issue-1996-08-06•Federal Register final rules — 1996-08-06
Federal Register final rules — 1996-08-06
issue-1996-08-06Federal Register final rules — 1996-08-06Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-20014 Type Acceptance of Private Land Mobile Radios
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Page 40747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20014]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 90
[PR Docket No. 92-235, DA 96-1173]
Type Acceptance of Private Land Mobile Radios
AGENCY: Federal Communications Commission.
ACTION: Final rule; suspension of effectiveness of compliance date.
-----------------------------------------------------------------------
SUMMARY: On June 15, 1995, the Commission adopted a Report and Order
(R&O) to promote more efficient use of the private land mobile radio
spectrum. This R&O established a narrowband channel plan and a
transition schedule which facilitates the transition to narrowband
technology through the type acceptance process rather than by requiring
users to replace existing systems. Specifically, the Commission's rules
state that on or after August 1, 1996, type acceptance only will be
granted for equipment capable of operating on a channel bandwidth of
12.5 kHz or less or equipment that operates on a channel bandwidth of
up to 25 kHz if certain narrowband efficiency standards are met. The
Commission has received twenty-four petitions for reconsideration and
clarification of rules adopted in the R&O. Several petitioners ask for
reconsideration of the rules relating to the type acceptance dates. The
Commission has not yet ruled on these petitions for reconsideration.
Therefore, the Commission, on its own motion and in the public
interest, is suspending the effectiveness of the August 1, 1996,
transition date pending action on the petitions for reconsideration
filed in this proceeding.
EFFECTIVE DATE: July 23, 1996.
FOR FURTHER INFORMATION CONTACT: Ira Keltz of the Wireless
Telecommunications Bureau at (202) 418-0616.
SUPPLEMENTARY INFORMATION:
Adopted: July 22, 1996.
Released: July 23, 1996.
1. On June 15, 1995, the Commission adopted a Report and Order
(R&O) in the above-captioned proceeding to promote more efficient use
of the private land mobile radio spectrum in the 150-174 MHz VHF band,
and in the 421-430 MHz, 450-470 MHz, and 470-512 MHz UHF bands (60 FR
37152, July 19, 1995). In this R&O, the Commission, among other things,
adopted a narrowband channel plan and a transition schedule. This
transition schedule does not require users to replace existing systems.
Rather, it facilitates the transition to narrowband technology through
the type acceptance process. Specifically, Section 90.203(j) of the
Commission's rules, 47 CFR Sec. 90.203(j), states that on or after
August 1, 1996, type acceptance only will be granted for equipment
capable of operating on a channel bandwidth of 12.5 kHz or less or
equipment that operates on a channel bandwidth of up to 25 kHz if
certain narrowband efficiency standards are met. This Order suspends
the August 1, 1996, compliance date in Section 90.203(j) of the
Commission's rules.
2. The Commission has received twenty-four petitions for
reconsideration and clarification of various decisions and technical
rules adopted in the R&O. Several petitioners asked for reconsideration
of the rules relating to the type acceptance implementation dates. The
Commission has not yet ruled on these petitions for reconsideration.
3. Should the Commission ultimately decide to modify the rules
relating to the type acceptance implementation dates, some licensees
could be irreparably harmed by application of Section 90.203(j) of the
Commission's rules prior to our action on reconsideration. Therefore,
on our own motion and in the public interest, we are issuing a
temporary stay of the effectiveness of the scheduled August 1, 1996
transition date. By this action, we will not require compliance with
Section 90.203(j) of the Commission's rules until the Commission acts
on the pending petitions for reconsideration. Until further notice from
the Commission, type acceptance for equipment designed to operate on a
channel bandwidth up to 25 kHz will continue to be granted.
4. Accordingly, it is hereby ordered, pursuant to the authority
delegated in Sections 0.131 and 0.331 of the Commissions rules 47 CFR
Secs. 0.131 and 0.331, that the effectiveness of the compliance date in
Section 90.203(j) of the Commission's rules, which require radios type
accepted after August 1, 1996, to be capable of operating on a channel
bandwidth of 12.5 kHz or less or meet certain narrowband efficiency
standards is suspended pending Commission action on the petitions for
reconsideration filed in this proceeding.
List of Subjects in 47 CFR Part 90
Communications equipment, Federal Communications Commission, Radio.
Federal Communications Commission.
Michele C. Farquhar,
Chief, Wireless Telecommunications Bureau.
[FR Doc. 96-20014 Filed 8-5-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-20005 Amendment to Class E Airspace, Knob Noster, MO
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40717-40718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20005]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 152 / Tuesday, August 6, 1996 / Rules
and Regulations
[[Page 40717]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. 96-ACE-12]
Amendment to Class E Airspace, Knob Noster, MO
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Direct final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This action amends the Class E airspace area at Whiteman AFB,
Knob Noster, MO. A review of military Standard Instrument Approach
Procedures (SIAP) requires an increase in the size of controlled
airspace from 6 miles to 7 miles in order to contain Instrument Flight
Rules (IFR) operations at Whiteman AFB. The effect of this rule is to
provide additional controlled airspace for aircraft executing the SIAPs
at Whiteman AFB.
DATES: Effective date: December 5, 1996.
Comment date: Comments must be received on or before September 20,
1996.
ADDRESSES: Send comments regarding the rule in triplicate to: Manager,
Operations Branch, Air Traffic Division, ACE-530, Federal Aviation
Administration, Docket Number 96-ACE-12, 601 East 12th St., Kansas
City, MO 64106.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Central Region at the same address between 9:00
a.m. and 3:00 p.m., Monday through Friday, except federal holidays.
An informal docket may also be examined during normal business
hours in the Air Traffic Division at the same address listed above.
FOR FURTHER INFORMATION CONTACT: Kathy Randolph, Air Traffic Division,
Operations Branch, ACE-530C, Federal Aviation Administration, 601 East
12th Street, Kansas City, MO 64106; telephone: (816) 426-3408.
SUPPLEMENTARY INFORMATION: The FAA has reviewed the controlled airspace
at Whiteman AFB, Knob Noster, MO. The existing 6-mile radius area is
not sufficient to contain IFR operations at Whiteman AFB. The amendment
to Class E airspace at Knob Noster, MO, will provide additional
controlled airspace to segregate aircraft operating under Visual Flight
Rules (VFR) from aircraft operating under Instrument Flight Rules (IFR)
procedures while arriving or departing the airport. The area will be
depicted on appropriate aeronautical charts thereby enabling pilots to
either circumnavigate the area, continue to operate under VFR to and
from the airport, or otherwise comply with IFR procedures. Class E
airspace areas extending from 700 feet or more above the surface of the
earth are published in paragraph 6005 of FAA Order 7400.9C, dated
August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document will be published subsequently in
the order.
The Direct Final Rule Procedure
The FAA anticipates that this regulation will not result in adverse
or negative comment and, therefore, is issuing it as a direct final
rule. Previous actions of this nature have not been controversial and
have not resulted in adverse comments or objections. The amendment will
enhance safety for all flight operations by designating an area where
VFR pilots may anticipate the presence of IFR aircraft at lower
altitudes, especially during inclement weather conditions. A greater
degree of safety is achieved by depicting the area on aeronautical
charts. Unless a written adverse or negative comment, or a written
notice of intent to submit an adverse or negative comment is received
within the comment period, the regulation will become effective on the
date specified above. After the close of the comment period, the FAA
will publish a document in the Federal Register indicating that no
adverse or negative comments were received, confirming the date on
which the final rule will become effective. If the FAA does receive an
adverse or negative comment within the comment period, or written
notice of intent to submit such a comment, a document withdrawing the
direct final rule will be published in the Federa Register, and a
notice of proposed rulemaking may be published with a new comment
period.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by a notice of proposed rulemaking, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended or withdrawn in light of
the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of this action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA/public contact concerned with the substance of this
action will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-ACE-12.'' The postcard will be date stamped and
returned to the commenter.
Agency Findings
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
[[Page 40718]]
implications to warrant the preparation of a Federalism Assessment.
The FAA has determined that this regulation is noncontroversial and
unlikely to result in adverse or negative comments. For the reasons
discussed in the preamble, I certify that this regulation (1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under Department of Transportation (DOT)
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, 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.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation Administration amends part 71 of
the Federal Aviation Regulations (14 CFR Part 71) as follows:
PART 71--AMENDED
1. The authority citation for Part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
ACE MO E5 Knob Noster, MO [Revised]
Knob Noster, Whiteman AFB, MO
(lat. 38 deg.43'49'' N., long. 93 deg.32'53'' W.)
That airspace extending upward from 700 feet above the surface
within a 7-mile radius of Whiteman AFB and within 1.8 miles each
side of the Whiteman ILS localizer south course, extending from the
7-mile radius to 9.7 miles south of the AFB.
* * * * *
Issued in Kansas City, MO, on July 23, 1996.
Jack L. Skelton,
Acting Manager, Air Traffic Division Central Region.
[FR Doc. 96-20005 Filed 8-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-20004 Amendment to Class E Airspace, Boone, IA
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Page 40718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20004]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Docket No. 96-ACE-6]
Amendment to Class E Airspace, Boone, IA
AGENCY: Federal Aviation Administration, DOT.
ACTION: Direct final rule; confirmation of effective date.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Class E airspace area at Boone Municipal
Airport, Boone, IA. The effect of this rule is to provide additional
controlled airspace for aircraft executing the new Standard Instrument
Approach Procedure (SIAP) at Boone Municipal Airport and departing
aircraft to transition into controlled airspace.
EFFECTIVE DATE: 0901 UTC August 30, 1996.
FOR FURTHER INFORMATION CONTACT:
Kathy Randolph, Air Traffic Division, Operations Branch, ACE-530C,
Federal Aviation Administration, 601 East 12th Street, Kansas City, MO
64016, telephone: (816) 426-3408.
SUPPLEMENTARY INFORMATION: The FAA published this direct final rule
with a request for comments in the Federal Register on June 11, 1996
(61 FR 29472). The FAA uses the direct final rulemaking procedure for a
non-controversial rule where the FAA believes that there will be no
adverse public comment. This direct final rule advised the public that
no adverse comments were anticipated, and that unless a written adverse
comment, or a written notice of intent to submit such an adverse
comment, were received within the comment period, the regulation would
become effective on August 30, 1996. No adverse comments were received,
and thus this notice confirms that this final rule will become
effective on that date.
Issued in Kansas City, MO, on July 16, 1996.
Herman J. Lyons, Jr.,
Manager, Air Traffic Division, Central Region.
[FR Doc. 96-20004 Filed 8-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-20003 Amendment to Class E Airspace, Seward, NE
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40718-40719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20003]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
[Docket No. 96-ACE-10]
Amendment to Class E Airspace, Seward, NE
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Direct final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This action amends the Class E airspace area at Seward
Municipal Airport, Seward, NE. The Federal Aviation Administration has
developed Standard Instrument Approach Procedures (SIAP) based on the
Non-directional Radio Beacon (NDB) which has made this change
necessary. The effect of this rule is to provide additional controlled
airspace for aircraft executing the new SIAP at Seward Municipal
Airport.
DATES: Effective date: October 25, 1996.
Comment date: Comments must be received on or before September 6,
1996.
ADDRESSES: Send comments regarding the rule in triplicate to: Manager,
Operations Branch, Air Traffic Division, ACE-530, Federal Aviation
Administration, Docket Number 96-ACE-10, 601 East 12th ST., Kansas
City, MO 64106.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Central Region at the same address between 9:00
a.m. and 3:00 p.m., Monday through Friday, except federal holidays.
An informal docket may also be examined during normal business
hours in the Air Traffic Division at the same address listed above.
FOR FURTHER INFORMATION CONTACT:
Kathy Randolph, Air Traffic Division, Operations Branch, ACE-530C,
Federal Aviation Administration, 601 East 12th Street, Kansas City, MO
64106: telephone: (816) 426-3408.
SUPPLEMENTARY INFORMATION: The FAA has developed Standard Instrument
Approach Procedures (SIAP) utilizing the Non-Directional Radio Beacon
(NDB) at Seward Municipal Airport, Seward, NE. The amendment to Class E
airspace at Seward, NE, will provide additional controlled airspace to
segregate aircraft operating under Visual Flight Rules (VFR) from
aircraft operating under Instrument Flight Rules (IFR) procedures while
arriving or departing the airport. The area will be depicted on
appropriate aeronautical charts thereby enabling pilots to either
circumnavigate the area, continue to operate under VFR to and from the
airport, or otherwise comply with IFR procedures. Class E airspace
areas extending from 700 feet or more above the surface of the earth
are published in paragraph 6005 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1. The Class E airspace designation listed in
this document will be published subsequently in the order.
The Direct Final Rule Procedure
The FAA anticipates that this regulation will not result in adverse
or
[[Page 40719]]
negative comment and, therefore, is issuing it as a direct final rule.
Previous actions of this nature have not been controversial and have
not resulted in adverse comments or objections. The amendment will
enhance safety for all flight operations by designating an area where
VFR pilots may anticipate the presence of IFR aircraft at lower
altitudes, especially during inclement weather conditions. A greater
degree of safety is achieved by depicting the area on aeronautical
charts. Unless a written adverse or negative comment, or a written
notice of intent to submit an adverse or negative comment is received
within the comment period, the regulation will become effective on the
date specified above. After the close of the comment period, the FAA
will publish a document in the Federal Register indicating that no
adverse or negative comments were received, confirming the date on
which the final rule will become effective. If the FAA does receive an
adverse or negative comment within the comment period, or written
notice of intent to submit such a comment, a document withdrawing the
direct final rule will be published in the Federal Register, and a
notice of proposed rulemaking may be published with a new comment
period.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by a notice of proposed rulemaking, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended or withdrawn in light of
the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of this action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA/public contact concerned with the substance of this
action will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-ACE-10.'' The postcard will be date stamped and
returned to the commenter.
Agency Findings
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is noncontroversial and
unlikely to result in adverse or negative comments. For the reasons
discussed in the preamble, I certify that this regulation (1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under Department of Transportation (DOT)
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, 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.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation Administration amends Part 71 of
the Federal Aviation Regulations (14 CFR Part 71) as follows:
PART 71--AMENDED
1. The authority citation for Part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., P. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
ACE NE E5 Seward, NE [Revised]
Seward Municipal Airport, NE
(Lat. 40 deg.51'55'' N., long. 97 deg.06'34'' W.)
Seward NDB
(Lat. 40 deg.51'54'' N., long. 97 deg.06'22'' W.)
That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Seward Municipal Airport and within 4
miles each side of the 166 deg. bearing from the Seward NDB
extending from the 6.4-mile radius to 14 miles southeast of the NDB
and 4 miles each side of the 359 deg. bearing from Seward NDB
extending from the 6.4-mile radius to 13 miles north of the NDB.
* * * * *
Issued in Kansas City, MO, on July 16, 1996.
Herman J. Lyons, Jr.,
Manager, Air Traffic Division Central Region.
[FR Doc. 96-20003 Filed 8-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-20002 Amendment to Class E Airspace, Sioux City, IA
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40719-40721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20002]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Docket No. 96-ACE-11]
Amendment to Class E Airspace, Sioux City, IA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Direct final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This action amends the Class E airspace area at Sioux Gateway
Airport, Sioux City, IA. The Federal Aviation Administration has
developed Standard Instrument Approach Procedures (SIAP) based on the
Global Positioning System (GPS) and the Non-directional Radio Beacon
(NDB) which has made this change necessary. The effect of this rule is
to provide additional controlled airspace for aircraft executing the
new SIAP at Sioux Gateway Airport.
DATES: Effective date: October 25, 1996.
Comment date: Comments must be received on or before September 6,
1996.
ADDRESSES: Send comments regarding the rule in triplicate to: Manager,
Operations Branch, Air Traffic Division, ACE-530, Federal Aviation
Administration, Docket Number 96-ACE-11, 601 East 12th St., Kansas
City, MO 64106.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Central Region at the same address between 9:00
a.m. and 3:00 p.m., Monday through Friday, except federal holidays.
[[Page 40720]]
An formal docket may also be examined during normal business hours
in the Air Traffic Division at the same address listed above.
FOR FURTHER INFORMATION CONTACT: Kathy Randolph, Air Traffic Division,
Operations Branch, ACE-530C, Federal Aviation Administration, 601 East
12th Street, Kansas City, Missouri 64106: telephone: (816) 426-3408.
SUPPLEMENTARY INFORMATION: The FAA has developed Standard Instrument
Approach Procedures (SIAP) utilizing the Global Positioning System
(GPS) and the Non-directional Radio Beacon (NDB) at the Sioux Gateway
Airport, Sioux City, IA. The amendment to Class E airspace at Sioux
City, IA, will provide additional controlled airspace to segregate
aircraft operating under Visual Flight Rules (VFR) from aircraft
operating under Instrument Flight Rules (IFR) procedures while arriving
or departing the airport. The area will be depicted on appropriate
aeronautical charts thereby enabling pilots to either circumnavigate
the area, continue to operate under VFR to and from the airport, or
otherwise comply with IFR procedures. Class E airspace areas extending
from 700 feet or more above the surface of the earth are published in
paragraph 6005 of FAA Order 7400.9C, dated August 17, 1995, and
effective September 16, 1995, which is incorporated by reference in 14
CFR 71.1. The Class E airspace designation listed in this document will
be published subsequently in the Order.
The Direct Final Rule Procedure
The FAA anticipates that this regulation will not result in adverse
or negative comment and, therefore, is issuing it as a direct final
rule. Previous actions of this nature have not been controversial and
have not resulted in adverse comments or objections. The amendment will
enhance safety for all flight operations by designating an area where
VFR pilots may anticipate the presence of IFR aircraft at lower
altitudes, especially during inclement weather conditions. A greater
degree of safety is achieve by depicting the area on aeronautical
charts. Unless a written adverse or negative comment, or a written
notice of intent to submit an adverse or negative comment is received
within the comment period, the regulation will become effective on the
date specified above. After the close of the comment period, the FAA
will publish a document in the Federal Register indicating that no
adverse or negative comments were received, confirming the date on
which the final rule will become effective. If the FAA does receive an
adverse or negative comment within the comment period, or written
notice of intent to submit such a comment, a document withdrawing the
direct final rule will be published in the Federal Register, and a
notice of proposed rulemaking may be published with a new comment
period.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by a notice of proposed rulemaking, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended or withdrawn in light of
the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of this action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
action will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-ACE-11.'' The postcard will be date stamped and
returned to the commenter.
Agency Findings
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is noncontroversial and
unlikely to result in adverse or negative comments. For the reasons
discussed in the preamble, I certify that this regulation (1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under Department of Transportation (DOT)
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, 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.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation Administration amends Part 71 of
the Federal Aviation Regulations (14 CFR Part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for Part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.).
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
ACE IA E5 Sioux City, IA [Revised]
Sioux City, Sioux Gateway Airport, IA
(lat. 42 deg.24'09'' N., long. 96 deg.23'04'' W.)
Sioux City VORTAC
(lat. 42 deg.20'40'' N., long. 96 deg.19'25'' W.)
Gateway NDB
(lat. 42 deg.24'29'' N., long. 96 deg.23'09'' W.)
That airspace extending upward from 700 feet above the surface
within a 7-mile radius of Sioux Gateway Airport and within 3 miles
each side of the 139 deg. degree radial of the Sioux City VORTAC
extending from the 7-mile radius to 17.8 miles southeast of the
VORTAC and within 3 miles each side of the 319 deg. radial of the
Sioux City VORTAC extending from the 7-mile radius to 25.3 miles
northwest of the VORTAC and 2 miles each side of the 260 deg.
bearing from the Sioux Gateway Airport extending from the 7-mile
radius to 9.2 miles north of the airport.
* * * * *
ACE IA E4 Sioux City, IA [Revised]
Sioux City, Sioux Gateway Airport, IA
[[Page 40721]]
(lat. 42 deg.24'09'' N., long. 96 deg.23'04'' W.)
Sioux City VORTAC
(lat. 42 deg.20'40'' N., long. 96 deg.19'25'' W.)
Gateway NDB
(lat. 42 deg.24'29'' N., long. 96 deg.23'09'' W.)
That airspace extending upward from the surface within 2.2 miles
each side of the 140 deg. radial of the Sioux City VORTAC extending
from the 4.3-mile radius of the Sioux Gateway Airport to 5.3 miles
southeast of the VORTAC and 2.5 miles each side of the 170 deg.
bearing from the Gateway NDB extending from the 4.3-mile radius of
the Sioux Gateway Airport to 7 miles south of the NDB. This Class E
airspace area is effective during the specific dates and times
established in advance by a Notice to Airmen. The effective date and
time will thereafter be continuously published in the Airport/
Facility Directory.
* * * * *
Issued in Kansas City, MO, on July 16, 1996.
Herman J. Lyons, Jr.,
Manager, Air Traffic Division Central Region.
[FR Doc. 96-20002 Filed 8-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-19949 Royalty Relief for Producing Leases and Certain Existing Leases in Deep Water
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40734-40735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19949]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 203
RIN 1010-AC13
Royalty Relief for Producing Leases and Certain Existing Leases
in Deep Water
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Extension of comment period for interim rule.
-----------------------------------------------------------------------
SUMMARY: This notice extends to September 30, 1996, the deadline for
the submission of comments on the interim rule governing royalty relief
for producing leases and certain existing leases in deep water that was
published May 31, 1996.
DATES: MMS will consider all comments we receive by September 30, 1996.
We will begin reviewing comments at that time and may not fully
consider comments we receive after September 30, 1996.
ADDRESSES: Mail or hand-carry comments to the Department of the
Interior; Minerals Management Service; Mail Stop 4700; 381 Elden
Street; Herndon, Virginia 20170-4817; Attention: Chief, Engineering and
Standards Division.
FOR FURTHER INFORMATION CONTACT: Dr. Marshall Rose, Economic Evaluation
Branch, telephone (703) 787-1536.
SUPPLEMENTARY INFORMATION: The MMS has been asked to extend the
deadline for respondents to submit comments to the interim regulations
governing royalty relief on producing and certain existing leases in
deep water that were published May 31, 1996 (61 FR 27263). The request
explains that more time is needed to allow respondents time to work on
certain aspects and problem areas of the interim rule and guidelines
for royalty relief for existing deep water leases.
[[Page 40735]]
Dated: July 30, 1996.
Lucy R. Querques,
Acting Associate Director for Offshore Minerals Management.
[FR Doc. 96-19949 Filed 8-5-96; 8:45 am]
BILLING CODE 4310-MR-M
Complete official Federal Register PDF
FR Doc. 96-19928 Annual Update of Filing Fees
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40722-40723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19928]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 381
[Docket No. RM96-15-000]
Annual Update of Filing Fees
July 31, 1996.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule; annual update of Commission filing fees.
-----------------------------------------------------------------------
SUMMARY: In accordance with Sec. 381.104 of the Commission's
regulations, the Commission issues this update of its filing fees. This
document provides the yearly update using data in the Commission's
Payroll Utilization Reporting System to calculate the new fees. The
purpose of updating is to adjust the fees on the basis of the
Commission's costs for Fiscal Year 1995.
EFFECTIVE DATE: September 5, 1996.
FOR FURTHER INFORMATION CONTACT:
John Sotelo, Office of the Executive Director and Chief Financial
Officer, Federal Energy Regulatory Commission, 888 First Street, N.E.,
Room 42-69, Washington, D.C. 20426, (202) 219-2927.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in Room 2A, 888 First
Street, N.E., Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397 if dialing locally or 1-(800) 856-3920 if
dialing long distance. To access CIPS, set your communications software
to 19200, 144000, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full
duplex, no parity, 8 data bits, and 1 stop bit. The full text of this
document will be available on CIPS indefinitely in ASCII and
WordPerfect 5.1 format for one year. The complete text on diskette in
WordPerfect format may also be purchased from the Commission's copy
contractor, La Dorn Systems Corporation, also located in Room 2A, 888
First Street, N.E., Washington, D.C. 20426.
The Federal Energy Regulatory Commission (Commission) by its
designee the Executive director and Chief Financial Officer\1\ is
issuing this notice to update filing fees the Commission assesses for
specific services and benefits provided to identifiable beneficiaries.
Pursuant to Sec. 381.104 of the Commission's regulations, the
Commission is establishing updated fees on the basis of the
Commission's Fiscal Year 1995 costs. The adjusted fees announced in
this notice are effective September 5, 1996. The new fee schedule is as
follows:
---------------------------------------------------------------------------
\1\ 18 CFR 375.313(a).
Fees Applicable to the Natural Gas Policy Act:
1. Petitions for rate approval pursuant to 18 CFR
284.123(b)(2). (18 CFR 381.403).......................... $6,370
Fees Applicable to General Activities
1. Petition for issuance of a declaratory order (except
under Part I of the Federal Power Act). (18 CFR
381.302(a)).............................................. 12,790
2. Review of a Department of Energy remedial order:
Amount in Controversy
$0-9,999. (18 CFR 381.303(b))............................. 100
$10,000-29,999. (18 CFR 381.303(b))....................... 600
$30,000 or more. (18 CFR 381.303(a))...................... 18,680
3. Review of a Department of Energy denial of adjustment:
Amount in Controversy
$0-9,999. (18 CFR 381.304(b))............................. 100
$10,000-29,999. (18 CFR 381.304(b))....................... 600
$30,000 or more. (18 CFR 381.304(a))...................... 9,790
4. Written legal interpretations by the Office of General
Counsel. (18 CFR 381.305(a))............................... 3,670
Fees Applicable to Natural Gas Pipelines:
1. Pipeline certificate applications pursuant to 18 CFR
284.224. (18 CFR 381.207(b))............................. 1,000
Fees Applicable to Cogenerators and Small Power Producers:
1. Certification of qualifying status as a small power
production facility. (18 CFR 381.505(a))................. 11,000
2. Certification of qualifying status as a cogeneration
facility. (18 CFR 381.505(a))............................ 12,450
3. Applications for exempt wholesale generator status. (18
CFR 381.801)............................................. 1,670
List of Subjects in 18 CFR Part 381
Electric power plants, Electric utilities, Natural gas, Reporting
and recordkeeping requirements.
Christie McGue,
Executive Director and Chief Financial Officer.
In consideration of the foregoing, the Commission amends Part 381,
Chapter I, Title 18, Code of Federal Regulations, as set forth below.
PART 381--FEES
1. The authority citation for Part 381 continues to read as
follows:
Authority: 15 U.S.C. 717-717w; 16 U.S.C. 791-828c, 2601-2645; 31
U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-
85.
[[Page 40723]]
Sec. 381.302 [Amended]
2. In Sec. 381.302, paragraph (a) is amended by removing
``$11,550'' and adding ``$12,790'' in its place.
Sec. 381.303 [Amended]
3. In Sec. 381.303, paragraph (a) is amended by removing
``$16,860'' and adding ``$18,680'' in its place.
Sec. 381.304 [Amended]
4. In Sec. 381.304, paragraph (a) is amended by removing ``$8,840''
and adding ``$9,790'' in its place.
Sec. 381.305 [Amended]
5. In Sec. 381.305, paragraph (a) is amended by removing ``$3,310''
and adding ``3,670'' in its place.
Sec. 381.403 [Amended]
6. Section 381.403 is amended by removing ``$5,740'' and adding
``$6,370'' in its place.
