points out that the first limitation contained in the
proposal for Saab airplanes (``Flight in meteorological conditions
described as freezing rain or freezing drizzle, as determined by the
following visual cues, is prohibited . . .'') already prohibits flight
in these conditions, and the pilot should respond accordingly. Raytheon
believes a conflict exists between using observations of ice accretion,
as required by paragraph (a)(1) of the proposed rules, and the
``determination'' of certain meteorological conditions.
The FAA concurs partially. The FAA does not agree that the sentence
discussed by Saab should be removed from paragraph (a)(1) of the final
rules. As explained previously, the first limitation in paragraph
(a)(1) of the final rules has been revised to read: ``During flight,
severe icing conditions that exceed those for which the airplane is
certificated shall be determined by the following visual cues. If one
or more of these visual cues exist, immediately request priority
handling from Air Traffic Control to facilitate a route or an altitude
change to exit the icing conditions.'' (This wording is slightly
different in the final rule for Aerospatiale airplanes because only one
visual cue is provided.) The FAA finds that this revision to the final
rules addresses the commenters' concerns with regard to the proposed
limitations.
One commenter poses various questions concerning the last sentence
of the first instruction listed in the procedures for exiting the
freezing rain/freezing drizzle environment in paragraph (a)(2) of the
proposals. (That sentence reads as follows: ``Asking for priority to
leave the area is fully justified under these conditions.'')
--What does the term ``priority'' provide a pilot when asking for
priority to leave icing conditions?
--What if there were three simultaneous requests for ``priority?''
--What Air Traffic Control procedures exist for treating an immediate
request for ``priority?''
--Where is the term ``priority'' defined?
The commenter states that confusion over terms that have not been
defined clearly by the FAA has partially resulted in accidents and
incidents. However, the commenter does not cite a specific case in
which this occurred.
The FAA has re-examined the last sentence of the first instruction
listed in the procedures for exiting the freezing rain/freezing drizzle
environment in paragraph (a)(2) of the proposals. The FAA has
reconsidered use of the term ``priority.'' The FAA finds that more
appropriate language that would be understood clearly by the flight
crew and Air Traffic Controllers should be used in that instruction.
Existing training for flight crews and Air Traffic Controllers
addresses priority handling of airplanes. However, the FAA will issue
additional information for Air Traffic Controllers to further clarify
priority handling of airplanes in severe icing conditions. The FAA
finds that the limitations specified in paragraph (a)(1) of the final
rules will result in the pilot taking appropriate steps to exit the
icing conditions. Therefore, the FAA finds that the sentence questioned
by the commenter may be removed from the final rules without affecting
safety. Accordingly, the FAA has removed that sentence from the final
rules.
Additionally, in order to use terminology in the procedures for
exiting the severe icing environment that is consistent with the
terminology used in the revised limitation and to simplify certain
language, the FAA has revised the first instruction of the procedures.
The revised instruction reads as follows: ``Immediately request
priority handling from Air Traffic Control to facilitate a route or an
altitude change to exit the icing conditions in order to avoid extended
exposure to flight conditions more severe than those for which the
airplane has been certificated.''
Comment 44. Request To Change the Note Concerning the Autopilot
One commenter, ATR, requests that the FAA revise the second note in
paragraph (a)(1) of the proposal for Aerospatiale airplanes. As
proposed, ATR believes the last sentence of the note is too
restrictive. ATR proposes the following: ``The autopilot may mask
tactile cues . . . characteristics. Therefore, when any ice is visible
on the airplane, the pilot should consider flying manually for short
periods in order to check the absence of any anomaly.''
Two commenters request that the FAA remove a similar note
concerning the autopilot from the proposals for airplanes other than
Aerospatiale
[[Page 20630]]
models. One of the commenters, JAL, states that the note contains
advisory information and should not appear in the Limitations Section
of an AFM.
The FAA concurs with ATR's comment that the last sentence of the
note is too restrictive; that sentence has been removed from the final
rules for all airplanes. However, the FAA does not agree with JAL's
contention that the explanation of the relationship between the
autopilot and the masking of tactile cues is inappropriate for
insertion in the Limitations Section of an AFM. On the contrary, the
FAA finds that inclusion of such information will increase the level of
understanding and, consequently, will increase the level of safety.
In light of this, the FAA finds that the note may be removed from
paragraph (a)(1) of the final rules for all airplanes; however, the
information contained in the first sentence of that note has been
combined with the autopilot limitation in paragraph (a)(1) of the final
rules. The final rules have been revised accordingly.
Comment 45. Requests To Remove Autopilot Limitation
Saab requests that the FAA revise the second limitation that
appears in paragraph (a)(1) of the proposal for Saab airplanes. As
proposed, this limitation indicates that use of the autopilot is
prohibited when any ice is observed forming aft of the protected
surfaces of the wing, or when unusual lateral trim requirements or
autopilot trim warnings are encountered. Saab asks that this autopilot
limitation be modified to take into consideration the autopilot system
design on these airplanes, which provides out-of-trim warnings;
therefore, the autopilot can be used up to the point where a warning is
triggered. Saab adds that the triggering point is early enough for the
warning to be taken, should the reason be ice build-up beyond the
protected surfaces. Additionally, there is no automatic disconnect if
the autopilot servo reaches its limit torque, which would prevent any
surprise to the pilot during an out-of-trim condition.
Another commenter, EMBRAER, requests that use of the autopilot not
be limited for EMBRAER Model EMB-120 series airplanes. The commenter
states that flight tests have demonstrated the safe ability of these
airplanes to depart a freezing rain/freezing drizzle condition with the
autopilot on.
Raytheon also objects to the autopilot limitation. Raytheon
suggests that a better approach is to inform the pilots of the nature
of ice accretion, and then let the pilots decide when to use the
autopilot. The commenter believes that prohibiting use of the autopilot
when any ice is observed aft of the protected surfaces of the wing is a
rigid requirement that takes away a valuable aid to the flight crew
when it may be needed most. Raytheon states that there is no evidence
that the autopilots on Beech aircraft would mask an icing related
control problem. The commenter points out that tests on those aircraft
disclosed no icing related control problem to mask. The commenter adds
that trying to anticipate every situation with an absolute prohibition
may lead to other unsafe conditions.
