issue-1996-05-16•Federal Register proposed rules — 1996-05-16
Federal Register proposed rules — 1996-05-16
issue-1996-05-16Federal Register proposed rules — 1996-05-16Proposed Regulation
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. 96-12358 Approval and Promulgation of Implementation Plan; Ohio
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Page 24737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12358]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH90-1-7255b; FRL-5500-6]
Approval and Promulgation of Implementation Plan; Ohio
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA)
proposes to conditionally approve a revision to the Ohio State
Implementation Plan (SIP) to meet the requirements of the USEPA
transportation conformity rule. The Transportation conformity SIP
revisions enable the State of Ohio to implement and enforce the Federal
transportation conformity requirements at the State or local level.
DATES: Comments on this proposed action must be received by June 17,
1996.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Regulation Development Branch (AR-18J),
USEPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-
3590.
FOR FURTHER INFORMATION CONTACT: Patricia Morris at (312) 353-8656.
SUPPLEMENTARY INFORMATION: For additional information, see the Direct
Final notice which is located in the Rules section of this Federal
Register. Copies of the request are available for inspection at the
following address: (Please telephone Patricia Morris at (312) 353-8656
before visiting the Region 5 office.) EPA, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-12358 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12356 Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Approval of Source-Specific VOC and NOINFX RACT and Synthetic Minor Permit Conditions, and 1990 Baseyear Emissions for One Source
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Page 24737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12356]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[PA 078-4019b; FRL-5467-7]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Approval of Source-Specific VOC and NOX RACT and
Synthetic Minor Permit Conditions, and 1990 Baseyear Emissions for One
Source
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to approve the State Implementation Plan (SIP)
revision submitted by the Commonwealth of Pennsylvania for the purpose
of establishing VOC and NOX RACT for eleven sources, federally
enforceable conditions on three sources to make them synthetic minor
sources, and approving the 1990 emissions for one source in the
Pittsburgh 1990 baseyear emission inventory. This action affects a
total of 14 sources. In the Final Rules section of this Federal
Register, EPA is approving the State's SIP revision as a direct final
rule without prior proposal because the Agency views this as a
noncontroversial SIP revision and anticipates no adverse comments. A
detailed rationale for the approval is set forth in the direct final
rule and the accompanying technical support document. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting on this
action should do so at this time. If adverse comments are received that
do not pertain to all documents subject to this rulemaking action,
those documents not affected by the adverse comments will be finalized
in the manner described here. Only those documents that receive adverse
comments will be withdrawn in the manner described here.
DATES: Comments must be received in writing by June 17, 1996.
ADDRESSES: Written comments on this action should be addressed to
Marcia L. Spink, Associate Director, Air Programs, Mailcode 3AT00, U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air, Radiation, and Toxics Division, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107; and the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Cynthia H. Stahl, (215) 597-9337, at
the EPA Region III office or via e-mail at
[email protected]. While information may be requested via
e-mail, comments must be submitted in writing to the above Region III
address.
SUPPLEMENTARY INFORMATION: See the information, pertaining to this
action (VOC and NOX RACT approval, synthetic minor approval, and
approval of 1990 emissions for one source in the Pittsburgh 1990
baseyear emissions inventory) affecting 14 sources in Pennsylvania,
provided in the Direct Final action of the same title which is located
in the Rules and Regulations Section of this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 19, 1996.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 96-12356 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12354 Approval and Promulgation of State Implementation Plans: Oregon
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24737-24738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12354]
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[[Page 24738]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR47-11-7052b; FRL-5504-9]
Approval and Promulgation of State Implementation Plans: Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Oregon for the establishment
of transportation conformity rules to ensure that Federal actions
conform to the appropriate SIP. The SIP revision was submitted by the
State to satisfy certain Federal Clean Air Act requirements. In the
Final Rules Section of this Federal Register, the EPA is approving the
State's SIP revision as a direct final rule without prior proposal
because the Agency views this as a noncontroversial revision amendment
and anticipates no adverse comments. A detailed rationale for the
approval is set forth in the direct final rule. If no adverse comments
are received in response to this proposed rule, no further activity is
contemplated in relation to this rule. If the EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. The EPA will not institute a second comment period
on this action.
DATES: Comments on this proposed rule must be received in writing by
June 17, 1996.
ADDRESSES: Written comments should be addressed to Montel Livingston,
Environmental Protection Specialist (OAQ-107), Office of Air Quality,
at the EPA Regional Office listed below. Copies of the documents
relevant to this proposed rule are available for public inspection
during normal business hours at the following locations. The interested
persons wanting to examine these documents should make an appointment
with the appropriate office at least 24 hours before the visiting day.
The addresses are: EPA, Region 10, Office of Air Quality (OAQ-107),
1200 Sixth Avenue, Seattle, WA 98101; State of Oregon, Department of
Environmental Quality, 811 S.W. 6th Avenue, Portland, OR 97204.
FOR FURTHER INFORMATION CONTACT: Wayne Elson, EPA, Region 10, Office of
Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
1463.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final action which is located in the Rules Section of this Federal
Register.
Dated: May 2, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-12354 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12265 Meeting on Proposed Changes to the Fitness-for-Duty Rule
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Page 24731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12265]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 /
Proposed Rules
[[Page 24731]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 26
RIN 3150-AF12
Meeting on Proposed Changes to the Fitness-for-Duty Rule
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of meeting.
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SUMMARY: The Nuclear Regulatory Commission (NRC) will conduct a meeting
to discuss the proposed changes to the fitness-for-duty rule, 10 CFR
Part 26, which were published in the Federal Register on May 9, 1996
(61 FR 21105). The purpose of the meeting is to ensure potential
commenters understand the proposed changes and can make informed
comments. The discussions will be transcribed and verbal comments may
be made during the meeting. The comment period closes on August 7,
1996.
DATES: The meeting will be held on June 12, 1996, from 8:00 a.m. to
5:00 p.m.
ADDRESSES: Plaza Ballroom I and II of the Doubletree Hotel Rockville,
1750 Rockville Pike, Rockville, Maryland 20852. Reservations for
overnight accommodations at the Doubletree Hotel may be made at 1-800-
222-Tree or (301) 468-1100.
FOR FURTHER INFORMATION CONTACT: Loren L. Bush, U.S. Nuclear Regulatory
Commission, Office of Nuclear Reactor Regulation, Washington, DC 20555,
telephone (301) 415-2944.
Dated at Rockville, Maryland, this 10th day of May 1996.
Loren L. Bush, Jr.,
Senior Program Manager, Safeguards Branch, Division of Reactor Program
Management, Office of Nuclear Reactor Regulation.
[FR Doc. 96-12265 Filed 5-15-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-12216 Unlicensed NII/SUPERNet Operations in the 5 GHz Frequency Range
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24749-24750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12216]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 15
[ET Docket No. 96-102; FCC 96-193]
Unlicensed NII/SUPERNet Operations in the 5 GHz Frequency Range
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: By this Notice of Proposed Rule Making (``NPRM''), the
Commission proposes to make available 350 megahertz of spectrum at
5.15--5.35 GHz and 5.725--5.875 GHz for use by a new category of
unlicensed equipment, called NII/SUPERNet devices. These devices would
provide short-range, high speed wireless digital communications on an
unlicensed basis. The Commission anticipates that these NII/SUPERNet
devices will support the creation of new wireless local area networks
(``LANs'') and will facilitate wireless access to the National
Information Infrastructure (``NII''). This action is in response to
petitions for rule making filed by the Wireless Information Networks
Forum (WINForum) and Apple Computer, Inc.
DATES: Comments must be filed on or before July 15, 1996 and reply
comments must be filed on or before August 14, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT: Tom Derenge, Office of Engineering and
Technology (OET), (202) 418-2451, or Fred Thomas, OET, (202) 418-2449.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, ET Docket No. 96-102, FCC 96-193, adopted
April 25, 1996 and released May 6, 1996. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW, Washington, D.C. The complete text of this decision may
also be purchased from the Commission's copy contractor, International
Transcription Service, Inc., (202) 857-3800, 1919 M Street, N.W., Room
246, or 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.
Additionally, an electronic version of the text may be obtained from
the World Wide Web at the URL:''http://www.fcc.gov/Bureaus/
Engineerin__Technology/Notices/''.
Summary of the Notice of Proposed Rule Making
1. The Commission proposes to amend Part 15 of its rules and to
make available 350 megahertz of spectrum at 5.15--5.35 GHz and 5.725--
5.875 GHz for use by a new category of unlicensed equipment, called
NII/SUPERNet devices. This amount of spectrum should be sufficient to
provide for a number of high-speed, wide-bandwidth, unlicensed
operations in each geographical area to meet growing demand for data
LANs. These devices may offer new opportunities for providing advanced
telecommunications services to educational institutions, health care
providers, libraries, businesses, and other users. These devices may
thereby significantly assist in meeting the universal service goals and
encouraging the provision of advanced telecommunications capabilities
to all Americans as set forth in the Telecommunications Act of 1996.
This action should also foster the development of a broad range of new
devices and services that will stimulate economic development and the
growth of new industries. The Commission feels that additional studies
of spectrum sharing between the proposed unlicensed operations and
existing and other proposed operations in the 5 GHz range would be
useful and requests that interested parties address this matter in
their comments.
2. In order to permit maximum technical flexibility in the design
and operation of NII/SUPERNet devices, the Commission proposes that
such devices be subject to the minimum technical standards necessary to
prevent interference to other services and to ensure that the spectrum
is used efficiently. Specifically, the NPRM proposes to limit the peak
equivalent isotropically radiated power (EIRP) for NII/SUPERNet devices
to -10 dBW (0.1 watt), which would provide for typical communications
distances of 50 to 100 meters. The Commission, however, does not
propose at this time to accommodate the higher power, longer range
(approximately 10-15 kilometer) communications links sought by the
petitioners due to concerns that such higher power operations would
pose unacceptable interference risks to other services, such as the
fixed satellite service in the 5.10-5.25 GHz band, and would greatly
limit the number of unlicensed operations within a local area.
Nonetheless, comment is solicited on whether to permit such higher
power operation at up to 1 watt of transmitter output power within the
5.725-5.875 GHz band; whether to limit the maximum antenna gain; and
whether higher power operations would be better accommodated on a
licensed basis in this band or in other bands presently (or soon to be)
available for licensed use (e.g., 2 GHz, 28 GHz, 38 GHz, or above 40
GHz ranges).
3. Furthermore, the NPRM proposes that all emissions occurring from
NII/SUPERNet devices outside of the 5.15-5.35 GHz and 5.725-5.875 GHz
bands be attenuated by at least 50 dB or to the radiated emission
limits set forth in 47 CFR Sec. 15.209, whichever is the lesser
attenuation. In addition, the NPRM proposes that any emissions
occurring in the restricted bands (see 47 CFR Sec. 15.205) comply with
the radiated emission limits set forth in 47 CFR Sec. 15.209. The
Commission believes that these out-of-band emission limits will provide
sufficient protection against harmful interference to adjacent band and
harmonically related radio operations. Additionally, the NPRM proposes
to amend Section 15.205 to delete the listing of 5.15-5.25 GHz as a
restricted band. Further, to ensure that the emissions from digital
circuitry employed with the NII/SUPERNet equipment do not cause harmful
interference to lower frequency radio operations, the NPRM proposes to
require that any such emissions below 1000 MHz comply with the general
field strength limits set forth in Section 15.209.
4. The NPRM does not at this time propose a channeling plan, in
order to provide flexibility for equipment designers to develop devices
and systems that will meet a wide variety of user needs. However,
comment is solicited on whether a channel bandwidth (e.g., 25 MHz)
should be established to ensure that the spectrum will be used
efficiently and will be
[[Page 24750]]
accessible to users of NII/SUPERNet devices.
5. The NPRM proposes a basic ``listen-before-talk'' interim
etiquette similar to that established for unlicensed Data-PCS devices
in order to expedite the development and introduction of NII/SUPERNet
devices. However, the Commission encourages industry to develop any
additional etiquette protocols that would increase spectrum efficiency
and facilitate equal access to the spectrum by a variety of devices.
Specifically, the proposed interim etiquette would require unlicensed
devices: to monitor the frequencies they will occupy to determine if
the frequencies are unused and available; to limit the maximum time
unlicensed devices may transmit to 10 milliseconds; and to require
unlicensed devices to wait after ceasing transmission 50 microseconds
before beginning to monitor again. Comment is sought on whether these
interim standards would be appropriate, and interested parties are
invited to submit alternatives.
6. The NPRM also proposes to establish sharing criteria between
unlicensed NII/SUPERNet devices and incumbent and proposed licensed
operations in the 5 GHz range. Specifically, the NPRM proposes that
NII/SUPERNet devices not be deemed to cause interference to licensed
services, provided that they operate in accordance with the
Commission's technical rules and they are located indoors or employ an
outdoor antenna that is mounted 15 meters or less above the ground.
NII/SUPERNet devices with outdoor antennas higher than 15 meters would
be required to cease operation or make some accommodation, such as
limiting power, to eliminate any harmful interference caused to a
licensed operation. Finally, consistent with unlicensed part 15
operation, NII/SUPERNet devices must accept any interference caused by
licensed services.
Initial Regulatory Flexibility Analysis
1. Reason For Action: The Commission finds that there is a need for
additional unlicensed spectrum for intentional radiators. This rule
making proceeding is initiated to obtain comment regarding proposals to
make spectrum in the 5 GHz band available for such purposes and to
amend the part 15 rules to add the technical requirements necessary to
permit sharing between the proposed new unlicensed devices and
incumbent operations.
2. Objective: The objective of this proposal is to provide adequate
unlicensed spectrum for wideband applications, and to provide for the
technical rules necessary for spectrum sharing and efficiency.
3. Legal Basis: The proposed action is authorized by sections 4(i),
303(c), 303(f), 303(g) and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. sections 154(i), 303(c), 303(f), 303(g) and 303(r).
These provisions authorize the Commission to make such rules and
regulations as may be necessary to encourage more effective use of
radio as is in the public interest.
4. Description, Potential Impact, and Number of Small Entities
Affected: This proposal may provide new opportunities for radio
manufacturers and suppliers of radio equipment, some of which may be
small businesses, to develop and sell new equipment. The Commission is
unable to quantify other potential effects on small entities. The NPRM
invites specific comments on this point by interested parties.
5. Reporting, Record Keeping, and Other Compliance Requirements:
None.
6. Federal Rules That Overlap, Duplicate, or Conflict With This
Rule: None.
7. Significant Alternatives: If promulgated, this proposal will
provide additional unlicensed spectrum. The Commission is unaware of
other alternatives which could provide sufficient spectrum in the
immediate future. The NPRM solicits comment on this point.
List of Subjects in 47 CFR Part 15
Radio,
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-12216 Filed 5-15-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-12200 Groundfish of the Gulf of Alaska; Groundfish Fishery of the Bering Sea and Aleutian Islands; Salmon Donation Program
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24750-24754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12200]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 672 and 675
[Docket No. 960503125-6125-01; I.D. 040996A]
RIN 0648-AH03
Groundfish of the Gulf of Alaska; Groundfish Fishery of the
Bering Sea and Aleutian Islands; Salmon Donation Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS issues this proposed rule to implement Amendment 26 to
the Fishery Management Plan for the Groundfish Fishery of the Bering
Sea and Aleutian Islands Area and Amendment 29 to the Fishery
Management Plan for Groundfish of the Gulf of Alaska (FMPs). This rule
would authorize a voluntary Salmon Donation Program (SDP) for
distribution of Pacific salmon taken as bycatch in the groundfish trawl
fisheries off Alaska to economically disadvantaged individuals by tax-
exempt organizations through a NMFS-authorized distributor. This action
would support industry initiatives to reduce waste from discard in the
groundfish fisheries by processing salmon bycatch for human
consumption. This action is intended to promote the goals and
objectives of the FMPs that govern the commercial groundfish fisheries
off Alaska.