Sec. 381.505 [Amended]
7. In Sec. 381.505, paragraph (a) is amended by removing ``$9,930''
and adding ``$11,000'' in its place and by removing ``$11,240'' and
adding ``$12,450'' in its place.
Sec. 381.801 [Amended]
8. Section 381.801 is amended by removing ``$1,020'' and adding
``$1,670'' in its place.
[FR Doc. 96-19928 Filed 8-5-96; 8:45 am]
BILLING CODE 6717-01-M
Complete official Federal Register PDF
FR Doc. 96-19901 Staff Accounting Bulletin No. 97
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40721-40722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19901]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 211
[Release No. SAB 97]
Staff Accounting Bulletin No. 97
AGENCY: Securities and Exchange Commission.
ACTION: Publication of Staff Accounting Bulletin.
-----------------------------------------------------------------------
SUMMARY: The interpretations in this staff accounting bulletin express
the views of the staff regarding the inappropriate application of Staff
Accounting Bulletin No. 48, Transfers of Nonmonetary Assets by
Promoters or Shareholders, to purchase business combinations
consummated just prior to or concurrent with an initial public
offering, and the identification of an accounting acquirer in
accordance with APB Opinion No. 16, Business Combinations, for purchase
business combinations involving more than two entities.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Brian Heckler, Office of the Chief
Accountant (202-942-4400), or Douglas Tanner, Division of Corporation
Finance (202-942-2960), Securities and Exchange Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549.
SUPPLEMENTARY INFORMATION: The statements in staff accounting bulletins
are not rules or interpretations of the Commission, nor are they
published as bearing the Commission's official approval. They represent
interpretations and practices followed by the Division of Corporation
Finance and the Office of the Chief Accountant in administering the
disclosure requirements of the Federal securities laws.
Dated: July 31, 1996.
Margaret H. McFarland,
Deputy Secretary.
PART 211--[AMENDED]
Accordingly, Part 211 of Title 17 of the Code of Federal
Regulations is amended by adding Staff Accounting Bulletin No. 97 to
the table found in Subpart B.
Staff Accounting Bulletin No. 97
The staff hereby adds Item 8 and Question 2 to Item 2 to Section A
of Topic 2 of the Staff Accounting Bulletin Series. Item 8 of Topic 2:A
provides guidance regarding the applicability of SAB No. 48 to purchase
business combinations just prior to or concurrent with an initial
public offering. Question 2 of Topic 2:A(2) provides the staff's views
regarding the identification of an accounting acquirer in a business
combination involving more than two entities.
TOPIC 2: BUSINESS COMBINATIONS
* * * * *
A. Purchase Method
* * * * *
8. Business Combinations Prior to an Initial Public Offering
Facts: Two or more businesses combine in a single combination just
prior to or contemporaneously with an initial public offering.
Question 1: Does the guidance in SAB Topic 5:G (SAB No. 48) apply
to business combinations entered into just prior to or
contemporaneously with an initial public offering?
Interpretive Response: No. The guidance in SAB Topic 5:G is
intended to address the transfer, just prior to or contemporaneously
with an initial public offering, of nonmonetary assets in exchange for
a company's stock. The guidance in SAB Topic 5:G is not intended to
modify the requirements of APB Opinion No. 16, ``Business
Combinations'' (APB Opinion 16).1 Accordingly, the staff believes
that the combination of two or more businesses should be accounted for
in accordance with APB Opinion 16 and its interpretations.2
---------------------------------------------------------------------------
\1\ The provisions of APB Opinion 16 apply to transactions
involving the transfer of net assets as well as the acquisition of
stock of a corporation. This guidance does not address the
accounting for joint ventures or leveraged buy-out transactions as
discussed in EITF Issue No. 88-16.
\2\ Except as otherwise provided below, the staff will expect
the provisions of this SAB to be applied by registrants in all
filings with the Commission subsequent to the publication of this
guidance. The staff is aware that accounting practices regarding the
application of SAB Topic 5:G to business combinations have varied in
previous filings with the Commission. Accordingly, the staff
generally will not object to the application of the guidance in SAB
Topic 5:G to business combinations entered into just prior to, or
contemporaneously with, an initial public offering for which merger
agreements were executed by all of the combining companies prior to
the publication of this guidance and the initial public offering is
filed with the Commission prior to September 30, 1996.
---------------------------------------------------------------------------
Paragraphs 46 through 48 of APB Opinion 16 specify the conditions
that must be met for a business combination to be recorded using the
pooling-of-interests method of accounting. If the business combination
fails to meet any of the conditions for the pooling-of-interests method
of accounting, APB Opinion 16 requires the combination to be recorded
as the acquisition of one or more entities by an acquiring entity using
the purchase method.3
---------------------------------------------------------------------------
\3\ AICPA Accounting Interpretation No. 38 of APB Opinion 16
states, ``when more than two companies negotiate a combination which
is contingent upon the mutual agreement by the several companies to
the terms, the resulting combination is deemed to be a single
business combination regardless of the number of companies involved.
Each company must meet all of the conditions of paragraphs 46-48 if
the combination is to be accounted for by the pooling of interest
method. . .if any condition in paragraphs 46-48 is not met by any
company, the entire combination would be accounted for by the
purchase method.''
---------------------------------------------------------------------------
* * * * *
2. Determination of the Acquiring Corporation
* * * * *
Question 2
Facts: Three or more substantive operating entities combine in a
single business combination effected by the issuance of stock. The
combination occurs just prior to or contemporaneously with an initial
public offering and does not meet the criteria in APB Opinion No. 16,
``Business Combinations,'' (APB Opinion 16) for the application of the
pooling-of-interests method of accounting.1
---------------------------------------------------------------------------
\1\ See AICPA Accounting Interpretation No. 38 of APB Opinion
16.
---------------------------------------------------------------------------
Question: In the staff's view, does APB Opinion 16 require the
identification of an acquirer when three or more entities combine in a
single transaction accounted for using the purchase method of
accounting?
Interpretive Response: Yes. The staff believes that APB Opinion 16
requires the identification of the acquiring entity for all business
combinations that are
[[Page 40722]]
required to be accounted for using the purchase method of accounting.
When more than two entities are involved in a purchase business
combination, the identification of the acquiring entity may require
rigorous analysis when no single former shareholder group obtains more
than 50 percent of the outstanding shares of the new entity following
the transaction. APB Opinion 16 states, ``presumptive evidence of the
acquiring corporation in combinations effected by an exchange of stock
is obtained by identifying the former common shareholder interests of a
combining company which either retain or receive the larger portion of
the voting rights in the combined corporation.'' 2 Thus, even when
no single former shareholder group of the combining entities
individually obtains more than a 50 percent ownership interest in the
new combined entity, the staff believes that the shareholder group
receiving the largest ownership interest in the combined company should
be presumed to be the acquirer unless objective and verifiable evidence
rebuts that presumption and supports the identification of a different
shareholder group as the acquirer for accounting purposes.3
---------------------------------------------------------------------------
\2\ APB Opinion 16, paragraph 70.
\3\ The accounting acquirer should provide its financial
statements for the periods specified in Rules 3-01 and 3-02 of
Regulation S-X. The financial statements of each individually
significant acquired company should be presented pursuant to the
requirements of Rule 3-05 of Regulation S-X and SAB No. 80. The
presentation of pre-acquisition combined financial statements of the
accounting acquirer and the acquired companies is not appropriate
for a transaction that is not accounted for using the pooling-of-
interests method.
---------------------------------------------------------------------------
[FR Doc. 96-19901 Filed 8-5-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-19895 Groundfish of the Bering Sea and Aleutian Islands Area; Species in the Rock Sole/Flathead Sole/``Other Flatfish'' Fishery Category
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40747-40748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19895]
=======================================================================
-----------------------------------------------------------------------
[[Page 40748]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960129019-6019-01; I.D. 073096A]
Groundfish of the Bering Sea and Aleutian Islands Area; Species
in the Rock Sole/Flathead Sole/``Other Flatfish'' Fishery Category
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for species in the rock
sole/flathead sole/``other flatfish'' fishery category by vessels using
trawl gear in the Bering Sea and Aleutian Islands management area
(BSAI). This action is necessary to prevent exceeding the 1996
prohibited species bycatch mortality allowance of Pacific halibut
apportioned to the trawl rock sole/flathead sole/``other flatfish''
fishery category in the BSAI.
EFFECTIVE DATE: 1200 hours, Alaska local time (A.l.t.), July 31, 1996,
until 2400 hours, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at Subpart H of 50 CFR part 600 and 50 CFR part 679.
The 1996 prohibited species bycatch mortality allowance of Pacific
halibut for the BSAI trawl rock sole/flathead sole/``other flatfish''
fishery category, which is defined at Sec. 679.21(e)(3)(iv)(B)(2), was
established by the Final 1996 Harvest Specifications of Groundfish (61
FR 4311, February 5, 1996) as 730 metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 679.21(e)(7)(iv), that the 1996 prohibited species bycatch
mortality allowance of Pacific halibut apportioned to the trawl rock
sole/flathead sole/``other flatfish'' fishery in the BSAI has been
caught. Therefore, NMFS is prohibiting the directed fishery for species
in the rock sole/flathead sole/``other flatfish'' fishery category by
vessels using trawl gear in the BSAI.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 679.20(e).
Classification
This action is taken under 50 CFR 679.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 31, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-19895 Filed 7-31-96; 4:28 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-19876 Radio Broadcasting Services; Shingletown, CA
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40746-40747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19876]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-51; RM-8591]
Radio Broadcasting Services; Shingletown, CA
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document allots Channel 241A to Shingletown, California,
as that community's second local FM transmission service, in response
to a petition for rule making filed by Mark C. Allen. See 60 FR 22022,
May 4, 1995. Coordinates used for Channel 241A at
[[Page 40747]]
Shingletown are 40-29-36 and 121-53-12. With this action, the
proceeding is terminated.
DATES: Effective September 9, 1996. The window period for filing
applications will open on September 9, 1996, and close on October 10,
1996.
FOR FURTHER INFORMATION CONTACT: Nancy Joyner, Mass Media Bureau, (202)
418-2180. Questions related to the window application filing process
for Channel 241A at Shingletown, California, should be addressed to the
Audio Services Division,(202) 418-2700.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 95-51, adopted July 19, 1996, and
released July 26, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the 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 contractors, International Transcription Service,
Inc., (202) 857-3800, located at 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 Channel 241A at Shingletown.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-19876 Filed 8-5-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-19778 Motor Vehicle Theft Prevention Act Program Regulations
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40723-40727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19778]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of Justice Programs
28 CFR Part 29
[OJP No. 1081]
RIN 1121-AA38
Motor Vehicle Theft Prevention Act Program Regulations
AGENCY: Office of Justice Programs, Bureau of Justice Assistance.
Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Justice Assistance is publishing a Final Rule to
implement the Motor Vehicle Theft Prevention Act of 1994 (MVTPA) by
issuing regulations to establish a national voluntary motor vehicle
theft prevention program. A Proposed Rule for public comment was
published in the Federal Register on October 24, 1995. Under this
program, motor vehicle owners may sign a consent form and obtain a
program decal authorizing law enforcement officers to stop their motor
vehicle if it is being driven under certain specified conditions, and
take reasonable steps to determine whether the vehicle is being
operated with the owner's consent. There are two program conditions
proposed in this rule. Under the first condition, the owner may consent
to have the car stopped if it is operated between the hours of 1:00
a.m. and 5:00 a.m. Under the second condition, the owner may consent to
have the car stopped if it crosses, is about to cross, or about to be
transported across a United States land border, or if it enters a port.
States and localities may elect to participate in the program solely at
their option. The MVTPA grants the Attorney General authority to
establish additional conditions so long as consent from program
participants is obtained and a separate design for program decals is
provided.
EFFECTIVE DATE: September 5, 1996.
FOR FURTHER INFORMATION CONTACT: Greg Morris, Bureau of Justice
Assistance, Office of Justice Programs, Department of Justice, 633
Indiana Avenue, N.W., Room 1086D, Washington, D.C. 20531. (202) 616-
3458.
SUPPLEMENTARY INFORMATION: Section 220001 of the Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 2074,
codified at 42 U.S.C. 14171, contains the Motor Vehicle Theft
Prevention Act (MVTPA). The MVTPA requires the Attorney General to
establish a national voluntary motor vehicle theft prevention program.
The Attorney General has delegated the authority to establish such a
program to the Assistant Attorney General for the Office of Justice
Programs. The Assistant Attorney General for the Office of Justice
Programs has delegated the authority and responsibility for the
management and administration of the program to the Director of the
Bureau of Justice Assistance.
Under this program, automobile owners may voluntarily sign a
consent form and obtain a program decal that authorizes law enforcement
officers to stop the motor vehicle if it is being operated under
certain specified conditions and take reasonable steps to determine
whether the vehicle is being operated with the owner's consent.
Participation in this program is completely voluntary on the part of
the vehicle owner and State and local governments.
A Proposed Rule with request for comments was published in the
Federal Register on October 24, 1995. 60 FR 54459. The following is a
summary of the comments received before the comment period closed on
December 26, 1995.
The California Department of the Highway Patrol raised the
following concerns: (1) Whether an officer has probable cause to stop a
vehicle displaying a decal; (2) the ease with which a thief can remove
a decal; (3) the necessity for extensive public awareness campaigns;
and (4) the transferability or renewal of a decal from one vehicle to
another.
The Department of Justice takes the position that under section
Sec. 29.8 of the rule, Motor vehicle owner participation, the owner of
the vehicle has already granted permission to law enforcement officials
to stop the vehicle if it is being operated under the specified
conditions. It is also the owner's responsibility to advise any other
user of the vehicle that they are subject to being stopped by law
enforcement officials under specified conditions.
BJA intends to use a tamper-resistant, unobtrusive front window
decal to be applied on the inside of the glass directly above the
inside rear-view mirror. In the event that state or local regulations
preclude placing a decal there, it may be placed on the lower right
side. For the rear window, a tamper-resistant decal shall be placed on
the exterior side of the glass along the lower left side. The decision
to place the rear window decal on the outside face of the glass is due
to the wide spread use of tinted glass, and to minimize the adverse
effects from use of rear window defogger units.
BJA intends to use state-of-the-art, retroreflective sheeting paper
in the manufacture of its decals which will result in the decal being
luminescent and easily discernible at night when either direct or
indirect light is cast upon it. This feature would have been
compromised had the decal been placed on the interior side of tinted
glass.
Secondly, the heat generated by a rear window defogger sometimes
results in the loosening of stickers applied on the interior face of
the glass. The removal of such stickers by scraping with a sharp object
can result in damage to the defogger heating filaments embedded near
the interior face of the glass.
For those vehicles that are convertibles or have removable tops,
the rear window decal can be applied to the left side of the rear
bumper.
The main purposes of the MVTPA Program is to create additional,
time-consuming impediments for thieves, and to create a mechanism for
law enforcement to proactively investigate auto theft before a stolen
vehicle report is filed with the authorities.
The MVTPA Program compels a thief to remove a tamper-resistant
bumper sticker while they are alongside the
[[Page 40724]]
vehicle, acting suspiciously and drawing attention to themself. The
thief must then gain access to the vehicle and arouse even greater
suspicion by scraping from the interior of the windshield, a second,
tamper-resistant, decal(s). These additional impediments, in addition
to other theft prevention devices such as an steering wheel locks,
increase the number of hurdles a thief must overcome and raise the
deterrence threshold.
A significant number of auto thefts are committed during the early
morning hours when the owners are asleep and unaware that their
vehicles have been stolen. In many instances, a stolen car can be
driven to a chop shop or driven across state lines before the owner
awakens to discover the theft. The MVTPA Program allows police to
proactively investigate auto theft before a stolen vehicle report is
made by stopping those vehicles which are not normally driven during
the early morning hours, or operated near to an international land
border or port.
Additionally, some states maintain an additional computerized data
base of vehicles enrolled in MVTPA-type programs which are instantly
accessible to law enforcement at all times. Thus, if a thief has
removed the vehicle's decals and while driving, arouses the suspicion
of a police officer on patrol, that officer can access a computerized
data base to not only check whether the vehicle has been reported as
stolen, but also verify that the owner of the vehicle has enrolled the
car in the MVTPA Program and that decals should be affixed to the
vehicle. The absence of decals would heighten the officer's suspicion
that the vehicle had been stolen.
As the MVTPA Program eventually expands into a nationwide program,
BJA will begin a national public awareness campaign to both inform the
public and publicize the Program. However, since the MVTPA will
originate in a few selected states, BJA will focus its initial public
awareness efforts on corroborative efforts with the respective state
automobile theft prevention authorities to publicize their program
statewide.
Section 29.10 and 29.11 respectively address the issues of owners
withdrawing from the program, and the sale or transfer of the enrolled
vehicle. In both instances the owner is required to completely remove
the program decals, change the license plate if necessary, and is
encouraged to notify the participating agency in writing.
The Illinois Motor Vehicle Theft Prevention Council questioned
whether a registration fee would be required and who would be
responsible for its payment. The Bureau of Justice Assistance will
defer to the participating states and localities on the question of
fees charged to owners for registration and materials such as decals,
stickers, emblems and license plates.
The Council also expressed concern over the size and design of the
emblems, decals, stickers and devices. Section 29.3 of the Final Rule
has been amended to task the Bureau of Justice Assistance with the
responsibility of creating a standard, universally recognizable MVTPA
reflective emblem, icon, stickers and or decal. The size and design of
the front windshield decal will make them readily identifiable to a
person standing a short distance away. The rear window decal or sticker
will be readily identifiable to a person traveling in a vehicle at a
safe distance behind.
The Council and other respondents raised concern regarding the
maintenance of a computerized registry of participants. BJA fully
supports the use of computerized state registries and has further
amended the rule to provide states the flexibility of adopting the
design of the icon or emblem into the manufacture of optional,
vehicular license plates which would have to specifically requested by
vehicle registrants. BJA believes that specialized license plates would
be preferable to emblems or decals in the long-term. States can
facilitate public awareness campaigns through the distribution of
customized license plates and track their transferability.
Additionally, the Council noted that the design of the consent
forms should be specified, and questioned whether unreasonable
requirements may be placed on vehicle owners. Section 29.3 has been
amended to require BJA to produce a model consent and registration
form. The requirements will be clearly specified on such forms and
section 29.13 prohibits the addition of new conditions without the
owner's consent.
Finally, the Council expressed some concern that a national
registration program would draw state registrants from Illinois' Beat
Auto Theft (BAT) Program, creating duplication and necessitating
retraining of public employees already familiar with BAT. However, the
Council conceded that the advantages of a uniform, nation-wide program
outweigh the temporary disadvantages of duplication and retraining
while states with their own programs make the transition to the
national program.
The National Automobile Dealers Association (NADA) wrote to request
that new and used auto dealerships be included in the program. Whereas
BJA supports dealership decal registration programs in which states
supply dealerships with an inventory of decals to be attached to
vehicles on an as needed basis, BJA wishes to avoid micro management of
states' programs. BJA has not included such dealership programs as a
provision of the final regulation, but has revised the definition of
the term ``owner'' in Sec. 29.2 to include them. States and/or
localities may elect to participate in the program by requesting
program enrollment materials from BJA and by following the program
requirements set forth in guidelines. BJA further notes that the
previously cited option of utilizing license plate registration would
not only better facilitate state record keeping, it would also enable
automobile dealers to use special dealer license plates instead of
constantly applying and removing decals.
NADA also suggested that Department of Justice abandon the current
proposed time frame (1:00 a.m. to 5:00 a.m.) in favor of a time frame
more conducive to the operation of automobile dealerships, such as
10:00 p.m. to 7:00 a.m. This recommendation has been rejected on the
grounds that it would place an inordinate burden on participating
motorists by exposing them to traffic stops between the hours of 10:00
p.m. and 1:00 a.m., and would place an extraordinary burden on
commuters who must leave home before 7:00 a.m to reach the workplace.
In response to NADA's suggestion that states adopt criminal penalties
for illegally tampering or removing decals, BJA notes that the MVPTA
already imposes Federal sanctions for those who with the intent to
steal, remove, deface, or obstruct a MVPTA decal, emblem or sticker.
The Act also imposes a criminal fine for the unauthorized application
of a theft prevention decal or device.
The MVTPA requires, as a condition of participation, that each
State or locality agrees to take reasonable steps to ensure that law
enforcement officials throughout its jurisdiction are familiar with the
program, and with the conditions under which motor vehicles may be
stopped. Participating states and/or localities are free to choose one
or more of the program conditions established under this rule, and,
therefore, need not authorize their law enforcement officers to stop
motor vehicles under all the conditions specified hereunder in order to
participate.
Participation in this program on the part of states and/or
localities is completely voluntary, and participating jurisdictions may
withdraw from the
[[Page 40725]]
program at any time by sending written notification to BJA.
The adoption of a universally recognizable MVTPA emblem or icon was
prompted by comments received expressing concern over the lack of
uniformity as various states devise their own emblems and decals; the
transferability of decals from one vehicle to another; the ability of
states to track participation in the program by integrating it with
automobile registration systems; the need for public awareness
campaigns; removal of decals by thieves; and a desire to implement a
uniform national program to encourage participation by current
nonparticipating states and localities.
This program is a Federal program that operates separately from any
existing State and local motor vehicle theft prevention program. It is
not intended to preempt existing State or local laws or programs.
Likewise, this program is not intended to preclude states or localities
from setting up their own programs with different or additional
conditions. Participating owners also should be notified of the State
or locality's decision to terminate the program.
Sections 29.8 through 29.12 of the rule explain how an owner in a
participating jurisdiction may enroll his or her automobile in the
program and the responsibilities that accompany participation. In order
to enroll, the owner of the vehicle must sign a program consent form
and register his or her vehicle with a participating State or locality.
By signing the consent form, the owner states that his or her vehicle
is normally not operated under certain specified conditions and
consents to have the automobile stopped if participating law
enforcement officials see the car operated under these conditions.
Additionally, in those instances where states do not issue special
license plates, the owner agrees to display the program decal on his or
her vehicle. For each of the conditions, the owner must give consent
and affix a separate decal.
Section 29.9 requires any person who is in the business of renting
or leasing motor vehicles that bear a program decal to notify the
person to whom the motor vehicle is rented or leased of the program
prior to transferring possession of the vehicle. Failure to provide
such notice to a renter or lessee may result in the assessment of a
civil penalty of an amount not to exceed $5,000. The Assistant Attorney
General of the Civil Division, or his or her designee, shall have the
responsibility to enforce the civil penalties hereunder.
Initially, the program will have two sets of conditions. Under the
first condition, the owner may consent to have the car stopped if it is
operated between the hours of 1:00 a.m. and 5:00 a.m. Under the second
condition, the owner may consent to have the car stopped if it crosses,
is about to cross, or is about to be transported across a United States
land border, or if it enters a port. The rule establishes a one-mile
limit within which states or localities may enforce the border
provision. The one-mile limit is intended to give participating
jurisdictions flexibility to implement the program in a manner most
suitable to local conditions. However, jurisdictions are strongly
encouraged to establish the boundary close to the border for
enforcement purposes without disrupting traffic.
The early morning and border crossing conditions have been used
successfully in existing State and local programs. The port provision
is not, to BJA's knowledge, currently employed in any jurisdiction but
has been included in these proposed regulations because many states,
police departments, prosecutors, and industry representatives have
expressed an interest in methods to reduce stolen vehicles transported
through ports.
The MVTPA authorizes the Attorney General to add conditions to the
program only with the consent of the vehicle owner. Accordingly, after
the program has begun, new conditions under which a vehicle may be
stopped may be added to an existing program only if the owner consents
to the new condition or conditions.
At this time, based on consultations with State and local law
enforcement organizations, prosecutors, and private industry
representatives, the Department of Justice intends to implement the
MVTPA with the two basic program conditions outlined above, limited to
operation of a vehicle between 1:00 a.m. and 5:00 a.m., and operation
or transport of a vehicle across a United States land border or into a
United States port.
In accordance with 5 U.S.C. 605(b), the Director of the Bureau of
Justice Assistance certifies that this rule does not have a significant
adverse economic impact on a substantial number of small entities. This
rule is not a significant regulatory action under Executive Order No.
12866, and therefore, this rule has not been reviewed by the Office of
Management and Budget. This rule has no federalism implications
warranting the preparation of a Federalism Assessment in accordance
with Executive Order No. 12612.
Regulatory Flexibility Act
The Director of the Bureau of Justice Assistance, in accordance
with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed
this rule and, by approving it, certifies that the rule will not have a
significant economic impact on a substantial number of small entities
because of the following factors. Motor vehicle owners, State, and
localities may elect to participate in this program solely at their
option. This rule sets forth conditions under which such parties may
participate but does not impose any fees. The Bureau of Justice
Assistance defers to the participating States and localities on the
question of whether fees will be charged to owners for registration and
materials such as decals, stickers, emblems, and license plates.
List of Subjects in 28 CFR Part 29
Administrative practice and procedure, Authority delegations,
Crime, Highways and roads, International boundaries, Law enforcement,
Motor vehicles, Organization and functions (Government agencies),
Searches.
Accordingly, under the authority delegated by the Attorney General
to the Bureau of Justice Assistance, title 28 of the Code of Federal
Regulations is amended by adding part 29 to read as follows:
PART 29--MOTOR VEHICLE THEFT PREVENTION ACT REGULATIONS
Sec.
29.1 Purpose.
29.2 Definitions.
29.3 Administration by the Bureau of Justice Assistance.
29.4 Election to participate by states and localities.
29.5 Notification of law enforcement officials.
29.6 Limited participation by states and localities permitted.
29.7 Withdrawal from the program by states and localities.
29.8 Motor vehicle owner participation.
29.9 Motor vehicles for hire.
29.10 Owner withdrawal from the program.
29.11 Sale or other transfer of an enrolled vehicle.
29.12 Specified conditions under which stops may be authorized.
29.13 No new conditions without consent.
Authority: 28 U.S.C. 509, 510; 42 U.S.C. 14171.
Sec. 29.1 Purpose.
(a) The purpose of this part is to implement the Motor Vehicle
Theft Prevention Act, 42 U.S.C. 14171, which requires the Attorney
General to develop, in cooperation with the states, a national
voluntary motor vehicle theft
[[Page 40726]]
prevention program. The program will be implemented by states and
localities, at their sole option.
(b) Under this program, individual motor vehicle owners voluntarily
sign a consent form in which the owner
(1) Indicates that the identified vehicle is not normally operated
under certain specified conditions and
(2) Agrees to display a program decal or license plate on the
vehicle and to permit law enforcement officials in any jurisdiction to
stop the motor vehicle if it is being operated under specified
conditions and take reasonable steps to determine whether the vehicle
is being operated by or with the permission of the owner.
(c) The regulations set forth in this part establish the conditions
under which an owner may consent to having his or her vehicle stopped
and the manner in which a State or locality may elect to participate.
Sec. 29.2 Definitions.
For the purposes of this part:
(a) ``The Act'' or ``the MVTPA'' means the Motor Vehicle Theft
Prevention Act.
(b) ``Owner'' means the person or persons whose name(s) appear(s)
on the certificate of title or to whom the car is registered. In the
instance of a new vehicle awaiting sale or lease or in the instance of
a used vehicle where the title has been assigned to a dealership, the
term ``owner'' shall be construed to mean new and used automobile
dealerships.
(c) ``The Program'' refers to the National Voluntary Motor Vehicle
Theft Prevention Program implemented pursuant to the Motor Vehicle
Prevention Act.
