issue-1995-11-01•Federal Register proposed rules — 1995-11-01
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issue-1995-11-01Federal Register proposed rules — 1995-11-01Proposed Regulation
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FR Doc. 95-27144 Clean Air Act Proposed Approval of the Federal Operating Permits Program; California State Implementation Plan Revision; San Joaquin Valley Unified Air Pollution Control District
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55516-55521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27144]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[CA163-1-7251; AD-FRL-5323-4]
Clean Air Act Proposed Approval of the Federal Operating Permits
Program; California State Implementation Plan Revision; San Joaquin
Valley Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing interim approval for the Federal
Operating Permits Program submitted by the California Air Resources
Board on behalf of the San Joaquin Valley Unified Air Pollution Control
District (San Joaquin or District). This Program was submitted for the
purpose of complying with Federal requirements in title V of the Clean
Air Act which mandates that States develop, and submit to EPA, programs
for issuing operating permits to all major stationary sources and to
certain other sources. As part of San Joaquin's program, EPA is also
proposing to approve Rule 2530 Federally Enforceable Potential to Emit
under Clean Air Act sections 110 and 112(l). This rule creates
federally-enforceable limits on potential to emit for sources with
actual emissions less
[[Page 55517]]
than 50 percent of the major source thresholds.
DATE: Comments on this proposed action must be received in writing by
December 1, 1995.
ADDRESSES: Comments should be addressed to Frances Wicher, Mail Code A-
5-2, U.S. Environmental Protection Agency, Region IX, Air and Toxics
Division, 75 Hawthorne Street, San Francisco, California 94105.
Copies of the District's submission and other supporting
information used in developing the proposed interim approval including
the Technical Support Document are available for inspection during
normal business hours at the following location: Operating Permits
Section, A-5-2, Air and Toxics Division, U.S. EPA-Region IX, 75
Hawthorne Street, San Francisco, California 94105.
FOR FURTHER INFORMATION CONTACT: Frances Wicher, (415) 744-1250,
Operating Permits Section, A-5-2, Air and Toxics Division, U.S. EPA-
Region IX, 75 Hawthorne Street, San Francisco, California 94105.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Title V
As required under title V of the Clean Air Act as amended in 1990,
EPA has promulgated rules that define the minimum elements of an
approvable State operating permits program and the corresponding
standards and procedures by which the EPA will approve, oversee, and
withdraw approval of State operating permits programs (see 57 FR 32250
(July 21, 1992)). These rules are codified at 40 CFR part 70. Title V
requires States to develop, and submit to EPA, programs for issuing
operating permits to all major stationary sources and to certain other
sources. EPA has also issued numerous policy documents on implementing
part 70, many of which are contained in the docket for this proposal.
The Act requires that States develop and submit operating permit
programs to EPA by November 15, 1993, and that EPA act to approve or
disapprove each program within one year of receiving the submission.
The EPA's program review occurs pursuant to section 502 of the Act and
the part 70 regulations, which together outline criteria for approval
or disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to two years. If EPA has not fully approved a program by
two years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal program.
B. Federally-Enforceable Limits on Potential to Emit
Section 502(a) of the Act requires all major sources obtain title V
operating permits. To determine whether a source is major, the Act
focuses not only on a source's actual emissions, but also on its
potential emissions. Thus, a source that has maintained actual
emissions at levels below the major source threshold could still be
subject to title V permitting if it has the potential to emit (PTE)
major amounts of air pollutants.
However, in situations where unrestricted operation of a source
would result in a PTE above major-source levels, such sources may
legally avoid permitting by taking federally-enforceable PTE limits
below the applicable major source threshold. Federally-enforceable
limits are enforceable by EPA or by citizens in addition to the State
or Local agency. There are numerous mechanisms for creating federally-
enforceable limits including prohibitory rules that are approved into
the state implementation plan and, for limiting PTE for hazardous air
pollutants, under section 112(l) of the Act.
II. Proposed Action and Implications
A. Analysis of State Submission
The analysis contained in this notice focuses on the major elements
of San Joaquin's title V operating permit program and on the specific
elements that must be corrected to meet the minimum requirements of
part 70. The full program submittal, the Technical Support Document
(TSD), which contains a detailed analysis of the submittal, and other
relevant materials are available for inspection as part of the public
docket. The docket may be viewed during regular business hours at the
address listed above.
1. Title V Program Support Materials
San Joaquin's program was submitted for approval under title V and
part 70 by the California Air Resources Board (CARB) on July 3 and
August 17, 1995. Additional material was submitted by the District on
September 6 and 21, 1995. In submitting the District's title V program,
CARB requested source category-limited interim approval for the program
because California law currently exempts agricultural sources from all
permitting requirements including title V. The District's submission
contains a complete program description, District implementing and
supporting regulations, application and reporting forms, and other
supporting information. In addition, CARB submitted for all Districts
in the State a single Attorney General's opinion, State enabling
legislation, and certain other information regarding State law.
San Joaquin's Rule 2530 Federally Enforceable Potential to Emit was
submitted by CARB as a revision to the SIP and for approval under
section 112(l) of the Act on October 24, 1995.
EPA reviewed the District's program to assure that it contains all
the elements required by Sec. 70.4(b) (elements of the initial program
submission) and has found the program complete pursuant to
Sec. 70.4(e)(1) in a letter to the CARB on October 18, 1995. Rule 2530
was found to be complete pursuant to EPA's completeness criteria for
SIP revisions that are set forth in 40 CFR Part 51 Appendix V.
2. Title V Operating Permit Regulations and Program Implementation
The rules that constitute San Joaquin's title V program are Rules
2520 Federally Mandated Operating Permits (adopted June 15, 1995), Rule
2530 Federally Enforceable Potential to Emit (adopted June 15, 1995),
and elements of Rule 2201 New and Modified Stationary Source Review
(amended June 15, 1995). Other District rules that were submitted in
support of the District's title V program are Rules 1080 Stack
Monitoring (amended December 17, 1992), 1081 Source Sampling (amended
December 17, 1992), 2010 Permits Required (amended December 16, 1993),
2020 Exemptions (amended October 26, 1993), and 3010 Fees (amended July
21, 1995).1 These rules, along with the authorities granted the
District under California State law, substantially meet the
requirements of Secs. 70.2 (Definitions) and 70.3 (Applicability) for
applicability; Sec. 70.5(c) (Standard application form and required
information) for criteria that define insignificant activities and for
complete application forms; Secs. 70.4(b)(12) (Section 502(b)(10)
changes) and 70.6 (Permit content) for permit content including
operational flexibility; Sec. 70.7 (Permit issuance, renewal,
reopenings, and revisions) for public participation, permit issuance,
and permit modifications; Sec. 70.9 (Fee
[[Page 55518]]
determination and certification) for fees; and Sec. 70.11 for
enforcement authority.
\1\EPA is only approving the portions of these Rules that are
necessary to implement the District's title V program. Except for
Rule 2530, this approval does not constitute approval or indicate
the approvability of these rules under any other provisions of the
Act or EPA regulations.
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EPA has identified several interim approval issues affecting
applicability, application content, permit content, and permit issuance
and modifications procedures that must be corrected in order for the
San Joaquin program to receive full approval. These interim approval
issues are discussed in Section II.B.2. of this notice and detailed in
the TSD. EPA has also included in the summary section of the TSD its
understandings and interpretations of certain elements of the San
Joaquin rule including the use of EPA's January 25, 1995 transition
memorandum on limiting potential to emit; limits on EPA's objections to
permits; limits on the permit shield; consolidation of overlapping
applicable requirements; variances; the effective definition of title I
modifications; and administrative permit amendments. A copy of this
summary section may be obtained by contacting Frances Wicher at the
address listed at the beginning of this notice.
3. Permit Fee Demonstration
Section 502(b)(3) of the Act requires that each permitting
authority collect fees sufficient to cover all reasonable direct and
indirect costs required to develop and administer its title V operating
permits program. Each title V program submission must contain either a
detailed demonstration of fee adequacy or a demonstration that
aggregate fees collected from title V sources meet or exceed $25 per
ton of emissions per year (adjusted from 1989 by the Consumer Price
Index (CPI)). The $25 per ton amount is presumed, for program approval,
to be sufficient to cover all reasonable program costs and is thus
referred to as the ``presumptive minimum,'' (Sec. 70.9 (b)(2)(i)). For
FY 1996, the presumptive fee level is $30.93.
San Joaquin has opted to make a presumptive minimum fee
demonstration in order to show fee adequacy and meet the requirements
of Sec. 70.9 (Fee determination and certification). San Joaquin's fee
schedule (Rule 3010) requires title V facilities to pay an application
fee for initial permits, permit renewals, and permit modifications of
$15 per unit creditable to a $46 per hour processing fee. In addition,
the District charges an annual fee for permits to operate and a fee for
sources applying for preconstruction permits under Rule 2201. In
aggregate, title V sources in the Valley will pay a total annual fee of
$32.09 per ton in 1996. This amount is over the $30.93 per ton
presumptive minimum fee level for FY 1996.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and Commitments for Section 112 Implementation. San
Joaquin has demonstrated in its title V program submission adequate
legal authority to implement and enforce all section 112 requirements
through the title V permit. This legal authority is contained in the
State of California enabling legislation and in regulatory provisions
defining ``federally enforceable requirements'' and stating that the
permit must incorporate conditions and terms to ensure compliance with
all applicable requirements. EPA has determined that this legal
authority is sufficient to allow San Joaquin to issue permits that
assure compliance with all section 112 requirements.
b. Authority for Title IV (Acid Rain) Implementation. San Joaquin's
title V program contains minimal elements of an acid rain program;
however, the District has committed to adopt all missing elements of an
acid rain program as soon as possible. At this time, EPA does not
believe that there are any phase II acid rain sources in the Valley,
therefore, the District's commitment to adopt an acid rain program
expeditiously should ensure appropriate regulatory authority exists to
issue a timely title IV permit to any new or existing source in the
District that becomes subject to, or wants to opt into, the acid rain
program.
B. Proposed Action
1. Title V Operating Permits Program
The EPA is proposing to grant interim approval to the operating
permit program for the San Joaquin Valley Unified APCD submitted on
July 3 and August 17, 1995, and supplemented on September 6 and 21,
1995. If EPA finalizes this proposed interim approval, it will extend
for two years following the effective date of final interim approval
and cannot be renewed. During the interim approval period, San Joaquin
will be protected from sanctions, and EPA is not obligated to
promulgate, administer and enforce a federal permits program for the
District. Permits issued under a program with interim approval have
full standing with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon the
effective date of interim approval, as does the three-year time period
for processing the initial permit applications.
Following final interim approval, if the District fails to submit a
complete corrective program by the date six months before expiration of
the interim approval, the District will be subject to a sanction clock
or potentially subject to sanctions under section 502(d)(2) of the Act.
If EPA has not granted full approval to the District's title V program
by the end of the interim period, then the District will be subject to
a federally-imposed operating permits program.
2. Interim Approval Issues for San Joaquin's Title V Operating Permits
Program
If EPA finalizes this interim approval, San Joaquin must make the
following changes, or changes that have the same effect, to receive
full approval:
(1) Revise the applicability language in Rule 2520 2.2 and the
definitions of Major Air Toxics Source (Rule 2520 3.18) and Major
Source (Rule 2520 3.19) to be consistent with the Act and part 70 to
cover sources that emit at major source levels. Currently, these
sections of Rule 2520 define major source solely on a source's
potential to emit; however, both the Act and part 70 define a major
source as a source that emits or has the potential to emit at major
source levels. These revisions to Rule 2520 will assure sources whose
potential to emit is less than major source levels but whose actual
emissions are at major source levels because of non-compliance with or
ineffective limits on potential to emit are subject to permitting under
Rule 2520.
(2) Limit the exemption for non-major sources in Rule 2520 4.1 so
that it does not exempt non-major sources for which EPA determines,
upon promulgation of a section 111 or 112 standard, must obtain title V
permits.
(3) Either revise the definition of ``stationary source'' in Rule
2201 3.29 so that the exception to the Major SIC Group requirement for
oil and gas production sources in Rule 2201 3.29.4 does not apply for
determining the applicability of Rule 2520 or demonstrate that the
definition is as stringent as part 70.
Rule 2201 3.29.4 is a provision applicable to any facility located
totally within the Western or Central Kern County Oil Fields or the
Fresno County Oil Fields that is used for the production of light oil,
heavy oil or gas. This provision states that all sources under common
control or ownership within each field shall be considered a single
stationary source even if they are located on non-contiguous or
adjacent properties. However, the section also states that light oil
production, heavy oil production, and gas production shall
[[Page 55519]]
constitute separate stationary sources. While the former provision is
more stringent that part 70, the latter provision is not. Part 70's
definition of ``major source'' requires aggregating all emission points
under common control or ownership that are on contiguous or adjacent
properties and belong to the same Major Group as described in the
Standard Industrial Classification (SIC) Manual. See Sec. 70.2 ``Major
source.'' Light oil production, heavy oil production and gas production
are all in the same Major Group. It is unclear whether or not San
Joaquin's program would require permitting of the same emission units
as part 70. If the District can make this demonstrate then EPA proposes
not to require any revision to Rule 2201 3.29 as it applies to
applicability determinations under Rule 2520.
While Sec. 70.2 ``Major source'' (1)(i) does not require emissions
from any oil or gas exploration or production well be aggregated with
emissions from other such units in determining whether such units are a
major source, this allowance is limited to determining HAPs major
source status. Emissions of other regulated pollutants must be
aggregated within the stationary source for determining major source
status.
(4) Revise Rule 2520 7.1.3.2 to eliminate the requirement that
fugitive emission estimates need only be submitted in the application
if the source is in a source category identified in the major source
definition in 40 CFR part 70.2. Fugitive emissions need only be counted
to determine the applicability of part 70 if a source is in a source
category listed in the Sec. 70.2. major source definition. However,
once applicability is determined, all sources must submit information
on fugitive emissions in their applications to the extent the
information is required by part 70. See Sec. 70.3(d).
(5) Revise Rule 2520 to provide that unless the District requests
additional information or otherwise notifies the applicant of
incompleteness within 60 days of receipt of an application, the
application shall be deemed complete. See Secs. 70.5(a)(2) and
70.7(a)(4).
(6) Revise Rule 2520 sections 11.1.4.2 and 11.3.1.1 and Rule 2201
5.3.1.1.1 to include notice ``by other means if necessary to assure
adequate notice to the affected public.'' See Sec. 70.7(h)(1).
(7) Revise Rule 2520's permit issuance procedures to provide for
notifying EPA and affected states in writing of any refusal by the
District to accept all recommendations for the proposed permit that an
affected state submitted during the public/affected state review
period. See Sec. 70.8(b)(2).
(8) Either delete section 11.7.5 in Rule 2520 and section 5.3.1.8.5
in Rule 2201, which purport to limit the grounds upon which EPA may
object to a permit to compliance with applicable requirements, or
revise them to be fully consistent with Sec. 70.8(c).
Rule 2520 11.7.5 and Rule 2201 5.3.1.8.5 purport to limit the
grounds on which EPA may object to a permit to compliance with
applicable requirements. Section 70.8(c)(1) provides that EPA will
object to the issuance of any proposed permit that is not ``in
compliance with applicable requirements or requirements under this part
[part 70].'' (emphasis added). EPA's authority to object to issuance of
permits derives from section 505(b) of the Act. No state or local
agency may restrict authorities granted EPA under the Clean Air Act;
therefore, EPA views section 11.7.5 of Rule 2520 and Section 5.3.1.8.5
of Rule 2201 as not binding upon its actions. EPA will exercise its
authority to object to permits consistent with Sec. 70.8(c) and without
regard to the restriction on that authority in San Joaquin's title V
program. Should the District issue a permit to which EPA has objected
and the District has not revised or reissued to meet the objection, EPA
will consider the permit invalid and will require the District to
revise and reissue the proposed permit or will revoke, revise, and
reissue the permit itself. EPA has made these revisions to Rule 2520 an
interim approval issue in order to clarify its authority.
(9) Revise Rule 2520 2.4 to clarify that the sentence in section
2.4 that ``[o]nly the affected emissions units within the stationary
source shall be subject to part 70 permitting requirements'' applies
only to stationary sources that are also area sources. Rule 2520 2.4
requires any emission unit, including an area source subject to a
standard or other requirement promulgated pursuant to section 111 or
112 of the CAA published after July 21, 1992, to obtain a part 70
permit but also states that only the affected emissions unit within a
stationary source shall be subject to the part 70 permitting
requirements. Section 70.3(c) requires all emission units subject to
any applicable requirement at major sources be included in a part 70
permit. Only at non-major sources does part 70 allow the permit to
cover only the units causing the source to be subject to part 70.
(9) Revise Rule 2520 8.1 to provide that model general permits and
model general permit templates will have a permit term not to exceed 5
years instead of being valid until revoked, suspended, or modified.
During the interim approval period, EPA recommends that the District
issue all model general permits and model general permit templates with
a permit term not to exceed 5 years to avoid having to reopen all model
general permits and model general permit templates issued during the
interim approval period to incorporate the correct permit term.
(10) Revise Rule 2520 8.1 to provide that any permit for a solid
waste incineration unit that has a permit term of more than 5 years
shall be subject to review, including public notice and comment, at
least every 5 years. See Sec. 70.6(a)(2).
(11) Revise Rule 2520 13.2.3 to state that the permit shield will
apply only to requirements addressed in the permit. Rule 2520 13.2.3
currently extends the permit shield to requirements addressed by the
District in written application reviews. Section 504(f) of the Act and
Sec. 70.6 (f) are both clear that the permit shield may only extend to
requirements that are addressed in the permit. EPA will not consider a
source shielded from an enforcement action for failure to comply with
an applicable requirement if that applicable requirement is addressed
only in the written reviews supporting permit issuance and not in the
permit. Further, EPA will veto any permit that extends the permit
shield to conditions, terms, or findings of non-applicability that are
not included in the permit.
(12) Revise Rule 2520 9.12 to require the permit to contain terms
and conditions for the trading of emission increases and decreases in
the permitted facility to the extent that any applicable requirement
provides for such trading without case by case approval. Rule 2520 9.12
currently restricts permit terms and conditions to trades allowed under
the District's new source review rule, Rule 2201. See Sec. 70.6
(a)(10).
(13) Revise Rule 2520, Section 9.0 (permit content) to include the
Sec. 70.6 (c)(3) requirement for schedules of compliance for applicable
requirements for which the source is in compliance or that will become
effective during the permit term. Section 70.6(c)(3), reflecting the
language of Clean Air Act section 504(a) (``Each permit issued * * *
shall include * * * a schedule of compliance* * * .''), requires that
the permit contain a schedule of compliance even when the source is in
compliance with all applicable requirements. Rule 2520 9.15 only
requires a schedule of compliance when the source is in violation of
any applicable requirement. During the interim period, the District
should incorporate schedules of compliance, as
[[Page 55520]]
required by Sec. 70.6(c)(3), into all issued permits.
(14) Revise Rule 2520 to treat changes made under the prevention of
significant deterioration (PSD) provisions of the Act and EPA' PSD
regulations in the same manner as ``title I modifications'' as that
term is defined in Rule 2520 and Rule 2201. PSD modifications are
considered ``modifications under title I'' in part 70.
(15) Revise Rule 2520 to state that, notwithstanding the permit
shield provisions, if a source that is operating under a general permit
is later determined not to qualify for the terms and conditions of that
general permit, then the source is subject to enforcement action for
operation without a part 70 permit. See Sec. 70.6(d).
(16) Because California State law currently exempts agricultural
production sources from permit requirements, CARB has requested source
category-limited interim approval for all California districts. EPA is
proposing to grant source category-limited interim approval to the San
Joaquin program. In order for this program to receive full approval,
the Health and Safety Code must be revised to eliminate the exemption
of agricultural production sources from the requirement to obtain a
title V permit. Once the California statute has revised, the District
must also revise its permit exemption rules to eliminate any blanket
exemption granted agricultural sources.
3. District Program Implementing Section 112(g)
The EPA has published an interpretive notice in the Federal
Register regarding section 112(g) of the Act (60 FR 8333; February 14,
1995). The revised interpretation postpones the effective date of
section 112(g) until after EPA has promulgated a rule addressing that
provision. The interpretive notice explains that EPA is considering
whether the effective date of section 112(g) should be delayed beyond
the date of promulgation of the federal rule so as to allow States time
to adopt rules implementing the federal rule, and that EPA will provide
for any such additional delay in the final section 112(g) rulemaking.
Unless and until EPA provides for such an additional postponement of
section 112(g), San Joaquin must be able to implement section 112(g)
during the period between promulgation of the federal section 112(g)
rule and adoption of implementing District regulations.
For this reason, EPA is proposing to approve the use of San
Joaquin's preconstruction review program (Rule 2201) as a mechanism to
implement section 112(g) during the transition period between
promulgation of the section 112(g) rule and adoption by San Joaquin of
rules specifically designed to implement section 112(g). However, since
the sole purpose of this approval is to confirm that the District has a
mechanism to implement section 112(g) during the transition period, the
approval itself will be without effect if EPA decides in the final
section 112(g) rule that there will be no transition period. The EPA is
limiting the duration of this proposed approval to 12 months following
promulgation by EPA of the section 112(g) rule.
4. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that the state program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, EPA is proposing to grant approval under section
112(l)(5) and 40 CFR part 63.91 of San Joaquin's program for receiving
delegation of section 112 standards that are unchanged from federal
standards as promulgated. California Health and Safety Code section
39658 provides for automatic adoption by CARB of section 112 standards
upon promulgation by EPA. Section 39666 of the Health and Safety Code
requires that districts then implement and enforce these standards.
Thus, when section 112 standards are automatically adopted pursuant to
section 39658, San Joaquin will have the authority necessary to accept
delegation of these standards without further regulatory action by the
District. The details of this mechanism and the means for finalizing
delegation of standards will be set forth in a Memorandum of Agreement
between San Joaquin and EPA, expected to be completed prior to approval
of the District's section 112(l) program for delegation of unchanged
federal standards. This program applies to both existing and future
standards but is limited to sources covered by the part 70 program.
5. Proposed Approval of Rule 2530 Federally Enforceable Potential To
Emit
On October 24, 1995, CARB submitted for approval into the San
Joaquin Valley's portion of the California State Implementation Plan
(SIP), Rule 2530 Federally Enforceable Potential to Emit. This Rule
creates a streamlined process for limiting the potential to emit of
sources that emit less that 50 percent of major source levels but whose
potential to emit is above those levels. Sources complying with this
Rule will have federally-enforceable limits on their potential to emit
and will avoid being subject to title V.
The basic requirement for approving into the SIP rules to limit
potential to emit is that the limits in the rule are practically
enforceable. For a discussion of general principle of practical
enforceability, see Memorandum from John Seitz to Regional Air
Directors ``Options for Limiting the Potential to Emit (PTE) of a
Stationary Source Under Section 112 and Title V of the Clean Air Act
(Act),'' January 25, 1995, found in the docket for this rulemaking.
Rule 2530 meets these requirements for practical enforceability for
limiting potential to emit through general prohibitory rules in SIPs.
Please refer to the TSD for further analysis of the Rule.
CARB also submitted Rule 2520 for approval under section 112(l) of
the Act. The separate request for approval under section 112(l) is
necessary because the proposed SIP approval discussed above only
provides a mechanism for controlling criteria pollutants. EPA has
determined that the practical enforceability criterion for SIPs is also
appropriate for evaluating and approving Rule 2530 under section
112(l). In addition, Rule 2530 must meet the statutory criteria for
approval under section 112(l)(5). For a discussion of EPA's authority
to approve rules under section 112 (l), see 59 FR 60944 (November 29,
1994).
EPA proposes approval of Rule 2530 under 112(l) because the Rule
meets all of the approval criteria specified in section 112(l)(5) of
the Act. EPA believes Rule 2530 contains adequate authority to assure
compliance with section 112 requirements because it does not waive any
section 112 requirements applicable to non-major sources. Regarding
adequate resources, Rule 2530 is a supporting element of the District's
title V program which has demonstrated adequate funding. Furthermore,
EPA believes that Rule 2530 provides for an expeditious schedule for
assuring compliance because it provides a streamlined approval that
allows sources to establish limits on potential to emit and avoid being
subject to a federal Clean Air Act requirement applicable on a
particular date. Finally, Rule 2530 is consistent with the objectives
of the section 112 program because its purpose is to enable sources to
obtain federally enforceable
[[Page 55521]]
limits on potential to emit to avoid major source classification under
section 112. The EPA believes this purpose is consistent with the
overall intent of section 112.
Rule 2530 is modeled on the California model prohibitory rule
developed by the California Association of Air Pollution Control
Officers, CARB, and EPA. In its agreement on the model rule, EPA
expressed certain understandings and caveats. See letter, Lydia Wegman,
Deputy Director, Office of Air Quality Planning and Standards, U.S. EPA
to Peter D. Venturini, Chief, Stationary Source Division, CARB, January
11, 1995. A copy of this letter is in the docket for this rulemaking.
These understandings and caveats are incorporated into EPA's proposed
approval of Rule 2530.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Comments should be submitted by December 1, 1995.
Copies of the District's submittal and other information relied upon
for the proposed interim approval are contained in a docket maintained
at the EPA Regional Office.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under Section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates Act
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action promulgated
today does not include a federal mandate that may result in estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector. This federal
action approves pre-existing requirements under State or local law, and
imposes no new federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides,
Volatile organic compounds.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Environmental protection Hazardous substances, Intergovernmental
relations, Operating permits, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 19, 1995.
John Wise,
Acting Regional Administrator.
[FR Doc. 95-27144 Filed 10-31-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-27106 Drawbridge Operation Regulations; Hood Canal, WA
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55515-55516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27106]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 117
[CGD13-95-011]
Drawbridge Operation Regulations; Hood Canal, WA
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: At the request of the Washington State Department of
Transportation (WSDOT), the Coast Guard is considering an amendment to
the regulations governing the operation of the Hood Canal Bridge at
Port Gamble, Washington. The proposed change would limit the width of
the opening of the retractable span of the floating bridge to 300 feet
of horizontal clearance unless a maximum horizontal clearance of 600
feet is specifically requested by the vessel operator.
DATES: Comments must be received on or before January 2, 1996.
ADDRESSES: Comments should be mailed to Commander (oan), Thirteenth
Coast Guard District, 915 Second Avenue, Seattle, Washington 98174-
1067. The comments and other materials referenced in this notice will
be available for inspection and copying at 915 Second Avenue, Room
3410, Seattle, Washington. Normal office hours are between 7:45 a.m.
and 4:15 p.m., Monday through Friday, except federal holidays. Comments
may also be hand-delivered to this address.
FOR FURTHER INFORMATION CONTACT:
John E. Mikesell, Chief, Plans and Programs Section, Aids to Navigation
and Waterways Management Branch, (Telephone: (206) 220-7270).
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking (CGD13-95-011) and the specific section of
this proposal to which each comment applies, and give the reason for
each comment. Please submit two copies of all comments and attachments
in unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. Persons wanting acknowledgment of
receipt of comments should enclose stamped, self-addressed postcards or
envelopes.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public
[[Page 55516]]
hearing by writing to the Commander, Thirteenth Coast Guard District at
the address under ADDRESSES. The request should include the reasons why
a hearing would be beneficial. If it determines that the opportunity
for oral presentations will aid this rulemaking, the Coast Guard will
hold a public hearing at a time and place announced by a later notice
in the Federal Register.
Drafting Information
The drafters of this notice are Austin Pratt, Project Officer, and
Lieutenant Commander John C. Odell, Project Attorney, Thirteenth Coast
Guard District Legal Office.
Background and Purpose
Current regulations at 33 CFR 117.5 state that, unless otherwise
required, drawbridges shall be fully opened for the passage of vessels.
The proposed change would allow the floating retractable span of the
Hood Canal Bridge to open halfway (300 feet) for the passage of most
vessels instead of the maximum (600 feet). The drawspan of the Hood
Canal is extremely wide compared to the majority of drawbridges. Unlike
many other drawbridges, no part of the draw mechanism is suspended
above the channel when opened. Opening only to 300 feet would reduce
delays to roadway traffic and would reduce energy consumption and
maintenance costs. A full opening and closure without counting vessel
transit time takes at least fifteen minutes. This is two or three times
as long as the operation of many other drawbridges. WSDOT has observed
that only one or two openings out of an average of about 32 openings
per month are for vessels that need the span fully opened to pass
safely. The remaining vessels can pass safely through a horizontal
opening of only 300 feet. In practice, many vessels routinely pass
through the bridge before the retractable span has been fully opened.
Discussion of Proposed Rule
The proposed rule would amend paragraph (a) of 33 CFR 117.1045 to
state that the draw shall be opened horizontally for 300 feet unless
the maximum opening of 600 feet is requested. It would not remove the
one hour notice requirement nor any other aspect of the existing
regulations.
Regulatory Evaluation
This proposed rule is not a significant regulatory action under
3(f) of Executive Order 12866 and does not require an assessment of
potential cost and benefits under section 6(a)(3) of that order. It has
been exempted from review by the Office of Management and Budget under
that order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposed rule to be so minimal that a full regulatory evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary. This expectation is based on the fact that most vessels
only need a 300-foot opening and that vessels needing a 600-foot
opening will be able to obtain one merely by requesting it from the
bridgetender on duty.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal will have a significant
effect on a substantial number of small entities. ``Small entities''
include independently owned and operated small businesses that are not
dominant in their field and that otherwise qualify as ``small business
concerns'' under section 3 of the Small Business Act (15 U.S.C. 632).