The FAA does not concur that the autopilot limitation should be
modified or removed from the AD's for any of the affected airplanes.
The limited amount of time the pilot is using manual controls instead
of the autopilot would not result in an unsafe condition. In normal
operational environments and conditions, the autopilot is a valuable
aid that reduces the workload of the flight crew. However, under
abnormal conditions (ice aft of the protected surfaces, unusual lateral
trim, or autopilot trim warnings), the autopilot will mask the build-up
of large or unusual control forces in one or more axes. Therefore, for
the short period of time necessary to exit severe icing conditions, the
safest course of action would be manual pilot control. Even if an
autopilot does not automatically disconnect, the pilot may choose to
disconnect the autopilot and could then be faced unexpectedly with
unusual control forces. These reasons also still hold true with
airplanes that have been flight tested with the ice shapes.
Since the issuance of the proposed rules, the FAA has re-examined
the autopilot limitation specified in paragraph (a)(1) of the
proposals. The FAA recognizes that clarification is necessary with
regard to its intent concerning that limitation. That limitation, as
specified in the proposals, states that use of the autopilot is
prohibited when any ice is observed forming aft of the protected
surfaces of the wing, or when unusual lateral trim requirements or
autopilot trim warnings are encountered. However, the FAA's intent
concerning that limitation is that the autopilot be disconnected when
the flight crew observes any of the visual cues identified in paragraph
(a)(1) of the AD's. The need to disconnect the autopilot arises when an
amount of ice accumulates that indicates the limits of the ice
protection equipment have been exceeded, regardless of the means by
which the flight crew becomes aware of the accumulation of ice.
Additionally, the FAA acknowledges that the autopilot limitation,
as proposed, could be misinterpreted to mean that the autopilot must be
disengaged when unusual lateral trim or autopilot trim warnings are
encountered, regardless of whether the airplane is in icing conditions.
However, the FAA only intended that the autopilot limitation apply
while the airplane is in icing conditions.
In light of this, the FAA has determined that the autopilot
limitation contained in paragraph (a)(1) of the final rules must be
revised. The FAA has changed that limitation to read as follows:
``Since the autopilot may mask tactile cues that indicate adverse
changes in handling characteristics, use of the autopilot is prohibited
when any of the visual cues specified above exist, or when unusual
lateral trim requirements or autopilot trim warnings are encountered
while the airplane is in icing conditions.'' (This wording is slightly
different in the final rule for Aerospatiale airplanes because only one
visual cue is provided.) This revision more accurately reflects the
FAA's intent and is, therefore, a logical outgrowth of the proposed
rules.
Comment 46. Request To Insert Procedures in Limitations or Abnormal
Procedures Section of AFM
One commenter suggests that operations in icing conditions that
exceed the capability of the airplane should be described in the
Limitations or Abnormal Procedures Section of the AFM, rather than in
the Normal Procedures Section, as specified in paragraph (a)(2) of the
proposals.
The FAA concurs partially. The FAA agrees that the Abnormal
Procedures Section may be an appropriate location for the procedures
for exiting severe icing conditions. However, the FAA does not agree
that such operational procedures should appear in the Limitations
Section of the AFM since such procedures are not limitations.
Additionally, upon further review, the FAA finds that AFM's may have
neither an Abnormal Procedures nor a Normal Procedures Section.
Consequently, to provide operators with flexibility as to where the
procedures specified in paragraph (a)(2) should be incorporated in the
AFM, that paragraph has been revised to require that the ``Procedures''
Section of the AFM be revised. This means that the procedures may be
inserted in the ``Normal Procedures,'' ``Abnormal Procedures,'' or
other ``Procedures'' Section of the AFM, as appropriate.
[[Page 20631]]
Comment 47. Request To Remove Duplicate Visual Cues
Two commenters indicate that certain visual cues specified in
paragraph (a)(2) of the proposals are duplicated in the ``Warning''
that is also contained in that paragraph. One commenter states that the
duplication of text reduces the impact of the message. Another
commenter questions whether the visual cues and procedures for exiting
the icing environment are intended to be part of the AFM material. The
FAA infers from these remarks that the commenters request that
duplicate text be removed.
Transport Canada Aviation requests that the ``Warning'' be removed
because indications of the possible hazard are progressive and may not
necessarily require immediate action from the pilot. The commenter
suggests that renaming this as a ``Caution'' may be more appropriate.
The FAA concurs partially. The FAA agrees that duplicate text
should be removed from the ``Warning'' section that appeared in the
proposals. The FAA finds that only one unique instruction appears in
the ``Warning'' in paragraph (a)(2) of the proposals: ``If the flaps
are extended, do not retract them until the airframe is clear of ice.''
Therefore, the FAA has added that instruction to the procedures for
exiting the severe icing environment in paragraph (a)(2) of the AD's.
The remainder of the ``Warning'' section that appeared in the proposals
has been removed from the final rules.
Comment 48. Request for Revision to Instruction for Flaps Extension
Saab requests that the FAA revise an instruction contained in the
procedures for exiting the freezing rain/freezing drizzle environment
in paragraph (a)(2) of the proposals. That instruction indicates to
``Avoid extending flaps during extended operation in icing conditions *
* *.'' Saab suggests the following: ``Do not extend flaps when holding
in conditions where ice is accreting on the airframe.'' Further, the
commenter asks that this instruction be inserted as a ``caution'' in
the Limitations Section of the AFM, rather than into the Normal
Procedures Section, as specified in the proposed rule. Saab believes
that it is imperative that the flaps not be extended in such cases.
Inserting the instruction into the Limitations Section, rather than the
Normal Procedures Section, would add strength to the requirement.
Another commenter states that this same instruction appears to be
in conflict with previously approved AFM revisions which state,
``Sustained flight in icing conditions is prohibited with flaps
extended.'' However, the commenter does not provide a suggestion for
rewording this instruction.
The FAA concurs that the procedures related to extension of the
flaps can be reworded somewhat. For clarification purposes, the FAA has
replaced the word ``avoid'' with ``do not'' in that procedure in
paragraph (a)(2) of the final rules. This revision eliminates the
conflict discussed by the second commenter. However, the FAA does not
agree that revising the remainder of the instruction, as suggested by
Saab, provides any additional clarification.