Sec. 29.3 Administration by the Bureau of Justice Assistance.
The Director of the Bureau of Justice Assistance shall administer
this Program and shall issue guidelines governing the operational
aspects of it, including the design and production of a standardized,
universally recognizable MVTPA reflective decal, as well as model
consent and registration forms.
Sec. 29.4 Election to participate by states and localities.
(a) Any State or locality that wishes to participate in the program
shall register with the BJA and request program enrollment materials.
Registration forms will be available upon request. Participation in the
program is wholly voluntary on the part of the State or locality.
(b) By electing to participate in the program, a State or locality
agrees to do the following:
(1) Make program enrollment materials, including consent forms,
available to interested motor vehicle owners;
(2) Collect completed consent forms;
(3) Provide enrolled motor vehicle owners with the decal(s), and
license plate(s) applicable to their program condition or conditions
and instructions governing program participation;
(4) Take the necessary steps to authorize law enforcement officials
to stop motor vehicles enrolled in the program; and
(5) Comply with any other regulation(s) or guideline(s) governing
participation in this program.
Sec. 29.5 Notification of law enforcement officials.
In addition to the actions enumerated in Sec. 29.4(b), as a
condition of participating in the program, a State or locality must
agree to take reasonable steps to ensure that law enforcement officials
under its jurisdiction are familiar with the program and with the
conditions under which motor vehicles may be stopped.
Sec. 29.6 Limited participation by states and localities permitted.
A State or locality need not authorize the stopping of motor
vehicles under all sets of conditions specified under the program in
order to participate in the program.
Sec. 29.7 Withdrawal from the program by states and localities.
Any participating State or locality may withdraw from the program
at any time by sending written notification to BJA and by notifying
participating owners individually by mail of the decision to withdraw.
Sec. 29.8 Motor vehicle owner participation.
In order to participate in this program, the owner(s) of a motor
vehicle must sign a program consent form and register with a
participating State or locality. If the vehicle is registered to more
than one person, both owners must sign the consent form. By enrolling
in the federal program, the owner(s) of the motor vehicle--
(a) State(s) that the vehicle is not normally operated under the
specified conditions; and
(b) Agree(s) to:
(1) Display the program decals or devices on the owner's vehicle;
(2) Permit law enforcement officials in any State or locality to
stop the motor vehicle if the vehicle is being operated under the
specified conditions and take reasonable steps to determine whether the
vehicle is being operated by or with the permission of the owner;
(3) Expressly advise any borrower of the vehicle of the existence
of this agreement, and that such user will be subject to being stopped
by law enforcement officials if the vehicle is being operated under the
specified condition(s) even if the officials have no other basis for
believing the vehicle is being operated unlawfully; and
(4) Comply with any other regulation(s) or guideline(s) governing
participation in this program.
Sec. 29.9 Motor vehicles for hire.
(a) Any person who is in the business of renting or leasing motor
vehicles and who rents or leases a motor vehicle on which a program
decal or device is affixed shall notify the person to whom the motor
vehicle is rented or leased about the program, prior to transferring
possession of the vehicle.
(b) The notice required by this section shall be printed in bold
type in the rental or lease agreement, and on the envelope in which the
rental agreement is placed. The notice provision in the rental or lease
agreement must utilize a larger font than the standard type in the
agreement. The notice must state that the motor vehicle may be stopped
by law enforcement officials if it is operated under the conditions
specified by the program in which the car is enrolled even if the
officials have no other basis for believing that the vehicle is being
operated unlawfully.
(c) Failure to provide the notice required by this section to a
renter or lessee may result in the assessment of a civil penalty by the
Assistant Attorney General, Civil Division, or his or her designee, of
an amount not to exceed $5,000. No penalty shall be assessed unless the
person charged has been given notice and an opportunity for a hearing
of such charge.
Sec. 29.10 Owner withdrawal from the program.
An owner may withdraw from the program at any time by completely
removing the program decal and changing the license plate if necessary.
The owner is also encouraged to notify the participating agency in
writing of such withdrawal.
Sec. 29.11 Sale or other transfer of an enrolled vehicle.
Upon the transferral of ownership of an enrolled vehicle, the
transferring owner must completely remove the program decals, change
the license plate(s) if necessary, and is encouraged to notify the
participating agency in writing of the transfer of ownership of the
vehicle.
[[Page 40727]]
Sec. 29.12 Specified conditions under which stops may be authorized.
A motor vehicle owner may voluntarily enroll his or her vehicle(s)
and give written consent to law enforcement official to stop the
vehicle if it is being operated under any or all the conditions set
forth in this section. For each condition, the owner(s) must grant
consent and affix a separate decal, device, or license plate.
(a) Time. A motor vehicle owner may authorize law enforcement
officers to stop the enrolled vehicle if it is being operated between
the hours of 1:00 AM and 5:00 AM. By enrolling in a program with this
condition, the owner must state that the vehicle is not normally
operated between the specified hours, and that the owner understands
that the operation of the vehicle between those hours provides
sufficient grounds for a law enforcement officer to reasonably believe
that the vehicle is not being operated by or with the consent of the
owner, even if the law enforcement official has no other basis for
believing that the vehicle is being operated unlawfully.
(b) Border crossing or port entry. A motor vehicle owner may
authorize law enforcement officers to stop the enrolled vehicle if it
crosses, is about to cross or is about to be transported across a
United States land border, or if it enters a United States port. For
purposes of this section, the phrase ``about to cross a United States
land border'' means the vehicle is operated or transported within one
mile of a United States land border. Participating States or localities
may implement this provision in accordance with local conditions,
provided that a participating State or locality may not extend the
applicable geographic area beyond one mile from the United States land
border. By enrolling in a program with this condition, the owner must
state that the vehicle is not normally driven across a border or into a
port, and that the owner understands that the operation or transport of
the vehicle within a mile of a United States land border or into a port
provides sufficient grounds for a law enforcement officer to believe
that the vehicle is not being operated by or with the consent of the
owner even if the law enforcement officer has no other basis for
believing that the vehicle is being operated unlawfully.
Sec. 29.13 No new conditions without consent.
After the program has begun, new conditions under which a vehicle
may be stopped may only be added to an existing program if the owner
consents to the new condition or conditions.
Dated: July 30, 1996.
Nancy E. Gist,
Director, Bureau of Justice Assistance.
[FR Doc. 96-19778 Filed 8-5-96; 8:45 am]
BILLING CODE 4410-18-P
Complete official Federal Register PDF
FR Doc. 96-19758 Grants To Encourage Arrest Policies
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40727-40734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19758]
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DEPARTMENT OF JUSTICE
28 CFR Part 90
[OJP No. 1019]
RIN 1121-AA35
Grants To Encourage Arrest Policies
AGENCY: Office of Justice Programs, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document announces the final rule for the Grants to
Encourage Arrest Policies authorized by the Violence Against Women Act,
Title IV of the Violent Crime Control and Law Enforcement Act of 1994.
For Fiscal Year 1996, Congress has appropriated $28 million to the
United States Department of Justice, Office of Justice Programs, for
Grants to Encourage Arrest Policies. This regulation is being published
under the general statutory grant of authority to issue rules and
regulations pursuant to the Omnibus Crime Control and Safe Streets Act
of 1968. The purpose of this regulation is to provide a general outline
of the program and its purposes as set forth in the statute.
EFFECTIVE DATE: The final rule is effective August 6, 1996.
FOR FURTHER INFORMATION CONTACT: The Department of Justice Response
Center at 1-800-421-6770 or (202) 307-1480, or Catherine Pierce,
Violence Against Women Grants Office, Office of Justice Programs, at
(202) 307-6026.
SUPPLEMENTARY INFORMATION: The Final Rule implements a discretionary
grant program that does not impose any restrictive regulations on
recipients. Grant recipients will benefit from immediate access to the
funds available through this program, and it would be contrary to the
public interest to delay implementation of the program. Therefore, the
Final Rule is effective upon publication.
Title IV Grants To Encourage Arrest Policies
For Fiscal Year 1996, Congress authorized a federal discretionary
grant program under Title IV of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 1033-22, 108 Stat. 1796, 1902-55,
as amended, codified at 42 U.S.C. 3796hh et seq. (1994) [hereinafter
the ``Act''], for States, units of local government, and Indian tribal
governments to encourage the treatment of domestic violence as a
serious violation of criminal law. The Act gives the Attorney General
and an authorized designee, in this case the Assistant Attorney General
for the Office of Justice Programs, the authority to make grants to the
above mentioned entities. Omnibus Crime Control and Safe Streets Act of
1968 805, as amended, codified at 42 U.S.C. 3786 [hereinafter the
``Omnibus Act'']. Section 2104 of the Omnibus Act, codified as amended
at 42 U.S.C. 3796hh-3, requires that regulations be issued specifically
to implement these policies and programs.
On May 14, 1996, the Office of Justice Programs published a
proposed rule on the implementation of the Grants to Encourage Arrest
Policies in the Federal Register (Vol. 61, No. 94, pages 24256-24261).
Comments were specifically solicited regarding, but not limited to, the
following issues:
(1) Other priority areas that should be considered for funding in
addition to the statutory award priorities identified in Section 90.66
of Subpart D;
(2) The special needs of Indian tribal governments, underserved
populations and rural communities in implementing this Program;
(3) Effective strategies to ensure that local jurisdictions, States
and tribal governments will accord full faith and credit to all valid
protection orders pursuant to 18 U.S.C. 2265; and
(4) Methods and approaches for conducting research on the
effectiveness of arrest and other legal sanctions for domestic violence
in communities that have adopted a system-wide coordinated response to
the problem.
The Office of Justice Programs received 34 letters commenting on
the proposed regulations: 12 from law enforcement agencies; 4 from
prosecution agencies; 2 from probation agencies; 6 from other Federal,
State and local governmental agencies; 1 from an Indian tribal
government; 9 from non-profit, non-governmental victim service
agencies; 1 from a national organization and 1 from a private citizen.
The Office of Justice Programs gratefully acknowledges the agencies,
organizations, and individuals who took the time to express their
views. Comments are on file at OJP's Violence Against Women Grants
Office.
In preparing the Final Rule, OJP is interpreting the scope of the
Program as broadly as possible while adhering closely to the letter and
spirit of the legislation. Language contained in the final regulations
has been modified to reflect the following changes:
The Statement of the Problem has been revised to: (1)
emphasize that, in
[[Page 40728]]
addition to police departments, probation and parole departments and
other criminal justice agencies can play a vital role in jurisdictions
with mandatory or pro-arrest policies by implementing complementary
practices and strategies to enhance the safety of victims and hold
perpetrators of domestic violence accountable for their criminal
actions; (2) to encourage police departments to develop sanctions for
officers who do not follow or enforce official policies and procedures
mandating or encouraging arrest of domestic violence perpetrators as
well as procedures that respond to the complex problem of police
officers who batter; (3) to encourage victim advocates to explore new
partnerships with community policing units that apply the problem-
solving approach to ending violence and increasing their availability
to victims by establishing an independent or agency-sponsored presence
in prosecution agencies, the courts and probation and parole
departments; (4) to clarify the need for specialized training for
police officers on the identification of the primary aggressor,
effective methods for gathering evidence at the scene of a domestic
violence incident, conducting intensive follow-up investigations that
incorporate lethality assessment methods and developing sensitivity to
the complexity of domestic violence cases; (5) to encourage the use of
lethality assessment tools by police, probation and parole departments
in order to investigate cases of domestic violence and supervise
perpetrators of domestic violence more effectively; (6) to encourage
that specialized training and education programs for all criminal
justice professionals include a component requiring them to work for a
specified number of hours in a shelter for battered women; and (7) to
encourage the development of multi-agency fatality review teams made up
of criminal justice professionals and non-profit, non-governmental
victim service providers.
Section 90.61 has been modified to include the definition of
``unit of local government'' for purposes of clarifying that eligible
grantees for this Program are States, Indian tribal governments,
cities, counties, townships, towns, boroughs, parishes, villages, or
other general purpose political subdivisions of a State.
Section 90.62 has been modified to clarify that all grants
awarded for the purposes of this Program must demonstrate meaningful
attention to victim safety and offender accountability.
Section 90.62 (b) has been modified to clarify that policies
and training programs that improve the tracking of domestic violence
cases may be developed by all criminal justice agencies, including
police departments in eligible jurisdictions.
Section 90.62 (c) has been modified to clarify that probation
and parole departments also play a vital role in centralizing and
coordinating the response to domestic violence cases.
Section 90.63 (b) has been modified to clarify that judicial
education programs should be developed for all professionals
responsible for judicial handling of domestic violence cases, including
tribal judges.
Section 90.63 (a)(4) has been modified to clarify that
grantees must certify that their laws, policies, or practices do not
require that the abused bear the costs associated with the issuance or
service of a warrant, protection order, or witness subpoena (arising
from an incident that is the subject of arrest or criminal
prosecution).
Section 90.63 (c) has been expanded to clarify that, for the
purposes of this Program, a jurisdiction need not have pre-existing
policies encouraging or mandating arrest to be eligible to receive a
grant. However, a State, Indian tribal government, or unit of local
government must identify the type of policy it intends to develop and
specify the process by which the policy will be developed and enacted
by the statutory deadline. In addition, the section clarifies that the
policy development process must involve a coordinated effort by
criminal justice personnel and non-profit, private, domestic violence
or sexual assault programs, including State coalitions.
Section 90.64 (c) has been expanded to include examples of
the types of agencies or offices that may be responsible for carrying
out the project in an applicant jurisdiction (e.g., police departments,
prosecution agencies, courts and probation or parole departments).
Section 90.66 has been expanded to clarify that priority will
be given to applicants that provide evidence of meaningful attention to
victims' safety and demonstrate a strong commitment to provide victims
with information on the status of their cases from the time a complaint
is filed through sentencing.
Two suggested modifications were not incorporated into the final
regulations.
The jurisdictional issues related to enforcement of felony
crimes raised in the comments submitted by an Indian tribal government
are covered by statutes and Supreme Court cases which are beyond the
scope of the Violence Against Women Act and grants programs.
The suggestion that all applicants consult and coordinate
with the highest court of each State was not incorporated into the
regulations. However, all applicants are strongly encouraged to include
State and local courts as part of a coordinated and integrated response
to domestic violence.
Statement of the Problem
In the past, police departments, and the criminal justice system as
a whole, generally treated domestic violence as a private, family
matter unlike any other violent crime. Many police departments
maintained informal non-arrest policies for domestic violence, focusing
instead on alternative responses such as family crisis intervention and
counseling for domestic abusers.1 In recent years, many
departments have implemented new policies and practices that encourage
or mandate arrest of a perpetrator of domestic violence for probable
cause or for violating a protection order.2 To ensure the
effectiveness of these new policies, some police departments have
created special domestic violence units; train personnel on the
phenomenon of domestic violence; developed guidelines and protocols for
enforcing laws related to domestic violence; created sophisticated
tracking and communication systems; investigated both misdemeanor and
felony domestic assaults; developed accountability measures which
ensure enforcement of the law by all officers in the department; and
developed effective strategies to coordinate with other criminal
justice agencies and victim service providers.
---------------------------------------------------------------------------
\1\ Liebman, D.A., and Schwartz, J.A., Police Programs in
Crisis Intervention: A Review, (J.R. Snibbe and H.M. Snibbe eds.
1973). See also Charles C. Thomas, The Urban Policeman in
Transition: A Psychological and Sociological Review (1973).
\2\ Garner, J., Fagan, J., and Maxwell, C., Published Findings
from the Spouse Assault Replication Program: A Critical Review,
Journal of Quantitative Criminology, 11[1], 3-28, 1995.
Fagan, J., The Criminalization of Domestic Violence: Promises
and Limits, Presentation at the 1995 National Institute of Justice
Conference on Criminal Justice Research and Evaluation, January,
1996, available through the National Criminal Justice Reference
Service, 1-800-851-3420.
---------------------------------------------------------------------------
Likewise, other criminal justice agencies have implemented
complementary practices and strategies which prioritize the safety of
victims and hold the perpetrators of domestic violence accountable for
their criminal actions. In particular, several probation and parole
departments have instituted methods of supervision designed to enhance
victim safety by vigorously
[[Page 40729]]
enforcing the terms of protection orders, thereby promoting
coordination with the courts. A number of prosecution agencies have
established domestic violence teams that work closely with legal
advocates and advocates affiliated with non-profit, non-governmental
victim service organizations. Together, prosecutors and advocates alike
keep victims informed about the progress of their cases as well as the
status and known whereabouts of the offenders. They also provide
assistance in preparing long-and short-term safety plans for victims
and their children. Additionally, courts are beginning to recognize the
need for continuing education for judges. They also are implementing
improved case processing procedures with designated dockets to better
manage domestic violence cases and expedite scheduling of trials.
To enhance these very significant accomplishments and encourage the
adoption of similar innovations in additional communities throughout
the country, agencies throughout the criminal justice system require
more tools and resources. Furthermore, for arrest to be an effective
domestic violence intervention, it must be part of a coordinated and
integrated response to the problem on the part of the entire criminal
justice system.\3\ That is, mandatory or pro-arrest policies will be
effective only if police departments implement clear guidelines and
protocols for the arrest of domestic violence perpetrators; if police
and prosecutors alike conduct thorough and careful investigations of
domestic violence cases; if the courts institute improved management
techniques to process domestic violence cases more efficiently; if
judges impose appropriate sentences; if batterers remain in custody
after they are arrested; if probation and parole departments enforce
protection orders and devise improved ways to effectively supervise
batterers; and, most importantly, if victims feel confident that all
professionals in the system are committed to their safety and the
safety of their children.
---------------------------------------------------------------------------
\3\ Hart, B.J., Coordinated Community Approaches to Domestic
Violence, presented at the Strategic Planning Workshop on Violence
Against Women sponsored by the National Institute of Justice in
Washington, D.C., March 31, 1995, available through the National
Criminal Justice Reference Service, 1-800-851-3420.
---------------------------------------------------------------------------
Policies That Mandate or Encourage Arrest
Laws and policies that encourage or mandate the arrest of a
domestic violence perpetrator based on probable cause are not new.
Currently, at least 27 States and the District of Columbia have adopted
laws that mandate or encourage arrest of a person who assaults a family
member, or of a person who violates a domestic violence protection
order.4 Federal law also requires all states to honor certain
protection orders issued by other jurisdictions. Act Sec. 40221(a), 18
U.S.C. 2265(a). Domestic violence incidents are among the most
difficult and most sensitive calls requesting police assistance. For
this reason, many police departments with mandatory or pro-arrest
policies inform their officers that, when responding to a domestic
violence call, they must anticipate the unexpected, be carefully
impartial and be primarily concerned for the needs and safety of the
victim or victims. Some mandatory or pro-arrest policies go a step
further by directing responding officers to arrest only the primary
aggressor in a domestic violence incident. These policies warn that
dual arrests may trivialize the seriousness of domestic violence and
potentially increase danger to its victims. Most importantly, arrest of
the batterer conveys a message to the batterer, the victim, the family
and the community that domestic violence is a serious crime that will
not be tolerated. Mandatory or pro-arrest policies also offer the
potential benefit of deterring future abuse if the offender is
separated from the victim and held publicly accountable for his 5
actions. Arrest, accompanied by a thorough evidentiary investigation
and an intensive follow-up investigation, demonstrates to the offender
that he has committed a serious crime and communicates to the victim
that she does not have to endure the offender's abuse. Moreover, arrest
of the offender sends a broader public message--that violent behavior,
even between intimates, is criminal.
---------------------------------------------------------------------------
\4\ Layden, J., Domestic Violence, Headliners, 1994.
\5\ Men can be the victims of abuse, and women can be
perpetrators. However, the vast majority of victims of domestic
violence are women. In addition, it is much less common for men to
receive injuries as a result of their abuse and less likely for men
to become entrapped in relationships where they cannot leave for
fear of extreme bodily harm to themselves or their children. For
these reasons, victims are referred to as women and perpetrators as
men throughout these proposed regulations. See Stets, J.E. and
Straus, M.A., Gender Differences in Reporting Marital Violence and
its Medical and Psychological Consequences (Physical Violence in
American Families: Risk Factors and Adaptations to Violence in 8,145
Families, Straus, M.A. and Gelles, R.J. eds. 1990).
---------------------------------------------------------------------------
Orders of Protection
An order of protection is the legal instrument many victims of
domestic violence initially seek to protect themselves from further
abuse. For protection orders to be effective, the terms of the order
must be strictly and consistently enforced, and abusers violating the
terms of the order must be punished. To ensure a consistent response,
departmental policies specifying the violations for which an abuser is
subject to arrest must be communicated clearly to police officers who
respond to domestic violence calls. Furthermore, there must be
consistent enforcement between same-State jurisdictions (e.g., county
to county or city to city) or between communities under the
jurisdiction of the same tribal government. In addition to intrastate
enforcement, States and tribal governments must also take steps to
ensure the interstate (i.e., State to State) enforcement of protection
orders as required by Section 40221(a) of the Act.
Prior to the enactment of the Violence Against Women Act, a woman
who obtained a protection order in her home state often could not use
that order as the basis for protection if she worked, traveled, or
moved to most other states. Under the Violence Against Women Act, a
victim does not have to wait for abuse to occur in the new state, nor
does she have to meet the new jurisdictional requirements. A woman may
now seek enforcement of the out-of-state order in the new state.
Although there is no universal approach to effective implementation
of the full faith and credit provisions of the Act, State and tribal
law enforcement agencies, courts, prosecutors, non-profit, non-
governmental victim services agencies and private attorneys are
encouraged to collaborate on efforts and strategies for bolstering and
implementing enforcement of out-of-state protective orders. The state
administrative office of the court and state law enforcement agencies,
in consultation with victim advocates, should devise and publicize
widely a state plan for according full faith and credit to protection
orders.
Centralized Communication, Information and Tracking Systems
Regardless of whether there is a particular jurisdictional domestic
violence arrest policy in place, police must have probable cause to
make an arrest. Police often are dispatched, however, without any
information regarding the domestic violence or criminal history of the
people involved in an altercation. The officers frequently do not know
if there is an outstanding order of protection against the offender,
whether the offender has previously been arrested for assaulting the
victim, or if charges are pending against the perpetrator for prior
alleged domestic violence. Knowledge of this information clearly would
help guide the discretion
[[Page 40730]]
of an officer who is trying to determine whether to make an arrest, and
help him or her ensure the safety of the victim and other family
members.
Beyond providing information about the criminal history of the
perpetrator, responding officers also would benefit greatly from
communication systems that could inform them about the frequency of
past calls to the same location, prior weapons use, the presence of
children at the residence and past need for medical emergency services.
Tracking and other advanced information systems also could provide
responding officers with a description of the alleged perpetrator and
places he historically has frequented if he is not found at the scene.
Just as police officers need more information to respond
effectively, so do prosecutors, judges and other criminal justice
professionals. Access to centralized information on prior incidents or
convictions, prior issuance of protection orders, other matters
involving the same family pending before the court, and the
availability of community resources and services for the victim would
be extremely beneficial to prosecutors seeking convictions, to judges
who must impose a sentence and to probation and parole officials
responsible for providing community supervision. Interstate and
intrastate communication and tracking systems for use by police
officers and criminal justice professionals throughout a state or
region of the country also would contribute to enhancing the safety of
victims.
The Need for a Coordinated, Integrated Approach Involving All Criminal
Justice Professionals
If arrest policies are to be effective, police, pre-trial service
professionals, prosecutors, judges, probation officers, parole officers
and victim advocates need to respond with effective collaborative
strategies that will enhance the safety of victims and result in
appropriate sanctions for offenders. Specifically, prosecutors, judges
and other criminal justice professionals need the training, tools and
resources that will enable them to respond to domestic violence as a
serious crime. For example, in those jurisdictions where mandatory or
pro-arrest policies have been instituted, individual prosecutors may be
overwhelmed with domestic violence cases, resulting in a severe lack of
resources and time needed to prosecute each case effectively. To help
alleviate the backlog of domestic violence cases, many prosecutors work
with victim advocates during both the pending prosecution and the
sentencing phase of a case. These advocates are critical to the
effective prosecution of domestic violence cases. In addition to being
effective legal advocates, they assist in safety planning with the
victim, providing the court with information needed to determine risk
and lethality assessment as well as proposed conditions of probation or
parole for the offender.
Training for all criminal justice professionals should include
informative and experiential continuing education sessions designed to
provide insight into the phenomenon of domestic violence and
information on community resources available to assist the victim and
respond appropriately to the batterer. Prosecutors need to understand
the psychology of domestic violence victims (e.g., why they may be
reluctant to prosecute and the risks to their safety if they decide to
prosecute). Judges need to craft effective protection orders and they
need the information and skills necessary to tailor sentences to
individual perpetrators (e.g., ordering protective conditions for
victim safety, incarceration, community service, restitution, intensive
probation or parole, mandatory participation in batterer intervention
programs and/or drug and alcohol treatment, or all of the above, as
appropriate). Victim advocates need to acquire an enhanced
understanding of how the criminal justice system works. They also need
to learn how they can be more effective in working directly with all
criminal justice professionals, exploring new partnerships with
community policing units that apply the ``problem-solving'' approach to
ending violence; increasing their availability to victims by
establishing a presence (as independent and/or agency-sponsored
advocates) in prosecution agencies, the courts and probation and parole
departments. All professionals in the system need to work together to
explore and develop new, innovative and coordinated approaches to
reduce and prevent domestic violence.
Conclusion
While strong, clear arrest policies are needed to guide the actions
of police officers, the rest of the criminal justice system also must
be directed to respond similarly in ways that will break the cycle of
violence. Without aggressive, system-wide coordination, arrest alone
will not stop domestic violence. Most importantly, as a jurisdiction
assesses its response to domestic violence, prioritizing victim safety
within the policies and practices of the entire criminal justice system
is essential. In conclusion:
Police departments need to develop clear policies and
procedures mandating or encouraging arrest for perpetrators of domestic
violence and for the violation of protection orders, including
protocols, procedures, and firearms policies that respond to the
complex problems with respect to police officers against whom
protection orders have been issued or who have been arrested for
probable cause of domestic violence.
Specialized education and training programs for police,
prosecutors, judges, probation and parole officers, victim advocates
and other criminal justice professionals need to be developed and
implemented or replicated from existing curricula. Components of these
programs might encourage criminal justice professionals to obtain
direct experience with victims by providing opportunities for them to
work in shelters for battered women or in a comparable setting.
Police departments should be encouraged to develop
specialized training on domestic violence which: provides guidance on
the implementation of departmental arrest policies and related federal,
state and local law; instructs officers on how to identify the primary
aggressor in a domestic violence incident; provides information on
improved techniques for gathering evidence at the scene of a domestic
violence incident; explains how to conduct more thorough follow-up
investigations that incorporate lethality assessment methods; and
develops sensitivity to the complexity of domestic violence cases and
the diverse cultural values, language barriers, and experience that
influence the response of the victim.
Police departments need resources to develop guidelines for
the arrest of perpetrators and investigation of domestic violence. They
also need to establish sanctions for officers and officials who do not
follow or enforce official protocols. In addition, they need to
establish special investigation or detective units, and procedures to
ensure coordination with other parts of the criminal justice system.
Police, probation and parole departments need access to
lethality assessment tools (developed collaboratively by victim service
and law enforcement agencies) in order to investigate cases and
supervise perpetrators of domestic violence more effectively.