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if
adopted, will not have a significant impact on a significant number of
small entities.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612, and it has been determined
that the proposed rulemaking does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under section 2.B.2. of Commandant
Instruction M16475.B, this proposal is categorically excluded from
further environmental documentation. A ``Categorical Exclusion
Determination'' is available in the docket for inspection or copying.
List of Subjects in 33 CFR Part 117
Bridges.
Proposed Regulations
For the reasons set out in the preamble, the Coast Guard proposes
to amend part 117 of title 33, Code of Federal Regulations, as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for part 117 continues to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. Paragraph (a) of Sec. 117.1045 is revised to read as follows:
Sec. 117.1045 Hood Canal.
* * * * *
(a) The draw shall open on signal if at least one hour's notice is
given. The draw shall be opened horizontally for 300 feet unless the
maximum opening of 600 feet is requested.
* * * * *
Dated: October 17, 1995.
J.W. Lockwood,
Rear Admiral, U.S. Coast Guard, Commander, 13th Coast Guard District.
[FR Doc. 95-27106 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 95-27105 Special Local Regulations; Great Lakes Annual Marine Events
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55511-55515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27105]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD 09-95-029]
Special Local Regulations; Great Lakes Annual Marine Events
agency: Coast Guard, DOT.
action: Notice of proposed rulemaking.
-----------------------------------------------------------------------
summary: The Coast Guard proposes to revise its list of annual marine
events which occur within the Ninth Coast Guard District. Publication
of this list in part 100 of the Code of Federal Regulations will
establish permanent special local regulations for marine events within
the Ninth Coast Guard District which recur on an annual basis and which
have been determined by the District Commander to require the issuance
of special local regulations. This action is being taken to ensure the
safety of life and property during each event, while avoiding the
necessity of publishing a separate temporary regulation each year for
each event. The list reflects the approximate dates and locations of
each annual marine event.
dates: Comments must be received on or before December 18, 1995.
addresses: Comments should be mailed to Commander (oan), Ninth Coast
Guard District, 1240 East 9th Street, Cleveland, Ohio 44199-2060. The
comments will be available for inspection and copying at the Aids to
Navigation and Waterways Management Branch, Room 2083, 1240 East 9th
Street, Cleveland, Ohio. Normal office hours are between 7 a.m. and
3:30 p.m., Monday through Friday, except holidays. Comments may also be
hand delivered to this address. Annual notice of the exact dates and
times of the effective period of the regulation with respect to each
event, the geographical area, and details concerning the nature of the
event and the number of participants and type(s) of vessels involved
will also be published in local notices to mariners. To be placed on
the mailing list for such notices, write to Commander (oan), Ninth
Coast Guard District, 1240 East Ninth Street, Cleveland, Ohio, 44199-
2060.
for further information contact: Marine Science Technician Second Class
Jeffrey M. Yunker, Ninth Coast Guard District, Aids to Navigation and
Waterways Management Branch, 1240 East Ninth Street, Cleveland, Ohio,
44199-2060, (216) 522-3990.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their name and address,
identify this rulemaking [CGD09-95-029] and the specific section of
this proposal to which each comment applies, and give a reason for each
comment. Persons wanting acknowledgment of receipt of comments should
enclose a stamped, self-addressed postcard or envelope. The Coast Guard
plans no public hearing. Persons may request a public hearing by
writing to the Project Officer at the address under ``ADDRESSES.'' If
it determines that the opportunity for oral presentations will aid this
rulemaking, the Coast Guard will hold a public hearing at a time and
place announced by a later notice in the Federal Register.
Drafting Information
The drafters of these regulations are Lieutenant Junior Grade Byron
D. Willeford, Project Officer, Ninth Coast Guard District, Aids to
Navigation and Waterways Management Branch and Lieutenant Charles D.
Dahill, Project Attorney, Ninth Coast Guard District Legal Office.
Discussion of Proposed Regulations
If adopted, this rulemaking will update an existing list of
anticipated annual events. Each year various public and private
organizations sponsor marine events on the navigable waters of the
United States within the Ninth Coast Guard District. These events
include slow moving boat parades, sailboat races, high speed hydroplane
races, fireworks displays, and other water related events. The listed
events
[[Page 55512]]
are held in approximately the same location during the same general
time frame each year. Exact times and dates will be published in the
Local Notice to Mariners instead of being published in this final rule.
This method streamlines the marine event process for those regattas and
marine events which have little variation from year to year.
Additionally, it significantly reduces the Coast Guard's administrative
burden for managing these events, with no reduction in services to the
maritime community. The nature of each event is such that special local
regulations are deemed necessary to ensure the safety of life, limb,
and property on and adjacent to navigable waters during the events.
Group Commanders have consulted and will continue to consult with
parties potentially affected by any significant changes to the nature,
date, time, and location proposed by an event sponsor for any of the
events covered in this rule.
Table 1 gives the approximate dates, times, and locations for the
annual events listed. Each year, one or more Local Notice to Mariners
will be published giving the exact dates, times, and locations for the
annual events. It should be noted that Table 1 in the regulation is not
a complete list of all marine events that will occur in the Ninth Coast
Guard District. It does not include events which do not require special
local regulations for the safety of life, limb, and property on or
adjacent to navigable waters. It also does not include nonannual events
or events which have not been scheduled in time for this publication.
Federalism Implications
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard is simply proposing to revise its list of annual
marine events. The listing itself will not affect the environment. Upon
receipt of applications, the Coast Guard will conduct an environmental
analysis for each event in accordance with section 2.B.2.c of Coast
Guard Commandant Instruction M16475.1B, and the Coast Guard Notice of
final agency procedures and policy for categorical exclusions found at
59 FR 38654 (July 29, 1994).
Economic Assessment and Certification
These regulations are not a significant regulatory action under
section 3(f) of Executive Order 12866 and do not require an assessment
of potential costs and benefits under section 6(a)(3) of that order.
They have been exempted from review by the Office of Management and
Budget under that order. They are not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
FR 11040; February 26, 1979). The Coast Guard expects the economic
impact of these regulations to be so minimal that a full Regulatory
Evaluation under paragraph 10e of the regulatory policies and
procedures of the DOT is unnecessary.
Collection of Information
These regulations will impose no collection information
requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Proposed Regulations
In consideration of the foregoing, the Coast Guard proposes to
amend Part 100 of Title 33, Code of Federal Regulations, as follows:
PART 100--[AMENDED]
1. The authority citation for Part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. Section 100.901 is amended by revising Table 1 to read as
follows:
Sec. 100.901 Great Lakes annual marine events.
* * * * *
TABLE 1
Group Buffalo, NY:
Fireworks By Grucci
Sponsor: New York Power Authority
Date: Last weekend of July
Location: Lake Ontario, Wright's Landing/Oswego Harbor, NY within
an 800 foot radius of the fireworks launching platform locating in
approximate position 43 deg.28'10'' N 076 deg.31'04'' W.
Flagship International Kilo Speed Challenge
Sponsor: Preseque Isle Powerboat Racing Association
Date: 3rd or 4th weekend of June
Location: That portion of Lake Erie, Presque Isle Bay, south of a
line drawn from 42 deg.08'54'' N 080 deg.05'42'' W; to 42 deg.07' N
080 deg.21' W will be a regulated area. That portion of Lake Erie,
Presque Isle Bay, north of a line drawn from 42 deg.08'54'' N
080 deg.05'42'' W; to 42 deg.07' N 080 deg.21' W will be a ``caution
area''. All vessels transiting the caution area will be operated at
bare steerageway, keeping the vessel's wake at a minimum, and will
exercise a high degree of caution in the area. The bay entrance will
not be effected.
Flagship International Offshore Challenge
Sponsor: Presque Isle Powerboat Racing Association
Date: 3rd or 4th weekend of June
Location: That portion of Lake Erie, Presque Isle Bay, Entrance
Channel, and the enclosed area from Erie Harbor Pier Head Light (LLNR
3430) northeast to 42 deg.12'48'' N 079 deg.57'24'' W, thence south to
shore just east of Shades Beach.
Friendship Festival Airshow
Sponsor: Friendship Festival
Date: 4th of July holiday
Location: That portion of the Niagara River and Buffalo Harbor
from:
Latitude Longitude
42 deg.54.4' N 078 deg.54.1' W, thence to
42 deg.54.4' N 078 deg.54.4'W, thence along the
International Border to
42 deg.52.9' N 078 deg.54.9' W, thence to
42 deg.52.5' N 078 deg.54.3' W, thence to
42 deg.52.7' N 078 deg.53.9' W, thence to
42 deg.52.8' N 078 deg.53.8' W, thence to
42 deg.53.1' N 078 deg.53.6' W, thence to
42 deg.53.2' N 078 deg.53.6' W, thence to
42 deg.53.3' N 078 deg.53.7' W, thence along the
breakwall to
42 deg.54.4' N 078 deg.54.1' W.
Geneva Offshore Grand Prix
Sponsor: Great Lakes Offshore Powerboat Racing Association
Date: 3rd or 4th weekend of May
Location: That portion of Lake Erie from:
Latitude Longitude
41 deg.51.5' N 080 deg.58.2' W, thence to
41 deg.52.4' N 080 deg.53.4' W, thence to
41 deg.53' N 080 deg.53.4' W, thence to
41 deg.52.2' N 080 deg.58.2' W, thence to
41 deg.51.5' N 080 deg.58.2' W.
NFBRA Red Dog Kilo Time Trials
Sponsor: Niagara Frontier Boat Racing Association
Date: 4th or 5th weekend of September
Location: That portion of the Niagara River, Tonawanda Channel,
between Tonawanda Channel Buoy 31 to approximately \1/2\ mile southwest
of Twomile Creek along a line drawn from 43 deg.00'45'' N
078 deg.55'06'' W to 43 deg.00'28'' N 078 deg.54'56'' W (Sipco Oil
Company).
Offshore Series Grand Prix
Sponsor: Great Lakes Offshore Powerboat Racing Assn.
Date: 2nd or 3rd weekend of
[[Page 55513]]
September
Location: That portion of Lake Erie from:
Latitude Longitude
41 deg.51.5' N 080 deg.58.2' W, thence to
41 deg.52.4' N 080 deg.53.4' W, thence to
41 deg.53.0' N 080 deg.53.4' W, thence to
41 deg.52.2' N 080 deg.58.2' W, thence to
41 deg.51.5' N 080 deg.58.2' W.
Sodus Bay 4th of July Fireworks
Sponsor: Sodus Bay Historical Society
Date: 4th of July holiday
Location: Lake Ontario, within a 500 foot radius around a barge
anchored in approximate position 43 deg.15.73' N 076 deg.58.23' W, in
Sodus Bay.
Tallship Erie
Sponsor: Erie Maritime Programs, Inc.
Date: 1st or 2nd weekend of July
Location: That portion of Lake Erie, Presque Isle Bay Entrance
Channel and Presque Isle Bay from:
Latitude Longitude
42 deg.10' N 080 deg.03' W, thence to
42 deg.08.1' N 080 deg.07' W, thence to
42 deg.07.9' N 080 deg.06.8' W, thence east along
the shoreline and structures to:
42 deg.09.2' N 080 deg.02.6' W, thence to
42 deg.10' N 080 deg.03' W.
Thomas Graves Memorial Fireworks Display
Sponsor: Port Bay Improvement Association
Date: 1st or 2nd weekend of July
Location: That portion of Lake Ontario, Port Bay Harbor, NY within
a 500 ft radius surrounding a barge anchored in approximate position
43 deg.17'46'' N 076 deg.50'02'' W.
Thunder Island Offshore Challenge
Sponsor: Thunder on the Water Inc.
Date: 3rd or 4th weekend of June
Location: That portion of Lake Ontario, Oswego Harbor from the West
Pier Head Light (LLNR 2080) north to:
Latitude Longitude
43 deg.29'02'' N 076 deg.32'04'' W, thence to
43 deg.26'18'' N 076 deg.39'30'' W, thence to
43 deg.24'55'' N 076 deg.37'45'' W, thence along the
shoreline to the West Pier Head
Light (LLNR 2080).
We Love Erie Days Fireworks
Sponsor: We Love Erie Days Festival, Inc.
Date: 3rd weekend of August
Location: That portion of Lake Erie, Erie Harbor, within a 300 foot
radius, surrounding the Erie Sand and Gravel Pier, located in position
42 deg.08'16'' N 080 deg.05'40'' W.
Group Detroit, MI
Bay City Fireworks Display
Sponsor: Bay City Fraternal Order of Police, Lodge 103
Date: 4th of July holiday
Location: Saginaw River, from the Veterans Memorial Bridge to
approximately 1000 yards south to the River Walk Pier, near Bay City,
MI
Detroit APBA Gold Cup Race
Sponsor: Spirit of Detroit Association
Date: 1st or 2nd weekend of June
Location: Detroit River, between Belle Isle and the U.S. shoreline,
near Detroit, MI. Bound on the west by the Belle Isle Bridge and on the
east by a north-south line drawn through the Waterworks Intake Crib
Light (LLNR 1022).
Buick Watersports Weekend
Sponsor: Adore Ltd. and APBA
Date: 3rd or 4th weekend of July
Location: That portion of the Saginaw River from the Liberty Bridge
on the north to the Veterans Memorial Bridge on the south, near Bay
City, MI
Cleveland Charity Classic
Sponsor: Lake Erie Offshore Racing, Ltd.
Date: 3rd or 4th weekend of July
Location: That portion of Lake Erie, Cleveland Harbor from the
Cleveland Waterworks Intake Crib Light (LLNR 4030) to:
Latitude Longitude
41 deg.30.7' N 081 deg.43.1' W (West Pierhead
Light, LLNR 4160), thence along
the breakwater to
41 deg.30.4' N 081 deg.42.9' W (West Breakwater
Light, LLNR 4175), thence to
41 deg.30.2' N 081 deg.42.8' W (West Pier Light,
LLNR 4185), thence along the
shoreline and structures to
41 deg.32.5' N 081 deg.38.3' W (Disposal Light B,
LLNR 4045), thence to
41 deg.33' N 081 deg.45' W (Cleveland Waterworks
Intake Crib Light LLNR 4030).
Cleveland National Air Show
Sponsor: Cleveland National Air Show
Date: Labor Day Weekend
Location: That portion of Lake Erie and Cleveland Harbor (near
Burke Lakefront Airport) from a line running perpendicular from Dock
No. 34 on the west, to 2000 feet north of the breakwater, then parallel
to the breakwater, to a line running perpendicular from the east end of
the Burke Lakefront Airport land fill.
Cleveland Offshore Grand Prix
Sponsor: Great Lakes Offshore Powerboat Racing Assn.
Date: 1st or 2nd weekend of August
Location: That portion of Lake Erie, Cleveland Harbor from the
Cleveland Waterworks Intake Crib Light to:
Latitude Longitude
41 deg.30.7' N 081 deg.43.1' W (West Pierhead
Light, LLNR 4160), thence along
the breakwater to,
41 deg.30.4' N 081 deg.42.9' W (West Breakwater
Light, LLNR 4175), thence to,
41 deg.30.2' N 081 deg.42.8' W (West Pier Light,
LLNR 4185), thence along the
shoreline and structures to,
41 deg.32.5' N 081 deg.38.3' W (Disposal Light B,
LLNR 4045), thence to,
41 deg.33' N 081 deg.45' W (Cleveland Waterworks
Intake Crib Light LLNR 4030).
Flatsfest
Sponsor: Flats Riverfest Corporation
Date: 3rd or 4th weekend of July
Location: Cuyahoga River, Conrail Railroad Bridge at Mile 0.8 above
the mouth of the river to the Eagle Avenue Bridge, near Cleveland, OH.
International Bay City River Roar
Sponsor: Bay City River Roar, Inc.
Date: 3rd or 4th weekend of June
Location: That portion of the Saginaw River from the Liberty Bridge
on the north to the Veterans Memorial Bridge on the south, near Bay
City, MI
International Freedom Festival Fireworks
Sponsor: Detroit Renaissance Foundation
Date: 3rd or 4th week of June
Location: The Detroit River between 083 deg.03' W (Cobo Hall) and
083 deg.01'27'' W (Huron Cement).
International Freedom Festival Tug Across the River
Sponsor: Detroit Renaissance Foundation
Date: 3rd or 4th week of June
Location: That portion of the Detroit River bounded on the south by
the International Boundary, on the west by 083 deg.03' W, on the east
by 083 deg.02' W, and on the north by the U.S. shoreline.
Port Clinton Offshore Grand Prix
Sponsor: Great Lakes Offshore Powerboat Racing Association
Date: 1st or 2nd weekend of July
Location: That portion of western Lake Erie:
Latitude Longitude
41 deg.31.2' N 082 deg.56.1' W, thence along the
shoreline and structures to
41 deg.33.3' N 082 deg.51.3' W, thence to
41 deg.33.3' N 082 deg.52.8' W, thence to
41 deg.31.2' N 082 deg.56.1' W.
[[Page 55514]]
Port Huron to Mackinac Island Race
Sponsor: Bayview Yacht Club
Date: 2nd or 3rd weekend of July
Location: That portion of the Black River, St. Clair River, and
Lower Lake Huron from:
Latitude Longitude
42 deg.58.8' N 082 deg.26' W, to
42 deg.58.4' N 082 deg.24.8' W, thence northward
along the International Boundary
to
43 deg.02.8' N 082 deg.23.8' W, to
43 deg.02.8' N 082 deg.26.8' W, thence southward
along the U.S. shoreline to
42 deg.58.9' N 082 deg.26' W, thence to
42 deg.58.8' N 082 deg.26' W.
Thunder on the River Hydroplane Race
Sponsor: Toledo Prop Spinners
Date: 3rd or 4th weekend of August
Location: Maumee River, between the Martin Luther King and Anthony
Wayne bridges, near Toledo, OH
Toledo 4th of July Fireworks
Sponsor: City of Toledo
Date: 4th of July weekend
Location: Maumee River, between the Martin Luther King and Anthony
Wayne bridges, near Toledo, OH
Toledo Labor Day Fireworks
Sponsor: Reams Broadcasting Corporation
Date: Labor Day
Location: Maumee River, between the Martin Luther King and Anthony
Wayne bridges, near Toledo, OH
Group Sault Ste. Marie, MI
Bridgefest Regatta
Sponsor: Bridgefest Committee
Date: 2nd weekend of June
Location: Keweenaw Waterway, from the Houghton Hancock Lift Bridge
to 1000 yards west of the bridge, near Houghton, MI
Duluth Fourth Fest Fireworks
Sponsor: Office of the Mayor, Duluth, MN
Date: 4th of July weekend
Location: That portion of the Duluth Harbor Basin Northern Section
bounded on the south by a line drawn on a bearing of 087 deg. true from
the Cargill Pier through Duluth Basin Lighted Buoy #5 (LLNR 15905) to
the opposite shore on the north by the Duluth Aerial Bridge. That
portion of Duluth Harbor Basin Northern Section within 600 yards of
position 46 deg.46'47'' N 092 deg.06'10'' W.
July 4th Fireworks
Sponsor: City of Sault Ste Marie, MI
Date: 4th of July weekend
Location: That portion of the St. Marys River, Sault Ste. Marie, MI
within a 1000 foot radius of Brady Park, located on the south shore of
the river. These waters are enclosed by the Locks to the west and to
the east from a line drawn from the pier light of the east center pier
to the U.S. Coast Guard Base to the southeast.
National Cherry Festival Blue Angels Air Demonstration
Sponsor: National Cherry Festival Inc.
Date: lst week of July
Location: That portion of the Western arm of the Grand Traverse
Bay, Traverse City, MI, enclosed by straight lines connecting the
following geographic coordinates:
Latitude Longitude
44 deg.46.8' N 085 deg.38.3' W, to
44 deg.46.5' N 085 deg.35.5' W, to
44 deg.46' N 085 deg.35.8' W to
44 deg.46.5' N 085 deg.38.5' W, thence to
44 deg.46.8' N 085 deg.83.3' W.
Venetian Festival Yacht Parade
Sponsor: Charlevoix Chamber of Commerce
Date: 3rd or 4th weekend of July
Location: That portion of the upper and lower section of the Pine
River, to include Round Lake, from:
Latitude Longitude
45 deg.19.3' N 085 deg.15.9' W, (North Pierhead
Light, LLNR 17920) thence to,
45 deg.18.9' N 085 deg.14.7' W, (Pine River Light
3, LLNR l7945) thence to,
45 deg.18.8' N 085 deg.14.7' W, (Pine River
Channel Lighted Buoy 2, LLNR
17950) thence to,
45 deg.19' N 085 deg. 15.9' W, (South Pierhead
Light, LLNR 17925) thence to,
45 deg.19.3' N 085 deg.15.9' W.
Group Grand Haven, MI
City Fireworks
Sponsor: City of Frankfort, MI
Date: 4th of July Holiday
Location: Lake Michigan, Frankfort, MI within a 1000 foot radius of
the fireworks launching site located on Lake Michigan Beach in
approximate position 44 deg.38' N 086 deg.14'50'' W.
Coast Guard Festival Fireworks
Sponsor: Grand Haven Coast Guard Festival, Inc.
Date: lst weekend of August
Location: That portion of the Grand River, Grand Haven, MI, from a
north-south line drawn from the North Pierhead Light Number 1 (LLNR
18045) on the north to the South Pierhead Entrance Light (LLNR 18035)
on the south, thence down river to the US 31 Bascule Bridge (mile
2.89).
4th of July Fireworks
Sponsor: WSJM & WIRX Radio
Date: 4th of July Holiday
Location: St. Joseph River, within a 1000 foot radius of the
fireworks launching site, located at the St. Joseph South Pier, in
approximate position 42 deg.06'48'' N 086 deg.29'15'' W.
Grand Haven Area Jaycees Annual 4th of July Fireworks Display
Sponsor: Grand Haven Area Jaycees
Date: lst week of July
Location: That portion of the Grand River, Grand Haven, MI from the
pier heads (mile 0.0) to the US 31 Bascule Bridge (mile 2.89).
Holland Jaycees Fireworks
Sponsor: Holland Jaycees
Date: 4th of July Holiday
Location: The portion of Lake Michigan, Holland, MI within a 1000
foot radius of the fireworks launching site, located in Kollen Park, in
approximate position 42 deg.47'20'' N 086 deg.07'12'' W.
Ludington Area Jaycees Freedom Festival Fireworks
Sponsor: Ludington Area Jaycees
Date: 4th of July Holiday
Location: Lake Michigan, Ludington Harbor, MI, within a 1,000 foot
radius of the fireworks launching site located at the Loomis Street
Boat Launch, in approximate position 43 deg.57'16'' N 086 deg.27'42''
W.
Muskegon Summer Celebration Fireworks
Sponsor: The Muskegon Summer Celebration
Date: 4th of July Holiday
Location: That portion of Muskegon Lake, in the vicinity of
Heritage Landing, with a 1,000 foot radius of the fireworks launching
site, located in approximate position 43 deg.13'52'' N 086 deg.15'48''
W.
Impact on Special Anchorage Area regulations: Regulations for that
portion of the Muskegon Lake East Special Anchorage Area, as described
in 33 CFR 110.81(b), which are overlapped by this regulation, are
suspended during this event. The remaining area of the Muskegon Lake
East Special Anchorage Area not impacted by this regulation remains
available for anchoring during this event.
South Haven 4th of July Fireworks
Sponsor: South Haven Jaycees
Date: 4th of July Holiday
Location: Lake Michigan, Black River, South Haven, MI within a
1,000 foot radius of the fireworks launching site located on the North
Pier, in approximate position 42 deg.24'08'' N 086 deg.17'03'' W.
Datum: NAD 1902.
Tulip Time Fireworks and Water Ski Show
Sponsor: Holland Tulip Time Festival
[[Page 55515]]
Inc.
Date: 1st weekend of May
Location: That portion of Lake Macatawa, Holland Harbor, east of a
north-south line, from shore to shore, at position 086 deg.08' W.
Tulip Time Water Ski Show
Sponsor: Holland Tulip Time Festival Inc.
Date: 2nd weekend of May
Location: That portion of Lake Macatawa, Holland Harbor, east of a
north-south line, from shore to shore, at position 086 deg.08' W.
Van Andel Fireworks Show
Sponsor: Amway Corporation, Ada, MI
Date: 4th of July Holiday
Location: Lake Michigan, Holland Harbor, MI, South Pier, within a
1,000 foot radius of the fireworks launching site located in
approximate position 42 deg.46'21'' N 086 deg.12'48'' W.
Venetian Festival Fireworks Display
Sponsor: Venetian Festival on the St. Joseph River Inc.
Date: 3rd weekend of July
Location: St. Joseph River, within a 1,000 foot radius of the
fireworks launching site, located at the St. Joseph South Pier, in
approximate position 42 deg.06'48'' N 086 deg.29'15'' W.
Waves of Thunder Offshore Spectacular
Sponsor: Michigan Offshore Powerboard Racing Association
Date: 3rd weekend of June
Location: That portion of Lake Michigan, from the South Pierhead
Light (LLNR 18520) south along the shoreline to:
Latitude Longitude
42 deg.19' N 086 deg. 19.3' W, thence to
42 deg.19.5' N 086 deg. 19.8' W, thence to
42 deg.23.9' N 086 deg. 18.7' W, thence to
42 deg.23.9' N 086 deg. 17' W.
West Michigan Offshore Powerboat Challenge
Sponsor: Michigan Offshore Powerboat Racing Association
Date: 1st or 2nd weekend of September
Location: that portion of Lake Michigan from:
Latitude Longitude
43 deg.03.4' N 086 deg.15.3' W (Grand Haven South
Pierhead Entrance Light, LLNR
19965), thence along the
breakwater and shoreline to
42 deg.54.8' N 086 deg.13' W, thence to
42 deg.54.8' N 086 deg.15' 7 W, thence to
43 deg.03.4' N 086 deg.15.7' W, thence to
43 deg.03.4' N 086 deg.15.3' W, (Grand Haven South
Pierhead Entrance Light, LLNR
18965).
Group Milwaukee, WI
Chicago Air and Water Show
Sponsor: Chicago Park District
Date: 3rd or 4th weekend of August
Location: That portion of Lake Michigan from 41 deg.55'54'' N at
the shoreline, then east to a point at 41 deg.55'54'' N 87 deg.37'12''
W, thence southeast to a point at 41'54' N 87 deg.36' W, then a line
drawn southwestward to the northeast corner of the Central District
Filtration Plant Breakwall, thence due west to shore.
Festa Italiana
Sponsor: The Italian Community Center
Date: 3rd weekend of July
Location: The uncharted lagoon or basin in Milwaukee Harbor north
of the mouth of the Milwaukee River and directly adjacent to the
Summerfest grounds, enclosed by shore on the west and a ``comma''
shaped man-made rock wall on the east. The construction of the lagoon
is such that a small ``basin'' has been created with one entrance
located at the northwest end, thus, there is no ``thru traffic''.
Milwaukee Summerfest
Sponsor: Milwaukee World Festival, Inc.
Date: Last week of June through 2nd weekend of July
Location: The uncharted lagoon or basin in Milwaukee Harbor north
of the mouth of the Milwaukee River and directly adjacent to the
Summerfest grounds, enclosed by shore on the west and a ``comma''
shaped man-made rock wall on the east. The construction of the lagoon
is such that a small ``basin'' has been created with one entrance
located at the northwest end, thus, there is no ``thru traffic''. Four
special buoys will be set by the sponsor to delineate the entrance to
the lagoon.
Racine on the Lakefront Airshow
Sponsor: Rotary Club of Racine
Date: 2nd weekend of June
Location: That portion of Racine Harbor, Lake Michigan, bounded by
the following corner points:
Southeast Corner--42 deg.41.95' N 87 deg.45.5' W
Southwest Corner--42 deg.41.95' N 87 deg.47.2' W
Northwest Corner--42 deg.45.6' N 87 deg.46.2' W
Northeast Corner--42 deg.45.6' N 87 deg.45.5' W
Dated: October 23, 1995.
G.F. Woolever,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 95-27105 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 95-27083 Proposed Flood Elevation Determinations
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55525-55529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27083]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
[Docket No. FEMA-7157]
Proposed Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Technical information or comments are requested on the
proposed base (1% annual chance) flood elevations and proposed base
flood elevation modifications for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that the community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
DATES: The comment period is ninety (90) days following the second
publication of this proposed rule in a newspaper of local circulation
in each community.
ADDRESSES: The proposed base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street, SW,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
proposes to make determinations of base flood elevations and modified
base flood elevations for each community listed below, in accordance
with Section 110 of the Flood Disaster Protection Act of 1973, 42
U.S.C. 4104, and 44 CFR 67.4(a).
These proposed base flood and modified base flood elevations,
together with the floodplain management criteria required by 44 CFR
60.3, are the minimum that are required. They should not be construed
to mean that the community must change any existing ordinances that are
more stringent in their floodplain management requirements. The
community may at any time enact stricter requirements of its own, or
pursuant to policies established by other Federal, State, or regional
entities. These proposed elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
National Environmental Policy Act
This proposed rule is categorically excluded from the requirements
of 44 CFR Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
proposed rule is exempt from the requirements of the Regulatory
Flexibility Act because proposed or modified base flood elevations are
required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104,
and are required to establish and maintain community eligibility in the
NFIP. No regulatory flexibility analysis has been prepared.
Regulatory Classification
This proposed rule is not a significant regulatory action under the
criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This proposed rule involves no policies that have federalism
implications under Executive Order 12612, Federalism, dated October 26,
1987.