The FAA agrees that inserting the revised wording in the
Limitations Section of the AFM, rather than in the Normal Procedures
Section, would be acceptable; however, this would expand the scope of
the originally proposed rules and would necessitate reopening the
comment period to provide additional opportunity for public comment. In
light of the time required to complete the rulemaking process in
advance of the upcoming icing season and in consideration of the safety
issues addressed by these final rules, the FAA finds that the AD's
should be issued without additional delay. However, the FAA would
consider a request for approval of an alternative method of compliance,
in accordance with the provisions of this AD, to include this
information in the Limitations Section of an operator's AFM.
Transport Canada Aviation requests that this instruction be revised
to read as follows: ``Do not extend flaps during operation in icing
conditions, except for approach and landing. Operation with flaps
extended will result in a reduced wing angle-of-attack with the
possibility of ice forming on the upper surface further aft on the wing
than normal, possibly aft of the protected area.''
The FAA concurs partially. The FAA does not concur with the
commenter's suggested rewording to limit use of the flaps in all
operation in icing conditions except approach and landing. The wording
proposed in the AD's would affect use of the flaps only during extended
operation in icing conditions. The FAA finds that an amount of ice
sufficient to cause control problems is more likely to accumulate
during prolonged operations in icing conditions. Further, the FAA does
not concur that the words ``operation of the flaps can result in a
reduced angle-of-attack * * *'' should be changed to ``operation of the
flaps will result in a reduced angle-of-attack * * *'' in this
instruction. Operation with flaps extended does not always result in a
reduced angle-of-attack. For instance, during extension of the flaps
while the airplane is slowing, the angle-of-attack will increase.
The FAA concurs with the suggestion to include the words ``the
possibility of ice forming on the upper surface further aft * * *'' The
FAA acknowledges that under certain conditions the droplets will not
impinge further aft with a reduced angle-of-attack. The final rules
have been revised to add the words suggested by the commenter to the
sixth instruction specified in the procedures for exiting the severe
icing environment contained in paragraph (a)(2) of the AD's. That
revised instruction reads as follows: ``Do not extend flaps * * * with
the possibility of ice forming on the upper surface * * *''
Comment 49. Requests To Revise ``Caution'' Paragraph
One commenter asks that the heading, ``Caution,'' which appears in
paragraph (a)(2) of the proposals, be renamed ``Warning'' because this
section is intended to prevent loss of life or injury. Transport Canada
Aviation requests that the ``Caution'' section be changed to a note.
The commenter provides no justification.
The FAA concurs partially. The FAA does not concur that the
``Caution'' should be changed to a note because this section is
intended to prevent loss of life or injury. In light of this, the FAA
concurs with the commenter's request to rename the ``Caution'' section
``Warning.'' The FAA finds that ``Warning'' is a stronger term and
would be a more appropriate heading for the paragraph in question.
Additionally, the FAA finds that the ``Warning'' provides advisory
information that should precede the first limitation in paragraph
(a)(1) of the AD's. Accordingly, the FAA has revised the heading
``Caution'' to ``Warning'' in the final rules. In addition, the
``Warning'' has been placed at the beginning of paragraph (a)(1) of the
final rules. The FAA has determined that including this information in
the Limitations Section of the AFM will not impose an additional burden
on any operator, since it is informational only and does not
necessitate providing an additional opportunity for public comment.
Additionally, the commenter notes that an undefined term,
``extreme,'' is used in a sentence in the ``Caution'' paragraph of the
proposals, as follows: ``Flight in freezing rain, freezing drizzle, or
mixed icing conditions (supercooled liquid water and ice crystals) may
result in extreme ice build-up on protected surfaces * * *'' The FAA
infers from
[[Page 20632]]
this remark that the commenter asks that the word ``extreme'' be
removed from the ``Caution'' paragraph.
The FAA concurs. The FAA finds that removing the word ``extreme''
would not change the intent of the sentence and may eliminate
confusion. The word ``extreme'' has been removed from this section of
the final rule. In addition, for clarification purposes, the FAA has
revised the first sentence of the proposed ``Caution'' from ``Severe
icing comprises environmental conditions * * *'' to ``Severe icing may
result from environmental conditions * * *''
Comment 50. Request To Remove Visual Cues: Identification of Freezing
Rain/Freezing Drizzle
One commenter indicates that the cues provided in paragraph (a)(2)
of the proposals for identifying freezing rain/freezing drizzle
conditions are duplicated in material that appears in paragraph (a)(1)
of the proposals. The FAA infers from this remark that the commenter
requests that duplicative wording be removed from paragraph (a)(2) of
the proposed rules.
The FAA concurs. The FAA finds that the section entitled ``The
following shall be used to identify freezing rain/freezing drizzle
icing conditions'' is duplicated in material that appears in paragraph
(a)(1), and does not enhance the effectiveness of the AD's. Therefore,
that section has been removed from paragraph (a)(2) of the final rules
for all airplanes other than Aerospatiale Model ATR-42 and ATR-72
series airplanes.
Paragraph (a)(1) of the proposals for Aerospatiale airplanes
specified secondary indications for identifying possible freezing rain/
freezing drizzle conditions. The FAA recognizes that the flight crew
could have interpreted that paragraph to mean that if the secondary
indicators were observed, the airplane must be flown clear of the
severe icing conditions. However, the FAA's intent is that the flight
crew must immediately request priority handling to exit the icing
conditions only when the visual cue (ice on the side window) specified
in paragraph (a)(1) of the AD is observed.
Accordingly, the FAA has deleted the secondary indications of
possible severe icing conditions from paragraph (a)(1) of the final
rule for Aerospatiale airplanes. In addition, the FAA has removed the
visual cue (ice on the side window) from paragraph (a)(2) of the final
rule. The FAA has retitled the section containing the secondary
indications of possible severe icing as follows: ``The following may be
used as secondary indications of severe icing conditions.'' Further,
the last two secondary indicators contained in that section are
specified in the final rule in a section titled: ``The following
weather conditions may be conducive to severe in-flight icing.'' (This
change is explained further in Comment 51 below.)
Comment 51. Request To Remove Visual Cues: Identification of Possible
Freezing Rain/Freezing Drizzle
One commenter states that the word ``may'' in the following title,
which appears in paragraph (a)(2) of the proposals, is confusing: ``The
following may be used to identify possible freezing rain/freezing
drizzle conditions.'' The commenter indicates that AFM procedures
should provide a clear sequence of steps that must be followed and that
such procedures should be explicit; general advice, regardless of how
prudent, should be published elsewhere. The FAA infers from this remark
that the commenter asks that the cues that appear under this section be
deleted.