DATES: Comments must be received by July 1, 1996.
ADDRESSES: Comments should be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK
99802, Attn: Lori Gravel, or delivered to the Federal Building, 709
West 9th Street, Juneau, AK. Copies of Amendments 26 and 29 and the
Environmental Assessment/Regulatory Impact Review (EA/RIR) prepared for
the amendments may be obtained from the North Pacific Fishery
Management Council, 605 West 4th Ave., Suite 306, Anchorage AK 99510-
2252; telephone: 907-271-2809. Send comments regarding burden estimates
or any other aspect of the data requirements, including suggestions for
reducing the burdens, to NMFS and to the Office of Information and
Regulatory Affairs, OMB, Washington, DC 20503, Attn: NOAA Desk Officer.
FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION: Fishing for groundfish by U.S. vessels in
the exclusive economic zone of the Gulf of Alaska (GOA) and Bering Sea
and Aleutian Islands management area (BSAI) is managed by NMFS
according to the respective FMPs for the groundfish fisheries of the
GOA and BSAI. The FMPs were prepared by the North Pacific Fishery
Management Council (Council) under the Magnuson Fishery Conservation
and Management Act (16 U.S.C. 1801, et seq.) (Magnuson Act) and are
implemented by regulations governing the U.S. groundfish fisheries at
50 CFR parts 672, 675, and 676. General regulations that also pertain
to U.S. fisheries are codified at 50 CFR part 620.
[[Page 24751]]
This action proposes regulations to implement Amendment 26 to the
Fishery Management Plan for the Groundfish Fishery of the Bering Sea
and Aleutian Islands Area and Amendment 29 to the Fishery Management
Plan for Groundfish of the Gulf of Alaska. If approved by NMFS, these
amendments would authorize the distribution of Pacific salmon taken as
bycatch in the groundfish trawl fisheries off Alaska to economically
disadvantaged individuals by tax-exempt organizations through a NMFS
authorized distributor. A description of, and reasons for, the proposed
measure are presented below.
Background
The Alaska groundfish trawl fisheries result in incidental fishing
mortality of non-groundfish species. Often these species could be fully
utilized in other fisheries but must be discarded in the groundfish
fisheries. Of particular concern is the incidental fishing mortality of
Pacific salmon. During 1993, 1994, and 1995 respectively, 289,284,
141,037, and 45,934 Pacific salmon were estimated to have been caught
in the BSAI groundfish fishery; 105,348, 54,613, and 79,617 salmon were
estimated to have been caught in the GOA groundfish fishery. Actions
have been taken to address various aspects of the salmon bycatch
problem. NMFS implemented regulations to require the discard of salmon
taken in the BSAI groundfish fisheries to be counted by a NMFS-
certified observer (59 FR 18757, April 20, 1994). The intent of this
requirement is to collect more data on salmon bycatch. In addition,
NMFS issued three experimental fishing permits (EFPs) under regulations
at Sec. 675.6 to test the feasibility of distributing salmon bycatch as
food to economically disadvantaged individuals for purposes of reducing
both salmon bycatch and protein discard in the groundfish trawl
fisheries.
The first EFP was issued on August 12, 1993 (58 FR 42947), and was
designed to test the feasibility of mandatory retention of all salmon
caught incidentally by permitted vessels in three specified trawl
fisheries. The objective of this EFP was to reduce both the bycatch and
discard of salmon in the groundfish trawl fisheries by requiring
participants to incur the costs of processing salmon for distribution
to economically disadvantaged individuals by tax-exempt organizations.
The second EFP issued by NMFS authorized voluntary retention and
processing of salmon bycatch for donation to charitable organizations
(59 FR 39326, August 2, 1994). The purpose of the second EFP was to
develop standards and criteria for the voluntary retention of salmon
under an SDP that was being considered by the Council. The first
voluntary retention EFP expired at the end of the 1995 pollock roe
season and the 1995 directed trawl fishery for Pacific cod. The third
EFP issued by NMFS (60 FR 43587, August 22, 1995) extended the second
EFP for an additional year. The second voluntary retention EFP expires
after the closure of the 1996 pollock roe season and the 1996 directed
trawl fishery for Pacific cod.
An Interim and a Final Report from the first EFP concluded that a
mandatory salmon retention requirement and associated SDP could be
effective at reducing salmon bycatch and discards. Results presented in
the Final Report from the second EFP indicated that a voluntary
retention and processing system and associated SDP would be equally
successful at reducing salmon discard amounts but that incentives to
reduce salmon bycatch would be negated when the permit was approved on
a voluntary basis. A summary of these reports can be found in the EA/
RIR (see ADDRESSES). Results from the third EFP are due in May 1996.
At its September 1994 meeting, the Council approved Amendments 26
and 29 that would authorize the implementation of an SDP, pending the
availability of data from the voluntary EFP that would be used to
develop regulatory standards and criteria for the SDP. The success of
these EFPs prompted the Council and NMFS to propose regulations to
authorize an SDP to reduce salmon discard in the groundfish fisheries
off Alaska.
Description of the Salmon Donation Program
The SDP's objective is to distribute salmon taken as bycatch in the
groundfish trawl fisheries off Alaska to economically disadvantaged
individuals by tax-exempt organizations, thereby reducing waste from
discards in the groundfish trawl fisheries. Participants in the SDP
would retain and process salmon bycatch for delivery to an authorized
distributor selected by NMFS. Participation in the SDP would be
voluntary. Vessels and processors would incur the costs of handling,
processing, storing, and delivering donated salmon to tax-exempt
organizations.
Selection Process for Authorized Distributors
The Director, Alaska Region, NMFS, (Regional Director) would select
an authorized distributor(s) from qualified applicants, announce the
NMFS-authorized distributor(s) in the Federal Register, and issue an
SDP permit to each selected applicant. An SDP permit would be effective
for a period of 3 years after announcement of the authorized
distributor(s) in the Federal Register.
Factors that would be considered by the Regional Director when
selecting an authorized distributor are listed in this proposed rule at
Sec. 672.28(b)(2). The number of authorized distributors selected by
the Regional Director would be based on the criteria listed in this
proposed rule at Sec. 672.28(b)(2).
Responsibilities of an Authorized Distributor
An authorized distributor would be responsible for monitoring the
retention and processing of salmon donated by vessels and processors.
An authorized distributor also would coordinate the processing,
storage, transportation, and distribution of salmon to hunger relief
agencies, food bank networks, and food bank distributors.
Prior to retaining any salmon under the SDP, the authorized
distributor would provide the Regional Director with a list of all
participants in the SDP, including a list of all vessels and
processors, a list of hunger relief agencies, food bank networks, and
food distributors participating in the SDP, and a list of locations
where salmon must be delivered by the vessels and processors. The list
of vessels and processors provided by the authorized distributor would
include the following information: (1) A Federal fisheries permit
number or Federal processor permit number, (2) the name of the owner or
responsible operator, and (3) a telephone number fax number. If an
authorized distributor modifies the list of vessels or processors
participating in the SDP or changes delivery locations, the authorized
distributor would be required to submit a revised list of vessels and
processors or delivery locations to the Regional Director before salmon
bycatch could be retained by any additional vessel or processor or
delivered to any new delivery location.
Reporting Requirements--Documentation and Labeling
Participants in the SDP would have to comply with new documentation
and labeling requirements. All packages would be required to be labeled
with the date of processing, the name of the processing facility, the
contents and the weight of the salmon contained in the package, and the
words, ``NMFS SALMON DONATION PROGRAM--
[[Page 24752]]
NOT FOR SALE--PERISHABLE PRODUCT--KEEP FROZEN''.
A processor retaining or receiving salmon under the SDP and an
authorized distributor would keep on file and make available for
inspection by an authorized officer all documentation including receipt
and cargo manifests setting forth the origin, weight, and destination
of all salmon. Such documentation would be retained until 1 year after
the effective period of the SDP permit.
Responsibilities of Participating Vessels and Processors
All donated salmon would be required to be processed so that it is
fit for human consumption. All BSAI participants would be required to
comply with regulations at Secs. 675.7(p) and 675.20(c) that would
provide for the collection of biological samples and scientific data by
an NMFS-certified observer prior to processing salmon under the SDP.
Participation in the SDP would not relieve any vessel or processor from
existing reporting requirements.
Delegation of Authority
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated, to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of an FMP
amendment and regulations. At this time, NMFS has not determined that
the FMP amendments these rules would implement are consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. Any vessel or processor may participate in a voluntary
salmon donation program if an NMFS distributor is selected by the
Regional Director, and the authorized distributor includes the vessel
or processor on the list of participants under the SDP that is
submitted to the Regional Director. NMFS does not anticipate that any
vessel or processor that qualifies as a small entity would elect to
participate in the voluntary program if the cost of doing so reduces
gross annual receipts by 5 percent or more. As a result, a regulatory
flexibility analysis was not prepared.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
This proposed rule contains a new collection-of-information
requirement subject to the Paperwork Reduction Act. This collection-of-
information requirement has been submitted to the Office of Management
and Budget (OMB) for approval. The new information requirements include
an application to participate as an authorized distributor in the SDP,
documentation requirements for the authorized distributor(s) and
processors participating in the SDP, and packaging requirements for
vessels and processors. Public reporting burden for these collections
of information are estimated to average 40 and 0.1 hours respectively
for the permit and packaging requirements, and 40 and 0.25 hours per
year for the documentation requirements and identification information.
Send comments regarding burden estimates or any other aspect of the
data requirements, including suggestions for reducing the burdens, to
NMFS and OMB (see ADDRESSES).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Parts 672 and 675
Fisheries, Reporting and recordkeeping requirements.
Dated: May 7, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service
For the reasons set out in the preamble, 50 CFR parts 672 and
675 are proposed to be amended as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.7, paragraph (r) is added to read as follows:
Sec. 672.7 Prohibitions.
* * * * *
(r) Retain or possess salmon, except as permitted under the Salmon
Donation Program as provided by Sec. 672.28 of this part, or as
authorized by other applicable law.
3. In Sec. 672.20, paragraph (e)(2) is revised to read as follows:
Sec. 672.20 General limitations.
* * * * *
(e) * * *
(2) A vessel must sort its catch as soon as possible after
retrieval of the catch and except to allow for sampling by an observer
(if any) and except as permitted to do so under the Salmon Donation
Program as provided by Sec. 672.28, and must return any catch of
prohibited species, or parts thereof, to the sea immediately after
sorting regardless of its condition. A vessel must handle prohibited
species to be discarded in a manner that minimizes additional injury.
* * * * *
4. Section Sec. 672.28 is added to read as follows:
Sec. 672.28 Salmon Donation Program.
(a) Definitions. For purposes of this section:
Authorized distributor means a tax-exempt organization authorized
by NMFS to coordinate the processing, storage, transportation, and
distribution of salmon taken as bycatch in the groundfish trawl
fisheries to tax-exempt hunger relief agencies, food bank networks, and
food bank distributors.
Food bank distributor means a tax-exempt organization with the
primary purpose of distributing food resources to hunger relief
agencies.
Food bank network means a tax-exempt organization with the primary
purpose of coordinating receipt and delivery of food resources to its
member food bank distributors or hunger relief agencies.
Hunger relief agency means a tax-exempt organization with the
primary purpose of feeding economically disadvantaged individuals free
of charge.
SDP means the Salmon Donation Program established under this
section.
SDP permit means a permit issued by NMFS to an applicant who
qualifies as an authorized distributor for purposes of the SDP.
Tax-exempt Organization means an organization that received a
determination letter from the Internal Revenue Service recognizing tax
exemption under 26 CFR part 1 (Secs. 1.501 to 1.640).
(b) Authorized distributors--(1) Application. An applicant seeking
to become an authorized distributor must
[[Page 24753]]
provide the Regional Director with following information:
(i) Proof of the applicant's tax-exempt status.
(ii) A description of the arrangements for processing, shipping,
storing, and transporting donated salmon and an estimate of the
associated costs.
(iii) A statement describing the applicant's expertise in providing
for the distribution of food product from remote Alaskan locations to
hunger relief agencies, food bank networks, or food bank distributors,
including arrangements for transportation, distribution costs, and
product quality control.
(iv) Documentation of support from cold storage and transportation
facilities.
(v) A proposed operating budget that is adequate to ensure that
salmon donated under this program will be distributed to hunger relief
agencies, food bank networks, or food bank distributors and that the
salmon will be maintained in a manner fit for human consumption.
(vi) Proof of the applicant's ability to obtain and maintain
adequate funding for the distribution of salmon under the SDP.
(vii) A copy of the applicant's articles of incorporation and
bylaws showing that the purpose of the applicant includes providing
food resources to hunger relief agencies, food bank networks, or food
bank distributors.
(viii) Proof of the applicant's ability to take full responsibility
for the documentation and disposition of salmon received under the SDP,
including sufficient liability insurance to cover public interests
relating to the quality of salmon distributed for human consumption.
(ix) Quality control criteria to be followed by vessels,
processors, hunger relief agencies, food bank networks, and food bank
distributors.
(x) The number of vessels and processors that the applicant is
capable of administering effectively.
(xi) A list of all vessels and processors, food bank networks and
food bank distributors participating in the SDP. The list of vessels
and processors must include:
(A) The vessel's or processor's Federal fisheries permit number or
Federal processor permit number.
(B) the name of the vessel owner or responsible operator or the
name of the owner or plant manager of the processor.
(C) the vessel's or processor's telephone number and fax number.
(D) the signature of the vessel owner or responsible operator or
the owner or plant manager of the processor.
(xii) A signed statement from the applicant and all persons listed
under paragraph (b)(1)(xi) of this section who would conduct activities
pursuant to the SDP permit waiving any and all claims against the
United States and its agents and employees for any liability for
personal injury, death, sickness, damage to property directly or
indirectly due to activities conducted under the SDP.
(xiii) A list of locations where salmon must be delivered by
participating vessels and processors.
(2) Selection. The Regional Director may select one or more
authorized distributors under the SDP based on the information
submitted by applicants under paragraph (b)(1) of this section. The
number of authorized distributors selected by the Regional Director
will be based on the following criteria:
(i) The number and qualifications of applicants for SDP permits.
(ii) The number of harvesters and the quantity of salmon that
applicants can effectively administer.
(iii) The anticipated level of salmon bycatch based on the salmon
bycatch from previous years.
(iv) The potential number of vessels and processors participating
in the groundfish trawl fisheries.
(3) SDP Permit. (i) After review of qualified applicants, the
Regional Director will announce the selection of authorized
distributor(s) in the Federal Register and will issue SDP permit(s).
(ii) The Regional Director may impose additional terms and
conditions on an SDP permit consistent with the objectives of the SDP.