Executive Order 12778, Civil Justice Reform
This proposed rule meets the applicable standards of Section
2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is proposed to be amended as follows:
PART 67--[AMENDED]
1. The authority citation for Part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.4 [Amended]
2. The tables published under the authority of Sec. 67.4 are
proposed to be amended as follows:
[[Page 55526]]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
#Depth in feet above
ground. *Elevation in
State City/town/county Source of flooding Location feet. (NGVD)
-------------------------
Existing Modified
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California........................... San Joaquin County...... Bear Creek (Overflow north of Bear Creek) West of Union Pacific Railroad and south of Pixley Slough. None *19
(Unincorporated Areas).. Just east of Southern Pacific Railroad.................... None *36
Just east of State Highway 99............................. None *42
Just east of Alpine Road.................................. None *55
4,000 feet downstream from Jack Tone Road................. None *83
Bear Creek (Channel)..................... At Kettleman Lane......................................... *75 *77
At Jack Tone Road......................................... *88 *88
Just downstream of Tully Road............................. None *96
Bear Creek (Overflow south of Bear Creek) Just east of Thornton Road................................ None *12
Just east of Union Pacific Railroad....................... None *22
Just east of State Highway 99 and north of Eightmile Road. None *39
Above confluence of Mosher Creek.......................... None *60
At Sargent Road Tributary................................. None *85
Paddy Creek (Overflow from West Bank).... At confluence with Bear Creek............................. *71 *73
At confluence of Middle Paddy Creek....................... None *76
Just downstream of Sargent Road........................... None *89
Paddy Creek (Overflow from East Bank).... At confluence with Bear Creek............................. None *67
Above confluence of South Paddy Creek..................... *73 *73
Above confluence of Middle Paddy Creek.................... None *78
Just south of Sargent Road................................ None *90
Middle Paddy Creek (Overflow from South At confluence with Paddy Creek............................ None #1
Bank).
South Paddy Creek (Overflow from South At confluence with Paddy Creek............................ None *69
Bank).
Stockton Diversion Canal (Overflow from At confluence with Calaveras River........................ *29 *28
North Bank). Just east of State Highway 99............................. #1 *32
Just east of State Highway 88............................. *34 *33
At Copperopolis Road...................................... None *41
Mormon Slough (Overflow from North Bank). At divergence of Stockton Diverting Canal................. None *41
Approximately 6,000 feet upstream of Copperopolis Road None *45
Crossing of Diverting Canal.
1,000 feet south of Flood Road............................ None *95
Mormon Slough (Overflow from South Bank). At Southern Pacific Railroad.............................. None *83
At Milton Road............................................ None *85
1,500 feet downstream of Flood Road....................... None *97
Potter Creek A (Overflow from South Bank) Upstream of Southern Pacific Railroad..................... None *89
Just downstream of Milton Road............................ None *90
Potter Creek A (Channel and South Bank Just north of Milton Road................................. None *92
Overflow). Just upstream of Fine Avenue.............................. None *104
Potter Creek B (Overflow from North Bank) Just north of Milton Road................................. #1 *85
Approximately 3,000 feet west of Fine Avenue.............. None *99
Just west of Fine Avenue.................................. None *102
Potter Creek B (Overflow from South Bank) At Milton Road............................................ None *87
Just west of Fine Avenue.................................. None *102
Potter Creek B (Main Channel and both Approximately 1,500 feet east of Fine Avenue.............. None *105
Overbanks).
Maps are available for inspection at San Joaquin County Flood Control and Water Conservation District, 1810 East Hazelton Avenue, Stockton, California.
Send comments to The Honorable David Baker, County Administrator, San Joaquin County Courthouse, 222 East Weber Avenue, Stockton, California 95202.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Stockton (City)......... Bear Creek (Overflow between Bear Creek Just east of Interstate Highway 5......................... None *12
San Joaquin County...... and Mosher Creek). Just east of Western Pacific Railroad..................... None *22
Just east of West Lane.................................... None *23
East of Southern Pacific Railroad and north of Morada Lane None *30
Just west of State Highway 99............................. None *35
Mosher Creek (Overflow from South Bank).. East of Western Pacific Railroad and west of West Lane.... None *22
[[Page 55527]]
Maps are available for inspection at Community Development Department/Building Department, City of Stockton, 345 North El Dorado Street, Stockton, California 95202.
Send comments to The Honorable Joan Darrah, Mayor, City of Stockton, Office of the City Council, City Hall, 425 North El Dorado Street, Stockton, California 95202.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Louisiana............................ St. Mary Parish Lower Atchafalaya (Berwick Bay).......... Approximately 11,880 feet downstream of the Southern *10 *10
(Unincorporated Areas). Pacific Railroad. *12 *12
Approximately 10,820 feet upstream of the Southern Pacific
Railroad.
Ponding Areas............................ Ponding area west of the City of Patterson, from north of *3 *1.5
the Southern Pacific Railroad to Bayou Teche.
Ponding area west of the Town of Berwick, from north of *3 *1.5
the Southern Pacific Railroad to Bayou Teche.
Ponding area south of the Southern Pacific Railroad, north *1.5 *1.5
of the southern portion of levee ring.
Maps are available for inspection at the St. Mary Parish Courthouse, 500 Main Street, Fifth Floor, Franklin, Louisiana.
Send comments to The Honorable Connie M. Fournet, St. Mary Parish Judge, St. Mary Parish Government, 500 Main Street, Fifth Floor, Courthouse, Franklin, Louisiana 70538.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico........................... Bosque Farms (Village).. Rio Grande (East Overbank)............... Approximately 4,200 feet downstream of South Bosque Loop.. *4,857 *4,857
Valencia County.........
Approximately 200 feet downstream of Esperanza Road....... *4,864 *4,864
Approximately 2,500 feet upstream of North Bosque Loop.... *4,871 *4,870
Maps are available for inspection at Village Hall, 1455 West Bosque Farms, Bosque Farms, New Mexico.
Send comments to The Honorable Carl Allen, Mayor, Village of Bosque Farms, P.O. Box 660, Peralta, New Mexico 87042.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico........................... Los Lunas (Village)..... Rio Grande (East Overbank)............... Approximately 1,000 feet downstream of the State Highway None *4,844
49 bridge.
Valencia County......... Approximately 500 feet upsteam of Lujan Street............ None *4,846
Approximately 4,500 feet upstream of Lujan Street......... None *4,851
Rio Grande (West Overbank)............... Approximately 250 feet downstream of Castillo Street...... None *4,842
East Main Street at State Highway 49...................... None *4,851
Approximately 1,000 feet upstream of Griego Road.......... None *4,861
Rio Grande (Main Channel)................ At State Highway 49....................................... None *4,852
Maps are available for inspection at City Hall, 660 Main Street, Los Lunas, New Mexico.
Send comments to The Honorable Louis F. Huning, Mayor, Village of Los Lunas, P.O. Box 1209, Los Lunas, New Mexico 87031.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New Mexico........................... Valencia County Rio Grande (Main Channel)................ Approximately 20,200 feet downstream of State Highway 49.. None *4,833
(Unincorporated Areas). Approximately 100 feet upstream of State Highway 49....... None *4,852
Approximately 10,000 feet upsteam of State Highway 49..... *4,860 *4,861
Approximately 25,000 feet upstream of State Highway 49.... *4,873 *4,874
Approximately 28,200 feet upsteam of State Highway 49..... None *4,876
Rio Grande (East Overbank)............... Approximately 2,400 feet downstream of White House Road... None *4,829
Approximately 2,000 feet upstream of White House Road..... *4,836 *4,834
At State Highway 49....................................... *4,849 *4,845
Approximately 3,300 feet upstream of Peralta Boulevard.... *4,864 *4,862
Approximately 12,000 feet upstream of Peralta Boulevard... None *4,871
[[Page 55528]]
Rio Grande (West Overbank)............... At Cordova Road........................................... None *4,833
At State Highway 49....................................... None *4,851
Approximately 24,000 feet upstream of State Highway 49.... None *4,873
Maps are available for inspection at 444 Luna Avenue, Los Lunas, New Mexico.
Send comments to Mr. Paul H. Gabaldon, County Manager, Valencia County, P.O. Box 1119, Los Lunas, New Mexico 87031.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Oklahoma............................. Noble County............ Cow Creek................................ Approximately 5,400 feet downstream of the Atchison, None *968
(Unincorporated Areas).. Topeka and Santa Fe Railroad. None *974
Just upstream of the Atchison, Topeka and Santa Fe None *1,001
Railroad.
Approximately 6,600 feet upstream of confluence of Calf
Creek.
Golf Course Tributary.................... Approximately 3,700 feet downstream of U.S. Route 77...... None *972
At Seventh Street......................................... None *992
Just downstream of 15th Street............................ None *1,017
Just upstream of 15th Street.............................. None *1,023
Golf Course Lake Tributary............... Approximately 500 feet downstream of Quail Creek Road..... None *995
Approximately 300 feet upstream of Quail Creek Road....... None *1,001
Wills Lake Tributary..................... Approximately 1,200 feet downstream of U.S. Route 64...... None *977
At U.S. Route 64.......................................... None *987
Unnamed Tributary to Cow Creek........... Approximately 2,600 feet downstream of Interstate Route 88 None *988
Approximately 1,000 feet upstream of Interstate Route 88.. None *1,008
Maps are available for inspection at 300 Courthouse Drive, Perry, Oklahoma.
Send comments to The Honorable Jim Lemon, Chairman, Noble County Board of Commissioners, P.O. Box 409, Perry, Oklahoma 73077.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Oklahoma............................. Perry (City)............ Cow Creek................................ Just upstream of Ivanhoe Street at corporate limits....... None *978
Noble County............
Just downstream of U.S. Highway 64........................ None *980
Just downstream of Cedar Street........................... None *984
At confluence with South of Highway 77 Tributary.......... None *992
At southernmost corporate limits.......................... None *996
Calf Creek............................... At confluence with Cow Creek.............................. None *989
Just upstream of Cedar Street............................. None *1,018
Just upstream of 15th Street.............................. None *1,020
Just upstream of 25th Street.............................. None *1,047
Just upstream of St. Louis-San Francisco Railroad......... None *1,063
Just upstream of Interstate Highway 35.................... None *1,083
Cherokee Strip Tributary................. At confluence with Calf Creek............................. None *1,048
Just upstream of U.S. Highway 64.......................... None *1,049
Just upstream of Interstate Highway 35.................... None *1,090
Ditch Witch Tributary.................... At confluence with Calf Creek............................. None *1,029
Just upstream of U.S. Highway 64.......................... None *1,032
South of Highway 77 Tributary............ At confluence with Cow Creek.............................. None *992
Just upstream of the Atchison, Topeka and Santa Fe None *998
Railroad at corporate limits.
Unnamed Tributary A of Calf Creek........ At confluence with Calf Creek............................. None *1,023
Just upstream of St. Louis-San Francisco Railroad......... None *1,023
Unnamed Tributary B of Calf Creek........ At confluence with Calf Creek............................. None *1,025
Approximately 2,000 feet upstream of confluence with Calf None *1,035
Creek. None *1,052
Just upstream of St. Louis-San Francisco Railroad.........
Unnamed Tributary C of Calf Creek........ At confluence with Calf Creek............................. None *1,024
Just upstream of St. Louis-San Francisco Railroad......... None *1,027
Leo Park Tributary....................... At confluence with Cow Creek.............................. None *984
[[Page 55529]]
Just upstream of Cedar Street............................. None *988
Approximately 1,200 feet upstream of Cedar Street......... None *990
Golf Course Tributary.................... Just upstream of easternmost corporate limits............. None *973
Just upstream of U.S. Route 77............................ None *980
Just upstream of Seventh Street........................... None *992
Just downstream of 15th Street............................ None *1,018
Golf Course Lake Tributary............... At confluence with Golf Course Tributary.................. None *995
Just upstream of Quail Creek Road......................... None *1,001
Brookwood Park Tributary................. At confluence with Golf Course Tributary.................. None *978
Just upstream of U.S. Route 77............................ None *997
Just upstream of Seventh Street........................... None *1,009
Just upstream of Ninth Street............................. None *1,019
Wills Lake Tributary..................... Approximately 600 feet upstream of the confluence with Cow None *980
Creek.
Just downstream of U.S. Route 64.......................... None *986
Maps are available for inspection at 732 Delaware, Perry, Oklahoma.
Send comments to The Honorable G. L. Hollingsworth, Mayor, City of Perry, 622 Cedar Street, Perry, Oklahoma 73077.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: October 24, 1995.
Richard T. Moore,
Associate Director for Mitigation.
[FR Doc. 95-27083 Filed 10-31-95; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 95-27076 Airworthiness Directives; McDonnell Douglas Model DC-8 Series Airplanes Equipped With Swivel-Type Bogie Beams on the Main Landing Gears
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55496-55498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27076]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-115-AD]
Airworthiness Directives; McDonnell Douglas Model DC-8 Series
Airplanes Equipped With Swivel-Type Bogie Beams on the Main Landing
Gears
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
DC-8 series airplanes. This proposal would require an inspection to
detect cracking of the swivel bogie beam lugs, and repair, if
necessary. For airplanes on which no cracking is found, this proposal
also would require an inspection to detect corrosion of the swivel pin
lug surfaces and bores, and modification of the forward bogie beams.
This proposal is prompted by reports indicating that swivel pin lugs of
the main landing gear (MLG) have failed due to cracks resulting from
stress corrosion. The actions specified by the proposed AD are intended
to prevent such stress corrosion, which could result in failure of the
swivel-type bogie beam of the MLG; this condition could result in a
collapse of the MLG during landing.
DATES: Comments must be received by December 28, 1995.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-115-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the FAA, Transport Airplane Directorate,
[[Page 55497]]
1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Transport
Airplane Directorate, Los Angeles Aircraft Certification Office (ACO),
3960 Paramount Boulevard, Lakewood, California.
FOR FURTHER INFORMATION CONTACT: Mike Lee, Aerospace Engineer, Airframe
Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960
Paramount Boulevard, Lakewood, California 90712; telephone (310) 627-
5325; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-115-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-115-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The FAA has received numerous reports indicating that the swivel
pin lug of the forward bogie beam on certain main landing gears (MLG)
installed on McDonnell Douglas Model DC-8 series airplanes has failed.
The swivel pin lug failures have been attributed, in part, to overload
due to insufficient lubrication of the swivel pin lugs, which can be
prevented by proper and timely maintenance practices. The swivel pin
lug failures also have been attributed, in part, to cracks resulting
from stress corrosion. This stress corrosion usually occurs after
approximately 10,000 hours time-in-service. These conditions, if not
detected and corrected in a timely manner, could result in collapse/
failure of the MLG during landing.
The FAA has reviewed and approved McDonnell Douglas DC-8 Service
Bulletin 32-182, dated January 20, 1995; and McDonnell Douglas Service
Bulletin DC8-32-182, Revision 1, dated July 21, 1995, and Revision 2,
dated August 30, 1995, which describe procedures for a magnetic
particle inspection to detect cracking of the swivel bogie beam lugs.
For airplanes on which no cracking is found, these service bulletins
also describe procedures for a visual inspection to detect corrosion of
the swivel pin lug surfaces and bores, and modification of the forward
bogie beam. This modification involves removing corrosion and sulfamate
nickel or electroless nickel plating of the swivel pin lugs of the
forward bogie beam. Accomplishment of this modification will minimize
the possibility of failure or collapse of the landing gear due to
stress corrosion cracking.
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would require a magnetic particle inspection to detect
cracking of the swivel bogie beam lugs, and repair, if necessary. For
airplanes on which no cracking is found during the magnetic particle
inspection, the proposed AD also would require a visual inspection to
detect corrosion of the swivel pin lug surfaces and bores, and
modification of the forward bogie beams.
Repair of any cracking detected during the magnetic particle
inspection would be required to be accomplished in accordance with a
method approved by the FAA. The other proposed actions (inspections and
modification) would be required to be accomplished in accordance with
the service bulletins described previously.
There are approximately 148 Model DC-8 series airplanes of the
affected design in the worldwide fleet. The FAA estimates that 97
airplanes of U.S. registry would be affected by this proposed AD, that
it would take approximately 83 work hours per airplane to accomplish
the proposed actions, and that the average labor rate is $60 per work
hour. Based on these figures, the total cost impact of the proposed AD
on U.S. operators is estimated to be $483,060, or $4,980 per airplane.
The total cost impact figure discussed above is based on
assumptions that no operator has yet accomplished any of the proposed
requirements of this AD action, and that no operator would accomplish
those actions in the future if this AD were not adopted.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
McDonnell Douglas: Docket 95-NM-115-AD.
Applicability: Model DC-8 series airplanes equipped with main
landing gears having
[[Page 55498]]
swivel type bogie beams on which the swivel pin lugs have not been
nickel plated, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (e) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the swivel-type bogie beam of the main
landing gear (MLG) due to stress corrosion, which could result in a
collapse of the MLG during landing, accomplish the following:
(a) Perform a magnetic particle inspection to detect cracking of
the swivel bogie beam lugs, in accordance with McDonnell Douglas DC-
8 Service Bulletin 32-182, dated January 20, 1995, McDonnell Douglas
Service Bulletin DC8-32-182, Revision 1, dated July 21, 1995, or
Revision 02, dated August 30, 1995, at the later of the times
specified in paragraphs (a)(1) and (a)(2) of this AD.
(1) Prior to the accumulation of 11,600 total flight hours, or
within 10 years since the installation of the forward bogie beam of
the MLG, whichever occurs first.
(2) Prior to the accumulation of 2,000 flight hours, or 2 years
after the effective date of this AD, whichever occurs first.
(b) If no cracking is detected during the inspection required by
paragraph (a) of this AD, prior to further flight, perform a visual
inspection to detect corrosion in the swivel pin lug surfaces and
bores, in accordance with McDonnell Douglas DC-8 Service Bulletin
32-182, dated January 20, 1995; McDonnell Douglas Service Bulletin
DC8-32-182, Revision 1, dated July 21, 1995; or Revision 02, dated
August 30, 1995.
Note 2: Particular attention should be paid to the lubrication
of the swivel pin lug and the lower swivel pin bushing during
regular normal maintenance.
(1) If no corrosion is detected, prior to further flight,
accomplish paragraph (b)(1)(i), (b)(1)(ii), (b)(1)(iii), or
(b)(1)(iv) of this AD, as applicable, in accordance with the service
bulletin.
(i) For Group I airplanes on which the forward bogie beam has
not been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group I airplanes) as
Condition 1 of the Accomplishment Instructions of the service
bulletin.
(ii) For Group I airplanes on which the forward bogie beam has
been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group I airplanes) as
Condition 2 of the Accomplishment Instructions of the service
bulletin.
(iii) For Group II airplanes on which the forward bogie beam has
not been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group II airplanes) as
Condition 1 of the Accomplishment Instructions of the service
bulletin.
(iv) For Group II airplanes on which the forward bogie beam has
been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group II airplanes) as
Condition 2 of the Accomplishment Instructions of the service
bulletin.
(2) If any corrosion is detected, prior to further flight,
accomplish paragraph (b)(2)(i), (b)(2)(ii), (b)(2)(iii), or
(b)(2)(iv), as applicable, in accordance with the service bulletin.
(i) For Group I airplanes on which the forward bogie beam has
not been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group I airplanes) as
Condition 1 of the Accomplishment Instructions of the service
bulletin.
(ii) For Group I airplanes on which the forward bogie beam has
been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group I airplanes) as
Condition 2 of the Accomplishment Instructions of the service
bulletin.
(iii) For Group II airplanes on which the forward bogie beam has
not been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group II airplanes) as
Condition 1 of the Accomplishment Instructions of the service
bulletin. If the minimum thickness of the reworked swivel pin lug
exceeds the dimensions specified in Table I of the service bulletin,
prior to further flight, repair in accordance with a method approved
by the Manager, Los Angeles Aircraft Certification Office (ACO),
FAA, Transport Airplane Directorate.
(iv) For Group II airplanes on which the forward bogie beam has
been modified previously: Modify the forward bogie beam in
accordance with the actions specified (for Group II airplanes) as
Condition 2 of the Accomplishment Instructions of the service
bulletin. If the minimum thickness of the reworked swivel pin lug
exceeds the dimensions specified in Table I of the service bulletin,
prior to further flight, repair in accordance with a method approved
by the Manager, Los Angeles ACO.
(c) If any cracking is detected during the inspection required
by paragraph (a) of this AD, prior to further flight, repair in
accordance with a method approved by the Manager, Los Angeles ACO.
(d) As of the effective date of this AD, no forward bogie beam
swivel pin lug shall be installed on any airplane, unless that
swivel pin lug has been modified in accordance with McDonnell
Douglas DC-8 Service Bulletin 32-182, dated January 20, 1995;
McDonnell Douglas Service Bulletin DC8-32-182, Revision 1, dated
July 21, 1995; or Revision 02, dated August 30, 1995.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles ACO. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on October 26, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 95-27076 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-27070 Control of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines: Regulations Requiring On-Board Diagnostic (OBD) SystemsAcceptance of Revised California OBD II Requirements
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55521-55525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27070]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86
[AMS-FRL-5302-3]
RIN 2060-AC65
Control of Air Pollution From New Motor Vehicles and New Motor
Vehicle Engines: Regulations Requiring On-Board Diagnostic (OBD)
Systems--Acceptance of Revised California OBD II Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This notice of proposed rulemaking proposes to revise
requirements associated with on-board diagnostic (OBD) systems, as
specified by 40 CFR 86.094-17. The federal OBD rulemaking, published
February 19, 1993, allowed for compliance with California OBD II
requirements as satisfying federal OBD requirements through the 1998
model year. The California Air Resources Board has recently revised
their OBD II requirements. The federal OBD regulations require
appropriate revisions such that compliance with the recently revised
OBD II requirements will satisfy federal OBD.
DATES: Written comments on this document will be accepted until January
16, 1996. EPA will conduct a public hearing on this Notice of Proposed
Rulemaking on December 13, 1995, if a public hearing is requested by
November 16, 1995. If a hearing is requested, it will convene at 9 a.m.
and will adjourn at such time as necessary to complete the testimony.
Further information on the public hearing can be found in Supplementary
Information, Section III, Public Participation.
ADDRESSES: Written comments should be submitted (in duplicate if
possible) to: The Air Docket, room M-1500 (Mail Code 6102), Waterside
Mall, Attention: Docket No. A-90-35, 401 M Street, SW., Washington, DC
20460.
The public hearing, if requested, will be held at the Holiday Inn
North Campus, 3600 Plymouth Road, Ann Arbor, MI. Parties wishing to
testify at the hearing should provide written notice to the contact
person (see FOR FURTHER INFORMATION CONTACT).
Materials relevant to this rulemaking are contained in Docket No.
A-90-35, and are available for public inspection and photocopying
between 8:00 a.m. and 5:30 p.m. Monday through Friday. The telephone
number is (202) 260-7548 and the facsimile number is (202) 260-4400. A
reasonable fee may be charged by EPA for copying docket material.
FOR FURTHER INFORMATION CONTACT: Todd Sherwood, U.S. Environmental
Protection Agency, 2565 Plymouth Road, Ann Arbor, MI 48105, telephone
(313) 668-4405.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
II. Requirements of this Proposal
III. Public Participation
IV. Discussion of Issues
V. Cost Effectiveness
VI. Administrative Requirements
I. Introduction and Background
On February 19, 1993, the EPA promulgated a final rulemaking (58 FR
9468, February 19, 1993) requiring manufacturers of light-duty vehicles
(LDV) and light-duty trucks (LDT) to install on-board emission control
diagnostics (OBD) systems on such vehicles beginning in model year
1994. The regulations promulgated in that final rulemaking require that
[[Page 55522]]
manufacturers install OBD systems which monitor emission control
components for any malfunction or deterioration causing exceedances of
certain emission thresholds, and alert the vehicle operator to the need
for repair. That rulemaking also requires that, when a malfunction
occurs, diagnostic information must be stored in the vehicle's computer
to assist the mechanic in diagnosis and repair.
Additionally, that rulemaking makes an allowance for manufacturers
to satisfy the Federal OBD requirements through the 1998 model year by
installing systems satisfying the California OBD II requirements
pertaining to those model years. This allowance means that
manufacturers could concentrate on designing one system for OBD
compliance and installing that system nationwide during allowable model
years. As EPA regulations cannot be revised except through EPA
rulemaking, the OBD II requirements allowed under this provision were,
and have continued to be, those existing on the date of publication of
the federal OBD final rulemaking. This means that subsequent changes
made to the OBD II requirements by the California Air Resources Board
(ARB) may be inconsistent and potentially unacceptable for federal OBD
compliance. The provisions of this proposed rulemaking will allow
manufacturers to comply with federal OBD requirements by optionally
complying with more recent OBD II regulations, specifically those
contained in ARB Mail Out #95-03, made publicly available January 19,
1995.
On March 23, 1995, EPA published a direct final rule revising
specific federal OBD provisions, including the provision of today's
proposal. EPA believed that the March 23 direct final rule would not be
controversial. In that direct final rule, EPA stated that, ``If notice
is received that any person or persons wish to submit adverse comments
regarding some, but not all of the actions taken in this rulemaking,
then EPA shall withdraw this final action and publish a proposal only
with regard to the actions for which notice has been received.'' EPA
stated that it would make such a withdrawal if adverse comment was
received by April 24, 1995.
EPA received adverse comment from the Motor and Equipment
Manufacturers Association (MEMA). This adverse comment was been placed
in the public docket for viewing. The comments submitted by MEMA were
adverse with regard to the revision of 40 CFR 86.094-17(j) that would
allow manufacturers the option of complying with the recently revised
California OBD II requirements (California Air Resources Board Mail-Out
#95-03). (MEMA had initially objected to other specific provisions of
the direct final rule, but MEMA withdrew these objections in a letter
signed May 18, 1995.) Therefore, EPA subsequently removed the provision
of the March 23 direct final rule that pertained to optional compliance
with the revised OBD II requirements of ARB Mail-Out #95-03 (Final rule
published on July 25, 1995 at 60 FR 37945). The language of the prior
final rule published on February 19, 1993 (58 FR 9468) allowing
compliance with California OBD II requirements is reinstated in
Sec. 86.094-17(j).
II. Requirements of This Proposal
This proposed rulemaking allows manufacturers to comply with
federal OBD requirements by optionally complying with the revised and
recently adopted California OBD II regulations. The allowance for
optional compliance with California OBD II has already been established
in the federal OBD program and was incorporated into the federal OBD
final rulemaking in February, 1993. However, since that time, the ARB
has made several revisions to the OBD II regulations.
Because the Agency cannot simply accept the revised OBD II without
undergoing the federal regulatory process, any optional compliance with
California OBD II under the current federal regulations must be done
against the OBD II regulations as they existed in February, 1993 (ARB
Mail Out #92-56, November, 1992). However, the ARB has determined that
several manufacturers would have difficulty complying with the OBD II
regulations as they existed in February, 1993. The most notable
requirements that currently pose difficulties are those for engine
misfire detection under all positive torque engine speeds and
conditions and full OBD II implementation on alternative fueled
vehicles. Additionally, most manufacturers have indicated difficulty
meeting other aspects of the OBD II regulations due to, for example,
the complexity of the computer software requirements, and unpredictable
driver actions such as resting a foot on the gas pedal while stopped at
a traffic light. It is these additional difficulties that have prompted
ARB to provide a ``deficiency'' allowance in their revised OBD II
regulations whereby manufacturers can certify as OBD II compliant
despite some reasonably acceptable and unplanned deficiency in the OBD
system.
As a result of the ARB revisions to OBD II, and to remain
consistent with the original intent of providing for optional
compliance with OBD II for federal OBD purposes, and because EPA has
determined that OBD systems complying with the revised OBD II
requirements fully satisfy the intent of the 1990 Clean Air Act
Amendments and federal OBD regulations, this proposed rulemaking will
provide the same option but will require that manufacturers choosing
this option comply with the more recent OBD II regulations contained in
ARB Mail Out #95-03.
This means that any federal vehicles complying with federal OBD by
optionally complying with California OBD II are allowed the same
deficiencies as allowed under the OBD II provisions. This is consistent
with revisions deemed necessary by EPA and subsequently made to federal
OBD requirements through a direct final rulemaking published in March
of this year (60 FR 15242, March 23, 1995). Note, however, that a
manufacturer requesting certification of a deficient OBD II system must
receive EPA acceptance of any deficiency independently of an acceptance
made by ARB. The Agency will use the same criteria specified by the ARB
in the OBD II regulation,\1\ with the exception of providing deficiency
allowances for lack of catalyst monitors or oxygen sensor monitors as
the Clean Air Act specifically requires these monitors no later than
the 1996 model year. The Agency will make every effort to determine the
acceptability of OBD II deficiency requests in concert with ARB staff
to avoid the potential for conflicting determinations. However, the
extent to which the agencies can make concurrent and coordinated
findings will rely heavily on the manufacturer, who will be expected to
provide any necessary information to both agencies in parallel rather
than pursuing deficiency determinations on a separate basis.
\1\Those criteria being the extent to which the requirements are
satisfied overall on the vehicle applications in question, the
extent to which the resultant diagnostic system design will be more
effective than earlier OBD systems, and a demonstrated good-faith
effort to meet the requirements in full by evaluating and
considering the best available monitoring technology.
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III. Public Participation
A. Comments and the Public Docket
The Agency welcomes comments on all aspects of this proposed
rulemaking. All comments, with the exception of
[[Page 55523]]
proprietary information, should be directed to the EPA Air Docket
Section, Docket No. A-90-35 (see ADDRESSES). Commenters who wish to
submit proprietary information for consideration should clearly
separate such information from other comments by:
Labeling proprietary information ``Confidential Business
Information'' and
Sending proprietary information directly to the contact
person listed (see FOR FURTHER INFORMATION CONTACT) and not to the
public docket.