The FAA does not concur that this section should be removed. The
cues provided for identification of possible severe icing conditions
will alert the pilot to the possibility that unusual ice accretion may
develop. The FAA finds that the level of detail provided in the final
rules will increase the level of pilot awareness and, consequently,
will increase the level of safety over that which exists currently.
Therefore, the FAA has determined that it is appropriate to incorporate
this section in the AFM.
However, the FAA finds that clarification is necessary with regard
to the title of this section. The FAA finds that operators may
misinterpret that title, as proposed, to mean that this section
contains visual cues that should be used to identify possible severe
icing conditions prior to takeoff, dispatch, or release while the
airplane is on the ground. Additionally, the FAA finds that confusion
could result in differentiating between the weather conditions
specified in this section and the visual cues provided in paragraph
(a)(1) of the AD's. For clarification purposes, the FAA has revised the
title of this section to read as follows: ``The following weather
conditions may be conducive to severe in-flight icing.''
Comment 52. Request To Revise Air Temperature References
Transport Canada Aviation states that ambient temperature is
indicated as static air temperature (SAT), rather than outside air
temperature (OAT), for de Havilland Model DHC-8 series airplanes. The
FAA infers from this remark the commenter requests that the ambient
temperature that appears in the weather conditions specified in
paragraph (a)(2) of the proposals be expressed as SAT for those
airplanes.
The FAA does not concur. The FAA does not intend to specify which
specific indicator in the cockpit a pilot should use to determine the
ambient air temperature. The FAA intends that the pilot use whatever
means necessary to determine ambient air temperature.
However, since airplanes may have indicators other than OAT, the
FAA has replaced the words ``outside air temperature'' with ``ambient
air temperature'' in the weather conditions, and in the procedures for
exiting the severe icing environment, specified in paragraph (a)(2) of
these final rules to eliminate confusion concerning the need for a
specific type of indicator.
In addition, the FAA has re-examined the ambient temperature of +5
degrees Celsius that is specified in paragraph (a)(2) of the proposals.
The FAA has determined that this temperature is too high to be used as
a reliable indication of whether severe icing conditions may exist
during flight. The FAA finds that 0 degrees Celsius is a more
appropriate indication. The FAA has revised paragraph (a)(2) of the
final rules for all airplanes accordingly.
Comment 53. Request To Replace Reference to Droplets that Splash or
Splatter
JAL requests that the weather condition that pertains to ``droplets
that splash or splatter'' be removed from paragraph (a)(2) of the
proposals. JAL believes that this weather condition places too much
emphasis on subjective judgment. JAL states that normal rain conditions
will contain droplets that splash or splatter upon impact with the
windshield. JAL indicates that information included in its existing AFM
revisions, specified as follows, adequately addresses the issue:
``Prolonged operation in altitude bands where temperatures are near
freezing and heavy moisture is visible on the windscreen should be
avoided.''
The FAA does not concur that this weather condition should be
removed from the AD's. This weather condition must be used in
conjunction with the temperature specified as a means of identifying
severe in-flight icing conditions. The weather condition also will
alert the pilot to the possibility that unusual ice accretion may
develop. The FAA finds that the AFM information submitted by JAL does
not provide an equivalent alert to the pilot.
[[Page 20633]]
Comment 54. Request To Revise Procedures for Exiting Freezing Rain/
Freezing Drizzle
JAL requests that the procedures for exiting freezing rain/freezing
drizzle specified in paragraph (a)(2) of the proposals be restricted to
essential instructions that the flight crew must follow. JAL contends
that the procedures contained in the proposals are not written in the
appropriate format for AFM procedures, but are more representative of
advisory material. JAL also states that the current FAA- approved AFM
procedures for exiting freezing rain/freezing drizzle already provide
this essential information and conform to the existing style of the
AFM's. Transport Canada Aviation requests that the first instruction in
these procedures be revised to state only: ``Exit the freezing rain or
freezing drizzle conditions immediately.'' The commenter also requests
clarification of the terms ``extended exposure,'' as used in that
instruction.
The FAA concurs partially. The FAA has reviewed the procedures for
exiting the severe icing environment and finds that two of the
instructions contained in those procedures do not require the level of
detail provided in the proposed rules. The FAA finds that the
information concerning masking of control system forces is already
provided in the Limitations Section of the AFM. Therefore, the FAA has
revised the third instruction of those procedures to read as follows:
``Do not engage the autopilot.'' Additionally, the FAA has determined
that the flight crew need not be provided with instructions for
reducing the angle-of-attack because instructions such as this are
considered to be basic airmanship. Accordingly, the FAA has revised the
fifth instruction in the procedures for exiting the severe icing
environment to specify only information that is essential for the
flight crew. The revised instruction reads as follows: ``If an unusual
roll response . . . reduce the angle-of-attack.'' The FAA finds that,
for the remainder of the procedures for exiting, the additional level
of details provided in the final rules will increase the level of
understanding and, consequently, will increase the level of safety over
that which exists currently. The FAA finds that these procedures are
appropriate for insertion in the AFM's.
Regarding the terms ``extended exposure,'' the intent of that
instruction is to advise the flight crew that exiting the severe icing
conditions will minimize the exposure to flight conditions outside
those for which the airplane has been certificated. The FAA finds that
remaining in such conditions for a prolonged period may result in
accumulating an amount of ice sufficient to cause control problems. The
phrase ``to avoid extended exposure'' is only intended to explain to
the flight crew why severe icing conditions should be exited
immediately.
Raytheon questions the necessity to tell a commercial pilot not to
make any abrupt or excessive maneuvers if the aircraft is in the
position of having control difficulties. This instruction appears under
the heading ``Procedures for exiting the freezing rain/freezing drizzle
environment,'' which appears in paragraph (a)(2) of the proposals. The
commenter contends that this is a training issue and is not appropriate
for AFM procedures. The FAA infers from the commenter's remark that the
commenter requests that these instructions be eliminated from the
proposed rules.
The FAA does not concur. The FAA has determined that such
instructions provide beneficial guidance to the flight crew, which will
enhance the safety of the aircraft.