(iii) An SDP permit may be suspended, modified, or revoked for
noncompliance with terms and conditions specified in the permit or for
a violation of this section or other regulations in this part or part
675.
(iv) An SDP permit remains in effect for a 3-year period after the
selection notice is published in the Federal Register unless suspended
or revoked. An SDP may not be transferred. An SDP permit issued to an
authorized distributor may be renewed following the application
procedures in this section.
(v) If the authorized distributor modifies any information on the
SDP permit application submitted under (b)(1)(x) or (b)(1)(xii) of this
section, the authorized distributor must submit a modified list of
participants or a modified list of delivery locations to the Regional
Director.
(c) Reporting and Recordkeeping Requirements. (1) A vessel or
processor retaining salmon under the SDP must comply with all
applicable recordkeeping and reporting requirements. A vessel or
processor participating in the SDP must comply with applicable
regulations at Secs. 672.7(o), 675.7(p), and 675.20(c) that allow for
the collection of data and biological sampling by an NMFS-certified
observer prior to processing any salmon under the SDP.
(2) Salmon retained under the SDP must be packaged, and all
packages must be labeled with the date of processing, the name of the
processing facility, the contents and the weight of the salmon
contained in the package and the words, ``NMFS SALMON DONATION
PROGRAM--NOT FOR SALE--PERISHABLE PRODUCT--KEEP FROZEN''.
(3) A processor retaining or receiving salmon under the SDP and an
authorized distributor must keep on file and make available for
inspection by an authorized officer all documentation including receipt
and cargo manifests setting forth the origin, weight, and destination
of all salmon. Such documentation must be retained until 1 year after
the effective period of the SDP permit.
(d) Processing, handling, and distribution. (1) Processing and
reprocessing of all salmon retained under the SDP must be carried out
under the direction of the authorized distributor. A processor
retaining or receiving salmon under the SDP, at a minimum, must head,
gut and freeze the salmon in a manner that makes it fit for human
consumption.
(2) Salmon that are determined to be unfit for human consumption
prior to delivery to an authorized distributor must be discarded under
Sec. 672.20(e) or Sec. 675.20(c). Salmon that are determined to be
unfit for human consumption after delivery to the authorized
distributor must be destroyed in accordance with applicable sanitation
laws and regulations.
(3) Authorized distributors and persons conducting activities
supervised by authorized distributors may retain salmon only for the
purpose of processing and delivering the salmon to hunger relief
agencies, food networks or food distributors as provided by this
section. Such persons may not consume or retain salmon for personal use
and may not sell, trade or barter, or attempt to sell, trade or barter
any salmon that is retained under the SDP.
(4) No salmon bycatch may be retained by a vessel or processor, or
delivered to a delivery location under this section, unless the vessel
or processor and delivery location is
[[Page 24754]]
included on the list provided to the Regional Director under paragraphs
(b)(1)(x), (b)(1)(xii), or (b)(3)(v) of this section.
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
5. The authority citation for part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
6. In Sec. 675.7, paragraph (p) is revised and paragraph (s) is
added to read as follows:
Sec. 675.7 Prohibitions.
* * * * *
(p) Discard any salmon taken incidental to a directed fishery for
groundfish by vessels using trawl gear until notified by an NMFS-
certified observer that the number of salmon taken has been determined
and the collection of any scientific data or biological samples has
been completed as provided at Sec. 675.20(c)(6) or retain salmon except
as permitted to do so under the Salmon Donation Program as provided by
Sec. 672.28 of this chapter.
* * * * *
(s) Retain or possess salmon, except as permitted to do so under
the Salmon Donation Program as provided by Sec. 672.28 of this chapter,
or as authorized by other applicable law.
7. In Sec. 675.20, paragraph (c)(6)(i) introductory text is revised
to read as follows:
Sec. 675.20 General limitations.
* * * * *
(c) * * *
(6) * * * (i) Except as provided in paragraph (c)(6)(ii) of this
section, the operator of a vessel and the manager of a shoreside
processing operation may not discard any salmon or transfer or process
any salmon under the Salmon Donation Program at Sec. 672.28 of this
chapter if the salmon were taken incidentally to a directed fishery for
groundfish by vessels using trawl gear until the number of salmon taken
has been determined by an NMFS-certified observer and the collection of
any scientific data or biological samples from the salmon has been
completed.
* * * * *
8. Section 675.28 is added to read as follows:
Sec. 675.28 Salmon Donation Program.
The Salmon Donation Program is governed by provisions set forth in
Sec. 672.28 of this chapter.
[FR Doc. 96-12200 Filed 5-15-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12195 2-Propene-1-Sulfonic Acid, Sodium Salt, Polymer With Ethenol and Ethenyl Acetate; Tolerance Exemption
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24738-24740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12195]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP-5E04568/P653; FRL-5365-3]
RIN 2070-AB18
2-Propene-1-Sulfonic Acid, Sodium Salt, Polymer With Ethenol and
Ethenyl Acetate; Tolerance Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document proposes to establish an exemption from the
requirement of a tolerance for residues of 2-propene-1-sulfonic acid,
sodium salt, polymer with ethenol and ethenyl acetate (CAS Reg. No.
107568-10-5) when used as an inert ingredient (binding agent) in
pesticide formulations applied to growing crops or to raw agricultural
commodities after harvest, under 40 CFR 180.1001(c) and applied to
animals under 40 CFR 180.1001(e). This proposed regulation was
requested by Japan Technical Information Center on behalf of Nippon
Goshei (U.S.A.) Co., Ltd.
DATES: Written comments, identified by the document control number [PP-
5E04568/P653], must be received on or before June 17, 1996.
ADDRESSES: By mail, submit written comments to: Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring comments to: Rm. 1132 CM #2,
1921 Jefferson Davis Highway, Arlington, VA 22202.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number PP-5E04568/P653. No Confidential Business Information
(CBI) should be submitted through e-mail. Electronic comments on this
proposed rule may be filed online at many Federal Depository Libraries.
Additional information on electronic submissions can be found in the
SUPPLEMENTARY INFORMATION section of this document.
Information submitted as a comment concerning this notice may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR Part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public inspection in Rm. 1132 at
the address given above, from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail: Dr. Bipin Gandhi,
Registration Support Branch, Registration Division (7505W),
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
Office location and telephone number: 2800 Crystal Drive, North Tower,
6th Floor, Arlington, VA 22202, (703) 308-8380, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: Japan Technical Information Center, 775
South 23rd Street, Arlington, VA 22202, submitted pesticide petition
(PP) 5E04568 to EPA requesting that the Administrator, pursuant to
section 408(e) of the Federal Food Drug, and Cosmetic Act (FFDCA) (21
U.S.C. 346 a(e)), propose to amend 40 CFR part 180.1001(c) and (e) by
establishing an exemption from the requirement of tolerance for
residues of 2-propene-1-sulfonic acid, sodium salt, polymer with
ethenol and ethenyl acetate when used as an inert ingredient (binding
agent) in pesticide formulations applied to growing crops or to raw
agricultural commodities after harvest and applied to animals. Inert
ingredients are all ingredients that are not active ingredients as
defined in 40 CFR 153.125, and include, but are not limited to, the
following types of ingredients (except when they have a pesticidal
efficacy of their own): solvents such as alcohols and hydrocarbons;
surfactants such as polyoxyethylene polymers and fatty acids; carriers
such as clay and diatomaceous earth; thickeners such as carrageenan and
modified cellulose; wetting, spreading, and dispersing agents;
propellants in aerosol dispensers; microencapsulating agents;
[[Page 24739]]
and emulsifiers. The term ``inert'' is not to imply nontoxicity; the
ingredient may or may not be chemically active. The data submitted in
the petition and other relevant material have been evaluated. As part
of the EPA policy statement on inert ingredients published in the
Federal Register of April 22, 1987 (52 FR 13305), the Agency set forth
a list of studies which would generally be used to evaluate the risks
posed by the presence of an inert ingredient in a pesticide
formulation. However, where it can be determined without that data that
the inert ingredient will present minimal or no risk, the Agency
generally does not require some or all of the listed studies to rule on
the proposed tolerance or exemption from the requirement of a tolerance
for an inert ingredient. The Agency has decided that no data, in
addition to that described below, for 2-propene-1-sulfonic acid, sodium
salt, polymer with ethenol and ethenyl acetate will need to be
submitted. The rationale for this decision is described below.
In the case of certain chemical substances that are defined as
``polymers,'' the Agency has established a set of criteria which
identify categories of polymers that present low risk. These criteria
(described in 40 CFR 723.250) identify polymers that are relatively
unreactive and stable compared to other chemical substances as well as
polymers that typically are not readily absorbed. These properties
generally limit a polymer's ability to cause adverse effects. In
addition, these criteria exclude polymers about which little is known.
The Agency believes that polymers meeting the criteria noted above will
present minimal or no risk. 2-Propene-1-sulfonic acid, sodium salt,
polymer with ethenol and ethenyl acetate conforms to the definition of
a polymer given in 40 CFR 723.250(b) and meets the following criteria
that are used to identify low risk polymers:
1. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate is not a cationic polymer, nor is it reasonably
anticipated to become a cationic polymer in a natural aquatic
environment.
2. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate contains as an integral part of its composition the
atomic elements carbon, hydrogen, oxygen, sulfur and sodium.
3. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate does not contain as an integral part of its
composition, except as impurities, any elements other than those listed
in 40 CFR 723.250(d)(2)(ii).
4. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate is not designed, nor is it reasonably anticipated to
substantially degrade, decompose or depolymerize.
5. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate is not manufactured or imported from monomers and/or
other reactants that are not already included on the TSCA Chemical
Substance Inventory or manufactured under an applicable TSCA section 5
exemption.
6. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate is not a water absorbing polymer.
7. The minimum number-average molecular weight of 2-propene-1-
sulfonic acid, sodium salt, polymer with ethenol and ethenyl acetate is
listed as 6,000 to 12,000 daltons. Substances with molecular weights
greater than 400 generally are not absorbed through the intact skin,
and substances with molecular weights greater than 1,000 generally are
not absorbed through the intact gastrointestinal (GI) track. Chemicals
not absorbed through the skin or GI tract generally are incapable of
eliciting a toxic response.
8. 2-Propene-1-sulfonic acid, sodium salt, polymer with ethenol and
ethenyl acetate has a number average molecular weight of 6,000 to
12,000 daltons and contains an oligomer content of less than 2 percent
below, molecular weight (MW) 500 and less than 5 percent MW 1000.
Based on the above information and review of its use, EPA has found
that, when used in accordance with good agricultural practice, this
ingredient is useful and a tolerance is not necessary to protect the
public health. Therefore, EPA proposes that the exemption from the
requirement of a tolerance be established as set forth below.
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, that contains any of the
ingredients listed herein, may request within 30 days after the
publication of this document in the Federal Register that this
rulemaking proposal be referred to an Advisory Committee in accordance
with section 408(e) of the FFDCA.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
docket number, [PP-5E04568/P653]. All written comments filed in
response to this petition will be available in the Public Response and
Program Resources Branch, at the address given above, from 8 a.m. to
4:30 p.m., Monday through Friday, except legal holidays.
A record has been established for this rulemaking under docket
number [PP-5E04568/P653] (including comments and data submitted
electronically as described below). A public version of this record,
including printed paper versions of electronic comments, which does not
include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-D[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will be placed in the paper copies
of the official rulemaking record which also will include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in the ``ADDRESSES'' at the
beginning of this document.
The Office of Management and Budget has exempted this rule from the
requirements of section 2 of Executive Order 12866.
Pursuant to the requirement of the Regulatory Flexibility Act (Pub.
L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator has
determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have an economic impact on a substantial number of small
entities. A certification statement to this effect was published in the
Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Food additives, Pesticides and pests,
Processed foods, Reporting and recordkeeping requirements.
[[Page 24740]]
Dated: May 7, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR part 180 be amended as
follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.1001 the tables in paragraphs (c) and (e) are
amended by adding alphabetically the inert ingredient, to read as
follows:
Sec. 180.1001 Exemptions from the requirement of a tolerance.
* * * * *
(c) * * *
------------------------------------------------------------------------
Inert Ingredient Limits Uses
------------------------------------------------------------------------
* * * * * * *
2-Propene-1-sulfonic acid, Binding Agent
sodium salt, polymer with
ethenol and ethenyl acetate,
number average molecular
weight (in amu) 6,000 - 12,000.
* * * * * * *
------------------------------------------------------------------------
(e) * * *
------------------------------------------------------------------------
Inert Ingredient Limits Uses
------------------------------------------------------------------------
* * * * * * *
2-Propene-1-sulfonic acid, Binding Agent
sodium salt, polymer with
ethenol and ethenyl acetate,
number average molecular
weight (in amu) 6,000 - 12,000.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 96-12195 Filed 5-15-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-12143 The American Indian Trust Fund Management Reform Act of 1994
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24731-24737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12143]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 144
RIN 1076-AD 28
The American Indian Trust Fund Management Reform Act of 1994
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs proposes to establish a
regulation to implement Title II of Pub. L. 103-412, the American
Indian Trust Fund Management Reform Act of 1994 (the Act), which for
the first time, permits American Indian Tribes to take restricted
tribal funds out of trust status with the Department of the Interior
(DOI). The purpose of the Act is to enable Tribes to manage the funds
by themselves, or with the help of capable commercial fund managers.
The regulation affects tribal funds only, not Individual Indian Money
(IIM) funds.
DATES: Comments on this Proposed Rule must be received on or before
July 15, 1996.
ADDRESSES: Mail comments to Donna Erwin, Director, Office of Trust
Funds Management (OTFM), Department of the Interior, 505 Marquette Ave.
NW, Suite 1000, Albuquerque, NM, 87102, OR hand deliver them to Suite
1000 at the above address. Comments will be available for inspection at
this address from 9:00 a.m. to 4:00 p.m. (MDT), Monday through Friday
beginning approximately 30 days after publication of this document in
the Federal Register.
FOR FURTHER INFORMATION CONTACT: Joe Weller, Office of Trust Funds
Management, at the above address. Telephone (505) 248-5723, fax 248-
5782.
REQUEST FOR COMMENTS: It is the policy of the Department of the
Interior, whenever practical, to afford the public an opportunity to
participate in the rulemaking process. Accordingly, interested persons
may submit written comments regarding this rule to the location
identified in the Address section of this document. To ensure that
public comments have maximum effect in developing the final
regulations, the Department urges that each comment clearly identify
the specific section or sections of the regulations that the comment
addresses and that comments be in the same order as the regulations.
Comments that concern information collection requirements must be sent
to the Office of Management and Budget at the address listed in the
Paperwork Reduction Act section of this preamble. A copy of these
comments may also be sent to the Department representative named in the
preceding paragraph.
SUPPLEMENTARY INFORMATION: 25 CFR Part 144 contains provisions which
affect 240 tribes with trust funds. These tribes currently have
approximately $1.5 billion dollars in judgments, settlements, awards
and associated earnings held in trust status by the Department of the
Interior. Key concepts of the regulation are as follows: (1) Tribes
wishing to withdraw some or all of their restricted tribal funds under
the Act (not IIM funds) must present a tribal resolution acknowledging
that when funds leave the U.S. Treasury, the federal government has no
further liability relating to those funds; (2) tribes must also present
a management plan for Secretarial approval, detailing how the funds
will be managed once they are out of trust, including a protection
against a significant loss of principal; (3) if the funds are not
managed by the tribes, they are to be managed by capable investment
managers or investment firms with proof of liability insurance; (4)
tribes must provide notification to tribal members regarding their
intent to withdraw funds from trust; (5) tribes may return any or all
of their funds withdrawn under this act, including any earnings, to
trust status; (6) tribes may request technical assistance and/or grants
from the Department in order to develop the management plan. The
ability to take funds from trust creates new tribal opportunities for
investment of funds and for economic development; therefore,
establishment of the regulation has a high priority in Indian Country.