This will help insure that proprietary information is not
inadvertently placed in the docket. If a commenter wants EPA to use a
submission labeled as confidential business information as part of the
basis for the final rule, then a nonconfidential version of the
document, which summarizes the key data or information, should be sent
to the docket.
Information covered by a claim of confidentiality will be disclosed
by EPA only to the extent allowed and by the procedures set forth in 40
CFR Part 2. If no claim of confidentiality accompanies the submission
when it is received by EPA, the submission may be made available to the
public without notifying the commenters.
B. Public Hearing
EPA will conduct a public hearing on this notice of proposed
rulemaking on December 13, 1995, if a public hearing is requested by
November 16, 1995. If a hearing is requested, it will convene at 9 a.m.
and will adjourn at such time as necessary to complete the testimony.
If requested the public hearing will be held at the Holiday Inn North
Campus, 3600 Plymouth Road, Ann Arbor, MI.
Should a public hearing be requested and subsequently held, anyone
wishing to present testimony about this proposal at that public hearing
should, if possible, notify the contact person (see FOR FURTHER
INFORMATION CONTACT) at least seven days prior to the day of the
hearing. The contact person should be given an estimate of the time
required for the presentation of testimony and notification of any need
for audio/visual equipment. A sign-up sheet will be available at the
registration table the morning of the hearing for scheduling those who
have not notified the contact earlier. This testimony will be scheduled
on a first-come, first-served basis, and will follow the testimony that
is arranged in advance.
The Agency recommends that approximately 50 copies of the statement
or material to be presented be brought to the hearing for distribution
to the audience. In addition, EPA would find it helpful to receive an
advance copy of any statement or material to be presented at the
hearing at least one week before the scheduled hearing date. This is to
give EPA staff adequate time to review such material before the
hearing. Such advance copies should be submitted to the contact person
listed.
The official records of the hearing will be kept open for 30 days
following the hearing to allow submissions of rebuttal and
supplementary testimony. All such submittals should be directed to the
Air Docket, Docket No. A-90-35 (see ADDRESSES).
The hearing will be conducted informally, and technical rules of
evidence will not apply. Written transcripts of the hearing will be
made and a copy thereof placed in the docket. Anyone desiring to
purchase a copy of the transcript should make individual arrangements
with the court reporter recording the proceeding.
IV. Discussion of Issues
As noted above, EPA published a direct final rulemaking on March
23, 1995, that contained a provision for optional compliance with
revised California OBD II regulations as satisfying federal OBD through
the 1998 model year. That provision was to become effective on May 22,
1995, unless EPA received notice of adverse comments by April 24, 1995.
EPA received adverse comment from one source, the Motor and Equipment
Manufacturers Association (MEMA), dated April 21, 1995. MEMA had
commented adversely on all but one provision contained in the direct
final rulemaking (sections II.A. through II.G.). The only provision not
commented on by MEMA was that provision deleting the federal OBD anti-
tampering requirements (40 CFR 86.094-18). In subsequent discussions,
MEMA agreed to withdraw all of their adverse comments, with the
exception of that comment pertaining to federal acceptance of compliant
revised California OBD II systems as satisfying federal OBD
requirements. As a result, EPA has removed the provision allowing
revised OBD II systems for federal OBD compliance.
The comments received from MEMA regarding federal acceptance of
compliant revised California OBD II systems as satisfying federal OBD
requirements can be categorized into three areas: (1) Delegation of
federal regulatory authority to the State of California; (2) Lack of an
OBD II waiver under Section 209 of the Clean Air Act (CAA); and, (3)
OBD II violates Section 202(m)(4) and 202(m)(5) of the CAA. These will
be addressed in order.
In their comments, MEMA states an objection to , ``* * * EPA's use
of the rule to unlawfully delegate federal rulemaking authority to the
California Air Resources Board (``CARB'').'' The basis of this comment
is unclear. The Agency has determined that the California OBD II
regulation adequately encompass all requirements of the CAA section
202(m)(1), 202(m)(2), and 202(m)(4), and the regulatory intent of EPA's
federal OBD final rulemaking of February, 1993. In light of that
determination, the Agency has determined that it is beneficial to the
automobile industry, and it presents no loss of federal OBD program
benefits, to allow for optional compliance with California OBD II
regulations as satisfying federal OBD for the initial years of OBD
implementation. This issue was considered at length during development
of the federal OBD final rulemaking and was included in the CFR through
that rulemaking. In the March, 1995, direct final rulemaking, EPA
simply revised that regulatory provision to include recent revisions
made to the OBD II regulations that EPA had determined were necessary.
In fact, EPA made revisions to its own regulations providing measures
of relief similar to those contained in the revised OBD II regulations.
It should also be pointed out that EPA makes determinations of
regulatory compliance, whether that compliance is done against
California OBD II or specific federal OBD provisions, in conjunction
with but independently from the California Air Resources Board. The ARB
does not have the authority to implement federal regulations, nor the
authority to make certification decisions. Therefore, EPA is making all
implementation and certification decisions on vehicles produced for
sale outside the State of California.
If ARB makes any further changes to the OBD II regulations, such
changes will not automatically apply for federal certification
purposes. EPA will once again evaluate such revisions to determine
whether they are appropriate and will again provide for notice and
comment rulemaking to assure that the public can provide its input.
Another MEMA comment stated that EPA had not yet granted a CAA
Section 209 waiver to California for their OBD II program. MEMA argues
that the lack of such a waiver precludes EPA from accepting OBD II
systems for federal OBD compliance. However, the Agency's regulatory
provisions state that an OBD system meeting the requirements of the OBD
II regulations
[[Page 55524]]
effectively complies with federal OBD regulations. California's OBD II
program is in this case similar to any other set of procedures that EPA
incorporates by reference, for example, protocols developed by the
Society of Automotive Engineers (SAE). These protocols are generally
unenforceable by themselves, but are enforceable by EPA once they are
promulgated by rulemaking. The existence of a waiver to California for
their OBD II program is immaterial to this optional provision under
federal OBD. Even if the State of California were to discontinue their
OBD II program, the Agency could continue to allow optional compliance
against the ARB OBD II regulations.
MEMA also argues that OBD II, and federal OBD by allowing
compliance against the OBD II provisions, violates Sections 202(m)(4)
and 202(m)(5) of the CAA. Section 202(m)(4) requires standardization of
diagnostic connectors, OBD system access, and OBD data output, while
202(m)(5) requires that service information be made available to
interested parties. This comment seems to be directed to the anti-
tampering provisions of the OBD II requirements. Even if EPA believed
that such requirements violated section 202(m)(4) and 202(m)(5), such
requirements have expressly been excluded from EPA's incorporation of
OBD II. Thus, such arguments are inapplicable. Moreover, all
manufacturers will be required to comply with EPA's Service Information
Availability regulations (final rule published on August 9, 1995 at 60
FR 40474).
V. Cost Effectiveness
This proposed rulemaking alters an existing provision by allowing
optional compliance with the most recent California OBD II
requirements, as opposed to the November, 1992, ``Original'' OBD II
requirements, for the purposes of federal OBD compliance. Because this
proposed rulemaking alters an existing provision, there are no costs
associated with this specific proposed action. The costs and emission
reductions associated with the federal OBD program were developed for
the February, 19, 1993, final rulemaking. The proposed change being
made today does not affect the costs and emission reductions published
as part of that rulemaking.
VI. Administrative Requirements
A. Administrative Designation
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or,
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Reporting and Recordkeeping Requirements
This proposed rulemaking does not change the information collection
requirements submitted to and approved by OMB in association with the
OBD final rulemaking (58 FR 9468, February 19, 1993; and, 59 FR 38372,
July 28, 1994).
C. Impact on Small Entities
The Regulatory Flexibility Act of 1980 requires Federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. This proposed rulemaking will provide regulatory relief to
both large and small volume automobile manufacturers by maintaining
consistency with California OBD II requirements. This proposed
rulemaking will have no impact on businesses which manufacture,
rebuild, distribute, or sell automotive parts, nor those involved in
automotive service and repair.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates Act
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, or $100 million or more. Under Section 205, EPA
must select the most cost effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action promulgated
today does not include a Federal mandate that may result in estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector.
E. Electronic Copies of Rulemaking Documents
Electronic copies of the preamble and the regulatory text of this
proposed rulemaking are available on the Office of Air Quality Planning
and Standards (OAQPS) Technology Transfer Network Bulletin Board System
(TTN BBS). Users are able to access and download TTN BBS files on their
first call. After logging onto TTN BBS, to navigate through the BBS to
the files of interest, the user must enter the appropriate command at
each of a series of menus. The steps required to access information on
this rulemaking are listed below. The service is free, except for the
cost of the phone call.
TTN BBS: 919-541-5742 (1,200-14,400 bps, no parity, eight data
bits, one stop bit). Voice help: 919-541-5384 Internet address: TELNET
ttnbbs.rtpnc.epa.gov Off-line: Mondays from 8-12 Noon ET.
1. Technology Transfer Network Top Menu: GATEWAY TO TTN
TECHNICAL AREAS (Bulletin Boards) (Command: T)
2. TTN TECHNICAL INFORMATION AREAS: OMS--Mobile Sources
Information (Command: M)
3. OMS BBS === MAIN MENU FILE TRANSFERS: Rulemaking & Reporting
(Command: K)
4. RULEMAKING PACKAGES: <7> Inspection and Maintenance (Command: 7)
5. Inspection and Maintenance Rulemaking Areas: File area #2 On-
Board Diagnostics (Command: 2)
At this stage, the system will list all available FTP Review files.
To download a file, select a transfer protocol which will match the
terminal software on your computer, then set your own software to
receive the file using that same protocol.
[[Page 55525]]
If unfamiliar with handling compressed (i.e., ZIP'd) files, go to
the TTN topmenu, System Utilities (Command: 1) for information and the
necessary program to download in your computer. After getting the files
you want onto your computer, you can quit TTN BBS with the oodbye
command.
List of Subjects in 40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Air pollution control, Gasoline, Incorporation by reference, Motor
vehicles, Motor vehicle pollution, Reporting and recordkeeping
requirements.
Dated: October 20, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, it is proposed to amend
part 86 of title 40 of the Code of Federal Regulations as follows:
PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR
VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION
AND TEST PROCEDURES
1. The authority citation for part 86 continues to read as follows:
Authority: Secs. 202, 203, 205, 206, 207, 208, 215, 216, 217,
and 301(a), Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524,
7525, 7541, 7542, 7549, 7550, 7552, and 7601(a)).
Subpart A--[Amended]
2. Section 86.094-17 is amended by revising paragraph (j) to read
as follows:
Sec. 86.094-17 Emission control diagnostic system for 1994 and later
light-duty vehicles and light-duty trucks.
* * * * *
(j) Demonstration of compliance with California OBD II requirements
(Title 13 California Code section 1968.1), as modified pursuant to
California Mail Out #95-03 (January 19, 1995), shall satisfy the
requirements of this section through the 1998 model year except that
compliance with Title 13 California Code section 1968.1(d), pertaining
to tampering protection, is not required to satisfy the requirements of
this section.
[FR Doc. 95-27070 Filed 10-31-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-27040 Plan for Sharing the Costs of Relocation
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55529-55537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27040]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[WT Docket No. 95-157; RM-8643; FCC 95-426]
Plan for Sharing the Costs of Relocation
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission adopted a Notice of Proposed Rule Making
(``Notice''), proposing a plan for sharing the costs of relocating
microwave facilities operating in the 1850 to 1990 MHz (``2 GHz'')
band. The Commission's proposal would establish a system whereby
Personal Communications Services (``PCS'') licensees that incur costs
to relocate microwave links outside of their assigned licensing areas
or spectrum blocks would receive reimbursement for a portion of those
costs from other PCS licensees that benefit from the resulting
clearance of the spectrum. In addition to cost-sharing issues, the
Commission asks for comment on whether to clarify certain other aspects
of the Commission's microwave relocation rules. Specifically, the
Commission seeks comment on whether to clarify the definition of ``good
faith'' negotiations, which are required during the mandatory
negotiation period; whether to clarify the definition of ``comparable''
facilities, which must be provided to microwave incumbents by PCS
licensees who seek involuntary relocation; whether to clarify the rules
that allow relocated microwave licensees a 12-month trial period to
ensure their new facilities are comparable; whether to continue to
grant microwave applications for primary status in the 2 GHz band; and
whether to place a time limit on a PCS licensee's obligation to provide
comparable facilities. Also, the Commission stated that, as of the date
the Notice was adopted, it would grant primary status applications only
for minor modifications that would not add to the relocation costs of
PCS licensees.
DATES: Comments must be filed on or before November 30, 1995, and reply
comments must be filed on or before December 21, 1995.
ADDRESSES: Federal Communications Commission, 1919 M Street NW.,
Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT:
Linda I. Kinney, (202) 418-0620, Wireless Telecommunications Bureau.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice, adopted on
October 12, 1995, and released on October 13, 1995. The complete text
of this Notice is available for inspection and copying during normal
business hours in the FCC Dockets Branch, Room 239, 1919 M Street NW.,
Washington, D.C., and also may be purchased from the Commission's copy
contractor, International Transcription Service, at (202) 857-3800,
2100 M Street NW., Suite 140, Washington, D.C. 20037.
I. Background
In the First Report and Order and Third Notice of Proposed Rule
Making in ET Docket No. 92-9, 57 FR 49020 (October 29, 1992) (``ET
First Report and Order''), the Commission reallocated the 1850-1990,
2110-2150, and 2160-2200 MHz bands from private and common carrier
fixed microwave services to emerging technology services. The
Commission also established procedures for 2 GHz microwave incumbents
to be cleared off of emerging technology spectrum and relocated to
available frequencies in higher bands. The ET First Report and Order
set forth a regulatory framework that encourages incumbents to
negotiate voluntary relocation agreements with emerging technology
licensees or manufacturers of unlicensed devices when frequencies used
by the incumbent are needed to implement the emerging technology. The
ET First Report and Order also stated that, should voluntary relocation
negotiations fail, the emerging technology licensee could request
mandatory relocation of the existing facility, provided that the
emerging technology service provider pays the cost of relocating the
incumbent to a comparable facility.
In the Commission's 1993 Third Report and Order and Memorandum
Opinion and Order in ET Docket No. 92-9, 58 FR 46547 (September 2,
1993) (``ET Third Report and Order''), as
[[Page 55530]]
modified on reconsideration by the Commission's 1994 Memorandum Opinion
and Order, 59 FR 19642 (April 25, 1994) (``ET Memorandum Opinion and
Order''), the Commission established additional details of the
transition plan to enable emerging technology providers to relocate
incumbent facilities to other spectrum. The relocation process now in
effect consists of two periods that must expire before an emerging
technology licensee may proceed to request involuntary relocation. The
first is a fixed two year period for voluntary negotiations (three
years for public safety incumbents, e.g., police, fire, and emergency
medical), during which the emerging technology providers and microwave
licensees may negotiate any mutually acceptable relocation agreement.
If no agreement is reached during the voluntary negotiation period, the
emerging technology licensee may initiate a one-year mandatory
negotiation period--or two-year mandatory period if the incumbent is a
public safety licensee--during which the parties are required to
negotiate in good faith. Should the parties fail to reach an agreement
during the mandatory negotiation period, the emerging technology
provider may request involuntary relocation of the existing facility.
After relocation, the microwave incumbent is entitled to a one-year
trial period to determine whether the facilities are comparable. If the
relocated incumbent can demonstrate that the new facilities are not
comparable to the former facilities, the emerging technology licensee
must remedy the defects or pay to relocate the microwave licensee back
to its former or an equivalent 2 GHz frequency.
Because of the pattern of use of the 1850-1990 MHz band by
microwave incumbents, the relocation burden on each PCS licensee is not
necessarily limited to microwave links within its spectrum block and
licensing area. Some spectrum blocks assigned to microwave incumbents
overlap with one or more PCS blocks. Also, incumbents' receivers may be
susceptible to adjacent or co-channel interference from PCS licensees
in more than one PCS spectrum block. In order to clear a particular
spectrum block for unrestricted PCS use, a PCS licensee may be required
to relocate links in other licensing areas or on other spectrum blocks
that would otherwise cause or receive interference.
On May 5, 1995, Pacific Bell Mobile Services filed a Petition for
Rulemaking (``PacBell Petition'') that proposed a detailed cost-sharing
plan in which PCS licensees on all blocks, licensed and unlicensed,
would share in the cost of relocating microwave stations. On May 16,
1995, the Commission requested comments on PacBell's proposal. Initial
comments were due on June 15, 1995 and replies were due June 30, 1995.
The Commission's cost-sharing proposal is based on PacBell's Petition,
as modified by the Personal Communications Industry Association
(hereinafter referred to as the ``PCIA consensus proposal'').
II. Notice of Proposed Rule Making
A. Cost-Sharing Proposal
The Commission tentatively concludes that the public interest is
served by requiring PCS licensees that benefit from the relocation of a
microwave link to contribute to the costs of that relocation. Under the
Commission's current rules, the PCS licensee that relocates microwave
links (hereinafter referred to as the ``PCS relocator'') has no right
to reimbursement if a PCS licensee relocates a microwave link that
encumbers another PCS licensee's authorized frequencies or is located
in another licensee's territory. Any form of cost-sharing that occurs
must be by private, voluntary negotiation. Although affected PCS
entities may be able to identify each other and negotiate a joint
relocation agreement, parties benefitting from a relocation may not be
in a position to reach such an agreement before one of the parties must
move the link of its own business reasons. In addition, prior to the
licensing of the C, D, E, and F blocks, informal cost sharing of
relocation expenses that benefit these blocks in impossible because the
licensees for these blocks are unknown. As a result, existing PCS
licensees may be hesitant to move links unilaterally without some
assurance that future competitors who benefit from the relocation will
pay a share of the cost.
The Commission believes that adoption of a mandatory cost-sharing
plan would significantly enhance the speed of relocation by reducing
the ``free rider'' problem and creating incentives for PCS licensees to
negotiate system-wide relocation agreements with microwave incumbents.
This would in turn result in faster deployment of PCS and delivery of
service to the public. The Commission also tentatively concludes that
the PCIA consensus proposals, with a few modifications, offers a
practical and equitable approach to allocating the costs of relocation.
The mechanics of the plan are set forth in more detail below. The
Commission seeks comment on the advantages and disadvantages of
adopting mandatory cost-sharing and on the specifics of this proposal.
1. Mechanics of the Cost-Sharing Plan
The Cost-Sharing Formula. Under PCIA's consensus proposal, PCS
licensees would be entitled to reimbursement based on a cost-sharing
formula. The formula is derived by amortizing the cost of relocating a
particular microwave link over a ten-year period. As PCS licensees
enter the market, their share of relocation costs is adjusted to
reflect the total number of PCS licensees that benefit and the relative
time of market entry. The proposed formula is:
[GRAPHIC][TIFF OMITTED]TP01NO95.002
R equals the amount of reimbursement.
C equals the amount paid to relocate the link.
N equals the next PCS licensee that would interfere with the link. (The
PCS relocator is denominated as N=1. After the link is relocated, the
next PCS provider that would interfere would be 2, as so on.)
TN equals T1 plus the number of months that have passed since
the relocator obtained its reimbursement rights.
T1 equals the month that the first PCS licensee obtained rights to
reimbursement (as denoted by the numerical abbreviation for each month,
i.e., March=3).
The Commission tentatively concludes that the above formula
provides an effective and straightforward means of determining a
subsequent licensee's reimbursement obligation. The Commission also
tentatively agrees with PCIA that a PCS relocator should be entitled to
full reimbursement for relocating links with both endpoints outside of
its licensed service area, subject to the reimbursement cap (discussed
in further detail below). Such links are unlikely to interfere with the
relocator's system, and are easy to identify for purposes of
administering the cost-sharing plan. The Commission requests comment on
its proposal and any alternatives.
Expenses Already Incurred. The Commission tentatively concludes
that PCS licensees should be permitted to seek reimbursement for any
relocation costs incurred after the voluntary negotiation period began
for A and B block broadband PCS licensees on April 5, 1995. Once the
new rules are effective, a clearinghouse would be established (as
discussed in further detail below), and receipts from
[[Page 55531]]
expenses already incurred would be submitted to the clearinghouse for
accounting purposes. This would allow those PCS licensees, which have
already relocated or are in the process of relocating microwave
systems, to receive the same reimbursement benefit as other PCS
licensees that relocate microwave systems after any rule change. The
Commission seeks comment on this proposal.
Compensable Costs. Relocation costs can be divided roughly into the
following two categories: the actual cost of relocating a microwave
incumbent to comparable facilities, and payments above the cost of
providing comparable facilities, referred to as ``premium payments.''
The Commission tentatively concludes that premium payments should not
be reimbursable, because such payments are likely to be paid by PCS
licensees to accelerate relocation so that they can be the first
licensee in the market area to offer PCS services. The Commission does
not believe later that market entrants should be required to contribute
to premium payments, because they have not received the corresponding
advantage of being first to market. The Commission therefore proposes
to limit the calculation of reimbursable costs under the formula to
actual relocation costs. Actual relocation costs would include such
items as: radio terminal equipment (TX and/or RX--antenna, necessary
feed lines, MUX/Modems); towers and/or modifications; back-up power
equipment; monitoring or control equipment; engineering costs (design/
path survey); installation; systems testing; FCC filing costs; site
acquisition and civil works; zoning costs; training; disposal of old
equipment; test equipment (vendor required); spare equipment; project
management; prior coordination notification under Section 21.100(d) of
the Commission's rules, 47 CFR 21.100(d); site lease renegotiation;
required antenna upgrades for interference control; power plant upgrade
(if required); electrical grounding systems; Heating Ventilation and
Air Conditioning (HVAC) (if required); alternate transport equipment;
and leased facilities. The Commission requests comment on this
proposal, and on any additional types of costs that commenters believe
should be eligible for reimbursement.
Length of Obligation. The Commission tentatively concludes that the
cost-sharing plan should sunset for all PCS licensees ten years after
the date that voluntary negotiations commenced for A and B block
licensees, which means that cost-sharing would cease on April 4, 2005.
The Commission believes that it is important to set a date certain on
which the clearinghouse will be dissolved, and adopt a cost-sharing
plan with the fewest possible variables so that it will be easy to
administer. The Commission also believes that this time period is
sufficient for all licensees (including those in the C, D, E, and F
blocks, which will be licensed in the near future) to complete most
relocation agreements. This ten-year period also roughly coincides with
the initial PCS license terms and the ten-year depreciation period
under the proposed formula. To the extent that some obligations would
have extended beyond this date under the formula, the Commission
believes that the limited benefit that licensees would receive is
outweighed by the cost of maintaining a clearinghouse beyond the ten-
year period. The Commission seeks comment on this proposal.
Reimbursement Cap. The Commission tentatively concludes that a cap
on the amount subject to reimbursement under the cost-sharing formula
is appropriate, because it protects future PCS licensees--who have no
opportunity to participate in the negotiations--from being required to
contribute to excessive relocation expenses. The Commission also
tentatively concludes that a cap will not force microwave licensees to
contribute to the cost of their own relocation, because a cap on the
amount subject to reimbursement does not limit payments to microwave
incumbents. If a cap is imposed, the Commission believes that the
amount should be sufficient to cover the average cost of relocating a
link. While this may require the initial PCS relocator to bear more of
the cost in cases where relocation expenses are unusually high, setting
the cap at a higher level could shift the burden unfairly to subsequent
licensees in many more cases. Therefore, the Commission tentatively
concludes that a $250,000 per link cap (plus $150,000 if a tower is
required) is appropriate. This amount has the consensus support of PCS
commenters as an accurate approximation of the likely cost of
relocating most microwave stations. In addition, UTAM has estimated
that relocation costs will average $200,000 per link to cover the same
distance as an existing single microwave link. The Commission requests
comment on this proposal.
2. Cost-Sharing Obligation
Creation of Reimbursement Rights. The Commission tentatively
concludes that the PCS relocator should obtain some form of rights for
which it would be entitled to reimbursement. The Commission proposes
that, once a PCS licensee and a microwave incumbent have signed an
agreement that provides for the relocation of a specified number of
microwave links, the parties would submit the relocation agreement to a
clearinghouse. On the date that the relocation agreement is submitted,
the clearinghouse would replace the name of the microwave incumbent
with the name of the PCS relocator in a database maintained for the
purpose of determining reimbursement. As of that date, the PCS
relocator would become the holder of ``reimbursement rights'' for all
links covered by the relocation agreement. When a subsequent PCS
licensee begins the prior coordination notice (``PCN'') process
required by Section 21.100(d) of the Commission's rules, 47 CFR
21.100(d), that licensee would also contact the clearinghouse to
determine whether any PCS relocators hold reimbursement rights for the
channel over which it intends to transmit.
The Commission tentatively concludes that the creation of
reimbursement rights--which are separate, distinct, and unaffiliated
with the underlying microwave license--are preferable to the concept of
transferring the microwave incumbent's ``interference'' rights as
proposed by PCIA. First, the Commission believes that it is important
for the microwave incumbent to retain all of its rights under its
original authorization until its new system is in place. Second, any
transfer of rights relating to a license (even if only partial rights
are being transferred) would require Commission approval under Section
310(d) of the Communications Act, as amended. Thus, under PCIA's
proposal, the microwave incumbent would be required to request
permission from the Commission to transfer its interference rights to a
PCS licensee. The PCS licensee could not obtain the interference rights
until the Commission has acted. The Commission believes that such a
procedure would be time consuming and administratively cumbersome.
Third, the interference rights would have to exist independently from
the microwave license, so that they would not be cancelled at the same
time the microwave incumbent returns its 2 GHz license to the
Commission. The Commission seeks comment on the creation of
reimbursement rights.
Another alternative would be for the microwave licensee to assign
its microwave license to the PCS licensee under Section 94.47 of the
Commission's rules, 47 CFR 94.47, as part of a relocation agreement.
The assignment would require Commission
[[Page 55532]]
approval, but would effectively transfer the incumbent's entire license
to the PCS licensee. The difficulty with this approach is that under
Section 94.53 of the Commission's rules, 47 CFR 94.53, the microwave
license must be cancelled if the facility has been non-operational for
a year. Because the PCS licensee would not operate a microwave system,
a mechanism would be required that enables the PCS licensee to exercise
its rights after the microwave facility has become non-operational. The
Commission seeks comment on the above options and any alternatives.
Definition of Interference. To ascertain whether subsequent
licensees are obligated to make a payment under the proposed plan, the
Commission must decide what standard will be used to determine
interference, and what type of interference (e.g., co-channel, adjacent
channel) triggers a cost-sharing obligation. The Commission tentatively
concludes that the Telecommunications Industry Association (``TIA'')
Bulletin 10-F is an appropriate standard for determining interference
for purposes of the cost-sharing plan. TIA Bulletin 10-F is already the
standard used to determine PCS-to-microwave interference.
The Commission also notes, however, that the procedures set forth
in TIA Bulletin 10-F permit the use of different propagation models and
allow alternative technical parameters to be employed. Therefore, TIA
Bulletin 10-F may not provide a clear standard for determining
interference in some situations. Thus, the Commission seeks comment on
whether the application of Bulletin 10-F should be limited in scope for
reimbursement purposes to the minimum coordination distance equations.
Under this approach, reimbursement would be required for all facilities
within the calculated coordination zone from the PCS base station,
rather than basing the requirement on the more complex and variable
computations of potential interference. The Commission tentatively
concludes that use of these minimum coordination distance equations
would simplify administration of the test for determining whether a
cost-sharing obligation exists, and would reduce the number of disputes
that may otherwise arise over whether interference would have occurred
if the link were still operational. The Commission requests comment on
whether any of the other standard equations of TIA Bulletin 10-F may be
applied more easily for purposes of cost-sharing. The Commission also
seeks comment on whether there is a more appropriate industry-accepted
standard for determining interference.
The Commission also notes that incumbent microwave licensees
generally employ receivers with ``receiving bandwidths'' that
significantly exceed the authorized bandwidth of the associated
transmitter. Accordingly, microwave receivers generally require
protection over a frequency range twice as large as the transmission
bandwidth (i.e., a microwave station with a 5 MHz transmit bandwidth
would require protection within a 10 MHz band to protect its
corresponding receive station). For purposes of determining a
reimbursement obligation, however, the Commission proposes to consider
only interference that occurs co-channel to the transmit and receive
bandwidth of the incumbent microwave licensee. For reimbursement and
cost-sharing purposes only, the Commission proposes that a 5 MHz
bandwidth transmit microwave station would receive only 5 MHz
protection for its receive stations (rather than the 10 MHz adjacent
channel protection it would typically require to protect its receive
station). Excluding adjacent channel interference for purposes of cost-
sharing will serve to simplify administration of the cost-sharing plan
by providing more certainty in determining when a reimbursement
obligation exists. Also, it would reduce the number of receive stations
that would be calculated to receive interference, thereby limiting the
number of situations under which reimbursement is required. The
Commission seeks comment on this proposal and any alternatives. The
Commission also requests comment on whether adjacent channel
interference (i.e., 5 MHz transmit and 10 MHz receive protection)
should be included for purposes of determining a reimbursement
obligation.
With respect to the type of interference that should trigger a
cost-sharing obligation, the Commission tentatively concludes that a
two-part test should be adopted for determining whether reimbursement
is required. Thus, a subsequent licensee would be required to reimburse
the PCS relocator only if (1) The subsequent PCS licensee's system
would have caused co-channel interference to the link that was
relocated, and (2) at least one endpoint of the former link was located
within the subsequent PCS licensee's authorized market area. The
Commission requests comment on whether reimbursement should also be
required if the link that is relocated would have caused adjacent-
channel interference to the subsequent licensee, and whether it would
be difficult to determine if adjacent-channel interference would have
occurred.