Saab requests that the FAA revise one of the instructions specified
in the procedures for exiting freezing rain/freezing drizzle specified
in the proposals. The instruction states that if an unusual roll
response or uncommanded control movement is observed, the angle-of-
attack should be reduced by increasing the airspeed or rolling the
wings level (if in a turn), and applying additional power, if needed.
Saab suggests that this instruction be revised to include the word
``aileron'' in the reference to uncommanded control movement. Saab
states further that in the case of wing ice beyond the protected
surfaces, the application of power may be appropriate to increase
airspeed/improve airflow. However, if ice has accrued on the wings
beyond the protected surfaces, there is a possibility that there also
is ice on the horizontal stabilizers. In this case, a sudden burst of
power may be detrimental. An uncommanded pitch control movement is
indicative of tail ice, which normally calls for a different action,
both concerning power as well as the handling of flaps, if extended.
Another commenter, Transport Canada Aviation, requests that the same
instruction be revised to include the word ``lateral'' in reference to
``uncommanded control movement,'' and to change the phrase ``or rolling
wings level'' to ``and rolling wings level.''
The FAA concurs partially. The FAA agrees that the correct
procedures for reducing the angle-of-attack is to increase the airspeed
and roll the wings level, if in a turn. However, as explained
previously, this portion of the procedure has been removed from the
final rules. The FAA does not agree that either ``lateral'' or
``aileron'' should be used to specify the type of uncommanded control
movement. The FAA finds that use of the term ``lateral'' may not be
understood by the flight crew. The FAA finds that including the word
``aileron'' may clarify which control surface is of concern; however,
the FAA has determined that use of a more general term, ``roll'' will
correctly specify the type of uncommanded control movement that is of
concern. The FAA has revised the fifth instruction in the procedures
for exiting the severe icing environment in paragraph (a)(2) of the
final rules accordingly. The revised instruction reads as follows: ``If
an unusual roll response or uncommanded roll control movement is
observed, reduce the angle-of-attack.''
In addition, the procedures for exiting the freezing rain/freezing
drizzle environment contained in the proposals did not specify to use
``a sudden burst of power'' when reducing the angle-of-attack. Rather,
the proposed procedure indicates to apply additional power, if needed,
to provide the desired flight path. However, as discussed previously,
the FAA has removed this reference from the final rules. In addition,
as explained previously, the FAA has revised the final rules to add the
word ``roll'' to describe the type of uncommanded control movement.
This revised wording addresses Saab's concern regarding increasing
power for a pitch anomaly.
Saab also notes that this instruction recommends a reduction in the
angle-of-attack and application of power, if needed. However, the next
instruction of the procedures indicates that reducing the angle-of-
attack may cause ice to build up beyond the protected areas of the
wing. Saab concludes that there is a conflict in that the proposed AD
would require that the angle-of- attack not be reduced or ice will
collect beyond the protected surfaces; however, the angle-of-attack
must be reduced if there is an unusual roll response or uncommanded
control movement.
The FAA does not concur with the commenter's contention that there
is a conflict in the AD's. Reducing the angle-of-attack by increasing
airspeed or rolling the wings level (if in a turn), and applying
additional power, if needed, is a procedure used to exit severe icing
conditions following an unusual roll response or uncommanded roll
control movement; whereas the instruction that involves not extending
the flaps during
[[Page 20634]]
extended operation in icing conditions is intended to prevent ice
build-up beyond the unprotected surfaces.
Raytheon asks for removal of the instruction to reduce the angle-
of-attack and apply additional power, if needed, in response to an
unusual roll response or uncommanded control movement. The commenter
states that these are normal instructions with respect to wing stall
and are inappropriate for inclusion in an AFM.
The FAA concurs partially. There may not be a stall warning
associated with uncommanded control movements in the case of encounters
with severe icing conditions. Since this is not a ``normal'' stall, the
flight crew may not recognize that normal stall recovery procedures
should be used. However, as stated previously, the instruction
referenced by the commenter has been deleted, in part, from the final
rules.
Raytheon also states that it is not appropriate to require contact
with Air Traffic Control as part of an AFM procedure since this is
already addressed in the Aeronautical Information Manual and in section
91.183 of the Federal Aviation Regulations (14 CFR 91.183). The FAA
infers from this statement that the commenter requests that the
instruction to contact Air Traffic Control should be removed from the
procedures for exiting severe icing conditions.
The FAA does not concur. The FAA is aware that this instruction is
contained in the references provided by the commenter. However, the FAA
finds that the importance of timely dissemination of this instruction
warrants its inclusion in the final rules. Inclusion of instructions of
this type is not without precedent; for example, similar information
also is specified in certain AFM's where the forward look windshear
system is addressed.
Comment 55. Request To Revise Procedures for Exiting the Severe Icing
Environment: Include Airplane- Specific Instructions
One commenter suggests that any action that might be necessary to
optimize aircraft performance and control in conditions of exceptional
icing, and exit from those conditions, should be determined separately
with each manufacturer; such procedures should be contained in the AFM
for each airplane model. The FAA infers from this remark that the
commenter requests that the FAA revise the procedures for exiting the
severe icing environment in each final rule to include airplane-
specific instructions.
The FAA agrees that procedures obtained from each individual
manufacturer should be considered and included in the final rules, if
appropriate. All manufacturers have been provided with an opportunity
to submit such procedures in response to the proposed rules. Some
manufacturers requested changes to the final rules. The FAA has revised
the final rules for those requests that were substantiated adequately.
Following issuance of the final rules, the FAA would consider a request
to include additional changes to the AFM revisions, in accordance with
the provisions of these AD's, provided that adequate justification is
presented to support such a request.
Comment 56. Revision of Procedures for Exiting the Severe Icing
Environment
The FAA has re-examined the section titled ``Procedures for exiting
the severe icing environment'' in paragraph (a)(2) of the proposals. As
proposed, that section states that if the visual cues used for
identifying ``possible'' freezing rain or freezing drizzle conditions
are observed, the flight crew should follow the procedures specified
for exiting those conditions. The FAA did not intend that the flight
crew use the procedures for exiting the severe icing environment when
the weather conditions specified in paragraph (a)(2) of these AD's are
observed. The FAA's intent is that the flight crew use those procedures
only when the visual cues identified in the Limitations Section of the
AFM are observed.