Development of the Regulation
In accordance with the Act, this regulation was developed with the
active participation of tribal representatives. A Regulatory Workgroup
was established by OTFM, which had tribal representation, as well
[[Page 24732]]
as representation from the InterTribal Monitoring Association (ITMA),
Departmental Office of the Solicitor (SOL), and Bureau of Indian
Affairs (BIA). Also in furtherance of tribal participation, draft
regulations were sent to all tribes with trust funds in August, 1995; a
formal presentation was made by OTFM at a National Tribal Consultation
in September, 1995. Comments which were incorporated from this
consultation are as follows: (a) A specific provision for notifying the
tribal membership of an intent to remove funds was included based on
comments by the Delaware Tribe of Oklahoma; (b) the ``certification''
by tribe's legal counsel of authority of tribal government to withdraw
funds was changed to a requirement for a ``legal opinion'' to be
included in the application package based on comments from both the
Hopi and Cheyenne River Tribes; (c) a requirement to provide a copy of
audit or investment report when requesting to withdraw additional funds
was included based on comments from the First Nations Development
Institute; (d) a requirement for liability insurance of tribal
officials was added based on a suggestion from the Skokomish Tribe of
Washington State. Other changes were made, such as changing the
approving official to the Secretary, Department of the Interior, from
the Commissioner of Indian Affairs, Bureau of Indian Affairs, removing
duplicative language from the policy statement; adding clarifying
language regarding applicability of these regulations to ``proceeds of
labor'' funds; and requiring tribes to submit copies of applicable
distribution plans or settlement acts when making application to
withdraw funds. The regulation has also been rewritten into a ``user-
friendly'' format.
Statutory Authority
Title II of Pub. L. 103-412, the American Indian Trust Fund
Management Reform Act of 1994, governs the withdrawal of tribal funds
from trust status within the Department of the Interior. Specifically,
the Secretary is authorized to approve withdrawals of funds based on a
Tribal Management Plan. The law states that regulations do not need to
be in place for funds to be withdrawn.
Procedural Determinations
The Regulatory Flexibility Act
The Department has determined that this rulemaking will not have a
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Executive Order 12630
The Department certifies that the rule does not represent a
governmental action capable of interference with constitutionally
protected property rights. Thus, a Takings Implication Assessment need
not be prepared under Executive Order 12630, ``Government Action and
Interference with Constitutionally Protected Property Rights.''
Executive Order 12778
The Department has certified to the Office of Management and Budget
that this rule meets the applicable standards provided in Sections 2
(a) and 2 (b) (2) of Executive Order 12778.
Executive Order 12866
This document has been reviewed under Executive Order 12866 and is
not a significant regulatory action.
Paperwork Reduction Act of 1995
Section 144.7 contains information collection requirements. As
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d) ),
the Department of Interior has submitted a copy of this section to the
Office of Management and Budget (OMB) for its review. These regulations
affect any tribe for whom the Office of Special Trustee manages funds
in tribal trust.
Information in Subpart B (Application to Withdraw Tribal Funds from
Trust Status) is being collected to determine the eligibility of
applicants, and the capability of tribes or their contractors to manage
and invest large blocks of funds. This is in accordance with statutory
authority which requires that a tribal Management Plan be approved by
the Secretary prior to release of funds from trust. This information
will be collected once only from each applicant. Annual reporting and
recordkeeping burden for this collection of information is estimated to
average 342 hours for each response for 12 tribal respondents,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Thus, the total annual
reporting and recordkeeping burden for this collection is estimated to
be 4,104 hours.
Information in Subpart D (Application for Federal Assistance and
Budget Information--Non-Construction Programs) is being collected to
determine the eligibility of applicants, as well as the level of need
for technical assistance in order for tribes to develop the Management
Plans and to complete the application for withdrawal process. This is
in accordance with statutory authority which requires the Secretary to
provide technical assistance for tribes to complete the required
Management Plan. This information will be collected once only from each
applicant. Annual reporting and recordkeeping burden for this
collection of information is estimated to average 52 hours for each
response for 12 tribal respondents, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 624 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, D.C. 20503; Attention: Desk Officer for
U.S. Department of the Interior.
The Department considers comments by the public on these proposed
collections of information in:
Evaluating whether the proposed collections of information are
necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of the burden
of the proposed collections of information, including the validity of
the methodology and assumptions used; and
Enhancing the quality, usefulness, and clarity of the information
to be collected.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
National Environmental Policy Act of 1969
We have determined that this rulemaking is not a major Federal
action significantly affecting the quality of the human environment,
and a detailed statement under section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)) is not
required.
[[Page 24733]]
List of Subjects in 25 CFR Part 144
Indians, Indian tribal trust funds, Indian trust responsibility.
For the reasons set out in the preamble, Part 144 of Title 25,
Chapter 1, of the Code of Federal Regulations is proposed to be added
as set forth below.
PART 144--AMERICAN INDIAN TRUST FUND REFORM ACT
Subpart A--General Provisions
Sec.
144.1 Purpose of this regulation.
144.2 Definitions.
144.3 What is the Department's policy on tribal management of trust
funds?
144.4 May tribes exercise increased direction over their trust
funds and retain the protections of Federal trust status?
144.5 What are the advantages and disadvantages of managing trust
funds?
144.6 Do these regulations tell tribes how to receive future income
directly rather than having the government continue to collect it?
144.7 Information collection.
Subpart B--Withdrawing Tribal Funds From Trust
144.10 Who is eligible to withdraw their tribal funds from trust?
144.11 What funds may be withdrawn?
144.12 What limitations and restrictions apply to withdrawn funds?
144.13 How does a tribe apply to withdraw funds?
144.14 What must the Tribal Management Plan contain?
144.15 What is the approval process for management plans?
144.16 What criteria will be used in evaluating the management
plan?
144.17 What special criteria will be used to evaluate management
plans for judgment or settlement funds?
144.18 When does the Department's trust responsibility end?
144.19 How can the plan be revised?
144.20 How can a tribe withdraw additional funds?
144.21 How may a tribe appeal denials under this part?
Subpart C--Returning Tribal Funds to Trust
144.30 How does a tribe notify the Department if it wishes to
return withdrawn funds to Federal trust status?
144.31 What part of withdrawn funds can be returned to trust?
144.32 How often can funds be returned?
144.33 How can funds be returned?
144.34 Can a tribe withdraw redeposited funds?
Subpart D--Technical Assistance
144.40 How will the Department provide technical assistance for
tribes?
144.41 What types of technical assistance are available?
144.42 Who can provide technical assistance?
144.43 How can a tribe apply for technical assistance?
144.44 What action will the Department take on requests for
technical assistance?
Authority: 25 U.S.C. 4001.
Subpart A--General Provisions
Sec. 144.1 Purpose of this regulation.
This part describes the processes by which Indian tribes can manage
tribal funds currently held in trust by the United States. It defines
how tribes may withdraw their funds from trust status; how they may
return funds to trust; and how they may request technical assistance or
grants to help prepare plans to manage funds or to ensure the
capability to manage those funds.
Sec. 144.2 Definitions.
As used in this part:
Act means the American Indian Trust Fund Management Reform Act of
1994 (Pub. L. 103-412, 108 Stat. 4239, 25 U.S.C. 4001).
Agency Superintendent means the official in charge of a Bureau of
Indian Affairs Agency.
Area Director means the official in charge of a Bureau of Indian
Affairs area office.
Bureau or BIA means the Bureau of Indian Affairs within the
Department of the Interior.
Department or DOI means the Department of the Interior.
General Counsel means the attorney for the tribe.
OTFM means the Office of Trust Funds Management, Department of the
Interior.
Resolution means the formal manner in which a tribal government
expresses its legislative will.
Secretary means the Secretary of the Interior or his designee.
Solicitor means the Office of the Solicitor, Department of the
Interior.
Special Trustee means the Special Trustee for American Indians
appointed under Title III of the Act.
Tribal Council means the elected or appointed governing officials
of any Tribe which is recognized by the Secretary.
Tribe means any Indian Tribe, Band, Nation, Rancheria, Pueblo,
Colony or Community, including any Alaska Native village or regional or
village corporation as defined or established pursuant to the Alaska
Native Claims Settlement Act which is federally recognized by the U.S.
Government for special programs and services provided by the Secretary
to Indians because of their status as Indians. For this purpose, it
also means two or more tribes joined for any purpose, the joint assets
of which include funds held in trust by the Secretary. An example of
this would be the KCA (consisting of the Kiowa, Comanche and Apache
Tribes).
Us means the Department of the Interior, i.e., the Secretary of the
Interior or his/her designee.
We means the Department of the Interior, i.e., the Secretary of the
Interior or his/her designee.
Sec. 144.3 What is the Department's policy on tribal management of
trust funds?
(a) We will give tribes as much responsibility as they desire for
the management of their tribal funds that we currently hold in trust.
(b) Title II of the American Indian Trust Fund Management Reform
Act, implemented by these regulations, offers tribes one approach for
assuming increased management of their funds that we now hold in trust
and administer. Under Title II, a tribe may completely remove its funds
from Federal trust status and manage them as it wishes, subject to the
requirements and conditions in this part. When a tribe withdraws its
funds under this part, it may invest those funds in equities or other
investment vehicles that are statutorily unavailable to us.
Sec. 144.4 May tribes exercise increased direction over their trust
funds and retain the protections of Federal trust status?
Yes. The Tribal Self-Governance Act (25 U.S.C. 458) and the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.)
provide other options for trust funds management. A tribe may choose to
manage its trust funds under the provisions of these Acts if it wishes.
These options are covered in these regulations: ``Indian Self-
Determination and Education Assistance Act Program'' ( 25 CFR Part 271,
et seq.) and the ``Self- Governance Program'' (25 CFR Part 1001).
Sec. 144.5 What are the advantages and disadvantages of managing trust
funds?
Under these other options, the funds remain in Federal trust status
and the tribe can exercise a range of control over their management.
However, the tribe has fewer investment options than it has when it
withdraws its funds completely from Trust status. If a tribe chooses to
keep its funds in trust status, the tribe is subject to the same
statutory investment restrictions that bind us. That means that the
tribe's investments are limited to bank deposits and securities
guaranteed by the United States. (See 25 U.S.C. 162a for specific
statutory investment restrictions).
[[Page 24734]]
Sec. 144.6 Do these regulations tell tribes how to receive future
income directly rather than having the government continue to collect
it?
No. These regulations apply only to the withdrawal of funds which
are in trust. Some of these funds come from the sale or lease of trust
resources. Even if a tribe withdraws its funds, we will collect and
manage future income. If a tribe wishes to receive future income
directly, it should contact its agency or area office to find out how
to do this.
Sec. 144.7 Information collection.
Information collection requirements contained in Subpart B of this
part, Withdrawal of Tribal Funds from Trust, and Subpart D of this
part, Technical Assistance, have been submitted to the Office of
Management and Budget for approval as required by 44 U.S.C. 3501 et
seq. Information collected in Sec. 144.13, (How does a tribe apply to
withdraw funds?) will be used to determine the eligibility of
applicants, and the capability of tribes or their contractors to manage
and invest large blocks of funds. Information collected in Sec. 144.43,
(How can a tribe apply for technical assistance?) will be used to
determine the eligibility of applicants, as well as the level of need
for technical assistance, in order for tribes to develop Management
Plans and to complete the application for withdrawal process. The
collections of information for Subpart B and Subpart D of this part
will not be required until approved by the Office of Management and
Budget.
Subpart B--Withdrawing Tribal Funds From Trust
Sec. 144.10 Who is eligible to withdraw their tribal funds from trust?
Any tribe for whom we manage funds in trust.
Sec. 144.11 What funds may be withdrawn?
A tribe may withdraw some or all funds that we hold in trust if we
approve a plan that it submits under this part.
Sec. 144.12 What limitations and restrictions apply to withdrawn
funds?
(a) A tribe may withdraw funds appropriated to satisfy judgments of
the Indian Claims Commission (ICC) and the Court of Federal Claims and
that we hold under the Indian Judgment Funds Use and Distributions Act
(25 U.S.C. 1401) or another act of Congress if:
(1) The tribe uses the funds as specified in the previously
approved judgment fund plan, and;
(2) The tribe withdraws only funds held for Indian tribes and does
not include any funds held for individual tribal members.
(b) A tribe may withdraw funds appropriated to satisfy settlement
agreements relating to certain tribal claims and that we hold and
manage for the tribe pursuant to an act of Congress if:
(1) The tribe uses the funds as specified in the previously
approved settlement act plan;
(2) The tribe withdraws only funds held for Indian tribes and does
not include any funds held for individual tribal members; and
(3) It is determined that there is no provision in the act or
settlement agreement requiring that the funds remain in trust to
implement the act or agreement that cannot be waived.
(c) Tribal funds commonly known as ``Proceeds of Labor'' funds,
usually income to trust resources, are generally withdrawn under normal
tribal budgeting procedures, but may also be withdrawn from trust under
this part. These funds may be returned to trust under the provisions of
Subpart C of this part.
Sec. 144.13 How does a tribe apply to withdraw funds?
The tribe must submit four copies of its application and the
attachments listed below to: Director, Office of Trust Funds
Management, Department of the Interior, 505 Marquette NW, Suite 1000,
Albuquerque, NM 87102. We will notify the tribe if the application is
incomplete and will help the tribe complete the application if
requested. When we determine that the application is complete, we will
send copies to the appropriate agency superintendent and area director,
the Special Trustee and the Solicitor. Each application package must
contain the items listed below.
(a) Proof that the tribe has notified its members of its intent to
remove funds from trust and that, when the request is approved, the
tribe and not the United States Government will be liable for funds
management. Notification must be by the method(s) that the tribe
customarily uses to notify its members of significant tribal actions.
The notification must identify the specific funds to be withdrawn.
(b) A tribal resolution that:
(1) Expressly authorizes the withdrawal of the funds and indicates
the (approximate) dollar amount of the funds to be withdrawn;
(2) Expressly acknowledges that the funds, once withdrawn in
accordance with the Act, will no longer be held in trust status by the
United States, and that we have no further liability or responsibility
for the funds; and
(3) Acknowledges that:
(i) Neither we nor the tribe necessarily accept the account
balances at the time of withdrawal as accurate; and
(ii) Neither we nor the tribe have waived any rights regarding the
balances, including the right to seek compensation for incorrect
balances.
(c) A copy of a formal agreement between the tribe and the manager
of the funds to be withdrawn, in which the manager agrees to:
(1) Comply with the terms of the plan we approve under Sec. 144.15
and make only those changes that conform to revision procedures in the
approved plan and the requirements of Sec. 144.19; and
(2) Transfer funds to the tribe or another manager only after
receiving a valid tribal resolution calling for this transfer and proof
that the tribe has notified its members of intent to transfer the
funds. The resolution must clearly state that:
(i) The funds are being withdrawn to be reinvested by the tribe in
a manner consistent with the goals and strategies of the approved plan;
and
(ii) The fund managers will continue to follow any previously
approved distribution plan conditions.