Prosecutors need to develop effective strategies for working
with the police. They also need the tools and resources to investigate
domestic violence cases aggressively and
[[Page 40731]]
thoroughly in collaboration with the police.
Police departments need the resources to develop advanced
communication, information and tracking systems to enable them to
respond more effectively to domestic violence incidents, to track the
history of perpetrators (including outstanding orders of protection,
previous arrests and pending charges) and to prevent future violence
that could result in aggravated assault and homicide.
Jurisdictions need to develop methods and technologies that
will promote improved communication and coordination among law
enforcement, prosecution, the judiciary and other parts of the criminal
justice and social service systems to improve the entire system's
response to domestic violence. In addition, jurisdictions need to
develop centralized, automated information systems that will track the
domestic violence history of involved parties, including outstanding
orders of protection, previous arrests and pending charges against
perpetrators.
Procedures to expedite requests for protection orders need to
be developed by police departments, prosecution units, and the courts.
Judges need to convey clearly to batterers the gravity of
their offenses by imposing appropriate sentences.
Probation and parole departments need to establish protocols
and procedures for the intensive supervision of batterers.
Victims and their children need access to a full range of
services, including legal advocacy and assistance in planning for their
long- and short-term safety, that ensures they will be kept informed
about the progress of their case.
Multi-agency fatality review teams made up of criminal
justice professionals and non-profit, non-governmental victim service
providers need to be established to determine where and how death may
have occurred in a domestic violence case and to examine what
constructive steps can be taken to prevent future fatal incidents.
Research needs to be conducted to assess the effectiveness of
arrest and other legal sanctions for domestic violence in communities
that have adopted a system-wide, coordinated response to domestic
violence.
The Violence Against Women Act of 1994
The Violence Against Women Act reflects a firm commitment towards
working to change the criminal justice system's response to violence
that occurs when any woman is threatened or assaulted by someone with
whom she has or has had an intimate relationship, with whom she was
previously acquainted, or who is a stranger. By committing significant
Federal resources and attention to restructuring and strengthening the
criminal justice response to women who have been, or potentially could
be, victimized by violence, the safety of all women can be more
effectively ensured.
Fiscal Year 1996 Grants To Encourage Arrest Policies
For FY 1996, Congress has appropriated $28 million to the United
States Department of Justice Office of Justice Programs for Grants to
Encourage Arrest Policies. Additionally, Part U of the Violence Against
Women Act of 1994 authorizes $33 million for FY 1997 and $59 million
for FY 1998. States, Indian tribal governments, and units of local
government are eligible to receive grants subject to the requirements
of the statute and these regulations, as well as assurances and
certifications specified in the application kit.
Section 2101 of the Violence Against Women Act, 42 U.S.C. 3796hh
(1994), enumerates the following six purposes for which Grants to
Encourage Arrest Policies may be used:
(1) To implement mandatory arrest or pro-arrest programs and
policies in police departments, including mandatory arrest programs and
policies for protection order violations;
(2) To develop policies and training programs in police departments
to improve tracking of cases involving domestic violence;
(3) To centralize and coordinate police enforcement, prosecution,
or judicial responsibility for domestic violence cases in groups or
units of police officers, prosecutors, or judges;
(4) To coordinate computer tracking systems to ensure communication
between police, prosecutors, and both criminal and family courts;
(5) To strengthen legal advocacy service programs for victims of
domestic violence; and
(6) To educate judges in criminal and other courts about domestic
violence and improve judicial handling of such cases.
A Coordinated and Integrated Approach to the Problem
By definition, a coordinated and integrated approach suggests a
partnership among law enforcement, prosecution, the courts, victim
advocates and service providers. The goal of this Program is to treat
domestic violence as a serious violation of the criminal law. A
consistent criminal justice system response to domestic violence
requires that professionals in the various components of the system
have a shared vision that prioritizes the safety and well-being of the
victim. The creation and implementation of that vision necessitates
collaboration among police, prosecutors, the courts, and victim service
providers. Thus, the Program requires that jurisdictions incorporate
the experience of nonprofit, nongovernmental domestic violence service
providers into the project planning and implementation process as well
as police, prosecutors, and the courts. Examples of innovative
approaches include:
Creating centralized units of police officers, prosecutors,
judges and probation and parole officers to investigate and handle
domestic violence cases, based on a comprehensive plan developed by
representatives from the criminal justice system and the advocacy
community.
Implementing and testing the effectiveness of domestic
violence arrest policies for violations of protection orders in the
context of a coordinated criminal justice and community response to
domestic violence by forming a multi-disciplinary coordinating council
that assigns priority to the safety of the victim and by holding the
offender accountable for his violent actions.
Delivering comprehensive, experiential training programs for
police officers, prosecutors, probation and parole officers and the
judiciary that address the technical issues associated with policies
that encourage or mandate arrest for domestic violence; address the
phenomenon of domestic violence; stress collaboration and shared
responsibility for ensuring the safety of the victim; seek to change
attitudes that have traditionally prevented professionals in the
criminal justice system from responding to domestic violence as a
serious violation of criminal law; and provide information on improved
methods for tracking domestic violence cases.
Developing information systems, automated registries,
education and training programs and technical assistance efforts that
facilitate enforcement of protection orders within a single
jurisdiction; within a single State; and from State to State.
Linking automated information and tracking systems to enhance
communication among police departments, prosecution agencies, and
criminal and family courts to ensure that all of the system components
have access to consistent and complete
[[Page 40732]]
information about an individual's domestic violence history.
Establishing and expanding advocacy services for domestic
violence victims from the time an abuse report is filed through the
post-sentencing of the offender, including any time during which the
offender is subject to probation or parole supervision.
Eligibility Requirements
To be eligible to receive grants under this Program, States, Indian
tribal governments, and units of local government must certify that
their laws or official policies (1) encourage or mandate arrest of
domestic violence offenders based on probable cause that an offense has
been committed and (2) encourage or mandate arrest of domestic violence
offenders who violate the terms of a valid outstanding protection
order. Omnibus Act Sec. 2101(c), 42 U.S.C. 3796hh(c) (1994). A
jurisdiction need not have pre-existing policies encouraging or
mandating arrest to meet this eligibility requirement. However, in its
application for funding through this Program, a State, Indian tribal
government, or unit of local government must identify the type of
policy that it intends to develop, and specify the process by which the
policy will be developed and enacted by the statutory deadline. The
policy development process must involve a coordinated effort by
criminal justice personnel and non-profit, private, domestic violence
or sexual assault programs, including State coalitions.
Eligible applicants also must demonstrate that their laws,
policies, or practices and their training programs discourage dual
arrests of an offender and victim. Omnibus Act Sec. 2101(c)(2), 42
U.S.C. 3796hh(c)(2) (1994).
In addition, States, Indian tribal governments, and units of local
governments seeking grant funds through this Program must certify that
their laws, policies, or practices prohibit the issuance of mutual
restraining orders of protection, except in cases in which both spouses
file a claim and the court makes detailed findings of fact indicating
that both spouses acted primarily as aggressors and that neither spouse
acted primarily in self-defense. Omnibus Act Sec. 2101(c)(3), 42 U.S.C.
3796hh(c)(3) (1994).
Eligible applicants also must certify that their laws, policies, or
practices do not require, in connection with the prosecution of any
misdemeanor or felony domestic violence offense, that the victim bear
the costs associated with the filing of criminal charges or the service
of such charges on an abuser, or costs associated with the issuance or
service of a warrant, protection order, or witness subpoena (arising
from the incident that is the subject of arrest or criminal
prosecution). Omnibus Act Sec. 2101(c)(4), 42 U.S.C. 3796hh(c)(4)
(1994).
If the laws, policies, or practices required by Section 2101(c) of
the Violence Against Women Act are not currently in place, States,
Indian tribal governments, and local units of government must provide
assurances that they will be in compliance with these requirements by
the date on which the next session of the State or Indian Tribal
legislature ends, or September 13, 1996, whichever is later. Omnibus
Act Sec. 2102(a)(1) (A)-(B), 42 U.S.C. 3796hh-1(a)(1) (A)-(B) (1994).
Award Priority
The Office of Justice Programs is required by the Violence Against
Women Act to give priority to applicants that (1) do not currently
provide for centralized handling of cases involving domestic violence
by police, prosecutors, and courts; and (2) demonstrate a commitment to
strong enforcement of laws, and prosecution of cases, involving
domestic violence. Omnibus Act Sec. 2102(b) (1)-(2), 42 U.S.C. 3796hh-
1(b) (1)-(2) (1994). Commitment may be demonstrated in a number of ways
including: strict enforcement of arrest policies; clear communication
from top officials and managers throughout the criminal justice system
that domestic violence prevention is a priority; innovative approaches
to supervision of police officers, prosecutors, probation officers and
other criminal justice professionals who handle domestic violence
matters; acknowledgment of police officers who consistently enforce
domestic violence arrest policies and sanctions for those who do not;
implementation of procedures that respond to the complex problem of
police officers who batter; education and training for all criminal
justice professionals on enforcement of domestic violence arrest
policies and the phenomenon of domestic violence; and creation of
special units within criminal justice agencies which collaborate to
investigate and monitor spousal and partner abuse cases.
Technical Assistance and Training/Evaluation
The Office of Justice Programs will set aside a small portion of
the funds provided through this Program to provide specialized training
and technical assistance to help grant recipients develop and implement
effective arrest policies in the context of an integrated and
coordinated criminal justice and community response to domestic
violence.
In addition, the Office of Justice Programs will set aside a small
portion of the overall funds authorized for this Program to enable the
National Institute of Justice (NIJ) to conduct evaluations and studies
of projects funded through this Program. Past research on the
effectiveness of arrest policies for domestic violence has focused
primarily on the police response and has not measured the response of
victim service agencies and other parts of the criminal justice system,
such as pretrial services agencies, prosecution units, the courts, and
probation and parole departments. Additional research is needed to
assess the effectiveness of arrest and other legal sanctions for
domestic violence in communities that have adopted a system-wide,
coordinated response to domestic violence. Recipients of funds for this
Program must agree to cooperate with NIJ-sponsored research and
evaluation studies of their projects. Grant recipients also are
required to report to the Attorney General on the effectiveness of
their project(s). Omnibus Act Sec. 2103, 42 U.S.C. 3796hh-2 (1994).
Recipients therefore are strongly encouraged to develop a local
evaluation strategy to assess the impact and effectiveness of their
programs. Applicants therefore should consider entering into
partnerships with research organizations that are submitting
simultaneous grant applications to the National Institute of Justice
for this purpose.
Regulatory Flexibility Act
The Assistant Attorney General, Office of Justice Programs, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this Final Rule and, by approving it, certifies that the Final
Rule will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12866
This Final Rule has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), Principles of Regulation. The Office
of Justice Programs has determined that this Final Rule is not a
``significant regulatory action'' under Executive Order 12866,
Sec. 3(f), Regulatory Planning and Review, and accordingly this Interim
Rule has not been reviewed by the Office of Management and Budget.
List of Subjects in 28 CFR Part 90
Crime, Grant programs, Reporting and recordkeeping requirements.
[[Page 40733]]
For the reasons set out in the preamble, Title 28, Chapter 1, Part
90 of the Code of Federal Regulations is amended as follows:
PART 90--VIOLENCE AGAINST WOMEN
1. The authority continues to read as follows:
Authority: 42 U.S.C. 3711 et. seq.
2. A new Subpart D, consisting of Secs. 90.60--90.67 is added to
read as follows:
Subpart D--Arrest Policies in Domestic Violence Cases
Sec.
90.60 Scope.
90.61 Definitions.
90.62 Purposes.
90.63 Eligibility.
90.64 Application content.
90.65 Evaluation.
90.66 Review of applications.
90.67 Grantee reporting.
Sec. 90.60 Scope.
This subpart sets forth the statutory framework of the Violence
Against Women Act's sections seeking to encourage States, Indian tribal
governments, and units of local government to treat domestic violence
as a serious violation of criminal law.
Sec. 90.61 Definitions.
For purposes of this subpart, the following definitions apply.
(a) Domestic violence includes felony or misdemeanor crimes of
violence committed by a current or former spouse of the victim, a
person with whom the victim shares a child in common, a person who is
cohabiting with or has cohabited with the victim as a spouse, a person
similarly situated to a spouse of the victim under the domestic or
family violence laws of the jurisdiction receiving grant monies, or by
any other adult person against a victim who is protected from that
person's acts under the domestic or family violence laws of the
eligible State, Indian tribal government, or unit of local government
that receives a grant under this subchapter.
(b) Protection order includes any injunction issued for the purpose
of preventing violent or threatening acts of domestic violence,
including temporary and final orders issued by civil or criminal courts
(other than support or child custody orders or provisions) whether
obtained by filing an independent action or as a pendente lite order in
another proceeding.
(c) Unit of local government means any city, county, township,
town, borough, parish, village, or other general-purpose political
subdivision of a State; an Indian tribe which performs law enforcement
functions as determined by the Secretary of the Interior; or, for the
purpose of assistance eligibility, any agency of the District of
Columbia government or the United States Government performing law
enforcement functions in and for the District of Columbia, and the
Trust Territory of the Pacific Islands.
Sec. 90.62 Purposes.
(a) The purposes of this program are:
(1) To implement mandatory arrest or pro-arrest programs and
policies in police departments, including mandatory arrest programs or
pro-arrest programs and policies for protection order violations;
(2) To develop policies and training programs in police departments
and other criminal justice agencies to improve tracking of cases
involving domestic violence;
(3) To centralize and coordinate police enforcement, prosecution,
probation, parole or judicial responsibility for domestic violence
cases in groups or units of police officers, prosecutors, probation and
parole officers or judges;
(4) To coordinate computer tracking systems to ensure communication
between police, prosecutors, and both criminal and family courts;
(5) To strengthen legal advocacy service programs for victims of
domestic violence; and
(6) To educate judges, and others responsible for judicial handling
of domestic violence cases, in criminal, tribal, and other courts about
domestic violence and improve judicial handling of such cases.
(b) Grants awarded for these purposes must demonstrate meaningful
attention to victim safety and offender accountability.
Sec. 90.63 Eligibility.
(a) Eligible grantees are States, Indian tribal governments, or
units of local government that:
(1) Certify that their laws or official policies--
(i) Encourage or mandate the arrest of domestic violence offenders
based on probable cause that an offense has been committed; and
(ii) Encourage or mandate the arrest of domestic violence offenders
who violate the terms of a valid and outstanding protection order;
(2) Demonstrate that their laws, policies, or practices and their
training programs discourage dual arrests of offender and victim;
(3) Certify that their laws, policies, or practices prohibit
issuance of mutual restraining orders of protection except in cases
where both spouses file a claim and the court makes detailed findings
of fact indicating that both spouses acted primarily as aggressors and
that neither spouse acted primarily in self-defense; and
(4) Certify that their laws, policies, or practices do not require,
in connection with the prosecution of any misdemeanor or felony
domestic violence offense, that the abused bear the costs associated
with filing criminal charges or the service of such charges on an
abuser, or that the abused bear the costs associated with the issuance
or service of a warrant, protection order, or witness subpoena (arising
from the incident that is the subject of arrest or criminal
prosecution).
(b) If these laws, policies, or practices are not currently in
place, States, Indian tribal governments, and units of local government
must provide assurances that they will be in compliance with the
requirements of this section by the date on which the next session of
the State or Indian Tribal legislature ends, or September 13, 1996,
whichever is later. Omnibus Act 2102(a)(1) 42 U.S.C. 3796hh-1(a)(1).
(c) For the purposes of this Program, a jurisdiction need not have
pre-existing policies encouraging or mandating arrest to meet the
eligibility requirements listed in this section. However, in its
application for funding through this Program, a State, Indian tribal
government, or unit of local government must identify the type of
policy that it intends to develop, and specify the process by which the
policy will be developed and enacted. The policy development process
must involve a coordinated effort by criminal justice personnel and
non-profit, private, domestic violence or sexual assault programs,
including State coalitions.
Sec. 90.64 Application content.
(a) Format. Applications from States, Indian tribal governments and
units of local government must be submitted on Standard Form 424,
Application for Federal Assistance, at a time designated by the Office
of Justice Programs. The Violence Against Women Grants Office of the
Office of Justice Programs will develop and disseminate to States,
Indian tribal governments, local governments and other interested
parties a complete Application Kit which will include a Standard Form
424, a list of assurances to which applicants must agree, and
additional guidance on how to prepare and submit an application for
grants under this subpart. To receive a complete
[[Page 40734]]
Application Kit, please contact: The Violence Against Women Grants
Office, Office of Justice Programs, Room 442, 633 Indiana Avenue, N.W.,
Washington, D.C. 20531. Telephone: (202) 307-6026.
(b) Programs. Applications must set forth programs and projects
that meet the purposes and criteria of the Grants to Encourage Arrest
program set out in Secs. 90.62 and 90.63 of this part.
(c) Requirements. Applicants in their applications shall, at a
minimum:
(1) Describe plans to further the purposes stated in Sec. 90.62 of
this part;
(2) Identify the agency or office or groups of agencies or offices
responsible for carrying out the program. Examples of these agencies or
offices include police departments, prosecution agencies, courts and
probation or parole departments; and
(3) Include documentation from nonprofit, private sexual assault
and domestic violence programs demonstrating their participation in
developing the application, and explain how these groups will be
involved in the development and implementation of the project.
(d) Certifications. (1) As required by Section 2102(a) of the
Omnibus Act, 42 U.S.C. 3796hh-1(a), each State, Indian tribal
government or unit of local government must certify in its application
that it has met the eligibility requirements set out in Sec. 90.63 of
this part.
(2) Each State, Indian tribal government or unit of local
government must certify that all the information contained in the
application is correct. All submissions will be treated as a material
representation of fact upon which reliance will be placed, and any
false or incomplete representation may result in suspension or
termination of funding, recovery of funds provided, and civil and/or
criminal sanctions.
Sec. 90.65 Evaluation.
(a) The National Institute of Justice will conduct evaluations and
studies of programs funded through this Program. The Office of Justice
Programs will set aside a small portion of the overall funds authorized
for the Program for this purpose. Recipients of funds must agree to
cooperate with such federally-sponsored research and evaluation studies
of their projects. In addition, grant recipients are required to report
to the Attorney General on the effectiveness of their project(s).
Section 2103, codified at 42 U.S.C. 3796hh-2.
(b) Recipients of program funds are strongly encouraged to develop
a local evaluation strategy to assess the impact and effectiveness of
their programs. Applicants should consider entering into partnerships
with research organizations that are submitting simultaneous grant
applications to the National Institute of Justice for this purpose.
Sec. 90.66 Review of applications.
(a) Review criteria. (1) The provisions of Part U of the Omnibus
Act and of the regulations is this subpart provide the basis for review
and approval or disapproval of applications and amendments in whole or
in part. Priority will be given to applicants that
(i) Do not currently provide for centralized handling of cases
involving domestic violence by police, probation and parole officers,
prosecutors, and courts; and
(ii) Demonstrate a commitment to strong enforcement of laws, and
prosecution of cases, involving domestic violence. Omnibus Act
Sec. 2102(b)(1)-(2), 42 U.S.C. 3796hh-1(b)(1)-(2) (1994).
(2) Commitment may be demonstrated in a number of ways including:
Clear communication from top departmental management that domestic
violence prevention is a priority; strict enforcement of arrest
policies; innovative approaches to officer supervision in domestic
violence matters; acknowledgment of officers who consistently enforce
domestic violence arrest policies and sanctions for those who do not;
education and training for all officers and supervisors on enforcement
of domestic violence arrest policies and the phenomenon of domestic
violence; and the creation of special units to investigate and monitor
spousal and partner abuse cases.
(3) Priority also will be given to applicants who provide evidence
of meaningful attention to victims' safety and those who demonstrate a
strong commitment to provide victims with information on the status of
their cases from the time the complaint is filed through sentencing.
(b) Intergovernmental review. This program is covered by Executive
Order 12372 (Intergovernmental Review of Federal Programs) and
implementing regulations at 28 CFR part 30. A copy of the application
submitted to the Office of Justice Programs should also be submitted at
the same time to the State's Single Point of Contact, if there is a
Single Point of Contact.
Sec. 90.67 Grantee reporting.
Each grantee receiving funds under this subpart shall submit a
report to the Attorney General evaluating the effectiveness of projects
developed with funds provided under this subpart and containing such
additional material as the Assistant Attorney General of the Office of
Justice Programs may prescribe.
Dated: July 30, 1996.
Laurie Robinson,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 96-19758 Filed 8-5-96; 8:45 am]
BILLING CODE 4410-18-P
Complete official Federal Register PDF
FR Doc. 96-19735 Wyoming Regulatory Program
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40735-40746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19735]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SPATS No. WY-022]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving, with additional requirements, a proposed
amendment to the Wyoming regulatory program (hereinafter, the ``Wyoming
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The proposed amendment consists of addition and revision of
statutes and rules pertaining to shrub density stocking requirements
and wildlife habitat. The amendment was intended to revise the Wyoming
program to be consistent with SMCRA and the corresponding Federal
regulations.
EFFECTIVE DATE: August 6, 1996.
FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, Director, Casper Field Office, Telephone: (307) 261-
5824, Internet address: [email protected]
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program amendments
can be found at 30 CFR 950.12, 950.15, 950.16, and 950.20.
II. Proposed Amendment
By letter dated November 29, 1995, Wyoming submitted a proposed
amendment to its program (administrative record No. WY-031-1) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment in response to the required program amendments at 30 CFR
950.16(q) and (bb) through (hh). The provisions of the Wyoming
Environmental Quality Act that Wyoming proposed to revise were: Wyoming
Statute (W.S.) 35-11-103, definitions, and W.S. 35-11-402,
establishment of reclamation standards. The provisions of the coal
rules and regulations of the Department of Environmental Quality, Land
Quality Division, that Wyoming proposed to revise were: chapter I,
section 2, definitions; chapter II, section 2, permit application
requirements for surface coal mining operations; chapter IV, section 2,
general environmental protection performance standards for surface coal
mining operations; chapter X, section 4, coal exploration and
reclamation performance standards; chapter XI, section 5, self-bonding;
chapter XIII, section 3, notice and opportunity for public hearing on
surface coal mining permit revisions; chapter XVII, section 1,
definitions for designation of areas unsuitable for surface coal
mining; and appendix A, vegetation sampling methods and reclamation
success standards for surface coal mining operations.
OSM announced receipt of the proposed amendment in the December 18,
1995, Federal Register (60 FR 65048), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-31-02).
Because no one requested a public hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to the proposed provisions of the rule at chapter I, section
2(v), critical habitat for threatened and endangered species; the rules
at chapter I, sections 2(ac) and (bc)(xi), and chapter IV, section
2(d)(x)(E)(I), definitions for ``eligible land'' and ``treated
grazingland'' and reclamation success standard for shrub density: the
rule at chapter II, section 2(a)(vi)(G)(II), consultation by the
Wyoming Land Quality Division on critical habitat; W.S. 35-11-402(b)
and the rules at chapter II, section 2(b)(iv)(C), and chapter IV,
section 2(d)(x)(E)(III), approval of reclamation standards by the
Wyoming Game and Fish Department; the rules at chapter II, section
2(b)(vi)(B)(III) and chapter IV, sections 2(c)(xi)(F)(II) and 2(r),
permit application requirements and performance standards for
protection of important and crucial habitats for fish and wildlife; the
rule at chapter X, section 4(e), disturbance of important habitat by
exploration operations; the rule at chapter XIII, section 2(b), notice
and opportunity for public hearing on permit revision; appendix A,
section VIII.E. and the rule at chapter IV, section 2(d)(x)(E)(I),
programwide or permit-specific consultation and approval by the Wyoming
Game and Fish Department; and appendix A, appendix IV, plant species of
special concern. OSM notified Wyoming of the concerns by letter dated
March 8, 1996 (administrative record No. WY-31-17).
Wyoming responded by letter on April 9, 1996, to each of the issues
(administrative record No. WY-31-18). For some of the issues, Wyoming
submitted specific revisions that it intends to pursue in the State
rulemaking process. This process is expected to produce a formal
amendment that would be submitted to OSM by mid-1997. OSM acknowledges
these revisions but, because they have not yet been promulgated, does
not in the following findings make determinations on their
effectiveness.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with additional requirements, that the
proposed program amendment submitted by Wyoming on November 29, 1995,
is no less stringent than SMCRA and no less effective than the
corresponding Federal regulations. Accordingly, the Director approves,
with additional requirements, the proposed amendment.
1. Substantive Revisions to Wyoming's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Wyoming proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulation
provisions (listed in parentheses).
Chapter I, section 2(bc)(viii) (30 CFR 701.5), land use
definition for ``fish and wildlife habitat,'' and
Chapter XI, section 5(a) (30 CFR 800.23(g)), substitution of a
surety bond for a self-bond.
Because these proposed Wyoming rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.
[[Page 40736]]
2. W.S. 35-11-103(e)(xxviii), Definition for ``Agricultural Lands''
On January 24, 1994, OSM at 30 CFR 950.16(bb) required Wyoming to
delete its definition for ``agricultural lands'' at W.S. 35-11-
103(e)(xxviii) or provide an interpretation of the definition that
would make it no less stringent than SMCRA and no less effective than
the Federal regulations (finding No. 1, 59 FR 3521). Wyoming proposed
to delete the definition.
This deletion satisfies the required amendment and does not make
Wyoming's regulatory program less stringent than SMCRA and less
effective than the Federal regulations. Therefore, the Director
approves the proposed deletion of the definition for ``agricultural
lands'' at W.S. 35-11-103(e)(xxviii) and removes the required amendment
at 30 CFR 950.16(bb).
3. W.S. 35-11-103(e)(xxix) and Rule at Chapter I, Section 2(v),
Definition for ``Critical Habitat''
On January 24, 1994, OSM at 30 CFR 950.16(cc) (finding No. 2, 59 FR
3521, 3521-2) required Wyoming to delete its definition for ``critical
habitat'' at W.S. 35-11-103(e)(xxix) or revise it to make the term
applicable to animal and plant species habitats that have been
designated by the Secretary of the Interior as critical habitats under
section 3 of the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.).
In response to the required amendment, Wyoming proposed to delete
the definition for `'critical habitat'' at W.S. 35-11-103(e)(xxix) but
to add a similar definition for this term in its rules at chapter I,
section 2(v). In this rule, Wyoming proposed that ``critical habitat''
means ``those areas essential to the survival and recovery of species
listed by the Secretary of the Interior or Commerce as threatened or
endangered (50 CFR, parts 17 AND 226).''
50 CFR part 226 pertains to habitat for marine mammals, fish, and
reptiles designated as critical by the National Oceanic and Atmospheric
Administration under the jurisdiction of the Secretary of Commerce. 50
CFR Part 17 pertains to critical habitats listed by the Secretary of
the Interior under the Endangered Species Act of 1973, as amended (16
U.S.C. 1531-1543), but it is also in 30 CFR 17.2(b), through its
reference of subpart B, lists threatened and endangered wildlife and
plant species completely under the jurisdiction of the Department of
Commerce and other such species jointly under the jurisdiction of the
Departments of the Interior and Commerce.