In order to eliminate any confusion, the FAA has revised the last
sentence of the first paragraph in the procedures for exiting the
severe icing environment. The FAA has removed the word ``possible''
from that sentence, and has added clarification that the visual cues
are specified in the Limitations Section of the AFM. The revised
sentence reads as follows: ``If the visual cues specified in the
Limitations Section of the AFM for identifying severe icing conditions
are observed, accomplish the following.'' (Operators should note that,
for Aerospatiale airplanes, the final rule specifies only one visual
cue, which involves ice on the side window.)
Comment 57. Request to Revise Cost Estimate
Transport Canada requests that the FAA provide an operational cost
estimate in the proposed AD's.
The FAA acknowledges the concern of the commenter. The FAA
recognizes that, in accomplishing the requirements of any AD, operators
may incur other costs in addition to the ``direct'' costs that are
reflected in the cost analysis presented in the AD preamble. However,
the cost analysis in AD rulemaking actions typically only includes such
direct costs. In the case of these AD's, for example, the requirements
are to revise the AFM to include certain information. How operators
actually ``implement'' that information thereafter (once it is placed
in the AFM) may vary greatly among them.
Further, because AD's require specific actions to address specific
unsafe conditions, they appear to impose costs that would not otherwise
be borne by operators. However, because of the general obligation of
operators to maintain and operate aircraft in an airworthy condition,
this appearance is deceptive. Attributing those costs solely to the
issuance of this AD is unrealistic because, in the interest of
maintaining and operating safe aircraft, prudent operators would
accomplish the required actions even if they were not required to do so
by the AD. In any case, the FAA has determined that direct and
incidental costs are still outweighed by the safety benefits of the AD.
The FAA points out that it is not required to do a full cost-
benefit analysis for each AD. AD's were explicitly exempted from the
Office of Management and Budget (OMB) coordination process described in
Section 6 of that Executive Order. As a matter of law, in order to be
airworthy, an aircraft must conform to its type design and be in a
condition for safe operation. The type design is approved only after
the FAA makes a determination that it complies with all applicable
airworthiness requirements. In adopting and maintaining those
requirements, the FAA has already made the determination that they
establish a level of safety that is cost-beneficial. When the FAA later
makes a finding of an unsafe condition in an aircraft and issues an AD,
it means that the original cost beneficial level of safety is no longer
being achieved and that the required actions are necessary to restore
that level of safety. Because this level of safety has already been
determined to be cost beneficial, and because the AD does not add an
additional regulatory requirement that increases the level of safety
beyond what has been established by the type design, a full cost-
benefit analysis for each AD would be redundant and unnecessary.
Comment 58. Requests to Delay Issuance of the Final Rules
Three commenters request that the FAA extend the comment period for
the proposed rules by 90 days. Each of the commenters request the
extension in order to complete a comprehensive
[[Page 20635]]
analysis of this issue. The commenters state their involvement in
focusing on ``. . . ther recent rulemaking activity, including the
Commuter Rule, flight crewmember training requirements, and proposed
rules covering flight crew flight, duty and test requirements . . .''
as a reason that did not allow complete analysis of the proposed AD's.
One commenter requests that implementation of the AD's be deferred
until further discussion with industry has been undertaken.
The FAA has reviewed these requests and, in consideration of the
importance and need for dissemination of this important information to
the aviation community, does not concur that the comment period should
be extended or issuance of the final rules be deferred until a later
date. Issuing the final rules will ensure that the information is
available, understood, and implemented by the aviation community before
the next icing season. For these reasons, the FAA has determined that
it is imperative that the information and actions contained in these
final rules be incorporated into the operators' AFM's immediately.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-11 De Havilland: Amendment 39-9587; Docket No. 96-CE-01-AD.
Applicability: Models DHC-6-1, DHC-6-100, DHC-6-200, and DHC-6-
300 airplanes (all serial numbers), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the
[[Page 20636]]
Procedures Section of the AFM. This may be accomplished by inserting
a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9587) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10728 Filed 5-1-96; 3:23 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10727 Airworthiness Directives; Jetstream Aircraft Limited Jetstream Models 3101 and 3201 Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20644-20646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10727]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-07-AD; Amendment 39-9593; AD 96-09-17]
RIN 2120-AA64
Airworthiness Directives; Jetstream Aircraft Limited Jetstream
Models 3101 and 3201 Airplanes
AGENCY: Federal Aviation Administration, DOT.
[[Page 20645]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to all Jetstream Aircraft Limited (JAL) Jetstream Models 3101
and 3201 airplanes. This action requires revising the Airplane Flight
Manual (AFM) to provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions, and to limit or
prohibit the use of various flight control devices. This amendment is
prompted by results of a review of the requirements for certification
of the airplane in icing conditions, new information on the icing
environment, and icing data provided currently to the flight crews. The
actions specified by this AD are intended to minimize the potential
hazards associated with operating the airplane in freezing rain or
freezing drizzle conditions by providing more clearly defined
procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-07-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to JAL Jetstream Models 3101 and 3201 airplanes was published in the
Federal Register on January 25, 1996 (61 FR 2186). The action proposed
to require revising the Airplane Flight Manual (AFM) to specify
procedures that would prohibit flight in freezing rain or freezing
drizzle conditions (as determined by certain visual cues), limit or
prohibit the use of various flight control devices, and provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [AMENDED]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-17 Jetstream Aircraft Limited: Amendment 39-9593; Docket No.
96-CE-07-AD.
Applicability: Jetstream Models 3101 and 3201 airplanes (all
serial numbers), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. To minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions, accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
[[Page 20646]]
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9593) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10727 Filed 5-1-96; 3:25 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10725 Airworthiness Directives; Empresa Brasileiro de Aeronautico, S.A. Models EMB-110P1 and EMB-110P2 Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20636-20638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10725]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-02-AD; Amendment 39-9588; AD 96-09-12]
RIN 2120-AA64
Airworthiness Directives; Empresa Brasileiro de Aeronautico, S.A.