Payment Issues. The Commission tentatively concludes that a PCS
licensee should be required to pay under the cost-sharing formula at
the time that its operations would have caused interference with the
relocated link. The Commission also tentatively concludes that a PCS
licensee's reimbursement obligation should be determined at the time
frequency coordination is required. Thus, the Commission proposes that
PCS licensees contact the clearinghouse to determine reimbursement
obligations prior to initiating service, although payment would not be
due in full until the date that the PCS licensee commences commercial
operations. The Commission seeks comment on these proposals.
In addition, the Commission tentatively concludes that PCS
licensees that are allowed to pay for their licenses in installments
under the Commission's designated entity rules should have the same
option available to them with respect to payments under the cost-
sharing formula. The Commission also tentatively concludes that the
installment payment option should be extended to the Unlicensed PCS Ad
Hoc Committee for 2 GHz Microwave Transition and Management (``UTAM'').
Allowing cost-sharing payments to be made in installments will
significantly ease the burden of cost-sharing for these entities. The
Commission further proposes that the specific terms of the installment
payment mechanism, including the treatment of principal and interest,
would be the same as those applicable to the licensee's auction
payments described above. Thus, if a licensee is entitled to pay its
winning bid in quarterly installments over ten years, with interest-
only payments for the first year, it would pay relocation costs under
the same formula. Because UTAM receives its funding in small increments
over an extended period of time, the Commission tentatively concludes
that UTAM should qualify for the most favorable installment payment
plan available to small businesses with gross revenues of $40 million
or less. UTAM would therefore be permitted to make its payments on the
same terms as the C Block small businesses (i.e., using installments,
at a rate equal to ten-year U.S. Treasury obligations applicable on the
date the license is granted, and requiring that payments include
interest only for the first six years with payments of principal and
interest amortized over the remaining four years of the license term).
The Commission
[[Page 55533]]
seeks comment on whether the repayment schedules and interest rates
that it adopted for repaying auction bids are appropriate for cost-
sharing purposes.
3. Role of Clearinghouse
The Commission tentatively concludes that if the proposed cost-
sharing plan is adopted, it should be administered by an industry-
supported clearinghouse. The Commission believes an industry-supported
clearinghouse is preferable to having the cost-sharing plan
administered by the Commission for several reasons. First,
administration of the plan by the Commission would be a significant
drain on the Commission's administrative resources. Second, the
Commission believes that the PCS industry has the capability and the
incentive to support an industry clearinghouse. The Commission does not
propose at this time to designate any particular organization as the
clearinghouse, but seeks comment on the criteria it should use for
designating a clearinghouse, and on whether it should be an existing
organization or a new entity created for this purpose. The Commission
also seeks comment on how the clearinghouse would be funded. One
possibility would be for PCS licensees who seek reimbursement under the
cost-sharing plan to pay an administrative fee to the clearinghouse for
each relocated link that is potentially compensable under the plan. The
Commission believes that any fees assessed should be tied to the actual
administrative costs of operating the clearinghouse. The Commission
seeks comment on the appropriate fee level, as well as on any possible
alternative approaches to funding the clearinghouse.
PCS licensees that seek reimbursement under the formula would be
required to submit all applicable data, including contracts, to the
clearinghouse, which would open a file for each relocation. The
clearinghouse would then determine whether operation by the new PCS
licensee would have caused interference to a relocated microwave
facility, based on TIA Bulletin 10-F. If interference would have
occurred, the clearinghouse would notify the new licensee of its
reimbursement share under the formula. The Commission seeks comment
regarding potential confidentiality issues with respect to information
submitted to the clearinghouse. The Commission believes that specific
information regarding relocation costs will need to be available to
parties that wish to verify the accuracy of the clearinghouse's
reimbursement calculations. The Commission also believes that an open
flow of information is important to the smooth administration of the
cost-sharing plan, which in turn is likely to facilitate productive
negotiations between PCS licensees and microwave incumbents. Finally,
the Commission believes that confidentiality issues should be resolved
by PCS and microwave licensees rather than by the Commission. The
Commission therefore seeks comment on the extent to which the cost-
sharing proposal can accommodate the confidentiality concerns of the
parties.
4. Dispute Resolution Under the Cost-Sharing Plan
The Commission tentatively concludes that disputes arising out of
the cost-sharing plan (i.e., disputes over the amount of reimbursement
required, etc.) should be brought, in the first instance, to the
clearinghouse for resolution. To the extent that disputes cannot be
resolved by the clearinghouse, the Commission encourages parties to use
expedited alternative dispute resolution procedures (``ADR''), such as
binding arbitration, mediation, or other ADR techniques. The Commission
seeks comment on this proposal and on any other mechanisms that would
expedite resolution of these disputes, should they arise. The
Commission also seeks comment on whether parties should be required to
submit independent appraisals of valuations to the clearinghouse at the
time such disputes are brought to the clearinghouse for resolution. In
addition, the Commission seeks comment on whether failure to comply
with cost-sharing obligations should be taken into consideration by the
Commission when deciding on renewal and/or transfer of control or
assignment applications.
B. Relocation Guidelines
1. Good Faith Requirement During Mandatory Negotiations
If a relocation agreement is not reached during the voluntary
negotiation period, the Commission stated in the ET Third Report and
Order that the PCS licensee may initiate a mandatory negotiation
period, during which the parties are required to negotiate in good
faith. The Commission believes that clarification of the term ``good
faith'' will facilitate negotiations and help reduce the number of
disputes that may arise over varying interpretations of what
constitutes good faith. The Commission tentatively concludes that, for
purposes of the mandatory period, an offer by a PCS licensee to replace
a microwave incumbent's system with comparable facilities (defined in
further detail below) constitutes a ``good faith'' offer. Likewise, an
incumbent that accepts such an offer presumably would be acting in good
faith; whereas, failure to accept an offer of comparable facilities
would create a rebuttable presumption that the incumbent is not acting
in good faith. Comparable facilities, as explained below, would be
limited to the actual costs associated with providing a replacement
system, and would exclude any expenses (e.g., consultant fees)
incurred by the incumbent without securing the approval in advance from
the PCS relocator. The Commission seeks comment on this proposal. The
Commission also seeks comment on the appropriate penalty to impose on a
licensee that does not act in good faith.
2. Comparable Facilities
The Commission continues to believe that the current negotiation
process is the most appropriate means for determining comparability of
the existing and replacement facilities. The Commission believes that,
in the vast majority of cases, this procedure provides parties with the
necessary flexibility to negotiate terms for determining comparability
that are mutually agreeable to all parties without the need for
government intervention or mandate. Nonetheless, the Commission
recognizes that because comparability is such a key concept of the
Commission's rules, some clarification of the responsibilities and
obligations of the parties with regard to comparability would be
helpful. Accordingly, the Commission proposes to clarify the factors
that it will use to determine when a facility is comparable, i.e.,
equal to or superior to the fixed microwave facility it is replacing.
The Commission previously stated in the ET Third Report and Order
that to determine comparability it will consider, inter alia, system
reliability, capability, speed, bandwidth, throughput, overall
efficiency, bands authorized for such services, and interference
protection. The Commission notes, however, that many of these factors
are inter-related and that equivalency in each and every one of these
factors is not necessary for comparability. The Commission therefore
now proposes to clarify that the three main factors it will use to
determine when a facility is comparable are: communications throughput,
system reliability, and operating cost. A replacement facility will be
presumed
[[Page 55534]]
comparable if the new system's communications throughput and
reliability are equal to or greater than that of the system to be
replaced, and the operating costs of the replacement system are equal
to or less than those of the existing system. This will ensure that
incumbent users will perceive no qualitative difference between the
original and replacement facilities.
For the purpose of determining comparability, the Commission
proposes to define communications throughput as the amount of
information transferred within the system for a given amount of time.
For digital systems this is measured in bits per second (``bps''), and
for analog systems the throughput is measured by the number of voice
and or data channels. The Commission proposes to define system
reliability as the amount of time information is accurately transferred
within the system. The reliability of a system is a function of
equipment failures (e.g., transmitters, feed lines, antennas,
receivers, battery back-up power, etc.), the availability of the
frequency channel due to propagation characteristic (e.g., frequency,
terrain, atmospheric conditions, radio-frequency noise, etc.), and
equipment sensitivity. For digital systems this would be measured by
the percent of time the bit error rate (``ber'') exceeds a desired
value, and for analog transmissions this would be measured by the
percent of time that the received carrier-to-noise ratio exceeds the
receiver threshold. The Commission proposes to define operating cost as
the cost to operate and maintain the microwave system. For the purpose
of defining comparable systems, the Commission proposes to assume that
the operating cost of all microwave systems are the same provided that
they contain the same number of links. The Commission also proposes to
consider facilities comparable in cases where the specific increased
costs associated with the replacement facilities (e.g., additional
tower and associated radio equipment requirements, additional rents, or
land acquisition costs) are paid by the party relocating the facility,
or the existing microwave operator is fully compensated for those
increased costs. The Commission proposes that any recurring costs be
limited to a single ten-year license term. The Commission seeks comment
on these definitions.
The Commission recognizes that comparable replacement facilities
can be provided by ``trading-off'' system parameters. For example,
communications throughput may be increased by using equipment with a
more efficient modulation technique, and system reliability may be
improved by using better equipment, by adding redundancy in system
design (e.g., multiple receive antennas) or by providing additional
coding, such as forward error correction. Therefore, a system designer
may take advantage of these system ``trade-offs'' to provide comparable
facilities.
The Commission also proposes to clarify that the obligation to
provide comparable facilities under involuntary relocation requires a
PCS licensee to pay the cost of relocating only the specific microwave
links in the incumbent's system that must be moved to prevent harmful
interference by the PCS licensee's system. While the Commission expects
that PCS licensees may voluntarily undertake to relocate entire
microwave systems that include non-interfering links outside the PCS
licensee's particular service area, it does not regard this as a
requirement under involuntary relocation. With respect to those links
that do cause interference, however, PCS licensees must provide
incumbents with a seamless transition from the old facilities to the
replacement facilities. Thus, it may be both more efficient and more
cost-effective in many instances for the parties to move all of the
links in a system at once rather than to relocate them piecemeal. The
Commission seeks comment on this analysis. The Commission also
tentatively concludes that comparable facilities would be limited to
the actual costs associated with providing a replacement system (e.g.,
equipment, engineering expenses). The Commission proposes to exclude
extraneous expenses, such as fees for attorneys and consultants that
are hired by the incumbent without the advance approval of the PCS
relocator. The Commission considers such extraneous expenses to be
``premium payments'' that are not reimbursable after the voluntary
negotiation period has concluded. The Commission seeks comment on its
proposal and any alternatives.
In assessing comparability, the Commission also seeks comment on
how to account for technological disparities between old and new
microwave equipment. In many cases, microwave incumbents may seek to
replace old 2 GHz analog technology with new digital technology on the
relocated channel. The Commission encourages such agreements, but it
does not regard PCS licensees as being required to replace existing
analog with digital equipment when an acceptable analog solution
exists. Thus, the cost obligation of the PCS licensee would be the
minimum cost the incumbent would incur if it sought to replace but not
upgrade its system. The Commission seeks comment on this proposal and
on any alternatives.
The Commission also seeks comment on whether and how depreciation
of equipment and facilities should be taken into account.
Furthermore, the Commission seeks comment on whether additional
information about the value of an incumbent's current system and the
anticipated costs of relocation would also help to facilitate
negotiations. For example, the Commission could require that two
independent cost estimates--prepared by third parties not associated or
otherwise affiliated with either the incumbent licensee or the PCS
provider--be filed with the Commission by parties that have not reached
an agreement within one year after the commencement of the voluntary
negotiation period (April 4, 1996 for A and B block licensees). The
Commission seeks comment on whether it should require the parties to
submit such cost estimates during the voluntary negotiation period. The
Commission also seeks comment on what procedures should be used if the
microwave incumbent and the PCS licensee cannot agree on a third party
to prepare the independent cost estimate.
3. Public Safety Certification
In the ET Third Report and Order, the Commission identified the
select group of public service licensees that warrant special
protection (e.g., an extended voluntary negotiation period). The
Commission tentatively concludes the PCS licensees should have a
readily available means of confirming a microwave licensee's public
safety status. Thus, the Commission proposes that a public safety
licensee should be required to establish: (1) that it is eligible in
the Police Radio, Fire Radio, or Emergency Medical, or Special
Emergency Radio Services, (2) that it is a licensee in one or more of
these services, and (3) that the majority of communications carried on
the facilities involve safety of life and property.
Under the Commission's proposal, if the incumbent fails to provide the
PCS licensee with the requisite documentation, the PCS licensee may
presume that special treatment is inapplicable to the incumbent. The
Commission seeks comment on this proposal.
C. Twelve-Month Trial Period
Section 94.59(e) of the Commission's rules, 47 CFR 94.59(e),
provides a twelve-month period for relocated microwave incumbents to
test their new
[[Page 55535]]
facilities. The purpose of the twelve-month trial period is to ensure
that microwave incumbents have a full opportunity to test their new
systems under real-world operating conditions and to obtain redress
from the PCS licensee if the new system does not perform comparably to
the old system or pursuant to agreed-upon terms. The Commission
proposes that this period should commence at the time that the
microwave licensee begins operations on its new system. The Commission
also tentatively concludes that microwave licensees that have retained
their 2 GHz authorizations during the twelve-month trial period should
surrender them at the conclusion of that period.
Moreover, the Commission does not believe that microwave licensees
are required to retain their 2 GHz licenses through the trial period in
order to retain their rights to relocation and comparable facilities.
Section 94.59 of the Commission's rules, 47 CFR 94.59, provide that, if
the new facility is found not to be comparable during the trial period,
the PCS licensee must either cure the problem, restore the incumbent to
its original frequency, or pay to relocate it to an equivalent 2 GHz
frequency. In the Commission's view, all of these rights reside with
the incumbent as a function of the Commission's relocation rules,
regardless of whether the incumbent has previously surrendered its
license. The Commission therefore proposes to clarify its rules to
indicate that a microwave license may surrender its license as part of
a relocation agreement without prejudice to its rights under the
Commission's relocation rules. The Commission requests comment on this
proposal.
D. Licensing Issues
1. Interim Licensing
As a general matter, the Commission tentatively concludes that
allowing additional primary site grants in the 2 GHz band now that
relocation negotiations are ongoing will unnecessarily impede
negotiations and may add to the relocation obligations of PCS
licensees. Nevertheless, the Commission recognizes that some minor
technical changes to existing microwave facilities may be necessary for
incumbents' continued operations. The Commission does not believe,
however, that these minor technical modifications will significantly
increase the cost to a PCS licensee of relocating a particular link.
To the extent practicable the Commission proposes to continue
applying the current rules governing primary and secondary status to
modification and minor extension applications pending as of the
adoption date of the Notice. While the rulemaking proceeding is
pending, the Commission will continue to accept applications for
primary status, however it will process only minor modifications that
would not add to the relocation costs of PCS licensees. Thus, while the
rulemaking proceeding is pending, the Commission will grant primary
status applications for the following limited number of technical
changes: decreases in power, minor changes in antenna height, minor
coordinate corrections (up to two seconds), reductions in authorized
bandwidths, minor changes in structure heights, changes in ground
elevation (but preserving centerline height), and changes in equipment.
Any other modifications will be permitted only on a secondary basis,
unless a special showing of need justified primary status and the
incumbent is able to establish that the modification would not add to
the relocation costs of PCS licensees. In addition, the Commission will
carefully scrutinize any applications for transfer of control or
assignment to establish that its microwave relocation procedures are
not being abused, and that the public interest would be served by the
grant.
As of the adoption date of its new rules, the Commission proposes
to grant all other modifications and extensions solely on a secondary
basis (with the exception of the minor technical changes listed above).
Secondary operations may not cause interference to operations
authorized on a primary basis, and they are not protected from
interference form primary operations. The Commission believes that
granting secondary site authorizations serves the public interest,
because it balances existing licensees' need to expand their systems
with the goal of minimizing the number of microwave links that PCS
licensees must relocate. The Commission seeks comment on this proposal.
2. Secondary Status After Ten Years
Section 94.59(c) of the Commission's rules, 47 CFR 94.59(c), states
that the Commission will amend the operation license of the fixed
microwave operator to secondary status only if the emerging technology
service entity provides that 2 GHz incumbent with comparable
facilities. The Commission tentatively concludes that microwave
incumbents should not retain primary status indefinitely on spectrum
licensed for emerging technology services. Thus, the Commission
proposes that microwave incumbents that are still operating in the
1850-1990 MHz band on April 4, 2005, should be made secondary on that
date. This date coincides with the date that the clearinghouse would be
dissolved and provides adequate time for completion of microwave
relocation. The Commission seeks comments on whether there should be
some time limit placed on the emerging technology provider's obligation
to provide comparable facilities.
III. Procedural Matters and Ordering Clauses
A. 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. Written public comments are requested on
the IRFA.
Reason for Action: This rulemaking proceeding was initiated to
secure comment on a proposal for sharing costs among broadband PCS
licensees that will relocate 2 GHz point-to-point microwave licensees
currently operating on the spectrum blocks allocated for PCS. This
proposal would promote the efficient relocation of microwave licensees
by encouraging PCS licensees to relocate entire microwave systems,
rather than individual microwave links, thus bringing PCS services to
the public in an efficient manner. The Commission has also proposed to
clarify the terms ``comparable facilities'' and ``good faith''
negotiations, to clarify some aspects of the twelve-month trial period
after relocation, and has proposed to grant all microwave applications
for modifications and extensions solely on a secondary basis (with the
exception of the minor technical changes listed in the Notice).
Objectives: The Commission's objective is to require PCS licensees
that benefit from the relocation of a microwave link to contribute to
the costs of that relocation. A cost-sharing plan is necessary to
enhance the speed of relocation and provide an incentive to PCS
licensees to negotiate system-wide relocation agreements with microwave
incumbents. This action would result in faster deployment of PCS and
delivery of service to the public.
Legal Basis: The proposed action is authorized under the
Communications Act, Sections 4(i), 7, 303(c), 303(f), 303(g), 303(r),
and 332, 47 U.S.C. Secs. 154(i), 303(c), 303(f), 303(g), 303(r), 332,
as amended.
Reporting, Recordkeeping, and Other Compliance Requirements: Under
the proposal contained in the Notice, PCS
[[Page 55536]]
licensees that relocate microwave systems would be required to document
the relocation costs paid and report them to a central clearinghouse.
Later PCS market entrants would then be required to file Prior
Coordination Notices with the clearinghouse and, if necessary,
reimburse the initial relocating PCS licensee on a pro rata basis.
Federal Rules Which Overlap, Duplicate or Conflict With These
Rules: None.
Description, Potential Impact, and Number of Small Entities
Involved: This proposal would benefit small microwave incumbents by
encouraging PCS licensees to relocate entire microwave systems, rather
than individual links that interfere with the PCS licensee's
operations. Microwave licensees would therefore begin operations on
their new channels in an expedited fashion. The 2 GHz fixed microwave
bands support a number of industries that provide vital services to the
public. The Commission is committed to ensuring that the incumbents'
services are not disrupted and that the economic impact of this
proceeding on the incumbents is minimal. The Commission must further
take into consideration that not all of the incumbent licensees are
large businesses, particularly in the bands above 2 GHz, and that many
of the licensees are local government entities that are not funded
through rate regulation. The Commission believes that this proceeding
would further the Commission's policy of encouraging voluntary
agreements to relocate fixed microwave facilities to other bands during
the two-year period. After evaluating comments filed in response to the
Notice, 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: The Commission has reduced
burdens wherever possible. The regulatory burdens the Commission has
retained are necessary in order to ensure that the public receives the
benefits of innovative new services in a prompt and efficient manner.
The Commission will continue to examine alternatives in the future with
the objectives of eliminating unnecessary regulations and minimizing
any significant economic impact on small entities.
IRFA Comments: The Commission requests 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 the
Notice.
B. Paperwork Reduction Act
The Federal Communications Commission, as part of its continuing
effort to reduce paperwork burden, invites the general public and other
Federal agencies to take this opportunity to comment on the following
proposed and/or continuing information collections, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Comments are
requested concerning (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.
Dates. Written comments on information collection requirements
should be submitted on or before January 2, 1996. If you anticipate
that you will be submitting comments but find it difficult to do so
within the period of time allowed, you should advise the contact person
listed below as soon as possible.
Address. Direct all comments to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M St., N.W., Washington, DC
20554, or via Internet to [email protected]; and Timothy Fain, OMB Desk
Officer, 10236 NEOB, 725 17th St., N.W., Washington, DC 20503, or via
Internet to [email protected].
Further Information. For further information contact Dorothy
Conway, (202) 418-0217, or via Internet at [email protected].
Supplementary Information:
Title: Amendment to the Commission's Rules Regarding a Plan for
Sharing the Costs of Microwave Relocation.
Type of Review: New collection.
Respondents: Personal Communications Service licensees that
relocate existing microwave operators, and subsequent Personal
Communications Service applicants potentially benefitted by such
relocation.
Number of Respondents: Approximately 2,000.
Estimated Time Per Response: 15 minutes for each of approximately
2,000 respondents to photocopy and mail information; 40 hours for an
existing or newly-created industry representative to establish and
operate clearinghouse.
Total Annual Burden: Approximately 540 hours.
Needs and Uses: The Commission recently initiated a proceeding
proposing a plan for sharing the costs of relocating microwave
facilities currently operating in the 1850 to 1990 MHz band, which has
been allocated for use by broadband Personal Communications Services.
Amendment of the Commission's Rules Regarding a Plan for Sharing the
Costs of Microwave Relocation, Notice of Proposed Rule Making, adopted
October 12, 1995. The Commission's Notice would establish a mechanism
whereby PCS licensees that incur costs to relocate microwave links
would receive reimbursement for a portion of those costs from other PCS
licensees that also benefit from the resulting clearance of the
spectrum.
The Notice proposes that once a PCS licensee and a microwave
incumbent have signed an agreement with respect to relocation of the
microwave licensee, the parties would submit the relocation agreement
to an industry-supported clearinghouse. The clearinghouse would
maintain a computer database for the purpose of determining the
appropriate amount of reimbursement owed to the relocator PCS licensees
by subsequent PCS licensees who are benefitted by the relocation. When
a subsequent PCS licensee begins the prior coordination notice process
already required by Section 21.100(d) of the Commission's rules (i.e.
proposed frequency usage must be prior coordinated with existing users
and previously filed applicants in the area), that licensee would also
contact the clearinghouse to determine whether any PCS relocators hold
reimbursement rights for the channel over which it intends to transmit.
The clearinghouse would then determine whether operation by the new PCS
licensee would have caused interference to a relocated microwave
facility. If so, the clearinghouse would notify the new licensee of its
reimbursement share under a predetermined formula.
Thus, the Notice tentatively concludes that if the proposed cost-
sharing plan is adopted, it should be administered by an industry-
supported clearinghouse rather than by the Commission. PCS licensees
that seek reimbursement would be required to submit all applicable
data, including contracts, to the clearinghouse. To the extent that
disputes cannot be resolved by the clearinghouse, the Notice proposes
to encourage parties to use expedited alternative dispute resolution
[[Page 55537]]
procedures such as binding arbitration, mediation or other techniques.
The Notice seeks comment on the criteria the Commission should use in
designating a clearinghouse, and on how the clearinghouse would be
funded. The Notice suggests that one funding possibility might be for
PCS licensees seeking reimbursement under the cost-sharing plan to pay
an administrative fee to the clearinghouse.
The legal authority for this proposed information collection
includes 47 U.S.C. Sections 154(i), 303(c), 303(f), 303(g), 303(r) and
332. The information collection would not affect any FCC Forms. The
proposed collection would increase minimally the burden on PCS
licensees that relocate existing microwave licensees and on future PCS
applicants that might have benefited from the relocation by requiring
them to file already-existing paperwork with an industry-supported
clearinghouse.
C. Ex Parte Rules--Non-Restricted Proceeding
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 Commission rules, 47
CFR 1.1202, 1.1203, and 1.1206(a).
D. Comment Period
Pursuant to applicable procedures set forth in Sections 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before November 30, 1995, and reply
comments on or before December 21, 1995. To file formally in this
proceeding, you must file an original and four copies of all comments,
reply comments, and supporting comments. If you want each Commissioner
to receive a personal copy of your comments, you must file an original
plus nine copies. You should send comments and reply comments to Office
of the Secretary, Federal Communications Commission, 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, N.W.,
Washington, D.C. 20554. A copy of all comments should also be filed
with the Commission's copy contractor, ITS, Inc., 2100 M Street, N.W.,
Suite 140, (202) 857-3800.
E. Authority
The proposed action is authorized under the Communications Act,
Sections 4(i), 7, 303(c), 303(f), 303(g), 303(r), and 332, 47 U.S.C.
Secs. 154(i), 303(c), 303(f), 303(g), 303(r), 332, as amended.
F. Ordering Clause
It is ordered that, as of the adoption date of the Notice, the
Commission will continue to accept microwave applications for primary
status in the 2 GHz band, however the Commission will process only
minor modifications that would not add to the relocation costs of PCS
licensees, as described in this Notice. This constitutes a procedural
change which is not subject to the notice and comment and 30-day
effective date requirements of the Administrative Procedure Act. See
Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629 (D.C. Cir. 1984);
Buckeye Cablevision Inc. v. United States, 438 F.2d 948 (6th Cir.
1971). In any event, good cause exists under 5 U.S.C. Section
553(b)(3)(B) and (d)(3), because additional primary site grants in the
2 GHz band will unnecessarily impede the purpose of the current
relocation rules and any new relocation rules adopted in this
proceeding.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-27040 Filed 10-31-95; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 95-27023 Amendment of Affordable Housing Program Regulation; Affordable Housing Program Application Requirements
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55487-55491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27023]
========================================================================
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.
========================================================================
Federal Register / Vol. 60, No. 211 / Wednesday, November 1, 1995 /
Proposed Rules
[[Page 55487]]
FEDERAL HOUSING FINANCE BOARD
12 CFR Part 960
[No. 95-37]
Amendment of Affordable Housing Program Regulation; Affordable
Housing Program Application Requirements
AGENCY: Federal Housing Finance Board.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Board (Board) is proposing to
amend its regulation governing the Affordable Housing Program (AHP) to
provide the Federal Home Loan Banks (Banks) with the authority to limit
the maximum amount of AHP subsidy that may be requested for a given AHP
funding period in the following ways: a uniform limit per member; a
limit per project application; a limit per project unit; or a limit per
amount of AHP direct subsidy per project application. A Bank would have
the authority to establish any other subsidy limit or substantive AHP
application requirement not specifically provided for in the AHP
regulation, only if such subsidy limit or substantive AHP application
requirement has received the prior approval of the Board. A Bank would
have to consult with its Advisory Council in establishing its subsidy
limits or substantive AHP application requirements. Any subsidy limit
or AHP application requirement established by a Bank would have to
apply equally to all members.
The Board requests comments on this proposal. In addition, the
Board requests comments on whether the AHP regulation also should be
amended to authorize the Banks in their discretion to: Establish AHP
subsidy limits based on the level of a member's mortgage-related assets
or its use of Bank credit products; establish other specified types of
AHP subsidy limits that would promote AHP goals; limit or prohibit AHP
applications from out-of-district projects; or require involvement by
members in an AHP project as a threshold criterion in order to be
considered for scoring and approval of AHP funding.
DATES: Comments on this proposed rule must be received in writing on or
before December 18, 1995.
ADDRESSES: Send comments to: Elaine L. Baker, Executive Secretary,
Federal Housing Finance Board, 1777 F Street, N.W., Washington, DC
20006. Comments will be available for public inspection at this
address.
FOR FURTHER INFORMATION CONTACT: Diane E. Dorius, Deputy Director,
Community Investment Program & Policy Division, Office of Housing
Finance, (202) 408-2576; Sharon B. Like, Attorney-Adviser, Office of
General Counsel, (202) 408-2930, Federal Housing Finance Board, 1777 F
Street, N.W., Washington, DC 20006.
SUPPLEMENTARY INFORMATION:
I. Statutory and Regulatory Background
A. AHP Statutory and Regulatory Requirements
Section 10(j)(1) of the Federal Home Loan Bank Act (Bank Act)
requires each Bank to establish a program to subsidize the interest
rate on advances to members engaged in lending for long term, low- and
moderate-income, owner-occupied and affordable rental housing at
subsidized interest rates. See 12 U.S.C. 1430(j)(1). While requiring
the Banks to make subsidized advances to their members, section 10(j)
of the Bank Act is silent as to whether a Bank may impose limits on the
amount of AHP subsidy a member may obtain. The Board is required to
promulgate regulations governing the AHP. See id. sec. 1430(j)(9); 12
CFR part 960.
Under the Bank Act and the Board's AHP regulation, each Bank must
make a specified annual contribution to fund its AHP. See 12 U.S.C.
1430(j)(5); 12 CFR 960.10. While the Bank Act does not specifically
address the method by which the Banks' required annual contribution to
the AHP is to be allocated among potential recipients, the AHP
regulation establishes threshold criteria that applications must
satisfy and a competitive application scoring process to be used to
determine the distribution of AHP funds. See 12 CFR 960.5.
Under the AHP regulation, during each calendar year, each Bank
accepts applications for funds from its members by specific application
due dates during two of four quarterly funding periods. See id.