There is no counterpart definition for ``critical habitat'' in
SMCRA or the Federal regulations. However, the surface and underground
mining permit application regulations at 30 CFR 780.16(a) and (b) and
784.21(a) and (b) require resource information and protection and
enhancement plans for listed or proposed endangered or threatened
species of plants or animals or their ``critical habitats'' listed by
the Secretary of the Interior under the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.). Also, the performance standards at
30 CFR 816.97(b) and 817.97(b) require that no surface or underground
mining activity shall be conducted that is likely to jeopardize the
continued existence of endangered or threatened species listed by the
Secretary of the Interior or that is likely to result in the
destruction or adverse modification of designated ``critical habitats''
of such species in violation of the Endangered Species Act of 1973, as
amended.
Wyoming's referencing of the Secretary of Commerce's regulations at
50 CFR Part 226 has no relevance to the Wyoming regulatory program,
because the State has no mammals, fish, and reptiles that spend at
least part of their lives in a marine environment. Wyoming's
referencing of these regulations does not itself make its rule less
effective than the Federal regulations, but OSM indicated in the
January 24, 1994, Federal Register notice that Wyoming's protection of
critical habitat designated by the Secretary of the Interior or
Commerce could be interpreted to allow Wyoming to choose to protect the
critical habitat designated by one of the departments, but not both.
OSM reasoned that Wyoming could choose to protect critical habitat
designated by the Department of Commerce (for which there is none in
Wyoming) and not protect critical habitat designated by the Secretary
of the Interior.
In its April 9, 1996, response to OSM's issue letter, Wyoming
stated that the Secretary of Commerce's regulations at 50 CFR part 226
have no relevance in the State.
On the basis of this clarification, OSM finds that Wyoming's
proposed deletion of the definition for ``critical habitat'' at W.S.
35-11-103(e)(xxix) and the proposed addition of a definition for this
term in its rule at chapter I, section 2(v) are no less effective than
the Federal regulations at 30 CFR 780.16(a) and (b), 784.21(a) and (b),
816.97(b), and 817.97(b). Therefore, the Director approves the proposed
deletion and addition, and removes the required amendment at 30 CFR
950.16(cc). However, to avoid confusion by someone who reads Wyoming's
rules but has not read this finding, OSM recommends that Wyoming in a
future amendment delete in the rule at chapter I, section 2(v) the
references to the Secretary of Commerce and the regulations at 50 CFR
part 226.
4. W.S. 35-11-103(e)(xxx) and Rules at Chapter I, Sections 2(ax) and
(w), Definitions for ``Important Habitat'' and ``Crucial Habitat''
On January 24, 1994, OSM at 30 CFR 950.16(dd) (finding No. 3, 59 FR
3521, 3522) required Wyoming to delete its definition for ``important
habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) or revise it so
that it did not exclude ``agricultural lands,'' which were defined at
W.S. 35-11-103(e)(xxviii) as `'cropland, pastureland, hayland, or
grazingland,'' from lands that could also have to be protected as
``important habitats or crucial habitats.''
In response to the required amendment, Wyoming proposed to delete
the definition for `'important habitat or crucial habitat'' at W.S. 35-
11-103(e)(xxx) but to add separate definitions for ``important
habitat'' and ``crucial habitat'' in the rules at chapter I, sections
2(ax) and (W).
Wyoming proposed that ``important habitat'' means
that habitat which, in limited availability, supports or encourages
a maximum diversity of wildlife species or fulfills one or more
living requirements of a wildlife species. Examples of important
habitat include, but are not limited to, wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.
It also proposed that ``crucial habitat''means ``those areas,
designated as such by the Wyoming Game and Fish Department, which
determine a population's ability to maintain and reproduce itself at a
certain level over the long term.''
There is no counterpart definition for ``important habitat'' or
``crucial habitat'' in SMCRA or the Federal regulations. However, the
surface mining permit application regulations at 30 CFR 780.16 (a) and
(b) require resource information and protection and enhancement plans
for ``habitats of unusually high value for fish and wildlife'' such as
important streams, wetlands, riparian areas, cliffs supporting raptors,
areas offering special shelter or protection, migration routes, or
reproduction and wintering areas. Also, the performance standards at 30
CFR 816.97(f) require that surface mining activities shall avoid
[[Page 40737]]
disturbances to, enhance where practicable, or restore ``habitats of
unusually high value for fish and wildlife.''
As described in 30 CFR 780.16(a)(2)(ii), ``habitats of unusually
high value for fish and wildlife'' include ``important streams,
wetlands, riparian areas, cliffs supporting raptors, areas offering
special shelter or protection, migration routes, or reproduction and
wintering areas.'' This description coincides with Wyoming's proposed
definition for ``important habitat'' at chapter I, proposed section
2(ax), which states that ``important habitat'' includes ``wetlands,
riparian areas, rimrocks, areas offering special shelter or protection,
reproduction and nursery areas, and wintering areas.''
Wyoming's proposed rule definitions for ``important habitat'' and
``crucial habitat'' at chapter I, sections 2(ax) and (w) are not
inconsistent with (1) the surface mining permit application regulations
at 30 CFR 780.16 (a) and (b), which require resource information and
protection and enhancement plans for ``habitats of unusually high value
for fish and wildlife'' and (2) the performance standards at 30 CFR
816.97(f), which require that operators of surface coal mining
activities shall avoid disturbances to, enhance where practicable, or
restore ``habitats of unusually high value for fish and wildlife.''
Therefore, the Director approves Wyoming's proposed rule definitions
for ``important habitat'' and ``crucial habitat'' at chapter I,
sections 2 (ax) and (w).
Also, because Wyoming deleted its statutory definition for
``important habitat or crucial habitat'' at W.S. 35-11-103(e)(xxx) and
because its proposed rule definitions for ``important habitat'' and
``crucial habitat'' at chapter I, sections 2 (ax) and (w) do not
exclude ``agriculture lands,'' which was defined at W.S. 35-11-
103(e)(xxviii) but which has now been deleted (see finding No. 2), the
Director removes the required amendment at 30 CFR 950.16(dd).
5. W.S. 35-11-402(b) and Rules at Chapter II, Section 2(b)(iv)(C), and
Chapter IV, Sections 2(d)(x)(E) and (E)(III), Establishment of
Reclamation Standards for Fish and Wildlife Habitat and Grazingland
On January 24, 1994, OSM at 30 CFR 950.16(ee) (finding No. 4, 59 FR
3521, 3522-3) required Wyoming to repeal the part of W.S. 35-11-402(b)
that provides direction to the Wyoming Environmental Quality Council to
use the statutory definitions for ``agricultural lands,'' ``critical
habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-
103(e)(xviii), (xxix), and (xxx) in establishing reclamation standards
for fish and wildlife habitat that are required by Federal law or
regulations to be approved by State Wildlife agencies. OSM placed this
requirement on the Wyoming program because OSM had disapproved the
three definitions on the basis that they were less stringent than SMCRA
and less effective than the Federal regulations (finding Nos. 1, 2, and
3, 59 FR 3521, 3521-2).
As indicated in finding Nos. 1, 2, and 3, Wyoming proposed to
delete the statutory definitions for ``agricultural lands,'' ``critical
habitat,'' and ``important habitat or crucial habitat'' at W.S. 35-11-
103(e)(xviii), (xxix), and (xxx), and the Director approved these
deletions. At W.S. 35-11-402(b), Wyoming proposed to delete the
references to these statutory definitions. Wyoming's proposed deletion
of the statutory definitions satisfies the required amendment at 30 CFR
950.16(ee). Therefore, the Director removes the required amendment.
W.S. 35-11-402(b).-At existing W.S. 35-11-402(b), Wyoming requires
that, to the extent required by federal law or regulations, the Wyoming
Game and Fish Department's approval has to be obtained for reclamation
standards established for ``fish and wildlife habitat'' as defined at
W.S. 35-11-103(e)(xxvi). As additional requirements at W.S. 35-11-
402(b) (i) and (ii), Wyoming proposed that the Wyoming Game and Fish
Department's approval would have to be obtained for standards
established for `'grazingland,'' as defined at W.S. 35-11-
103(e)(xxvii), if the grazingland includes critical habitat designated
by the U.S. Fish and Wildlife Service or if it includes crucial habitat
designated by the Wyoming Game and Fish Department prior to submittal
of the initial permit application or any subsequent amendments to the
permit application. An amendment to a permit application is, as set
forth in Wyoming's existing rule at chapter I, section 2(e), a permit
application adding new lands to a previously approved permit area, as
allowed by W.S. 35-11-406(a)(xii).
Although unstated, the standards addressed by the proposed
provision are revegetation standards for which the Wyoming Land Quality
Division would have to obtain the Wyoming Game and Fish Department's
approval on a permit-specific basis.
This proposed State statute does not have any direct counterpart in
SMCRA, but it does in part have a counterpart in the Federal
regulations. The Federal regulation at 30 CFR 816.116(b)(3)(i) requires
for areas to be developed for fish and wildlife habitat, that success
of vegetation, which is to be based upon tree and shrub stocking and
vegetative ground cover parameters, be specified by the regulatory
authority after consultation with and approval by the State agency
responsible for the administration of the wildlife program.
The existing provision at proposed W.S. 35-11-402(b) requires
Wyoming Game and Fish Department approval of revegetation standards for
land to be reclaimed to fish and wildlife habitat. This provision is
consistent with the corresponding Federal regulation at 30 CFR
816.116(b)(3)(i), which requires the State wildlife agency's approval
of the revegetation standards for areas to be reclaimed for fish and
wildlife habitat.
The proposed provision at W.S. 35-11-402(b)(i) requires Wyoming
Game and Fish Department approval of revegetation standards for
grazingland including critical habitat. As discussed in finding No. 10,
the Federal regulation at 30 CFR 780.16(a)(2)(i) requires Wyoming to
obtain the approval of the U.S. Fish and Wildlife Service, not the
State wildlife agency, on any critical habitat that could be affected
by mining operations. Although Wyoming does not indicate in the
proposed provision at W.S. 35-11-402(b)(i) that it must obtain U.S.
Fish and Wildlife Service approval, this does not make the provision
less effective than the Federal regulation at 30 CFR 780.16(a)(2)(i),
because Wyoming has narrowly worded the provision in such a way as to
only apply to Wyoming Game and Fish Department approvals. This does
not, however, relieve Wyoming of the responsibility to require such
U.S. Fish and Wildlife Service approval through its rule at chapter II,
section 2(a)(vi)(G)(II). Although the Federal regulations do not
require State wildlife agency approval for critical habitat, Wyoming's
proposal to do so amounts to an additional requirement that odes not
render the proposed provision at W.S. 35-11-402(b)(i) less effective
than the Federal regulation at 30 CFR 780.16(a)(2)(i).
The proposed provision at W.S. 35-11-402(b)(ii) requires Wyoming
Game and Fish Department approval of revegetation standards for
grazingland, as defined at W.S. 35-11-103(e)(xxvii), which was
designated by the Wyoming Game and Fish Department as crucial habitat
prior to submittal of the initial permit application or any subsequent
amendments to the permit application. As set out in Wyoming's
definitions, grazingland is a different and separate land use from fish
and wildlife habitat. Therefore, grazingland with crucial habitat on
it, regardless of when the crucial habitat was designated, is not
[[Page 40738]]
fish and wildlife habitat. ``Fish and wildlife habitat,'' as defined at
W.S. 35-11-103(e)(xxvi), is ``land dedicated wholly or partially to the
protection, protection or management of species of fish or wildlife''
(emphasis added). ``Grazingland,'' as defined at W.S. 35-11-
103(e)(xxvii) ``includes rangelands and forestlands where the
indigenous native vegetation is actively managed for grazing, browsing,
occasional hay production, and occasional use by wildlife'' (emphasis
added). In its April 9, 1996, letter response to OSM's issue letter,
Wyoming implicitly acknowledged this difference when it stated that
there is ``very little habitat which is dedicated wholly or partially
to the production, protection or management of species of fish or
wildlife'' (emphasis in the original, page 3 of Wyoming's letter, item
No. 4.B). In its proposed provision at W.S. 35-11-402(b)(ii), the
Wyoming Land Quality Division requires Wyoming Game and Fish Department
approval of revegetation standards for certain ``grazingland.'' To the
extent that the corresponding Federal regulation at 30 CFR
816.116(b)(3)(i) only requires State wildlife agency approval of
revegetation standards for ``fish and wildlife habitat,'' the proposed
provision at W.S. 35-11-402(b)(ii) goes beyond the requirements of the
Federal regulation.
For the reasons discussed above, the Director finds that proposed
W.S. 35-11-402(b)(i) and (ii) are no less stringent than SMCRA and no
less effective than the Federal regulation at 30 CFR 816.116(b)(3)(i).
The Director approves these statutory provisions.
Rules at chapter II, section 2(b)(iv)(C), and chapter IV, sections
2(d)(x)(E) and (E) (III).--Wyoming's revegetation plan requirements for
surface coal mining permit applications are in its rule at chapter II,
section 2(b)(iv)(C). Wyoming proposed to revise the rule to require
consultation with the Wyoming Department of Agriculture on cropland and
erosion control techniques. The Federal permitting regulation at 30 CFR
780.18(b)(5) requires a plan for revegetation as required in 30 CFR
816.111 through 816.116. The Director finds that consultation with the
Wyoming Department of Agriculture would potentially result in a permit
that affords greater environmental protection to lands developed for
cropland. This proposed revision to the rule at chapter II, section
2(b)(iv)(C) is not inconsistent with the intent of the Federal
regulation at 30 CFR 780.18(b)(5).
Some of Wyoming's revegetation performance standards are in its
rules at chapter IV, section 2(d)(x)(E). Wyoming proposed at section
2(d)(x)(E) that the postmining density, composition, and distribution
of shrubs shall be based upon site-specific evaluation of premining
vegetation and wildlife use. The Federal regulation at 30 CFR
816.116(a)(2) requires that standards for revegetation success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. The Director finds that this proposed
revision to the rule at chapter IV, section 2(d)(x)(E) is not
inconsistent with the Federal regulation at 30 CFR 816.116(a)(2).
Wyoming proposed to further revise the rule at chapter II, section
2(b)(iv)(C) to (1) require, for crucial and critical habitats,
consultation with and approval by the Wyoming Game and Fish Department
on minimum stocking and planting arrangements of trees and shrubs,
including species composition and vegetative ground cover and (2)
require, for important habitats, consultation with the Wyoming Game and
Fish Department on minimum stocking and planting arrangements of trees
and shrubs, including species composition and vegetative ground cover.
Wyoming proposed at chapter IV, section 2(d)(x)(E) (III) to (1)
require, for areas containing designated critical or crucial habitats,
consultation with and approval by the Wyoming Game and Fish Department
on minimum stocking and planting arrangements of shrubs, including
species composition, and (2) require, for areas containing important
habitats, consultation with the Wyoming Game and Fish Department to
obtain recommended minimum stocking and planting arrangements of
shrubs, including species composition, that may exceed the preceding
programmatic standard (the standard at section 2(d)(x)(E)(I), which
requires that, except where a lesser density is justified from
premining conditions in accordance with appendix A, at least 20 percent
of the eligible lands shall be restored to shrub patches supporting an
average density of one shrub per square meter). With two exceptions,
these proposed consultation and approval requirements and consultation-
only requirements are the same as the proposed statutory requirements
for W.S. 35-11-402(b) that are addressed above.
The first exception is that the rules indicate that consultation
with and approval by the Wyoming Game and Fish Department need occur on
crucial habitat (i.e., all crucial habitat regardless of when it is
designated), whereas the statute indicates that the approval by the
Wyoming Game and Fish Department need only occur on those crucial
habitats that are designated prior to the submittal of the initial
permit application or any subsequent permit application amendments. To
the extent that the proposed rules at chapter II, section 2(b)(iv)(C),
and chapter IV, section 2(d)(x)(E)(III), require Wyoming Game and Fish
Department approval of certain crucial habitats not required by the
statute at W.S. 35-11-402(b)(ii), the proposed rules and statute are
not consistent. Therfore, the Director is requiring Wyoming to (1)
revise the rules at chapter II, section 2(b)(iv)(C) and chapter IV,
section 2(d)(x)(E)(III) to require Wyoming Game and Fish Department
approval of revegetation standards for grazingland that was designated
by the Wyoming Game and Fish Department as crucial habitat prior to
submittal of the initial permit application or any subsequent
amendments to the permit application, or (2) to revise the statute at
W.S. 35-11-402(b)(ii) to remove the phrase ``prior to submittal of the
initial permit application or any subsequent amendments to the permit
application.''
The second exception is that the rules do not require consultation
and approval on all surface mined lands to be reclaimed for a ``fish
and wildlife habitat'' land use, whereas the statute does. The rules
require consultation and concurrence on critical habitat and crucial
habitat, but they do not require consultation and concurrence on lands
to be reclaimed for the fish and wildlife habitat land use. The Federal
regulations at 30 CFR 816.116(b)(3)(i) require, for areas to be
developed for the fish and wildlife habitat land use, consultation and
concurrence by the State agency responsible for the administration of
the wildlife program on minimum stocking and planting arrangements for
tree and shrub stocking. To the extent that the rules at chapter II,
section 2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III), do not
require consultation with and approval by the Wyoming Game and Fish
Department on minimum stocking and planting arrangements for tree and
shrub stocking on lands to be reclaimed for the fish and wildlife
habitat land use, they are less effective than the Federal regulations
at 30 CFR 816.116(b)(3)(i). Therefore, the Director approves the rules
at chapter II, section 2(b)(iv)(C) and chapter IV, section
2(d)(x)(E)(III) but requires Wyoming to revise them to require
consultation with and approval by the Wyoming Game and Fish Department
of tree and shrub standards for all lands to be reclaimed for the fish
and wildlife habitat land use.
[[Page 40739]]
In conclusion, the Director finds, for the reasons discussed above,
that the proposed rules at chapter II, section 2(b)(iv)(C), and chapter
IV, section 2(d)(x)(E)(III), are less effective than the Federal
regulations at 30 CFR 816.116(b)(3)(i). The Director approves the
proposed rules but requires Wyoming to revise them.
6. W.S. 35-11-402(c), Establishment of Shrubs on Grazingland
On January 24, 1994, OSM at 30 CFR 950.16(ff) (finding No. 5, 59 FR
3521, 3523) required Wyoming to either delete W.S. 35-11-402(c) (which
required reestablishment of shrubs on grazingland to a density of one
shrub per 9 square meters, or to the premining density, whichever was
less) or to submit documentation that the shrub density requirement was
consistent with SMCRA and no less effective than the Federal
regulations.
In response to the required amendment, Wyoming proposed to delete
the shrub density for grazingland from W.S. 35-11-402(c). This deletion
satisfies the required amendment at 30 CFR 950.16(ff), and the Director
is removing the required amendment. (Note, however, that Wyoming has
now proposed shrub density standards elsewhere in its rules. For a
discussion of the effectiveness of those rules, see finding No. 7.)
At W.S. 35-11-402(c), Wyoming also proposed, for the reclamation of
grazingland, that native shrubs be reestablished. It also stipulated
that no shrub species shall be required to be more than one-half of the
shrubs in the postmining standard.
Section 515(b)(19) requires that surface coal mining and
reclamation operations establish on regraded areas, and all other lands
affected, a diverse, effective, and permanent vegetative cover of the
same seasonal variety native to the area of land affected.
Wyoming's proposed W.S. 35-11-402(c) is no less stringent than
section 515(b)(19) of SMCRA in that it requires the use of native
species and, through its requirement that no shrub species shall be
more than one-half of the shrubs in the postmining standard, promotes a
diverse vegetative cover.
For the above stated reasons, the Director approves proposed W.S.
35-11-402(c).
7. Rules at Chapter I, Section 2(ac); Chapter IV, Section 2(d)(x)(E)(I)
and (II); and Appendix A: Definition for ``Eligible Land'' and
Reclamation Success Standards for Shrub Density
On January 24, 1994, OSM at 30 CFR 950.16(gg) (finding No. 6, 59 FR
3521, 3524) required Wyoming to amend the rule at chapter IV, section
2(d)(X)(E) and appendix A to include shrub density requirements that
are in compliance with SMCRA and the Federal regulations. In response
to the required amendment, Wyoming proposed the following revisions to
its rules.
At chapter I, section 2(ac), Wyoming proposed that ``eligible
land'' means
all land to be affected by a mining operation after the shrub
standard set forth at chapter IV, section 2.(d)(x)(E) is approved by
the Office of Surface Mining. Cropland, pastureland or treated
grazingland approved by the Administrator which is to be affected by
a mining operation after the shrub standard set forth at chapter IV,
section 2.(d)(x)(E) is approved by the Office of Surface Mining is
not ``eligible land''
(emphasis added).
In its rule at chapter IV, section 2(d)(x)(E) (I) and (II), Wyoming
proposed that
(I) Except where a lesser density is justified from premining
conditions in accordance with Appendix A, at least 20 percent of the
eligible land shall be restored to shrub patches supporting an
average of one shrub per square meter. Patches shall be no less than
.05 acres each and shall be arranged in a mosaic that will optimize
habitat interspersion and edge effect. Criteria and procedures for
establishing the standard are specified in Appendix A. This standard
shall apply upon approval by OSM to all lands affected thereafter.
(II) Approved shrub species and seeding techniques shall be
applied to all remaining grazingland. Trees shall be returned to a
density equal to the premining conditions
(emphasis added).
Appendix A of Wyoming's rules contains vegetation sampling methods
and reclamation success standards for surface coal mining operations.
In the following sections of appendix A, Wyoming proposed revisions
that restate the above-discussed rules and detail the vegetation
analyses that must be made by operators to implement the rules: II.C.3,
detailed qualitative and quantitative sampling procedures, suggested
sampling procedures for shrub habitat characteristics; VII.F,
developing a revegetation plan, restoration of shrubs, subshrubs, and
trees; and VIII.E, testing adequacy of reclamation, summary. Also, in
the following sections of appendix A, Wyoming proposed other
miscellaneous related revisions: Table 1, values for use in sample
adequacy formula; table 2 and IV.D. minimum and maximum sample sizes
for various sampling methods; and appendix VII, glossary terms
``dominant'' and ``primary shrub species.'' The effect of these
proposed rules is that, with respect to lands to be reclaimed for a
grazingland use or a fish and wildlife habitat land use, there is one
shrub reclamation standard that applies to lands disturbed prior to the
date of OSM's approval of the rules, and there is a different one that
applies to lands disturbed after the date of OSM's approval of the
rules.
For those lands disturbed prior to the date of OSM's approval, the
requirements of the existing rule at chapter IV, section 2(d)(x)(E)
applies. It sets a reclamation goal of one shrub per square meter in
shrub patches on 10 percent of the affected land. For those lands
disturbed after the date of OSM's approval, the requirements of the new
definition for ``eligible land'' at chapter I, section 2(ac), the
revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the
revised appendix A for the rules apply. They require that, except where
a lesser density is justified from premining conditions in accordance
with appendix A, at least 20 percent of the affected land be restored
to shrub patches supporting an average of one shrub per square meter.
For both the pre-approval and post-approval affected lands, the
operator must seed the areas outside the shrub patches with an approved
seeding mixture that includes shrubs. The existing rule at chapter IV,
section 2(d)(x)(E) specifies this when it states that ``(a)pproved
shrub species and seeding techniques shall be applied to all remaining
surfaces used jointly by livestock and wildlife.'' The proposed rule at
chapter IV, section 2(d)(x)(E)(II) specifies this when it states that
``(a)pproved shrub species and seeding techniques shall be applied to
all remaining grazingland.''
The Federal regulation at 30 CFR 816.116(a)(1) requires the State
regulatory authority to select standards for success and statistically
valid sampling techniques for measuring success and to include them in
an approved regulatory program. The standards proposed by Wyoming and
discussed above constitute such standards and techniques.
30 CFR 816.116(b)(3) requires, for areas developed for fish and
wildlife habitat, success of vegetation to be determined on the basis
of tree and shrub stocking and vegetative ground cover. As further
required at 30 CFR 816.116(b)(3)(i), minimum stocking and planting
arrangements must be specified by the State regulatory authority on the
basis of local and regional conditions and after consultation with and
approval by the State agency responsible for the administration of the
wildlife program. By letter dated March 28, 1996, the Wyoming Game and
Fish Department concurred with the
[[Page 40740]]
proposed shrub density standards (administrative record No. WY-31-18).
Because Wyoming has proposed shrub reestablishment success
standards and statistically valid sampling techniques that should
ensure a vegetative stand which is effective in implementing the
grazingland and fish and wildlife habitat land uses, and because the
State wildlife agency has concurred with the standards for the fish and
wildlife habitat land use, the Director finds that Wyoming's proposed
definition for ``eligible land'' at chapter I, section 2(ac), the
revised rules at chapter IV, section 2(d)(x)(E) (I) and (II), and the
revised appendix A, meet the requirements of 30 CFR 816.116(a)(1) and
816.116(b)(3). Accordingly, the Director approves the proposed rules,
and the appendix to the rules, and removes the required amendment at 30
CFR 950.16(gg).
8. Rule at Chapter I, Section 3(bc)(iii), Definition for
``Grazingland''
On July 8, 1992, OSM at 30 CFR 950.16(q) required Wyoming to revise
its definition for ``grazingland'' in its rules at chapter I, section
2(ba)(iii) to clarify that Wyoming's rule requires that land managed
for grazing must also receive consideration for wildlife use (finding
No. 2, 57 FR 30121, 30123-5). Wyoming proposed to satisfy this required
amendment by adding the phrase ``and occasional use by wildlife'' to
its land use definition for ``grazingland'' at chapter I, recodified
section 2(bc)(iii). With the addition of this phrase, this rule
definition is substantively identical to the statue definition for
grazingland at W.S. 35-11-103(e)(xxvii), which OSM approved in the
above-cited 1992 Federal Register notice. The Director finds that
Wyoming's proposed ``grazingland'' definition at chapter I, recodified
section 2(bc)(iii), is no less effective than the corresponding Federal
land use definition of ``grazingland'' at 30 CFR 701.5. Therefore, the
Director approves the proposed definition and removes the required
amendment at 30 CFR 950.16(q).
9. Rule at Chapter I, Section 2(bc)(xi), Definition for ``Treated
Grazingland''
In its process of adopting the shrub reestablishment standards
included in this amendment, Wyoming realized that there might be an
incentive for operators to mechanically or chemically treat areas to be
permitted in the future. If allowed to do so, the operators could
reduce premining shrub densities so that fewer shrubs would have to be
established on reclaimed lands. At the same time, Wyoming recognized
that removal of shrubs from rangeland is a common management tool. With
these things in mind, Wyoming created the term ``treated grazingland''
as a compromise between these two concerns (administrative record No.
WY-31-18).
At chapter I, section 2(bc)(xi), Wyoming proposed that ``treated
grazingland'' means
grazingland which has been altered to reduce or eliminate shrubs
provided such treatment was applied at least five years prior to
submission of the state program permit application. However,
grazingland altered more than five years prior to submission of the
state program permit application on which full shrubs have
reestablished to a density of at least one per nine square meters
does not qualify as treated grazingland.
In effect, the proposed definition for ``treated grazingland''
creates three classes of grazingland: (1) Grazingland that is affected
after the date of OSM's approval and that was treated less than 5 years
prior to the submission of the permit application; (2) grazingland that
is affected after the date of OSM's approval and that was treated 5 or
more years prior to the submission of the permit application where the
premining shrub density is equal to or greater than one shrub per 9
square meters; (3) grazingland that is affected after the date of OSM's
approval and that was treated 5 or more years prior to the submission
of the permit application where the premining shrub density is less
than one shrub per 9 square meters.