(d) A legal opinion by the tribe's attorney or its general counsel
that:
(1) The resolution referred to in paragraph (b) of this section was
enacted under procedures established by the tribe's organic documents
or oral tradition;
(2) The tribal governing body has the legal authority to withdraw
funds from trust status and that the withdrawal does not require a
referendum vote or other procedure beyond a tribal council resolution;
and
(3) If the funds to be withdrawn are judgment or settlement funds,
that the tribe's plan for managing the funds meets the requirements of
any applicable judgment fund use and distribution plan or settlement
act.
(e) The results of a tribal referendum, if one was held.
(f) If the funds to be withdrawn are judgment or settlement funds,
a copy of the act and/or plan that sets out the conditions for the uses
of the funds or income from them.
(g) A management plan as provided for in Sec. 144.14.
Sec. 144.14 What must the Tribal Management Plan contain?
The Tribal Management Plan required by Sec. 144.13 must include
each of the following.
(a) Tribal investment goals and the strategy for achieving them.
[[Page 24735]]
(b) A description of the protection against the substantial loss of
principal, as set forth in Sec. 144.16.
(c) A copy of the tribe's ordinances and procedures for managing or
overseeing the management of the funds to be withdrawn. These must
include adequate protections against fraud, abuse, and violations of
the management plan.
(d) A description of the tribe's previous experience managing or
overseeing the management of invested funds. This should include
factual data of past performance of tribally-managed funds (i.e.,
audited reports) and the identity and qualifications of the tribe's
investment officer.
(e) A description of the capability of all of the individuals or
investment institutions that will be involved in managing and investing
the funds for the tribe. Provide copies of state or federal security
applications for account executive(s).
(1) Investment entities named must submit:
(i) Ownership information (including Central Registry Depository
(CRD) numbers);
(ii) Asset size and capitalization;
(iii) Assets under management;
(iv) Performance statistics on managed accounts for the past 5
years; and
(v) Any adverse actions by licensing and/or regulatory bodies
within the past 5 years.
(2) In addition, we may ask about:
(i) Soft dollar arrangements;
(ii) Affiliation with broker dealers, banks, insurance and/or
investment companies;
(iii) Research done in house;
(iv) Recent changes in active portfolio managers; and
(v) Any other information necessary to make an adequate evaluation
of the proposed plan.
(f) A description of how the plan will ensure that the fund manager
will comply with any conditions established in judgment fund plans or
settlement acts.
(g) Proof of liability insurance of the investment firm.
(h) Proof of liability insurance that protects against fraud for
those Tribal Council members with authority to disburse funds. In many
tribes the chairperson, and the comptroller and/or the tribal
treasurer, for example, would be the positions having this authority.
(i) A plan for custodianship of investment securities that
includes:
(1) Name of persons in the tribe who can direct the custodian;
(2) Name of the custodian;
(3) Copy of intended custodian agreement;
(4) Size of custodian operation;
(5) Disclosure of any security lending provisions; and
(6) Insurance coverage.
(j) A tribal council agreement to provide an annual audit and
report on performance of withdrawn funds to the tribal membership, with
a copy to: Office of the Special Trustee for American Indians,
Department of the Interior, MS-5140, 1849 C Street NW, Washington, DC
20240. This agreement must include:
(1) A statement that the copy to the Special Trustee is for
information only, and infers no liability on our part regarding the
audit results, nor does it infer a requirement for us to take any
action whatsoever; and
(2) A description of the steps (including audit performance and
reporting) the tribe will take to ensure its membership that the tribe
is continuing to comply with the terms of the plan submitted and
approved pursuant to judgment fund limitations (if any) and/or the
terms of the Act.
(k) The proposed date for transfer of funds.
(l) A statement as to whether the tribe chooses to receive the
withdrawal as a cash balance transfer, as a transfer of marketable
investments that we own for the tribe, or as a combination of the two.
(1) A cash balance transfer may require us to sell bonds, notes, or
other investments that we purchased when investing the tribe's monies.
(2) We cannot transfer non-marketable securities to a tribe. We can
only purchase and hold them and must sell them back to the U.S.
Treasury.
(3) If we sell a tribe's security at a loss (i.e., when market
value is less than book value or carrying value) we will first notify
the tribe. The tribe must instruct us to proceed with the sale and must
agree not to hold us responsible for the loss before we will make the
sale.
(4) If the tribe asks us to transfer marketable securities, upon
proper instructions from the new tribal custodian, we will order our
custodian to physically transfer the proper security to the new
custodian on the agreed upon date.
(m) Agreement that judgment award funds will have segregated
accounts.
(n) A description of the procedures for amending or revising the
plan.
Sec. 144.15 What is the approval process for management plans?
The Secretary will approve or disapprove each management plan,
based in part upon our recommendation.
(a) We will determine the completeness of the application, provide
for adequate professional review of the application and the management
plan, and provide technical assistance as necessary to make an
application complete.
(b) We will coordinate with area directors in confirming authority
of tribal governments to make requests, and in providing technical
assistance.
(c) We will approve or disapprove a request within 90 calendar days
of receiving a completed application. This 90-day period does not
include time that we spend awaiting a response from the tribe for
additional information that we have requested. All determinations will
be in writing, and all responses will be by certified mail.
(d) If we find that a plan does not meet the criteria in
Sec. 144.16, we will notify the tribe of shortcomings of the request,
and allow the tribe to respond before recommending formal disapproval.
(e) Before final approval, we will reach agreement with the tribe
on how many days after final approval we will transfer the funds. We
will transfer the funds as soon after final approval as the tribe or
manager is ready to receive them, unless we need additional time to
sell existing instruments.
Sec. 144.16 What criteria will be used in evaluating the management
plan?
Each plan must be approved by the appropriate tribal governing
body, and must be accompanied by a resolution approving the plan. The
plan must be reasonable in light of the trust responsibility and the
principles of Indian self-determination, and other appropriate factors,
including, but not limited to, the factors listed below:
(a) We will evaluate the individuals or entities that will manage
the funds to be withdrawn, or that will advise the tribe on investing
the funds to be withdrawn in order to determine if they have the
capability and experience to manage the funds. Among the elements we
will evaluate are: the number of years in business, the performance
record for funds management, and the ability to compensate the tribe if
the entity is found liable for failing to comply with the tribe's
management plan (i.e., its assets, bonding, and insurance).
(b) We will review the tribe's experience in managing investments.
We will compare this experience to the complexity of the proposed
management plan to determine whether the tribe has the experience to
manage its proposed plan or whether it should begin with a less complex
approach.
(c) We will evaluate the tribe's internal audit and control systems
for
[[Page 24736]]
overseeing or monitoring its investment activity.
(d) We will evaluate the adequacy of protection against substantial
loss of principal. Our determination will include a thorough evaluation
of the tribe's investment plan including:
(1) The goals and objectives;
(2) The proposed uses of the fund in order to meet business
objectives;
(3) The size and diversity of the investment portfolio (for
example, the class of stocks and the mixture of types of investments);
(4) The financial condition of the tribe;
(5) The inherent riskiness of the proposed investments; and
(6) The tribe's projected need and proposed timeframes to draw down
the funds being invested or the income from them.
(e) We will determine the likelihood that the plan will be
followed. We will base this determination on the contents of the
agreement between the tribe and the fund manager and other appropriate
factors.
Sec. 144.17 What special criteria will be used to evaluate management
plans for judgment or settlement funds?
For judgment or settlement funds, in addition to the criteria in
Sec. 144.16, we will determine if the plan adequately provides for
compliance with any conditions, uses of funds, or other requirements
established by the appropriate judgment fund plan or settlement act.
Sec. 144.18 When does the Department's trust responsibility end?
Our trust responsibility for funds withdrawn under this part ends
on the date that the funds are withdrawn. However at the time of
withdrawal neither we nor the tribe may be deemed to have accepted the
account balance at the time of withdrawal as accurate, or waived any
rights regarding the balance and our ability to seek compensation.
Sec. 144.19 How can the plan be revised?
Once a tribe has withdrawn its funds, the tribe may revise its plan
without our approval. All revisions should conform to the procedures
outlined in the approved management plan. The tribe should inform its
members of all revisions to a plan through normal tribal procedures
before the revisions are implemented.
Sec. 144.20 How can a tribe withdraw additional funds?
(a) If a tribe has withdrawn funds under an approved tribal
management plan and wishes to withdraw additional funds that will be
managed under the same plan, it need not submit a complete new
application. The tribe must:
(1) notify us of the additional amount it intends to withdraw and
whether the funds to be withdrawn are in kind or cash. (Written
notification should be provided to our address in Section 144.13);
(2) send us a tribal resolution approving the new withdrawal and
certifying that the funds are being withdrawn subject to the same
conditions and that they will be managed under the plan in the original
approved application;
(3) send us a copy of the most recent compliance audit or
investment report.
(b) After we finish our review we will release the additional
funds, unless the compliance audit or investment report indicates that
the tribe is not complying with its management plan. In this case, we
will not release the additional funds until the tribe demonstrates that
it is complying with the management plan.
Sec. 144.21 How may a tribe appeal denials under this part?
If we deny a request or do not approve an application within 90
days of a request, the tribe may address any problems that we identify
and resubmit a revised request, seek technical assistance, or appeal
the denial under 43 CFR Part 4.
Subpart C--Returning Tribal Funds to Trust
Sec. 144.30 How does a tribe notify the department if it wishes to
return withdrawn funds to Federal trust status?
If a tribe elects to return some or all of the funds it has
withdrawn from Federal trust status pursuant to this Act, it must first
notify us in writing at our address in Section 144.13. This
notification must provide a proposed date for the return of the funds,
as well as the amount of funds to be returned, or actual securities to
be delivered to the appropriate custodian.
Sec. 144.31 What part of withdrawn funds can be returned to trust?
A tribe may return all or a portion of the principal which was
removed from trust under this Act along with earnings and profits. We
will verify the amount declared for earnings before we accept a return.
We will accept any amount less than the original principal amount as a
principal amount.
Sec. 144.32 How often can funds be returned?
Tribes may return all or part of withdrawn funds no more than twice
a year, beginning no sooner than 6 months after date of withdrawal,
except with approval of the Secretary.
Sec. 144.33 How can funds be returned?
Funds may be returned either as cash or securities which meet the
requirements for investments in 25 U.S.C. 162(a). Cash can be
transferred to the US Treasury by Electronic Funds Transfers (EFT), or
the Automated Clearing House (ACH) process. Tribes must coordinate
transfer of ownership in securities with us to ensure proper credit to
the tribe. The securities must meet investment restrictions contained
in 25 U.S.C. 162(a).
Sec. 144.34 Can a tribe withdraw redeposited funds?
Yes, if a tribe wishes to withdraw redeposited funds from Federal
trust status, it must submit a written request to do so, accompanied by
a new resolution and any revisions it wishes to make in its original
management plan.
Subpart D--Technical Assistance
Sec. 144.40 How will the Department provide technical assistance for
tribes?
(a) We will provide direct or contract technical assistance, in
accordance with appropriations availability, to tribes for developing,
implementing, and managing Indian trust fund investment plans. We will
ensure that our legal, financial and other expertise is made fully
available to advise tribes in developing, implementing, and managing
investment plans.
(b) We may award grants to tribes for developing and implementing
plans for investing Indian tribal trust funds.
(c) Tribes may also obtain technical assistance on their own.
Sec. 144.41 What types of technical assistance are available?
The types of technical assistance include: investment planning;
accounting; selection of investment managers; monitoring of
investments; asset management; or other assistance appropriate to
support funds withdrawal.
Sec. 144.42 Who can provide technical assistance?
A sample of competent providers includes any of the following
entities with the appropriate skills and capabilities: available DOI or
BIA staff; intertribal organizations; public agencies; and contracted
private investment firms.
Sec. 144.43 How can a tribe apply for technical assistance?
(a) Tribes wishing technical assistance may request it by sending
us a letter along with a tribal resolution outlining
[[Page 24737]]
the technical assistance required, tribal resources which may be
applied to the need, and suggested provider, if known. The resolution
must state clearly that the assistance is needed for developing,
implementing, or managing an investment plan under the provisions of
this authority.
(b) Tribes requesting funds for technical assistance must send a
completed SF-424, APPLICATION FOR FEDERAL ASSISTANCE, and SF-424A,
BUDGET INFORMATION, along with a tribal resolution, detailing the
assistance specifically requested, and the suggested provider to our
address in Section 144.13.
(c) We will make grants subject to funds availability. We will
publish a notice in the Federal Register concerning the availability of
funding, deadlines for grants, the application process, and approval
criteria. If funding is limited, grants will be awarded based on
criteria that we feel will best meet the intent of the Act. We will
consult with tribes in determining annual criteria. Unsolicited grant
requests will not be accepted.
Sec. 144.44 What action will the Department take on requests for
technical assistance?
We will respond in writing to all requests for technical assistance
and grants, advising of decision, availability of appropriate expertise
and funding, and anticipated delivery of the service.
Dated: May 8, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-12143 Filed 5-15-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-11964 In the Matter of Implementation of Section 34(a)(1) of the Public Utility Holding Company Act of 1935, as Added by the Telecommunications Act of 1996
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24743-24749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11964]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[GC Docket No. 96-101, FCC 96-192]
In the Matter of Implementation of Section 34(a)(1) of the Public
Utility Holding Company Act of 1935, as Added by the Telecommunications
Act of 1996
agency: Federal Communications Commission.
action: Proposed rule.
-----------------------------------------------------------------------
summary: This notice of proposed rulemaking (NPRM) seeks comment on
proposed regulations which implement new section 34(a)(1) of the Public
Utility Holding Company Act of 1935 (PUHCA), as added by section 103 of
the Telecommunications Act of 1996. Under new section 34, registered
public utility
[[Page 24744]]
holding companies may now enter the telecommunications industry without
prior Securities and Exchange Commission (``SEC'') approval by
acquiring or maintaining an interest in an ``exempt telecommunications
company'' (``ETC''). Moreover, exempt public utility holding companies,
by owning or acquiring an interest in an ETC, may now acquire a ``safe
harbor'' from potential SEC regulation under PUHCA section 3(a).
Section 34(a)(1) requires the Commission to promulgate rules
implementing the procedure of determining ETC status within one year of
the date of enactment of the Telecommunications Act of 1996.
DATES: Interested parties may file comments on or before June 17, 1996
and reply comments on or before July 5, 1996. Written comments by the
public on the proposed and/or modified information collections are due
June 17, 1996. Written comments must be submitted by the Office of
Management and Budget (OMB) on the proposed and/or modified information
collections on or before July 15, 1996.