Sec. 960.4(a). Each Bank must notify its members of the approximate
amount of annual AHP funds available and the approximate amount to be
offered in each funding period. See id. Sec. 960.4(b). Applications
must contain detailed information described in the AHP regulation. See
id. Sec. 960.4(c). AHP funds are awarded to the applicants whose
applications score the highest, pursuant to the scoring criteria set
forth in the AHP regulation, among all the applications received by the
Bank in that funding period. See id. Sec. 960.5(f). It was anticipated
that, in this way, the best, most competitive projects would be funded
with AHP subsidies.
B. Current Bank Policies on AHP Subsidy Limits, Member Involvement, and
Out-of-District AHP Projects
1. Current Bank Policies
Pursuant to prior legal advice that, absent guidance from or
definitive action by the Board on specific policies and statutory
interpretations, the Banks had to determine for themselves whether
their actions were consistent with a reasonable interpretation of the
AHP provisions of the Bank Act and AHP regulation, a number of Banks
adopted AHP policies that impose requirements in addition to, or
different from, the comprehensive AHP application requirements
contained in the Board's AHP regulation.
More specifically, several Banks unilaterally have imposed maximum
limits on the amount of AHP subsidy that may be requested in a given
AHP funding period, including limits applicable: per member; per
project application; per project unit; and per amount of AHP direct
subsidy per project application. One Bank has adopted member subsidy
limits that are based on the level of a member's use of Bank credit
products in the preceding year. Another Bank has established a policy
prohibiting members from submitting AHP applications for projects
located outside of the Bank's district.
Yet another Bank has adopted a threshold criterion that a project
must include member involvement in order to be scored and approved for
AHP funding, through: financing other than through an AHP direct
subsidy;
[[Page 55488]]
servicing project loans at no cost to the project sponsor; making cash
contributions of $500 per project unit; providing a minimum 100 hours
of volunteer labor per unit provided by employees of the member; or
contributing land or real estate owned by the member to be used in the
project.
2. Reasons Provided for Policies
None of the Bank policies discussed above has been acted upon by
the Board prior to issuance of this proposed rule. All of the policies
presumably have been adopted pursuant to determinations by the Banks
that these policies were consistent with a reasonable interpretation of
the Bank Act and AHP regulation.
One reason that has been expressed for permitting various AHP
subsidy limits is that they encourage greater participation by members
in the AHP. Section 10(j) does not explicitly require or encourage
widespread member participation as a goal of the AHP. On the other
hand, the legislative history of the AHP statutory provisions does
indicate that Congress was aware of ``uneven use of similar special
advance programs maintained by the [Banks] in the past and the
reluctance of some of the [Banks] to actively encourage their member
institutions to address critical community investment and affordable
housing needs.'' See Conference Report accompanying Financial
Institutions Reform, Recovery and Enforcement Act of 1989, H.R. Conf.
Rep. No. 101-222, 101st Cong., 1st Sess. (Aug. 4, 1989) at 429. The
principle of encouraging even administration of special advances
programs among the Banks arguably also could be applied within each
Bank, i.e., to encouraging the use of AHP programs by all members
within the Bank, on a broad basis, in order to meet community
investment and affordable housing needs.
3. Reasons for Change
In light of the level of detail set forth in the AHP regulation,
which includes particularized filing requirements (down to specifying
the dates by which applications must be filed), details of the required
contents of applications, and explicit procedures for applications
review, see 12 CFR 960.4, 960.5, the Board is concerned that some forms
of additional substantive AHP application requirements may tend to
undermine the regulatory scheme. The Board would prefer that the
regulation provide flexibility through the establishment of clear
standards under which the Banks must operate. The Board also is mindful
of the importance of ensuring that the AHP remain responsive to the
unique circumstances within each Bank District, and that program
standards not hamper responsive local administration of the AHP.
The proposed rule would allow the Banks to establish the listed AHP
application requirements, as well as any other subsidy limit or
substantive AHP application requirement not specifically provided for
in the AHP regulation, only if such other subsidy limit or substantive
application requirement has received the prior approval of the Board.
The Board requests comment on whether this or some other approach would
best maintain the appropriate balance between clear regulatory
standards and responsiveness and flexibility for the program.
The Board wishes to emphasize that the proposed rule is meant to
clarify the regulatory scheme and should not be construed as
representing a retreat by the Board from its consideration of the
decentralization of the AHP by giving the Banks greater flexibility and
control in implementing their AHP programs.
None of the Bank policies discussed above was addressed or noticed
for comment in the Board's proposed AHP regulation issued in January
1994. See 59 Fed. Reg. 1323 (Jan. 10, 1994). In order to ensure that
full consideration is given to the consequences of the proposed rule,
the Board is requesting comments on any provisions that should be added
to the regulation for any currently existing Bank AHP application
policies or any other substantive AHP application requirements a Bank
may wish to impose that are not specifically provided for in the AHP
regulation.
II. Analysis of the Proposed Rule
A. Notice to Members of Subsidy Limits
Section 960.4(b)(1) of the proposed rule requires each Bank to
notify members of the applicability of any subsidy limits or other
application requirements established pursuant to section 960.4(b) of
the proposed rule.
B. Per Member Limits
Section 960.4(b)(2) of the proposed rule provides that a Bank may
establish a uniform maximum dollar limit on the amount of AHP subsidy,
or a uniform maximum limit on the percentage of total available AHP
subsidy, that may be requested by a member in a given AHP funding
period.
Limiting the amount of subsidy that may be requested by a member
may prevent a small number of members from receiving all of the
subsidy, thereby encouraging participation by a greater number of
members in the AHP. While there may be an effect on the AHP regulatory
program goal of promoting competition if highly competitive projects
have difficulty finding available members that have not exceeded their
limits to submit applications for them, sufficient numbers of members
should be available to handle applications for AHP funds. Accordingly,
any noncompetitive effect of per member subsidy limits likely would be
minimal in comparison to the benefit of greater member participation in
the AHP.
The proposed rule does not authorize a Bank to establish AHP
subsidy limits that are based on the level of a member's mortgage-
related assets or its use of Bank credit products. See further
discussion in III.D. below.
C. Per Project Application Direct Subsidy Limits
Section 960.4(b)(2) of the proposed rule provides that a Bank may
limit the maximum amount of AHP direct subsidy that may be requested
per project application, in a given AHP funding period.
Such a limit may promote greater member involvement in the AHP by
encouraging more members to borrow AHP subsidized advances and, in
turn, lend their own funds to borrowers, thereby building greater
member affordable housing lending capacity and expertise. If members'
own funds were at risk as a result of such a limit, members would have
greater incentive to underwrite and monitor projects for AHP compliance
and financial feasibility. Direct subsidies, which, in some cases, are
passed on by members to borrowers without members putting any of their
own funds at risk, do not promote these goals.
A direct subsidy limit would not prevent competitive projects
seeking direct subsidies from being funded; it merely would cause those
projects to be funded at lower levels, with the gaps in funding made up
from other funding sources. There may be an effect on the AHP
regulatory program goal of promoting competition if otherwise highly
competitive projects that need a large amount of direct subsidy have
difficulty finding other available sources for such funding, and
therefore remain financially unfeasible. However, any noncompetitive
effect of direct subsidy limits may be outweighed by the benefit of
greater member involvement in the AHP.
D. Per Project Application or Per Project Unit Limits
Section 960.4(b)(2) of the proposed rule provides that a Bank may
limit the
[[Page 55489]]
maximum amount of AHP subsidy that may be requested per project
application or per project unit, in a given AHP funding period.
Per project application or per project unit limits may prevent a
small number of projects from receiving all or most of the available
AHP funds in a given funding period, thereby encouraging funding of a
greater number of AHP projects, which also may benefit housing needs in
more areas of the district. Such limits would not prevent competitive
projects from being funded; they would merely cause those projects to
be funded at lower levels, with the gaps in funding made up from other
funding sources, thereby enabling the funding of additional AHP
projects. Again, there may be an effect on the AHP regulatory program
goal of promoting competition if otherwise highly competitive projects
that need a large amount of subsidy have difficulty finding other
available sources for funding, and therefore remain financially
unfeasible. However, any noncompetitive effect of such limits may be
outweighed by the benefit of funding a greater number of AHP projects
in the district.
Per project unit limits also conform with the goal of the
effectiveness scoring criterion in the AHP regulation to encourage
lower levels of AHP subsidy per unit by giving additional scoring
points for projects with lower ratios. See 12 CFR 960.5(d)(3).
Per project unit limits could have an impact on the AHP statutory
and regulatory program goal of promoting funding of units for very low-
income households which often need larger subsidies to make the
projects financially feasible. See 12 U.S.C. 1430(j)(2)(B); 12 CFR
960.3(b), 960.5(b)(1), (2), (d)(1). However, the ability to receive
additional scoring points under the AHP regulatory scoring criterion
for targeting units for occupancy by very low-income households, see 12
CFR 960.5(d)(1), the importance of encouraging efforts to find other
available sources of funding and the goal of promoting the funding of a
greater number of projects together may outweigh any effect on funding
of units for very low-income households.
E. Board Waiver Authority
Section 960.4(b)(3) of the proposed rule provides that a Bank may
establish any other subsidy limit or substantive AHP application
requirement not specifically provided for in sections 960.4(b) or
960.5(a)(2) of the AHP regulation, only if such subsidy limit or
substantive AHP application requirement has received the prior approval
of the Board. The Board requests comments on whether such additional
subsidy limits or substantive AHP application requirements should
depend on whether application of the limit or requirement would
adversely affect achievement of the purposes of the AHP provisions of
the Bank Act, or upon a showing of good cause.
F. Subsidy Limits Applied Equally to All Members
Section 960.4(b)(4) of the proposed rule provides that any subsidy
limits or AHP application requirements established by a Bank pursuant
to section 960.4(b) must be applied equally to all members. See further
discussion in III.D. below.
G. Bank Consultation With Advisory Council
Sections 960.4(b)(2) and (3) of the proposed rule require that a
Bank have consulted with its Advisory Council in establishing any
subsidy limits or other substantive AHP application requirements
pursuant to section 960.4(b). Advisory Council members typically have
affordable housing expertise that may be very useful to the Banks in
determining the affordable housing needs of the Bank district and how
any subsidy limit or other substantive AHP application requirement
would promote those needs.
III. Related Request for Comments
A. Other Types of Subsidy Limits
The Board requests comments on any other types of subsidy limits
that would promote AHP goals that should be considered appropriate for
establishment by a Bank. For example, a maximum limit on the amount of
AHP subsidy that may be requested per sponsor arguably might be
appropriate to encourage greater participation by sponsors in the AHP,
increase the affordable housing development capacity of more sponsors,
and encourage the creation of more sponsors, especially where one large
or particularly active sponsor in a district is winning a large portion
of the Bank's AHP funds.
B. Limiting or Prohibiting AHP Applications From Out-of-District
Projects
The Board requests comments on whether the Banks should have
authority to limit or prohibit members from submitting AHP applications
from projects located outside of the Bank's district, and the reasons
for or against such authority.
One reason expressed for imposing such a restriction is that the
Bank's Advisory Council, whose members are drawn from the Bank's
district and who are required to advise on the low- and moderate-income
housing programs and needs of the district, do not have the familiarity
and expertise to provide guidance on projects located outside the
district. See 12 U.S.C. 1430(j)(11). However, it also is noted that
Advisory Council members, while most familiar with the housing needs of
their local communities, often are very familiar with the network of
affordable housing providers that are active across the country and
could advise the Banks on affordable housing issues of general
applicability.
Another reason given for imposing an out-of-district restriction is
that such a restriction is warranted when there is an overwhelming
demand for AHP funds within the district.
In addition, it is argued that the administrative costs incurred by
the Bank to monitor out-of-district projects for compliance with the
AHP statutory and regulatory requirements would be significantly
greater than those for in-district projects. However, particularly in
Bank districts that cover large geographical areas, it is possible that
the cost of monitoring and conducting on-site visits of out-of-district
projects would be no greater than the cost of conducting such
activities in-district.
Another argument made in support of an out-of-district restriction
is that sponsors of out-of-district projects would not be precluded
from participating in the AHP, as they could apply for AHP funds
through a member of another Bank.
It also is argued that an out-of-district restriction will have
only a limited effect on the desirability of Bank membership, since
there are other benefits to membership besides access to the AHP.
Another argument made is that out-of-district projects located in
lower-cost districts may be able to compete more successfully for AHP
funds against higher-cost projects located in the district.
It also is noted that one or a few large multistate members have
the ability to win a substantial portion of AHP funds for out-of-
district projects, thereby resulting in significantly less AHP funds
for use by other members and sponsors within the district.
The Bank Act and Board regulations provide that an eligible
institution may only be a member of and obtain advances from one Bank,
even though members may do business through branch offices outside that
Bank district.
[[Page 55490]]
See id. sec. 1424(b); 12 CFR 933.5(a). The Bank Act does not
specifically prohibit advances for AHP or other purposes from being
used out of district. See 12 U.S.C. 1424(b); 1430(a), (j). A Bank's
required annual contribution to the AHP is based on a percentage of the
Bank's net earnings in the previous year. See id. sec. 1430(j)(5).
Those net earnings are derived, in part, from advances made to members
that have branches outside the Bank district in which they are a
member. Preventing access to AHP funds by a member's out-of-district
branches would deny that member the opportunity to take advantage of a
source of funds it was, in part, responsible for generating.
In addition, it would preclude a member that does business outside
the Bank district where it is a member from applying for AHP funds on
behalf of its out-of-district customers or using AHP funds to meet its
Community Reinvestment Act obligations in those out-of-district areas.
It is noted that, due to recent legislative and regulatory changes,
interstate banking is increasing throughout the country and it is
likely that more and more Bank members will be operating across state
lines. To access the AHP, out-of-district customers would have to seek
out a member of the Bank in whose district their state is located.
It also is argued that out-of-district restrictions, even if
desirable, are not warranted at this time because the number of current
members with out-of-district branches and the number of applications
for out-of-district projects are minimal.
Further, to address the situation where one large multistate member
is winning a substantial portion of AHP funds for out-of-district
projects, uniform limits on the amount of AHP subsidy for which each
member may apply, such as those currently imposed by a number of Banks
(see discussion in I.B.1. above), may have a greater likelihood of
broadening member participation in the AHP.
It also is noted that out-of-district restrictions may result in
the selection of less competitive in-district projects, i.e., projects
that would have scored lower than projects that could not be submitted
because they are located outside the district. This could undermine the
Board's AHP regulatory program goal of promoting competition in the AHP
selection process such that only the best, most competitive projects
are selected for funding. See 12 CFR 960.4, 960.5.
C. Member Involvement as Threshold Criterion
The Board requests comments on whether the Banks should have
authority to require certain types of member involvement in a project
as a threshold criterion the project must satisfy in order to be
considered for scoring and approval for AHP funding. Member involvement
could include, for example: providing financing other than a direct
subsidy to the project; servicing project loans at no cost to the
sponsor of the project; contributing a minimum cash amount per unit to
the project; providing a minimum number of hours of volunteer labor per
project unit from its employees; or contributing land or real estate
owned by the member to be used in the project.
Where members' own funds and contributions are at risk, members
would be more likely to be involved in individual AHP projects, thereby
building member affordable housing lending capacity and expertise, and
creating greater incentives for members to underwrite and monitor
projects for AHP compliance and financial feasibility. In the Board's
proposed AHP regulation issued for comment in January, 1994, the Board
proposed including the extent of member involvement in a project as a
separate scoring criterion, rather than as a threshold requirement that
members must meet in order for projects even to be considered for
scoring and approval of AHP funding. See 59 Fed. Reg. 1323, 1335, 1354
(Jan. 10, 1994). The Board requests comments on whether the extent of
member involvement in a project should be included as a threshold
criterion, scoring criterion or not at all in the final AHP regulation
and, if it should be included, how it should be implemented.
D. Limits Based on the Level of a Member's Mortgage-Related Assets or
Its Use of Bank Credit Products
The proposed rule does not authorize a Bank to establish AHP
subsidy limits based on the level of a member's mortgage-related assets
or its use of Bank credit products. The Board requests comments on
whether the Banks should have authority to impose AHP subsidy limits
based on the level of a member's mortgage-related assets or its use of
Bank credit products. Commenters should address how such subsidy limits
would advance the overall goals of the AHP, the reasons for or against
such linkage, whether any such limits are compatible with the
requirement in proposed section 960.4(b)(4) that subsidy limits be
applied equally to all members, and whether any such limits are
permissible under section 7(j) of the Bank Act, which requires the
Banks to administer their affairs fairly and impartially and without
discrimination in favor of or against any member borrower. See 12
U.S.C. 1427(j).
One reason that has been expressed for imposing such limits is that
they would encourage broader participation by members in the AHP.
Involving more members in the AHP could give project sponsors more
options for financing AHP projects, and provide experience and
education to more members that could help them develop additional
capacity to engage in affordable housing lending.
However, imposing limits based on levels of member mortgage-related
assets or borrowings may not achieve this goal if members with high
levels of mortgage-related assets or borrowings who already participate
in the AHP would be allowed to apply for and win the additional AHP
subsidies no longer available to those members subject to the limits.
Uniform limits on the amount of AHP subsidy for which each member may
apply, such as those currently imposed by a number of Banks (see
discussion in I.B.1. above), may have a greater likelihood of
increasing member participation in the AHP.
Another objective expressed for imposing subsidy limits based on
member use of Bank credit products is that they would increase the pool
of available AHP funds by encouraging greater borrowing from the Bank
and therefore increasing Bank earnings, from which AHP funds are
derived. Increased AHP funds could be used by the Bank to finance more
AHP projects, thereby benefiting more low- and moderate-income
households and furthering the housing finance mission of the Bank
System. See id. sec. 1422a(a)(3)(ii). The argument also is made that
members that contribute to Bank earnings by borrowing should have
greater access than non-borrowing members to AHP funds derived from
such earnings.
The Bank Act does not restrict availability of AHP subsidies to
``borrowing'' members. Nor does it specify any correlation between the
member's contribution to Bank earnings and its access to AHP funds.
Bank earnings are affected by economic factors other than the amount of
outstanding advances of members participating in the AHP. Thus, even
non-borrowing members contribute to Bank earnings and, therefore, to
the AHP fund. The limits also may not enlarge the AHP fund by
increasing member borrowing because small
[[Page 55491]]
member institutions, by virtue of their limited asset size, would be
incapable of increasing or unwilling to increase their borrowings (due
to the increased cost of borrowing resulting from investing in
additional Bank stock) just to receive ``preferred treatment'' under an
AHP subsidy limits policy.
Another possible reason for limiting access to AHP subsidies based
on a member's level of mortgage-related assets may be to encourage
members to do more home financing, consistent with the provisions of
the Bank Act that impose less burdensome advances and stock
requirements on institutions that devote a greater percentage of their
assets to housing finance (qualified thrift lenders). See id. sec.
1430(e)(1), (2); 12 CFR 935.13. However, such a limit may defeat this
goal since members with lower levels of mortgage-related assets would
have limited access to AHP subsidies which they could use for such
housing finance purposes.
IV. Regulatory Flexibility Act
The proposed rule applies only to the Banks, which do not come
within the meaning of ``small entities,'' as defined in the Regulatory
Flexibility Act. See 5 U.S.C. 601(6). Therefore, in accordance with 5
U.S.C. 605(b), the Board hereby certifies that this proposed rule, if
promulgated as a final rule, will not have a significant economic
impact on a substantial number of small entities.
List of Subjects for 12 CFR Part 960
Banks, banking, Credit, Federal home loan banks, Housing.
Accordingly, part 960 of title 12 of its Code of Federal
Regulations is hereby proposed to be amended as follows:
SUBCHAPTER E--AFFORDABLE HOUSING
PART 960--AFFORDABLE HOUSING PROGRAM
1. The authority citation for part 960 continues to read as
follows:
Authority: 12 U.S.C. 1422a, 1422b, 1430(j).
2. Paragraph (b) of Sec. 960.4 is revised to read as follows:
960.4 Applications for funding.
* * * * *
(b)(1) Each Bank shall notify its members of the approximate amount
of annual program funds available for the District, the approximate
amount to be offered in each funding period, and the applicability of
any subsidy limits or other application requirements established
pursuant to this paragraph (b). The amount of funds made available in
each offering should be comparable.
(2) A Bank, after consultation with its Advisory Council, may limit
the maximum dollar amount of subsidy, or the maximum percentage of
total available subsidy, that may be requested in a given funding
period in the following ways:
(i) A uniform limit per member;
(ii) A limit per project application, including limits varying
according to project size;
(iii) A limit per project unit; or
(iv) A limit on the amount of direct subsidy per project
application.
(3) A Bank, after consultation with its Advisory Council, may
establish any other subsidy limit or substantive application
requirement not specifically provided for in this paragraph (b) or
Sec. 960.5(a)(2), only if such subsidy limit or substantive application
requirement has received the prior approval of the Board.
(4) Any subsidy limit or application requirement established by a
Bank pursuant to this paragraph (b) must apply equally to all members.
* * * * *
Dated: October 25, 1995.
By the Federal Housing Finance Board.
Bruce A. Morrison,
Chairman.
[FR Doc. 95-27023 Filed 10-31-95; 8:45 am]
BILLING CODE 6725-01-U
Complete official Federal Register PDF
FR Doc. 95-27010 Standards For Business Practices Of Interstate Natural Gas Pipelines
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55504-55506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27010]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 284
[Docket No. RM96-1-000]
Standards For Business Practices Of Interstate Natural Gas
Pipelines
Issued: October 25, 1995.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Advance Notice Of Proposed Rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission is issuing a notice
requesting comments containing detailed proposals for standardizing ten
high priority business practices of interstate natural gas pipelines.
In addition, comments are solicited on whether the Commission should
standardize other business practices to better integrate the pipeline
grid.
DATES: Comments are due by March 15, 1996. Comments should be filed
with the Office of the Secretary and should refer to Docket No. RM96-1-
000.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Michael Goldenberg, Office of the General Counsel, Federal Energy
Regulatory Commission, 825 North Capitol Street, NE, Washington, DC
20426, (202) 208-2294.
Marvin Rosenberg, Office of Economic Policy, Federal Energy Regulatory
Commission, 825 North Capitol Street, N.E., Washington, D.C. 20426,
(202) 208-1283.
Brooks Carter, Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, D.C. 20426, (202) 501-8145.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours at 888 First Street, N.E.,
Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397. To access CIPS, set your communications
software to use 19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200
bps, full duplex, no parity, 8 data bits, and 1 stop bit. The full text
of this document will be available on CIPS in ASCII and WordPerfect 5.1
format. The complete text on diskette in WordPerfect format may also be
purchased from the Commission's copy contractor, La Dorn Systems
Corporation, also located at 888 First Street, N.E., Washington, D.C.
20426.
Advance Notice of Proposed Rulemaking
The Federal Energy Regulatory Commission (Commission) requests the
submission of comments, by March 15, 1996, containing detailed
proposals that will enable the Commission to adopt by regulation
certain standards for business practices and procedures involving
transactions between interstate natural gas pipelines and their
customers.
Background
In Order No. 563,1 the Commission began the process of
standardizing electronic communication in the natural gas industry by
developing standards for capacity release transactions. The capacity
release standards were developed by industry working groups composed of
representatives from all segments of the natural gas industry. During
the process of developing the capacity release standards, a Working
Group was established to begin the process of standardizing other
business transactions. The Working Group identified ten high priority
data elements for standardization. They are, in the order of priority
assigned by the Working Group: nominations, confirmations, allocated
gas flows, customer and contract imbalances, gas flow at metered
points, transportation invoices, pre-determined allocation
methodologies, gas payment remittance statements, gas sales invoices,
and uploads of capacity release prearranged deals.
\1\Standards For Electronic Bulletin Boards Required Under Part
284 of the Commission's Regulations, Order No. 563, 59 FR 516 (Jan.
5, 1994), III FERC Stats. & Regs. Preambles para. 30,988 (Dec. 23,
1993), order on reh'g, Order No. 563-A, 59 FR 23624 (May 6, 1994),
III FERC Stats. & Regs. Preambles para. 30,994 (May 2, 1994), reh'g
denied, Order No. 563-B, 68 FERC para. 61,002 (1994).
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Approximately one-and-a-half years ago, the Working Group
recommended against the Commission promulgating standards in this area
because it thought substantial progress could be made in developing and
implementing standards on a voluntary basis. The Working Group, for
example, anticipated significant implementation of the nomination and
confirmation standards by September 1, 1995.
The Commission accepted the consensus agreement of the Working
Group and did not institute a process leading to the mandated
implementation of business practice standards. The Commission, however,
recognized the importance of such standards in facilitating gas
movement across the pipeline grid.2 Depending on the progress made
by the industry, the Commission committed itself to reevaluate whether
it needed to become more involved in mandating the development and
implementation of the standards.3
\2\Order No. 563-A, III FERC Stats. & Regs. Preambles, at
31,050.
\3\Id.
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On September 21, 1995, the Commission held a conference in Docket
No. RM93-4-000 to evaluate the progress being made towards
standardization. Almost all the commenters at the conference conceded
that the industry has not achieved the anticipated progress. For
example, although the industry, through the Gas Industry Standards
Board (GISB)4 has
[[Page 55505]]
promulgated a set of standards governing the electronic communication
of nomination and confirmation information, the standards are not being
widely used.
\4\GISB is a private standards development organization that has
succeeded the industry Working Group as the primary vehicle for
developing communication standards. On October 23, 1995, the GISB
board voted to expand GISB's scope, subject to ratification by
GISB's membership, to include ``business practices that streamline
the transactional processes of the gas industry.'' As many of the
participants at the September 21, 1995 conference discussed, this
development was necessary for GISB to undertake the crafting of
standards associated with the industry's business practices.
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Many participants at the September 21, 1995 conference maintained
the standards do not go far enough to provide for efficient means of
communication. The promulgated standards deal only with the electronic
means of communicating the often idiosyncratic nomination and
confirmation information for each pipeline. The standards do nothing to
standardize the underlying information that is to be transmitted. As
one participant pointed out, the 18 largest pipelines use 14 different
nomenclatures to describe a pipeline receipt point and there is not
even agreement on whether to accept nominations using Mcf or MMBtu to
measure volumes. Without standardization of the nomination and
confirmation information itself, many participants argued the industry
would not achieve the business efficiencies which lie at the heart of
any standardization effort.
On October 18, 1995, the Interstate Natural Gas Association of
America (INGAA) filed a letter with the Commission outlining a proposed
process through which it, together with GISB and the rest of the
industry, could reduce the variations in pipeline business practices to
achieve an integrated pipeline grid. The INGAA proposal would
standardize the data elements, nomenclature, and business procedures
relating to the ten high priority data requirements identified by the
Working Group. In addition, consideration would be given to other
standards needed to coordinate pipeline business practices to promote
gas flow across an integrated pipeline network, such as standardization
of nomination deadlines, the start of the gas day, the nomination
period, and capacity release procedures.5 INGAA proposes a
schedule for development of standards that concludes with tariff
filings that begin in October 1996.
\5\These issues have been considered by the INGAA/American Gas
Distributors (AGD) Grid Integration Project. See Grid Integration
Project, Interim Reports of Task Forces (March 1995).
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Process For Standardizing Critical Business Practices
As a result of restructuring, the gas industry is becoming a
national marketplace. In order to establish a more efficient and
seamless pipeline grid, where buyers can easily and efficiently obtain
and transport gas from all potential sources of supply, the development
of standardized methods of conducting business along with standardized
methods of communication is critical. Without common business practices
and a common language for communication, the speed and efficiency with
which shippers can transact business across multiple pipelines is now,
and will continue to be, severely compromised. The industry must
expeditiously complete standardization of crucial business practices to
make the promise of a restructured and integrated pipeline grid a
reality. Accordingly, the Commission intends to establish, by rule,
standards governing pipelines' conduct of crucial business practices
and the electronic means by which pipelines will exchange information
with their customers and third-parties.
The Commission will begin this process by focusing on the ten high
priority data requirements identified by the industry itself. The items
identified by the Working Group are nominations, confirmations,
allocated gas flows, customer and contract imbalances, gas flow at
metered points, transportation invoices, pre-determined allocation
methodologies, gas payment remittance statements, gas sales invoices,
and uploads of capacity release prearranged deals.
By March 15, 1996, the Commission is soliciting comments containing
detailed proposals for the standard set of information (data elements)
that the Commission should require all pipelines to use in conducting
these ten business transactions as well as for standard nomenclature
and standards for any associated business practices and procedures. As
an example, commenters should propose a simplified standard set of
nomination information that will be sufficient for customers to submit
a nomination on any pipeline as well as a standard set of information
that would be included in the pipeline's confirmation of that request.
In addition to business practice standards, comments also should
address how the information is to be communicated. Comments should
include communication protocols for each business practice addressing
the scheduling and response times of information exchanges, performance
standards for assessing whether the system is substantially meeting
those goals, or other needed communication issues.
The Commission expects the proposals to be sufficiently detailed
that they could be included in a Notice of Proposed Rulemaking (NOPR).
The comments submitted on March 15, 1996, also should propose an
implementation schedule or plan, including development of the needed
electronic communication standards and time for full and effective
testing, so that the standards can be fully implemented by January 1,
1997.
In addition to the ten high priority data requirements, comments
should address whether the Commission should adopt standards for
pipeline business practices to help facilitate gas flow across the
pipeline grid, such as the standards considered by the INGAA/AGD Grid
Integration Project. For example, INGAA, in its letter, identified
standards for nomination deadlines, gas day, the effective nomination
period, and capacity release as ones appropriate for immediate
consideration. Comments also should consider whether any revisions to
current industry electronic communication protocols or practices are
needed to facilitate the movement of gas across the pipeline grid,
including alternatives to pipeline Electronic Bulletin Boards. Comments
should include detailed proposals of standards that the Commission
could adopt for implementation by January 1, 1997. The Commission
recognizes that standardization is an ongoing and evolving process, and
the Commission intends to be involved in further efforts to develop
standards that will promote a national pipeline grid.6
\6\For example, besides the ten high priority data elements, the
Working Group identified 23 additional business issues that require
standardization.