In order to determine the shrub reestablishment standard that
applies to each of these three classes of grazingland, one must apply
the proposed definition for ``treated grazingland'' in conjunction with
the proposed definition for ``eligible land'' at chapter I, section
2(ac); the proposed rule at chapter IV, section 2(d)(x)(E); and
appendix A to the rules at section VIII.E. A discussion of the shrub
reestablishment standards for each of these classes of grazingland
follows.
For the reasons discussed, the Director, approves the proposed
definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),
because the shrub standards set by Wyoming for treated grazingland
strikes a reasonable balance between agricultural interests and
wildlife habitat needs that is not inconsistent with the intent of
SMCRA and the Federal regulations. However, the Director is requiring
Wyoming to clarify the revegetation standard for grazingland that is
affected after the date of OSM's approval and that was treated less
than 5 years prior to the submission of the permit application.
Grazingland that is affected after the date of OSM's approval and
that was treated less than 5 years prior to the submission of the
permit application. As set forth in the proposed definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), grazingland
that is disturbed after the date of OSM's approval of these rules and
that was treated less than 5 years prior to the submission of the
permit application is not ``treated grazingland.'' Because it is not
``treated grazingland,'' it is ``grazingland.'' As set forth in the
definition for ``eligible land'' at chapter I, section 2(ac), this
grazingland is eligible land that is subject to the shrub standard set
forth at chapter IV, section 2(d)(x)(E), which at subsection (I) states
that ``[e]xcept where a lesser density is justified from premining
conditions in accordance with appendix A, at least 20 percent of the
eligible land shall be restored to shrub patches supporting an average
of one shrub per square meter'' (emphasis added).
Given Wyoming's rationale that it wanted to take away any incentive
for an operator permining shrub densities so that fewer shrubs would
have to be established on reclaimed grazinglands, it is not likely that
Wyoming intended that the postmining shrub reestablishment standard
could be a lesser density that was based on the premining, treated
condition. Even so, the language of the rules could be interpreted to
allow this. Alternatively, it's possible that Wyoming intended that any
operator treating grazingland less than 5 years prior to the submission
of the permit application would than automatically have to reclaim to
the maximum standard of at least one shrub per square meter on 20
percent of the eligible land.
There is no direct counterpart definition for `'treated
grazingland'' in the Federal regulations. However, 30 CFR 816.116(b)(1)
requires that standards for success shall be applied in accordance with
the approved postmining land use and, at a minimum, for areas developed
for use as grazingland, the ground cover and production of living
plants on the revegetated area shall be at least equal to that of a
reference area of ``such other success standards approved by the
regulatory authority.''
Because Wyoming's rules are unclear as to the shrub reestablishment
standard for grazingland that is affected after the date of OSM's
approval and that was treated less than 5 years prior to the submission
of the permit application, the Director finds that Wyoming's proposed
definition for ``treated grazingland'' at chapter I, section
[[Page 40741]]
2(bc)(xi), as applied in conjunction with the proposed definition for
``eligible land'' at chapter I, section 2(ac), the proposed rule at
chapter IV, section 2(d)(x)(E)(I), and appendix A to the rules at
section VIII.E, does not clearly satisfy for this class of grazingland
the Federal regulation at 30 CFR 816.116(b)(1) that requires the
regulatory authority to set standards of revegetation success for areas
developed for grazingland. Therefore, the Director is requiring Wyoming
to revise the definition for ``treated grazingland'' at chapter I,
section 2(bc)(xi), to otherwise revise its rules, or to provide OSM
with a policy statement, clarifying the shrub standard for grazingland
that is affected after the date of OSM's approval and that was treated
less than 5 years prior to the submission of the permit application.
Grazingland that is affected after the date of OSM's approval and
that was treated 5 or more years prior to the submission of the permit
application where the premining shrub density is equal to or greater
than one shrub per 9 square meters.--As set forth in the proposed
definition for ``treated grazingland'' at chapter I, section 2(bc)(xi),
grazingland that is disturbed after the date of OSM's approval of these
rules, was treated more than 5 years prior to the submission of the
permit application, and supports a premining shrub density equal to or
greater than one shrub per 9 square meters is not ``treated
grazingland.'' Because it is not ``treated grazingland,'' it is
``grazingland.'' As set forth in the definition for ``eligible land''
at chapter I, section 2(ac), this grazingland is eligible land that is
subject to the shrub standard set forth at chapter IV, section
2.(d)(x)(E), which at subsection (I) states that ``[e]xcept where a
lesser density is justified from premining conditions in accordance
with appendix A, at least 20 percent of the eligible land shall be
restored to shrub patches supporting an average of one shrub per square
meter.'' Thus, the postmining shrub standard for this class of
grazingland is no more than one shrub per square meter on 20 percent of
the land, and possibly less depending upon the premining shrub density.
The Director finds that Wyoming's proposed definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi), as applied in
conjunction with the proposed definition for ``eligible land'' at
chapter I, section 2(ac), the proposed rule at chapter IV, section
2(d)(x)(E)(I), and appendix A to the rules at section VIII.E,
satisfies, for this class of grazingland, the Federal regulation at 30
CFR 816.116(b)(1) that requires the regulatory authority to set
standards of revegetation success for areas developed for grazingland.
Grazingland that is affected after the date of OSM's approval and
that was treated 5 or more years prior to the submission of the permit
application where the premining shrub density is less than one shrub
per 9 square meters (treated grazingland).--As set forth in the
proposed definition for ``treated grazingland'' at chapter I, section
2(bc)(xi), grazingland that is disturbed after the date of OSM's
approval of these rules, was treated more than 5 years prior to the
submission of the permit application, and supports a premining shrub
density of less than one shrub per 9 square meters in ``treated
grazingland.'' Because it is ``treated grazingland,'' it is not
``eligible land'' as defined at chapter I, section 2(ac) and is not
subject to the shrub standard set forth at chapter IV, section
2(d)(x)(E). For this treated grazingland, the operator is required to
reclaim the land in accordance with chapter IV, section 2(d)(x)(E)(II),
which requires that ``(a)pproved shrub species and seeding techniques
shall be applied to all remaining grazingland.'' Thus, no postmining
shrub standard is set for treated grazingland, but the operator is
required to seed for shrubs using approved species and techniques.
The Director agrees with Wyoming that the shrub standard set by
Wyoming for treated grazingland strikes a reasonable balance between
agricultural interest and grazingland habitat needs that is not
inconsistent with the intent of SMCRA and the Federal regulations.
Therefore, the Director finds that Wyoming's proposed definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), as applied in
conjunction with the proposed definition for ``eligible land'' at
chapter I, section 2(ac), and the proposed rule at chapter IV, section
2(d)(x)(E)(II), satisfies, for this class of grazingland, the Federal
regulation at 30 CFR 816.116(b)(1) that requires the regulatory
authority to set standards of revegetation success for areas developed
for grazingland.
10. Rule Chapter II, Section 2(a)(vi)(G)(II), Consultation by the
Wyoming Land Quality Division On Critical Habitat
In its permit application requirements rule at chapter II, section
2(a)(vi)(G)(II), Wyoming proposed that the Wyoming Game and Fish
Department must be contacted by the Wyoming Land Quality Division if
the disruption of critical habitat is likely. At chapter I, section
2(v), Wyoming proposed to define ``critical habitat'' to mean the
habitat of those threatened and endangered species listed by the
Secretary of the Interior or Commerce in accordance with 50 CFR 17
parts and 226.
Wyoming's existing performance standard rule at chapter IV, section
2(r)(i)(E) requires an operator to promptly report to the Wyoming Land
Quality Division any threatened or endangered species or critical
habitat of such species, which was not reported or investigated in the
permit application. Upon such notification, the Administrator of the
Wyoming Land Quality Division is required to consult with the Wyoming
Game and Fish Department and the U.S. Fish and Wildlife Service.
The Federal regulations at 30 CFR 780.16(a) require the regulatory
authority to consult with State and Federal agencies with
responsibilities for fish and wildlife. 30 CFR 780.16(a)(2)(i) requires
site-specific resource information for listed or proposed endangered or
threatened species of plants or animals or their critical habitats
listed by the Secretary of the Interior under the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.). The U.S. Fish and
Wildlife Service is responsible for listing, recovery, administration,
and prohibitions associated with threatened and endangered species
designated under this Act. Therefore, 30 CFR 780.16(a) and (a)(2)(i)
require the regulatory authority to consult with the Fish and Wildlife
Service on critical habitat for Federally-listed threatened and
endangered species.
Because Wyoming's proposed rule at chapter II, section
2(a)(vi)(G)(II) does not require consultation with the U.S. Fish and
Wildlife Service on critical habitat, it is not consistent with its
existing rule at chapter IV, section 2(r)(i)(E) and is less effective
than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).
Therefore, the Director approves the proposed rule at chapter II,
section 2(a)(vi)(G)(II) but requires Wyoming to revise it to require
consultation with the U.S. Fish and Wildlife Service on critical
habitat.
11. Rule at Chapter X, Section 4(e), Disturbance of Critical, Crucial,
and Important Habitats by Exploration Operations
In its rule at chapter X, section 4(e), Wyoming proposed to
prohibit coal exploration operations on critical habitat and crucial
habitat, but to allow coal exploration operations on important habitat
after consultation with the Wyoming Game and Fish Department.
[[Page 40742]]
The Federal regulations at 30 CFR 815.15(a) prohibit the
disturbance of ``habitats of unusually high value for fish [and]
wildlife'' by coal exploration operations. As described in 30 CFR
780.16(a)(2)(ii), these habitats include ``important streams, wetlands,
riparian areas, cliffs supporting raptors, areas offering special
shelter or protection, migration routes, or reproduction and wintering
areas.'' This description coincides with Wyoming's proposed definition
for ``important habitat'' at chapter I, section 2(ax), which states
that ``important habitat'' includes ``wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.'' Therefore, Wyoming's
``important habitat'' is a ``habitat of unusually high value'' as
described in the Federal regulations.
Because Wyoming's proposed rule at chapter X, section 4(e) does not
prohibit the disturbance of ``important habitat'' by coal exploration
operations it is less effective than the corresponding Federal
regulation at 30 CFR 815.15(a). The Director approves the proposed rule
but requires Wyoming to revise it to prohibit the disturbance of
``important habitat'' by coal exploration operations.
12. Rules at Chapter XIII, Section 3(a), Notice and Opportunity for
Public Hearing on Permit Revision
At chapter XIII, section 3(a), Wyoming proposed that the
applicant's newspaper notice for a significant permit revision shall
contain the information required by W.S. 35-11-406(j), the permit
number and date approved, and a general description of the proposed
revision. W.S. 35-11-406(j) requires the notice to contain information
regarding the identity of the applicant, the location of the proposed
operation, the proposed dates of commencement and completion of the
operation, the proposed future use of the affected land, the location
at which information about the application may be obtained, and the
location and final date for filing objections to the application.
In setting forth in corresponding Federal notice requirements for
significant permit revisions, 30 CFR 774.13(b)(2) references 30 CFR
773.13. 30 CFR 773.13(a)(1) itemizes the information that must be
included in an applicant's newspaper notice.
Proposed chapter XIII, section 3(a) includes some notice
requirements that are not included in the corresponding Federal
regulations at 30 CFR 774.13(b)(2) and 773.13(a)(1). These include: The
proposed dates of commencement and completion of the operation, the
proposed future use of the affected land, the permit number and date
approved, and a general description of the proposed revision. These
additional requirements are not inconsistent with 30 CFR 774.13(b)(2)
and 773.13(a)(1). Aside from these requirements, proposed chapter XIII,
section 3(a) also includes, with two exceptions, all of the
requirements of the counterpart Federal requirements at 30 CFR
774.13(b)(2) and 773.13(a)(1). The exceptions are that the proposed
State rule does not include counterparts to 30 CFR 773.13(a)(1)(v) and
(vi) respectively concerning notice of permit request to mine within
100 feet of the outside right-of-way of a public road or to relocate or
close a public road, and permit request for experimental practice.
Although proposed chapter XIII, section 3(a) does not include these
requirements, it need not do so because they are included elsewhere in
Wyoming's regulations at chapter XII, section 1(a)(v)(D) and chapter
XII, section 1(a)(ii)(B). For these reasons, Wyoming's proposed
newspaper notice requirements for permit revisions at chapter XIII,
section 3(a) are no less effective than the corresponding notice
requirements of the Federal regulations at 30 CFR 774.13(b)(2) and
773.13(a)(1).
At chapter XIII, section 3(a), Wyoming also proposed that the
operator shall mail a copy of the application mine plan map the Wyoming
Oil and Gas Commission.
As previously discussed, the Federal regulations at 30 CFR
774.13(b)(2) require for significant permit revisions that the
regulatory authority comply with the notice requirements at 30 CFR
773.13. The Federal regulations at 30 CFR 773.13(a)(3) require the
regulatory authority, upon receipt of a significant revision to a
permit under 30 CFR 774.13, to issue a written notification indicating
the applicant's intention to mine the described tract of land, the
application number or other identifier, the location where the copy of
the application may be inspected, and the location where comments on
the application may be submitted. It further requires the regulatory
authority to send the notification to all State governmental agencies
with an interest in the proposed operation.
The proposed State requirement at chapter XIII, section 3(a)
differs from the Federal requirements at 30 CFR 774.13(b)(2) and
773.13(a)(3) in that the permit revision applicant, rather than the
regulatory authority, is required to notify the interested State
agency. Although this difference is substantive, it does not make the
proposed State rule less effective than the Federal regulations,
because the Federal requirement for notifying the interested State
agency are met.
In conclusion, for the aforementioned reasons, Wyoming's proposed
rule at Chapter XIII, section 3(a) is no less effective than the
corresponding Federal regulations at 30 CFR 774.13(b)(2), 773.13(a)(1),
and 773.13(a)(3). Therefore, the Director approves the proposed
revisions to the rule.
13. Rule at Chapter XVII, Section 1(a), Lands Unsuitable for Mining and
Definition for ``Fragile Lands''
Wyoming proposed to revise its definition for ``fragile lands'' in
its rule at chapter XVII, section 1, which pertains to the designation
of areas unsuitable for surface coal mining. Wyoming proposed to add
crucial or important habitats for fish or wildlife to the list of lands
that constitute ``fragile lands.'' It also proposed that ``critical
habitats for endangered species,'' rather than just `'critical habitats
for endangered species of plants,'' (emphasis added) are ``fragile
lands.''
The corresponding Federal definition for ``fragile lands'' at 30
CFR 762.5 states that `'valuable habitats for fish or wildlife'' are
examples of fragile lands. Instead of using this term, Wyoming uses the
term ``crucial or important habitat.'' Because ``crucial habitat'' and
``important habitat,'' as defined by Wyoming in its rules at chapter I,
sections 2(ax) and (w) (see findings No. 4), are ``valuable habitats
for fish or wildlife'' as used in the Federal definition, Wyoming's
listing of these habitats in its proposed definition for ``fragile
land'' is consistent with the Federal definition for ``fragile land.''
The Federal definition for ``fragile lands'' at 30 CFR 762.5
further states that ``critical habitats for endangered or threatended
species of animals or plants'' (emphasis added) are examples of fragile
lands. In its proposed definition for ``fragile lands,'' Wyoming does
not use the emphasized words ``threatened'' and ``of animals or
plants.'' However, as defined by Wyoming at chapter I, section 2(v),
``critical habitat'' means ``those areas essential to the survival and
recovery of species listed by the Secretary of the Interior or Commerce
as threatended or endangered'' (emphasis added, see finding No. 3).
Therefore, by using the term ``critical habitat'' in its proposed
definition for ``fragile lands,'' Wyoming protects critical habitats of
threatened species in its process for designating lands unsuitable for
mining. Also, by using the term `'critical habitat'' in its proposed
definition for ``fragile lands,'' Wyoming protects critical habitats of
both plant and animal species, because
[[Page 40743]]
the Secretaries of the Interior and Commerce protect both plant and
animal threatened or endangered species.
For these reasons, Wyoming's proposed definition for ``fragile
lands'' at chapter XVII, section 1(a) is no less effective than the
corresponding Federal definition for ``fragile lands'' at 30 CFR 762.5.
Therefore, the Director approves the proposed definition.
14. Required Amendment at 30 CFR 950.16(hh)
By letters dated February 28, 1994, and September 1, 1994, Wyoming
submitted a description of required amendments, a timetable for
enactment of the amendments, and a request for additional time to
complete the rulemaking associated with the required amendments at 30
CFR 950.16 (aa) through (gg). By final rule Federal Register notice
dated December 23, 1994, OSM extended until November 30, 1995, the
deadline for Wyoming to submit an amendment addressing the required
amendments. OSM codified this deadline extension at 30 CFR 950.16(hh).
Wyoming submitted the amendment, which is the subject of this notice,
on November 29, 1995. Because Wyoming has submitted the amendment, the
Director is removing the required amendment at 30 CFR 950.16(hh).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
National Wildlife Federation, Wyoming Wildlife Federation, and
Wyoming Outdoor Council.--By letter dated January 16, 1996
(administrative record No. WY-31-09), the National Wildlife Federation,
Wyoming Wildlife Federation, and Wyoming Outdoor Council jointly
commented on W.S. 35-11-402(b)(ii). In this statutory provision, the
Wyoming Land Quality Division proposed that, to the extent required by
federal law or regulations, it would have to obtain the approval of the
Wyoming Game and Fish Department for reclamation standards for
``grazingland'' as defined at W.S. 35-11-103(e)(xxvii), if the
grazingland includes crucial habitat designated by the Wyoming Game and
Fish Department ``prior to submittal of the initial permit application
or any subsequent amendments to the permit application.''
The commenters started that the quoted part of the provisions
places a restriction on the protection of crucial habitat that is not
consistent with section 515(b)(2) of SMCRA, which requires that all
surface coal mining operations shall at a minimum ``restore the land
affected to a condition capable of supporting the uses which it was
capable of supporting prior to any mining, or higher or better uses * *
*'' (emphasis added by commenters). They argue that there can be no
restoration to the land's prior wildlife capabilities if the Wyoming
Game and Fish Department cannot update crucial habitat areas after the
initial permit application.
The commenters also cited section 515(b)(24), which requires that
mine operators `'to the extent possible using the best technology
currently available, minimize disturbances and adverse impacts of the
operation on fish, wildlife, and related environmental values, and
achieve enhancement of such resources where practicable.'' The
commenters stated that this provision cannot be carried out if the
Wyoming Game and Fish Department cannot add to crucial habitat maps
after the initial permit application.
In addition, the Wyoming Outdoor Council (Council) by letter dated
January 22, 1996 (administrative record No. WY-31-13), stated that,
although most big game crucial ranges in Wyoming are well defined, the
Wyoming Game and Fish Department has not, because of only having three
nongame biologists for all of Wyoming's 98,000 square miles, identified
crucial habitats for a broad range of species, including raptors, sage
and sharp tail grouse, and ``state priority species.'' The Council
stated that it is conceivable that a permit applicant's baseline
wildlife information could reveal crucial habitats previously
unrecognized by the Wyoming Game and Fish Department. The Council
stated that the proposed statutory provision makes the collection of
wildlife baseline data trivial if these data cannot be used to make
certain resource determinations and then base management prescriptions
on these determination (i.e., wildlife data included in permit
application cannot be used as a basis for designating, protecting, and
enhancing crucial habitat).
The Council cited 30 CFR 780.16(a), which requires that
[e]ach application shall include fish and wildlife resource
information for the permit area and adjacent area. The scope and
level of detail for such information * * * shall be sufficient to
design the protection and enhancement plan required under (b) of
this section.
Referenced 30 CFR 780.16(b), at subsection (2), requires that
[e]ach application shall include a description of how, to the extent
possible using the best technology currently available, the operator
will minimize disturbances and adverse impacts on fish and wildlife.
* * * This description shall--apply at a minimum to species and
habitats identified under paragraph (a) of this section.
The Council concluded that the restriction that proposed W.S. 35-
11-402(b)(ii) places on the protection and enhancement of crucial
habitat is a violation of 30 CFR part 780.
OSM considered these comments in its review of proposed W.S. 35-11-
402(b)(ii). For the reasons discussed in finding No. 5 and below, OSM
does not agree that proposed W.S. 35-11-402(b)(ii) is less effective
than SMCRA and the Federal regulations.
Wyoming's permit application rules at chapter II, section
2(a)(vi)(D)( require studies of wildlife and their habitats in the
level of detail as determined by the Wyoming Land Quality Division,
after consultation with the Wyoming Game and Fish Department. The
purpose of these baseline studies is to identify valuable wildlife
habitats so that the permit applicant can be required to plan mining
and reclamation operations to minimize wildlife impacts. If these
studies reveal valuable wildlife habitat on grazingland, the permit
applicant would be required to accordingly plan mining and reclamation
operations to minimize wildlife impacts, regardless of whether the
Wyoming Game and Fish Department subsequently (after initial permit or
amendment application) designated the valuable habitat as critical
habitat. If the crucial habitat designation on grazing land did occur
after initial permit or amendment application, the Wyoming Land Quality
Division would not under W.S. 35-11-402(b)(ii) have to obtain Wyoming
Game and Fish Department approval of shrub revegetation standards, but,
assuming that the habitat was at least important habitat, it would
still have to solicit the Wyoming Game and Fish Department's
recommendations. The Wyoming Land Quality Division has an obligation to
afford good-faith considerations to all Wyoming Game and Fish
Department recommendations regarding protection, restoration, and
enhancement of wildlife resources, regardless of the postmining land
use.
In addition to the aforementioned permitting requirements, the
permit applicant would not be relieved of the responsibility to meet
the performance
[[Page 40744]]
standards in Wyoming's rules at chapter IV, section 2(r), which
requires an operator, to the extent possible using the best technology
currently available and consistent with the approved postmining land
use, minimize disturbance, and where practicable, enhance wildlife
resources.
University of Wyoming.--The Head of the Department of Plant, Soil,
and Insect Sciences, University of Wyoming, responded but had no
comments on the amendment (administrative record No. WY-31-16).
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Wyoming program.
U.S. Bureau of Mines.--By letter dated December 21, 1995, the U.S.
Bureau of Mines, Division of Environmental Technology, responded that
it had no comments on the amendment (administrative record No. WY-31-
06).
U.S. Army Corps of Engineers.--By letter dated December 27, 1995,
the U.S. Army Corps of Engineers responded that it found the amendment
to be satisfactory (administrative record No. WY-31-07).
U.S. Department of Agriculture, Natural Resources Conservation
Service (NRCS).--By letter dated January 12, 1996, NRCS responded with
comments (administrative record No. WY-31-10).
NRCS recommended that the proposed land use definition of
``grazingland'' at chapter I, section 2(bc)(iii) be revised to read:
``Grazingland includes rangelands and forest lands where the indigenous
native vegetation is actively managed for grazing, browsing, occasional
mechanical forage harvesting, and may also be used by wildlife.'' OSM
made Wyoming aware of this recommendation, but it did not require
Wyoming to revise the proposed definition because, as discussed in
finding No. 8, it is no less effective than the corresponding Federal
land use definition for ``grazingland'' at 30 CFR 701.5.
NRCS commented on the proposed rule at chapter II, section
2(b)(iv)(C), which includes requirements for permit application
revegetation plans. The existing, unrevised language of this rule
indicates that the ``[t]he standards and specifications adopted by the
State Conservation Commission for mine reclamation shall be considered
by the applicant during the preparation of the reclamation plan
whenever practicable.'' NRCS stated that the State Conservation
Commission is no longer in existence and that the State Board of
Agriculture now has this former Commission's responsibilities; it also
stated that the rule should indicate where the referenced standards and
specifications can be obtained. In its March 8, 1996, issue letter, OSM
notified Wyoming of this comment. In its April 9, 1996, response,
Wyoming confirmed that the State Conservation Commission has disbanded
and been replaced by the State Board of Agriculture. Wyoming stated
that this Board does not have the responsibility for setting standards
and specifications for mine reclamation. Therefore, Wyoming indicated
it would in the future propose to OSM that the above-quoted sentence be
deleted from the rule. Wyoming noted that another provision of the
rule, which requires consultation with the Wyoming Department of
Agriculture on croplands, will be retained because the Federal
regulations at 30 CFR 780.23(a)(2)(ii) require consultation with such
State agricultural agencies.
Bureau of Land Management.--By letter dated January 18, 1996, the
Bureau of Land Management, Rock Springs District Office (BLM-RSDO),
responded with comments (administrative record No. WY-31-12). Those
comments that relate to proposed amendment revisions are discussed
below. Other comments that relate to rules that are not proposed for
revision in this amendment have been included in the administrative
record for Wyoming's future consideration.
BLM-RSDO commented that the land use definition for ``grazingland''
in the proposed rule at chapter I, section 2(bc)(iii), should be
revised by deleting the proposed phrase ``and occasional use by
wildlife.'' In making this comment, BLM-RSDO was apparently unaware
that Wyoming was adding the phrase ``and occasional use by wildlife''
in response to the required amendment at 30 CFR 950.16(q) that OSM
placed on the Wyoming program. For a discussion of the required
amendment and proposed definition, which the Director is approving, see
finding No. 8.
BLM-RSDO commented that the revisions proposed in the land use
definition for ``fish and wildlife habitat'' in the proposed rule at
chapter I, section 2(bc)(viii) should not be made and that the
definition should remain unchanged. As discussed in finding No. 1, the
Director is approving the proposed definition because it is
substantively identical to the corresponding Federal land use
definition for ``fish and wildlife habitat'' at 30 CFR 701.5.
BLM-RSDO submitted comments on appendix A, section VIII.E (testing
of adequacy of reclamation, evaluation of shrub density) questioning
why treated grazingland was not subject to the standard of one shrub
per square meter on the 20 percent of the affected area that is set
forth in the rules at chapter IV, section 2(d)(x)(E). As discussed in
finding No. 9 and as set forth in the proposed definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi), grazingland that is
disturbed after the date of OSM's approval of these rules, was treated
more than 5 years prior to the submission of the permit application,
and supports a premining shrub density of less than one shrub per 9
square meters is ``treated grazingland.'' As discussed in the finding,
the Director agrees with Wyoming that the shrub standard set by Wyoming
for treated grazingland strikes a reasonable balance between
agricultural interests and wildlife habitat needs that is not
inconsistent with the intent of SMCRA and the Federal regulations.
Lastly, BLM-RSDO commented that the list of plant species of
special concern in appendix A, appendix IV, should be updated with 1995
data from the Wyoming Natural Diversity Database. OSM included this
comment in its March 9, 1996, issue letter to Wyoming. In response,
Wyoming stated that it would, through the rulemaking process and in
some future amendment, remove the list from appendix A and instead
refer the reader to the Wyoming Natural Diversity Database Office for a
current list of plant species of special concern.
By letter dated January 18, 1996, BLM, Wyoming State Office (BLM-
WSO), responded with a comment on the proposed rule at chapter XIII,
section 3(a) (administrative record No. WY-31-15). Wyoming proposed to
revise the rule to require coal operators to mail copies of significant
permit revision maps to the Wyoming Oil and Gas commission, rather than
owners of record, in accordance with W.S. 35-11-406(j). BLM-WSO
recommended that the rule be revised to require coal operators to mail
pertinent maps to all oil and gas operators within the permit area. OSM
did not require Wyoming to make this recommended revision because the
Federal regulations at 30 CFR 774.13(b)(2) and 773.13(a)(3) do not
require it. As discussed in finding No. 12, the Director is approving
the proposed rule on the basis that it is no less effective than the
corresponding Federal regulations.