ADDRESSES: Comments and reply comments should be sent to the office of
the Secretary, Federal Communications Commission, 1919 M Street NW.,
Washington, DC 20554, with a copy to Lawrence J. Spiwak, Competition
Division, Office of General Counsel, Federal Communications Commission,
1919 M Street NW., Washington, DC 20554. Parties should also file one
copy of any documents filed in this docket with the Commission's copy
contractor, International Transcription Services, Inc., 2100 M Street
NW., Suite 140, Washington, DC 20037. Comments and reply comments will
be available for public inspection during regular business hours in the
FCC Reference Center, 1919 M Street NW., Room 239, Washington, DC
20554.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street NW., Washington, DC 20554, or via the Internet to
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725
17th Street NW., Washington, DC 20503 or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Lawrence J. Spiwak, Competition
Division, Office of General Counsel. (202) 418-1870. For additional
information concerning the information collections contained in this
NPRM contact Dorothy Conway at 202-418-0217, or via the Internet at
[email protected].
SUPPLEMENTARY INFORMATION: This NPRM contains proposed or modified
information collections subject to the Paperwork Reduction Act of 1995
(PRA). It has been submitted to the Office of Management and Budget
(OMB) for review under the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the proposed or modified
information collections contained in this proceeding.
Paperwork Reduction Act
This NPRM contains either a proposed or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collections
contained in this NPRM, as required by the Paperwork Reduction Act of
1995, Pub. L. No. 104-13. Public and agency comments are due at the
same time as other comments on this NPRM; OMB notification of action is
due 60 days from date of publication of this NPRM in the Federal
Register. Comments should address: (a) whether the proposed collection
of information is necessary for the proper performance of the functions
of the Commission, including whether the information shall have
practical utility; (b) the accuracy of the Commission's burden
estimates; (c) ways to enhance the quality, utility, and clarity of the
information collected; and (d) ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
OMB Approval Number: None.
Title: In the Matter of Implementation of Section 34(a)(1) of the
Public Utility Holding Company Act of 1935, as amended by the
Telecommunications Act of 1996, Notice of Proposed Rulemaking.
Type of Review: New collection.
Respondents: 15. There are fifteen registered public utility
holding companies.
Number of Respondents: 15. We anticipate that each registered
public utility holding company will make at least one application
annually.
Estimated Time Per Response: We estimate that each application will
take 16 hours to prepare. However, the Commission estimates that
respondents will hire attorneys to prepare information. The time for
coordinating the submission is ten hours per respondent.
Total Annual Burden: 150 hours.
Estimated costs per respondent: We estimate that the cost to each
respondent will be approximately $3,200, assuming 16 hours at $200/hour
for outside counsel.
Needs and Uses: The information will be used by the Commission to
determine whether persons satisfy the statutory criteria for ``exempt
telecommunications company'' status. Without such information, the
Commission could not determine whether persons satisfied the requisite
statutory criteria and therefore fulfill its responsibility under
section 34(a)(1) of PUHCA, as amended.
I. Introduction
1. This notice of proposed rulemaking (NPRM) seeks comment on
proposed regulations which implement new section 34(a)(1) of the Public
Utility Holding Company Act of 1935 (PUHCA), 15 U.S.C. 79 et seq., as
added by section 103 of the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996).\1\ Under new section 34, registered
public utility holding companies may now enter the telecommunications
industry without prior Securities and Exchange Commission (``SEC'')
approval by acquiring or maintaining an interest in an ``exempt
telecommunications company'' (``ETC'').\2\ Moreover, exempt public
utility holding companies, by owning or acquiring an interest in an
ETC, may now acquire a ``safe harbor'' from potential SEC regulation
under PUHCA section 3(a).\3\ The new law vests the Commission with
jurisdiction to determine whether a company warrants ETC status based
on specific statutory criteria.
---------------------------------------------------------------------------
\1\ The Telecommunications Act was enacted on February 8, 1996.
\2\ See PUHCA section 34(d).
\3\ See PUHCA section 34(c).
---------------------------------------------------------------------------
2. As explained below, we propose to implement section 34(a)(1) by
providing for a simple procedure for ETC determination, under which
applicants briefly describe their planned activities and certify that
they satisfy the specific statutory requirements and any applicable
Commission regulations. The Commission believes that its
responsibilities under section 34(a)(1) are limited to whether the
applicant meets the express statutory criteria for ETC status. Thus, we
believe that an ETC determination should not involve an inquiry into
the public interest merits of entry by the applicant. Nor would the
public interest or the intent of Congress be served if this process
became a regulatory barrier to
[[Page 24745]]
significant new entry into the telecommunications industry.
Accordingly, the proposed rules are limited to the filing requirements
and procedures for persons seeking exempt telecommunications company
status.\4\ We believe that this approach is the best mechanism to
expedite Congress's policy to allow holding companies to become
vigorous competitors in the telecommunications industry in order to
promote the public interest.\5\
---------------------------------------------------------------------------
\4\ The proposed rules would create a new subpart S, part 1
under title 47, chapter I of the Code of Federal Regulations.
\5\ See Report of the Committee on Commerce, Science and
Transportation on S. 652, S. Rep. No. 104-23, 104th Cong., 1st Sess.
at 8 (1995) (``Senate Report'').
---------------------------------------------------------------------------
3. The Commission invites interested parties to comment on the
matters raised in the proposed rules.
II. Background
4. PUHCA was designed to prevent financial abuse among public
utility holding companies and their affiliates.\6\ PUHCA accomplished
this goal by, among other things, restricting the activities and
investments that holding companies are permitted to make outside of
their core public utility businesses. Prior to the Telecommunications
Act of 1996, the provisions of PUHCA strongly deterred entry by
registered public utility holding companies into the telecommunications
industry.\7\ Somewhat anomalously, however, utilities that are not
public utility holding companies have always been free to enter the
telecommunications industry without prior SEC approval, regardless of
their size or scope.
---------------------------------------------------------------------------
\6\ See Arcadia, Ohio v. Ohio Power, 498 U.S. 73, 87, 111 S.Ct.
415, 423 (1990) (Stevens, J. concurring) (citations omitted).
\7\ See PUHCA sections 3(a), 11(b)(1).
---------------------------------------------------------------------------
5. Section 103 of the Telecommunications Act of 1996, which adds
new PUHCA section 34(a)(1), ends this disparate treatment by allowing
previously restricted holding companies to enter telecommunications
industries without prior SEC permission by acquiring or maintaining an
interest in an ``exempt telecommunications company.'' Under section
34(a)(1), an ETC is any person determined by the Commission to be
engaged directly or indirectly, wherever located, through one or more
affiliates (as defined in section 2(a)(11)(B) of PUHCA \8\), and
exclusively in the business of providing: (A) telecommunications
services \9\; (B) information services \10\; (C) other services or
products subject to the jurisdiction of the Commission; or (D) products
or services that are related or incidental to the provision of a
product or service described in (A), (B), or (C).
---------------------------------------------------------------------------
\8\ PUHCA section 2(a)(11)(B) defines ``affiliate'' as ``any
company 5 per centum or more of whose outstanding voting securities
are owned, controlled, or held with power to vote, directly or
indirectly, by such specified company.''
\9\ See Communications Act of 1934 section (3)(51), as added by
the Telecommunications Act of 1996, which provides that the term
``telecommunications service'' means the ``offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used to transmit the
telecommunications service.''
\10\ See Communications Act of 1934 section (3)(41), as added by
the Telecommunications Act of 1996, which provides that the term
``information service'' means the ``offering of a capability for
generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via
telecommunications, and includes electronic publishing, but does not
include any use of any such capability for the management, control,
or operation of a telephone system or the management of a
telecommunications service.''
---------------------------------------------------------------------------
6. Section 34(a)(1) provides that an applicant who has applied in
good faith for a determination of ETC status is deemed an ETC until the
Commission makes such a determination. Section 34(a)(1) requires the
Commission to render its determination of whether a person is an ETC
within 60 days of the receipt of an application. Section 34(a)(1) also
requires the Commission to notify the Securities and Exchange
Commission (SEC) whenever it determines that a person is an ETC.
Finally, Section 34(a)(1) requires the Commission to promulgate rules
implementing the procedure of determining ETC status within one year of
the date of enactment of the Telecommunications Act of 1996.
7. By obtaining ETC status, holding companies can now be vigorous
competitors in the telecommunications industry, and, with such
competition, bring more benefits to consumers.11 Indeed, Congress
recognized that utilities in general have experience in
telecommunications operations, as these companies already operate
telecommunications systems for the operation and monitoring of electric
generation, transmission and distribution for reliability
purposes.12 Moreover, Congress recognized that holding companies
have sufficient size and capital to be effective competitors to
incumbent telecommunications companies.13 Finally, Congress also
found that electric utilities, by entering into telecommunications, can
provide more efficient and more ecologically-sound energy service in
the form of ``peak-shaving'' and real-time energy management.14
---------------------------------------------------------------------------
\11\ See Senate Report at 7-8.
\12\ Id.
\13\ Id.
\14\ Id.
---------------------------------------------------------------------------
III. Discussion
A. Commission Responsibilities
8. We have previously held that the Commission's responsibilities
under section 34(a)(1) do not appear to extend beyond a determination
of whether an applicant complies with the relatively narrow
certification criteria enumerated above.15 This is evident not
only from the unambiguous language of section 34(a)(1), but from other
provisions of section 34, which preserve other statutory provisions
where the merits of ETC entry can be evaluated. For example, section
34(n) preserves this Commission's and applicable states' authority to
regulate the activities of an ETC under provisions of the
Communications Act of 1934 and any applicable state laws. In addition,
section 34(j) retains the jurisdiction of the Federal Energy Regulatory
Commission (FERC) and state commissions to determine whether a public
utility company may recover in its rates the costs of products or
services purchased from or sold to an associate or affiliate company
that is an ETC, regardless of whether such costs are incurred through
the direct or indirect purchase or sale of products or services from
the affiliate or associate company. Finally, section 34(m) provides
state commissions the authority to conduct independent audits of public
utility holding companies and their affiliates. We request comment on
whether our existing interpretation of the scope of our inquiry under
section 34(a)(1) is correct.
---------------------------------------------------------------------------
\15\ See Entergy Technology Company, (FCC 96-163, released April
12, 1996) (Entergy Technology).
---------------------------------------------------------------------------
B. Filing Requirements
9. We note that PUHCA section 34(a)(1) is similar to the ``exempt
wholesale generator'' paradigm of PUHCA section 32 which permits, inter
alia, public utility holding companies to enter into the independent
power production business.16 FERC, the agency responsible for
implementing PUHCA section 32, interpreted that statute as intended to
give it only narrowly circumscribed authority, and therefore
implemented a procedure whereby an applicant need only briefly describe
its planned activities and certify that it satisfies the requisite
statutory criteria.17
[[Page 24746]]
We believe that similar filing requirements should be required under
section 34(a)(1).
---------------------------------------------------------------------------
\16\ See PUHCA section 32, as added by section 711 of the
Energy Policy Act of 1992. 15 U.S.C. 79z-5a.
\17\ See Filing and Ministerial Procedures for Persons Seeking
Exempt Wholesale Generator Status, Order No. 550, 58 FR 8897
(February 18, 1993); order on reh'g, Order No. 550-A, 58 FR 21250
(April 20, 1993); see also 18 CFR 365.1 through 365.7.
---------------------------------------------------------------------------
10. Accordingly, for the company or companies which are eligible
companies owned and/or operated by the applicant, the proposed rules
would first require the applicant to provide a brief description of the
planned activities of the company or companies which are eligible
companies owned and/or operated by the applicant. Second, the proposed
rules would require a person seeking ETC status (applicant) to file a
sworn statement, by a representative legally authorized to bind the
applicant, attesting to any facts or representations presented to
demonstrate eligibility for ETC status, including a representation that
the applicant is engaged directly, or indirectly, wherever located,
through one or more affiliates (as defined in section 2(a)(11)(B) of
the Public Utility Holding Company Act of 1935), and exclusively in the
business of providing: (A) telecommunications services; (B) information
services; (C) other services or products subject to the jurisdiction of
the Commission; or (D) products or services that are related or
incidental to the provision of a product or service described in (A),
(B), or (C). Finally, the proposed rules would require an applicant to
provide a sworn statement, by a representative legally authorized to
bind the applicant, certifying that the applicant satisfies Part 1,
Subpart P, of the Commission's regulations, 47 CFR 1.2001 through
1.2003r, regarding the Anti-Drug Abuse Act of 1988, 21 U.S.C. 862. The
application would then be placed on public notice for comment on the
adequacy or accuracy of the representations contained therein.18
The Commission would review the application and any comments to
determine whether the application meets the statutory requirements for
ETC status. This analysis would be the extent of the Commission's
inquiry. To the extent parties believe that our inquiry should either
be more expansive or narrow, we invite them to comment on this issue.
---------------------------------------------------------------------------
\18\ See Section III.C.
---------------------------------------------------------------------------
11. We also seek comment on whether we should adopt rules governing
applications seeking ETC status filed by different entities that are
affiliates of a common holding company parent. While the Act apparently
contemplates that every entity seeking ETC status must apply to the
Commission,19 we see no reason why this should require separate
entities affiliated with the same holding company parent to seek ETC
status through separate applications and proceedings. Such a process
seems administratively wasteful and duplicative.20 Accordingly we
propose to allow multiple entities seeking ETC status, which are
affiliated with the same public utility holding company parent, to seek
a determination for all such entities through a single consolidated
application. In such a case, the application should contain for each
affiliate sufficient information as required by our rules to make a
separate ETC determination for that affiliate. We seek comment on this
proposal.
---------------------------------------------------------------------------
\19\ Section 34(a) provides that ``No person shall be deemed to
be an exempt telecommunications company under this section unless
such person has applied to the [Commission] for a determination
under this paragraph.''
\20\ For example, six affiliates of a single public utility
holding company recently filed six separate applications for
determination of ETC status.
---------------------------------------------------------------------------
12. The proposed rules also require applicants to serve a copy of
the ETC application on the SEC and affected State commissions. An
affected State commission is defined as the State commission of each
state in which the ETC will be located or doing business. Although
service of applications on the SEC and State commissions is not
required by law, section 34 of PUHCA specifically contemplates a role
for the SEC and State commissions insofar as certain eligible companies
are concerned. It also contemplates that the SEC be aware of ETC
determinations. The Commission sees no reason not to inform these
agencies of pending ETC applications at an early stage, particularly
since the copying and mailing costs associated with serving filings on
the SEC and affected State commissions will be minimal. We note that
FERC took a similar approach in its analogous rules.21 We invite
parties to comment on this proposal.
---------------------------------------------------------------------------
\21\ See 18 CFR Sec. 365.3.
---------------------------------------------------------------------------
C. Notice and Comment
13. As of April 25, 1995, the Commission has received 11
applications for ETC status, three of which have been granted.22
While staff placed these applications on public notice for comment,
there is no requirement in the Telecommunications Act that the
Commission do so. On the other hand, neither is there any prohibition
on the Commission's discretion to do so. The proposed rules would
provide for public notice and comment on ETC applications, but would
limit consideration of any submissions that might be made in response
to such public notices to the narrow purpose of determining the
adequacy or accuracy of the certification made to satisfy the statutory
criteria. Given the limited focus of the Commission's inquiry under
section 34(a)(1), we do not believe that it would be appropriate to
allow persons to raise issues that fall outside the purview of the
statutorily fixed determination, and that go to the public interest
merits of an applicant's proposed entry. Accordingly, the proposed
rules specify that parties may file comments on a proposed application,
but that any comments must be limited to the adequacy and accuracy of
the representations contained therein. Comments on the adequacy of the
representations may include whether the application is within the scope
of the ETC criteria, e.g., the extent to which applicant's services
constitute telecommunications, information or related services.