---------------------------------------------------------------------------
The Commission urges representatives of the various segments of the
industry to work together to achieve a consensus on these standards.
The Commission's earlier efforts in this area benefitted greatly from
the Working Groups' input. The Commission continues to believe that the
industry should take the lead in developing and implementing standards
that will be both practical and workable for the variety of business
transactions which are presently taking place, as well as for those
which may occur in the future. With the expansion of the scope of
GISB's charter and the broad-based participation in GISB by all
industry segments,7 the Commission expects that GISB may become a
forum through which these industry efforts can be coordinated. If GISB
is able to provide substantive and timely proposals for
[[Page 55506]]
standards relating to the high priority data elements described above,
as well as others such as those identified in the Grid Integration
Project, the Commission will give those proposals considerable weight.
However, even in the absence of a consensus proposal from GISB, the
Commission intends to move ahead with this proceeding.
\7\The Commission is aware that not all industry participants
are members of GISB, but the Commission's understanding is that the
GISB process permits nonmembers to participate in developing
standards.
---------------------------------------------------------------------------
As noted above, comments must be filed no later than March 15,
1996, along with an implementation plan which ensures that
implementation occurs by January 1, 1997. The Commission recognizes,
however, that with respect to discrete elements of the ten high
priority items, or other business practices, the industry may reach a
consensus on specific standards before that date.8 To the extent
the industry reaches consensus, the Commission encourages voluntary
implementation of those consensus standards.
\8\For example, in its October 18, 1995 letter, INGAA represents
that it intends to submit to GISB a pipeline consensus draft
addressing the minimum data elements and nomenclature for
nominations and confirmations by December 1995.
---------------------------------------------------------------------------
An original and 14 copies of comments in response to this notice
must be filed with the Commission no later than March 15, 1996.
Comments should be filed with the Office of the Secretary, Federal
Energy Regulatory Commission, 888 First Street, N.E., Washington, DC
20426 and should refer to Docket No. RM96-1-000.
By the Commission.
Lois D. Cashell,
Secretary.
[FR Doc. 95-27010 Filed 10-31-95; 8:45 am]
BILLING CODE 6717-01-P
Complete official Federal Register PDF
FR Doc. 95-27000 Airworthiness Directives; Bell Helicopter Textron, Inc. Model 214ST Helicopters
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55495-55496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27000]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-SW-26-AD]
Airworthiness Directives; Bell Helicopter Textron, Inc. Model
214ST Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to Bell Helicopter Textron, Inc.
(BHTI) Model 214ST helicopters with certain tailboom assemblies and a
certain emergency float kit installed. This proposal would require
initial and repetitive inspections of the tailboom for cracks until
modifications of the tailboom are accomplished. This proposal is
prompted by several reports of cracks in the lower aft skin of the
tailboom assembly. The actions specified by the proposed AD are
intended to prevent cracks in the tailboom assembly, which could result
in structural failure of the tailboom and subsequent loss of control of
the helicopter.
DATES: Comments must be received by January 2, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Office of the Assistant Chief Counsel, Attention:
Rules Docket No. 95-SW-26-AD, 2601 Meacham Blvd., Room 663, Fort Worth,
Texas 76137. Comments may be inspected at this location between 9:00
a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
The service information referenced in the proposed rule may be
obtained from Bell Helicopter Textron, Inc., Attention: Customer
Support, P.O. Box 482, Fort Worth, Texas 76101. This information may be
examined at the FAA, Office of the Assistant Chief Counsel, 2601
Meacham Blvd., Room 663, Fort Worth, Texas.
FOR FURTHER INFORMATION CONTACT: Mr. Tom Henry, Aerospace Engineer,
FAA, Rotorcraft Directorate, Rotorcraft Certification Office, 2601
Meacham Blvd., Fort Worth, Texas 76137, telephone (817) 222-5158, fax
(817) 222-5959.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-SW-26-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Office of the Assistant Chief Counsel, Attention: Rules
Docket No. 95-SW-26-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas
76137.
Discussion
This document proposes to adopt a new AD that is applicable to BHTI
Model 214ST helicopters, serial number (S/N) 28101 through 28132, with
a tailboom assembly, part number (P/N) 214-031-003-111 or 214-031-003-
277, and with an emergency float kit, P/N 214-706-120, installed. There
have been reports of cracks found in five Model 214ST helicopter
tailbooms with the emergency float kit installed. The cracks were found
in the lower aft skin between boom stations 243.76 and 284.38. This
condition, if not corrected, could result in structural failure of the
tailboom and subsequent loss of control of the aircraft.
The FAA has reviewed Bell Helicopter Textron, Inc. Alert Service
Bulletin 214ST-95-72 (ASB), dated July 24, 1995, which describes
procedures for a visual inspection of the affected tailboom area of
Model 214ST helicopters with emergency float kits installed. The ASB
also describes a modification to the helicopters that adds internal
stiffeners and doublers to the tailboom, and replaces the existing
access door frame, P/N 214-030-325, with a redesigned frame of
increased thickness.
Since an unsafe condition has been identified that is likely to
exist or develop on certain other BHTI Model 214ST helicopters of the
same type design, the proposed AD would require, for Model 214ST
helicopters, S/N 28101 through 28132, with a tailboom assembly, P/N
214-031-003-111 or 214-031-003-277, and with an emergency float kit, P/
N 214-706-120, installed, inspections of the tailboom assembly for
cracks within 250 hours time-in-service (TIS) or at the next 180-day
float inspection, and thereafter, at each 180-day float inspection
until certain modifications of the tailboom are accomplished. The
modifications, which are to be accomplished if any crack is found in
the tailboom or on or before accumulating an additional 500 hours TIS
after the effective date of this AD, whichever occurs first, include
installing stiffeners and doublers in the tailboom, and replacing the
access door frame with a thicker access door frame. The actions would
be required to be accomplished in accordance with the procedures
contained in BHTI Alert Service Bulletin (ASB) 214ST-95-72, dated July
24, 1995.
The FAA estimates that six helicopters of U.S. registry would be
affected by this proposed AD, that it would take approximately 20 work
[[Page 55496]]
hours per helicopter to accomplish the modifications, approximately 3
work hours per helicopter to accomplish the 250 hours TIS inspection,
and that the average labor rate is $60 per work hour. Required parts
would cost approximately $1,100 per helicopter. Based on these figures,
the total cost impact of the proposed AD on U.S. operators is estimated
to be $14,880.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
to read as follows:
Bell Helicopter Textron, Inc. (BHTI): Docket No. 95-SW-26-AD.
Applicability: Model 214ST helicopters, serial number (S/N)
28101 through 28132, with a tailboom assembly, part number (P/N)
214-031-003-111 or 214-031-003-277 and with an emergency float kit,
P/N 214-706-120, installed, certificated in any category.
Note 1: This AD applies to each helicopter identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For helicopters that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (d) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any helicopter from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent cracks in the tailboom assembly, structural failure
of the tailboom and subsequent loss of control of the helicopter,
accomplish the following:
(a) Within the next 250 hours time-in-service (TIS) or at the
next 180-day float inspection, whichever occurs first, and
thereafter at intervals not to exceed each 180-day float inspection,
visually inspect the tailboom assembly for cracks in accordance with
the maintenance procedures contained in Part 1 of the Accomplishment
Instructions of BHTI Alert Service Bulletin 214ST-95-72, dated July
24, 1995.
(b) Upon discovery of a crack or on or before accumulating an
additional 500 hours TIS after the effective date of this AD,
whichever occurs first, modify the tailboom assembly in accordance
with Part 2 of the Accomplishment Instructions of BHTI Alert Service
Bulletin No. 214ST-95-72, dated July 24, 1995.
(c) Modification of the tailboom assembly in accordance with
paragraph (b) constitutes terminating action for the requirements of
this AD.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used when approved by the Manager, Rotorcraft Certification Office.
Operators shall submit their requests through an FAA Principal
Maintenance Inspector, who may concur or comment and then send it to
the Manager, Rotorcraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Rotorcraft Certification Office.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the helicopter to a location where
the requirements of this AD can be accomplished.
Issued in Fort Worth, Texas, on October 23, 1995.
Eric Bries,
Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 95-27000 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-26999 Airworthiness Directives; Societe Nationale Industrielle Aerospatiale and Eurocopter France Model AS 350B, BA, B1, B2, and D, and Model AS 355E, F, F1, F2, and N Helicopters
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55491-55495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26999]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-SW-04-AD]
Airworthiness Directives; Societe Nationale Industrielle
Aerospatiale and Eurocopter France Model AS 350B, BA, B1, B2, and D,
and Model AS 355E, F, F1, F2, and N Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
[[Page 55492]]
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to Societe Nationale Industrielle
Aerospatiale and Eurocopter France (Eurocopter France) Model AS 350B,
BA, B1, B2, and D and Model AS 355E, F, F1, F2, and N helicopters,
without an autopilot installed. This proposal would require a visual
inspection to determine whether the cyclic pitch change control rod
(rod) end fittings were safetied, and removal and replacement of the
rod if the rod end fittings were not safetied. This proposal is
prompted by a manufacturer's report that some of the rod end fittings
had not been safetied at the factory. The actions specified by the
proposed AD are intended to prevent loss of tightening torque on the
adjustment nuts of the rod, shifting of the neutral point of the cyclic
stick, reduction in the amount of available movement of the cyclic
stick in the roll axis, and subsequent reduction in the controllability
of the helicopter.
DATES: Comments must be received by January 2, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Office of the Assistant Chief Counsel, Attention:
Rules Docket No. 95-SW-04-AD, 2601 Meacham Blvd., Room 663, Fort Worth,
Texas 76137. Comments may be inspected at this location between 9:00
a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Monschke, Aerospace
Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, 2601
Meacham Blvd., Fort Worth, Texas 76137, telephone (817) 222-5116, fax
(817) 222-5961.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-SW-04-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Office of the Assistant Chief Counsel, Attention: Rules
Docket No. 95-SW-04-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas
76137.
Discussion
The Direction Generale De L'Aviation Civile (DGAC), which is the
airworthiness authority for France, has notified the FAA that an unsafe
condition may exist on Eurocopter France Model AS 350B, BA, B1, B2, and
D and Model AS 355E, F, F1, F2, and N helicopters, without an autopilot
installed. The DGAC advises that the manufacturer discovered that some
rod end fittings have not been safetied at the factory.
Eurocopter France has issued Eurocopter Service Bulletin No. 01.38,
dated June 26, 1994, for the Model AS 355 series helicopters, and
Eurocopter Service Bulletin No. 01.42, dated June 28, 1994, for the
Model AS 350 series helicopters, which specifies a visual inspection to
determine whether the rod end fittings have been safetied;
reinstallation of the forward lower fairing if the rod end fittings
have been safetied, and removal and replacement of the rod with an
airworthy rod and reinstallation of the forward lower fairing if the
rod end fittings have not been safetied. The DGAC classified this
service bulletin as mandatory and issued AD 94-179-051(B) and AD 94-
180-069(B), both dated August 3, 1994, in order to assure the continued
airworthiness of these helicopters in France.
This helicopter model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to
exist or develop on other Eurocopter France Model AS 350B, BA, B1, B2,
and D and Model AS 355E, F, F1, F2, and N helicopters without an
autopilot installed, of the same type design registered in the United
States, the proposed AD would require a visual inspection to confirm
that the rod end fittings are safetied in accordance with the
manufacturer's service information, and removal and replacement of the
rod, if necessary.
The FAA estimates that 498 helicopters of U.S. registry would be
affected by this proposed AD, that it would take approximately one-
fourth of a work hour per helicopter to inspect the rod end fittings,
and 1 work hour to remove and reinstall the rod, if necessary, and that
the average labor rate is $60 per work hour. Required parts would be
provided by the manufacturer. Based on these figures, the total cost
impact of the proposed AD on U.S. operators is estimated to be $37,350.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
[[Page 55493]]
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
to read as follows:
Societe Nationale Industrielle Aerospatiale and Eurocopter France:
Docket No. 95-SW-04-AD.
Applicability: Model AS 350B, BA, B1, B2, and D, and Model AS
355E, F, F1, F2, and N helicopters, with cyclic pitch change control
rod, part number (P/N) 704A34-113-279, installed, and without an
autopilot installed, certificated in any category.
Note 1: This AD applies to each helicopter identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For helicopters that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (d) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any helicopter from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent loss of tightening torque on the adjustment nuts of
the cyclic pitch change control rod, shifting of the neutral
position of the cyclic stick, reduction in the amount of available
movement of the cyclic stick in the roll axis, and subsequent
reduction in the controllability of the helicopter, accomplish the
following:
(a) Within 100 hours time-in-service (TIS) after the effective
date of this AD, remove the forward lower fairing and visually
inspect the cyclic pitch change control rod (rod), P/N 704A34-113-
279, to determine whether the end fittings have been safetied (see
Figure 1, Detail 1, tabs bent around the adjustment nut).
(b) If the visual inspection indicates that the rod end fittings
have been safetied, reinstall the forward lower fairing.
(c) If the visual inspection indicates that the rod end fittings
have not been safetied (see Figure 1, Detail 2, tabs not bent around
the adjustment nut), accomplish the following in accordance with the
applicable maintenance manual:
(1) Immobilize the cyclic control.
BILLING CODE 4910-13-U
[[Page 55494]]
[GRAPHIC][TIFF OMITTED]TP01NO95.000
BILLING CODE 4910-13-C
[[Page 55495]]
(2) Remove the rod and replace it with an airworthy rod on which
the rod end fittings have been safetied.
(3) Reinstall the forward lower fairing.
(4) Verify proper operation of the cyclic control.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used when approved by the Manager, Rotorcraft Standards Staff, FAA,
Rotorcraft Directorate. Operators shall submit their requests
through an FAA Principal Maintenance Inspector, who may concur or
comment and then send it to the Manager, Rotorcraft Standards Staff.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Rotorcraft Standards Staff.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the helicopter to a location where
the requirements of this AD can be accomplished.
Issued in Fort Worth, Texas, on October 23, 1995.
Eric Bries,
Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 95-26999 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-26994 Proposed Modification of the Offutt AFB, Class C Airspace Area; Nebraska
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55498-55501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26994]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AWA-7]
Proposed Modification of the Offutt AFB, Class C Airspace Area;
Nebraska
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would modify the Class C airspace area at
Offutt Air Force Base (AFB), NE. This proposal would delete the 1-mile
airspace exclusion around the South Omaha Airport, due to its closure,
and return this airspace to the surface area of the Class C airspace.
In addition, this proposed rule would reduce controller workload.
DATES: Comments must be received on or before December 15, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Chief Counsel, Attention: Rules
Docket [AGC-200], Airspace Docket No. 95-AWA-7, 800 Independence
Avenue, SW., Washington, DC 20591.
The official docket may be examined in the Rules Docket, Office of
the Chief Counsel, Room 916, weekdays, except Federal holidays, between
8:30 a.m. and 5:00 p.m.
An informal docket may also be examined during normal business
hours at the office of the Regional Air Traffic Division.
FOR FURTHER INFORMATION CONTACT: William C. Nelson, Airspace and
[[Page 55499]]
Obstruction Evaluation Branch (ATP-240), Airspace-Rules and
Aeronautical Information Division, Air Traffic Rules and Procedures
Service, Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone: (202) 267-9295.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AWA-7.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket both before and after the closing
date for comments. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-220,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-3485. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future NPRM's
should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to modify the Class C airspace
area at Offutt AFB, NE. The proposed modification would eliminate the
1-mile airspace exclusion around South Omaha Airport due to its
closure. The intended effect of this proposal is to return this
airspace to the surface area of the established Class C airspace area.
Additionally, this proposed rule would reduce controller workload. The
coordinates for this airspace docket are based upon North American
Datum 83. Class C airspace designations are published in paragraph 4000
of FAA Order 7400.9C dated August 17, 1995, and effective September 16,
1995, which is incorporated by reference in 14 CFR 71.1. The Class C
airspace designation listed in this document would be subsequently
published in the Order.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs that each
Federal agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effect of regulatory changes on international trade. In conducting
these analyses, the FAA has determined that this Notice of Proposed
Rulemaking (NPRM) is not ``a significant regulatory action'' as defined
in the Executive Order and the Department of Transportation Regulatory
Policies and Procedures.
This NPRM would modify the Class C airspace area at Offutt AFB, NE.
This proposal would delete the 1-mile airspace exclusion around South
Omaha Airport and standardize air traffic operations.
Costs
The FAA has determined that the implementation of the NPRM to
modify the Class C airspace area at Offutt AFB, NE, would result in
little or no cost to either the agency or aircraft operators. The
elimination of the 1-mile airspace exclusion around the South Omaha
Airport would not reduce aviation safety nor increase the risk of a
midair collision because that airport is closed. Also, the revision to
aeronautical charts to reflect the airspace modification would be part
of the routine and periodic updating of charts. Finally, the FAA would
not incur any additional administrative costs for either personnel or
equipment.
Benefits
The NPRM would generate benefits for system users and the FAA
primarily in the form of enhanced operational efficiency. The NPRM
would provide additional controlled airspace for aircraft landing at
and departing from Offutt AFB, NE. Air traffic controllers would gain
operational efficiency as they would be able to standardize air traffic
operations.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if an NPRM would have ``a significant
economic impact on a substantial number of small entities.'' FAA Order
2100.14A outlines the FAA's procedures and criteria for implementing
the RFA. Small entities are independently owned and operated small
businesses and small not-for-profit organizations. A substantial number
of small entities is defined as a number that is 11 or more and which
is more than one-third of the small entities subject to this NPRM.
The FAA determined that revising the Class C airspace area at
Offutt AFB would not result in a significant economic impact on a
substantial number of small entities. This determination was made
because there are little or no costs associated with this NPRM.
International Trade Impact Assessment
This NPRM would not constitute a barrier to international trade,
including the export of U.S. goods and services to foreign countries
and the import of foreign goods and services into the United States.
This NPRM would not impose costs on aircraft operators or aircraft
manufacturers in the United States or foreign countries. The
modification of Class C airspace would only affect U.S. terminal
airspace operating procedures at and in the vicinity of Offutt AFB, NE.
This NPRM would not have international trade ramifications because it
is a domestic airspace matter that would not impose additional costs or
requirements on affected entities.
[[Page 55500]]
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 4000--Subpart C-Class C Airspace
* * * * *
ACE NE C Offutt AFB, NE [Revised]
Offutt AFB, NE
(Lat. 41 deg.07'06''N, long. 95 deg.54'45''W.)
That airspace extending upward from the surface to and including
5,000 feet MSL within a 5-mile radius of Offutt AFB, and that
airspace extending upward from 2,500 feet MSL to and including 5,000
feet MSL within a 10-mile radius of the Offutt AFB excluding that
airspace designated as the Eppley Airfield, Omaha, NE, Class C
airspace area.
* * * * *
Issued in Washington, DC, on October 25, 1995.
Nancy B. Kalinowski,
Acting Manager, Airspace-Rules and Aeronautical Information Division.
BILLING CODE 4910-13-U
[[Page 55501]]
[GRAPHIC][TIFF OMITTED]TP01NO95.001
[FR Doc. 95-26994 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-C
Complete official Federal Register PDF
FR Doc. 95-26993 Accelerated Stalls in Commuter Category Airplanes
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Page 55491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26993]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. 27316 Notice No. 93-5]
RIN 2120-AE86
Accelerated Stalls in Commuter Category Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of Proposed Rulemaking (NPRM); Withdrawal.
-----------------------------------------------------------------------
SUMMARY: The FAA is withdrawing a previously published Notice of
Proposed Rulemaking (NPRM) that proposed to eliminate the certification
requirement to demonstrate an accelerated entry stall for commuter
category airplanes. The proposed rule would have removed an unwarranted
hazard during flight demonstrations required for airplane type
certification, and would not compromise passenger safety. This hazard
was a direct result of the high power-to-weight rations of new commuter
airplanes. The FAA has proposed a similar requirement in the
Airworthiness Standards; Flight Proposals Based on European Joint
Aviation Requirements, Docket No. 27807, Notice No. 94-22 (59 FR
37878), published July 25, 1994.
FOR FURTHER INFORMATION CONTACT:
Lowell Foster, Standards Office (ACE-111), Small Airplane Directorate,
Aircraft Certification Service, Federal Aviation Administration, 601
East 12th Street, Kansas City, Missouri 64106; telephone (816) 426-
5688.
SUPPLEMENTARY INFORMATION: On June 7, 1993, the FAA published Notice of
Proposed Rulemaking No. 93-5 (58 FR 32034), Docket No. 27316, to
announce its intention to amend 14 CFR part 23. Concurrent with
publication of that notice, the FAA published notice of availability of
a proposed change to AC 23-8A.
The FAA proposed a similar requirement in Notice No. 94-22 (59 FR
37878; July 25, 1994), Docket No. 27807, which covers the accelerated
stall demonstration and would harmonize it with the Joint Aviation
Requirements. The proposed requirement, based on the European rules,
provides relief from high power settings for the accelerated stall
demonstration, removing the condition that created the hazard that was
the subject of the petition for rulemaking. Therefore the FAA considers
that Notice No. 94-22 addresses the petitioner's original concerns for
hazardous flight demonstrations, even though it is not identical to the
original rule change proposed by the petitioner. Accordingly, the
Accelerated Stalls Notice of Proposed Rulemaking and the draft advisory
circular, published in the Federal Register on June 7, 1993 (58 FR
32034), are withdrawn.
Comments submitted to Docket No. 27316 are being reviewed, and will
be disposed of as part of Docket No. 27807.
Issued in Washington, DC on October 25, 1995.
Daniel P. Salvano,
Acting Director, Aircraft Certification Service.
[FR Doc. 95-26993 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26992 Proposed Amendment of Class E Airspace; Globe, AZ
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55501-55503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26992]
-----------------------------------------------------------------------
[[Page 55502]]
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 94-AWP-35]
Proposed Amendment of Class E Airspace; Globe, AZ
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Globe, AZ. The development of a Global Positioning System (GPS)
Standard Instrument Approach Procedure (SIAP) to Runway (RWY) 27 has
made this proposal necessary. The intended effect of this proposal is
to provide adequate controlled airspace for Instrument Flight Rules
(IFR) operations at the Globe-San Carlos Regional Air Facility Airport,
Globe, AZ.
DATES: Comments must be received on or before December 11, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-35, Air Traffic Division, P.O. Box 92007,
Worldway Postal Center, Los Angeles, California 90009.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Western Pacific Region, Federal Aviation Administration,
Room 6007, 15000 Aviation Boulevard, Lawndale, California 90261.
An informal docket may also be examined during normal business at
the Office of the Manager, System Management Branch, Air Traffic
Division at the above address.
FOR FURTHER INFORMATION CONTACT:
Scott Speer, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California 90261,
telephone (310) 725-6533.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with the comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AWP-35.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
at 15000 Aviation Boulevard, Lawndale, California 90261, both before
and after the closing date for comments. A report summarizing each
substantive public contact with FAA personnel concerned with this
rulemaking will be filed in the docket.
Availability of NPRM
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
System Management Branch, P.O. Box 92007, Worldway Postal Center, Los
Angeles, California 90009. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A, which describes the application procedures.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend the Class E airspace
area at Globe, AZ. The development of a GPS SIAP at the Globe-San
Carlos Regional Air Facility Airport has made this proposal necessary.
The intended effect of this proposal is to provide adequate Class E
airspace for aircraft executing the GPS RWY 27 SIAP at the Globe-San
Carlos Regional Air Facility Airport, Globe, AZ. Class E airspace
designations for airspace areas extending upward from 700 feet or more
above the surface of the earth are published in Paragraph 6005 of FAA
Order 7400.9C dated August 17, 1995, and effective September 16, 1995,
which is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
this Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 10034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.
* * * * *
AWP AZ E5 Globe, AZ [Revised]
Globe-San Carlos Regional Air Facility Airport, AZ
(Lat. 33 deg.21'10''N, long. 110 deg.39'51''W)
That airspace extending upward from 700 feet above the surface
within a 5-mile radius of the Globe-San Carlos Regional Air Facility
Airport. That airspace extending upward from 1,200 feet above the
surface bounded by a line beginning at lat. 33 deg.26'00''N, long.
110 deg.36'00''W; to lat. 33 deg.24'00''N, long. 110 deg.09'00''W;
to lat. 33 deg.09'00''N, long. 110 deg.09'00''W; to lat.
33 deg.12'00''N, long. 110 deg.36'00''W; thence to the point of
beginning.
* * * * *
[[Page 55503]]
Issued in Los Angeles, California, on October 19, 1995.
Richard R. Lien,
Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 95-26992 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26991 Proposed Amendment of Class E Airspace; Flagstaff, AZ
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55503-55504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26991]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AWP-31]
Proposed Amendment of Class E Airspace; Flagstaff, AZ
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Flagstaff, AZ. The development of a Global Positioning System (GPS)
Standard Instrument Approach Procedure (SIAP) to Runway (RWY) 21 has
made this proposal necessary. The intended effect of this proposal is
to provide adequate controlled airspace for Instrument Flight Rules
(IFR) operations at Flagstaff Pulliam Airport, Flagstaff, AZ.
DATES: Comments must be received on or before December 8, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-31, Air Traffic Division, P.O. Box 92007,
Worldway Postal Center, Los Angeles, California 90009.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Western Pacific Region, Federal Aviation Administration,
Room 6007, 15000 Aviation Boulevard, Lawndale, California, 90261.
An informal docket may also be examined during normal business at
the Office of the Manager, System Management Branch, Air Traffic
Division at the above address.
FOR FURTHER INFORMATION CONTACT:
Scott Speer, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California 90261,
telephone (310) 725-6533.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with the comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AWP-31.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
at 15000 Aviation Boulevard, Lawndale, California 90261, both before
and after the closing date for comments. A report summarizing each
substantive public contact with FAA personnel concerned with this
rulemaking will be filed in the docket.
Availability of NPRM
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
System Management Branch, P.O. Box 92007, Worldway Postal Center, Los
Angeles, California 90009. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A, which describes the application procedures.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend the Class E airspace
area at Flagstaff, AZ. The development of a GPS SIAP at Flagstaff
Pulliam Airport has made this proposal necessary. The intended effect
of this proposal is to provide adequate Class E airspace for aircraft
executing the GPS RWY 21 SIAP at Flagstaff Pulliam Airport, Flagstaff,
AZ. Class E airspace designations for airspace areas extending upward
from 700 feet or more above the surface of the earth are published in
Paragraph 6005 of FAA Order 7400.9C dated August 17, 1995, and
effective September 16, 1995, which is incorporated by reference in 14
CFR 71.1. The Class E airspace designation listed in this document
would be published subsequently in this Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 10034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.
* * * * *
AWP AZ E5 Flagstaff, AZ [Revised]
Flagstaff Pulliam Airport, AZ
(Lat. 35 deg.08'18''N, long. 111 deg.40'17''W)
Flagstaff VOR/DME
(Lat. 35 deg.08'50''N, long. 111 deg.40'27''W)
That airspace extending upward from 700 feet above the surface
within a 3.6-mile radius of the Flagstaff Pulliam Airport; and
within a 10-mile radius of Flagstaff VOR
[[Page 55504]]
beginning at a line 1.8 miles northeast of and parallel to the
Flagstaff VOR 043 deg. radial extending clockwise to a line 1.8
miles west of and parallel to the Flagstaff VOR 198 deg. radial.
That airspace extending upward from 1,200 feet above the surface
within 8.3 miles each side of the Flagstaff VOR 127 deg. and
307 deg. radials, extending from 7 miles northwest to 16.5 miles
southeast of the Flagstaff VOR and that airspace bounded by a line
beginning at lat. 35 deg.13'32''N, long. 111 deg.04'31''W; to lat.
35 deg.17'17''N, long. 111 deg.02'35''W; to lat. 35 deg.22'00''N,
long. 111 deg.16'43''W; to lat. 35 deg.24'00''N, long.
111 deg.26'16''W; to lat. 35 deg.18'00''N, long. 111 deg.35'33''W;
thence clockwise via a 10-mile radius of the Flagstaff VOR to lat.
35 deg.16'34''N, long. 111 deg.32'42''W; to lat. 35 deg.19'58''N,
long. 111 deg.24'10''W, thence to the point of beginning and that
airspace bounded by a line beginning at lat. 35 deg.03'00''N, long.
111 deg.21'00''W; to lat. 35 deg.02'00''N, long. 111 deg.15'00''W;
to lat. 35 deg.01'00''N, long. 111 deg.22'00''W, thence to the point
of beginning
* * * * *
Issued in Los Angeles, California, on October 19, 1995.
Richard R. Lien,
Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 95-26991 Filed 10-31-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26686 Navajo Partitioned Land Grazing Regulations
[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55506-55511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26686]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 161
RIN 1076-AC81
Navajo Partitioned Land Grazing Regulations
AGENCY: Bureau of Indian Affairs, Department of the Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs proposes to add Part 161 to 25
CFR to govern the grazing of livestock on the Navajo Partitioned Land
(NPL) of the Navajo-Hopi Former Joint Use Area (FJUA) of the 1882
Executive Order reservation. The purpose of these regulations is to
conserve the rangelands of the NPL in order to maximize future use of
the land for grazing and other purposes.
DATES: Comments on these proposed rules must be submitted by January 2,
1996.