Models EMB-110P1 and EMB-110P2 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to Empresa Brasileiro de Aeronautico, S.A. (EMBRAER) Models
EMB-110P1 and EMB-110P2 airplanes. This action requires revising the
Airplane Flight Manual (AFM) to provide the flight crew with
recognition cues for, and procedures for exiting from, severe icing
conditions, and to limit or prohibit the use of various flight control
devices. This amendment is prompted by results of a review of the
requirements for certification of the airplane in icing conditions, new
information on the icing environment, and icing data provided currently
to the flight crews. The actions specified by this AD are intended to
minimize the potential hazards associated with operating the airplane
in freezing rain or freezing drizzle conditions by providing more
clearly defined procedures and limitations associated with such
conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-02-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to EMBRAER Models EMB-110P1 and EMB-110P2 airplanes was published in
the Federal Register on January 25, 1996 (61 FR 2183). The action
proposed to require revising the Airplane Flight Manual (AFM) to
specify procedures that would prohibit flight in freezing rain or
freezing drizzle conditions (as determined by certain visual cues),
limit or prohibit the use of various flight control devices, and
provide the flight crew with recognition cues for, and procedures for
exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable
[[Page 20637]]
because the frequency of occurrence of the specified conditions and the
associated additional flight time cannot be determined. Nevertheless,
because of the severity of the unsafe condition addressed, the FAA has
determined that continued operational safety necessitates the
imposition of these costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-12 Empresa Brasileira de Aeronautica, S.A. (EMBRAER):
Amendment 39-9588; Docket No. 96-CE-02-AD.
Applicability: Models EMB-110P1 and EMB-110P2 airplanes (all
serial numbers), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR
[[Page 20638]]
43.7), and must be entered into the aircraft records showing
compliance with this AD in accordance with section 43.11 of the
Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9588) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10725 Filed 5-1-96; 3:23 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10724 Airworthiness Directives; Fairchild Aircraft SA226 and SA227 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20643-20644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10724]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-06-AD; Amendment 39-9592; AD 96-09-16]
RIN 2120-AA64
Airworthiness Directives; Fairchild Aircraft SA226 and SA227
Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to all Fairchild Aircraft SA226 and SA227 series airplanes.
This action requires revising the Airplane Flight Manual (AFM) to
provide the flight crew with recognition cues for, and procedures for
exiting from, severe icing conditions, and to limit or prohibit the use
of various flight control devices. This amendment is prompted by
results of a review of the requirements for certification of the
airplane in icing conditions, new information on the icing environment,
and icing data provided currently to the flight crews. The actions
specified by this AD are intended to minimize the potential hazards
associated with operating the airplane in freezing rain or freezing
drizzle conditions by providing more clearly defined procedures and
limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-06-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to Fairchild Aircraft SA226 and SA227 series airplanes was published in
the Federal Register on January 25, 1996 (61 FR 2189). The action
proposed to require revising the Airplane Flight Manual (AFM) to
specify procedures that would prohibit flight in freezing rain or
freezing drizzle conditions (as determined by certain visual cues),
limit or prohibit the use of various flight control devices, and
provide the flight crew with recognition cues for, and procedures for
exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
[[Page 20644]]
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-16 Fairchild Aircraft: Amendment 39-9592; Docket No. 96-CE-
06-AD.
Applicability: Models SA226-T, SA226-T(B), SA226-AT, SA226-TC,
SA227-TT, SA227-AT, SA227-AC, SA227-BC, SA227-CC, and SA227-DC
airplanes (all serial numbers), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. To minimize the potential hazards associated with
operating the airplane in severe icing conditions by providing more
clearly defined procedures and limitations associated with such
conditions, accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9592) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10724 Filed 5-1-96; 3:25 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10723 Airworthiness Directives; Beech Aircraft Corporation Models 99, 99A, A99A, B99, C99, B200, B200C, 1900, 1900C, and 1900D Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20638-20639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10723]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-03-AD; Amendment 39-9589; AD 96-09-13]
[RIN 2120-AA64]
Airworthiness Directives; Beech Aircraft Corporation Models 99,
99A, A99A, B99, C99, B200, B200C, 1900, 1900C, and 1900D Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to all Beech Aircraft Corporation (Beech) Models 99, 99A, A99A,
B99, C99, B200, B200C, 1900, 1900C, and 1900D airplanes. This action
requires revising the Airplane Flight Manual (AFM) to provide the
flight crew with recognition cues for, and procedures for exiting from,
severe icing conditions, and to limit or prohibit the use of various
flight control devices. This amendment is prompted by results of a
review of the requirements for certification of the airplane in icing
conditions, new information on the icing environment, and icing data
provided currently to the flight crews. The actions specified by this
AD are intended to minimize the potential hazards associated with
operating the airplane in freezing rain or freezing drizzle conditions
by providing more clearly defined procedures and limitations associated
with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-03-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to Models 99, 99A, A99A, B99, C99, B200, B200C, 1900, 1900C, and 1900D
airplanes was published in the Federal Register on January 25, 1996 (61
FR 2180). The action proposed to require revising the Airplane Flight
Manual (AFM) to specify procedures that would prohibit flight in
freezing rain or freezing drizzle conditions (as determined by certain
visual cues), limit or prohibit the use of various flight control
devices, and provide the flight crew with recognition cues for, and
procedures for exiting from, severe icing conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the
[[Page 20639]]
Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-13 Beech Aircraft Corporation: Amendment 39-9589; Docket No.
96-CE-03-AD.
Applicability: Models 99, 99A, A99A, B99, C99, B200, B200C,
1900, 1900C, and 1900D airplanes (all serial numbers), certificated
in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the lower surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9589) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10723 Filed 5-1-96; 3:23 pm]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10722 Airworthiness Directives; Dornier 228 Series Airplanes
[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20639-20641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10722]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-04-AD; Amendment 39-9590; AD 96-09- 14]
RIN 2120-AA64
Airworthiness Directives; Dornier 228 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to all Dornier 228 series airplanes. This action requires
revising the Airplane Flight Manual (AFM) to provide the flight crew
with recognition cues for, and procedures for exiting from, severe
icing conditions, and to
[[Page 20640]]
limit or prohibit the use of various flight control devices. This
amendment is prompted by results of a review of the requirements for
certification of the airplane in icing conditions, new information on
the icing environment, and icing data provided currently to the flight
crews. The actions specified by this AD are intended to minimize the
potential hazards associated with operating the airplane in freezing
rain or freezing drizzle conditions by providing more clearly defined
procedures and limitations associated with such conditions.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Information that relates to this AD may be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 96-CE-04-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106.