Applicants would then have the opportunity to respond to any comments
filed. The Commission requests comments on the tentative conclusion to
allow comments, but to limit such comments to the accuracy and adequacy
of the representations contained in the applications. We also request
comments on the length of the time period which should be set for such
comments.
---------------------------------------------------------------------------
\22\ See CSW Communications, Inc., (FCC 96-152, released April
4, 1996); Entergy Technology, supra n. 15; Entergy Technology
Holding Company, (FCC 96-162, released April 12, 1996).
---------------------------------------------------------------------------
D. Implementation
14. The proposed rules specify that the Commission must act within
60 days of receipt of an application. Applications that do not meet the
requirements of the proposed rule set forth in proposed 1.4002 will be
rejected. Under the proposed rules, if the Commission does not act
within 60 days, the application is deemed to have been granted.
15. Proposed Sec. 1.4005 requires the Secretary of the Commission
to notify the SEC whenever an application for ETC status is granted, as
explicitly required by section 34(a)(1) of PUHCA.
E. Change in Circumstances
16. An ETC determination is based on the facts that are presented
to the Commission. Any material variation from those facts may render
an ETC determination invalid. Accordingly, proposed section 1.4006
requires ETCs, within 30 days of any material change in facts that may
affect an ETC's eligibility for ETC status under section 34(a)(1) of
the Public Utility Holding Company Act of 1935, to either: (a)
[[Page 24747]]
apply to the Commission for a new determination of ETC status; (b) file
a written explanation with the Commission of why the material change in
facts does not affect the ETC's status; or (c) notify the Commission
that it no longer seeks to maintain ETC status. To the extent persons
other than the ETC applicant inform the Commission of a material change
of circumstances, the ETC will be given the opportunity to respond and
the Commission will take further action as appropriate. The Commission
requests comments on this proposed rule.
IV. Procedural Matters
A. Regulatory Flexibility Act
17. As required by Section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in the document. The IRFA is set forth below. Written public
comments are requested on the IRFA. These comments must be filed in
accordance with the same filing deadlines as comments on the rest of
the NPRM, but they must have a separate and distinct heading
designating them as responses to the Initial Regulatory Flexibility
Analysis. The Secretary shall send a copy of the NPRM, including the
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with section 603(a) of the Regulatory
Flexibility Act.23
---------------------------------------------------------------------------
\23\ Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq.
(1981).
---------------------------------------------------------------------------
B. Ex Parte Rules--Non-Restricted Proceeding
18. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission's rules.24
---------------------------------------------------------------------------
\24\ See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
---------------------------------------------------------------------------
C. Comment Dates
19. Pursuant to applicable procedures set forth in Secs. 1.415 and
1.419 of the Commission's rules, interested parties may file comments
on or before June 17, 1996, and reply comments on or before July 5,
1996.25 To file formally in this proceeding, parties must file an
original and four copies of all comments, reply comments, and
supporting comments. If parties want each Commissioner to receive a
personal copy of their comments, parties must file an original plus
nine copies. Parties should send comments and reply comments to Office
of the Secretary, Federal Communications Commission, 1919 M Street NW.
Washington, D.C., 20554. Comments and reply comments will be available
for public inspection during regular business hours in the Reference
Center of the Federal Communications Commission, Room 239, 1919 M
Street NW., Washington, D.C. 20554.
---------------------------------------------------------------------------
\25\ See 47 CFR 1.415 and 1.419.
---------------------------------------------------------------------------
D. Paperwork Reduction Act
20. This NPRM contains either a proposed or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collections
contained in this NPRM, as required by the Paperwork Reduction Act of
1995, Pub. L. No. 104-13. Public and agency comments are due at the
same time as other comments on this NPRM; OMB comments are due 60 days
from date of publication of this NPRM in the Federal Register. Comments
should address: (a) whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
21. Written comments by the public on the proposed and/or modified
information collection are due on or before June 17, 1996 and reply
comments on or before July 5, 1996. Written comments must be submitted
by the Office of Management and Budget (OMB) on the proposed and/or
modified information collections on or before 60 days after date of
publication in the Federal Register. In addition to filing comments
with the Secretary, a copy of any comments on the information
collection contained herein should be submitted to Dorothy Conway,
Federal Communications Commission, Room 234, 1919 M Street NW.,
Washington, DC 20554, or via the Internet to [email protected] and to
Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 - 17th Street NW.,
Washington, DC 20503 or via the Internet to [email protected].
E. Legal Authority
22. Authority for issuance of this NPRM is contained in section
34(a)(1) of the Public Utility Holding Company Act of 1935 (PUHCA), as
amended by section 103 of the Telecommunications Act of 1996, Pub. L.
No. 104-104, 110 Stat. 56 (1996), and sections 4(i), 4(j) and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i),
154(j), and 303(r).
F. Further Information
23. For further information concerning this proceeding, contact
Lawrence J. Spiwak, Competition Division, Office of General Counsel at
(202) 418-1870.
Initial Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act, the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the policies and
rules proposed in this Notice of Proposed Rule Making (NPRM). Written
public comments are requested on the IRFA.
Reason for Action: This rulemaking proceeding was initiated to
secure comment on proposals for establishing filing requirements and
procedures for implementing section 34(a)(1) of the Public Utility
Holding Company Act of 1935 (PUHCA), as amended by section 103 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
(1996), and sections 4(i), 4(j) and 303(r) of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r).
Objectives: The proposed rules, if adopted, would provide filing
requirements and procedures to expedite public utility holding company
entry into the telecommunications industry. To achieve this goal, the
proposed regulations require persons seeking a determination of ETC
status to file in good faith for a determination by the Commission.
Applicants would be required to file with the Commission a brief
description of their planned activities, and a sworn statement
attesting to any facts presented to demonstrate eligibility for ETC
status and attesting to any representation otherwise offered to
demonstrate eligibility for ETC status. Applicants would also be
required to submit sworn statements certifying that they complied with
part 1, subpart P, of the Commission's regulations, 47 CFR 1.2001
through 1.2003, regarding implementation of the Anti-Drug Abuse Act of
1988, 21 U.S.C. 862. Finally, applicants would be required to serve
copies of their application with the SEC and affected state
commissions.
Legal Basis: The proposed action is authorized by section 34(a)(1)
of the Public Utility Holding Company Act of 1935 (PUHCA), as amended
by section
[[Page 24748]]
103 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (1996), and sections 4(i), 4(j) and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j) and
303(r).
Reporting, Recordkeeping, and Other Compliance Requirements: Under
the proposal contained in the NPRM, within thirty days of any change in
material fact that may affect ETC status, persons who received ETC
status have an affirmative duty to either: (a) apply to the Commission
for a new determination of ETC status; (b) file a written explanation
with the Commission of why the material change in facts does not affect
the ETC's status; or (c) notify the Commission that it no longer seeks
to maintain ETC status.
Federal Rules Which Overlap, Duplicate or Conflict With These
Rules: None.
Description, Potential Impact, and Number of Small Entities
Involved: The proposed rules are designed to provide an expedited
procedural process as contemplated in the Section 34(a)(1) of PUHCA.
The proposed rules should therefore increase the flexibility of small
businesses with minimal administrative burden. After evaluating
comments filed in response to the NPRM, the Commission will examine
further the impact of all rule changes on small entities and set forth
its findings in the Final Regulatory Flexibility Analysis.
Significant Alternatives Minimizing the Impact on Small Entities
Consistent with the Stated Objectives: This NPRM solicits comment on a
variety of alternatives. Any additional significant alternatives
presented in the comments will also be considered.
IRFA Comments: We request written public comment on the foregoing
Initial Regulatory Flexibility Analysis. Comments must have a separate
and distinct heading designating them as responses to the IRFA and must
be filed by the comment deadlines set forth in this NPRM.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Telecommunications.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 1 of title 47 of the Code of Federal Regulations is proposed
to be amended as follows:
PART 1--PRACTICE AND PROCEDURE
The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. A new subpart S is added to part 1 to read as follows:
Subpart S--Exempt Telecomunications Companies
Sec.
1.4000 Purpose.
1.4001 Definitions.
1.4002 Contents of application and procedure for filing.
1.4003 Effect of filing.
1.4004 Commission action.
1.4005 Notification of Commission action to the Securities and
Exchange Commission.
1.4006 Procedure for notifying Commission of material change in
facts.
1.4007 Comments.
Subparts--Exempt Telecommunications Companies
Sec. 1.4000 Purpose.
The purpose of part 1, subpart S, is to implement section 34(a) of
the Public Utility Holding Company Act of 1935, 15 U.S.C. 79 through
79z-56 as added by section 103 of the Telecommunications Act of 1996,
Public Law No. 104-104, 110 Stat. 56.
Sec. 1.4001 Definitions.
(a) For the purpose of this part, the terms telecommunications
services and information services shall have the same meanings as
provided in the Communications Act of 1934, as amended;
(b) Commission shall be defined as the Federal Communications
Commission; and
(c) ETC shall be defined as an exempt telecommunications company.
Sec. 1.4002 Contents of application and procedure for filing.
A person seeking status as an exempt telecommunications company
(applicant) must file with the Commission with respect to the company
or companies which are eligible companies owned and/or operated by the
applicant, and serve on the Securities and Exchange Commission and any
affected State commission, the following:
(a) A brief description of the planned activities of the company or
companies which are or will be eligible companies owned and/or operated
by the applicant;
(b) A sworn statement, by a representative legally authorized to
bind the applicant, attesting to any facts or representations presented
to demonstrate eligibility for ETC status, including a representation
that the applicant is engaged directly, or indirectly, wherever
located, through one or more affiliates (as defined in section
2(a)(11)(B) of the Public Utility Holding Company Act of 1935), and
exclusively in the business of providing:
(1) Telecommunications services;
(2) Information services;
(3) Other services or products subject to the jurisdiction of the
Commission; or
(4) Products or services that are related or incidental to the
provision of a product or service described in paragraphs (b)(1), (2),
or (3) of this section; and
(c) A sworn statement, by a representative legally authorized to
bind the applicant, certifying that the applicant satisfies part 1,
subpart P, of the Commission's regulations, 47 CFR 1.2001 through
1.2003, regarding implementation of the Anti-Drug Abuse Act of 1988, 21
U.S.C. 862.
Sec. 1.4003 Effect of filing.
A person applying in good faith for a Commission determination of
exempt telecommunications company status will be deemed to be an exempt
telecommunications company from the date of receipt of the application
until the date of Commission action pursuant to Sec. 1.4004.
Sec. 1.4004 Commission action.
If the Commission has not issued an order granting or denying an
application within 60 days of receipt of the application, the
application will be deemed to have been granted as a matter of law.
Sec. 1.4005 Notification of Commission action to the Securities and
Exchange Commission.
The Secretary of the Commission will notify the Securities and
Exchange Commission whenever a person is determined to be an exempt
telecommunications company.
Sec. 1.4006 Procedure for notifying commission of material change in
facts.
If there is any material change in facts that may affect an ETC's
eligibility for ETC status under section 34(a)(1) of the Public Utility
Holding Company Act of 1935, the ETC must, within 30 days of the change
in fact, either:
(a) Apply to the Commission for a new determination of ETC status;
(b) File a written explanation with the Commission of why the
material change in facts does not affect the ETC's status; or
[[Page 24749]]
(c) Notify the Commission that it no longer seeks to maintain ETC
status.
Sec. 1.4007 Comments.
(a) Any person wishing to be heard concerning an application for
ETC status may file comments with the Commission within fifteen (15)
days from the release date of a public notice regarding the
application, or such other period of time set by the Commission. Any
comments must be limited to the adequacy or accuracy of the
application.
(b) Any person who files comments with the Commission must also
serve copies of all comments on the applicant.
(c) An applicant has seven (7) days to reply to any comments filed
regarding the adequacy and accuracy of its application, or such other
period of time as set by the Commission. Such reply shall be served on
the commenters.
[FR Doc. 96-11964 Filed 5-15-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-11859 National Institute for Occupational Safety and Health (NIOSH); Meeting
[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Proposed Rules]
[Pages 24740-24743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11859]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
42 CFR Part 84
National Institute for Occupational Safety and Health (NIOSH);
Meeting
AGENCY: National Institute for Occupational Safety and Health, CDC,
HHS.
ACTION: Public meetings and request for comments.
-----------------------------------------------------------------------
SUMMARY: This document is to request public comments in preparation of
rulemaking to revise current NIOSH procedures for certifying
respiratory devices used to protect workers in hazardous environments.
NIOSH is seeking public comments on issues of privatization and fees
related to possible changes in its administration of respirator
certification, and comments on establishing priorities for future
rulemaking. NIOSH will hold three public meetings in June 1996 to
discuss these issues and will consider all comments provided in
response to this notice.
DATES: The meetings are scheduled as follows:
1. June 6, 1996, 9:00 a.m. to 5:00 p.m., Washington, D.C.
2. June 7, 1996, 9:00 a.m. to 5:00 p.m., Washington, D.C.
3. June 8, 1996, 9:00 a.m. to 5:00 p.m., Northglenn, Colorado
ADDRESSES: The meetings will be held at the following locations:
1. Washington--Holiday Inn Capitol (Columbia Room), 550 C Street SW.,
Washington, DC 20024
2. Washington--Holiday Inn Capitol (Columbia Room), 550 C Street SW.,
Washington, DC 20024
[Open to the public, limited only by the space available.
The meeting room accomodates approximately 150 people.]
3. Northglenn--Holiday Inn Denver Northglenn (Pikes Peak Room), 10 East
120th Avenue, Northglenn, Colorado 80233
[Open to the public, limited only by the space available.
The meeting room accommodates approximately 200 people.]
Comments should be mailed to the NIOSH Docket Office, Robert A.
Taft Laboratories, M/S C34, 4676 Columbia Parkway, Cincinnati, Ohio
45226, telephone 513/533-8450, fax 513/533-8285. Comments may also be
submitted by e-mail to: [email protected]. E-mail attachments
should be formatted as WordPerfect 4.2, 5.0, 5.1/5.2, 6.0/6.1, or ASCII
files. Requests to participate in the public meeting should be mailed
to the NIOSH Docket Officer, at the same address.
FOR FURTHER INFORMATION CONTACT:
Richard W. Metzler or Roland Berry Ann, NIOSH, 1095 Willowdale Road,
Morgantown, West Virginia 26505-2888, telephone 304/285-5907.
SUPPLEMENTARY INFORMATION:
I. Background
Under the Federal Mine Safety and Health Act of 1977 (Pub. L. 91-
173, as amended by Pub. L. 95-164), NIOSH and the Mine Safety and
Health Administration are mandated to approve respirators used for
worker protection. In June 1995, NIOSH published a final rule (42 CFR
part 84), beginning a stepwise or ``modular'' approach to updating the
respirator certification process and requirements. The 1995 final rule
transferred the existing standards for respirator certification from
the labor section to the health section of federal regulations to
expedite NIOSH rulemaking to improve these standards. Concurrently, the
final rule revised existing standards for certifying the most commonly
used respirators, air-purifying respirators used to filter out toxic
particulates. NIOSH had identified these revisions as
[[Page 24741]]
the highest priority for improving the protection of workers using
respirators.
II. Public Meetings
NIOSH will convene two public meetings to obtain comments from
interested parties on priorities for updating respirator certification
standards and other issues addressed in this notice.