ADDRESSES: Send comments to Bureau of Indian Affairs, Division of Water
and Land Resources, Room 4559, 1849 C Street N.W., Washington, DC
20240, or telephone number (202) 208-4004.
FOR FURTHER INFORMATION CONTACT: Robert Curley, (602) 871-5151, Ext.
5105, at the Navajo Area Office in Window Rock, Arizona.
SUPPLEMENTARY INFORMATION: As a result of the long-standing dispute
between the Hopi Tribe and the Navajo Nation over beneficial ownership
of the reservation created by the Executive Order of December 16, 1882,
Congress passed the Act of July 22, 1958, 72 Stat. 403, which permitted
the Navajo Nation and the Hopi Tribe to sue each other in federal court
to resolve the issue. The Hopi Tribe initiated such a suit on August 1,
1958, in United States District Court for the District of Arizona in
Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959), (Healing I). The
merits of the case were heard by a three judge panel of the United
States District Court for the District of Arizona in Healing v. Jones,
210 F. Supp. 125 (D. Ariz. 1962) aff'd 373 U.S. 758 (1963), (Healing
II) after the initial procedural challenges to the suit were dismissed
in Healing I. The district court determined that while the Hopi Tribe
had a right to the exclusive use and occupancy of a portion of the 1882
reservation known as District 6, it shared the remaining lands of the
1882 reservation in common with the Navajo Nation. Disputes between the
two tribes continued over the right to use and occupy the 1882
reservation in spite of the district court's decision in Healing II,
which was affirmed by the Supreme Court. In an attempt to resolve these
ongoing problems, Congress enacted the Navajo-Hopi Settlement Act, 25
U.S.C. 640d--640d-31, which provided for the partition of the Joint Use
Area of the 1882 reservation, excluding District 6, between the two
tribes. The Act was amended by the Navajo-Hopi Indian Relocation
Amendments Acts of 1980, 94 Stat. 929, due to the dissatisfaction
expressed by both tribes with the relocation process.
The Relocation Act Amendments added subsection (c) to 25 U.S.C.
640d-18. It required the Secretary of the Interior to complete the
livestock reduction program contained in 25 U.S.C. 640d-18(a) within 18
months of its enactment. The new subsection also required that all
grazing control and range restoration activities be coordinated and
executed with the concurrence of the tribe to which the land had been
partitioned. In 1982, the U.S. District Court for the District of
Arizona determined in Hopi Tribe v. Watt, 530 F. Supp. 1217 (D. Ariz.
1982), that the grazing regulations contained in Part 153 of 25 CFR
were invalid with respect to the 1882 reservation partitioned to both
the Navajo Nation and the Hopi Tribe. The court reached that conclusion
because the regulations did not provide for the concurrence of the
Navajo Nation or the Hopi Tribe as required by the Relocation Act
Amendments. The district court's ruling was upheld by the Ninth Circuit
Court of Appeals in Hopi Tribe v. Watt, 719 F. 2d 314 (9th Cir. 1983).
As a result of the decision in Hopi Tribe v. Watt, Id., the Bureau
of Indian Affairs sought the written concurrence of the Navajo Nation
for the regulations which are herein published. The concurrence of the
Navajo Nation to these regulations was provided by the Resources
Committee of the Navajo Nation Council pursuant to resolution No. RCAP-
079-92 of April 29, 1992. Non-substantive, editorial changes have been
made to the proposed regulations which were approved by the Navajo
Nation.
These regulations are being issued to implement the Secretary of
the Interior's responsibilities mandated by the Navajo-Hopi Settlement
Act, as amended by the Relocation Act Amendments, and the previously
cited federal court decisions. In 1982 Part 152 of 25 CFR was
redesignated as Part 167 and Part 153 of 25 CFR was redesignated as
Part 168. All grazing permits issued for the Joint Use Area under the
old 25 CFR Part 152, some of which dated from 1940, were canceled
within one year pursuant to the Order of Compliance issued on October
14, 1972, by the U.S. District Court of the District of Arizona in
Hamilton v. MacDonald, Civ. 579-PCT. From 1973 through 1978 the Bureau
of Indian Affairs did not issue grazing permits for the Joint Use Area
because it was necessary to complete a census of the human and animal
populations of the Joint Use Area (JUA) in conjunction with a
calculation of the range's carrying capacity and stocking rates.
However, in late 1977 the Joint Use Area Administrative Office of the
Bureau of Indian Affairs at Flagstaff, Arizona, completed its inventory
and began issuing annual grazing permits to the residents of the JUA.
These interim permits were limited to one year by order of the federal
district court. Since the 1982 ruling in Hopi v. Watt, 530 F.2d 1217
(1983), declaring that the pre-1982 regulations were invalid, the
[[Page 55507]]
Bureau of Indian Affairs has been subject to the provisions of the
Navajo-Hopi Settlement Act, as amended, which require the development
of new grazing regulations for the Navajo Partitioned Land with the
concurrence of the Navajo Nation. These regulations are the product of
that consultation.
The grazing regulations in the proposed rules apply only to the
Navajo Partitioned Lands.
It is the policy of the Department of the Interior to afford the
public an opportunity to participate in the rulemaking process whenever
feasible. Accordingly, interested parties may submit written comments,
suggestions or objections regarding these proposed rules to the office
identified in the ``ADDRESS'' section of the preamble. The primary
author of this document is Robert Curley, P. O. Box 1060, Gallup, New
Mexico 87305, telephone number 602/871-5151, Ext. 5106.
The Department of the Interior has determined that these proposed
rules do not constitute a major federal action significantly affecting
the quality of the human environment. Thus, no detailed environmental
impact statement is required by the National Environmental Policy Act
of 1969, 42 U.S.C. 4332 (1988).
The information collection requirements contained in these rules do
not require the approval of the Office of Management and Budget under
44 U.S.C. 3501-3520.
E.O. 12866 Statement
This rule has been reviewed under Executive Order 12866.
Regulatory Flexibility Act Statement
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act, 5 U.S.C. 601-612 (1988).
Takings Implication Assessments (E.O. 12630)
In accordance with E.O. 12630, the Department has determined that
these proposed rules do not have significant takings implications.
List of Subjects in 25 CFR Part 161
Grazing lands, Indian lands, Livestock.
For reasons set forth in the preamble to this part, the Bureau of
Indian Affairs proposes to add part 161 to title 25, chapter I of the
Code of Federal Regulations as it appears below.
25 CFR PART 161--NAVAJO PARTITIONED LAND GRAZING REGULATIONS
Sec.
161.01 Definitions.
161.02 Authority.
161.03 Purpose.
161.04 Scope.
161.05 How range units are established.
161.06 Establishing and implementing Range Management Plans.
161.07 How range improvements are treated.
161.08 How carrying capacity and stocking rate are established.
161.09 Restriction on grazing permits.
161.10 Eligibility and priorities for issuing grazing permits.
161.11 How grazing permits are allocated.
161.12 Provisions required in all grazing permits.
161.13 Procedures for issuing permits.
161.14 Duration of grazing permits.
161.15 Kind and classes of livestock that may be grazed.
161.16 How grazing fees will be assessed and collected.
161.17 How permits may be assigned, modified, or cancelled.
161.18 Establishing and administering special land uses.
161.19 Livestock trespass.
161.20 Impoundment and disposal of trespassing livestock.
161.21 Controlling livestock diseases and parasites.
161.22 Procedures for Navajo Nation concurrence.
161.23 How to appeal decisions on grazing permits.
161.24 Information Collection.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d--640d31.
Sec. 161.01 Definitions.
As used in this part, terms shall have the meanings set forth in
this section:
Allocate means to apportion grazing privileges, including the
determination of who may graze livestock, the number and kind of
livestock, and the place such livestock shall be grazed.
Animal unit (AU) means one adult cow with unweaned calf by her side
or equivalent thereof based on comparative forage consumption. Accepted
conversion factors are: Sheep and Goats--one ewe, doe, buck or ram
equals 0.20 AU; one sheep unit year long (SUYL) equals 0.20 Animal Unit
Year Long: Horses and Mules--one horse, mule, donkey or burro equals
1.25 AU.
Animal Unit Month (AUM) means the amount of feed or forage required
by an animal unit for one month. The conversion factors under the
definition of animal unit apply. Thus, for sheep, one animal unit month
is the amount of feed or forage required by five sheep in one month.
Area Director means the officer in charge of the Navajo Area Office
for the Bureau of Indian Affairs (or his/her designee or authorized
representative).
BIA enumeration means the list of persons living on and
improvements located within the Former Joint Use Area obtained by
interviews conducted in 1974 and 1975 by the Project Officer's staff.
Carrying capacity means the maximum stocking rate possible without
inducing a downward trend in forage production, forage quality, or
related resources.
Class of animal means the age and/or sex of an animal. Example:
cow, calf; ewe, lamb; doe, kid; mare, colt; etc.
Concurrence means agreement by the Area Director and the Navajo
Nation.
Conservation practice means a method of management that seeks to
maintain and/or improve natural resources on a sustained yield basis.
Former Joint Use Area (FJUA) means the area established by the
United States District Court for the District of Arizona in Healing v.
Jones, 210 F. Supp. 125 (1962), aff'd 373 U.S. 758 (1963), that is
inside the Executive Order area [Executive Order of December 16, 1882]
but outside Land Management District 6, and that was divided between
the Navajo Nation and the Hopi Tribe by the Judgment of Partition
issued April 18, 1979, by the United States District Court for the
District of Arizona.
Grazing Permit means a revocable privilege granted in writing and
limited to entering on and utilizing forage by domestic livestock on a
specified tract of land. The term as used in this part shall include
written authorizations issued to enable the crossing or trailing of
domestic livestock across specified tracts or range units.
Hopi Partitioned Land or HPL means that portion of the Former Joint
Use Area which was partitioned to the Hopi Tribe.
Immediate family member means any of the following:
(1) The living spouse of a decedent who was a former permittee;
(2) The children of the deceased if the spouse is not living; or
(3) Siblings of the deceased if neither a spouse or children are
living.
Livestock inventory means the original list developed by the
Project Officer in 1976-77 of livestock owned by persons with a grazing
permit or shared grazing permit, and having customary grazing use in
the Former Joint Use Area under 25 CFR part 167 (formerly part 152).
Management unit means a subdivision of a range unit.
Nation or Navajo Nation means the Resources Committee of the Navajo
[[Page 55508]]
Nation Council, which has been delegated authority to exercise the
powers of the Navajo Nation with regard to the range development and
grazing management of the Navajo Partitioned Land.
Navajo Partitioned Land or NPL means that portion of the Former
Joint Use Area which has been partitioned to the Navajo Nation.
NPL Grazing Committee means the District Grazing Committee
established by the Navajo Nation that is responsible, in whole or in
part, for the NPL (affected areas).
Nonconcurrence means disagreement between the Area Director and the
Navajo Nation.
Project Officer means the Bureau of Indian Affairs official
(formerly the Special Project Officer of the Bureau of Indian Affairs
Administrative Office, Flagstaff, Arizona), to whom is delegated the
authority of the Commissioner of Indian Affairs to act in matters
regarding the Navajo Partitioned Land of the Former Joint Use Area.
Range improvement means:
(1) Any structure or excavation to facilitate management of the
range for livestock;
(2) Any practice designed to improve the range condition or
facilitate more efficient utilization of the range; or
(3) Any modification resulting in an increase in the grazing
capacity of the range.
Range management plan means a plan developed for the beneficial use
of a range unit.
Range unit or range allotment means an area designated for the use
of a prescribed number and kind of livestock under one plan of
management.
Resident is a person who lives on the Navajo Partitioned Land full-
time and previously utilized a customary use grazing permit under 25
CFR part 167 (formerly part 152).
Secretary means the Secretary of Interior or his/her designated
representative.
Settlement Act means the Act of December 22, 1974, 25 U.S.C. 640d--
640d-31.
Special land use means all land usage for purposes other than for
grazing or pasture lands, for which permits, leases, or assignments are
approved by the Area Director under Federal law, or by the Navajo
Nation under the Navajo Tribal Code.
Special management area means an area for which a single management
plan is developed and applied in response to special management
objectives such as watersheds, fire hazard areas, or other similar
concerns.
Stocking rate means the authorized number of Animal Units by range
unit. (``Carrying capacity'' as used in the Settlement Act denotes
stocking rate).
Useable land area means accessible land within a designated
management area producing forage suitable for consumption by livestock.
Sec. 161.02 Authority.
It is within the general authority of the Secretary to protect
Indian trust lands against waste and to prescribe rules and regulations
under which these lands may be leased or permitted for grazing. Under
the Navajo-Hopi Settlement Act, as amended, 25 U.S.C. 640d-8 and 640d-
18, the Secretary is authorized and directed to:
(a) Adjust livestock grazing within the Former Joint Use Area to
carrying capacity;
(b) Restore the grazing potential of the NPL to the maximum extent
feasible;
(c) Survey, monument, and fence the partition boundary;
(d) Protect the rights and property of individuals awaiting
relocation;
(e) Administer conservation practices, including grazing control
and range restoration activities, on the Navajo Partition Lands.
Sec. 161.03 Purpose.
The regulations in this part are issued to implement the
Secretary's responsibilities mandated by the Settlement Act. In general
the regulations in this part are intended to aid in the preservation of
forage, soil, and water resources on the Navajo Partitioned Land, and
to aid in the recovery of those resources where they have deteriorated.
Sec. 161.04 Scope.
The grazing regulations in this part apply to the Navajo
Partitioned Land within the boundaries of the Navajo Reservation held
in trust by the United States for the Navajo Nation.
Sec. 161.05 How range units are established.
(a) The Area Director, in consultation with the NPL Grazing
Committee and the grazing permittees, and with the concurrence of the
Navajo Nation, shall establish or, where it has been determined that
modification will significantly improve the management of all areas,
modify range units on the Navajo Partitioned Land to provide unified
areas for which range management plans can be developed to improve and
maintain soil and forage resources. Physical land features, watersheds,
drainage patterns, vegetation, soil resident concentrations, problem
areas, historical land use patterns, and comprehensive land use
planning shall be considered in the determination of range unit
boundaries.
(b) The Area Director may modify range unit boundaries to include
small and/or isolated portions of Navajo Partitioned Land with
contiguous Navajo tribal lands in order to develop more economical land
management areas. These modifications shall be made in consultation
with the affected NPL grazing permittees, the grazing permittees on
adjoining areas, the NPL Grazing Committee, and the Navajo Nation.
(c) Permittees must obtain archaeological clearances before any
fencing or other land disturbance. Pursuant to Public Law 93-531, as
amended, no action taken pursuant to, in furtherance of, or as
authorized by the regulations in this part shall be deemed a major
Federal action for purposes of the National Environmental Policy Act of
1969 as amended, 42 U.S.C. 4332.
Sec. 161.06 Establishing and implementing Range Management Plans.
(a) The Area Director shall confer with the Navajo Nation in
planning conservation practices for the Navajo Partitioned Land. The
Area Director shall develop range management plans in consultation with
the NPL Grazing Committee and the grazing permittees residing in each
range unit. After the Navajo Nation concurs with and the Area Director
approves the range management plan, the implementation of the plan may
begin immediately. The plan shall address, but shall not be limited to,
the following issues:
(1) Goals for improving vegetative productivity;
(2) Incentives for carrying out the goals;
(3) Stocking rates;
(4) Grazing schedules;
(5) Wildlife management;
(6) Needs assessment for range and livestock improvements;
(7) Schedule for operation and maintenance of existing range
improvements and the opportunities for installing privately or
cooperatively funded projects;
(8) Cooperation in the implementation of range studies;
(9) Control of livestock diseases and parasites;
(10) Fencing or other structures necessary to implement any of the
other provisions in the range management plan.
(b) Range management plans and actions shall require consultation
with the affected grazing permittees.
(c) All range management plans, actions and decisions shall be
submitted to the Navajo Nation for review and concurrence.
[[Page 55509]]
Sec. 161.07 How range improvements are treated.
Range improvements placed on the Navajo Partitioned Land shall be
considered affixed to the land unless specifically exempted in the
permit. No range improvement may be constructed or removed from Navajo
Partitioned Land without the written consent of the Area Director and
the Navajo Nation. All grazing permits shall state that the permittee
is responsible for maintenance of range improvements specifically
identified in the management plan.
Sec. 161.08 How carrying capacity and stocking rate are established.
(a) The Area Director, with the concurrence of the Navajo Nation,
must prescribe the carrying capacity of each range unit by determining:
(1) The maximum number of each kind of livestock that can be grazed
on the unit without damage to vegetation or related resources; and
(2) The season or seasons of use required to achieve the objectives
of the land recovery program required by the Settlement Act.
(b) The stocking rate of each range or management unit shall be
established by the Area Director, with the concurrence of the Navajo
Nation, and shall be based on forage production, range utilization, the
application of land management practices, and range improvements in
place to achieve uniformity of grazing under sustained yield management
principles on each range or management unit.
(c) The Area Director shall review the carrying capacity of the
grazing units on a continuing basis and adjust the stocking rate for
each range or management unit as conditions warrant.
(d) Any change in the stocking rate allowed in the grazing permits
will be prorated on an equal percentage basis among the grazing
permittees on the range or management unit.
Sec. 161.09 Restrictions on grazing permits.
Grazing use on range units is authorized only by permits granted
under this part. A state brand only identifies the owner of the
livestock, but does not authorize the grazing of any livestock within
the NPL. Only a grazing permit issued pursuant to the regulations in
this part authorizes the grazing of livestock within the NPL. Grazing
permits shall be subject to the following restrictions:
(a) Grazing permits shall not be issued or subdivided for less than
four animal units (20 sheep units);
(b) A grazing permit shall be issued in the name of one individual
unless otherwise approved by the NPL Grazing Committee and the Area
Director;
(c) Grazing permits shall be issued for use in one range unit only;
and
(d) Grazing permits may contain additional conditions authorized by
Federal or Navajo Tribal laws.
Sec. 161.10 Eligibility and priorities for issuing grazing permits.
(a) Eligibility. Only those applicants who meet the following
criteria are eligible to receive permits to graze livestock:
(1) Those who had valid grazing permits or shared grazing permits
under an extended family group agreement on Navajo Partitioned Land
under 25 CFR part 167 (formerly part 152) and whose permits were
cancelled on October 14, 1973;
(2) Those who are listed in the 1974-1975 FJUA enumeration;
(3) Those who are current residents on Navajo Partitioned Land; and
(4) Those who do not presently hold a valid grazing permit in a
land management district within the Navajo Indian Reservation.
(b) Priorities. Applicants who are eligible to receive a permit
under paragraph (a) of this section shall be assigned priorities based
on the following criteria:
(1) First priority shall go to heads of households currently over
the age of 65.
(2) Second priority shall go to heads of households under the age
of 65.
(3) In each priority class, eligible applicants who had shared
grazing permits shall be equal to those who had their own grazing
permits.
Sec. 161.11 How grazing permits are allocated.
(a) Initial allocation of the number of Animal Units authorized in
each grazing permit shall be based on the number of Animal Units
previously authorized in prior grazing permits and the authorized
stocking rate on a given range unit.
(b) Grazing permit allocations shall vary from range unit to range
unit depending on the stocking rate of each unit, the management plan,
and the number of eligible grazing permittees in the unit.
(c) Any change in carrying capacity requiring adjustments to the
stocking rate shall be prorated on an equal percentage basis to
permittees on each range unit.
Sec. 161.12 Provisions required in all grazing permits.
(a) All grazing permits shall contain the following provisions:
(1) The permittee agrees he/she will not use, cause, or allow to be
used any part of the permitted area for any unlawful conduct or
purpose.
(2) The permit authorizes no privilege other than grazing use.
(3) No person is allowed to hold a grazing permit in more than one
range unit of the Navajo Partitioned Land.
(b) Any other special provision which, in the discretion of the
Area Director and with the concurrence of the Navajo Nation, is
necessary to protect the land and resource may be added to the permit.
Sec. 161.13 Procedures for issuing permits.
The Area Director shall issue grazing permits only to individuals
that meet the eligibility requirements of Sec. 161.10 (a).
Responsibilities for the initial issuance of grazing permits shall be
as follows:
(a) The Area Director shall develop a complete list of all prior
permit holders, including shared permittees under an extended family
agreement, who had grazing permits cancelled on the NPL and HPL and who
now reside on the NPL. This list shall be provided to the NPL Grazing
Committee for its review. The Area Director shall also provide the NPL
Grazing Committee with his/her determination of the carrying capacity
and stocking rate for each range unit within the NPL.
(b) Within 45 days of receipt, the NPL Grazing Committee shall
review the list of potential permittees provided by the Area Director
for a range unit, and, according to the eligibility and priority
criteria set forth in Sec. 161.10, and make recommendations to the
Navajo Nation for the granting of grazing permits on the range unit.
The Committee shall also make a recommendation for initial permit
allocation of animal units for each permit application.
(c) If the NPL grazing committee fails to make its recommendation
to the Navajo Nation within 45 days after receiving the list of
potential permittees for a range unit and the determination of stocking
rate, then the Area Director shall submit his/her recommendations to
the Navajo Nation.
(d) The Navajo Nation shall review and concur with the list of
proposed permit grantees, including the initial permit allocation of
animal units, and then forward a final list to the Area Director for
the issuance of grazing permits.
Sec. 161.14 Duration of grazing permits.
Each new grazing permit shall be valid until January 1 of the year
following its issuance. After its initial issuance, each grazing permit
is valid for one year beginning on January 1. All grazing permits that
are being used by
[[Page 55510]]
permittees shall be automatically renewed annually until cancelled. If
a grazing permit is not used by the permittee for a one year period,
the Area Director may cancel the permit.
Sec. 161.15 Kind and classes of livestock that may be grazed.
Unless otherwise determined by the Area Director for conservation
purposes and specified in the grazing permit, the permittee may
determine the kind and class of livestock that may be grazed on range
units.
Sec. 161.16 How grazing fees will be assessed and collected.
If requested by the Navajo Nation, the Area Director shall assess
and collect grazing fees under the following procedures:
(a) Fees are to be paid in advance, due and payable by January 1,
with a 30-day grace period thereafter;
(b) Fees shall be collected by the Area Director and thereafter
transferred to the Navajo Nation to be set aside for range management
purposes in grazing management areas;
(c) All grazing permittees who fail to pay the prescribed fees by
January 1, or within the 30-day grace period, shall be subject to a
reasonable late charge set by the Navajo Nation;
(d) If payment is not received after 90 days the grazing permit
shall be subject to cancellation.
Sec. 161.17 How permits may be assigned, modified, or cancelled.
(a) Grazing permits may be assigned, sub-permitted or transferred
only as provided in this section. Permits may only be inherited or
assigned as a single permit, with the approval of the Navajo Nation and
the Area Director, to another immediate family member who has retained
full time residency on the NPL.
(b) The Area Director shall notify the Navajo Nation before taking
any adverse actions. The Area Director may revoke or withdraw all or
any part of a grazing permit by cancellation or modification on 60 days
written notice to a grazing permittee of a violation of the permit or
special conditions affecting the land or the safety of the livestock
thereon, including, but not limited to, flood, disaster, drought,
contagious diseases; or for non-payment of grazing fees or violation of
these regulations; or violation of Federal or tribal laws. Except in
the case of extreme necessity, specified in the notice, cancellation or
modification shall be effective on the next anniversary date of the
grazing permit following the date of notice.
Sec. 161.18 Establishing and administering special land uses.
The Navajo Nation and the Area Director may establish special land
uses, including leases, withdrawals, and land assignments. If a special
land use is inconsistent with issued grazing permits or range
management plans, the special use will govern and will require the
amendment of the grazing permits and range management plans.
Sec. 161.19 Livestock trespass.
The owner of any livestock grazing in trespass on the Navajo
Partitioned Land is liable for a minimum civil penalty of one dollar
per head per day for each cow, bull, horse, mule, or donkey and twenty-
five cents per day for each goat or sheep in trespass, together with
the replacement value of the forage consumed and a reasonable value for
damages to property injured or destroyed. The Area Director may collect
penalties and damages and seek injunctive relief when appropriate. All
payments for penalties and damages shall be credited to the Navajo
Nation's special deposit account. The following acts are prohibited:
(a) Grazing or driving livestock across the Navajo Partitioned Land
without an approved grazing or crossing permit;
(b) Allowing livestock to drift and graze on the NPL without an
approved permit;
(c) Grazing livestock in an area closed to grazing for that class
of livestock;
(d) Grazing livestock upon any land that the Area Director has
withdrawn from grazing use to protect it from damage, after notice of
the withdrawal is received; and
(e) Grazing more in number or kinds of livestock than are
authorized by an appropriate grazing permit.
Sec. 161.20 Impoundment and disposal of trespassing livestock.
(a) The Area Director shall notify the NPL Grazing Committee of any
livestock trespass on the NPL.
(b) After the NPL Grazing Committee has been notified or otherwise
becomes aware of the existence of the livestock trespass, a five day
period shall be allowed for the NPL Grazing Committee to resolve the
livestock trespass with the grazing permittee or livestock owner before
formal trespass action is taken.
(c) If trespassing livestock within a range unit are not removed
within the periods prescribed in this section, the Area Director shall
impound and dispose of it as follows:
(1) If the Area Director knows of the class of livestock and the
name and address of the owners, he/she may impound the livestock any
time five days after mailing by certified mail or having delivered to
the owners or their agent a Notice of Intent to Impound.
(2) When the Area Director does not know of the number and class of
livestock or the name and address of the owner, he/she shall impound
the livestock anytime 15 days after the date of a General Notice of
Intent to Impound is:
(i) Published in the local newspaper;
(ii) Posted at the nearest chapter house or in one or more local
trading posts; and
(iii) Announced in English and in Navajo by a local radio station.
(3) The Area Director may impound trespassing livestock owned by a
person given notice under paragraphs (c)(1) and (2) of this section
without further notice within the six-month period immediately
following the effective date of the notice.
(4) Following the impoundment of trespassing livestock, a Notice of
Sale of Impounded Livestock shall be published in a local newspaper,
posted at the nearest chapter, posted in one or more local trading
posts, and announced in English and in Navajo by a local radio station.
The notice shall describe the livestock and specify the date, time, and
place of sale. The date set shall be at least five days after the
publication, posting, and announcement of the notice.
(5) The owner or his or her agent may redeem the livestock any time
before the time set for this sale by submitting proof of ownership and
paying for the expenses incurred in gathering, impounding, and feeding
or pasturing the livestock and any trespass fees and damages assessed
under Sec. 161.19 and/or other damages caused by the animal.
(6) The Area Director shall return erroneously impounded livestock
to the residence of the rightful owner and shall waive all expenses.
(7) Livestock not redeemed before the time fixed for their sale
shall be sold at a public sale or auction to the highest bidder,
provided the bid is at or above the minimum amount set by the Area
Director and the Navajo Nation.
(8) The proceeds of any sale of impounded livestock shall be
applied in the following order:
(i) Toward the payment of all expenses incurred by the Area
Director in gathering, impounding and feeding or pasturing the
livestock; and
(ii) Toward the payment of any penalties or damages assessed
pursuant to Sec. 161.19.
(9) Any proceeds remaining after payment of the two items in
paragraphs (c)(8) (i) and (ii) of this section and not claimed within
one year from the date
[[Page 55511]]
of sale shall be credited to a special fund for the Navajo Partitioned
Land.
Sec. 161.21 Controlling livestock disease and parasites.
Whenever livestock are exposed to or become infected with
contagious or infectious diseases or parasites the owner must treat the
livestock and restrict their movement in accordance with applicable
laws.
Sec. 161.22 Procedures for Navajo Nation concurrence.
(a) Subject to the Secretary's authority and except where indicated
otherwise, the Navajo Nation has the right to consult with the Area
Director and concur in the establishment of range units, range
management plans, and special management areas.
(b) For any action requiring the concurrence of the Navajo Nation,
the following procedures shall apply:
(1) Unless a longer time is specified in a particular section of
the regulations in this part, or unless the Area Director grants an
extension of time, the Navajo Nation shall have 35 days to review and
concur with the proposed action.
(2) If the Navajo Nation concurs in writing with all or part of the
Area Director's proposed action, then the action or a portion of it may
be immediately implemented.
(3) If the Navajo Nation does not concur with all or part of the
proposed action within 35 days the Area Director shall submit to the
Navajo Nation a written declaration of non-concurrence. The Area
Director shall then notify the Navajo Nation in writing of a formal
hearing to be held not sooner than 30 days from the date of the non-
concurrence declaration.
(4) The formal hearing on non-concurrence will permit the
submission of written evidence and argument concerning the proposal.
The Area Director shall take minutes of the hearing. Following the
hearing, the Area Director may amend, alter, or otherwise change his/
her proposed action. If, following a hearing, the Area Director alters
or amends portions of his/her proposed plan of action, he/she shall
submit the altered or amended portions of the plan to the Navajo Nation
for its concurrence.
(5) If the Navajo Nation fails or refuses to give its concurrence
to the proposal at the hearing, the Area Director may implement the
proposal only after issuing a written order, based upon findings of
fact, that the proposed action is necessary to protect the land
pursuant to his/her responsibilities under the Settlement Act.
Sec. 161.23 How to appeal decisions on grazing permits.
Appeals of decisions issued under this part will be in accordance
with procedures in 25 CFR part 2.
Sec. 161.24 Information collection.
The information collection requirement(s) contained in the
regulations in this part do not require approval by the Office of
Management and Budget under 44 U.S.C. 3501-3520.
Editorial Note: This document was received at the Office of the
Federal Register on October 24, 1995.
Dated: February 3, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-26686 Filed 10-31-95; 8:45 am]
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