FOR FURTHER INFORMATION CONTACT: Mr. John Dow, Aerospace Engineer, FAA,
Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City,
Missouri 64106; telephone (816) 426-6934; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an AD that would apply
to Dornier 228 series airplanes was published in the Federal Register
on January 25, 1996 (61 FR 2172). The action proposed to require
revising the Airplane Flight Manual (AFM) to specify procedures that
would prohibit flight in freezing rain or freezing drizzle conditions
(as determined by certain visual cues), limit or prohibit the use of
various flight control devices, and provide the flight crew with
recognition cues for, and procedures for exiting from, severe icing
conditions.
Disposition of Comments
For the disposition of comments on this rulemaking action, see
Docket No. 96-CE-01; Amendment 39-9587; AD 96-09-11, Airworthiness
Directives; de Havilland, Inc. DHC-6 Series Airplanes, published
elsewhere in this issue of the Federal Register.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
The FAA estimates that 169 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 1 workhour per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Since an owner/operator who holds at
least a private pilot's certificate as authorized by sections 43.7 and
43.11 of the Federal Aviation Regulations (14 CFR 43.7 and 43.11) can
accomplish the required action, the only cost impact upon the public is
the time it would take the affected airplane owner/operators to
incorporate the AFM revisions.
In addition, the FAA recognizes that this AD may impose operational
costs. However, those costs are incalculable because the frequency of
occurrence of the specified conditions and the associated additional
flight time cannot be determined. Nevertheless, because of the severity
of the unsafe condition addressed, the FAA has determined that
continued operational safety necessitates the imposition of these
costs.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
96-09-14 Dornier: Amendment 39-9590; Docket No. 96- CE-04-AD.
Applicability: Models 228-100, 228-101, 228-200, 228- 201, 228-202,
and 228-212 airplanes (all serial numbers), certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To minimize the potential hazards associated with operating the
airplane in severe icing conditions by providing more clearly
defined procedures and limitations associated with such conditions,
accomplish the following:
(a) Within 30 days after the effective date of this AD,
accomplish the requirements of paragraphs (a)(1) and (a)(2) of this
AD.
Note 2: Operators must initiate action to notify and ensure that
flight crewmembers are apprised of this change.
(1) Revise the FAA-approved Airplane Flight Manual (AFM) by
incorporating the following into the Limitations Section of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``WARNING
Severe icing may result from environmental conditions outside of
those for which the airplane is certificated. Flight in freezing
rain, freezing drizzle, or mixed icing conditions (supercooled
liquid water and ice crystals) may result in ice build-up on
protected surfaces exceeding the capability of the ice protection
system, or may result in ice forming aft of the protected surfaces.
This ice may not be shed using the ice protection systems, and may
seriously degrade the performance and controllability of the
airplane.
[[Page 20641]]
During flight, severe icing conditions that exceed
those for which the airplane is certificated shall be determined by
the following visual cues. If one or more of these visual cues
exists, immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
icing conditions.
--Unusually extensive ice accreted on the airframe in areas not
normally observed to collect ice.
--Accumulation of ice on the upper surface of the wing aft of the
protected area.
--Accumulation of ice on the propeller spinner farther aft than
normally observed.
Since the autopilot may mask tactile cues that indicate
adverse changes in handling characteristics, use of the autopilot is
prohibited when any of the visual cues specified above exist, or
when unusual lateral trim requirements or autopilot trim warnings
are encountered while the airplane is in icing conditions.
All icing detection lights must be operative prior to
flight into icing conditions at night. [NOTE: This supersedes any
relief provided by the Master Minimum Equipment List (MMEL).]''
(2) Revise the FAA-approved AFM by incorporating the following
into the Procedures Section of the AFM. This may be accomplished by
inserting a copy of this AD in the AFM.
``THE FOLLOWING WEATHER CONDITIONS MAY BE CONDUCIVE TO SEVERE IN-FLIGHT
ICING:
Visible rain at temperatures below 0 degrees Celsius
ambient air temperature.
Droplets that splash or splatter on impact at
temperatures below 0 degrees Celsius ambient air temperature.
PROCEDURES FOR EXITING THE SEVERE ICING ENVIRONMENT:
These procedures are applicable to all flight phases from
takeoff to landing. Monitor the ambient air temperature. While
severe icing may form at temperatures as cold as -18 degrees
Celsius, increased vigilance is warranted at temperatures around
freezing with visible moisture present. If the visual cues specified
in the Limitations Section of the AFM for identifying severe icing
conditions are observed, accomplish the following:
Immediately request priority handling from Air Traffic
Control to facilitate a route or an altitude change to exit the
severe icing conditions in order to avoid extended exposure to
flight conditions more severe than those for which the airplane has
been certificated.
Avoid abrupt and excessive maneuvering that may
exacerbate control difficulties.
Do not engage the autopilot.
If the autopilot is engaged, hold the control wheel
firmly and disengage the autopilot.
If an unusual roll response or uncommanded roll control
movement is observed, reduce the angle-of-attack.
Do not extend flaps during extended operation in icing
conditions. Operation with flaps extended can result in a reduced
wing angle-of-attack, with the possibility of ice forming on the
upper surface further aft on the wing than normal, possibly aft of
the protected area.
If the flaps are extended, do not retract them until
the airframe is clear of ice.
Report these weather conditions to Air Traffic
Control.''
(b) Incorporating the AFM revisions, as required by this AD, may
be performed by the owner/operator holding at least a private pilot
certificate as authorized by section 43.7 of the Federal Aviation
Regulations (14 CFR 43.7), and must be entered into the aircraft
records showing compliance with this AD in accordance with section
43.11 of the Federal Aviation Regulations (14 CFR 43.11).
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Small Airplane Directorate, FAA,
1201 Walnut, suite 900, Kansas City, Missouri 64106. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Small Airplane
Directorate.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Small Airplane Directorate.
(e) All persons affected by this directive may examine
information related to this AD at the FAA, Central Region, Office of
the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas
City, Missouri 64106.
(f) This amendment (39-9590) becomes effective on June 11, 1996.
Issued in Kansas City, Missouri, on April 24, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10722 Filed 5-1-96; 3:24 am]
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