The tentative agenda of the meetings includes a brief summary by
NIOSH of plans for rulemaking and a review of the issues outlined in
this notice. This will be followed by presentations by the public.
Participants will be given fifteen minutes to present comments.
Participants may comment on the issues addressed by this notice as well
as other concerns related to respirator certification.
Any interested person may, consistent with the orderly conduct of
the meeting, record or otherwise make a transcript of the meeting. Each
participant may submit relevant written information, data, or views for
inclusion in the record of the meeting. Any person who desires to
submit an advance written statement may file it with the NIOSH Docket
Office. A participant may be accompanied by a reasonable number of
additional persons, space permitting.
All interested persons are encouraged to submit written comments to
assure receipt on or before the close of business August 16, 1996, and
to advise the NIOSH Docket Office by close of business May 24, 1996, of
their intent to participate in the informal public meeting. All
requests to present at the informal public meeting should contain the
name, address, and telephone number, relevant business affiliations of
the presenter, a brief summary of the presentation, and the approximate
time requested for the presentation. NIOSH requests that oral
presentations be limited to 15 minutes.
After reviewing the requests for presentations, NIOSH will notify
each presenter by mail or telephone of the approximate time that their
oral presentation is scheduled to begin. If a participant is not
present when his or her presentation is scheduled to begin, the
remaining participants will be heard in order. At the conclusion of the
meeting, an attempt will be made to allow presentations by any
scheduled participants who missed their assigned times. Attendees who
wish to speak but did not submit a request for the opportunity to make
presentations may be given this opportunity at the conclusion of the
meeting, at the discretion of the presiding officer.
The record of the informal public meetings will consist of the
meeting schedule and any written comments submitted at the meetings or
in response to the meetings. The meetings will be video taped for the
record. In addition, an administrative record will be established
including a record of the informal public meetings and all comments
received in response to this notice. The administrative record will be
made available for viewing and copying in the NIOSH Docket Office. All
requests for any portion of the administrative record must be submitted
in writing.
III. Matters To Be Discussed
A. Priority of Technical Modules
1. Background
On May 24, 1994, NIOSH published a Notice of Proposed Rulemaking
(50 FR 26580) which led to promulgation of the current respirator
certification standards at 42 CFR Part 84. This proposal introduced the
modular approach to rulemaking NIOSH has adopted and listed anticipated
subjects and a sequence for future rulemaking. These subjects (in
proposed priority order) were: assigned protection factors,
administrative program (application submittal and processing, fee
structure, etc.), quality assurance requirements, gas and vapor
requirements (including maximum use concentrations), positive pressure
self contained breathing apparatus requirements, and simulated
workplace protection factor test. In response to that notice, NIOSH
received numerous suggestions for additional module subjects, such as
powered air-purifying respirators, smoke masks, fit testing, supplied
air respirators, gas masks, and combination respirators. Many
commenters also recommended a priority order for the sequence of
rulemaking. However, opinions on priorities were diverse and few
commenters included a rationale to support their suggested priorities.
None of the commenters indicated specific changes needed to improve
current standards. One commonality among suggestions was that they all
referred to the need to improve individual respirator classes (e.g.,
gas and vapor, powered air purifying, self contained, etc.). However,
component specific upgrades that are applicable across respirator
classes (e.g., head harness, facepiece, breathing hose, etc.) are also
possible in the modular approach.
2. Issues for Comment
Specifically, NIOSH is seeking comments on the following issues for
prioritizing the development of modules:
Issue 1. Diverse criteria may be considered to establish priorities
for improving respirator certification standards.
These include standard public health criteria such as the number of
persons (workers) affected, the seriousness of hazards or problems that
would be addressed, and the extent to which changes would improve
protection. Other criteria that also may have an important influence on
worker protection include, opportunity for cost savings (reducing costs
for manufacturers and purchasers of respirators) and the expediency by
which a change can be implemented (e.g., the existence of adoptable
consensus standards).
(1) What criteria should be used to rank the priority of each
module?
Issue 2. NIOSH will be developing a complete, ranked listing of
priorities for rulemaking, including justification for the ranking.
(1) In general terms, what changes to current respirator
certification requirements are needed in the modules identified in this
notice?
(2) Are there any subject areas for improving current certification
requirements that are not identified in this notice that should be
considered in the prioritizing process? If so, please include an
explanation of the importance of the subject and describe in general
terms the changes needed in current requirements.
(3) How should the modules be ranked, and why? Please provide
criteria and data or reasoning used to determine ranking.
(2) Are there existing national or international standards that
could be adopted by NIOSH to replace current certification requirements
pertaining to a given module? Please provide a rationale and indicate
any inadequacies of the suggested standard.
(3) How would potential changes to current requirements achieved
through a proposed module affect public health?
(4) Which industries and how many workers would be affected by
potential changes achieved through a proposed module?
(5) What would be the technical feasibility of suggested changes?
(6) What would be the economic impact to respirator manufacturers,
purchasers, and users resulting from the suggested changes?
(7) What other factors relate to the priority ranking of the
proposed module?
Issue 3. NIOSH will inform the respirator community of regulatory
priorities to allow research and planning to be coordinated with the
[[Page 24742]]
development of new standards. However, these priorities may change as
new needs are identified. NIOSH can readily notify respirator
manufacturers directly about these changes.
(1) How should NIOSH notify respirator purchasers and users of
revised priorities?
B. Administrative/Quality Assurance Module
1. Background
NIOSH certification requirements (42 CFR Part 84) contain
application procedures and technical requirements for respirators.
NIOSH currently tests and evaluates a product for a fee paid by the
applicant. Pretesting is required by the manufacturers. Drawings and
specifications submitted with the application are evaluated to ensure
that applicable technical requirements of 42 CFR Part 84 are met. This
includes evaluation of the manufacturer's quality control plan.
Manufacturers must assure that approved respirators continue to
conform to the specifications and design approved by NIOSH. Any
proposed change to the documentation must be submitted prior to
implementation of the change. If NIOSH approves the change, it issues
an extension of certification for the modified product. Manufacturers
are authorized to mark the product to identify its certification
status. The introduction of new performance standards for particulate
filters in the NIOSH certification requirements promulgated in June
1995 increased competition, caused the development of new technologies,
and resulted in new uses for respirators. All of these factors have
resulted in a dramatic increase in the volume of respirator
certification applications submitted to NIOSH. This increased volume of
application continues unabated eight months later and is overwhelming
NIOSH resources to process applications. The number of applications
awaiting processing (the working inventory), and the length of
processing time are both increasing, despite an accelerated rate of
processing.
All of the manufacturers who hold NIOSH certifications under Part
11 will apply for certification under Part 84. To date, approximately
one-third of these manufacturers have applied for certification under
Part 84. In addition, many manufacturers that have already received
certifications under Part 84 have informed NIOSH that their volume of
applications will continue at an increased level for the next 18 to 24
months. NIOSH anticipates similar increases in the volume of
applications with the promulgation of additional modules to improve
certification requirements.
The long-term prospect of high demand for processing applications
is leading NIOSH to investigate alternatives to expedite certification.
The current application process, which is largely based on practices
established in the early 1900's by the U.S. Bureau of Mines, cannot
expeditiously respond to the volume of applications associated with
periodic improvements to the standards.
In response to this situation, NIOSH is considering adopting new
administrative and quality assurance procedures that will enable the
Institute to use private sector resources. A primary concern in
investigating this option is safeguarding the integrity and public
credibility of the certification process. NIOSH may consider adopting
national and international standards (e.g., ISO-9000, Nationally
Recognized Testing Laboratories (NRTL), etc.) where feasible, to
provide oversight for the certification process.
2. Issues for Comment
Specifically, NIOSH is seeking comments on the following issues for
the development of this module:
Issue 1. Independent laboratories should be capable of performing
routine testing required for respirator certification. Transferring
this testing to private laboratories would enable NIOSH to focus on
aspects of the certification program other than pre-certification
evaluation. Newly available resources could be used for investigation
of complaints about certified respirators and development of testing
procedures and new standards for improving the certification standards.
However, NIOSH must ultimately be able to ensure the integrity of the
program.
(1) Are private sector testing laboratories capable of conducting
the respirator testing currently performed by NIOSH?
(2) What qualification requirements (e.g., certification by
National Voluntary Lab Accreditation Program (NVLAP), American National
Standards Institute (ANSI), NRTL, etc.) should NIOSH require of private
laboratories who perform certification and product audit testing under
NIOSH guidance?
(3) Should NIOSH assign the testing of a manufacturer's respirators
to laboratories approved by NIOSH or should the manufacturer be
permitted to use the laboratory of choice among approved laboratories?
(4) What type of monitoring should NIOSH perform to assure that
private sector laboratories continue to provide quality service?
Issue 2. Quality auditors with international certification are
authorized to conduct audits for International Organization of
Standardization (ISO) certification. The auditors could conduct audits
of manufacturers for NIOSH concurrently with audits required for ISO.
Combining these audits could result in fewer interruptions for the
manufacturer and lower inspector costs. NIOSH oversight of these
auditors can ensure that audit quality is comparable to that which has
been provided by NIOSH employees.
By primarily examining auditors, rather than manufacturing sites
and processes, NIOSH would be able to enhance worker protection. Use of
private sector quality auditors to perform routine manufacturing site
audits would allow manufacturing sites to be audited more frequently;
NIOSH audits each manufacturer on the average of once every four years,
while ISO audits are conducted twice a year. Use of ISO auditors would
also free up NIOSH resources to evaluate a potential certification
holder's quality control system prior to the production of any
certified respirators. This type of audit could be advantageous to both
the manufacturer and respirator users, reducing the potential for
manufacture and distribution of deficient respirators.
(1) What qualification requirements (e.g., certification by ANSI-
Registrar Accreditation Board, United Kingdom Accreditation Service,
International Auditor and Training Certification Association, etc.)
should NIOSH require for the acceptance of independent quality auditors
to perform manufacturing site audits under NIOSH guidance?
(2) What measures should NIOSH use to ensure the integrity of the
program using private quality auditors?
(3) What frequency of audits would be considered a minimum to
provide assurance that only quality products are distributed?
(4) Should manufacturing sites be audited prior to the issuance of
a NIOSH certification?
Issue 3. The fees and free structure for activities conducted in
the certification program are based on the fee schedule contained in 42
CFR Part 84. This fee schedule has not been updated since 1972, and
applies to only one of the five primary functions of the NIOSH
certification program. The fees are assessed only for pre-certification
technical evaluations and tests. The costs of conducting a
certification
[[Page 24743]]
program have risen over the years, but these increased costs have not
been reflected in certification charges. The fees charged for NIOSH
services do not recover the costs to maintain the program. NIOSH will
be updating the fee schedule to reflect the actual costs to maintain
the program.
(1) How should certification fees be structured and calculated to
recoup the cost of the certification process?
(2) Should manufacturers be required to pay for manufacturing site
and product audits?
(3) Should fees be collected by NIOSH for respirator complaint
investigations?
Issue 4. The certifications standards currently limit NIOSH to
certify only complete respirators. Standards are not provided to
evaluate component parts independently. There are not provisions in the
current addressing standardization and interchangeability of
components. Any change to a component part, or a replacement part that
differs from the original, can change the effectiveness of a
respirator, and decreased effectiveness normally cannot be detected by
the user. To ensure that respirators perform effectively, they must be
maintained as approved. Replacement parts are limited to those
specified in the certification for the manufacturer's assembly of the
respirator. These are the only components that have been evaluated for
effectiveness. As a result, a respirator user must obtain replacement
parts and service from the respirator's original manufacturer.
(1) Should NIOSH allow replacement parts for respirators by
manufacturers other than the original manufacturer of the respirator?
(2) How should the effectiveness of replacement parts be assured?
(3) Would NIOSH need to adopt or develop component-specific
certification requirements to allow alternate suppliers for replacement
parts?
(4) Should NIOSH consider certifying respirator components in
addition to, or instead of, complete respirator?
(5) Do other certifying agencies or standards organizations allow
suppliers other than the original manufacturer to provide replacement
parts for certified units?
(6) If suppliers other than the original manufacturer were
permitted to provide replacement parts, how should NIOSH monitor these
alternate suppliers?
(7) If suppliers other than the original manufacturer were
permitted to provide replacement parts, how should NIOSH monitor those
parts?
(8) Would NIOSH need to adopt design specifications to ensure that
interchangeability of parts is safe?
Issue 5. Products auditing is an ongoing NIOSH activity involving
the acquisition of respirators to assure compliance with NIOSH
certification requirements. These products are purchased from
distributors, inspected, and tested to verify they continue to meet the
NIOSH certification criteria. This activity provides a ``snapshot'' of
the results of quality control, quality assurance, and manufacturing
processes used to produce the certified respirator.
NIOSH currently procures approximately 64 respirators a year to
perform product audits. With increasing budget constraints and the very
small number of respirators that NIOSH can purchase each year, NIOSH
may require manufacturers to supply respirators upon request for
product audits.
(1) What would be the maximum number of respirator per year, aside
from problem investigations, that NIOSH should request from a
manufacturer, at no charge to NIOSH?
(2) How should NIOSH acquire products for audit (i.e., by voucher,
reimbursement, random selection by NIOSH at the manufacturer or
distributor)?
(3) Should manufacturer be charged for these product audits, since
they are a condition of certification?
Issue 6. The NIOSH certification is issued for an unlimited number
of units, without an expiration date. In the past, some certified
respirators have been removed from production for a period of time,
then returned to production. Some certification holders have even gone
out of business. There is currently no provision for notification to be
given to NIOSH of these events. Typically, NIOSH becomes aware of these
events only when attempting to purchase the affected respirator for
audit, or as a result of a field complaint. Consequently, NIOSH has no
information for most certified respirators on the number sold, or
whether or not they are still in production.
The NIOSH certification is only removed in the event a
certification rescission proceeding is invoked. Since 1919, only a
couple of rescission proceedings have occurred. These proceedings are
costly and time consuming to NIOSH, the manufacturers and users.
NIOSH is considering provisions that will inform the Institute on
the production of respirators under a certification. These provisions
could limit the time that a certification would be valid or require
notification of production status.
(1) Should the NIOSH certification be valid for a limited time?
(2) What conditions should be met for a time-limited NIOSH
certification to be renewable?
(3) What time limits should be used for a NIOSH certification and
renewal?
(4) Should certification holders be required to notify NIOSH of
changes in production status and the number of produced units when
production is halted?
(5) How would purchasers and users be affected if the certification
of their respirator expires?
(6) Would an expired certification benefit purchasers and users by
informing them that their respirator is no longer produced?
(7) Could information on the number of respirators produced under a
certification be used to benefit purchasers and users?
Availability and Access of Copies: Additional copies of this
document can be obtained by calling the NIOSH toll-free information
number (1-800-35-NIOSH, option 5, 9 a.m.-4 p.m. ET); the electronic
bulletin board of the Government Printing Office, 202/512-1387; and the
NIOSH Home Page on the World-Wide Web (http://www.cdc.gov/niosh/
homepage.html).
Dated: May 7, 1996.
Nancy C. Hirsch,
Acting Director, Management Analysis and Services Office, Centers for
Disease Control and Prevention (CDC).
[FR Doc. 96-11859 Filed 5-15-96; 8:45 am]
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