U.S. Fish and wildlife Service (FWS).--By letter dated January 19,
[[Page 40745]]
1996, FWS responded with comments (administrative record No. WY-31-11).
FWS commented that the rules in several places require consultation
with the Wyoming Game and Fish Department on minimum stocking and
planting arrangements of trees and shrubs on critical habitats, which
Wyoming defines as those areas essential to the survival and recovery
of species listed by the Secretaries of the Interior and Commerce as
threatened or endangered. FWS stated that consultation on Federally
designated critical habitats must occur with FWS and cannot be
delegated to a State agency.
OSM agreed with FWS's comment and notified Wyoming in the March 8,
1996, issue letter that, to be no less effective than the Federal
permit application at 30 CFR 780.16(a) and (a)(2)(i), Wyoming must
revise its proposed rule at chapter II, section 2(a)(vi)(G)(II) to
require consultation with FWS on critical habitat. In its April 9,
1996, response to the issue letter, Wyoming acknowledged the need to
revise the rule, and it will do so in the future. As discussed in
finding No. 10 of this notice, the Director finds that Wyoming's
proposed rule at chapter II, section 2(a)(vi)(G)(II) is less effective
than the Federal regulations at 30 CFR 780.16(a) and (a)(2)(i).
Therefore, the Director is requiring Wyoming to revise the rule to
require consultation with FWS on critical habitat.
FWS also commented that Wyoming's Enrolled Act No. 8, which limits
some alterations to crucial habitat designations by the Wyoming Game
and Fish Department, seems to conflict with the intent of SMCRA and
could affect habitats of value to migratory birds and other species of
high Federal interest. For a response to this general comment on W.S.
35-11-402(b)(ii), see the above responses to the comments on this
section of the Wyoming's statute from the National Wildlife Federation,
Wyoming Wildlife Federation, and Wyoming Outdoor Council.
Mine Safety and Health Administration.--By letter dated January 24,
1996, the Mine Safety and Health Administration responded but had no
comments on the amendment (administrative record No. WY-31-14).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Wyoming proposed to make in its amendment
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. WY-31-03). It
did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
WY-31-04). By letter dated January 4, 1996, the SHPO indicated he had
no objections to the proposed amendment (administrative record No. WY-
31-08). ACHP did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with additional
requirements, Wyoming's proposed amendment as submitted on November 29,
1995.
The Director approves, as discussed in:
Finding No. 1, revision of the land use definition for ``fish and
wildlife habitat'' at chapter I, section 2(bc)(viii), and revision of
chapter XI, section 5(a), substitution of a surety bond for a self-
bond;
Finding No. 2, deletion of the definition for ``agricultural
lands'' at W.S. 35-11-103(e)(xxviii);
Finding No. 3, deletion of the definition for ``critical habitat''
at W.S. 35-11-103(e)(xxix) and revision of the definition for
``critical habitat`` at chapter I, section 2(v);
Finding No. 4, deletion of the definition for ``crucial habitat''
at W.S. 35-11-103(e)(xxx), addition of the definition for ``crucial
habitat'' at chapter I, section 2(w), and revision of the definition
for ``important habitat'' at chapter I, section 2(ax);
Finding No. 6, revision of W.S. 25-11-402(c), establishment of
shrubs on grazingland;
Finding No. 7, addition of the definition for ``eligible land'' at
chapter I, section 2(ac), and revision of chapter IV, section
2(d)(x)(E) (I) and (II), and appendix A, reclamation success standards
for shrub density;
Finding No. 8, revision of the land use definition for
``grazingland'' at chapter I, section 2(bc)(iii);
Finding No. 12, revision of chapter XIII, section 3(a), notice and
opportunity for public hearing on permit revision; and
Finding No. 13, revision of the definition for ``fragile lands'' at
chapter XVII, section 1(a), with respect to designation of lands
unsuitable for mining.
With the requirement that Wyoming further revise its rules and/or
statute, the Director approves, as discussed in:
Finding No. 5, revision of W.S. 35-11-402(b), chapter II, section
2(b)(iv)(C), and chapter IV, sections 2(d)(x)(E) and (E)(III),
establishment of reclamation standards for fish and wildlife habitat
and grazingland;
Finding No. 9, addition of the land use definition for ``treated
grazingland'' at chapter I, section 2(bc)(xi);
Finding No. 10, revision of chapter II, section 2(a)(vi)(G)(II),
consultation by the Wyoming Land Quality Division on critical habitat;
and
Finding No. 11, revision of chapter X, section 4(e), disturbance of
critical, crucial, and important habitats by exploration operations.
The Federal regulations at 30 CFR part 950, codifying decisions
concerning the Wyoming program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage states to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments
[[Page 40746]]
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 24, 1996.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.15 is amended by adding paragraph (x) to read as
follows:
Sec. 950.15 Approval of regulatory program amendments.
* * * * *
(x) The following statutes and rules, as submitted to OSM on
November 29, 1995, are approved effective August 6, 1996: Deletion of
W.S. 35-11-103(e)(xxviii), definition for ``agricultural lands;'' W.S.
35-11-103(e)(xxix) and the rule at chapter I, section 2(v), definition
for ``critical habitat;'' W.S. 35-11-103(e)(xxx) and the rules at
chapter I, sections 2(ax) and (w), definitions for ``important
habitat'' and ``crucial habitat;'' W.S. 35-11-402(b), reclamation
standards for fish and wildlife habitat and grazingland; W.S. 35-11-
402(c), establishment of shrubs on grazingland; rules at chapter I,
section 2(ac), chapter IV, section 2(d)(x)(E)(I) and (II), and appendix
A, definition for ``eligible land'' and reclamation success standards
for shrub density; rule at chapter I, section 2(bc)(iii), definition
for ``grazingland;'' rule at chapter I, section 2(bc)(viii), land use
definition for ``fish and wildlife habitat;'' rule at chapter I,
section 2(bc)(xi), definition for ``treated grazingland;'' rule at
chapter XI, section 5(a), substitution of a surety bond for a self-
bond; rule at chapter XIII, section 3(a) notice and opportunity for
public hearing on permit revision; rule at chapter XVII, section 1(a),
lands unsuitable for mining and definition for ``fragile lands;'' the
rules at chapter II, section 2(b)(iv)(C), and chapter IV, section
2(d)(x)(E)(III), establishment of reclamation standards for fish and
wildlife habitat and grazingland; rule at chapter II, section
2(a)(vi)(G)(II), consultation by the Wyoming Land Quality Division on
critical habitat; and rule at chapter X, section 4(e), disturbance of
important habitat by exploration operations.
3. Section 950.16 is amended by removing and reserving paragraphs
(q) and (bb) through (hh) and adding paragraphs (ii) though (ll) to
read as follows:
Sec. 950.16 Required program amendments.
* * * * *
(ii) By May 30, 1997, Wyoming shall
(1) Revise the rules at chapter II, section 2(b)(iv)(C), and
chapter IV, section 2(d)(x)(E)(III), to be consistent with the statute
at W.S. 35-11-402(b)(ii) by requiring Wyoming Game and Fish Department
approval of revegetation standards for grazingland that was designated
by the Wyoming Game and Fish Department as crucial habitat prior to
submittal of the initial permit application or any subsequent
amendments to the permit application; or revise the statute at W.S. 35-
11-402(b)(ii) to be consistent with the rules at chapter II, section
2(b)(iv)(C), and chapter IV, section 2(d)(x)(E)(III) by deleting the
phrase ``prior to submittal of the initial permit application or any
subsequent amendments to the permit application;'' and
(2) Revise the rules at chapter II, section 2(b)(iv)(C), and
chapter IV, section 2(d)(x)(E)(III), to require consultation with and
approval by the Wyoming Game and Fish Department of tree and shrub
standards for all lands to be reclaimed for the ``fish and wildlife
habitat'' land use.
(jj) By May 30, 1997, Wyoming shall revise the definition for
``treated grazingland'' at chapter I, section 2(bc)(xi), otherwise
revise its rules, or provide OSM with a policy statement, clarifying
the shrub standard for grazingland that is affected after the date of
OSM's approval and that was treated less than 5 years prior to the
submission of the permit application.
(kk) By May 30, 1997, Wyoming shall revise the rule at chapter II,
section 2(a)(vi)(G)(II), or otherwise modify its program, to require
consultation with the U.S. Fish and Wildlife Service on critical
habitat.
(ll) By May 30, 1997, Wyoming shall revise the rule at chapter X,
section 4(e), or otherwise modify its program, to prohibit the
disturbance of important habitat by coal exploration operations.
[FR Doc. 96-19735 Filed 8-5-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-19409 I/M Program RequirementOn-Board Diagnostic Checks
[Federal Register Volume 61, Number 152 (Tuesday, August 6, 1996)]
[Rules and Regulations]
[Pages 40940-40948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19409]
[[Page 40939]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 51 and 85
I/M Program Requirement--On-Board Diagnostic Checks; Final Rule
Federal Register / Vol. 61, No. 152 / Tuesday, August 6, 1996 / Rules
and Regulations
[[Page 40940]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 85
[FRL-5543-7]
RIN 2060-AE19
I/M Program Requirement--On-Board Diagnostic Checks
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today's action revises the motor vehicle Inspection/
Maintenance (I/M) Program Requirements. This rule establishes the
minimum requirements for inspecting vehicles equipped with on-board
diagnostic systems as part of the inspections required in basic and
enhanced Inspection/Maintenance programs. Inspection/Maintenance
programs are an important part of EPA's overall program to decrease the
emissions of harmful pollutants from motor vehicles and bring all areas
in the United States into attainment with the goals of the Clean Air
Act.
EFFECTIVE DATE: This regulation is effective October 7, 1996. The
incorporation by reference of certain publications listed in this
regulation is approved by the Director of the Federal Register as of
October 7, 1996.
ADDRESSES: Materials relevant to this rulemaking are contained in
Public Docket No. A-94-21. The docket is located at the Air Docket,
(LE-131) Room 1500 M, 1st Floor, Waterside Mall, 401 M Street SW,
Washington, DC, 20460. The docket may be inspected between 8:00 a.m.
and 5:30 p.m. on weekdays. A reasonable fee may be charged for copying
docket material. Electronic copies of the preamble and the regulatory
text of this rulemaking are available on the Office of Air Quality
Planning and Standards (OAQPS) Technology Transfer Network Bulletin
Board System (TTN BBS) and the Office of Mobile Sources' World Wide Web
cite, http://www.epa.gov/OMSWWW/.
FOR FURTHER INFORMATION CONTACT: Leila Cook, Office of Mobile Sources,
National Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann
Arbor, Michigan, 48105. Telephone (313) 741-7820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Regulated Entities
II. Summary of Rule
III. Authority
IV. Public Participation
A. Two-Year Data Collection Period
B. Verifying Codes at Test Station
C. Consumer Acceptance
D. State Requirement for Exhaust and Evaporative Tests
E. Test Report
F. Unconfirmed Codes
G. Bi-directional Communication
H. Monitoring Engine Speed
I. Test Order
J. Key On-Engine Running vs. Key On-Engine Off
K. Warranty Coverage for OBD System
L. Fuel Economy Monitor
M. OBD Emission Credits
V. Economic Costs and Benefits
VI. Administrative Requirements
A. Administrative Designation
B. Reporting and Recordkeeping Requirement
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
E. Small Business Regulatory Enforcement Fairness Act
I. Regulated Entities
Entities potentially regulated by this action are those that are
required to implement Inspection/Maintenance programs. Regulated
categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
State and Local Government................ State and local governments
required to implement I/M
programs by the Clean Air
Act.
------------------------------------------------------------------------
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 state or local government is regulated by this action, you should
examine the applicability criteria in Sec. 51.350 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.
II. Summary of Rule
Motor vehicle inspection and maintenance (I/M) programs are an
integral part of the effort to reduce mobile source air pollution. The
Clean Air Act as amended in 1990, 42 U.S.C. 7401, et seq. (hereinafter
``the Act''), was prescriptive with respect to certain aspects of the
I/M program design. In particular, section 202(m)(3) of the Act directs
EPA to require on-board diagnostic (OBD) system checks as a component
of I/M programs. In addition, section 182(a)(2)(B)(ii) of the Act
requires that states revise their I/M programs within two years after
promulgation of regulations under section 202(m)(3) to meet the
requirements of those regulations.
With this action, EPA is establishing requirements for the
inspection of on-board diagnostic systems as part of I/M programs. This
action amends those sections of the Inspection/Maintenance Program
Requirements in subpart S, 40 CFR part 51 (November 5, 1992) that were
reserved for OBD requirements, and elsewhere as needed. This action
adds to sections of subpart S pertaining to data collection and
analysis as well as implementation deadlines. This action also adds to
appendix B of subpart S pertaining to test procedures. Finally, this
action adds to subpart W of 40 CFR part 85 pertaining to test
procedures, test equipment, and standards for failure for purposes of
the emission control system performance warranty.
Today's action establishes the test procedures and requirements for
the on-board diagnostic (OBD) computer test portion of the I/M test.
OBD testing of all 1996 and newer model year vehicles will be required
in all I/M programs (basic and enhanced) beginning January 1, 1998
except that areas in the Northeast Ozone Transport Region (OTR)
eligible to implement an OTR low enhanced I/M program must begin OBD
testing by January 1, 1999. Failure of the OBD test will not result in
mandatory repair until January 1, 2000. During this two year test-only
period, EPA in cooperation with states and motor vehicle manufacturers
hopes to gather data on the effectiveness of OBD.
III. Authority
Authority for these actions is granted to EPA by sections
182(a)(2)(B)(ii), 182(c)(3), 202(m)(3), 207(b), and 301(a) of the Clean
Air Act as amended, 42 U.S.C. 7511a(a)(2)(B)(ii), 7511a(c)(3),
7521(m)(3), 7541(b), and 7601(a).
IV. Public Participation
A. Two-Year Data Collection Period
1. Summary of Proposal
The proposal required that all vehicles subject to an I/M test
requirement undergo an OBD test beginning January 1, 1998. The proposal
also stated that any vehicle which failed the OBD portion of the I/M
test would fail the I/M test as of January 1, 1998. One of the possible
reasons for failing the OBD test would be if all the vehicle's
readiness codes were not cleared when it arrived at the test station.
The readiness code status provides an indication of whether or not
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a specific monitor has been exercised. A code is set when the monitor
has not yet had a sufficient chance to make an accurate evaluation of
the component's operation. The readiness code is cleared when an
accurate determination has been made, thus indicating I/M readiness.
2. Summary of Comments
On September 26, 1995, several vehicle manufacturers met with EPA
to discuss the OBD rule. At this meeting and again in written comments,
manufacturers expressed the concern that vehicles would be rejected
from testing because all the OBD readiness codes for the vehicle would
not be cleared when the vehicle arrived at the test station. In
particular, the manufacturers were concerned that extreme cold weather
or high altitude might prevent certain readiness codes from clearing.
Since that time, three manufacturers have notified EPA that there were
problems with the design of the OBD readiness codes in a portion of the
1996 model year fleet and that it was likely that all of the codes
would not be cleared when these vehicles arrived at the test station
even though the vehicle was functioning normally. Some commenters also
noted that OBD system checks should be incorporated in a manner that
encourages public support and acceptance of OBD systems, especially
during the early stages of implementation when technology for OBD
systems is still relatively new. To deal with these issues,
stakeholders suggested that a data collection period on the OBD system
would be prudent. This would give EPA, the states, and the
manufacturers time to assess the effectiveness of the OBD tests,
identify any problems, and implement refinements.
3. Response to Comments
EPA agrees with commenters that because the OBD technology is new,
a period of study is warranted. Therefore, although this action makes
OBD testing mandatory for most I/M programs as of January 1, 1998, for
the first two years of the program, until December 31, 1999, vehicles
that fail the OBD test will not automatically fail the I/M test or be
required to obtain repairs. From January 1, 1998 to December 31, 1999,
vehicles that fail the OBD test can still pass the I/M test provided
they undergo and pass the tail-pipe emission test, and, where
applicable, the evaporative system tests. This will give EPA, the
states, and vehicle manufacturers two years to collect data on OBD test
results and the interaction between OBD test failures and exhaust and
evaporative test results. This test period should allow for the
resolution of any vehicle software problems to ensure that vehicle
owners will not be turned away from the test center solely because of
the way in which their vehicle's readiness codes were programmed. In
addition, this two-year period will allow time to correct any other
unforeseen problems that may arise with readiness and diagnostic
trouble codes or any other element of OBD testing. By providing this
test-only period, EPA hopes to identify and solve potential problems so
that consumers will face the least amount of inconvenience possible.
EPA does not believe there will be any lost emission reductions as
a result of this two-year data collection period because most vehicles
will still have to undergo tailpipe emission and, where applicable,
evaporative tests. Furthermore, since OBD testing is only required on
1996 and newer vehicles, these vehicles will still be new and ``clean''
in 1998 and 1999. Because of this, EPA expects that very few of these
vehicles will fail the I/M test.
EPA considered providing more detailed guidance on what the vehicle
operator should be told (beginning in 2000) in the event their vehicle
is rejected from testing because all of its readiness codes are not
cleared. The proposed language of Sec. 85.2223(a)(3) stated that the
operator should be told to return after driving the vehicle ``long
enough'' to allow the readiness codes to clear. Because time is not the
only condition which will affect readiness code status, EPA changed
this language (now in Sec. 85.2222(c)) to provide that the operator be
told to return after driving the vehicle under the conditions necessary
for it to provide an accurate readiness determination.
At this time, EPA does not feel it is appropriate to specify in the
regulation what the vehicle operator should be told and instead
believes it is best left to the states to devise a solution that meets
local program needs. As a result of the general language in this
portion of the regulation, it is imperative that I/M inspectors obtain
education about OBD so they can assess each individual operator's
situation and provide advice on what should be done to ensure that the
vehicle is ready when it returns to the test station. By way of
example, EPA is including the following scenarios. First, evaporative
system leak detection monitors generally require ambient temperatures
above 40 degrees Fahrenheit, and an overnight soak or extended period
of non-operation, prior to exercising the monitor. In a situation where
the evaporative system readiness code is not cleared, an operator
should be told to return after starting their vehicle in warmer ambient
temperature conditions with a near full tank of gasoline. Second,
continued low-speed operation could provide little opportunity for
exercising the exhaust gas recirculation (EGR) monitor. In a situation
where the EGR readiness code has not cleared, an operator should be
told to return after driving at higher speeds on the highway so that
EGR would occur and the EGR monitor could be exercised.
B. Verifying Codes at Test Station
1. Summary of Proposal
Under the proposal any vehicle whose malfunction indicator light
(MIL) is commanded to be illuminated and who has certain diagnostic
trouble codes (DTCs) present fails the OBD test.
2. Summary of Comments
One commenter urged EPA to establish a procedure to determine at
the test center if a DTC could be false.
3. Response to Comments
Currently, the technology is not available to determine if a DTC is
false at the test center. EPA believes that the two-year test period
discussed above in section V.A will allow for development and
refinement of OBD systems so that false failures will be less likely.
C. Consumer Acceptance
1. Summary of Proposal
The proposal required that all vehicles that are subject to I/M
testing undergo the OBD test and the exhaust and evaporative test if
applicable. If a vehicle fails any one of the three tests, it fails the
I/M test and must have whatever repairs are necessary (up to the
monetary waiver limit) to pass a retest.
2. Summary of Comments
One commenter noted that the general public might resist having
emission repairs that are necessary to pass the OBD test if the
tailpipe emission test determines that the vehicle is ``clean.''
3. Response to Comments
Section 202(m)(3) of the Clean Air Act requires OBD testing as a
component of all I/M programs. This commenter's concern illustrates the
need for consumer education and awareness of the importance of OBD
systems and OBD testing. The possibility exists that a vehicle will
pass the tailpipe emission test (i.e., testing ``clean'') and still
fail the OBD check. This result is not inconsistent with the proper
operation of the OBD system. A failure of the OBD
[[Page 40942]]
check, coupled with a passing of the tailpipe emissions test, may be an
indication of an emission related problem not apparent during the
tailpipe emission test. For example, an engine misfire condition that
exists only at high speeds may cause a significant emission increase
during high speed operation, not to mention posing a serious threat to
the catalyst. But, if such high speed operation is not part of the
emission test cycle, the vehicle would appear ``clean.'' EPA believes
that the two year test-only period discussed in section V.A will allow
consumers to become familiar with and hopefully understand the
importance of OBD technology. This data gathering period will also
allow EPA and the states time to gather information on what percentages
of vehicles will fail the OBD test but pass the tailpipe emission test.
D. State Requirement for Exhaust and Evaporative Tests
1. Summary of Proposal
In the proposal, EPA stated that all 1996 and later model year
vehicles in I/M programs (basic and enhanced) would have to undergo the
OBD test as well as the applicable exhaust and evaporative test.
2. Summary of Comments
Two commenters suggested that EPA allow states to not require the
exhaust and evaporative tests for vehicles that pass the OBD test. The
commenters felt that these exceptions were warranted because of the
perceived accuracy of OBD systems and because it would make I/M tests
more convenient for consumers by decreasing the overall test time for
those vehicles that pass the OBD test.
3. Response to Comments
At this time, EPA does not believe that there is sufficient data on
the efficacy of OBD systems to warrant the omission of the exhaust and
emission tests for all vehicles that pass the OBD test. However, EPA
does believe that for vehicles two years old and newer, it is not
necessary to perform exhaust and evaporative tests since failure rates
are almost zero for these vehicles. Thus, if a two-year-old or newer
vehicle is subject to a state's I/M program and passes the OBD test,
EPA recommends that the state not require the exhaust and evaporative
test for this vehicle. This will have no impact on emission reduction
credits for the program. EPA agrees with commenters that not conducting
the exhaust and evaporative tests on two year-old and newer vehicles
that pass the OBD test will increase consumer awareness and confidence
in OBD systems, while decreasing test times and wait times overall.
This advice is consistent with EPA's past advice that states not test
vehicles until they are two or three years old (see 57 FR 52950,
52957). EPA believes this is advisable because virtually all of these
vehicles pass the emission and evaporative tests.
EPA is reluctant to recommend not giving evaporative and tailpipe
emission tests to vehicles that pass the OBD test to vehicles beyond
two years old without additional information about OBD effectiveness at
malfunction identification. EPA has consistently stated the hope that
OBD checks will eventually become a substitute for more traditional I/M
tests in the future. The two-year OBD data collection period discussed
in section V.A will give states and EPA time to collect data on the
effectiveness of OBD at identifying some emission problems. Because OBD
is only required in 1996 and later model year vehicles, EPA believes
that this timeframe, while adequate to solve any problems with the OBD
test, will not be sufficient to assess the effectiveness of the OBD
system in identifying the wide range of failures that occur as vehicles
age. As sufficient aging of the fleet occurs, EPA will reevaluate the
adequacy of OBD as a substitute for more traditional I/M test
procedures.
In addition, due to the new flexibility allowed states in the types
of I/M programs they implement, there will be a variety of different
testing programs emerging. EPA needs time to evaluate the different
exhaust and evaporative tests states will use to determine if each type
of test is more or less effective than an OBD test. Thus, in the
future, whether or not passage of the OBD test should influence whether
a state chooses to conduct an exhaust and evaporative test may depend
on the type of exhaust and evaporative tests that are conducted.
For these reasons, EPA is not comfortable recommending that states
omit the traditional exhaust and evaporative test requirements for
vehicles over two-years-old that pass the OBD test.
E. Test Report
1. Summary of Proposal
In the notice of proposed rulemaking, EPA proposed that any fault
codes that were retrieved during the OBD test be printed on the I/M
test report.
2. Summary of Comments
Commenters suggested that EPA adopt the SAE J2012 nomenclature as
the standardized test report language that states would be required to
use. Commenters also recommended that fault code information only
appear on the test report if the vehicle fails the exhaust or
evaporative portions of the I/M test. These were the same commenters
that recommended that vehicles should only fail I/M if they fail the
exhaust or evaporative test. Lastly, commenters suggested that a
disclaimer be included on the test report which warned owners of failed
vehicles that multiple or unrelated fault codes could be caused by
temporary emission problems which on subsequent evaluations could prove
to be fine.
3. Response to Comments
EPA agrees with commenters that standardized test report language
would make it easier for the repair industry to diagnose the reason for
the fault. For this reason, today's action adopts the SAE J2012
nomenclature as the standard test report language. Moreover, to
decrease consumer confusion, today's action only requires printing
fault codes on the test report when the vehicle fails the OBD test. For
the test-only period of 1998 and 1999, OBD test information will appear
on the test report whenever the vehicle ``fails'' the OBD test, even
though failure of the OBD test will not cause failure of the I/M.test.
EPA is requiring this because it is important that consumers be aware
that their vehicle may be experiencing a problem despite the tailpipe
emission test results. While EPA did not adopt the exact disclaimer
language suggested by commenters, it is requiring similar language be
printed on the test report in the event of failure of the OBD test (see
40 CFR 85.2223(c)). EPA believes this language provides the type of
information suggested by the commenters. EPA also believes that this
standardized language will help educate consumers on the operation of
OBD and the fact that professional diagnosis is necessary to determine
the source of the failure.
F. Unconfirmed Codes
1. Summary of Proposal
The proposal did not specify which modes should be examined during
the OBD test.
2. Summary of Comments
Commenters suggested specific language which they felt should be
added to the final rule to clarify that fault codes stored in modes #5,
#6, and
[[Page 40943]]
#7 (which store recent test results for various monitors), in
accordance with SAE J1979, are not confirmed and therefore should not
be considered for OBD test purposes.
3. Response to comments
EPA did not intend fault codes stored in pending or unconfirmed
modes (i.e., the codes stored on modes #5, #6, and #7) to be a basis
for an OBD test failure. EPA also did not intend to retrieve
information from modes #2 and #4 which do not store information which
is relevant to I/M testing. To clarify this point, this action
explicitly requires that after retrieving the number of stored codes
from mode #1, only fault codes in mode #3 (which contains the actual
stored trouble codes) be considered for OBD test purposes. Limiting
code retrieval to mode #3 ensures retrieval of those trouble codes
verified as accurate by the OBD system. Because of this change, EPA
believes that the exact language proposed by the commenters is no
longer necessary and did not include it in this action.
G. Bi-Directional Communication
1. Summary of Proposal
The proposal required that OBD test equipment be capable of bi-
directional communication to allow for non-intrusive purge and pressure
tests.
2. Summary of Comments
EPA received comments that the bi-directional communication
requirement be limited to Mode #8 for activation of the canister vent
solenoid. This would allow the I/M lane personnel to close the
evaporative purge solenoid in order to allow pressurization of the
evaporative system via the evaporative service port or other means. The
commenter noted that other bi-direction communication with the OBD
system is for service, and not I/M inspection, purposes.
3. Response to Comments
Because EPA is not sure whether all OBD scan tools will include
built-in safeguards, EPA is limiting bi-directional communication to
Mode #8 for the evaporative system solenoid in order to prevent I/M
inspectors from sending unintentional commands to the vehicle.
Providing for this one area of bi-directional communication will permit
the inspector to close the evaporative system prior to the I/M pressure
test being conducted. By limiting bi-directional communication, today's
action precludes the possibility that the inspector will accidentally
activate an engine control actuator and cause a problem during the
test.
H. Monitoring Engine Speed
1. Summary of Issue
Although monitoring engine speed (RPM) was not directly addressed
by the OBD proposal, commenters felt that this action would be an
appropriate place to require the use of OBD connectors on 1996 and
newer model years to access the RPM signal during I/M testing.
Currently, I/M testing stations use a variety of external measurement
techniques to determine RPM. Commenters noted that whenever possible an
OBD connector should be used for RPM monitoring because the OBD
connector is far more consistent and accurate than external RPM
monitoring devices.
2. EPA Response
EPA agrees with commenters that because the OBD connector is the
most accurate method of measuring RPM it should be used to measure RPM
in all possible instances. Therefore, this action revises the test
procedures in part 51, subpart S, appendix B and part 85, subpart W to
require the use of the standardized OBD connector to access the RPM
signal whenever RPM monitoring is required on 1996 and newer model year
vehicles. While OBD is the preferred method of measuring RPM (for
vehicles with OBD systems), alternative measures can be used in the
event the OBD system fails to provide the RPM information. EPA does not
believe further notice and comment is necessary on this issue because
this revision rose out of the issues addressed in the proposal, it was
supported in the comments, and because EPA is allowing alternative
measures of RPM in the event an OBD reading is unavailable.
After the close of the comment period a stakeholder contacted EPA
to inquire whether the OBD system's failure to provide an RPM signal
would result in the failure of the OBD test. The regulations contained
in today's action do not list RPM failure as a basis for OBD test
failure because RPM information is used for traditional tailpipe
emission purposes and is not a necessary part of the OBD test.
I. Test Order
1. Summary of Proposal
EPA requested comments in the proposal regarding whether an OBD
check could be conducted during the I/M exhaust test.
2. Summary of Comments
Commenters noted that they did not foresee any adverse effects from
conducting the OBD and exhaust tests simultaneously but that only field
experience would tell for certain.
3. Response to Comments
As there are no foreseen adverse consequences of conducting the
exhaust and OBD test simultaneously, this action leaves it up to the
state to determine whether they want to conduct the tests separately or
simultaneously.
J. Key On-Engine Running vs. Key On-Engine Off
1. Summary of Proposal
The proposed action would have allowed the OBD test to be performed
with the vehicle in either the key on-engine running (KOER) or the key
on-engine off (KOEO) position.
2. Summary of Comments
Commenters felt that the OBD test should only be conducted in the
KOER mode to avoid possible problems from the initial OBD self-check on
engine start.
3. Response to Comments
EPA agrees with commenters that in an effort to avoid issues
regarding the OBD self-check on engine start, the OBD test should only
perform when the key is in the KOER position. Therefore, this action
requires that the vehicle be in the KOER position during the OBD test.
K. Warranty Coverage for OBD System
1. Summary of Issue
One commenter noted that the proposal failed to specify how the OBD
systems are to be classified for warranty purposes.
2. EPA Response
The OBD test is a Clean Air Act Section 207(b) warranty short test.
The short test performance warranty covers vehicles only up to the 2
year, 24,000 mile emission performance warranty period described in 40
CFR 85.2103, except that nonconformities that result from the failure
of the OBD computer or from the failure of certain emission components
that are monitored by the OBD system, i.e., the catalyst or the ECU,
are covered during the period of the 8 year, 80,000 mile defect
warranty.
L. Fuel Economy Monitor
1. Summary of Issue
One commenter believed that EPA should require automobile
manufacturers to install a fuel economy monitor in addition to the
malfunction indicator light (MIL) on the dashboard of all vehicles.
This monitor would tell the driver how many miles to the gallon
[[Page 40944]]
the vehicle is currently obtaining. The commenter felt that this fuel
efficiency monitor would provide motorists with an immediate incentive
to repair emission related malfunctions (when the MIL light
illuminated) because they could see how it was affecting their fuel
economy.
2. EPA Response
While EPA appreciated the ingenuity of this proposal, this is not
something that can be addressed in this action. In addition, it is not
clear that EPA has the authority to require such an indicator.
M. OBD Emission Credits
1. Summary of Proposal
In the proposal, EPA explained that states would not receive
additional emission reduction credits relative to the I/M performance
standard for implementing OBD inspections because the OBD test was
already included as an element of the performance standard and a
specifically required component of the program in the original I/M rule
(57 FR 52950, November 5, 1992). Nonetheless, the proposal noted that
while OBD inspections do not generate additional emission reduction
credits, they may actually generate benefits. EPA estimated the
magnitude of these benefits in the original OBD rule (58 FR 9482-9483).
Benefits were not expected in the early years of OBD programs because
fewer vehicles would have OBD systems and such vehicles would be newer
``clean'' vehicles. In the proposal, EPA noted that it would be
assessing the contribution of OBD inspections once OBD testing begins
and will take such assessment into account in later modeling.
2. Summary of Comments
One comment addressed this issue. This commenter felt that EPA
should give additional emission reduction credits for OBD inspections
beginning in 1998. The commenter urged EPA to conduct research on the
effectiveness of OBD at identifying ``dirty'' cars that emission tests
do not identify so that EPA can develop credits in the future.
3. Response to Comments
At this time, EPA does not believe that additional credits are
warranted for OBD inspections for the reasons given in the proposal.
However, EPA does plan to evaluate the data it receives from states to
quantify any additional emission reduction benefits from OBD.
V. Economic Costs and Benefits
Code inspections will not add significantly to the time or cost for
an inspection due to the rapid connection and data transfer
capabilities which have been developed by industry and are required by
EPA's OBD rule. Each I/M lane will need to purchase the equipment
necessary for OBD interrogation. However, this equipment is relatively
inexpensive and these costs may be distributed over thousands of tests.
For enhanced I/M programs, the capital and maintenance costs associated
with conducting OBD tests have been calculated to be $0.05 per test.
The OBD cost for basic centralized I/M programs is only $0.025 per test
due to the higher volume of cars that can be inspected in these lanes.
The total cost of incorporating OBD inspections into enhanced and basic
centralized programs nationwide has been calculated to be about $1.7
million.
Assuming that 1200 tests will be conducted with every scan tool,
the incorporation of OBD inspections into test-and-repair programs has
been calculated to be about $2 million. Thus, the total cost of
incorporating OBD inspections into all I/M programs is $3.7 million.
In addition to improving the identification of high emitting
vehicles in an I/M program, OBD systems will also be of great utility
in the repair of vehicles which fail the inspection, including the
exhaust emission test. OBD will speed identification of the responsible
component, and help avoid trial and error replacement of components.
VI. Administrative Requirements
A. Administrative Designation
Under Executive Order 12866, 58 FR 51,735 (October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review. Any impacts associated with these
requirements do not exceed the impacts that were dealt with in the I/M
requirements published in the Federal Register on November 5, 1992 (57
FR 52950). This regulation is not expected to be controversial. This
regulation does not raise any of the issues associated with
``significant regulatory actions.'' It does not create an annual effect
on the economy of $100 million or more or otherwise adversely affect
the economy or the environment. The total cost of incorporating OBD
inspections into all I/M programs nationwide has been calculated to be
less than $4 million. It is not inconsistent with nor does it interfere
with actions by other agencies. It does not alter budgetary impacts of
entitlements or other programs, and it does not raise any new or
unusual legal or policy issues. Accordingly, it is appropriate to
consider this a ``non-significant'' or ``minor'' rule action and it
should be exempt from OMB review.
B. Reporting and Recordkeeping Requirement
This rule only marginally increases the existing burden through the
addition of requirements to electronically capture and store one
additional data element (existing diagnostic trouble codes) and to
provide EPA with 13 additional summary statistics based on this
information. The existing collection expired on February 28, 1996 (OMB
No. 2060-0252). This additional burden will not be imposed until after
the Information Collection Request has been renewed. When the current
Information Collection Request is renewed, any modifications necessary
to incorporate OBD inspection data collection will be made. These few
additional elements will not add a measurable amount to the existing
estimated burden of 85 hours.
C. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Administrator certifies that this action will not
have a significant economic impact on a substantial number of small
entities and, therefore, is not subject to the requirement of a
Regulatory Flexibility. A small entity may include a small government
entity or jurisdiction. A small government jurisdiction is defined as
``governments of cities, counties, towns, townships, villages, school
districts, or special
[[Page 40945]]
districts, with a population of less than 50,000.'' This certification
is based on the fact that the I/M areas impacted by this rulemaking do
not meet the definition of a small government jurisdiction, that is,
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000.''
D. Unfunded Mandates Act
Under section 202 of the Unfunded Mandates Reform Act of 1995
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must
prepare a budgetary impact statement to accompany any proposed or final
rule where the estimated costs to state, local or tribal governments,
or to the private sector, will be $100 million or more. Under section
205, EPA must select the most cost-effective and least burdensome
alternative that achieves the objective of the rule and is consistent
with statutory requirements. Section 203 requires EPA to establish a
plan for informing and advising any small governments that may be
significantly impacted by the rule.
To the extent that the rules being promulgated by this action would
impose any mandate as defined in section 101 of the Unfunded Mandates
Act upon the state, local, or tribal governments, or the private
sector, as explained above, this rule is not estimated to impose costs
in excess of $100 million. Therefore, EPA has not prepared a statement
with respect to budgetary impacts.
E. Small Business Regulatory Enforcement Fairness Act
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Motor vehicle pollution, Nitrogen oxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
40 CFR Part 85
Confidential business information, Imports, Incorporation by
reference, Labeling, Motor vehicle pollution, Reporting and
recordkeeping requirements, Research, Warranties.
Dated: July 22, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, parts 51 and 85 of chapter
I, title 40 of the Code of Federal Regulations are amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 51.351 is amended by adding text to paragraph (c) to
read as follows:
Sec. 51.351 Enhanced I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). The performance standard shall
include inspection of all 1996 and newer light-duty vehicles and light-
duty trucks equipped with certified on-board diagnostic systems
pursuant to 40 CFR 86.094-17, and repair of malfunctions or system
deterioration identified by or affecting OBD systems as specified in
Sec. 51.357.
* * * * *
3. Section 51.352 is amended by revising paragraph (c) to read as
follows:
Sec. 51.352 Basic I/M performance standard.
* * * * *
(c) On-board diagnostics (OBD). The performance standard shall
include inspection of all 1996 and newer light-duty vehicles and light-
duty trucks equipped with certified OBD systems pursuant to 40 CFR
86.094-17, and repair of malfunctions or system deterioration
identified by or affecting OBD systems as specified in Sec. 51.357.
* * * * *
4. Section 51.357 is amended by adding text to paragraphs (a)(12)
and (b)(4) to read as follows:
Sec. 51.357 Test procedures and standards.
* * * * *
(a) * * *
(12) On-board diagnostic checks. Inspection of the on-board
diagnostic system shall be according to the procedure described in 40
CFR 85.2222, at a minimum.
* * * * *
(b) * * *
(4) On-board diagnostics test standards. Vehicles shall fail the
on-board diagnostic test if they fail to meet the requirements of 40
CFR 85.2207, at a minimum. Failure of the on-board diagnostic test need
not result in failure of the vehicle inspection/maintenance test until
January 1, 2000.
* * * * *
5. Section 51.358 is amended by adding text to paragraph (b)(4) to
read as follows:
Sec. 51.358 Test equipment.
* * * * *
(b) * * *
(4) On-board diagnostic test equipment requirements. The test
equipment used to perform on-board diagnostic inspections shall
function as specified in 40 CFR 85.2231.
* * * * *
6. Section 51.365 is amended by adding paragraph (a)(25); by
removing the word ``and'' at the end of paragraph (a)(23); and by
removing the period at the end of paragraph (a)(24) and adding in its
place ``; and'' to read as follows:
Sec. 51.365 Data collection.
* * * * *
(a) * * *
(25) Results of the on-board diagnostic check expressed as a pass
or fail along with the diagnostic trouble codes revealed.
* * * * *
7. Section 51.366 is amended by adding paragraph (a)(2)(xi) through
(a)(2)(xxiii); by removing the word ``and'' at the end of paragraph
(a)(2)(ix) to read as follows:
Sec. 51.366 Data analysis and reporting.
* * * * *
(a) * * *
(2) * * *
(xi) Passing the on-board diagnostic check and failing the I/M
emission test;
(xii) Failing the on-board diagnostic check and passing the I/M
emission test;
(xiii) Passing both the on-board diagnostic check and I/M emission
test;
(xiv) Failing both the on-board diagnostic check and I/M emission
test;
(xv) Passing the on-board diagnostic check and failing the I/M
evaporative test;
(xvi) Failing the on-board diagnostic check and passing the I/M
evaporative test;
(xvii) Passing both the on-board diagnostic check and I/M
evaporative test;
(xviii) Failing both the on-board diagnostic check and I/M
evaporative test;
(xix) MIL is commanded on and no codes are stored;
[[Page 40946]]
(xx) MIL is not commanded on and codes are stored;
(xxi) MIL is commanded on and codes are stored;
(xxii) MIL is not commanded on and codes are not stored;
(xxiii) Readiness status indicates that the evaluation is not
complete for any module supported by on-board diagnostic systems;
* * * * *
8. Section 51.372 is amended by revising paragraph (b)(3) to read
as follows:
Sec. 51. 372 State implementation plan submissions.
* * * * *
(b) * * *
(3) States shall revise SIPS as EPA develops further regulations.
Revisions to incorporate on-board diagnostic checks in the I/M program
shall be submitted by August 6, 1996.
* * * * *
9. Section 51.373 is amended by adding paragraph (g) to read as
follows:
Sec. 51.373 Implementation deadlines.
* * * * *
(g) Areas qualifying for the Ozone Transport Region (OTR) low-
enhanced performance standard shall implement on-board diagnostic
checks by January 1, 1999. In all other areas, on-board diagnostic
checks shall be implemented as part of the I/M program by January 1,
1998.
10. Appendix B to subpart S of part 51 is amended by revising
paragraphs (I)(b)(2)(ii), (II)(b)(2)(ii), (III)(b)(2)(iv),
(IV)(b)(2)(ii), (V)(b)(2)(iv) and (VI)(b)(2)(ii) to read as follows:
APPENDIX B TO SUBPART S--TEST PROCEDURES
(I) * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
(II) * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
(III) * * *
(b) * * *
(2) * * *
(iv) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
(IV) * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
(V) * * *
(b) * * *
(2) * * *
(iv) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
(VI) * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor rpm. In the event that an OBD data
link connector is not available or that an rpm signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
PART 85--CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES AND MOTOR
VEHICLE ENGINES
11. The authority citation for part 85 is revised to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart W--[Amended]
12. A new Sec. 85.2207 is added to read as follows:
Sec. 85.2207 On-board diagnostics test standards.
(a) Beginning January 1, 2000, failure of the on-board diagnostic
test shall be a basis for failure of the I/M test. Prior to January 1,
2000 failure of the on-board diagnostic test may be a basis for failure
of the I/M test.
(b) A vehicle shall fail the on-board diagnostics test if it is a
1996 or newer vehicle and the vehicle connector is missing, has been
tampered with, or is otherwise inoperable.
(c) A vehicle shall fail the on-board diagnostics test if the
malfunction indicator light is commanded to be illuminated and it is
not visually illuminated according to visual inspection.
(d) A vehicle shall fail the on-board diagnostics test if the
malfunction indicator light is commanded to be illuminated and any of
the following OBD codes, as defined by SAE J2012 are present (where X
refers to any digit). The procedure shall be done in accordance with
SAE J2012 Diagnostic Trouble Code Definitions, (MAR92). This
incorporation of reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C.552(a) and 1 CFR part 51. Copies of
SAE J2012 may be obtained from the Society of Automotive Engineers,
Inc., 400 Commonwealth Drive, Warrendale, PA 15096-0001. Copies may be
inspected at the EPA Docket No. A-94-21 at EPA's Air Docket, (LE-131)
Room 1500 M, 1st Floor, Waterside Mall, 401 M Street SW, Washington,
DC, or at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
(1) Any PX1XX Fuel and Air Metering codes.
(2) Any PX2XX Fuel and Air Metering codes.
(3) Any PX3XX Ignition System or Misfire codes.
(4) Any PX4XX Auxiliary Emission Controls codes.
(5) P0500 Vehicle Speed Sensor Malfunction.
(6) P0501 Vehicle Speed Sensor Range/Malfunction.
(7) P0502 Vehicle Speed Sensor Circuit Low Input.
[[Page 40947]]
(8) P0503 Vehicle Speed Sensor Intermittent/Erratic/High.
(9) P0505 Idle Control System Malfunction.
(10) P0506 Idle Control System RPM Lower Than Expected.
(11) P0507 Idle Control System RPM Higher Than Expected.
(12) P0510 Closed Throttle Position Switch Malfunction.
(13) P0550 Power Steering Pressure Sensor Circuit Malfunction.
(14) P0551 Power Steering Pressure Sensor Circuit Malfunction.
(15) P0552 Power Steering Pressure Sensor Circuit Low Input.
(16) P0553 Power Steering Pressure Sensor Circuit Intermittent.
(17) P0554 Power Steering Pressure Sensor Circuit Intermittent.
(18) P0560 System Voltage Malfunction.
(19) P0561 System Voltage Unstable.
(20) P0562 System Voltage Low.
(21) P0563 System Voltage High.
(22) Any PX6XX Computer and Output Circuits codes.
(23) P0703 Brake Switch Input Malfunction.
(24) P0705 Transmission Range Sensor Circuit Malfunction (PRNDL
Input).
(25) P0706 Transmission Range Sensor Circuit Range/Performance.
(26) P0707 Transmission Range Sensor Circuit Low Input.
(27) P0708 Transmission Range Sensor Circuit High Input.
(28) P0709 Transmission Range Sensor Circuit Intermittent.
(29) P0719 Torque Converter/Brake Switch ``B'' Circuit Low.
(30) P0720 Output Speed Sensor Circuit Malfunction.
(31) P0721 Output Speed Sensor Circuit Range/Performance.
(32) P0722 Output Speed Sensor Circuit No Signal.
(33) P0723 Output Speed Sensor Circuit Intermittent.
(34) P0724 Torque Converter/Brake Switch ``B'' Circuit High.
(35) P0725 Engine Speed Input Circuit Malfunction.
(36) P0726 Engine Speed Input Circuit Range/Performance.
(37) P0727 Engine Speed Input Circuit No Signal.
(38) P0728 Engine Speed Input Circuit Intermittent.
(39) P0740 Torque Converter Clutch System Malfunction.
(40) P0741 Torque Converter System Performance or Stuck Off.
(41) P0742 Torque Converter Clutch System Stuck On.
(42) P0743 Torque Converter Clutch System Electrical.
(43) P0744 Torque Converter Clutch Circuit Intermittent.
(e) The list of codes shall be updated with future revisions of
this section, in conjunction with changes to 40 CFR 86.094-17(h)(3).
13. Section 85.2213 is amended by revising paragraph (b)(2)(ii) to
read as follows:
Sec. 85.2213 Idle test--EPA 91.
* * * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
14. Section 85.2215 is amended by revising paragraph (b)(2)(ii) to
read as follows:
Sec. 85.2215 Two speed idle test--EPA 91.
* * * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
15. Section 85.2218 is amended by revising paragraph (b)(2)(ii) to
read as follows:
Sec. 85.2218 Preconditioned idle test--EPA 91.
* * * * *
(b) * * *.
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
16. Section 85.2220 is amended by revising paragraph (b)(2)(ii) to
read as follows:
Sec. 85.2220 Preconditioned two speed idle test--EPA 91.
* * * * *
(b) * * *
(2) * * *
(ii) For all pre-1996 model year vehicles, a tachometer shall be
attached to the vehicle in accordance with the analyzer manufacturer's
instructions. For 1996 and newer model year vehicles the OBD data link
connector will be used to monitor RPM. In the event that an OBD data
link connector is not available or that an RPM signal is not available
over the data link connector, a tachometer shall be used instead.
* * * * *
17. A new Sec. 85.2222 is added to read as follows:
Sec. 85.2222 On-board diagnostic test procedures.
The test sequence for the inspection of on-board diagnostic systems
on 1996 and newer light-duty vehicles and light-duty trucks shall
consist of the following steps:
(a) The on-board diagnostic inspection shall be conducted with key-
on/engine-running (KOER).
(b) The inspector shall locate the vehicle connector and plug the
test system into the connector.
(c) The test system shall send a Mode $01, PID $01 request in
accordance with SAE J1979 to determine the evaluation status of the
vehicle's on-board diagnostic system. The test system shall determine
what monitors are supported by the on-board diagnostic system, and the
readiness evaluation for applicable monitors in accordance with SAE
J1979. The procedure shall be done in accordance with SAE J1979 ``E/E
Diagnostic Test Modes,'' (DEC91). This incorporation of reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of SAE J1979 may be obtained
from the Society of Automotive Engineers, Inc., 400 Commonwealth Drive,
Warrendale, PA 15096-0001. Copies may be inspected at the EPA Docket
No. A-94-21 at EPA's Air Docket, (LE-131) Room 1500 M, 1st Floor,
Waterside Mall, 401 M Street SW, Washington, DC, or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC. Beginning January 1, 2000, if the readiness evaluation
indicates that any on-board tests are not complete the customer shall
be instructed to return after the vehicle has been run under conditions
that allow completion of all applicable on-board tests. If the
readiness evaluation again indicates that any on-board test is not
complete the vehicle shall be failed.
[[Page 40948]]
(d) The test system shall evaluate the malfunction indicator light
status bit and record status information in the vehicle test record.
(1) If the malfunction indicator status bit indicates that the
malfunction indicator light has been commanded to be illuminated the
test system shall send a Mode $03 request to determine the stored
emission related power train trouble codes. The system shall repeat
this cycle until the number of codes reported equals the number
expected based on the Mode 1 response. If any of the codes listed in
Sec. 85.2207(d) are present they shall be recorded in the vehicle test
record and the vehicle shall fail the on-board diagnostic inspection.
(2) If the malfunction indicator light bit is not commanded to be
illuminated the vehicle shall pass the on-board diagnostic inspection,
even if codes listed at Sec. 85.2207(d) are present.
(3) If the malfunction indicator light bit is commanded to be
illuminated, the inspector shall visually inspect the malfunction
indicator light to determine if it is illuminated. If the malfunction
indicator light is commanded to be illuminated but is not, the vehicle
shall fail the on-board diagnostic inspection.
18. A new Sec. 85.2223 is added to read as follows:
Sec. 85.2223 On-board diagnostic test report.
(a) Motorists whose vehicles fail the on-board diagnostic test
described in Sec. 85.2222 shall be provided with the on-board
diagnostic test results, including the codes retrieved (as listed in
paragraph (b) of this section), the status of the MIL illumination
command, and the customer alert statement (as stated in paragraph (c)
of this section).
(b) If any of the following codes are retrieved the corresponding
component shall be listed on the test report in the following way:
------------------------------------------------------------------------
Code Component
------------------------------------------------------------------------
PX1XX Fuel and Air Metering.
PX2XX Fuel and Air Metering.
PX3XX Ignition System or Misfire.
PX4XX Auxiliary Emission Controls.
P0500 Vehicle Speed Sensor.
P0501 Vehicle Speed Sensor.
P0502 Vehicle Speed Sensor.
P0503 Vehicle Speed Sensor.
P0505 Idle Control System.
P0506 Idle Control System.
P0507 Idle Control System.
P0510 Closed Throttle Position Switch.
P0550 Power Steering Pressure Sensor
Circuit.
P0551 Power Steering Pressure Sensor
Circuit.
P0552 Power Steering Pressure Sensor
Circuit.
P0553 Power Steering Pressure Sensor
Circuit.
P0554 Power Steering Pressure Sensor
Circuit.
P0560 System Voltage.
P0561 System Voltage.
P0562 System Voltage.
P0563 System Voltage.
PX6XX Computer and Output Circuits.
P0703 Brake Switch.
P0705 Transmission Range Sensor Circuit.
P0706 Transmission Range Sensor Circuit.
P0707 Transmission Range Sensor Circuit.
P0708 Transmission Range Sensor Circuit.
P0709 Transmission Range Sensor Circuit.
P0719 Torque Converter/Brake Switch.
P0720 Output Speed Sensor.
P0721 Output Speed Sensor.
P0722 Output Speed Sensor.
P0723 Output Speed Sensor.
P0724 Torque Converter/Brake Switch.
P0725 Engine Speed Input Circuit.
P0726 Engine Speed Input Circuit.
P0727 Engine Speed Input Circuit.
P0728 Engine Speed Input Circuit.
P0740 Torque Converter Clutch System.
P0741 Torque Converter System.
P0742 Torque Converter Clutch System.
P0743 Torque Converter Clutch System.
P0744 Torque Converter Clutch System.
------------------------------------------------------------------------
(c) In addition to any codes which were retrieved, the test report
shall include the following language:
Your vehicle's computerized self-diagnostic system (OBD)
registered the fault(s) listed below. This fault(s) is probably an
indication of a malfunction of an emission component. However,
multiple and/or seemingly unrelated faults may be an indication of
an emission-related problem that occurred previously but upon
further evaluation by the OBD system was determined to be only
temporary. Therefore, proper diagnosis by a qualified technician is
required to positively identify the source of any emission-related
problem.
19. A new Sec. 85.2231 is added to read as follows:
Sec. 85.2231 On-board diagnostic test equipment requirements.
(a) The test system interface to the vehicle shall include a plug
that conforms to SAE J1962 ``Diagnostic Connector.'' The procedure
shall be done in accordance with SAE J1962 ``Diagnostic Connector''
(JUN92). This incorporation of reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552 (a) and 1 CFR
part 51. Copies of SAE J1962 may be obtained from the Society of
Automotive Engineers, Inc., 400 Commonwealth Drive, Warrendale, PA
15096-0001. Copies may be inspected at the EPA Docket No. A-94-21 at
EPA's Air Docket, (LE-131) Room 1500 M, 1st Floor, Waterside Mall, 401
M Street SW., Washington, DC, or at the Office of the Federal Register,
800 North Capitol Street, NW., suite 700, Washington, DC.
(b) The test system shall be capable of communicating via the J1962
connector with a vehicle certified as complying with the on-board
diagnostic requirements of 40 CFR 86.094-17.
(c) The test system shall be capable of checking for the monitors
supported by the on-board diagnostic system and the evaluation status
of supported monitors (test complete/test not complete) in Mode $01 PID
$01, as well as be able to request the diagnostic trouble codes, as
specified in SAE J1979. In addition, the system shall have the
capability to include bi-directional communication for control of the
evaporative canister vent solenoid. SAE J1979 is incorporated by
reference and approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of all the
SAE documents cited above may be obtained from the Society of
Automotive Engineers, Inc., 400 Commonwealth Drive, Warrendale, PA
15096-0001. Copies may be inspected at the EPA Docket No. A-94-21 at
EPA's Air Docket, (LE-131) Room 1500 M, 1st Floor, Waterside Mall, 401
M Street SW., Washington, DC, or at the Office of the Federal Register,
800 North Capitol Street, NW., suite 700, Washington, DC.
(d) The test system shall automatically make a pass, fail, or
reject decision, as specified in the test procedure in Sec. 85.2222.
[FR Doc. 96-19409 Filed 8-5-96; 8:45 am]
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